#10457 - General Damages - Personal Injury and Clinical Negligence

GENERAL DAMAGES

PAIN, SUFFERING AND LOSS OF AMENITY, FUTURE LOSS OF EARNINGS AND FUTURE COST OF MEDICAL CARE

General damages

• Not capable of precise calculation

• Non-pecuniary loss

  • Pain and suffering

  • Loss of amenity

  • Smith v Manchester

  • Loss of congenial employment

• Future pecuniary loss

  • Financial losses post trial which claimant will continue to suffer in the future

  • E.g. loss of earnings/cost of care

• Should NOT include

  • Future earnings

  • Future costs of medical care

  • Loss of congenial employment

• Be aware of contributory negligence

Main heads of general damages (go through each in turn if relevant)

Step 1: Pain, suffering and loss of amenity

• P&S subjective test so claimant cannot claim for when unconscious – Wise v Kaye [1962]

• Loss of amenity (loss of enjoyment of life) = objective test – but subjective in that the court looks at the claimant’s former lifestyle – Scott v Shephard

• Considers

  • Physical

  • Mental

  • Accident AND surgery

  • Past, present and future

  • Awareness

  • Enhanced if aware of ‘loss of expectation of life’

  • Effect on claimant’s lifestyle

  • Objective test – even if unaware e.g. coma

  • Subjective test – once a couch potato, always a couch potato!

• Quantification of damages

  • The solicitor should identify the details of the following:

    • The claimant’s life prior to the accident

      • Relevant to the loss of amenity claim

    • Pain and suffering associated with the accident itself and its immediate aftermath

      • What were the injuries?

      • How did the claimant react?

      • Was he taken to hospital by ambulance?

    • Any periods of time when the claimant was in hospital

      • Number and nature of any operations

      • Number and nature of any other medical procedures

    • The short-term and long-term prognosis

      • Will the claimant recover in full?

      • If not, what will his/her continuing pain/disabilities be?

      • How long will they continue?

    • Is there a risk of future degeneration?

      • E.g. osteoporosis

    • What has been/will be the effect of the injuries on the claimant’s lifestyle?

• The courts will refer to awards made in comparable cases, so must research

• Judicial College Guidelines = good starting point to give you a ball-park figure for types of injury

• Then use specialist sources e.g. Kemp & Kemp on Damages - once you have identified a relevant figure in a comparable case, make adjustments

  • Sex - E.g. scarring (especially on the face) on a female claimant carries a higher award than for a male claimant

  • Age

    • In cases of permanent disability, younger claimants tend to get more compensation that older claimants as the young will suffer longer

    • On the other hand, some injuries will have a more severe impact on an older claimant than on a younger one

  • Loss of amenity - heavily influenced by whether the claimant had a previously active lifestyle

  • Limb injuries - injuries to dominant limbs attract higher awards than injuries to non-dominant limbs

  • Inflation

    • Previous awards must be inflated to present-day values

    • The inflation table in Kemp & Kemp, The Quantum of Damages, can be used

  • Uplift of 10%

    • In the case of Heil v Rankin and Another [2000] the Court of Appeal considered the level of damages for pain and suffering and concluded that they were too low and stated that there should be stated increases for all future cases where the value of awards for pain and suffering was in excess of 10,000

      • Consequently, when seeking to rely on a pre-March 2000 case in excess of 10,000 a conversion table (such as that found in Quantum 2/200, 18 April 2000 (Sweet & Maxwell) must be used to update the award, which will then need to be inflated to present-day values

      • The inflated figures provided in Lawtel’s quantum reports take into account Heil v Rankin, and their online calculator will do this automatically where relevant

      • The 5^th edition of the Guidelines also takes the increases into account

• Damages where there are pre-existing injuries or conditions

  • The defendant is liable for the full extent of the aggravation or exacerbation of the claimant’s pre-existing conditions

  • Where the defendant can show that the claimant would have eventually suffered in any event, damages will be restricted to those arising during the acceleration period

• Explain the basis of the award and incident itself

• What pain claimant suffers from now

  • Pain diaries can be useful

• Mention interest at 2% awarded from service of proceedings to trial

Step 2: Handicap in the labour market

• Smith v Manchester (1974) award

• Only relevant where the claimant can still work in the original job and there is a risk that he will lose it

• It is ADDITIONAL to any award for loss of earnings

• In deciding whether this award is appropriate, the court will

  • Consider whether there is a ‘substantial’ or ‘real’ risk that the claimant will lose his present job; and if there IS,

  • Assess and quantify the present value of the loss which the claimant will suffer if that risk materialises

    • In doing so, the court will have regard to:

      • The degree of risk

      • The time when it is likely to materialize

      • The factors, both favourable and unfavourable, which may affect the claimant’s chance of getting another job at all or an equally well-paid job

• The evidence of the risk – needed by both parties

  • Medical evidence

  • Workplace evidence

• Evidence of value

  • No easy task

  • Evidence

• The award

  • Present value of the loss is hard to quantify – the common approach is between 0-2 years’ net loss of earnings as at date of trial

  • But in Foster v Tyne and Wear CC [1986], the Court of Appeal stated that there was no conventional figure here, and awarded 4 years’ net salary

• When to claim

  • Should normally be claimed in the particulars of claim

  • Need lots of evidence about future job prospects (perhaps employment consultant)

• Procedure

  • Pre-action – mention Smith v Manchester

  • Letter of claim – mention Smith v Manchester

  • Particulars of claim – if matter is not settled, mention in Smith v Manchester

  • Schedules – mention in Smith v Manchester

  • Witness statements – mention in Smith v Manchester

• No interest is payable on a Smith v Manchester award

• Inappropriate if total inability to work so FULL loss of earnings awarded on that basis

Step 3: Loss of congenial employment

• Compensation for the loss of job satisfaction - traditionally under pain, suffering and loss of amenity, but court now normally makes separate award

  • Musical, theatrical and creative files

  • Art, fine art, furnishings

  • Vocational fields e.g. medicine, rescue services, education

• Awards normally 5,000-10,000 but higher awards made in appropriate circumstances (in Appleton v Medhat Mehoammed El Safty [2007] a footballer received 25,000)

• Any evidence relating to this claim must be in the witness statements for exchange

  • The claimant must give full details of nature of previous employment, any training/qualifications required and predicted career progression etc.

  • Helpful points – lengthy training, longed ambition, tendency outside 9-5 work hours

  • No set criteria - depends upon the facts of case/character of claimant

• The award

  • Additional to other heads of damage e.g. loss of earnings

  • Sums are relatively small

Step 4: Future cost of medical expenses, care and quasi-nursing services

• Future cost of care

  • Find multiplier using loss for life table - multiplicand x multiplier

  • Assess multiplicand based on special damages figure for losses incurred to trial date

  • When identifying the multiplier, use Table 1 or 2

  • It is NOT appropriate to discount whole life multipliers – Page v Sheerness Steel Co

• Cost of medical expenses, aids and appliances

  • Continuing need – use multiplicand x multiplier as above (e.g. wheelchair is 1,000 and has 5 year life-span so multiplicand is 200)

  • One-off needs e.g. operation = one-off payment

  • Annual costs = multiplicand

  • Find multiplier in table

• ROAD TRAFFIC ACCIDENTS

  • The NHS hospital can claim back the cost of emergency treatment

  • This is recovered from the wrongdoer’s insurer

  • This is by virtue of the Road Traffic (NHS) Charges Act 1999

  • This will NOT affect the claimant’s damages

• Modernise property or buy a new home? Roberts v Johnstone [1988]

  • Claimant to account for sale of previously owned accommodation

  • Annual cost of purchase of new property

  • Actuarial tables

  • Future loss schedules - Claimant’s schedule, Defendant’s counter schedule and Evidence from experts

Step 5: Loss of future earnings

Multiplicand (net salary) x multiplier (loss from trial-return to work reduced using Ogden)

• Multiplier

  • Identify the correct table from Tables 3 to 14 by using the claimant’s sex and previously anticipated retirement age

  • Find claimant’s age at the date of trial along the left-hand vertical column - 2.5%

  • Using Tables A-D consider whether further discounts are appropriate to take account of other ‘risks and vicissitudes of life’

    • Whether claimant was employed at the time of the accident

    • Whether claimant was disabled at the time of the accident

    • The claimant’s level of educational attainment at the time of the accident

      • Degree/equivalent and higher

      • GCSE grades A*-C up to A Levels and equivalent

      • Below GCSE grade C or CSE grade 1 or no qualifications

• Multiply by the Multiplicand (salary)

  • The claimant’s annual loss (taken from date of trial) so usually net annual earnings

  • Deduct tax and national insurance

• Career progression

  • In cases where claimant would have had good career progression, court will either

    • Determine an average multiplicand or

    • Use stepped multiplicands for each stage of the claimant’s career

• Child claimants - the court will take into account:

  • The nature of the employment of the claimant’s parents and...