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Damages for Personal Injury: Non-Pecuniary Loss

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Damages for Personal Injury: Non-Pecuniary Loss The Law Commission Law Com No 257 DAMAGES FOR PERSONAL INJURY: NON-PECUNIARY LOSS Item 2 of the Sixth Programme of Law Reform: Damages The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Carnwath CVO, Chairman + Professor Andrew Burrows Miss Diana Faber Mr Charles Harpum Mr Stephen Silber, QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ. This terms of this report were agreed on 15 December 1998. The text of this report is available on the Internet at: http://www.open.gov.uk/lawcomm/ + At the date of signing, the Chairman was the Honourable Mrs Justice Arden DBE, who was succeeded on 2 February 1999 by the Honourable Mr Justice Carnwath CVO. ii THE LAW COMMISSION DAMAGES FOR PERSONAL INJURY: NON-PECUNIARY LOSS CONTENTS Paragraphs Page PART I: INTRODUCTION 1.1-1.11 1 PART II: WHERE CHANGE IS NOT REQUIRED 2.1-2.68 5 1. SHOULD DAMAGES FOR NON-PECUNIARY LOSS BE 2.1-2.3 5 AVAILABLE AT ALL? 2. SHOULD ENGLISH LAW ADOPT THE CANADIAN 2.4-2.7 5 “FUNCTIONAL” APPROACH TO THE ASSESSMENT OF DAMAGES FOR NON-PECUNIARY LOSS? 3. SHOULD A CLAIMANT WHO IS UNAWARE OF HIS OR 2.8-2.24 6 HER INJURY BE ENTITLED TO DAMAGES FOR NON-PECUNIARY LOSS? 4. SHOULD THERE BE A THRESHOLD FOR THE RECOVERY 2.25-2.28 10 OF DAMAGES FOR NON-PECUNIARY LOSS? 5. SHOULD INTEREST BE AWARDED ON DAMAGES FOR 2.29-2.58 11 NON-PECUNIARY LOSS AND, IF SO, HOW MUCH INTEREST? 6. SHOULD DAMAGES FOR NON-PECUNIARY LOSS 2.59-2.64 19 SURVIVE THE DEATH OF THE VICTIM? 7. DOES THE QUESTION OF OVERLAP (BETWEEN 2.65-2.68 20 DAMAGES FOR LOSS OF EARNINGS AND DAMAGES FOR LOSS OF AMENITY) RAISED IN FLETCHER V AUTOCAR AND TRANSPORTERS LTD GIVE RISE TO DIFFICULTY? PART III: WHERE CHANGE IS REQUIRED 3.1-3.205 22 I: INCREASING THE LEVELS OF DAMAGES 1. DAMAGES FOR NON-PECUNIARY LOSS FOR SERIOUS 3.1-3.110 22 PERSONAL INJURY SHOULD BE INCREASED (1) Our questions for consultees 3.1-3.3 22 (2) Consultees’ responses 3.4-3.20 23 iii Paragraphs Page (a) Damages for non-pecuniary loss for serious personal injury 3.5-3.11 23 are too low (b) There is no clear consensus on what the level of damages for 3.12-3.13 27 non-pecuniary loss in personal injury cases should be (c) The views of society as a whole should influence the level of 3.14 28 damages for non-pecuniary loss in personal injury cases (d) One must be clear as to the relevance, if any, of other 3.15-3.20 29 components of a damages award (3) The Law Commission’s view on levels 3.21-3.110 31 (a) Damages for non-pecuniary loss for serious personal injury 3.22-3.33 32 are too low (b) The definition of “serious injury” 3.34-3.40 36 (c) The amount by which damages for non-pecuniary loss for 3.41-3.110 38 serious personal injury should be increased (I) THE VIEWS OF SOCIETY AS A WHOLE 3.42-3.59 38 (II) HOW TORT DAMAGES ARE PAID FOR 3.60-3.65 46 (III) THE LEVEL OF “DAMAGES” IN OTHER UK COMPENSATION 3.66-3.84 49 SYSTEMS (IV) THE LEVEL OF “DAMAGES” FOR NON-PECUNIARY LOSS IN 3.85-3.106 55 PERSONAL INJURY CASES IN OTHER JURISDICTIONS (VI) THE LAW COMMISSION’S RECOMMENDATION 3.107-3.110 64 2. WHAT MECHANISM SHOULD BE EMPLOYED TO 3.111-3.188 65 INCREASE DAMAGES FOR NON-PECUNIARY LOSS? (1) Should juries play a greater role in assessing damages 3.114-3.117 66 for personal injury? (2) A Compensation Advisory Board? 3.118-3.129 66 (a) Creation of a Compensation Advisory Board should be rejected 3.121-3.122 68 because decision-making would be unworkable and/or the Board’s recommendations may not command respect (b) Creation of a Compensation Advisory Board should be rejected 3.123-3.127 69 because its recommendations would not be binding (c) Creation of a Compensation Advisory Board should be rejected 3.128 70 because it would be costly (d) Conclusion 3.129 70 (3) A legislative tariff? 3.130-3.139 71 (a) A legislative tariff should be rejected because it would 3.134 72 politicise the question of what damages for non-pecuniary loss should be (b) A legislative tariff should be rejected because it would be 3.135-3.138 72 too rigid (c) Conclusion 3.139 73 (4) An increase in the tariff by the Court of Appeal and/or 3.140-3.170 73 the House of Lords? (a) Do the Court of Appeal and the House of Lords have the 3.141-3.155 73 power to increase the tariff of damages for non-pecuniary loss in personal injury cases? (b) Should an increase in damages be effected in this way? 3.156-3.165 81 (c) Should the Court of Appeal and the House of Lords’ power 3.166-3.170 85 to alter levels of damages be enshrined in statute? iv Paragraphs Page (5) How should awards be updated for the future? 3.171-3.176 87 (6) A fallback position: legislative implementation of our 3.177-3.188 88 suggested increase in the tariff of awards for non-pecuniary loss in personal injury cases ADDENDUM: (OTHER) CHANGES TO ASSIST JUDGES IN 3.189-3.205 92 ASSESSING DAMAGES FOR NON-PECUNIARY LOSS (1) Greater reliance on medical “scores” 3.190-3.194 92 (2) Computerised assistance 3.195-3.202 93 (3) Other ways of assisting the judiciary 3.203-3.205 94 PART IV: WHERE CHANGE IS REQUIRED 4.1-4.32 96 II: REDUCING THE ROLE OF JURIES IN ASSESSING DAMAGES 1. THE ASSESSMENT OF COMPENSATORY DAMAGES 4.1-4.5 96 FOR PERSONAL INJURY SHOULD NOT BE LEFT TO A JURY 2. THE ASSESSMENT OF COMPENSATORY DAMAGES 4.6-4.13 97 (OTHER THAN FOR PERSONAL INJURY) IN NON- DEFAMATION CASES 3. THE ASSESSMENT OF COMPENSATORY DAMAGES 4.14-4.30 102 (OTHER THAN FOR PERSONAL INJURY) IN DEFAMATION CASES 4. PUNITIVE AND RESTITUTIONARY DAMAGES 4.31-4.32 106 PART V: SUMMARY OF RECOMMENDATIONS 5.1-5.17 107 APPENDIX A: DRAFT BILL WITH EXPLANATORY NOTES 111 APPENDIX B: RESEARCH CARRIED OUT BY THE OFFICE 115 FOR NATIONAL STATISTICS INTO PUBLIC PERCEPTIONS OF WHAT DAMAGES FOR NON-PECUNIARY LOSS IN PERSONAL INJURY CASES SHOULD BE APPENDIX C: LIST OF PERSONS AND ORGANISATIONS 194 WHO COMMENTED ON CONSULTATION PAPER NO 140 v 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 non- monetary 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 paper2 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.
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