damages for personal injury: non-pecuniary loss - Law Commission

Nevertheless, we felt it possible to draw support for the view that since the late
1960s and early 1970s, at least in respect of very serious injuries, awards have
failed to keep up with inflation. We asked consultees if they agreed with this view
and whether they had other evidence to support it.
(2) Consultees’ responses
3.4 Four central messages came through from consultees’ responses: (a) damages for
non-pecuniary loss for serious personal injury are too low; (b) there is no clear
consensus on what the level of damages for non-pecuniary loss in personal injury
cases should be; (c) the views of society as a whole should influence the level of
damages for non-pecuniary loss in personal injury cases; and (d) one must be clear
as to the relevance, if any, of other components of a damages award. We shall now
examine each of these propositions in turn.
(a) Damages for non-pecuniary loss for serious personal injury are too
low
3.5 Of consultees who gave views on levels some did not differentiate between
categories of injury. Others did. When the opinions of these two groups are added
together, the following conclusions can be drawn: -
(1) The significant majority (at least 75 per cent) thought that damages for
non-pecuniary loss for very serious injuries are too low. 5
(2) At least 50 per cent considered that damages for non-pecuniary loss are too
low across the board.
(3) On the other hand, around 50 per cent thought that damages for “minor”
or “trivial” injuries are not too low. Indeed, about 12 per cent took the view
that damages for “trivial” injuries are too high.
3.6 Consultees who differentiated between categories of injury tended not to define
their terms. This makes it difficult to analyse the responses of this group,
particularly in respect of mid-range injuries. 6
Still, we have concluded that if the
highest awards are thought to be too low, this must have a knock-on effect lower
down the scale. Our reading of consultees’ responses therefore suggests a
significant measure of support for increasing damages for non-pecuniary loss not
only in respect of very serious injuries but also in respect of injuries which fall
between the very serious and the “minor” or “trivial”, although there may be
5 David Kemp QC’s response is published in Kemp & Kemp, The Quantum of Damages
Volume I, 1-040-1-040/7. He states at 1-040/7 that “I believe that the current “tariff” for
damages for non-pecuniary loss is much too low. Broadly speaking, I think it should be
doubled.” See also McGregor on Damages (16th ed 1997), para 1696: “It is thought that the
general level of awards is not in need of change upwards...However, there does seem to be a
case for increasing awards for the most serious injuries because it has been shown...that
these awards have fallen seriously behind inflation.”
6 It is also difficult to analyse what respondents meant by the expressions “minor” or
“trivial.” See paras 3.34-3.40 below for our analysis of how non-serious injury should be
defined.
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