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

3.31 We consider that these findings also indicate that damages for non-pecuniary loss
in respect of serious personal injury are too low for two reasons: first they provide
further evidence that those damages are not generally perceived to be
commensurate with the claimant’s losses; secondly, they suggest that the ongoing
non-pecuniary effects of many injuries are far greater than anticipated by victims
at the time that they receive their compensation. If victims tend to under-estimate
the future effects of their injuries on their lives, it seems very likely that judges,
entirely understandably, do so too, which would inevitably lead to lower awards
than a fuller appreciation of the future would have elicited.
3.32 Finally, it seems to us that there is a good independent argument for the top levels
of damages to be increased. This is that the life expectancy of those who suffer
some of the most dramatic injuries is now very considerably longer than it used to
be. 47
Although this argument primarily affects the injuries at the top of the scale, it
may be regarded as having implications for the whole scale.
3.33 On the other hand, it follows from what we have so far said that we do not accept
the argument that the whole scale should be reduced because advances in medical
science mean that it is possible more effectively to treat many injuries, so that the
consequences of them today are less severe than in the past. 48
Our feeling is that
the main relevance of medical advances is to the correctness of the order in which
injuries are placed on the scale of damages, and any changes to the order should
be left to case-by-case development. 49
We particularly note that consultees
generally did not seem to consider that there was much wrong with the ranking of
47 See the LIRMA Study at p 15, where it is stated: “Life-expectancy 50 years ago for
paraplegics was in the order of two years. Nowadays it is frequently equated as being
normal or close to normal.” Catherine Leech (participating in a seminar on our
consultation paper organised by Pannone & Partners) said: “The third and probably
strongest argument that the awards for non-pecuniary loss for pain, suffering and loss
should be dramatically higher is in my opinion because not only have they not kept pace
with inflation they have taken no account of the fact that medical science has advanced to a
degree that many people survive accidents [when] they would have died in the 1970’s and
many of these people live longer. For spinal cord injuries, there is a 42% greater prospect of
surviving a severe accident now than there was in 1976, only 19 years ago. Thus, some
people survive with much more serious disability than they did then. Awards should reflect
this. More importantly, life expectancy is up to 25% longer now for a spinally-injured
patient than it was in [the] 1970’s. There is therefore a strong argument to say that not only
should the award from 1970 have kept pace with inflation but it should be 25% higher in
appropriate cases too.”
48 LIRMA, Bernard Livesey QC and Ronald Walker QC all made the point that medical
advances have improved the lot of some injured people. For example, Ronald Walker QC
said: “It should be borne in mind that, with the passage of time, improvements in treatment
facilities, pain relief, control of symptoms, availability of specialised equipment, etc. are
likely to ameliorate the position of individuals who have sustained injury of a particular
kind. For example, advances in medication have immeasurably improved the quality of life
of persons suffering from epilepsy, while developing technology offers much improved
bladder, bowel and sexual function for many paraplegics.” See also the LIRMA Study at p
34, although the point is also here made that many previously fatal injuries are now
survivable.
49 It is plainly within the power of the judges to alter the scale of awards to take account of
medical changes. See Lord Diplock in Wright v British Railways Board [1983] 2 AC 773,
785, cited in full at para 3.146 below.
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