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

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THE LAW COMMISSION Item 2 of the Sixth Programme of Law Reform: Damages DAMAGES FOR PERSONAL INJURY: NON-PECUNIARY LOSS To the Right Honourable the Lord Irvine of Lairg, Lord High Chancellor of Great Britain PART I INTRODUCTION 1.1 In June 1995 the then Lord Chancellor announced the Law Commission’s Sixth Programme of Law Reform which included, as the Fifth Programme had done, an item concerning damages. The Programme states: that an examination be made of the principles governing and the effectiveness of the present remedy of damages for monetary and nonmonetary loss, with particular regard to personal injury litigation. Certain matters to which specific consideration is to be given include: ...(e) the award of damages for pain and suffering and other forms of non-pecuniary loss... 1 1.2 In 1996 we published a consultation paper 2 on damages for non-pecuniary loss. The central issues considered in the paper were, first, whether current awards of damages for non-pecuniary loss in personal injury cases are at satisfactory levels, and secondly, whether changes should be made to the assessment of those damages. The latter question required consideration of the role of juries. The paper went on to address the role of juries in assessing quantum in non personal injury cases. 1.3 We received 164 responses to the consultation paper from individuals and organisations representing a broad spectrum of the community. A list of those who responded to the consultation paper is set out at Appendix C. We are very grateful for the time and effort spent by consultees. The arguments and insights put to us have been of invaluable assistance in the formulation of our final recommendations, as the detailed reference which we make to individual responses will demonstrate. 1.4 The extent of the current debate on the adequacy of damages for non-pecuniary loss in personal injury cases was commented on by Henry LJ, in his Foreword to 1 Item 2 of the Sixth Programme of Law Reform (1995) Law Com No 234. 2 Damages for Personal Injury: Non-Pecuniary Loss (1995) Consultation Paper No 140. The paper is 1995 copyright, although it was published early in January 1996. 1
the latest edition of the Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injury Cases. 3 He said: There is currently a lively debate initiated by the Law Commission as to what the level of ...[general damages for pain, suffering and loss of the amenities of life] ought to be. 1.5 We have sought to do justice to the range of points of view expressed in this debate. In particular, we accept the contention repeatedly made by consultees that the fairness of awards is partly reliant on their being perceived to be fair. Accordingly we have commissioned research from the Office for National Statistics into public perceptions of what the levels of damages for non-pecuniary loss in personal injury cases ought to be. 4 1.6 Our conclusion is that awards of damages for non-pecuniary loss in cases of serious personal injury are too low and should generally be increased by a factor of at least 1.5, but by not more than a factor of 2 (or, in other words, that they should be increased by not less than 50 per cent, but by not more than 100 per cent). We make provision, however, for a tapered increase of between 1 and 50 per cent for injuries which fall just within our proposed definition of serious injury. We define a serious personal injury as one for which damages for pain and suffering and loss of amenity for that injury alone would be more than £2,000 (under the present law). 5 1.7 We have reached the view that this increase would best be effected by the Court of Appeal and/or the House of Lords, using their existing powers to lay down guidelines as to quantum in the course of personal injury litigation. If change is not 3 (4th ed 1998). Henceforward we shall refer to these as the “JSB Guidelines”. The first edition was published in 1992, the second in 1994 and the third in 1996. At the time of the publication of Damages for Personal Injury: Non-Pecuniary Loss (1995) Consultation Paper No 140 the second edition was current. The status of the JSB Guidelines has recently been considered by the Court of Appeal in Reed v Sunderland Health Authority, The Times 16 October 1998. Beldam LJ, with whom Potter LJ agreed, referred to the JSB Guidelines as well as to three cases cited to him, when concluding that the award below for damages for pain and suffering and loss of amenity should be reduced. Staughton LJ agreed with Beldam LJ’s proposed order, but went on to comment on the status of the JSB Guidelines. He confirmed his view, expressed in Arafa v Potter [1994] PIQR Q73, Q79, that the JSB Guidelines are not in themselves law, since the Judicial Studies Board has no legislative power. The Guidelines should therefore be regarded with the respect accorded to the writings of any specialist legal author. He noted that Lord Woolf MR would go further, since he wrote in his Foreword to the third edition of the JSB Guidelines that they are “the most reliable tool, which up to now has been made available to courts up and down the land as to what is the correct range of damages for common classes of injuries”. Staughton LJ considered that he had undervalued the Guidelines when he described them in Arafa as “a slim and handy volume which anyone can slip into their briefcase on the way to the county court or travelling on circuit.” Nevertheless the law is to be found elsewhere in rather greater detail and so the Court of Appeal should not refer only to the JSB Guidelines. Hence his comment in the Arafa case that “In this Court we ought to look to the sources rather than the summary produced by the Judicial Studies Board...”, should be amended to say “In this Court we ought to look to the sources as well as the summary produced by the Judicial Studies Board.” 4 See Appendix B below for the full text of the research and paras 3.42-3.64 below for discussion of it. 5 See paras 3.40 & 3.110 below. 2
Page 1 and 2: The Law Commission Law Com No 257 D
Page 3 and 4: THE LAW COMMISSION DAMAGES FOR PERS
Page 5: v Paragraphs Page (5) How should aw
Page 9 and 10: Chancellor’s Department, who advi
Page 11 and 12: 2.5 We rejected adoption of the “
Page 13 and 14: distinctions to be made on the basi
Page 15 and 16: 2.22 There was support for higher a
Page 17 and 18: 2.30 The recovery of interest on th
Page 19 and 20: interest is the date of service of
Page 21 and 22: eturn on any investment where the r
Page 23 and 24: likely to be small. On the other ha
Page 25 and 26: or not death was caused by the inju
Page 27 and 28: PART III WHERE CHANGE IS REQUIRED I
Page 29 and 30: variation between some consultees a
Page 31 and 32: special damages. For example, more
Page 33 and 34: 3.13 Of those who favoured one over
Page 35 and 36: Plaintiffs with substantial claims
Page 37 and 38: (a) Damages for non-pecuniary loss
Page 39 and 40: four bands, made up of those who re
Page 41 and 42: injuries in the present scale of aw
Page 43 and 44: (under the present law), but there
Page 45 and 46: woman which are among the worst tha
Page 47 and 48: amenity was £50,000. This becomes
Page 49 and 50: Up to the current maximum TABLE 2 4
Page 51 and 52: view the research findings indicate
Page 53 and 54: 3.63 We accept that there is truth
Page 55 and 56: seem to us quite wrong for the gene
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victim”, rather than to produce a
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earnings and expenses at a purely n
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The experience of other jurisdictio
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although the pattern is not entirel
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that a judge sitting on his own wit
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and Wales has tended to fall behind
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(V) THE LAW COMMISSION’S RECOMMEN
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(1) Should juries play a greater ro
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(a) Creation of a Compensation Advi
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3.125 Some consultees raised the di
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tariff. Persuasive arguments were m
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with the “tariff” will be overt
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3.146 Yet in Wright v British Railw
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3.148 Housecroft v Burnett 181 is a
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award of very much less will be app
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judgments by the Court of Appeal an
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3.162 We acknowledge that it is ent
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3.167 In this regard we have found
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the award in year 5 should be £x p
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quadriplegia plus blindness plus de
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personal injury cases recommended b
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authorities. It was thought that th
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PART IV WHERE CHANGE IS REQUIRED II
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compensatory (including aggravated)
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acket, and we envisage that in the
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3. THE ASSESSMENT OF COMPENSATORY D
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persuaded, in the light of consulte
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not agree on the level at which a s
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(7) Does the question of overlap (b
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(4) Punitive and restitutionary dam
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Damages (Role of Jury) 1 DRAFT OF A
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EXPLANATORY NOTES This draft Bill i
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APPENDIX C LIST OF PERSONS AND ORGA
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Irwin Mitchell Martin Kramer, Kathe
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The Medical Defence Union Ltd Natio
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damages for personal injury: non-pecuniary loss - Law Commission

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