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

3 per cent were in Scale 5 and received an average award of £26,917 (median
award of £16,536).
3.37 In summary, therefore, about 64 per cent of successful claimants were fully
recovered after 2 years, and 76 per cent after 3 years. Total damages within those
categories were generally substantially less than £5,000. On the other hand, 21 per
cent of successful cases involved injuries from which full recovery had not been
made after 3 years, and within this category there were awards of less than £5,000.
Three per cent of cases concerned victims with moderate permanent disability.
These findings indicate that while very many cases attracting total awards of
£5,000 or less involve a full recovery within three years, there will be some cases at
this level where the victim has problems which persist after three years.
3.38 It should be noted that damages for non-pecuniary tend to represent more than
half of total damages awards at the lower end of the scale. 52
Bearing this in mind,
on the basis of the LABRU findings it seems to us that injuries in respect of which
an award for non-pecuniary loss of £2,000 would presently be made, assuming full
liability, are almost certainly injuries from which there is full recovery. Hence, they
are injuries for which it can be said that current awards are adequate. 53
We therefore
propose to define a serious injury as being an injury in respect of which the award for
pain and suffering and loss of amenity in a case on any facts involving that injury alone,
and ignoring contributory negligence, would be more than £2,000. 54
3.39 Moreover, it seems to us that just above the £2,000 level there will be very many
cases in respect of which there is full recovery, or where the ongoing effects are
genuinely minor. Accordingly it seems to us that the overall suggested increase
should be tapered for injuries attracting awards of between £2,000 and £3,000.
This will have the beneficial side effect of avoiding a crude distinction between
cases falling just on either side of the definition.
3.40 We therefore recommend that:
(1) damages for non-pecuniary loss (that is, for pain and suffering and
loss of amenity) for serious personal injury should be increased;
(2) for these purposes a serious personal injury is one for which
damages for non-pecuniary loss (that is for pain and suffering and
loss of amenity) for the injury alone would be more than £2,000
52 See P Cane, Atiyah’s Accidents, Compensation and the Law (5th ed 1993), p 236, where he
says: “...it is clear from the Pearson findings that the proportion of a settlement which is
attributable to non-pecuniary loss is much higher in small claims. Indeed, for claims of up
to £5,000 (in 1973) over two-thirds, and in many minor cases over 70% was for nonpecuniary
loss. For larger claims, the proportion attributable to non-pecuniary loss drops to
around 50%.” See Royal Commission on Civil Liability and Compensation for Personal
Injury (1978) Cmnd 7054 Volume II, para 521 & Table 108 on p 157.
53 This is particularly so when the effects of inflation since the studies we have quoted are
taken into account. In other words, awards generally will have increased in line with
inflation, so that it is even less likely that awards at the lower end will be attributable to
injuries in respect of which there are ongoing effects.
54 Examples of such injuries are rib fractures, minor soft tissue and whiplash injuries, fractures
of one finger and the loss of one front tooth.
37