Part Two Compensation, s.Two Damages for the Different Types of Loss, 11 Personal injury losses
Andrew Burrows QC FBA
- Breach of contract — Loss of chance and damages — Loss of profit and damages
Personal injury includes disease and physical illness as well as, for example, cuts, bruises, broken bones, loss of limbs or loss of the use of limbs, blindness, deafness, and brain damage.1 Recognised psychiatric illnesses2 are included. Damages have also been awarded for the physical and mental effects of a rape or sexual assault.3
Claims for personal injury are nearly always founded on a tort (and usually the tort of negligence or breach of statutory duty) but they can also be founded on a breach of contract.4 Subject to differences in relation to some of the limiting principles, like remoteness, the principles applied are and should be the same whether founded on tort or breach of contract.
The general compensatory aims dictate that damages should put the claimant into as good a position as if the personal injury had not occurred. In so doing, damages are awarded for several heads of loss, both pecuniary and non-pecuniary. Before examining these, three introductory points should be made.
First, as laid down in Jefford v Gee,5 awards must be itemised, at least into non-pecuniary loss, pre-trial pecuniary loss, and future pecuniary loss. This itemisation was held to be required, because of the differing awards of interest payable or non-payable under these three (p. 235) heads.6 So, as regards non-pecuniary loss, interest on damages is awarded at the rate of 2% from the date of service of the claim form to the date of trial.7 Interest on pre-trial pecuniary loss awards is normally payable from the date of the accident until trial and the normal rate is half the average rate on the special account over that period.8 No interest is payable on damages for future pecuniary loss.9
An undoubted consequence of itemisation has been an increase in the damages awarded for personal injury. Indeed in a number of cases awards of several million pounds have been made to claimants requiring constant care. But as rightly stressed in Lim Poh Choo v Camden and Islington Area Health Authority10 it is no ground for appeal that the global award is too high; rather rationality dictates that a particular item of damages should be challenged.
A second point is that reference is often made to a distinction between special and general damages. The traditional view has been that ‘special damages’ refer to losses that are capable of substantially exact calculation, that is, pre-trial pecuniary loss; whereas ‘general damages’ refer to non-pecuniary loss and future pecuniary loss. However, in respect of personal injury claims, the relevant pleading rule under the Civil Procedure Rules makes no reference to special damages. Rather it simply states, ‘The claimant must attach to his particulars of claim a schedule of details of any past and future expenses and losses which he claims.’11
Finally, the necessity for an award to be made once-and-for-all in a lump sum has been departed from in this field; the courts have power to award provisional damages and to make periodic payment orders.12
(a) Pain, suffering, and loss of amenity
In the context of damages for personal injury, the non-pecuniary losses, for which the claimant is entitled to compensation, are almost invariably referred to as pain, suffering, and loss of amenity. The amount of such damages—which is not susceptible to mathematical proof and accuracy—is awarded in accordance with a tariff system whereby the courts are guided by awards made for similar personal injuries in other cases. This system has depended on the publication (in, for example, Current Law and Kemp & Kemp on The Quantum of Damages) of judicial awards listed under the different types of personal injury (such as deafness, loss of thumb, loss of leg, quadriplegia) with brief details of the claimant’s circumstances. The past awards must then be uplifted for inflation by taking into account changes in the retail price index since the past award was made.13 The tariff or bracket of damages for that injury, which the previous cases have laid down (adjusted upwards for inflation), will provide the basic award (or range of award) in the instant case; but it will be adjusted flexibly by the courts to take account of the claimant’s particular circumstances. For example, the injury (or treatment) may have been accompanied by a great deal of pain in one case but not so in another. And higher awards may be made in respect of younger, (p. 236) rather than older, claimants because the injury (if permanent) will be suffered for longer.14 There may also be particular deprivations brought about by the injury: for example, that the claimant who has lost a hand was a pianist;15 that the injury prevents sexual intercourse;16 that, as a consequence of the injury, the claimant is unlikely to marry;17 that, because of the injury, the claimant is unable to look after a terminally ill spouse as much as the claimant would have liked;18 that the claimant was injured on holiday so that he was deprived of the enjoyment of that holiday;19 or that, as a result of the injury, the claimant will not be able to obtain as satisfying a job as he previously had.20
In an attempt to produce greater consistency of awards, and in generally seeking to make the judicial tariff of values more accessible, the Judicial Studies Board in 1992 produced Guidelines for the Assessment of General Damages in Personal Injury Cases. The fourteenth edition of the Guidelines was published in 2017 and was updated to the end of May 2017. They set out, in easily understood form, the range of awards for various injuries. In that fourteenth edition, the range runs from a few hundred pounds for minor cuts and bruises through to £354,26021 for the most serious injuries. This range takes account of the important decision of Heil v Rankin.22 The Court of Appeal there partly implemented a recommendation of the Law Commission23 by uplifting on a tapered scale awards over £10,000 so that the top end of the scale was increased from £150,000 to £200,000 (as at that date). This was on the basis that awards for more serious injuries had fallen behind what was considered fair, just, and reasonable.
The Guidelines also take into account24 that, from 1 April 2013, when the legislative changes to the costs regime recommended by Sir Rupert Jackson came into force, damages for pain, suffering, and loss of amenity (and indeed all awards of damages for non-pecuniary loss) were increased by 10%. This uplift was essentially designed to compensate claimants who are funding litigation under a conditional fee agreement for the loss of their right to recover the success fee from the defendant (so that the 10% uplift does not apply where such a success fee is ordered under s 44(6) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012).25
It is theoretically, and occasionally practically, important to clarify that the loss of amenity aspect of the award is assessed objectively in the sense that it is made irrespective of the claimant’s own appreciation of her condition.26 In contrast, pain and suffering is assessed (p. 237) subjectively so that if the claimant is not capable of experiencing the pain or suffering no damages will be awarded for them.
Hence a majority of the Court of Appeal in Wise v Kaye27 and of the House of Lords in West & Son Ltd v Shephard28 upheld a loss of amenity award of £15,000, and a loss of amenity and pain and suffering award of £17,500 respectively, for claimants who had been very seriously injured and brain-damaged and were totally, or almost totally, incapable of appreciating their loss. Similarly, in Lim Poh Choo v Camden and Islington Area Health Authority29 the House of Lords refused to overrule West v Shephard and upheld an award of £20,000 under loss of amenity and pain and suffering for the claimant’s brain damage even though she was largely unaware of her deprivation. As Lord Morris said in West v Shephard:
‘An unconscious person will be spared pain and suffering and will not experience the mental anguish which may result from knowledge of what has in life been lost or from knowledge that life has been shortened. The fact of unconsciousness is therefore relevant in respect of and will eliminate those heads or elements of damages which can only exist by being felt or thought or experienced. The fact of unconsciousness does not, however, eliminate the actuality of the deprivations of the ordinary experiences and amenities of life which may be the inevitable result of some physical injury.’30
Such an approach has been criticised31 and there were strong dissenting judgments by Diplock LJ in Wise v Kaye and by Lords Devlin and Reid in West & Son Ltd v Shephard.32 A main line of criticism is that for loss of amenity the courts should be seeking to compensate for the claimant’s distress or loss of happiness and hence where the claimant cannot feel any distress or unhappiness no damages should be awarded under this head. In other words, critics of these decisions are mainly advocating what has been referred to above33 as the alternative view of non-pecuniary loss, by which all such loss is ultimately viewed in terms of distress or of loss of happiness. This contrasts with the traditional judicial approach by which the heads of loss of amenity, loss of reputation, and physical inconvenience are regarded as analogous to proprietary losses, and as losses over and above any distress caused.
Where the claimant’s expectation of life has been reduced by the injury an objective fixed sum, additional to loss of amenity and pain and suffering, used to be awarded for ‘loss of expectation of life’. This was abolished by the Administration of Justice Act 1982, s 1(1)(a), although by s 1(1)(b) the courts are ordered to take into account in assessing damages for the claimant’s pain and suffering, ‘… any suffering caused or likely to be caused to him by awareness that his expectation of life has been reduced’.
In Shaw v Kovac,34 there had been medical negligence comprising a failure to obtain the patient’s consent to an operation and the patient had died following the operation. It was held by the Court of Appeal that there could be no separate award for ‘loss of autonomy’ over and above personal injury damages for pain, suffering, and loss of amenity.
The Pearson Commission recommended that no damages should be awarded for non-pecuniary loss suffered during the first three months after the injury.35 Its reasoning was, first, that the primary concern of the tort system should be with compensating pecuniary loss and, secondly, that excluding such damages would save the system a great deal of expense.
But that recommendation has not been implemented; and when the Law Commission revisited the question of whether there should be a threshold for the recovery of damages for non-pecuniary loss, it came out firmly against such an idea.36 It gave several main reasons for this. First, even if the tort system is too expensive, there are better ways to reduce costs (especially through procedural reforms) than interfering with basic common law principles. Secondly, a threshold might encourage potential claimants to exaggerate or prolong their symptoms in order to cross the threshold. Thirdly, since minor injuries typically cause little or no pecuniary loss, to refuse damages for non-pecuniary loss would lead to some wrongs going unremedied. Fourthly, the Pearson Commission’s recommendation had to be seen in the context of its view that the role of the tort system should be as a mere supplement to no-fault compensation provided by the state. Fifthly, an exclusion of damages for non-pecuniary loss in the first three months after the accident would in many cases exclude compensation when a victim’s pain is at its worst. Finally, a large majority of its consultees (93%), who responded on this issue, agreed with the Law Commission’s provisional view that no such threshold should be introduced.
However, in a limited area, a similar idea to a threshold for non-pecuniary loss has been accepted in the Civil Liability Act 2018, Part 1 (which has not yet been brought into force). One of the purposes of the Act is to crack down on fraudulent whiplash claims thereby reducing motor insurance premiums. It allows for regulations imposing a low fixed tariff of damages for pain, suffering, and loss of amenity in respect of whiplash injuries, with a duration of up to two years, caused by negligent driving.
The claimant is entitled to recover his or her loss of net earnings.37 To calculate the net earnings, one deducts from the loss of gross earnings, the tax,38 national insurance contributions,39 and pension payments40 that would have been paid from the gross earnings. In principle, the expenses involved in earning, which have been saved (eg the costs of travelling to work), should be deducted, although in general this appears not to be the practice.41
(p. 239) The injured claimant may alternatively (or additionally) be awarded damages for being handicapped in the labour market. These are often described as ‘Smith v Manchester Corp damages’, that being the leading case.42 The loss primarily in mind is that, as a result of the injury, the claimant may find it more difficult to find another equally well-paid job if he or she loses the present one. This head of damages has most commonly been used where a working claimant is still in the same job despite the injury. But it has also been used, for example, for the situation where the range of future jobs open to a child has been narrowed because of the injury.43
As a result of the injury, the claimant may have suffered a loss of pension rights: that is, the claimant may have lost all rights to a pension or may be entitled merely to a lower pension. Lim Poh Choo v Camden and Islington Area Health Authority44 and Auty v National Coal Board,45 for example, show that the claimant is entitled to damages for this loss. The courts appear to put a present value on it by taking the price an insurance company would demand for a pension providing equivalent rights to those lost.
The claimant can also recover all medical, nursing, and hospital expenses which have been, or will be, reasonably incurred.46 It follows that if the claimant does not incur these expenses because she makes use of the NHS, she cannot recover what she would have had to pay if she had had private treatment.47 Similarly, if it appears to the court to be likely that the claimant will be unable to obtain privately all the nursing services that will be needed, so that the claimant will eventually have to enter an NHS hospital, an appropriate deduction will be made.48 So as not to overcompensate, ordinary living expenses saved are deducted from the cost of staying in a private hospital or home;49 and by the Administration of Justice Act 1982, s 5, any saving to the claimant, which is or will be attributable to his maintenance by the NHS, is to be set off against his loss of earnings.50 In Rialas v (p. 240) Mitchell51 it was held that, where the claimant continues to live at home, the fact that it would be much cheaper to provide medical and nursing expenses in a private institution does not prevent the full recovery of such expenses. In Sowden v Lodge52 it was stressed that the relevant test is one of reasonableness not one of what is in the claimant’s best interests: but, even if unreasonable for the claimant to live in her own home, rather than in local authority residential accommodation, it might be workable and reasonable to have extra services in such accommodation thereby requiring a ‘top-up fee’ paid for by the defendant. By the Law Reform (Personal Injuries) Act 1948, s 2(4), the possibility that the claimant could have avoided expenses by using the facilities of the NHS is to be disregarded. The Pearson Commission recommended the repeal of s 2(4) so that private medical expenses should be recoverable only if it was reasonable on medical grounds for the claimant to incur them.53 But private treatment may offer advantages which are more than merely medical in nature (eg speed and comfort) and it is hard to see how it can ever be unreasonable for a claimant to opt for it. In any event, a merit of s 2(4) is that it avoids the courts having to make difficult and invidious comparisons between the respective merits of NHS and private care. For these reasons, the Law Commission recommended that s 2(4) should not be repealed or amended.54
There is a valid claim for nursing expenses even though the services have been rendered gratuitously by a third party.55 In Donnelly v Joyce56 the Court of Appeal attempted to fit this within the normal principle that one is compensating the claimant’s loss, by regarding the claimant’s loss not as the incurring of nursing expenses but rather as the need for care. There was no legal obligation on the claimant to reimburse the third party but it was considered essential that sufficient should be awarded to allow the claimant to pay the third party reasonable recompense, including making up for any lost wages, the commercial rate of nursing services providing the ceiling. However, in Hunt v Severs57 the House of Lords recognised that, in reality, it was not the claimant but the gratuitous carer who suffered the loss. Damages could be recovered in respect of the services rendered but the claimant must hold them on trust for the third party.58 In Hunt v Severs itself, the gratuitous carer was also (p. 241) the tortfeasor; no damages for the care were recoverable, since the defendant would otherwise have been paying damages only for those damages to be returnable to the defendant under the trust.
In Part III of its Report, Damages for Personal Injury: Medical, Nursing and Other Expenses; Collateral Benefits,59 the Law Commission approved the adoption of the view in Hunt v Severs that the loss is the carer’s, not the claimant’s. However, it recommended that the actual decision in the case should be reversed by legislation for several reasons. First, it was undesirable either to encourage the making of contracts with friends and relatives for the provision of care, or to provoke arguments as to whether or not a particular contract should be seen as a sham. Secondly, there should be no disincentive to accept care from the person in the best position to provide it, particularly as an increased liability in damages would usually arise if the claimant adopted the alternative of engaging professional care rather than relying on the care provided by the tortfeasor. Thirdly, the situation in which the gratuitous carer was only partially liable for the claimant’s injuries presented problems. The Law Commission also rejected the use of a trust to ensure recompense for the gratuitous carer, preferring a personal liability on the claimant to account to the third party as regards damages for past (but not future) care. For future care it considered that the damages should be paid to the claimant without any duty to pay across to the carer, whether through a trust or personal liability.
The principle established in Hunt v Severs, that a claimant can recover damages for the loss incurred by a third party in gratuitously caring for the claimant, was applied in Drake v Foster Wheeler Ltd60 so as to allow the cost of care provided by a charitable hospice to be compensated. The claimant was the estate of the deceased who had been cared for, prior to his death, by the hospice. As the damages awarded for that care were subject to a trust in favour of the hospice, it was ordered that the tortfeasor should pay the damages direct to the hospice.
Hunt v Severs was distinguished by the Court of Appeal in Hardwick v Hudson,61 in which the injured claimant’s wife provided gratuitous clerical services to his business. No damages were awarded in respect of those services. This was because the policy considerations favouring recompense for a gratuitous carer (such as encouraging effective and economical care) did not apply to the provision of those services, and the decision not to contract for them had been commercially motivated.
It was also recognised in Hunt v Severs62 that visiting costs reasonably incurred by third parties in gratuitously visiting the claimant in hospital are recoverable by the claimant and are held on trust for the third party. In other words, they are treated in a similar way to nursing services. Correspondingly, the Law Commission recommended that the claimant should be under merely a personal obligation to account for the damages awarded in respect of past visits to the claimant and under no legal liability at all to the visitor in respect of damages awarded for future visits.63 The main question in Walker v Mullen64 was whether the claimant could recover damages in respect of his father’s lost earnings, where his father had not gone back to his job in Jordan so as to be with his wife and the claimant while the (p. 242) latter was in hospital. Comyn J reluctantly refused such damages on the ground that the loss was too remote. But surely that type of loss was foreseeable; and the father’s loss of earnings was reasonably incurred. Nevertheless, taking the view that the loss in these sorts of cases is really the third party’s, and hence that allowing the claimant to recover is highly exceptional, the decision is perhaps justified as confining recovery to a narrow range of claims.
The claimant can further recover the cost of buying, fitting out, and moving to special accommodation. But the capital cost of a new house (as opposed to the cost of the capital) is not awarded since the claimant still has that capital in the form of the house.65 In Roberts v Johnstone66 it was laid down that the claimant can recover 2% per annum of the capital cost of the purchase as the cost of the capital. More recently, in Wells v Wells67 the House of Lords decided that the appropriate interest rate, for the purposes of applying Roberts v Johnstone, is that on index-linked government stock (ILGS) and for the time being that rate was regarded as being 3%. As we shall see below, the appropriate discount rate in assessing future pecuniary loss has subsequently been reduced by the Lord Chancellor, acting under the powers conferred on him by the Damages Act 1996, s 1, to minus 0.75%. The effect of this negative discount rate on a Roberts v Johnstone award for the cost of the capital is unclear but it can be powerfully argued that the logical consequence is that there should now be no sum payable as the cost of the capital under Roberts v Johnstone. A claimant can also recover for loss of ability to do work in and around the home, such as housekeeping, gardening, and carrying out repairs. Unfortunately, in the leading case of Daly v General Steam Navigation Co Ltd68 the Court of Appeal appeared to adopt an inconsistent approach to whether this was a pecuniary loss depending on whether one was concerned with past or future loss. That is, for the future, loss of housekeeping capacity was considered to be a pecuniary loss, irrespective of whether any expenses in employing someone else to do the work would be incurred and irrespective of whether a third party would gratuitously carry out the work. In contrast, it was held that such a loss was only a recoverable pecuniary loss for the past where the claimant had actually employed someone, or where a third party, in this case the husband, had given up earnings so as to carry out the housekeeping work. Otherwise it was thought that past loss of housekeeping capacity should be regarded as a non-pecuniary loss, which was recoverable at least where the claimant had struggled on with her housekeeping despite her injury. But this approach seems hopelessly inconsistent: it criticises the artificiality of regarding the ‘housewife’ as having always suffered a past pecuniary loss in respect of housekeeping incapacity, while applying that artificiality to the future.
It is submitted therefore that the correct compensatory principles are as follows69 (assuming that, in line with the nursing services cases, the claimant can recover for a third party’s loss in gratuitously carrying out the housekeeping): the claimant may herself suffer a recoverable pecuniary loss by incurring the expense of employing someone to carry out her housekeeping work; even if not, she can recover a third party’s loss where a third party gratuitously carries out that work, especially if the third party suffers a loss of earnings;70 (p. 243) the claimant is entitled to damages for loss of housekeeping capacity as a non-pecuniary loss, at the very least where she struggles on with the housekeeping despite her injury; these principles are just as applicable to the past as to the future.
Most other pecuniary losses consequent on the injury are recoverable, provided they are not too remote or do not infringe the duty to mitigate.71 An exception is loss consequent on a divorce caused by the personal injury. Departing from earlier authority,72 the Court of Appeal in Pritchard v JH Cobden Ltd73 held that, even though a divorce has foreseeably resulted from the claimant’s injury, pecuniary ‘loss’ on that divorce is irrecoverable. There were three main grounds for this decision. The first was that where the financial consequences of a divorce have not yet been decided on in the Family Division, a judge in a personal injury action would be placed in the invidious position of having to make an assessment of the outcome of those proceedings. Secondly, it was thought that to allow compensation for this sort of loss would produce ‘infinite regress’ because, in deciding on the orders to be made after divorce, the potential assets of the parties, including any claims for damages, are taken into account in making those orders. Finally, talk of loss on divorce was in any case thought inapt on the ground that the financial consequences of a divorce are based on a distribution of the parties’ assets taking into account various factors.
The Law Commission looked in detail at the arguments for and against the decision in Pritchard v Cobden.74 In recommending that the law should not be reformed on this issue, the Law Commission stressed that, apart from the objections referred to by the Court of Appeal, there are real difficulties in establishing whether an injury did cause a divorce. Moreover, this might require distressing and distasteful inquiries into the personal lives of the married couple. Nor rationally could one confine such recovery only to the breakdown of marriage; if allowed for divorce, one ought rationally to extend recovery to pecuniary (and non-pecuniary) losses consequent on the breakdown, because of the injury, of any personal relationship.
Having identified the different types of recoverable pecuniary loss, we can now turn to the question of how damages for those pecuniary losses are calculated.
The calculation of damages for pre-trial pecuniary loss is relatively straightforward. It is essentially merely a question of adding together the expenses that the claimant has incurred; or multiplying the claimant’s pre-injury monthly earnings by the number of months during which the claimant could not work. The latter calculation clearly depends upon the assumption that, but for the injury, the claimant would have continued to earn at the same rate. If this assumption is not justified (for example, because the claimant would have been promoted and had higher earnings)75 an adjustment must be made.
(p. 244) The calculation of damages for future pecuniary loss is more complex. Elements of uncertainty inevitably enter into the calculation, such as the claimant’s life expectancy, and what would have happened to the claimant had he or she not been injured. The standard method of assessment (the so-called ‘multiplier’ method) is to multiply the assessed net annual loss by a multiplier. The starting point for the multiplier is the number of years during which the loss is likely to endure and thus, in a claim for loss of future earnings, the remaining period that the claimant would have worked. This figure is then reduced to take account of the fact that the claimant receives a lump sum which can be invested. There may then be a further (normally small)76 reduction for the ‘contingencies of life’ other than mortality (for example, because the claimant might in any event have been unemployed or sick). The basis of the award is that the total sum will be exhausted at the end of the period contemplated; that, during the period, the claimant will draw upon both the income derived from the investment of the sum awarded and the capital; and that the income and withdrawals of capital will produce a stream of payments equal to the claimant’s lost earnings or cost of care (or other loss in question). The courts conventionally used multipliers based on a discount of about 4.5%. But in Wells v Wells77 the House of Lords held that this was incorrect and that the claimant was entitled to be treated as risk-averse. It was therefore appropriate that the (relatively low) rate of interest on ILGS should be taken as the appropriate discount rate for calculating multipliers. At the time of the decision, the ILGS rate was 3% (net of tax) and this was therefore laid down as the appropriate basis for multipliers for the time being. This meant that significantly higher multipliers would be used than where the discount rate was 4.5%. As we shall see shortly, the discount rate has since been reduced further, first to 2.5% and then to a negative discount rate of minus 0.75%.
After a long fight to overcome judicial resistance to actuarial evidence, it was also laid down in Wells v Wells that it is appropriate in working out the correct multiplier to make use of the ‘Ogden Tables’. Over 20 years earlier, Oliver LJ had famously said in Auty v National Coal Board78 that in this context, ‘… the predictions of an actuary can be only a little more likely to be accurate (and will almost certainly be less entertaining) than those of an astrologer’. Commentators long criticised this approach79 and in 1982 a joint working party of lawyers and actuaries was set up, under the chairmanship of Sir Michael Ogden QC, to produce tables specifically geared to the assessment of damages for future pecuniary loss in personal injury and death actions. The seventh edition of the Ogden Tables, as they have become known, was published in 2011.80 The Ogden Tables give actuarially accurate multipliers, applying various discount rates, according to the age of the claimant at the date of the trial. The acceptance of the Ogden Tables was spelt out by Lord Lloyd in Wells v Wells.81 He said:
‘I do not suggest that the judge should be a slave to the tables. There may well be special factors in particular cases. But the tables should now be regarded as the starting-point, rather than a (p. 245) check. A judge should be slow to depart from the relevant actuarial multiplier on impressionistic grounds, or by reference to “a spread of multipliers in comparable cases” especially when the multipliers were fixed before actuarial tables were widely used.’
The standard multipliers assume that standard rate tax will be paid on the investment income but, according to the controversial decision of the House of Lords in Hodgson v Trapp,82 there should normally be no further uplift of the multiplier to account for any higher rate tax that the claimant has to pay.
There is no adjustment made for future inflation. Now that the discount rate is essentially based on ILGS rates this follows inevitably (ie the ILGS rate automatically takes into account inflation). But even prior to the adoption of ILGS rates the courts took the same approach of making no adjustment for inflation on the reasoning that either it was too speculative to estimate what any future rate of inflation would be or that sensible investment of the damages could, to a large extent, counter the effect of inflation.83
Under the Damages Act 1996, s 1, the Lord Chancellor was given power to set the discount rate to be applied in assessing damages for personal injury and death (subject to a party showing that a different rate is more appropriate in the case in question). By the Damages (Personal Injury) Order 200184 the Lord Chancellor exercised that power to set a discount rate of 2.5%; and by the Damages (Personal Injury) Order 201785 the Lord Chancellor set a negative discount rate of minus 0.75% for assessing damages as from 20 March 2017. These changes have reflected the lower ILGS returns in the last two decades although the adjustments were very slow in being made so that claimants in personal injury cases were for many years being undercompensated (assuming that the Wells v Wells approach to compensation is correct).
In setting a rate of 2.5% in 2001 the Lord Chancellor saw himself as basically applying the principles set out in Wells v Wells and updating the rate in the light of the changed ILGS rates.86 But he also took into account three further reasons, the last two of which cut against the principles in Wells. The first further reason was that, in his view, the ILGS yields appeared to have been artificially low in the three years prior to June 2001. Secondly, the Court of Protection, even after Wells v Wells, had continued to invest, on behalf of claimants, in multi-asset portfolios which enabled them to achieve a real rate of return at 2.5% or above, without their being unduly exposed to risk in the equity markets. Thirdly, the Lord Chancellor thought it likely that, in reality, claimants who sought investment advice would not be advised to invest solely or even primarily in ILGS but rather in a mixed portfolio.
There continues to be considerable controversy as to whether the ILGS rates are the best way of assessing the discount rate and hence arriving at the correct amount of compensation. Those representing the interests of defendant insurers argue that the present negative discount rate of minus 0.75% overcompensates claimants because they can readily invest to obtain higher returns. Those representing personal injury victims counterargue that one should not be treating personal injury victims as normal investors and that, in any event, empirical historical evidence shows that personal injury victims have certainly not been overcompensated.87 In 2017, the Ministry of Justice, following a (p. 246) consultation exercise, proposed88 that, while full compensation should remain the aim of damages, the discount rate should not be set on what it considered to be the unrealistic basis that claimants will invest in ILGS. Rather it should be assumed that, while claimants are low-risk investors, they will invest (and would be professionally advised to invest) in a mixed portfolio which will enable them to achieve higher rates of return. It is also proposed that, while the Lord Chancellor should set the rate, he or she should be advised by an independent expert panel; and that there should be a review of the discount rate at least once every three years. These proposals (but substituting five years for three years) have been carried through into the Civil Liability Act 2018 (inserting a new Schedule 1 into the Damages Act 1996).
Applying a present discount rate of minus 0.75%, the basic multiplier89 for calculating loss of future earnings for a male who is 16 years old (at the date of trial) and who would have worked until 65 but will now not be able to do so, is 57.67; for a 30-year-old male it is 38.71.90 Applying a discount rate of minus 0.75%, the basic multiplier for calculating the cost of care for life of a male who is 16 years old (at the date of trial) is 96.45; for a 30-year-old male it is 71.43.91
The courts are bound by the rate set by the Lord Chancellor unless, applying s A1(2) of the Damages Act 1996,92 any party to the proceedings shows that a different rate of interest is ‘more appropriate in the case in question’. When does this exception apply? In Warriner v Warriner93 it was said that, in the interests of certainty, a departure from the rate set would probably be rare. In the instant case, there was nothing unusual justifying a lower rate than that set by the Lord Chancellor (which at that time was 2.5%). In Cooke v United Bristol Health Care,94 the Court of Appeal rejected a different line of attack by the claimants on the conventional method for assessing future pecuniary loss. The claimants wanted to adduce evidence that the cost of care, and indeed earnings, had increased, and could be expected to increase, at a substantially higher rate than the retail price index.95 The claimants therefore sought to argue that the conventional method undercompensated claimants, especially where there were high future costs of care, and that, to prevent such undercompensation, there should be adjustments to the multiplicands. But the Court of Appeal refused to allow such evidence to be adduced on the basis that, in reality, the claimants were arguing for a departure from the discount rate for multipliers set by the Lord Chancellor; and in line with Warriner v Warriner such a departure was thought to be unjustified. Although not mentioned by the Court of Appeal, it is perhaps worth adding, as a further reason for rejecting the claimants’ specific arguments in Cooke, that, in adopting the ILGS rate in Wells v Wells, the House of Lords assumed that it is the retail price index that is the correct measure of (p. 247) inflation and this is also the index used for updating awards for non-pecuniary loss in personal injury cases.96
Closely linked to the discount rate is the question of whether damages can be recovered for the costs of investment advice. Logically if the assumption is ILGS investment, such costs should not be recoverable because that sort of investment is straightforward and does not require the sort of advice that investing in gilts and equities would do. This logic was accepted in Page v Plymouth Hospital NHS Trust.97 There a claim for damages for the costs of investment advice and fund management charges was rejected as inconsistent with the assumption of ILGS investment and as being another attempt indirectly to depart from the (then) 2.5% discount rate. In Eagle v Chambers98 the Court of Appeal approved the reasoning in Page and held that the same approach applied where the claimant was a patient subject to the Court of Protection. So just as the cost of investment advice was irrecoverable generally, the cost of a Court of Protection’s panel broker’s fees was irrecoverable in respect of a patient of the Court of Protection. The discount rate assumed standard investment in ILGS without the need for investment advice. Claimants, including patients through the agency of the Court of Protection, were free to invest more broadly for higher returns. But to avoid overcompensation, the fees for those investments must be set off against the higher gains made.
In calculating loss of future earnings, the multiplier applicable to an injured young woman has sometimes in the past been reduced to take account of the workless years that she would in any event have had, bringing up a family.99 However, this was then largely balanced out by an award for loss of marriage prospects as a pecuniary loss: ie the loss of the economic support, during the years raising a family, of the never-to-be-husband.100 Not surprisingly, therefore, in Hughes v McKeown101 Leonard J took the simpler approach of making no deduction from the multiplier while also making no award for loss of marriage prospects (as a pecuniary loss). This approach was approved by the Court of Appeal in Housecroft v Burnett102 provided that there was a reasonable equivalence between the loss of earnings of the woman and the economic support that a husband would have given. There might be no such equivalence, for example, where the woman was a particularly high earner. However, one can strongly argue that, in the light of changes in working practices, attitudes, and maternity rights, the old (pre-Hughes v McKeown) approach would, in any event, now be considered inaccurate and inappropriate.
In so far as a multiplier approach is used,103 low multipliers are applied in respect of young children, since they might never have become wage earners. For example, in Croke v Wiseman,104 where the claimant was aged seven at trial and was expected to live until 40, a multiplier of five was applied for loss of future lifetime earnings. As there was no present loss of earnings in that case, it was held acceptable to take the national average earnings during early working years as the multiplicand (or the basis for working out the multiplicand).
(p. 248) Where the injury has reduced the number of years which the claimant is expected to live, the multiplier and hence the damages are calculated according to his or her life expectancy prior to the accident, with a deduction for the living expenses which the claimant would have incurred during those ‘lost years’ that he or she will no longer live through. That damages can be recovered for the ‘lost years’ was laid down by the House of Lords in Pickett v British Rail Engineering Ltd,105 overruling Oliver v Ashman.106
What is the reason for allowing a lost years claim when the claimant will not be alive to suffer any financial deprivation? The formal answer is to say that, by analogy to, for example, Wise v Kaye,107 the claimant’s subjective enjoyment of his or her earnings is irrelevant. The claimant has still objectively suffered a loss. An alternative explanation is that a lost years claim is granted not so much because the claimant has lost out, but rather because the claimant’s dependants will otherwise lose out. This is highlighted, as in Pickett, where the victim dies from his injuries having settled or obtained judgment, thus preventing any Fatal Accidents Act claim by his dependants.108 But this alternative explanation can only be valid so long as the claimant has dependants. In any event it is rather confusing to represent the loss as the claimant’s, if it is in reality the dependants’. As such, the main problem could be better solved, without relying on lost years awards, if dependants under the Fatal Accidents Act could be awarded damages even though the victim had settled or obtained judgment. But this would not prevent the dependants losing out if the claimant were to live on but with life expectancy and earnings reduced. So perhaps the best solution of all, albeit a rather radical one, would be to abolish the lost years award, and for legislation to be passed allowing dependants a claim for pecuniary loss where the person on whom they are dependent has been injured as well as where he or she has been killed.
No award for the lost years is likely to be made where the claimant is a young child. So for example, in Connolly v Camden and Islington Area Health Authority109 a four-year-old with over 20 years’ life expectancy was given nothing for the lost years; nor was the seven-year-old with a life expectancy of 40 in Croke v Wiseman.110 On a formal level, the justification for such decisions is that to assess the value of the lost years claim in respect of young children involves too much speculation. On a deeper level, as stressed particularly by Griffiths LJ in Croke v Wiseman, they are justified by the fact that where a child’s injuries render it unlikely that there will ever be any dependants, the policy reason for awarding the lost years damages is non-existent.
How the deductible living expenses in a lost years claim are to be calculated has given rise to controversy which reflects the tension between the formal objective reason and the alternative policy justification for the lost years award. In some first instance decisions111 it was held that the same approach should be adopted as where calculating damages under the Fatal Accidents Act 1976, ie living expenses are what the claimant would have spent exclusively on herself (the theory being that the dependants would have benefited from the rest of the claimant’s money). But these decisions were overruled in Harris v Empress Motors Ltd112 where the Court of Appeal considered that one should deduct as living expenses what the claimant would have spent in maintaining himself at the standard of living appropriate to his case (the theory being that he would have the rest of his income free to spend as he (p. 249) wished). In contrast to an assessment under the Fatal Accidents Act 1976, a pro rata amount of his family expenditure, eg expenditure on housing, heat, and light, should therefore be deducted. This decision takes the objective approach. On the alternative view, as the justification for allowing the claimant damages for the lost years is to benefit his dependants, who are the ones who will otherwise lose out, calculation of the living expenses should be on the same basis as under the Fatal Accidents Act 1976.113
In Housecroft v Burnett,114 where a 16-year-old girl was very badly injured, the Court of Appeal considered that a simpler way to proceed than deducting notional living expenses from notional earnings, and multiplying by the lost years multiplier, was to add one or half to the multiplier for the lost years and then to multiply the full multiplicand with no living expenses deduction.
Finally, it should be noted that a multiplier approach is not always appropriate for calculating future pecuniary loss. For example, ‘Smith v Manchester Corp damages’115 are normally assessed without first trying to fix a multiplicand. Similarly, in assessing the loss of future earnings of an injured child, the courts have occasionally preferred to estimate directly in a lump sum the loss of earnings without the use of a multiplicand.116 These are situations—and there are others117—where the assessment is particularly speculative and where the more precise multiplier approach may, therefore, be thought inappropriate.
(4) Addendum—damages for wrongful birth119
‘Wrongful birth’ claims are made where a child, who was originally unwanted, has been born as a result of a doctor’s or health authority’s civil wrong (be it the tort of negligence or breach of contract). Although the losses are not quite the same as personal injury losses, they are sufficiently similar to be included as an addendum to personal injury.
When first recognised, the approach in this area was to apply the general compensatory principle and to permit recovery of all pecuniary and non-pecuniary loss suffered by the parents as a result of the wrongful birth, subject to the usual restrictions like remoteness and mitigation. So, for example, in Emeh v Kensington Area Health Authority,120 where a sterilisation operation had been performed negligently, the mother was awarded damages for the pain and suffering and loss of amenity of having and looking after the child, who had congenital abnormalities, plus the pecuniary loss of maintaining her. Similarly, in Thake v (p. 250) Maurice121 the defendant surgeon had failed to warn the claimants, in breach of his contractual and tortious duty of care, that the vasectomy operation would not be a 100% guarantee against pregnancy. Consequently the mother had not sought an abortion at an early stage. The parents were awarded damages for their pecuniary loss (loss of earnings and the cost of the child’s upkeep) and antenatal pain and suffering, subject to a deduction from the latter for the fact that the pain and suffering of an abortion had not been suffered. But postnatal non-pecuniary loss (ie the time and trouble in bringing up the child) was not claimed, and was in any event non-recoverable since it had been fully mitigated by the joy of a having a (healthy) child.
However, the scope of damages recoverable in a ‘wrongful birth’ claim was considerably narrowed by the House of Lords in McFarlane v Tayside Health Board,122 a failed vasectomy case. A surgeon negligently advised a husband and wife that the vasectomy had rendered the husband infertile; the couple ceased to use contraceptives and the wife became pregnant, giving birth to a healthy child. The House of Lords held (Lord Millett dissenting on this point) that the mother’s non-pecuniary and pecuniary losses directly consequent on the pregnancy and giving birth were recoverable; they were regarded as equivalent to personal injury losses. But all their Lordships were in agreement that the parents could not recover for their economic loss in maintaining the child, which was regarded as pure economic loss. Lords Slynn, Steyn, and Hope saw the issue as one of liability, rather than the extent of liability, and held that no duty of care was owed to the parents as regards the pure economic loss because, in line with the standard approach to that sort of loss, it was not fair, just, and reasonable for there to be such a duty. Lord Steyn, in particular, relied on what he termed considerations of distributive, rather than corrective, justice; that is, ‘on the just distribution of burdens and losses among members of a society’.123 And in determining that just distribution, Lord Steyn thought it relevant that, in his opinion, popular morality would be against holding the doctor or hospital liable for the costs of bringing up a child.
Two main matters were left unresolved by their Lordships in McFarlane. The first and more important was whether the position would have been any different if the child had been disabled. The previously leading case of Emeh v Kensington Area Health Authority concerned a disabled child. That decision was not expressly overruled and Lord Steyn specifically left open what the position would have been in such a case. The second, more conceptual, point is what the position would have been if the parents could have sued for breach of contract. Lord Steyn expressly confined his views to claims in delict or tort; and certainly in respect of breach of contract one could not regard the issue as going to liability rather than the extent of liability.
It was not long before the question of the disabled child came before the appellate courts. In Parkinson v St James and Seacroft University Hospital NHS Trust124 a negligent sterilisation operation led to the birth of a disabled child. The Court of Appeal took a mid-position. The mother was awarded damages for the upbringing costs attributable to the disability. It (p. 251) was held that such damages had not been ruled out by McFarlane. On the other hand, damages for the costs which would be incurred in bringing up any child (healthy or disabled) were disallowed. Those damages, it was held, had been ruled out by McFarlane and to this extent, Emeh, in which all the costs of bringing up a disabled child were held recoverable, had been impliedly overruled by McFarlane.
But that was not the end of the story. On the contrary, a further factual twist—the birth of a healthy child, following a negligently conducted sterilisation operation, to a disabled mother—brought the whole question back to a seven-man House of Lords in Rees v Darlington Memorial Hospital NHS Trust.125 All their Lordships decided that McFarlane had been correctly decided and should basically be followed. By a four–three majority (Lords Bingham, Nicholls, Millett, and Scott in the majority, Lords Steyn, Hope, and Hutton dissenting) it was then decided that the majority of the Court of Appeal in the instant case had been incorrect, as being inconsistent with McFarlane, to award damages to the mother for the additional upbringing costs attributable to the mother’s disability.126 On the other hand, a ‘gloss’ (as it was termed by Lords Bingham and Nicholls)127 was placed on McFarlane by the majority in holding that a conventional sum of £15,000 should be awarded to the mother (or jointly to the parents) where there has been an unwanted birth attributable to a civil wrong. Such a conventional sum is to be awarded irrespective of whether the child or the parents are healthy or disabled. Although Lord Bingham at one point said that this conventional award ‘would not be, and would not be intended to be, compensatory’,128 he had earlier spoken of ‘the real loss … [of being] denied … the opportunity to live her life in the way that she wished and planned’ and that there should be ‘a conventional award to mark the injury and loss’.129 And in Lord Millett’s words, ‘[T]he parents have lost the opportunity to live their lives in the way that they wished and planned to do. The loss of this opportunity, whether characterised as a right or a freedom, is a proper subject for compensation by way of damages.’130 Similarly, Lord Scott referred to Farley v Skinner131—a leading contractual case on mental distress—and spoke of the award as compensating the mother for being deprived of her expected benefit. It is submitted, therefore, that the conventional sum is best viewed as an award to compensate for non-pecuniary loss, namely a mother’s mental distress consequent on having her lifestyle plans disrupted. Admittedly, a fixed conventional award—as opposed to a bracket of awards—for non-pecuniary loss is unusual but it is the approach used for bereavement damages under the Fatal Accidents Act 1976 and it is the approach that used to be applied to non-pecuniary loss of expectation of life.
Although three of the majority would have overruled Parkinson, Lord Millett explicitly left open whether Parkinson had been correctly decided.132 Without a majority for or against that decision, it technically remains good law.133 Applying the majority’s approach, therefore, in a wrongful birth case, a mother is entitled to all pecuniary and non-pecuniary loss directly attributable to the pregnancy and giving birth and a conventional sum of £15,000 for disruption of planned lifestyle. In so far as Parkinson remains good law, where the child (p. 252) is disabled, a mother will additionally be entitled to the upbringing costs attributable to the disability.
While agreeing that McFarlane was correctly decided, the minority judges (Lords Steyn, Hope, and Hutton) disagreed with the majority’s ‘gloss’ on it and would have upheld not only Parkinson but also the majority of the Court of Appeal’s decision in Rees that the extra upbringing costs attributable to the mother’s disability were recoverable.
The approach of the majority of their Lordships in Rees has much to commend it. It represents a fair and relatively clear answer to an intractable problem, albeit that it is unfortunate that there was no majority either way on Parkinson. Moreover, it should be appreciated—as Lord Hope explained with great clarity in his dissenting speech—that the conventional award is unique because, in contrast to damages for personal injury and death, it compensates mental distress in a situation where, for reasons of legal policy, the courts have decided that pecuniary loss is non-compensatable.134 To place non-pecuniary loss above pecuniary loss is certainly odd. To that extent, it is clear that the majority have adopted a pragmatic compromise rather than a principled solution.
The same basic policy approach to wrongful birth claims is applicable whether the claim is brought in tort or for breach of contract. That point was strongly affirmed in the context of the breach of a strict contractual obligation in ARB v IVF Hammersmith.135 A private IVF clinic acted in breach of its contract with the claimant by thawing and implanting an embryo containing the claimant’s gametes into his ex-partner without his consent. This ultimately resulted in the birth of a healthy daughter. The claimant sought damages for that breach of contract to cover the costs to him of bringing up the daughter.136 It was held by the Court of Appeal that, applying McFarlane and Rees, such damages were not recoverable on policy grounds and that it did not matter that the claim was for breach of contract (comprising the breach of a strict duty) rather than the tort of negligence. In the words of Nicola Davies LJ:137
‘At the core of the legal policy which prevented recoverability of the identified loss in Rees and McFarlane was the impossibility of calculating the same loss given the benefits and burdens of bringing up a healthy child. If it is impossible for a court to calculate the value to be attributed to the benefit of a child, so as to set off such value against the financial cost of the child’s upbringing as a matter of legal policy in tort, how is the task possible for a court if such loss results from a breach of contract? Added to this is the sense, reflected in the judgments in Rees and McFarlane, that it is morally unacceptable to regard a child as a financial liability.’
Finally, although not involving a wrongful birth, the controversial decision in Kralj v McGrath138 can also be conveniently mentioned here. The defendant doctor’s negligence during the birth of one of the claimant’s twins had caused the baby’s death. The claimant wanted three children and hence would have to undergo another pregnancy and workless years which would not have been necessary had that baby not died. Inter alia, Woolf J awarded the claimant mother damages for the non-pecuniary and pecuniary loss of another pregnancy and childbirth and the pecuniary loss of initial workless years looking after another child. But the force of this decision is diminished because the only objection to those (p. 253) damages that was examined in the judgment was remoteness and there was no discussion of the fact that this claim was entirely novel and that the loss could not really be regarded as consequent on the personal injury to the mother. If followed to its logical conclusion the decision would mean that a mother whose baby is killed by the defendant’s negligent driving should also be awarded damages for the non-pecuniary and pecuniary loss of pregnancy and workless years if she will want to have another child to replace the one lost. Yet such damages are presumably irrecoverable in a claim under the Fatal Accidents Act 1976 where the most the mother would be awarded would be bereavement damages (plus any funeral expenses incurred).
The Law Reform (Miscellaneous Provisions) Act 1934, s 1(1), provides that on the death of any person all causes of action vested in him, subject to certain exceptions,139 survive for the benefit of his estate. The most important consequence of this, and the one with which we are here concerned, is that the deceased’s action for personal injury survives for the benefit of his estate. It should be stressed that the action brought by the estate is not for death caused by the defendant. The defendant may or may not have been responsible for the deceased’s death. Rather the action is for the deceased’s personal injury caused by the defendant.140
Thus the estate can be awarded damages for all the deceased’s recoverable loss,141 both non-pecuniary and pecuniary, but only until the time of her death, applying the normal principle that all events up to trial are taken into account. So in Rose v Ford,142 Murray v Shuter,143 and Andrews v Freeborough144 damages for the deceased’s loss of amenity were awarded, and in the first two of these cases for his pain and suffering: in Murray v Shuter damages for the deceased’s loss of earnings were recovered and in Rose v Ford for the medical expenses he had incurred.
It has sometimes been argued that a damages claim for non-pecuniary loss should not survive for the benefit of the deceased’s estate, as such loss is personal to the deceased. But while the estate clearly cannot itself suffer any non-pecuniary loss, there is still good reason for allowing the estate’s claim in that the deceased died without having recovered the compensation for non-pecuniary loss to which he was entitled and which would have enured to the estate’s benefit. Not surprisingly, therefore, the Law Commission recommended that there should be no change to the law on the survival of damages for non-pecuniary loss.145 Indeed the Law Commission was strengthened in its view by the fact that Scottish law, which had excluded damages for non-pecuniary loss from survival actions between 1976 and 1992, was brought back into line with English law on this issue by the Damages (Scotland) Act 1993.146
(p. 254) In one respect, however, the principles governing compensatory147 damages for the deceased’s estate differ from those governing the injured claimant’s damages. By the Administration of Justice Act 1982, s 4(2), amending the Law Reform (Miscellaneous Provisions) Act 1934, s 1(2), no damages may be awarded for loss of income in respect of any period after the death of the injured person; that is, the claim for loss of earnings in the ‘lost years’ does not survive for the benefit of the estate and Gammell v Wilson148 is thereby overruled. This is a sensible reform.149 Other than on a formal ‘objective’ view, the justification for allowing a lost years claim is that the claimant’s dependants will otherwise lose out. But where the victim has already died from his injuries prior to trial, the dependants are satisfactorily compensated by their Fatal Accidents Act claim and to allow his estate also to claim damages for the lost years potentially benefits persons other than his dependants, who take under his estate, thus providing a ‘windfall’ to those whom the lost years claim is not intended to benefit. Similarly, to allow the lost years claim to survive means that potentially the defendant may have to pay large damages under both the 1934 and 1976 Acts. Section 4(2) removes such problems.150 It should also be realised that an effect of this reform is that where the deceased dies instantly, no claim for damages for personal injury survives for the benefit of her estate.151
Where ‘provisional damages’ have been awarded under the Supreme Court Act 1981, s 32A,152 does the right of the injured claimant to return to court for further damages survive for the benefit of her estate? And is it caught by the ‘lost years’ bar? Tentative dicta of the Court of Appeal in Middleton v Elliott Turbomachinery Ltd153 suggest that the claim is treated as if a judgment for damages to be assessed. Consequently, in assessing those damages the court would be able to take account of the worsening of the claimant’s condition, including death caused by that condition. The position has been clarified by the Damages Act 1996, s 3. This implicitly accepts that the claim for further damages does survive. But by the Damages Act 1996, s 3(4), no award of further damages made after the death is to include any amount for loss of income in respect of any period after the death (ie the ‘lost years’ bar applies).
By the Law Reform (Miscellaneous Provisions) Act 1934, s 1(2)(c), where the deceased’s death has been caused by the act or omission which gives rise to the cause of action, damages recoverable by the estate ‘shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included’. The main part of this is intended to emphasise that, even where the defendant has been responsible for the death, the estate can recover only what the deceased could have (p. 255) recovered and hence neither loss, such as cessation of an annuity, nor gain, such as an insurance payment consequent on the death, is of any relevance. However, where the defendant has been responsible for the death, the courts are empowered to award the estate funeral expenses incurred. This is exceptional in that it does not represent the survival of a claim the deceased would have had.
1 Pleural plaques, which are a symptomless thickening of the blood from inhaling, eg, asbestos dust, are not classed as actionable personal injury: Grieves v FT Everard & Sons (also referred to as Rothwell v Chemical and Insulating Co Ltd)  UKHL 39,  1 AC 281. But platinum sensitisation, which may lead to allergic reactions if the person is further exposed to platinum salts, does constitute actionable personal injury: Dryden v Johnson Matthey plc  UKSC 18,  2 WLR 1109. Cf Cartledge v Jopling  AC 758 (on the question when does a cause of action accrue for pneumoconiosis). See, generally, J Stapleton, ‘The Gist of Negligence’ (1988) 104 LQR 213; D Nolan, ‘Damage in the English Law of Negligence’ (2013) 4 Journal of European Tort Law 259.
2 Hinz v Berry  2 QB 40, at 42 (morbid depression); McLoughlin v O’Brian  1 AC 410, at 418, 431 (organic depression and a change of personality); Brice v Brown  1 All ER 997, at 1005–1006 (hysterical personality disorder); Alcock v Chief Constable of South Yorkshire Police  1 AC 310 (post-traumatic stress disorder); Walker v Northumberland County Council  1 All ER 737 (nervous breakdown consequent on workplace stress); Page v Smith  AC 155 (chronic fatigue syndrome); Vernon v Bosley  1 All ER 577 (pathological grief disorder); Frost v Chief Constable of South Yorkshire Police  QB 254 (post-traumatic stress disorder); Hatton v Sutherland  EWCA Civ 76,  2 All ER 1; and Barber v Somerset County Council  UKHL 13,  1 WLR 1089 (depressive illness or nervous breakdown consequent on workplace stress). See, generally, Law Commission, Liability for Psychiatric Illness (1998) Report No 249, esp Part III. See also Malyon v Lawrence, Messer & Co  2 Lloyd’s Rep 539 (compensation neurosis).
4 Summers v Salford Corpn  AC 283; Matthews v Kuwait Bechtel Corpn  2 QB 57; Kralj v McGrath  1 All ER 54; Berryman v London Borough of Hounslow  PIQR P83; Giambrone v JMC Holidays Ltd (No 2)  EWCA Civ 158,  2 All ER 891.
6 Interest is discussed below, ch 15.
9 Jefford v Gee  2 QB 130. In Australia non-pecuniary loss is further itemised into pre-trial and future loss, with no interest being payable on the latter: see Fire and All Risks Insurance Co Ltd v Callinan (1978) 140 CLR 427.
12 See above, pp 163–168.
20 Hale v London Underground Ltd  PIQR Q30 (this is commonly referred to as a ‘loss of congenial employment’). In Meah v McCreamer  1 All ER 367 a substantial sum was awarded for the non-pecuniary loss of being imprisoned, where the claimant suffered a severe personality change (consequent on being brain-damaged in a car accident) which led to the claimant being imprisoned for sexual offences on women. But this can no longer be regarded as good law as the claim should have been barred by illegality: Clunis v Camden and Islington HA  QB 978; Gray v Thames Trains  UKHL 33,  1 AC 1339. See also Meah v McCreamer (No 2)  1 All ER 943 where the claimant was refused damages, indemnifying him against his liability to victims of his sex attacks, on the grounds of remoteness and public policy.
22  QB 272. For an excellent case-note, see L Barmes, ‘Damages for Pain and Suffering and Loss of Amenity: Is This Enough?’ (2000) 116 LQR 548. For a different view, see R Lewis, ‘Increasing the Price of Pain: Damages, The Law Commission and Heil v Rankin’ (2001) 64 MLR 100.
23 Law Commission, Damages for Personal Injury: Non-Pecuniary Loss (1999) Report No 257, esp para 3.110. For criticism of the Law Commission’s approach, see D Harris, D Campbell, and R Halson, Remedies in Contract and Tort (2nd edn, Butterworths 2002) 375–376.
31 See Skelton v Collins (1966) 115 CLR 94; Knutson v Farr (1984) 12 DLR (4th) 658; and Royal Commission on Civil Liability and Compensation for Personal Injury (chaired by Lord Pearson) (1978) Vol I, paras 393–398. The Law Commission, Damages for Personal Injury: Non-Pecuniary Loss (1999) Report No 257, paras 2.8–2.24 explained that, while it had initially favoured reversing Wise v Kaye and West v Shephard, the majority of its consultees were against this and it therefore made no recommendation for such a change.
33 Above, pp 36–37.
34  EWCA Civ 1028,  1 WLR 4773. The conventional award made in Rees v Darlington Memorial Hospital NHS Trust  UKHL 52,  1 AC 309 (see below, pp 251–252) was distinguished as concerning the very different facts of a wrongful birth.
37 Loss of earnings includes all classes of earnings whether, eg, wages or professional fees or partnership profits (on which see Ward v Newalls Insulation Co Ltd  1 WLR 1722). Benefits in kind (eg a company car) are included alongside earnings: see, eg, Kennedy v Bryan, The Times, 3 May 1984. Illegality may rule out a claim for loss of earnings: Hewison v Meridian Shipping PTE  EWCA Civ 1821,  PIQR P252. For loss of a chance in relation to loss of earnings see, eg, Doyle v Wallace  PIQR Q146; see above, p 66.
38 British Transport Commission v Gourley  AC 185. See above, ch 9.
42 (1974) 17 KIR 1. See also, eg, Moeliker v Reyrolle & Co Ltd  1 WLR 132; Foster v Tyne and Wear CC  1 All ER 567; Robson v Liverpool CC  PIQR Q78; Brown v Ministry of Defence  EWCA Civ 546,  PIQR Q9; Ronan v Sainsbury’s Supermarkets Ltd  EWCA Civ 1074; Billett v Ministry of Defence  EWCA Civ 773,  PIQR Q1 (while in some cases it would be appropriate to use a multiplicand and multiplier and the Ogden Tables to assess ‘Smith v Manchester Corp damages’ that was not an appropriate approach where, as on the facts of this case, the disability was of a minor kind that was causing the claimant no present loss of earnings; instead a relatively broad brush approach should be taken and, applying that approach, the judge’s assessment of these damages at £99,062 using the Ogden Tables was reduced by the Court of Appeal to £45,000).
45  1 All ER 930. See also Dews v National Coal Board  AC 1 (where there was no loss of pension); Longden v British Coal Corpn  AC 653. For loss of a chance in relation to loss of pension rights, see Brown v Ministry of Defence  EWCA Civ 546,  PIQR Q9.
46 These include the costs of appliances, eg a wheelchair. In Briody v St Helens and Knowsley Health Authority  EWCA Civ 1010,  QB 856, where the claimant had been deprived of her womb because of the defendant’s negligence and therefore could not have children, it was held that surrogacy costs would be unreasonably incurred and were therefore irrecoverable. But this was confined to the facts where the child would not be genetically linked to the claimant (ie where neither the baby nor the pregnancy would be hers).
48 ibid; Eagle v Chambers  EWCA Civ 1033,  1 WLR 3081 (the same factual test should be applied to services provided by social services as to services provided by the NHS; and where a private care regime is needed, the burden of proving that services will be provided by the NHS or social services lies on the defendant); Walton v Calderdale Healthcare NHS Trust  EWHC 1053 (QB),  PIQR Q3; Freeman v Lockett  EWHC 102 (QB),  Lloyd’s Rep Med 151. Applying the basic principle that benefits should be deducted from damages (see Hodgson v Trapp  AC 807; see above, p 157) where a court finds that a claimant will receive direct payments from a local authority for care, they must be deducted in assessing damages for the cost of care: Crofton v NHS Litigation Authority  EWCA Civ 71,  1 WLR 923.
50 Administration of Justice Act 1982, s 5 was enacted following the recommendation of the Royal Commission on Civil Liability and Compensation for Personal Injury (chaired by Lord Pearson) (1978) Vol 1, paras 510–512, that Daish v Wauton  2 QB 262 should be reversed. As the section requires the set off to be against loss of earnings, there can be no set off where the claimant has suffered no loss of earnings. The policy behind restricting the scope of the set off was presumably that it would not be deducting like from like to allow the set off against damages for non-pecuniary loss. In O’Brien v Independent Assessor  UKHL 10,  2 AC 312 the same approach as that taken in s 5 of the 1982 Act was applied in the different context of the statutory compensation scheme for those whose conviction has been quashed for a miscarriage of justice: the saved cost of food, clothing, and accommodation while in prison was held to be deductible from the compensation for loss of earnings.
52  EWCA Civ 1370,  1 WLR 2129. In Peters v East Midlands SHA  EWCA Civ 145,  QB 48 the disabled claimant would, on the balance of probabilities, be cared for and accommodated by a local authority in a residential home. It was held that she was entitled as of right to damages for the cost of self-funding that residential care even though the local authority would provide it for free if she did not self-fund. It was decided—with respect, controversially—that the duty to mitigate had no role to play here but that, even if it did, the claimant’s preference to be self-funded, and not to be reliant on the state, was reasonable. It was thought that there was here no risk of double recovery (ie being awarded damages for self-funding and then being provided with free residential care) because the claimant’s affairs were controlled by the Court of Protection.
55 Provided more than de minimis, there is no lower threshold of seriousness that needs to be crossed before gratuitous nursing care can be compensated: see Giambrone v JMC Holidays Ltd (No 2)  EWCA Civ 158,  2 All ER 891.
57  2 AC 350. See P Matthews and M Lunney, ‘A Tortfeasor’s Lot is not a Happy One?’ (1995) 58 MLR 395; L Hoyano, ‘The Dutiful Tortfeasor in the House of Lords’ (1995) 3 Tort L Rev 63. Hunt v Severs was rejected by the High Court of Australia in Kars v Kars (1996) 71 AJLR 107, the approach in Donnelly v Joyce  QB 454 being preferred.
59 Law Commission, Damages for Personal Injury: Medical, Nursing and Other Expenses; Collateral Benefits (1999) Report No 262. The report has been criticised, for compounding existing errors of legal classification, by S Degeling, ‘Carers’ Claims: Unjust Enrichment and Tort’  RLR 172.
68  1 WLR 120. See also Hoffman v Sofaer  1 WLR 1350, at 1355–1356 (recovery in respect of ‘do-it-yourself’ work around the home); Lowe v Guise  EWCA Civ 197,  QB 1369 (recovery for the fact that the injury prevented the claimant carrying out as many hours as before of gratuitous care for his disabled brother, the difference being made up by his mother).
69 This was supported by the Law Commission which made a recommendation to the same effect in Damages for Personal Injury: Medical, Nursing and Other Expenses; Collateral Benefits (1999) Report No 262, para 3.91.
70 Applying Hunt v Severs  2 AC 350 by analogy, the claimant would be bound to hold such damages on trust for the third party at least as regards damages for past loss. The Law Commission in Damages for Personal Injury: Medical, Nursing and Other Expenses; Collateral Benefits (1999) Report No 262, para 3.91, recommended that the claimant should be under a personal liability to account for damages, awarded in respect of past work, to the person (including the tortfeasor) who performed the work; but no legal obligation should be imposed in respect of damages awarded for work to be done in the future.
71 For example, a widow can recover damages for the diminution in value of her dependency right under the Fatal Accidents Act 1976 as a result of the defendant having negligently injured, or caused a disease to, the widow, which reduces her life expectancy (and hence reduces the damages she can recover for loss of dependency under the 1976 Act on the tortious death of her husband): Haxton v Philips Electronics UK Ltd  EWCA Civ 4,  1 WLR 2721.
80 Actuarial Tables for Use in Personal Injury and Fatal Accident Cases (7th edn, TSO 2011) (hereinafter cited as Ogden Tables). See also (Ogden) Supplementary Tables (March 2017) (accessible at www.gov.uk) which have the tables for the discount rate of minus 0.75% that was set in March 2017.
81  1 AC 345, at 379. The tables were designed for use in personal injury and fatal accident cases. But in Kingston Upon Hull City Council v Dunnachie (No 3)  IRLR 843 the Employment Appeal Tribunal held that, in rare cases, where there was established to be a career-long loss, it would be appropriate to use the Ogden Tables in calculating loss of future earnings in a claim for unfair dismissal.
82  AC 807; see above, p 184. See also Wells v Wells  1 AC 345, at 388.
86 Setting the Discount Rate, Lord Chancellor’s Reasons, 27 July 2001 (www.lcd.gov.uk/civil/discount.htm).
90 Ogden Tables (7th edn, TSO 2011) and (Ogden) Supplementary Tables (March 2017) (accessible at www.gov.uk) Table 9. Applying the former discount rate of 2.5% the multipliers were, respectively, 27.92 and 22.84.
91 Ogden Tables (7th edn, TSO 2011) and (Ogden) Supplementary Tables (March 2017) (accessible at www.gov.uk) (March 2017) Table 1. Applying the former discount rate of 2.5% the multipliers were, respectively, 32.94 and 29.60.
95 For the view that, in comparison to the ‘labour market’ approach in the US, the traditional English approach to calculating loss of future earnings undercompensates claimants (principally because it underestimates the earnings growth claimants would have enjoyed if not injured and overestimates the earnings of claimants after injury) see R Lewis, R McNabb, H Robinson, and V Wass, ‘Court Awards of Damages for Loss of Future Earnings: An Empirical Study and an Alternative Method of Calculation’ (2002) 29 J Law & Soc 406.
96 See above, p 171.
97  EWHC 1154,  3 All ER 367. This logical position is also supported by the Law Commission, Damages for Personal Injury: Medical, Nursing and Other Expenses; Collateral Benefits (1999) Report No 262, paras 5.11–5.15.
103 Cf Joyce v Yeomans  1 WLR 549; see below, p 249.
108 Below, p 258. See also McCann v Sheppard  2 All ER 881.
117 See, eg, Blamire v South Cumbria HA  PIQR Q1; Ward v Allies & Morrison Architects  EWCA Civ 1287,  PIQR Q1. In line with the more impressionistic approach to the assessment in this type of case, the courts sometimes refer to the loss in these cases as a loss of earning capacity rather than a loss of earnings.
118 Above, pp 152–162.
119 See generally A Taylor, ‘Compensation for Unwanted Children’ (1985) 15 Fam Law 147; C Symmons, ‘Policy Factors in Actions for Wrongful Birth’ (1987) 50 MLR 269; A Stewart, ‘Damages for the Birth of a Child’ (1995) 40 JLSS 298; R Scott, ‘Reconsidering “Wrongful Life” in England after 30 Years’  CLJ 115.
121  QB 644. See also Gold v Haringey Health Authority  QB 481; Benarr v Kettering Health Authority  NLJR 179; Salih v Enfield Health Authority  3 All ER 400; Allen v Bloomsbury Health Authority  1 All ER 651; Fish v Wilcox (1993) 13 BMLR 134.
122  2 AC 59. This was a Scottish case, but their Lordships made it clear that on this issue the same law should apply in both England and Scotland. By a four–three majority, the High Court of Australia in Cattanach v Melchior (2003) 77 AJLR 1312 went the other way from McFarlane and awarded the costs of maintaining the child.
124  EWCA Civ 530,  QB 266. See also Rand v East Dorset Health Authority (2000) 50 BMLR 39; Hardman v Amin  Lloyd’s Med Rep 448; Lee v Taunton and Somerset NHS Trust  1 FLR 419; Groom v Selby  EWCA Civ 1522,  PIQR P201; O Quick, ‘Damages for Wrongful Conception’ (2002) 10 Tort LR 5.
126 In a powerful dissenting judgment in the Court of Appeal  EWCA Civ 88,  2 All ER 177, at –, Waller LJ pointed to some of the anomalies that might be thought to arise from ‘picking out’ the disabled mother; eg the contrast between the rich, very well assisted, disabled mother and the poor, unassisted, healthy mother.
139 Ie defamation (Law Reform (Miscellaneous Provisions) Act 1934, s 1(1)) and the right to bereavement damages (Law Reform (Miscellaneous Provisions) Act 1934, s 1(1A) as inserted by Administration of Justice Act 1982, s 4(1)).
149 Cf P Cane and D Harris, ‘Administration of Justice Act 1982, section 4(2): A Lesson in How Not to Reform the Law’ (1983) 46 MLR 478. They criticise the reform, inter alia, because if the victim dies other than from his injuries, the estate, and hence dependants, will lose out. But factual causation principles (see Jobling v Associated Dairies Ltd  AC 794) dictate that they should lose out because they would have done so if there had been no wrong.
150 S Waddams, ‘Damages for Wrongful Death: Has Lord Campbell’s Act Outlived its Usefulness?’ (1984) 47 MLR 437 explores the alternative method of solving the overlap problem; ie to repeal the Fatal Accidents Act, to allow the lost years claim to survive, and to allow dependants to recover from the estate. See also Gammell v Wilson  AC 27, at 80–81 (per Lord Scarman). In Claims for Wrongful Death (1999) Report No 263, paras 3.1–3.2, the Law Commission rejected Waddams’ approach principally because the Fatal Accidents Act and survival claims may cover two different sets of losses. To abolish the former could therefore leave dependants undercompensated.
151 Furthermore, in Hicks v Chief Constable of the South Yorkshire Police  1 All ER 690, affirmed by the House of Lords  2 All ER 65, it was held that where injury, pain, and suffering are in reality part of the death itself, albeit endured for a very short time before death, no damages are recoverable.
152 Above, p 165.