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’.

	Created by SophieE almost 12 years ago

Damages in English and Welsh Tort Law