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

awarded will not generally be accepted as restoring a victim’s losses. This approach
is reflected in the case-law, which requires that the fairness and reasonableness of
damages for non-pecuniary loss be assessed in the context of the social, economic
and industrial conditions prevailing at the time. 38
3.25 Hence we believe that the widely-held view amongst consultees that damages for
non-pecuniary loss in cases of serious personal injury are too low, particularly so
far as it reflects difficulty in explaining the tort system to victims, in itself
demonstrates that those damages are too low. On the other hand, that half of
consultees did not consider awards in respect of “minor” injuries to be too low,
suggests that those awards are not too low.
3.26 Moreover, in respect of “minor” injuries, we were interested by the following
statement by the authors of the legal report of the LIRMA Study:
By comparing the 1992 and 1996 editions[of the JSB Guidelines] 39
it is
possible to assess some recent trends in awards for pain, suffering and
loss of amenity. In particular, whilst damages in respect of minor
injuries are increasing markedly, damages for more serious injuries are
not increasing at anywhere near the same rate. For example, the
increase between the three editions in respect of minor whiplash
injuries and minor wrist injuries (Colles’ fracture) is 30 per cent. The
increase between the three editions for quadriplegia is 11 per cent and
for very severe brain damage 9 per cent. 40
This suggests that there may be an empirical explanation for consultees’ view that
awards at the lower end are not too low.
3.27 We have also been influenced by Professor Hazel Genn’s 1994 study, Personal
Injury Compensation: How Much Is Enough? 41
Respondents were divided into
38 See Damages for Personal Injury: Non-Pecuniary Loss (1995) Law Commission
Consultation Paper No 140, para 2.21 for further discussion and authorities, as well as
paras 3.146-3.147 below. In addition, see Kemp & Kemp, The Quantum of Damages Volume
I, 1-003/2. We also found the comment by Sir Thomas Bingham MR (as he then was) in
John v MGN Ltd [1997] QB 586, at 611, of interest: “Any legal process should yield a
successful plaintiff appropriate compensation, that is, compensation which is neither too
much nor too little. That is so whether the award is made by judge or jury. No other result
can be accepted as just. But there is continuing evidence of libel awards in sums which
appear so large as to bear no relation to the ordinary values of life. This is most obviously
unjust to defendants. But it serves no public purpose to encourage plaintiffs to regard a
successful libel action, risky though the process undoubtedly is, as a road to untaxed riches.
Nor is it healthy if any legal process fails to command the respect of lawyer and layman
alike, as is regrettably true of the assessment of damages by libel juries.” See also Smith J’s
comment in Prison Service and Others v Johnson [1997] ICR 275 at 282, regarding awards
for injury to feelings in cases of racial discrimination: “We think that a tribunal ought to
keep an eye on the value of money in ordinary life and on the view which right-thinking
members of the public would have of the amount of the award....We summarise the
principles which we draw from these authorities:...Finally, tribunals should bear in mind Sir
Thomas Bingham’s reference [at 611 in John v MGN Ltd [1997] QB 586] to the need for
public respect for the level of awards made.”
39 See para 1.4 note 3 above.
40 The LIRMA study, p 33.
41 (1994) Law Com 225.
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