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

throughout the period) was pointing to the futility of the argument -
see Housecroft v Burnett. 10
3.9 RM Stewart QC rejected this view. He argued that the early cases were poorly
presented, and hence that the awards for non-pecuniary loss were comparable
while the awards for pecuniary loss were not. He said:
I have no doubt that the Court of Appeal in Housecroft v Burnett 11
deliberately cut the level of award for tetraplegia - I was Leading
Counsel for the Appellant. In paragraph 4.31 of the Consultation
Paper, the passage appears:
“In the past, however, some elements of what are now pleaded as
specific items of pecuniary expense would have been regarded as
covered by the damages for pain, suffering and loss of amenity.” 12
This rather spurious contention was raised, arguendo, by the Court of
Appeal; and in the event was used in part to justify the “fresh start” for
the “average case of tetraplegia” as at April 1985, of £75,000....The
reality was that the Court of Appeal was unable to come to terms with
the critique that earlier total awards were inadequate, because the
detailed analysis of losses and needs (presented in Housecroft and the
norm nowadays) was not done at those earlier dates. The logic is
inescapable, that personal injury cases, by the standards of
presentation common from the early 1980s, used not to be conducted
properly in the 1960s and 1970s.
3.10 Catherine Leech (participating in a seminar on our consultation paper organised
by Pannone & Partners) also argued that the increase in damages for pecuniary
loss should not detract from damages for non-pecuniary loss. She said:
The Commission argues that one reason that the awards have been
lagging behind inflation might be that plaintiff lawyers have become
more creative 13
...in the heads of pecuniary loss that they claim for
10 [1986] 1 All ER 332. See paras 3.148-3.153 below for an account of this case. LIRMA said
that: “...the 1969 awards do not offer a true comparison. The sums awarded for pain,
suffering and loss of amenity in this period include items such as motoring expenses,
holidays etc., which would now be pleaded separately. The pleading of aids and equipment
type claims as a separate head has significantly increased in recent years.” In addition David
Grimley of St Paul International Insurance Company Limited and the UK Claims
Managers’ Association Working Party said: “...in dealing with the most severe categories of
injuries much of the compensation that would have been included in an award in the late
1960s and early 1970s incorporated amounts which are now separately pleaded as part of
future pecuniary loss.”
11 [1986] 1 All ER 332.
12 See Damages for Personal Injury: Non-Pecuniary Loss (1995) Consultation Paper No 140,
para 4.31.
13 We found Laura C H Hoyano’s comment on the Canadian experience interesting in this
context: “The judicially imposed cap on non-pecuniary damages in Canada has simply
induced counsel to seek financial justifications for particular heads of damage, so as to
move those claims into the non-capped pecuniary losses. For a recent example, see
Mulholland v Riley Estate (1995) 12 BCLR 248 (CA), awarding to a brain injured victim
aged 15 years substantial pecuniary damages for loss of the opportunity to obtain financial
benefits from a “permanent interdependent relationship”. In many instances, of course, this
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