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

criticised this practice. 29
The Civil Litigation Committee of the Law Society
suggested that damages for loss of congenial employment should be re-classified as
damages for pecuniary loss, along with damages for handicap on the open labour
market. They said:
As the Commission’s report correctly states (paragraph 2.4), the two
main heads of non-pecuniary loss are pain and suffering - and loss of
amenity. Sometimes included in the latter is “loss of congenial
employment”...although this might be regarded as a separate head of
damage (see Champion v LFCDA 30
...). Also Smith v Manchester 31
awards, for handicap on the labour market, are often referred to as a
subhead of damages for non-pecuniary loss. The Law Society suggests
that it would be preferable, and less confusing, if both these heads of
damage clearly formed part of claims for special damage/future loss of
earnings, and that this might be an issue that the Commission could
comment upon in its final report.
3.19 Martin S Bruffell put what seems to us quite a radical proposition, as follows:
The head of Loss of Amenity is...falling into disrepute and is rarely
considered now as part of the General Damages claim for pain and
suffering: it is now covered by specific claims for loss of earnings, loss
of enjoyment of employment, etc. 32
3.20 In our view damages for “handicap on the open labour market” are compensation
for pecuniary loss; 33
while “loss of congenial employment” is merely an aspect of
pain and suffering and loss of amenity. Despite the practice in some cases, we do
not believe that there is any need for, nor advantage in, separating out new heads
of “non-pecuniary loss” beyond pain and suffering and loss of amenity. 34
(3) The Law Commission’s view on levels
3.21 In the light of the responses of consultees, we must now go on to formulate, and
justify, our recommendations on the levels of damages.
29 He said: “Awards are occasionally made of damages for “loss of congenial employment”. It
seems to me that there is an illogicality in making such an award as a discrete item when no
award is made for “loss of much enjoyed hobby”. It seems to me that the loss of the
congenial employment should merely be reflected in the general figure for general damages,
pain, suffering and loss of amenity and it is undesirable that it should be reflected in a
discrete item.”
30 The Times 5 July 1990.
31 (1974) 118 SJ 597.
32 See also the LIRMA Study at p 42 which mentions an increase in claims for damages for
loss of congenial employment, for loss of enjoyment of holiday and for loss of leisure.
33 See, eg, Foster v Tyne and Wear CC [1986] 1 All ER 567; Clerk & Lindsell on Torts (17th ed
1995) para 17-15.
34 See para 3.10 note 13 above for the suggestion that the development of other heads of
damages, including new heads of damages for non-pecuniary loss, has been a reaction to
the inadequacy of damages for pain and suffering and loss of amenity. If there is merit in
this view, it may be anticipated that this tendency will cease if damages for pain and
suffering and loss of amenity are increased.
31