England and Wales Court of Appeal (Civil Division) Decisions

"My Lord, claims for damages in respect of personal injuries constitute a high proportion of civil actions that are started in the courts in this country. If all of them proceeded to trial the administration of civil justice would break down; what prevents this is that a high proportion of them are settled before they reach the expensive and time-consuming stage of trial, and an even higher proportion of claims, particularly the less serious ones, are settled before the stage is reached of issuing and serving a writ. This is only possible if there is some reasonable degree of predictability _about the sum of money that would be likely to be recovered if the action proceeded to trial and the plaintiff succeeded in establishing liability.

"The principal characteristics of actions for personal injuries that militate against predictability as to the sum recoverable are, first, that the English legal system requires that any judgment for tort damages, not being a continuing tort, shall be for one lump sum to compensate for all loss sustained by the plaintiff in consequence of the defendant's tortious act whether such loss be economic or non-economic, and whether it has been sustained during the period prior to the judgment or is expected to be sustained thereafter. The second characteristic is that non-economic loss constitutes a major item in the damages. Such loss is not susceptible of measurement in money. Any figure at which the assessor of damages arrives cannot be other than artificial and, if the aim is that justice meted out to all litigants should be even-handed instead of depending on idiosyncrasies of the assessor, whether jury or judge, the figure must be 'basically a conventional figure derived from experience and from awards in comparable cases'". (776H - 777D)

"The need for a judge in assessing damages for non-economic loss to have regard to awards in comparable cases has led to progressive general increases in the level of awards particularly for serious injuries. These have been intended to reflect, though admittedly imperfectly, the general increase in the level of salaries and wages and, more particularly since inflation became rampant, the decrease in the real value of the money due to this cause.

"it is with the increase in the nominal amount of awards in 'the money of the day' (to borrow the apt phrase used by Barwick C.J. in O'Brien v. McKean (1948) 42 A.L.J.R. 223,224) due to inflation that your Lordships are primarily concerned in the instant case. That increase in awards has taken place irregularly by fits and starts rather than followed the actual shape of the rising curve of inflation; and there have been periods, particularly between 1973 and 1979, when it lagged sufficiently behind the decrease in real value of the money of the day. This was pointed out in Walker v. John McLean & Sons Ltd. (1979) 1 W.L.R. 760, 765, where the Court of Appeal re-affirmed the rule of practice that damages for non-economic loss are to be assessed by reference to the value of money at the date of the trial and not at some other and lower sum calculated by reference to an earlier and higher value of the pound." (777F - 778A)

"Lord Wilberforce, Lord Edmund-Davies and Lord Scarman pointed out the fallacy underlying the new 'no interest' guideline propounded by Lord Denning M.R. in Cookson v. Knowles (1977) Q.B. 913. As Lord Wilberforce succinctly put it, at p. 141: 'Increase for inflation is designed to preserve the "real" value of money: interest to compensate for being kept out of that "real" value. The one has no relation to the other. If the damages claimed remained, nominally, the same, because there was no inflation, interest would normally be given. The same should follow if the damages remain in real terms the same.'" (780G - H)

"If judges carry out their duty of assessing damages for non-economic loss in the money of the day at the date of the trial - and this is a rule of practice that judges are required to follow, not a guideline from which they have a discretion to depart if there are special circumstances that justify their doing so - there are two routes by which the judge's task of arriving at the appropriate conventional rate of interest to be applied to the damages so assessed can be approached." (782C - D)

"My Lords, given the inescapably artificial and conventional nature of the assessment of damages for non-economic loss in personal injury actions and of treating such assessment as a debt bearing interest from the date of service of the writ, it is an important function of the Court of Appeal to lay down guidelines both as to the quantum of damages appropriate to compensate for various types of commonly occurring injuries and as to the rates of 'interest' from time to time appropriate to be given in respect of non-economic loss and of the various kinds of economic loss. The purpose of such guidelines is that they should be simple and easy to apply though broad enough to permit allowances to be made for special features of individual cases which make the deprivation caused to the particular plaintiff by the non-economic loss greater or less than in the general run of cases involving injuries of the same kind. Guidelines laid down by an appellate court are addressed directly to judges who try personal injury actions; but confidence that trial judges will apply them means that all those who are engaged in settling out of court the many thousands of claims that never reach the stage of litigation at all or, if they do, do not proceed as far as trial will know very broadly speaking what the claim is likely to be worth if 100 per cent, liability is established.

"The Court of Appeal, with its considerable case-load of appeals in personal injury actions and the relatively recent experience of many of its members in trying such cases themselves, is, generally speaking, the tribunal best qualified to set the guidelines for judges currently trying such actions, particularly as respects non-economic loss, and this House should hesitate before deciding to depart from them, particularly if the departure will make the guideline less general in its applicability or less simple to apply.

"A guideline as to quantum of conventional damages or conventional interest thereon is not a rule of law nor is it a rule of practice. It sets no binding precedent; it can be varied as circumstances change or experience shows that it does not assist in the achievement of even-handed justice or makes trials more lengthy or expensive or settlements more difficult to reach. But though guidelines should be altered if circumstances relevant to the particular guideline change, too frequent alteration deprives them of their usefulness in providing a reasonable degree of predictability in the litigious process and so facilitating settlement of claims without going to trial.

"As regards assessment of damages for non-economic loss in personal injury cases, the Court of Appeal creates the guidelines as to the appropriate conventional figure by increasing or reducing awards of damages made by judges in individual cases for various common kinds of injuries. Thus, so-called 'brackets' are established, broad enough to make allowance for circumstances which make the deprivation suffered by an individual plaintiff in consequence of the particular kind of injury greater or less than in the general run of cases, yet clear enough to reduce the unpredictability of what is likely to be the most important factor in arriving at settlement of claims. 'Brackets' may call for alteration not only to take account of inflation, for which they ought automatically to be raised, but also it may be to take account of advances in medical science which may make particular kinds of injuries less disabling or advances in medical knowledge which may disclose hitherto unsuspected long term effects of some kinds of injuries or industrial diseases." (784F - 785F)

"Great caution has to be exercised in the examination and analysis of comparable awards because the facts inevitably differ and the influence of other items in each total award plays a part which is not always easy to identify or measure."

"in our view the recorded awards since 1973 are open to the criticism that they demonstrate that generally the courts have failed during the last five years to take sufficient account of the fact that the damages awarded for loss of amenity were worth significantly less than similar awards in earlier years. We do not encourage the application of a rigid multiplier to accord arithmetically with the changing values of the pound shown in the table to which we have referred. We content ourselves with the observation that by his award of £35,000 under this head the judge restores a consistency with awards made before 1973 which cannot be found in many awards made since that year."

"The plaintiff sustained (a) a head injury, though not of very severe consequence, (b) a fracture dislocation of the fifth cervical vertebra with damage to the spinal cord and (c) fracture of the right shoulder-blade and two ribs. There was no damage to the brain. She now has permanent paralysis of all four limbs. She has some use of her arms but not of her hands, nor of her legs. She has no sensation in the legs or private parts. She is almost completely tetraplegic. She cannot turn in bed or move from bed to chair. Nor can she dress herself. She is able, by thrusting with her arms, to propel with great difficulty a wheelchair, but only very slowly and for short distances. She can only feed herself if the food is cut up and a spoon or fork is strapped to her hand because she has no power in her hands or fingers. She cannot raise a beaker or glass to her lips or hold food such as a sandwich or a piece of cake in her fingers. Her considerable intellectual functions have not been impaired. She is, therefore, a bright, intelligent young woman of considerable physical attraction with complete awareness of the catastrophic destruction of her young life and the prospects of a long and happy existence for many years to come. A successful career is denied her but, much more important in my view, she is denied the happiness and fulfilment of marriage and the joy of motherhood. Her expectation of life is thought to be between twenty-five and thirty-two years and for the purpose of this case can be said to be about twenty-seven years."

".....she required constant attention. At night-time at the moment she has to be moved twice in a period of some eight hours or thereabouts - though the medical advisors to the defendants consider that it might be advisable in the next year or two to try and arrange for one turning of this helpless body in the course of her sleeping hours. All intimate details of personal bodily functions have to be attended to by someone else - in this case by her mother. There has to be mechanical evacuation of faeces. This is done approximately every three days. Evacuation of urine is by catheter. At menstrual periods her mother with great difficulty has to attend to her sanitary toilet. The small but virtually important details of a young girl's everday life, such as choice of garments, the actual dressing and the brushing of her hair, all of these she is quite incapable of doing for herself and it is her mother who attends to those requirements. She is, therefore, in permanent need of constant and regular care, nursing and attention. She is relatively free from pain and discomfort and can use her arms to a very limited degree. For example, by reason of a fixed extension to this powerless hand, she is able to press an electric typewriter keyboard one letter painfully time after time individually. Her mental anguish is incalculable and her case ought to be regarded as one of the most grievous in this category because she was of such a degree of intellect, high promise and awareness of burgeoning womanhood that the permanent and perpetual recognition of her stricken condition and all that has been snatched from her is something that merits compensation to the highest scale of accepted figures by way of damages in this type of catastrophic injury."

".....it is right that I should say something further about the appropriate figure for general damage to be awarded for pain and suffering and loss of amenities. Were it not for the fact that I am very-conscious that the Court of Appeal over and over again and the House of Lords on several occasions has said that some sort of conformity is essential, some sort of certainty is vital in the economy of the insurance world than in the professional world of solicitor and counsel called upon to advise, I would, left to my own, have awarded a considerably higher figure than that which I am about to award. In my opinion, and it is one which I put forward and with humble respect, the sixteen year old intelligent girl, attractive, with the whole world at her feet, ranks right at the top of injuries of so severe a nature as this. I have already referred to the incalculable effect of the mental anguish. There is this girl on the threshold of life denied everything. In my judgment a young girl who is going to be on a balance of probabilities a professional woman, a happily married woman, a mother, is in far worse state than a man of twenty-two, in far worse state than a woman of thirty-five who though technically not married, and I refer to one Carol Brown, in one of the cases, who had borne a child - the only difference in the case of Carol Brown was that there was constant pain. But to think day after day, month after month, year after year, of what has been snatched from her is something which is quite impossible to quantify in terms of damage. The only way that I can approach this is to say that I take by way of comparison the top awards so far and edge up just a little, though were it left to me alone without the guidance I would increase the award of £80,000 which I think is right by a very-large amount indeed."

"Until comparatively recently the superior courts considered that the value to be put upon a devoted close relative, such as a wife in the case of a husband and a mother in the case of a child, should never be regarded in the same context as the commercial cost of provision of such services. In recent years there is one recorded instance of a judge expressing the view that the commercial cost is the only yardstick by which to measure the value of such a devoted nursing mother as in a case like this. I take the view, and have done for some years now, that it is quite impossible simply to pluck a figure from the air. It was done in a case which went to the Court of Appeal some years ago. In my judgment the trial judge has to have the assistance of the costed figures for appropriate type of assistance. He then has, as in this case I have to do, to see how much of that is necessary, to see how the mother's part makes that extra assistance less. He has to see whether, as in the case of a devoted wife, the wife has no other duties arising out of a loving relationship other than that say of a husband or of one child. He has to try and evaluate the degree /to which7 additional loving care and attention puts a burden upon the mother who has to run a home and to look after her growing family. In this case I need not recite all the details of the arguments, nor all the figures which have been proffered to me for my consideration. I content myself by saying that I have borne the arguments in mind. I have looked at the figures and I have done the best I can to evaluate the services which the mother has rendered in the past up-to-date, the value of the services which the mother will render in the future and to see how much assistance she will require and to endeavour to put a figure upon that degree of assistance. Furthermore, I do not intend to analyse in any detail the arguments on both sides as to the application of established principles when considering how to arrive at the appropriate figures in terms of capital to which the plaintiff in my judgment is entitled."

"To return to this difficult question of assessing the cost of the mother's nursing care, regular day in day out attention and the cost of assistance, there was a wide disparity between the figures which were suggested to me by Mr. Appleby for the defendant and Mr. Stewart for the plaintiff. In my judgment there should be a slightly higher figure for past care and attention which this mother, without all this additional assistance which has to be provided, had to perform on her own or with little help. I have come to the conclusion that for the two and a half years before trial the value of the mother's services should be assessed at £4,000 a year. For the future I assess the value of the mother's services at £3,500 a year."

"We do not agree with the proposition inherent in Mr. Hamilton's submission, that the plaintiff's claim, in circumstances such as the present, is properly to be regarded as being, to use his phrase, 'in relation to someone else's loss', merely because someone else has provided to, or for the benefit of, the plaintiff - the injured person - the money, or the services to be valued as money, to provide for needs of the plaintiff directly caused by the defendant's wrongdoing. The loss is the plaintiff's loss. The question from what source the plaintiff's needs have been met, the question who has paid the money or given the services, the question whether or not the plaintiff is or is not under a legal or moral liability to repay, are, so far as the defendant and his liability are concerned, all irrelevant. The plaintiff's loss, to take this present case, is not the expenditure of money to buy the special boots or to pay for the nursing attention. His loss is the existence of the need for those special boots or for those nursing services, the value of which for purposes of damages - for the purpose of the ascertainment of the amount of his loss - is the proper and reasonable cost of supplying those needs. That, in our judgment, is the key to the problem.' So far as the defendant is concerned, the loss is not someone else's loss. It is the plaintiff's loss."

"in this context I have wondered whether or not it is proper to take into consideration the 'lost years'. There is a body of judicial opinion of the most superior calibre which holds that awards for 'lost years' is an unsatisfactory method of going about it anyhow. Griffiths L.J. adverted to this in his judgment in the Croke case. There are all sorts of choices in various methods of approach. Speaking for myself I have never really seriously contemplated the award of any sum for 'lost years' because I have always considered that it is just one of those factors one doesn't know, one of those factors which have to be borne in mind. One doesn't know, for example, whether this young lady would have gone on earning, would have continued to work. She might have got married. She might have decided never to go back. She might not have married. She might not have had children. There are so many imponderables that one is in grave danger not only of speculating but also of considering matters twice over. It may be a legitimate argument for taking a slightly more generous view of the multiplier if one does not express in terms of actual pounds anything for 'lost years'. I confess some feeling of unease about this. I prefer at this stage of superior guidance from authority to decide not to award anything for 'lost years'. On the other hand, for the various matters to which I have already referred I am not prepared to go as low as Mr. Appleby would invite me on the multiplier in general, nor as high as Mr. Stewart has invited me to go."

"As is becoming increasingly common in these days women with some professional qualification, or it may be commercial qualification, make arrangements after a year or two of motherhood and marriage to return to their previous occupation. The profession of teaching and the profession of nursing are two examples which instantly come to mind. Now it is suggested that in arriving at the multiplier one ought not only to allow for a late start of entry into the field of earning actuality, but also to take out appropriate number of years and then relate that by way of reduction of the multiplier for the absent years, but as Mr. Stewart in my view rightly pointed out this is not simply a question of pounds and pence, nor is it simply a question of looking at a pattern of life. It is suggested, and I accept the argument, that it would be wrong to say that there should be no allowance in terms of a multiplier because there might be no earning over a period. To be deprived of a home, the cost of heating and lighting, the cost of food, the cost of rates - all these matters a wife enjoys as an economic advantage when she is married to a bread-winner. On the other hand, as Mr. Appleby rightly says, it has been the practice for considerable discount to be made for those years when the injured person is unlikely to be earning because it is simply a question of how much money would this person have earned for herself. In my view both sides are entitled to seek for some adjustment. I reject Mr. Appleby's argument that the discount for the years of purchase should be very appreciable."

MR. JUSTICE BRISTOW: I agree.

(Their Lordships ordered that the appeal be dismissed, and legal aid taxation for the Appellant).