Factors affecting assessment

· Intensity of pain

- The ‘thin skull rule’ (Mullins)

· Level of insight

- Vegetative state: full compensation for loss of amenity but none for pain and suffering: West

· Age

- Law Commission argued that age should be irrelevant

- Children/older people suffer less?

· Reduced life expectancy

- Either more compensation because C knows of earlier death

- Or less compensation because loss of amenity for shorter time?

· Pre-injury hobbies and enjoyment of life

· Offset damages for pre-existing condition

· Failure to mitigate loss

- Failure to take reasonable steps to reduce the effects of the injury, e.g. refusal to undergo medical treatment

· Loss of marriage prospects

· Gender

- Women get more than men for facial disfigurement

· Circumstances of injury

Irrelevant Factors

· Wealth

- Consider, however, loss of lifestyle, amenity, relevant hobbies etc.

· Inability to use damages

How is it determined in practice?

· Previous settlements (own experience)

· Court judgments

· Use of reference books

- Kemp & Kemp: The Quantum of Damages

- Judicial College Guidelines for the Assessment of General Damages

Atiyah’s View

· PSLA is a secondary form of compensation.

· A ‘correction’ cannot be made.

· Few other systems have PSLA.

· Greater justification is required for compensating non-pecuniary loss as opposed to pecuniary loss because:

- It is not an exact or even approximate replacement

- It is open to fraud and abuse

- It is viewed as less important than financial losses

· PSLA justified only:

- In the most serious cases

- Involving long-term pain and loss of faculty

Proposed Reforms

· Pearson Commission (1978)

- No recovery unless effects of injury continue for at least 3 months after the accident

- Effect overall = reduce damages by 20%

· Law Commission Report (1999)

- Rejected any threshold because:

→ Might encourage exaggeration of symptoms

→ Exclusion for when pain is at its most intense

→ Minor injuries with no pecuniary loss would result in no damages

- Proposed to increase all awards over £3,000 by between 50 and 100% because damages had failed to keep in pace in inflation over the last 30 years.

- Proposals not enacted because they would:

→ Add £1 billion a year to the total tort bill

→ Increase liability premiums

→ Create an exceptional cost for the NHS.

Lewis, ‘Increasing the Price of Pain’ (2001) 64 Modern Law Review 100

Heil v Rankin is by no means radical. This case only affects a small minority of personal injury claims which involve serious injury.

· Reasons for an increase in damages

- ‘Fair, reasonable and just’

- Accords to society’s views as a whole (voice of the people surveys)

- Results in ‘proportionate’ awards

- Accident victims now live longer so PSLA thus lasts longer

· Problems

- Emphasises the disproportionate importance of PSLA in the award of damages

→ The Law Commission notes that PSLA is a major cause of excessive cost, inefficiency and injustice of tort system.

- Contrasts with corrective justice.

· Calculating the limited increase in damages

- The Law Commission proposed a large increase in damages for PSLA

→ Awards over £3,000 should be doubled.

- By contrast, Heil v Rankin makes no change in damages for non-pecuniary loss assessed at, or below, £10,000.

- Still, there is no statutory cap on damages, as in parts of the USA and in Australia.

- There is no formal table yet of compensation based upon a percentage assessment as being developed within the European Union.

· Justifying the increase

- Appropriate for the courts to reconsider the level of damages, rather than Parliament.

- Studies include:

→ Office of National Statistics (ONS) concerning public opinion about the level of damages.

→ Hazel Genn’s 1994 general report for the Commission’s damages project entitled ‘How much is enough?’

- These studies were criticised by the defendants in Heil v Rankin.

· The discount rate

- Highlighted in Wells v Wells.

Law Commission, Damages for Personal Injury: Non-Pecuniary Loss (1995, Consultation Paper No 140), pages 78 – 86

· Some uniformity and consistency in awards is achieved.

· There is a scope for assessments being highly particularised and flexible.

· Awards should be standardised to some degree.

· PSLA has no market value so is difficult to quantify.

· Comparing awards seems to be the most straightforward method for converting the claimant’s loss into money.

Objectives of Law Commission

· Fair compensation

· Consistency and uniformity

· Predictability

· Comprehensibility

· Workability and simplicity

Abolishing PSLA

For

Against

· Moral offensiveness

· No sum can adequately compensate

· The cost

· Damages are a barrier to rehabilitation.

· Only awarding damages for pecuniary loss would discriminate unfairly against those who do not suffer any, or substantial, loss of earnings e.g. children, the unemployed.

· PSLA does not compensate for the trauma of living in constant pain, but it ‘sugars the pill’.

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Damages in English and Welsh Tort Law