Pragmatism and Theory in English Law - College of Social Sciences ...

The Strengths of the Pragmatic Tradition 47
My second example, however, shows how this kind of
logic can be limited in practice. This example concerns the
special damages which are often involved in personal injury
cases. Special damages, of course, are those items of pecuniary
loss which have occurred before the trial and so can be
itemised. Now these items of loss will obviously date from
different times. For instance wage losses may date from a
whole series of successive pay days, perhaps weekly pay
days, during the whole time between the accident and the
trial. Other pecuniary losses may similarly date from different
times, but will often date from haphazard times since
they will often have been incurred at irregular periods. Now
interest on special damages must be at the higher rates,
which include both the inflation element and the real interest
rate, for the appropriate period, but what period should
this interest cover? I am tempted to say that as a matter of
strict logic this interest should no doubt be calculated on
each item of loss as and when it was incurred. But in practice
this is not done, and it is not done because it would
simply not be worth the trouble and cost of trying to make
such precise calculations. In the leading case of Jefford v.
Gee Lord Denning M.R., speaking for the Court of Appeal,
declared that interest on "special damages should be dealt
with on broad lines. The amounts of interest at stake are not
large enough to warrant minute attention to detail." 3 Thus,
in substance, the courts award interest for half the period
from the date of the accident to the date of the trial for all
these miscellaneous items of pecuniary loss, on the rough
and ready assumption that they have been incurred more or
less evenly spread over that period. In actual practice, the
courts do not even do this, but simply award damages for
3 [1970] 2 Q.B. 130, at p. 146.