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

effected in this way within a reasonable period, we recommend that damages
should be increased by the enactment of a short legislative provision. 6
1.8 It will be plain from the above that we do not recommend the extension of jury
trial in personal injury cases. Rather, we have concluded that the assessment of
damages for personal injury should always be for a judge and should never be left
to a jury. 7
We also recommend that compensatory damages, other than in
defamation cases, should be assessed by judges. 8
Finally, we take this opportunity
to “sweep up” and marginally extend our recommendations on juries in our report
on Aggravated, Exemplary and Restitutionary Damages. 9
We therefore here
recommend that judges should in all cases decide whether to award, and, if so, the
amount of, punitive or restitutionary damages.
1.9 The only immediate legislative change which we recommend is therefore in
respect of juries. A draft Bill to give effect to our recommendations is to be found
at Appendix A. We should make clear that we have considered whether that draft
Bill complies with the European Convention of Human Rights, and we confirm
that in our view it plainly does.
1.10 The rest of this paper sets out in detail the reasoning behind our
recommendations. Part II addresses the issues raised in the consultation paper in
respect of which we do not recommend change. Parts III and IV set out our
proposals for change. Part V contains a summary of our recommendations. As we
have said above, a draft Bill to give effect to our recommendations about juries is
to be found at Appendix A. Appendix B contains the results of the empirical
research carried out on our behalf. Appendix C contains a list of those who
responded to the consultation paper. We have not included a separate section on
the present law, since this is generally well-known and is set out in some detail in
our consultation paper. 10
We have, however, set out any important recent
developments in the law at the relevant point in the discussion.
1.11 We gratefully acknowledge the great assistance provided to us in the preparation of
this report by: Lord Woolf MR, Lord Bingham CJ, and the Judges’ Council, who
particularly helped us with our analysis of the pros and cons of different possible
methods for increasing the tariff of awards for non-pecuniary loss in personal
injury cases; Lord Justice Brooke and Lord Justice May, who advised us on the
practicalities of the Court of Appeal issuing guidelines on damages for nonpecuniary
loss in personal injury cases; the Office for National Statistics and, in
particular, Ms Olwen Rowlands, the Omnibus Project Manager and Ms Lynne
Henderson; 11
Dr Mavis McLean of Wolfson College, Oxford and of the Lord
6 See paras 3.165 & 3.188 below.
7 See para 4.4 below.
8 See para 4.12 below.
9 (1997) Law Com 247, paras 5.44, 5.81-5.98, 3.54-3.57; Draft Bill, clauses 2, 12(4).
10 Damages for Personal Injury: Non-Pecuniary Loss (1995) Consultation Paper No 140,
paras 2.4-2.52.
11 But please note that those who carried out the original analysis and collection of the data
bear no responsibility for the further analysis and interpretation of them.
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