Heil v Rankin & Anor [2000] EWCA Civ 84

EWCA-Civ
Heil v Rankin & Anor
[2000] EWCA Civ 84 · 2000-03-23
[1]In June 1995 the then Lord Chancellor announced the Law Commission's ("Commission") sixth programme of law reform. The programme included an examination of:
"the principles governing and the effectiveness of the present remedy for damages for monetary and non-monetary loss, with particular regard to personal injury litigation"
. A matter for specific consideration was "the award of damages for pain and suffering and other forms of non-pecuniary loss".[2]In January 1996 the Commission published a Consultation Paper (No. 140) Damages for Personal Injury: Non-Pecuniary Loss. This was followed by the publication of the Commission Report (No. 257) which was ordered by the House of Commons to be printed on 19 April 1999. Included among the recommendations was a recommendation that the level of damages for non-pecuniary loss for personal injuries should be increased. The recommendation was set out in the Summary of Recommendations contained in the report in the following terms :
"(1) Damages for non-pecuniary loss for serious personal injury should be increased We recommend that : (1) in respect of injuries for which the current award for non-pecuniary loss for the injury alone would be more than £3,000, damages for non-pecuniary loss (that is for pain and suffering and loss of amenity) should be increased by a factor of at least 1.5, but by not more than a factor of 2; (2) in respect of injuries for which the current award for non-pecuniary loss for the injury alone would be in the range £2,001 to £3,000, damages for non-pecuniary loss (that is for pain and suffering and loss of amenity) should be increased by a series of tapered increases of less than a factor of 1.5 (so that, for example, an award now of £2,500 should be uplifted by around 25 per cent). (3) Finally, if the increases recommended by us are not implemented until over a year after publication of this report, the recommended increases should be adjusted to take into account any change in the value of money since the publication of this report. (paragraphs 3.40 and 3.110)"
[3]In addition the Commission recommended that, at least initially, legislation should be avoided. The Commission expressed the hope (at paragraph 5.10 p.110) that "the Court of Appeal and the House of Lords will use their existing powers to lay down guidelines, in a case or series of cases, which would raise damages in line with the increases recommended". In case legislation was necessary the Commission suggested the terms in which it should be drafted.[4]Although the recommendation to the Court was directed to both the Court of Appeal and the House of Lords, levels of general damages for personal injury have traditionally been regarded as more appropriate for final consideration by the Court of Appeal. We refer here to the well known statement of Lord Diplock in Wright v British Railways Board [1983] 2 AC 773 at p.785 A-B :
"The Court of Appeal, with its considerable caseload 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 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."
[5]It is clear that Lord Diplock also intended the Court of Appeal to have the responsibility for keeping guidelines up to date. When drawing attention to this statement of Lord Diplock we recognise that there are issues of principle as to damages for personal injuries for which the House of Lords would be a more appropriate final arbiter than the Court of Appeal.[6]In view of these recommendations this Court considered that it was important that it should give its response to the recommendations of the Commission as soon as practical. Until a decision was given by the Court as to the recommendations there was bound to be uncertainty as to what is now the appropriate level of damages for non-pecuniary loss and damage. Cases were already occurring where individual judges were expressing their own views as to how courts should respond to the recommendations. The uncertainty was adversely affecting the disposal of personal injury litigation. Arrangements were therefore made to identify at as early a date as possible a group of cases in relation to which the Court could express its views on the recommendations made by the Commission. As a result of these arrangements, this judgment represents our conclusions on eight appeals which have been heard jointly by this Court as to the issue of general damages for pain, suffering and loss of amenity ("PSLA").[7]In addition to the arguments advanced by counsel on behalf of the parties to the individual appeals, we have also been prepared to receive and have received helpful submissions on behalf of interested parties. They include the Association of Personal Injury Lawyers (APIL), the Association of British Insurers (ABI), the Eagle Star Insurance Company, the Iron Trades Insurance Company and the Forum of Insurance Lawyers (FOIL). In addition we have received written and oral submissions by Mr Timothy King QC, instructed by the Treasury Solicitor to assist the Court as an amicus. We are extremely grateful for their assistance and we are also grateful to Her Majesty's Attorney General for arranging for this assistance to be provided.[8]The submissions of the interested parties were made in writing. Of those interested parties only the ABI sought permission to make oral submissions. We did not accede to this application. We did, however, point out that it would be perfectly appropriate for the Association to give such instructions as they thought fit to one of the defendants to the appeal. Lord Goldsmith QC, who would have represented the ABI, has appeared for one of the defendants.[9]The written material has enabled the Court to complete the hearing of this appeal within four days. It has been received from the parties as well as the interested parties. We would like to record our appreciation to all the parties and their lawyers for the manner in which they have cooperated with and assisted the Court in dealing with the volume of material which it has been necessary to consider. To avoid the duplication of submissions as to the general issues those appearing for each party selected the issues on which they should make submissions. Counsel equitably divided the time for submissions and kept to their timetable. We also point out that the constitution of the Court for the hearing of the appeal is different from what it would usually be. It consists of five judges rather than three, and those judges are all judges who have had personal experience, both while in practice at the bar and on the bench, which is relevant to the Court's task. Their differing seniority means that their relevant experience covers a substantial period of time. Their expertise meant that, by pre-reading, the length of the hearing could be confined. Is the Court of Appeal the Appropriate Forum to Consider the Commission's Report?[10]It was submitted both in writing and orally on behalf of those representing the defendants, insurance practitioners and the insurance industry that it would be wrong, as a matter of principle, for this Court to embark on the consideration of the Commission's recommendations. Powerful arguments were advanced on behalf of ABI, FOIL and individual defendants (who, with the exception of the defendants in those cases involving the Motor Insurance Bureau or the National Health Service ("NHS"), are insured). In particular, Mr O'Brien QC, Lord Goldsmith QC and Mr Havers QC, who was instructed in those cases in which the NHS is involved (when we refer to the NHS we include its constituent parts), contended that it would be unsuitable and inappropriate to seek to alter the level of awards by judicial determination. It is argued that Parliament is the appropriate forum in which such a change should be made. There could then be a full and proper public debate as to the justification for the increase in general damages which the Commission have recommended. All interested parties would then be able to make representations to their Members of Parliament. Existing and prospective litigants would know the progress and likely outcome. Parliament is in the position to achieve a change in levels which would be prospective only and can cater for the effects on the insurance industry by means of clearly defined commencement dates and transitional provisions. If the courts interfere, this would create undesirable uncertainty about the prospects of further changes which would not arise if Parliament dealt with the issue.[11]Mr Havers on behalf of the NHS makes a separate submission. He points out, correctly, that he is in a position, appearing for the named defendants whom he represents and ultimately the Department of Health, to put forward submissions representing the public interest. He states, what is common knowledge, namely that the NHS is subject to immense pressures in relation to the resources which it has available. He refers to the financial burdens to which it is subject already as a result of the clinical negligence claims which it is required to meet. He indicates how the figures have escalated over the years to the daunting amounts which are now involved. The amount of compensation which the NHS had expended on clinical negligence claims in 1996/1997 was £11 million, in 1997/1998 was £66 million and for 1999/2000 was expected to be £278 million. The reason for the particularly large increase in the current year is due to the fact that the decision in Wells v Wells [1999] AC 345 alone had resulted in an increase of £128 million in damages. If the court were to accede to the Commission's recommendations it is estimated that there would be a further £133 million annual increase. This would have a significant effect on the over-stretched resources of the NHS.[12]Mr Havers submitted that changes which could have this sort of impact were ones for Parliament and not this Court. If, contrary to this submission, the Court were to consider intervening in the way recommended, then he submitted that it would be premature for it to do so. He submitted that there had been no public debate either in Parliament or in the media as to what was proposed, and that the Court should be aware of the views which would be revealed in a discussion before Parliament or in the media before it decided to take any action. He submitted that so far there had been no public clamour for any increase in the award of damages and that there was no evidence, apart from the limited consultation and survey which the Commission had carried out, to assist the Court if the Court were to consider intervening.[13]Mr Havers also referred to the report of the Committee of Public Accounts in relation to the accounts for 1997/1998, which indicated that there was a need to avoid money draining away from the NHS through fraud and clinical negligence. The Committee indicated :
"We are appalled that there are at least 15,000 cases of clinical negligence on the NHS books, and that there may be far more. These cases represent a tragedy for the people involved. And the level of outstanding liabilities, which may be as high as £2.8 billion, is a significant drain on stretched health care resources."
[14]The claimants made written submissions after the hearing as to the figures relied on by the NHS. We recognise and take into account the fact that they did not have an opportunity to challenge the assumptions on which the figures are based.[15]Although the figures for the NHS are large, the impact of the proposals on the insurance industry is even greater. The distinction between the position of the NHS and the insurance industry generally is that, while in the case of the NHS the awards for general damages for PSLA are normally less than the awards for pecuniary loss, in the case of the insurance industry the usual position is the reverse. This is because in the case of the NHS most claims are for more serious injuries which give rise to large continuing pecuniary losses, whereas in the case of the insurance industry the majority of claims are for more modest injuries where the pecuniary loss tends to be restricted. The result is that the effect of an increase in the compensation for PSLA is proportionately greater in the case of the insurance industry than in the case of the NHS. Lord Goldsmith submitted that the effect of a 100% uplift on awards on the insurance industry would run to approximately £1,000 million a year. The effect which it would have because of the retrospective effect of an increase on any existing claims not yet determined would be in excess of £2 billion.[16]Against the background of these very large sums Lord Goldsmith developed his argument that it would not be appropriate for the Court to intervene by stressing that the virtue of the existing situation was the certainty it provided. He submitted that over many years the courts had arrived at a conventional sum for PSLA which had been regularly updated by the use of the Retail Price Index ("RPI") which was accepted to compensate adequately for what would otherwise be the reduction in the money value of awards. This was an approach which was firmly established. It reflected the reality that there was no substitute in monetary terms for the effect on an individual of an injury which caused PSLA. In this connection he referred to the judgment of Dickson J in Andrews v Grand and Toy Alberta Limited (1978) 83 DLR (3d) 452 at p.475-476 where Dickson J said :
"There is no medium of exchange for happiness. There is no market for expectation of life. The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. No money can provide true restitution. Money can provide for proper care: this is the reason that I think the paramount concern of the Courts when awarding damages for personal injuries should be to assure that there will be adequate future care. However, if the principle of the paramountcy of care is accepted, then it follows that there is more room for the consideration of other policy factors in the assessment of damages for non-pecuniary losses. In particular, this is the area where the social burden of large awards deserves considerable weight. The sheer fact is that there is no objective yardstick for translating non-pecuniary losses, such as pain and suffering and loss of amenities, into monetary terms. This area is open to widely extravagant claims. It is in this area that awards in the United States have soared to dramatically high levels in recent years. Statistically, it is the area where the danger of excessive burden of expense is greatest."
[17]He also referred to the judgment of Lord Denning MR in Ward v James [1966] 1 QB 273 at pp.299-300 where the Master of the Rolls stressed that the lesson of the recent cases was that they showed the desirability of three things : assessability, uniformity and predictability. Lord Goldsmith said that for the Court to intervene would be inconsistent with each of these principles which were part of the reason why judges now assess damages in this jurisdiction instead of juries.[18]The defendants also relied on the unfairness which would result from the retrospective effect of the changes if this Court were to respond positively to the Commission's recommendations. It was submitted that retrospective changes of this scale would contravene the European Convention of Human Rights.[19]The first issue which we have to tackle is, therefore, how appropriate is it for this Court to respond to the invitation of the Commission. The answer depends on the nature of the task the Court is being required to perform. We must therefore now examine that task in some detail. The Nature of the Court's Role[20]We start by making it clear that we do not consider it necessary for the purpose of this appeal to depart from any existing legal principles as to the assessment of personal injury damages. The task of the Court if we intervene will be limited to providing fresh guidelines so as to give effect to well established principles as to the objective which should be achieved by an award of damages. Certain of the written material placed before the Court consists of statements of experts which express conflicting views. Where this is the situation, we have not found it necessary to resolve the conflict between the experts in order to determine the appeals. The views of the experts provide the background against which our decisions are taken. The experts ensure that we are properly informed but they do not determine our decisions.[21]We adopt a similar approach to the Commission's Report. Criticisms are, for example, advanced as to a survey which was taken into account by the Commission. In support of the criticisms reliance is placed upon reports by Mr Rothman, an independent marketing and research consultantant. The criticisms were then attempted to be placed in context by additional information from the Commission. We do not find it necessary to make any findings as to the criticisms. We do, however, bear the criticisms and the response in mind when evaluating the weight which it is proper to place on the survey.[22]The relevant legal principles to which we referred earlier are all well established and are not in dispute. As Mr King submitted, the aim of an award of damages for personal injuries is to provide compensation. The principle is that "full compensation" should be provided. An early classic exposition of the principle is that of Lord Blackburn in Livingstone v Rawyards Coal Company [1880] 5 App Cas 25 , at p.39 :
"... where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, . or who has suffered, in the same position as he would have been if he had not sustained the wrong."
[23]This principle of "full compensation" applies to pecuniary and non-pecuniary damage alike. But, as Dickson J indicated in the passage cited from his judgment, this statement immediately raises a problem in a situation where what is in issue is what is the appropriate level of "full compensation" for non-pecuniary injury when the compensation has to be expressed in pecuniary terms. There is no simple formula for converting the pain and suffering, the loss of function, the loss of amenity and disability which an injured person has sustained, into monetary terms. Any process of conversion must be essentially artificial. Lord Pearce expressed it well in H West & Sons Ltd v Shephard [1964] AC 326 at p.364 when he said :
"The court has to perform the difficult and artificial task of converting into monetary damages the physical injury and deprivation and pain and to give judgment for what it considers to be a reasonable sum. It does not look beyond the judgment to the spending of the damages."
[24]The last part of this statement is undoubtedly right. The injured person may not even be in a position to enjoy the damages he receives because of the injury which he has sustained. Lord Clyde recognised this in Wells v Wells [1999] AC 345 at p.394H when he said :
"One clear principle is that what the successful plaintiff will in the event actually do with the award is irrelevant."
[25]In the case of pecuniary loss, the courts have progressively been prepared to adopt ever more sophisticated calculations in order to establish the extent of a claimant's loss. The House of Lords' decision in the Wells case is a recent example of the analytical approach which the courts will now adopt. In the case of non-pecuniary damages, the scale of damages has remained a "jury question". This is the position notwithstanding s.6 of the Administration of Justice (Miscellaneous Provisions) Act 1933, as a result of which the use of a jury to try personal injuries cases became discretionary. In practice, since the 1960's the assessment of damages has been carried out primarily by the judiciary. The assessment requires the judge to make a value judgment. That value judgment has been increasingly constrained by the desire to achieve consistency between the decisions of different judges. Consistency is important, because it assists in achieving justice between one claimant and another and one defendant and another. It also assists to achieve justice by facilitating settlements. The courts have become increasingly aware that this is in the interests of the litigants and society as a whole, particularly in the personal injury field. Delay in resolving claims can be a source of great injustice as well as the cause of expense to the parties and the justice system. It is for this reason that the introduction of the guidelines by the Judicial Studies Board ("JSB") in 1992 was such a welcome development.[26]Even in those situations, such as actions for defamation, false imprisonment and malicious prosecution, where it is still normal to have jury trials, the court now seeks to exercise more influence over the amount of the award by juries than would have occurred in the past. This is in part to assist in achieving consistency. It is also a recognition that the public must perceive that the awards are at a level which can be regarded as just. It is why the ability of the judge to give guidance to juries in defamation actions was extended by the Court of Appeal in John v MGN Ltd [1997] QB 586 . The same happened in the case of false imprisonment and malicious prosecution in Thompson v Commissioner of Police of the Metropolis [1998] QB 498 . As Sir Thomas Bingham MR stated in the former case (at p.611D-E):
"Any legal process should yield a successful plaintiff appropriate compensation, that is compensation which is neither too much nor too little. That is so whether the award is made by judge or jury ... Nor is it healthy if any legal process fails to command the respect of lawyer and layman alike." "
The conventional compensatory scales in personal injury actions must be taken to represent fair compensation in such cases unless and until those scales are amended by the courts or by Parliament." (at p.614G)[27]Excessive importance must not, however, be attached to consistency. Care must be exercised not to freeze the compensation for non-pecuniary loss at a level which the passage of time and changes in circumstances make inadequate. The compensation must remain fair, reasonable and just. Fair compensation for the injured person. The level must also not result in injustice to the defendant, and it must not be out of accord with what society as a whole would perceive as being reasonable.[28]While recognising the dangers which can arise from too rigid an application of tariffs, it has been the continuous responsibility of the courts not only to set tariffs for damages for non-pecuniary loss in the case of personal injuries, but also, having done so, to keep the tariffs up to date. The courts sought to achieve this by deciding guideline cases and subsequently making allowance for inflation, that is the depreciation in the value of money, since the guideline was laid down. This usually involved doing no more than applying to the guideline decision the appropriate difference between the RPI at the date on which the guideline case was decided and the RPI at the date on which the guideline was applied.[29]However, the changes which take place in society are not confined to changes in the RPI. Other changes in society can result in a level of damages which was previously acceptable no longer providing fair, reasonable and just compensation, taking into account the interests of the claimants, the defendants and society as a whole. For this reason, it is clearly desirable for the courts at appropriate intervals to review the level of damages so as to consider whether what was previously acceptable remains appropriate.[30]The exercise can be performed by the consideration of individual cases over a period of time. This would be uncontroversial. But while the piecemeal approach has advantages, it suffers from the great disadvantage of producing uncertainty and inconsistency over the period during which the adjustment is taking place. An exercise by the court comprising an examination of the level of damages as a whole at the same time as it is considering a reasonable cross section of appeals has a number of advantages over the piecemeal approach. It not only reduces uncertainty, it is more likely to produce a properly graduated tariff. Inconsistencies which are a cause of injustice are less likely to arise.[31]The appeals which are before us are not an ideal cross-section of cases, but it would be difficult to provide at one hearing of this Court and within a reasonable time a significantly better selection of cases. They do enable the Court to adopt a holistic approach to PSLA damages. However, this does not change in principle the nature of the exercise in which the Court is engaged: namely, by determining in the case of individual appeals whether the level of damages awarded by the court below complies with the principles we have already identified, either confirming the existing tariff or adjusting the tariff. Whether the appeals are allowed or dismissed, our decisions will be a guide for future decisions. This will be irrespective of when the tort occurred. If we modify the existing guidelines we will do so retrospectively. The only difference between that single decision and the exercise in which the Court is engaged is the scale of what is involved. If the tariff is changed it will mean no more than that in bringing a previous award up to date it will be necessary to do more than merely apply the RPI. The answer may involve applying a higher percentage than the RPI would give. What we are engaged in here, using Mr Badenoch QC's words, is still a quantative not a qualitative exercise. It is to be remembered that even an appeal in relation to a single issue could have as great an impact on the level of damages as these cases could potentially have. The decision of the House of Lords in Wells v Wells demonstrates this.[32]We have not heard any oral evidence which would enable us to make any precise findings as to what would be the consequences on the insurance industry and the NHS of increasing the scale of awards. We have, however, had the great advantage of receiving general submissions and statements which enable us to recognise that an increase in the scale of awards of damages as recommended will have very significant repercussions for the insurance industry and the NHS, particularly insofar as our decision has retrospective effect. We are in a position to appreciate fully, without having to place a precise figure on extent of the increase involved, that our decision will have a significant effect on the public at large, both in the form of higher insurance premiums and as a result of less resources being available for the NHS. Ms Elizabeth-Ann Gumbel QC, on behalf of the claimant in the London Ambulance case and the other claimants, submitted that the economic material was not relevant to the Court's task and so we should not take it into account. But this we do not accept.[33]We are well aware that, in making a decision in a particular case as to what the damages should be, the Court must not be influenced by the means of a particular defendant. As Mr O'Brien submitted for the defendants, in making an award the Court is not concerned with whether the claimant is a pauper or a millionaire. The award for the same injury should be the same irrespective of the defendant's means. This is clear from the authorities. In Wells v Wells [1999] AC 345 Lord Lloyd, quoting from Lord Scarman in Lim Poh Choo v Camden & Islington Area Health Authority [1980] AC 174 , (at p.373 A-B) said :
"There is no room here for considering the consequences of a high award upon the wrongdoer or those who finance him. And, if there were room for any such consideration, upon what principle, or by what criterion, is the judge to determine the extent to which he is to diminish upon this ground the compensation payable?"
[34]But the fact that this is the position does not mean that economic consequences are irrelevant. Lord Denning MR certainly appreciated their relevance to the level of damages. In Fletcher v Autocar and Transporters Ltd [1968] 2 QB 322 at pp.335F-336A he said :
"It is true in these days most defendants are insured and heavier awards do not ruin them. But small insurance companies can be ruined. Some have been. And large companies have to cover claims by their premiums. If awards reach figures which are `daunting' in their immensity, premiums must be increased all the way round. The impact spreads through the body politic."
[35]In making this statement, Lord Denning was reflecting the earlier statement by Diplock LJ in Wise v Kaye [1962] 1 QB 638 at pp.669-670 where Diplock LJ stated :
"In the days before insurance against liability for damages for personal injuries was almost universal it was useless to award damages greater than the defendant could pay; and if the datum were set so high that a substantial proportion of defendants could not pay the damages awarded in respect of very serious personal injuries, but only some lesser sum dependent upon their individual means, the just proportion as between the damages recovered by one plaintiff and those recovered by another would seldom be achieved. The maximum in such a social environment must be fixed at a figure at which there is a reasonable prospect that defendants responsible for causing injuries coming within the higher part of the scale based on that maximum will be able to pay...Insurance removes the immediate burden of paying damages from the individual defendants and spreads it ultimately over the general body of premium-paying policy-holders. Here it increases in most cases the general cost of goods and services, in some cases merely the cost of private motoring, with consequent hardship to the public as a whole. To avoid fixing the scale at a level which would materially affect the cost of living or disturb the current social pattern is a factor, Benthamite no doubt in origin, in the empirical process by which the maximum/datum is determined."
[36]In these statements Lord Denning and Diplock LJ are doing no more than highlighting the obvious. Awards must be proportionate and take into account the consequences of increases in the awards of damages on defendants as a group and society as a whole. The considerations are ones which the Court cannot ignore. They are the background against which the fair, reasonable and just figure has to be determined. In the context of a single case, without the benefit of the wider ranging arguments we have received and a report of the Commission, O'Connor LJ, by fixing the figure for an average tetraplegic award in Housecroft v Burnett [1986] 1 All ER 332 , influenced the scale of awards for PSLA in all cases. They had to be accommodated in the context of the figure he set for the catastrophic injury with which he was dealing in that case. He appreciated that the Court was setting a figure which would provide a guide for the future, but he may or may not have expected it to be controlling the top of the range of damages 14 years later.[37]The statement of Lord Lloyd already quoted in Wells v Wells, indicating that the means of the defendant are irrelevant, is dealing with the situation when a court has come to a conclusion as to the proper sum it should award. However, in deciding what is the proper level of damages for PSLA, especially in guideline cases, the court is not confined to considering the matter from the point of view of the claimant. The court has to approach the matter in the round in order to decide what is fair, reasonable and just.[38]For reasons we will identify later, as the claimants submit, the change in economic circumstances can contribute to causing a tariff to be no longer appropriate. Similarly, in setting the tariff the Court should not ignore the economic impact of the level of damages which it selects. The economic consequences of a level of damages will not dictate the decision, but they will inform the decision. They are part of the background facts against which the decision must be taken. The Court is not interested in the detail but it is interested in the broad picture. A distinction exists here between the task of the Court when determining the level of pecuniary loss and when determining the level of non-pecuniary loss. In the case of pecuniary loss, and issues such as that which engaged the House of Lords in Wells v Wells , the Court is only required to make the correct calculation. Economic consequences are then irrelevant. When the question is the level of damages for non-pecuniary loss the Court is engaged in a different exercise. As we have said, it is concerned with determining what is the fair, reasonable and just equivalent in monetary terms of an injury and the resultant PSLA. The decision has to be taken against the background of the society in which the Court makes the award. The position is well illustrated by the decisions of the courts of Hong Kong. As the prosperity of Hong Kong expanded, the courts by stages increased their tariff for damages so that it approached the level in England. [See Chan Pui-ki v Leung On & Another [1996] 2 HKLR 401 (at pp.406-408).][39]In determining what is the correct level of damages for PSLA, it is not usual for the Court to attribute differing sums for different aspects of the injury. The Court's approach involves trying to find the global sum which most accurately in monetary terms reflects or can be regarded as reflecting a fair, reasonable and just figure for the injuries which have been inflicted and the consequences which they will have in PSLA. A sophisticated analytical approach distinguishing between pain and suffering and loss of amenity is not usually required. We will not ourselves seek to draw any such distinctions in what we have to say hereafter. We do, however, accept the submission of Mr Leighton Williams QC that to consider the individual strands of PSLA can provide a check as to the adequacy of the whole. There can also be special circumstances in a particular case which makes separation necessary.[40]We accept as well that the question of what is an appropriate award for general damages for PSLA is always a difficult task, and that to attempt the task of altering the level of awards generally can involve the courts in highly controversial issues which it would be preferable for the courts to avoid if this is not inconsistent with the courts' responsibility. However, changing the current levels of damages, if they are no longer reflecting what should be the correct level of awards, is, as Mr King submitted, part of the courts' duty. A duty which the Court should not shirk.[41]The level of awards does involve questions of social policy. But the questions are ones with which the courts are accustomed to deal as part of their normal role. Parliament remains sovereign. It can still intervene after the Court has given its decision. The task would be a novel one for Parliament. However, Parliament's intervention in this instance would not necessarily result in a loss of flexibility or interfere with the ability of the Court to craft an award to the individual facts of a case, which is a virtue of the present system. The Commission have provided a draft Bill in their Report in case it is necessary to legislate. The terms of the proposed Bill would avoid the undesirable consequences of lack of flexibility. If legislation based on the proposed Bill were to be passed, the legislation could also, by statutory provision, avoid the retrospective effect of an intervention by a court. This we recognise is an undesirable consequence of an intervention by a court. We accept that it would be preferable if a court was also able to consider making its guidance only prospective. But the parties do not argue for this and to do so would create invidious distinctions.[42]Ironically, the arguments which are relied on for saying that the Court should not embark on the task of re-evaluating the level of damages are in part based on the fact that the Court has agreed to materials of a general nature being placed before the Court so that the Court is aware of the implications of its decisions for the insurance industry and the NHS. However, much of the material provided only underlines matters of which any reasonably well informed person would be well aware.[43]While we have in mind the arguments advanced by the defendants and the insurers based on the consequences of a change in the level of the awards, those arguments go to the question of whether it is appropriate to increase the level of damages and not, as is now accepted, to jurisdiction. The question of the level of damages has always been an issue for the judges and the correct approach has been expressed as well as it can be by Lord Diplock in Wright v British Railway Board [1983] 2 AC 773 at pp.782C-785F in a statement upon which we cannot improve :
"[Where] judges carry out their duty of assessing damages for non-economic loss in the money of the day at the date of the trial ... 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 ... My Lords, given the inescapably artificial and conventional nature of the assessment of damages for non-economic loss in personal injury actions ... it is an important function of the Court of Appeal to lay down guidelines ... as to the quantum of damages appropriate to compensate for various types of commonly occurring injuries .... 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 ... 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... 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."
[44]The Commission also referred to Lawton LJ's statement in Cunningham v Harrison [1970] 3 QB 942 at p.956E-F where that judge states that "if judges do not adjust their awards to changing conditions and rising standards of living, their assessment of damages will have even less contact with reality than they have had in the recent past or at the present time". For a more recent statement adopting the same approach, it is possible to refer to the speeches of Lord Lloyd (at p.363F) and Lord Clyde (at p.394D-E) in Wells v Wells . Reference can also be made to Housecroft v Burnett [1986] 1 All ER 332 and Benham v Gambling [1941] AC 157.[45]Mr Havers in his written submissions relied particularly on a passage in the speech of Lord Scarman in Lim Poh Choo v Camden & Islington Area Health Authorit y [1980] AC 174 at p.189 where Lord Scarman commented :
"We are in the area of `conventional' awards for non-pecuniary loss where comparability matters. Justice requires that such awards continue to be consistent with the general level accepted by the judges. If the law is to be changed ... it should not be done judicially but legislatively within the context of a comprehensive enactment dealing with all aspects of damages for personal injury."
(emphasis added)"[46]So far as a change of the law is concerned, we of course endorse the approach of Lord Scarman. But, in considering whether the level of the awards of damages for non-pecuniary loss are too low, there is no change in the law involved even if we come to the conclusion that a change in the level is required. The court is doing no more than considering the adequacy of the level of current awards by applying existing principles and, in so far as they are inadequate, bringing them up to date. Lord Scarman is not suggesting that this is not an appropriate topic for the consideration of this Court. The same is true of the statement in Lord Hutton's speech in Wells v Wells [1999] AC 345 (at p.405 D-F).[47]We emphasise this because we have no intention of seeking to involve ourselves with matters of policy-making which are more suited for Parliament than for the courts. We do have to concern ourselves with current standards within our society and economic conditions, but only so far as the performance of our duty to set the level of damages makes this necessary. We are not contravening the wise advice that the courts should seek, when possible, to avoid becoming involved in determining broad questions of social and economic policy which is contained in the administrative law cases cited by Mr Havers. (See e.g. R v Secretary of State for the Environment ex parte Nottinghamshire CC [1986] AC 240 .)[48]In summary, our conclusion is therefore that it is appropriate for the Court to consider the Commission's recommendation. What is involved is part of the traditional role of the courts. It is a role in which juries previously were involved. Now it is the established role of the judiciary. It is a role which, as a result of their accumulated experience, the judiciary is well qualified to perform. Parliament can still intervene. It has, however, shown no inclination that it intends to do so. If it should decide to do so then the fact that the courts have already considered the question will be of assistance to Parliament. Until Parliament does so, the courts cannot avoid their responsibility. While a public debate on this subject would no doubt be salutary, the contribution which it could make to the actual decision of the Court is limited. The Court has the report of the Commission. It also has the other material which the parties have placed before it. It is in as good a position as it is likely to be to make a decision in the context of the present appeals. We see no reason to accede to Mr Havers' submission that we should postpone doing so. To postpone would be to neglect our responsibility to provide certainty in this area as soon as it is practical to do so. The position under the European Convention of Human Rights[49]Although it would be preferable if a decision could be given which was not retrospective, the fact that the decision will be retrospective does not mean that it contravenes the European Convention of Human Rights ("ECHR") as is contended on behalf of the defendants. The defendants rely on Article 6 of, and Article 1 of Protocol 1 to, the Convention. Mr O'Brien submits that a defendant is entitled to be able to predict the law to be applied by the court prior to any hearing. This is so as to be able to prepare for trial; to be able to assess the chances of success or failure and the extent of any liability under existing law; and to avoid being arbitrarily and unfairly treated in consequence of a change in the law between the hearing and an appeal. In addition the individual defendants and their insurers are entitled not to be deprived of their possessions, contrary to Article 1 of Protocol 1, by a retrospective increase in general damages. However, as Mr Keir Starmer submits in an opinion submitted on behalf of the claimants, there is no general principle under the ECHR that changes in civil law should not operate retrospectively. Legal certainty is important under the Convention, but the Convention does not inhibit the development of the common law on a case by case basis. A change in the tariff is not strictly a change in the law. While certainty of law is required, absolute certainty is not required and the ECHR stated in Sunday Times v UK in [1979] 2 EHRR 245 at paragraph 47:
"... a norm cannot be regarded as `law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. ... whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice."
[50]In the Sunday Times case the European Court decided that the change in the law made by the House of Lords in that case, even though it applied with retrospective effect in the proceedings before the Court, did not in itself infringe the European Convention. Even where an individual has a legitimate expectation that a certain state of affairs will prevail, Article 1 of Protocol 1 does not protect such an expectation from the retrospective effect of the court's decision. (See the European Commission's decision in Antoniades v UK (1990) 64 DR 232.)[51]Here, having regard to the fact that tariffs as to damages are revised from time to time, the possibility of changes in the level of damages and that changes would be retrospective was reasonably foreseeable by the NHS and the insurers. As Mr King points out, Article 1 of Protocol 1 provides that "no-one shall be deprived of his possessions except in the public interest". If this Court decides that the tariffs should be revised so as not to deprive a victim of a tortious act from fair, reasonable and just compensation, this would clearly be within the public interest. The Report of the Commission[52]We have made it clear that in approaching the issues on this appeal we are adopting the conventional approach to the assessment of general damages for PSLA. The Commission are approaching the issues in very much the same way. They are suggesting that the level of damages should be substantially changed. This is because their examination of the level of damages leads them to believe that, applying the conventional principles, the current awards by the courts are substantially below the level that they should be.[53]The Commission are not saying that this has happened due to the fact that the courts are applying the wrong principles. Here we refer to paragraphs 3.172, 3.173 and 3.174 of the Report. In these paragraphs the Commission make clear that it is to a fair level of compensation to which they consider that awards should be raised. They correctly say that this involves a consideration of the proper relationship between standards of living and damages for non-pecuniary loss in the light of our social, economic and industrial conditions. The Commission accept that judges are obliged by precedent to update awards for the fall in the value of money by applying the RPI to previous decisions.[54]The Commission also accept that the assessment of the level of damages for non-pecuniary loss in personal injury cases involves or is a value judgment which should be influenced by and reflect society's views. The Commission argue that from time to time it is right to re-appraise the fairness of awards in the light of prevailing social conditions, but, subject to this, "automatic updating should continue to be in line with the changes in the value of money, rather than in line with changes in average earnings". We also refer to paragraph 3.11 where the Commission state :
"We should not assume that historical levels of awards are fair for modern society, but rather assess what fairness requires in the context of today."
[55]Finally we refer to paragraph 3.24 where the Commission aptly point out that our tort system is a system of corrective justice and unless damages are fair and reasonable in the context of social, economic and industrial conditions prevailing at the time they will not be accepted as restoring the victim's losses.[56]The Commission recognise that it is the courts' task to set the level and it is their task in accordance with their statutory role to make recommendations as to this. Although our conclusions do differ from those of the Commission and we do not accept all their reasoning, we would make it clear that we have found their report of great value. We consider that the Commission by their consultation exercise and report have performed a public service. Without their assistance it would have been considerably more difficult to perform this task.[57]There are different strands to the reasoning on which the Commission rely for saying that an increase in the level of damages for non-pecuniary loss is required to the level they recommend. The first strand is the response which the Commission received to its Consultation Paper. The Commission state (at paragraph 3.4) that "four central messages came through from the consultees' responses: a) damages for non-pecuniary loss for serious personal injury are too low; b) there is no clear consensus on what the level of damages for non-pecuniary loss should be; c) the views of society as a whole should influence the level of damages for non-pecuniary loss in personal injury cases; and d) one must be clear as to the relevance, if any, of other components of a damages award."[58]In giving appropriate weight to this strand of the Commission's reasoning it is important to appreciate that many of those who responded to the Consultation Paper could speak with great authority. They included the Lord Chief Justice, Lord Bingham, the judges of the Family and Queen's Bench Divisions, and the District judges and members of the profession.[59]With regard the first of these "messages", the Commission could point to the fact that of the consultees who gave their views on levels:(a) at least 75% thought that damages for non-pecuniary loss for very serious injuries are too low;(b) at least 50% considered that damages for non-pecuniary loss are too low across the board;(c) on the other hand, around 50% thought that damages for "minor" or "trivial" injuries are not too low. (About 12% of those consulted took the view that damages for "trivial" injuries are too high.)[60]Of those who responded to a question concerning inflation, 74.5% agreed that damages have failed to keep pace with the decrease in value of money. The consultees consistently made the point that there is no demonstrably right level of damages for non-pecuniary loss.[61]The second strand which influenced the Commission was a study by Professor Hazel Genn (1994) "Personal Injury Compensation : How Much is Enough?" The survey was of those who had received damages within four bands. Band 1 was £5,000 - £19,999, Band 2 £20,000 - £49,999, Band 3 £50,000 - £99,999 and Band 4 £100,000 and over. Professor Genn found that 60% of the respondents in Band 1 and 66% in Bands 2-4 were dissatisfied with the compensation they had received. Three main reasons were given by the respondents for being dissatisfied with the damages. The most frequent was that the settlement represented inadequate compensation because their whole way of life had changed and was now ruined; a similar number said damages had not sufficiently made up for their loss in earnings; and the third reason was that their health condition had not improved as they had expected.[62]The Commission commented that the study demonstrated the very significant adverse effects of personal injury on the lives of victims. The Commission also considered that the findings indicated that damages for non-pecuniary loss in respect of serious personal injury are too low. However, they also noted that the consultees generally did not consider that there was much wrong with the ranking of injuries.[63]For its third strand the Commission looked at findings of the Legal Aid Board Research Unit. From this they deduced that 64% of successful claimants were fully recovered after two years and 76% after three years. These were categories where damages were generally substantially less than £5,000. The Commission, in relation to their conclusion that damages for non-pecuniary loss for serious personal injury should be increased, adopted as a "serious personal injury" an injury for which damages for non-pecuniary loss alone would be more than £2,000.[64]The Commission considered that public opinion on the level of damages for non-pecuniary loss in personal injury cases should be influential (paragraph 3.42). For this reason they commissioned research from the Office of National Statistics ("ONS") in the form of a survey. The results are reproduced as appendix B to their report and are the fourth strand. The Commission regarded the results as providing "invaluable guidance". Face to face interviews were conducted with approximately 1900 adults. And those interviewed were selected from a list of private household addresses in such a way "that those interviewed form a random and representative sample of the population of Great Britain" (paragraph 3.43). Four descriptions of cases were given to those who were interviewed based on actual decisions of the courts. The Commission did however approach the results with caution. The Commission stated :
"These figures tend to suggest that the majority of the population would consider the current level of damages for non-pecuniary loss in personal injury cases to be too low, at the very least by 50 per cent, and often by a much larger percentage." (Paragraph 3.58) "
The research provides support for the message communicated to us by our consultees, namely that damages for non-pecuniary loss in personal injury cases are considerably too low. We remain conscious, nevertheless, that a substantial minority surveyed did not support higher levels of damages. This should temper the conclusion which we draw from the research as to the precise amount of an appropriate increase. Accordingly the results of the research indicate to us that damages for non-pecuniary loss in cases of serious personal injury should be increased by a minimum of 50 per cent and a maximum of 100 per cent." (Paragraph3.59)[65]Notwithstanding the response of Dr Mavis McLean of Woolfson College, Oxford, who played a prominent part in the design and interpretation of the research, to criticisms made by Mr Rothman, the Court considers that it is right to exercise caution with regard to the results of this survey. On the other hand, we also accept that it was highly desirable for the survey to have been conducted and that, while it would always be preferable to have a more extensive and better resourced survey, it is necessary to be pragmatic and the survey does, subject to the exercise of the required degree of caution, help to inform our views on this appeal.[66]The Commission accepted that public perception of the justice of a situation may be affected by knowledge of how compensation is going to be paid for. A question in relation to this was therefore asked which drew attention to the fact that to increase compensation would likely lead to a change of premiums charged by insurance companies. 80% of those interviewed did not consider that this fact would alter their views. However, the defendants point out that there can be a world of difference between answering a question, however skillfully crafted, and having to pay out the extra insurance premiums or tax which is necessary. In addition, no attention was drawn to the impact on the NHS.[67]A further strand of the Commission's reasoning was based on the level of damages in other United Kingdom compensation systems. The Commission looked to other jurisdictions, as did the written and oral submissions on behalf of the claimants. The parts of the United Kingdom other than England and Wales obviously are likely to provide helpful guidance. Here there is a significant distinction between the levels in Northern Ireland and in England and Wales. The levels in the Northern Irish Guidelines are very much in accord with those recommended by the Commission. A comparative analysis of the JSB and Northern Irish Guidelines demonstrates that the difference between the level of damages between the two jurisdictions is generally well over 100%.[68]As to the reason for this difference in the level of damages, the Commission referred to the decision of the Court of Appeal of Northern Ireland in Simpson v Harland & Wolff PLC [1988] NI 432. That case was decided at first instance very soon after the judges took over the assessment of damages from juries in Northern Ireland in 1987. On appeal it was argued that the award which was made was too high because it was higher than recent awards by judges in similar cases. Lord Lowry LCJ referred to this fact and indicated that it was jury awards which should become the starting point for the judicial assessment of awards in Northern Ireland. Lord Lowry referred to the fact that in England since 1934, when judges first became involved in assessing damages, the level of jury awards had gradually been transformed into the general level of judges' awards and had tended to fall behind the level of awards in Northern Ireland. He added, at p.440 C, D-E :
"This tendency is inevitable, since the age of judges ranges from middle-aged to elderly and, as objective people (including, I believe most High Court judges), will readily concede, elderly people (particularly men), if they are not in business or constantly dealing with pecuniary transactions of some kind, become less adaptable and less receptive to changing values, even though at the same time they may remain intellectually able and alert. ... A judge's award of general damages is not intrinsically better than a jury's . The chief merit of the former is not in its amount but in its greater predictability and consistency, which ought to be readily achievable by a numerically small judiciary."
(emphasis added)[69]As to Scotland the Commission regarded the awards as being reasonably "on a par" with those in England and Wales, except where a jury trial is held. The Commission concluded that the position in Scotland as well as Northern Ireland suggested that some increase to awards for non-pecuniary loss would be appropriate. This conclusion was based on the fact that jury awards being higher than the judicial awards in England and Wales suggested that the public perception, which the jury reflected, was in favour of higher awards.[70]The Commission also referred to the research by Mackintosh and Holmes (Personal Injury Awards in EU and EFTA Countries (2 nd Ed. 1994)) but concluded that "the very considerable divergence between EU and EFTA jurisdictions rendered comparison problematic" (paragraph 3.88). The Commission regarded England and Wales as being somewhere in the middle in the EU "league". An examination of the tables suggests that the awards in this jurisdiction are towards the higher reaches of those tables.[71]The final strand which the Commission took into account was the fact that there "is a good independent argument for the top levels of damages to be increased" due to the fact that the life expectancy of those who suffer some of the most dramatic injuries is now considerably longer than it used to be. Although this argument primarily affects the injuries at the top of the scale, the Commission considered that "it may be regarded as having implications for the whole scale" (paragraph 3.32).[72]The Commission did not consider that significance should be attached to what would be the overall size of the award: that is the total of the pecuniary and non-pecuniary damages. They said that to do so would amount to "limiting damages for those who have sustained no pecuniary loss on the basis of what others are entitled to receive for their pecuniary loss". They regarded damages of pecuniary and non-pecuniary loss as being "in principle" to meet separate losses. This was subject to there being no duplication in practice (paragraph 3.17).[73]Little importance was attached by the Commission to the levels of compensation in other systems, such as tribunals. The Commission also did not rely upon the discrepancy in the level of damages for PSLA and damages for defamation and false imprisonment. They did, however, look at developments in those fields with regard to giving juries greater guidance for other purposes.[74]With regard to the economic consequences of their recommendation the Commission took a strong line. They considered that they should not be dissuaded from recommending an increase in damages by cost considerations. In support of this approach, they relied on the survey, which they regarded as indicating that "beliefs about fairness of awards are generally not altered by knowledge that increases in damages will entail costs for a large section of society" (paragraph 3.107). They also attached importance to the fact that, if their recommendations that awards for non-serious injury should not be altered were accepted, this would significantly limit the cost of any increase. This was stated notwithstanding that they regarded £2,000 as being the base for serious injury. The Arguments of the Claimants in Support of an Increase in the General Level of Awards[75]The arguments of the claimants naturally relied heavily on the Commission's reasons and conclusions for recommending an increase. They also relied on the increase in the levels of earnings as being an important factor in setting the tariff for non-pecuniary loss. Mr Purchas QC submitted that it is natural to compare the value of an award with what an average person earns. He also contended that the general standard of living was equally important. He argued that it is just and fair that awards for general damages to those who are victims of tort should keep pace with the prosperity of the nation as a whole. He contended that most people value their health, so the value placed on good health will rise in public estimation with an increased standard of living. He argued that the courts had acknowledged the relevance of levels of earnings and standard of living but in practice had not taken this into account. He accepted that the fall in the value of money over the last generation has been reliably measured by the RPI.[76]As we have seen, the Commission considered that the RPI index provided a suitable mechanism for adjusting awards to compensate for the fall in the value of money. It is the claimants' case that, in order for damages to remain at the appropriate level, it is not sufficient to look at the fall in the value of money. It is also necessary to have regard to the rise in average earnings and improvements in the general standard of living. To support their case as to this, they relied on reports by Mr Roger Bootle, a distinguished economist. He examined the different indices which could be used for this purpose. He was not impressed by the tables of average earnings. He considered that the most suitable table to use was that which reflected the Gross Domestic Product ("GDP"). Mr Bootle explained how the GDP measures total spending on currently produced goods and services and the income accruing therefrom, whether the production is by the Government, companies or individuals, and whoever receives the income.[77]Because of its generality, the GDP is the measure used as a yardstick by professional economists to gauge the development of almost all economic phenomena. However, Mr Bootle considered that, to exclude the effects of population changes on the GDP, it would certainly be appropriate to put the GDP on a per capita basis which could be done relatively simply. He recommended that GDP per head be used as the basis of updating of awards.[78]Mr Bootle produced a chart which indicated the movement in the RPI, the GDP and two earnings indices. What was interesting about the chart was that it showed that up to 1980 the four indices kept very much together, but that over the period from 1980 to 1998 the RPI was left behind by the other indices. This divergence was stressed by Mr Irwin QC on behalf of the claimants as strongly confirmatory of the correctness of the approach of the Commission. He also submitted that, for the future, the GDP would be a more satisfactory index to use than the RPI for maintaining the correct level of awards. Mr Irwin also relied on a report by Mr Haberman, a chartered accountant, who based his approach on the average earnings index. No doubt Mr Haberman did so partly because he considered that there was no formal index which measured the standard of living.[79]Mr Badenoch's submissions accorded with the views which we have already expressed when describing what we regard as being the correct role of the Court when considering these appeals. The approach is largely uncontroversial. It is not therefore necessary to set them out further. It is sufficient to point out that there is a large measure of agreement as to the factors which should be taken into account. The Case for the Defendants[80]In addition to submitting that it is not for this Court to alter the levels of awards, the defendants dispute that there is any ground for doing so. They contend that the use of guideline decisions and the RPI had ensured that awards were at a level which was fair, reasonable and just, and that therefore there was no necessity for any adjustment. They submitted a useful report by an experienced actuary, Mr Mason. He dealt with the increase in the RPI and the National Average Earnings Index ("NAE") over the years 1991 to 1998. He referred to these dates because it is over this period that the four editions of the JSB guidelines have appeared. He indicated that during that period the RPI rose 21.6% while the median increase in the NAE for men was 30.7%: a difference of approximately 9%. He also pointed out that over the same period the rise in the top of the brackets of awards contained in the JSB guidelines had increased in a number of cases faster than the RPI. He gave the following figures : Rise in top of bracket awards September 1991 to August 1998 - JSB Guidelines Vibration white finger serious 228% Minor brain damage 33% Vibration white finger minor 213% Simple fracture of nose 33% Mesothelioma 50% Quadriplegia 30% Minor head injury 50% Very severe brain damage 30% Fracture of index finger 46% Minor back injury 30% Severe psychiatric damage 43% Paraplegia 29% Severe back injury 40% Very severe ankle injury 28% Minor neck injury 40% Complete loss of sight in one eye 25% Below knee amputation of one leg 38% Moderate back injury 23% Partial hearing loss 38% Moderate neck injury 20% Above knee amputation of one leg 33% Significant female facial scarring 16% Many more brackets appear in the JSB guidelines. However, naturally Mr Mason wanted to make the point that in these cases awards not only exceeded inflation but also exceeded the median increase in the NAE.[81]Mr Stewart QC in his submissions on behalf of the defendants developed a sustained attack on the reasoning of the Commission. He was particularly critical, we consider with some justification, of the ONS survey, in part relying on the reports of Mr Rothman. He also made criticisms about the other reasons upon which the Commission had based its report. The exception to the defendants' attack on the Commission's reasoning was in relation to the result of the Commission's consultation in so far as it dealt with the higher levels of award. It was accepted that there was a section of the profession and the judiciary who thought these awards were too low. Conclusions of the Court[82]We have already indicated that it is our responsibility, having regard to the material which has been placed before us, to review the general levels of award for PSLA. The conclusion to which we have come makes it clear that the result of our decision will not radically alter the courts present approach to the assessment of damages. This is because we do not consider that it would be appropriate to increase the levels of awards to the substantial extent recommended by the Commission. We are of the opinion that a modest increase is required to bring some awards up to the standard, on which both sides are agreed, namely to a sum which is fair, reasonable and just.[83]We are satisfied that it is in the case of the most catastrophic injuries that the awards are most in need of adjustment and that the scale of adjustment which is required reduces as the level of existing awards decreases. At the highest level, we see a need for awards to be increased by in the region of one third. We see no need for an increase in awards which are at present below £10,000. It is our view that between those awards at the highest level, which require an upwards adjustment of one third, and those awards where no adjustment is required, the extent of the adjustment should taper downwards, as illustrated by our decisions on the individual appeals which are before us.[84]The fact that we have come to this conclusion means that it is highly desirable that the JSB should produce a new edition of their guidelines as soon as possible. We understand that the JSB is already well aware of the importance of this. Pending the publication of the new edition, the present guideline will still remain a valuable tool. The scale of the adjustment which it will be necessary to make is illustrated very approximately by the diagram annexed to this judgment.[85]Our decision as to what should be the position generally and on the particular appeals is very much a judgment made on the basis of all the material and all the arguments which have been placed before us. As discussed in argument, the approach is the same as that of a jury. However, in addition to coming to an overall view, we have formed conclusions about different issues which were argued before us and so we now proceed to deal with these.[86]Our starting point is that it would only be appropriate to interfere with the existing levels of award if we were satisfied that there was a clear need established for this to be done. The Commission's report helped us to come to that conclusion. However, we also required to be persuaded as to the level of intervention necessary, and here we take a different view from the Commission on a substantial amount of the material upon which they relied.[87]It is our view that the Commission attached too much importance to the survey which they commissioned. While it is always easier to observe defects in an exercise of this sort in retrospect, we consider that the defendants' criticisms of the questions which those who were surveyed were asked are justified. The questions do not draw sufficient attention to the fact that very substantial pecuniary damages could be awarded in addition to the sum which the interviewer asked to be identified. It is right that the interviewer asked what should be received for other than financial loss. However, if the survey was to be helpful we would expect the person interviewed to have much more information than he or she was given. We are also concerned about question five. The reference to the increase in the change in premiums charged by insurance companies was not sufficiently explicit. It would also have been preferable for there to have been some indication of the significance of an increase in damages on the resources of the NHS.[88]We recognise the problem of framing questions in an entirely satisfactory manner. The problem caused by giving too much information can be as great as the problem of giving too little information. However, the Commission attached greater significance to the survey than we would. We have reservations whether it is possible to design a survey of this nature which would be capable of doing more than confirming or otherwise in general terms the message provided by other material. This is how we treated the survey. The Commission, while they did make statements indicating a need for caution, did attach much greater importance to the survey than this.[89]In addition, we did not attach as much importance as the Commission to the levels of awards in Northern Ireland. On the other hand, we would attach more importance than the Commission to the levels of award in other Member States of the EU and EFTA countries. Lord Lowry did not regard English awards as providing assistance as to awards in Northern Ireland. The levels in Northern Ireland are linked to the previous levels awarded by juries in that jurisdiction. The fact that juries thought the awards of that level were appropriate for Northern Ireland does not mean that English juries would have come to a comparable decision.[90]The Legal Aid figures were also of limited value because they included pecuniary damages as well as non-pecuniary damages. Professor Hazel Genn's research we regard as being of interest, but again its results are capable of being explained, at least in part, by other reasons for the dissatisfaction with the level of damages than dissatisfaction with levels of damages for PSLA.[91]On the other hand, we were impressed by the response to the consultation. While some of those who responded may have been committed to a cause, as the defendants contend, many others would not have been and the response was a very strong endorsement of the need for an increase in the upper level of awards and the absence of any need for an increase at the lower levels of awards.[92]The increases which have taken place in the expectation of life are also important in considering what is the appropriate level of awards. The effect of the increases in relation to the higher claims can be very significant. In relation to the lower claims the significance will be less great. The changes which have taken place are two-fold. First of all, there is the general improvement in life expectancy. This has a moderate influence on any case where there is a permanent disability. The injury affects the individual for a longer period than it would otherwise do. Secondly, there is the significant increase in the expectation of life of those who suffer from the gravest categories of injuries. These can result in someone with the most serious injuries almost having the normal span of life.[93]It is argued that the latter undoubted change is mitigated by the fact that the methods of treatment today can reduce the pain and suffering and it is possible to provide aids which mean that, notwithstanding the disability, the individual concerned can achieve a degree of activity that would previously have been impossible. This is true, but in our judgment the improvements in treatment and the aids fall far short of compensating the individual for the problems which his or her disabilities create. But for the change in expectation of life, many of those who now survive well past childhood would not have experienced the frustration of appreciating the consequences of their disabilities as they grow up, when they can make a comparison between their situation and that of their young contemporaries who are able to enjoy a full life. There is also the problem of reduction in the limited activities as they grow older. We would here refer to the opinion of their Lordships in West v Shephard and the judgment of Lord Morris at p.351 when he summarised the position in that case in these terms :
"Accepting the estimate as the plaintiff's expectation of life, damages were to be given to cover a period of over 7 years. At the age of 41 everything that life held for her was taken away from her. For a period of about 7 years instead of having life's activities and amenities she will have mere existence but little else, save that, to the extent that I have described, she may have the torment of a realisation of her helplessness. If in some degree she has processes of thought she has the agony and frustration of being unable to convey her thoughts or give them expression. All these matters constitute grave and sombre deprivations for which in my view she is entitled to receive substantial compensation."
[94]The increased expectation of life of those seriously injured primarily affects those who have the most serious injuries. However, because those cases set the top of the tariff, that can have an effect on the level of damages generally. The increase also justifies the widening of the bracket of appropriate damages in the case of those suffering from the gravest disabilities. It is our view that, because the expectations of life will differ depending on the facts of the particular case, it is important that the present brackets of damages for this category of injuries are increased. In addition, there is the effect of the decision in Housecroft v Burnett . The judgment of O'Connor LJ in that case may have been misunderstood. We feel that it could have had an unduly depressing effect on awards in the highest category. We develop this point in our consideration of the appeals in Warren and Annable .[95]Based on the response to the fifth question of the survey, the Commission attached minimum significance to the impact of a substantial increase in the level of damages on the level of insurance premiums and on the resources of the NHS. In our judgment this impact should not be ignored. Insofar as awards are to reflect what the public perceives as fair, reasonable and just, the obvious consequences of the very large increase proposed should not have been so extensively discounted. The position of the public as a whole has to be considered. We do, however, reject the contention that this impact means that there should be no increase. It is a question of achieving the proper balance.[96]The GDP index and the indices dealing with the increases in wage levels do provide support for an increase in awards. It is however necessary to take into account the fact that the JSB guidelines have increased already substantially above the RPI. In addition, over recent years, as a result of greater sophistication in the production of claims for pecuniary loss, many items which in the past would have been considered to be appropriately regarded as general damages are now compensated for by way of special damages. It may, for example, not be possible for a claimant to go on an ordinary holiday, but possible for the claimant to go on holiday if special arrangements are made. Quite reasonably the costs of those arrangements can be included in the schedules of pecuniary loss. The same is true with regard to the adaptation and improvement of the conditions in which the claimant lives and the help which he receives. These are now routinely made the subject of claims for pecuniary loss when that would not have happened in the past. This cross over of damages has to be borne in mind when deciding on the level of increase which is appropriate. There is a risk of double accounting.[97]We have also considered the submissions made by Mr Allan Gore in particular about tribunal awards. We have also in mind the level of awards in those proceedings, which, in this jurisdiction, are still heard by juries. Although the public is involved in making these awards, it is our view that, while awards by tribunals and juries can be higher, sometimes considerably higher, than a judge would award in a personal injury case, the level of awards in these different cases provide little assistance to us in determining the outcome of these appeals. We also do not find assistance in the level of Criminal Injury Compensation awards.[98]We are in agreement with the Commission that damages at the lowest level do not require to be increased. The views of those consulted were very firm on this issue. Their views conform to our own. We would, however, place the level of damages which do not have to be increased at a substantially higher figure than that selected by the Commission. Taking into account our own experience as well as the submissions and material before us, we do not consider that there should be an increase below the figure of £10,000. This conclusion has little effect since if any increase is tapered, the effect on an award below £10,000 would be modest in any event. Numerous cases would have been affected if our decision had been otherwise. This is because the majority of claims are for modest sums so the defendant's insurers would have been adversely affected by any increase which applied to cases below £10,000.[99]As a result of the manner in which this case has been conducted, we have probably been in a more advantageous position to set the level of awards of damages than any court in this jurisdiction has been previously. The exercise which we have performed is not one which should be embarked upon again unless there is real reason to think that once more the level of awards is significantly out of line with the standards which we have identified. The appropriate approach in addition to relying on the current JSB guidelines, is that which has been generally successfully adopted hitherto. Appropriate guideline cases updated by the RPI should be used to find the appropriate level of award.[100]Although we have taken into account in coming to our conclusions the information provided as to the GDP, we do not consider that that index should be treated as a substitute for the RPI. The RPI provides a simple straight-forward measure of the value of money. It is readily understood. The use of the GDP was introduced into these proceedings at a very late stage. The defendants had no opportunity to examine its validity in depth. The appropriate circumstances and the method of its use are more complex than is the case with the RPI, and, while it might be a help in considering whether levels of damages require re-adjustment, it would be inappropriate at this stage for it to be used generally.[101]We now turn to consider the position in relation to the individual appeals. Warren v The Northern General Hospital NHS Trust[102]Luke Warren, the appellant, is now nine years old. He was born at Sheffield Northern General Hospital at 7.25 a.m. on 14th November 1991. His mother, through whom he brings this claim, was admitted to the hospital in labour early that morning. By 5.10 a.m. the appellant was in foetal distress which, as the respondent Health Authority admits, was allowed to continue too long. The appellant suffered brain damage which has caused severe permanent disabilities. In these proceedings he claims damages for the injuries he sustained. On 27th January 2000 Mr Recorder Robert Smith QC, sitting as a deputy High Court judge, awarded the appellant a total figure of £2,911,849, of which £135,000 was attributed to general damages for pain, suffering and loss of amenity. The appellant contends that the award under this head is too low and should be increased.[103]The judge had the advantage of meeting the plaintiff and his parents and seeing him when he was in court to give evidence. He described him as slimly built, physically mature for his age and with a pleasant and happy personality. He noted an extremely strong affection between mother and son.[104]The plaintiff's cerebral palsy impairs all his voluntary bodily movements. He cannot walk even with the aid of a frame but can sit upright on a hard surface. He is able to crawl and manages to change his position in bed. In a limited way he can feed himself. His joints have a full range of movement and his spine has a normal curvature.[105]His mobility and his co-ordination are gravely affected. For example, he cannot oppose his right forefinger and thumb and can only, with difficulty, touch his mouth with his hand. He suffers from recurrent seizures and is subject to chest infections but he is not severely mentally impaired. He attends a school for special educational needs in Spilsby and is looked after by his general practitioner and paediatric services from Boston Hospital. His seizures occur on average once in six months and consist of shaking of the limbs for up to ten minutes. As might be expected, he has moderate learning difficulties and has great difficulty in applying himself to study; he is easily distracted and tires quickly. He can say a few words but they are really intelligible only to those who know him well. He can make himself understood by pointing and by indicating with his eyes. This limitation in his ability to communicate causes him considerable frustration which is likely to increase as his insight into his condition grows.[106]Although his seizures, lack of mobility and chest infection pose some threat to his expectation of life, the judge found on the basis of medical opinion that he would probably survive into his mid-fifties.[107]On these findings the judge considered that an award of £135,000 for pain, suffering and loss of amenity was in accord with current awards for such severe disabilities. He considered that the suffering and loss of amenity was in the same category as that endured by "a mid-scale tetraplegic" and accordingly within the range of damages awarded in Housecroft v Burnett [1986] 1 All ER 332 . Annable v South Derbyshire Health Authority[108]Robert Annable was born at Derby City Hospital on 23rd January 1991. Unfortunately the medical staff there mismanaged the difficulties attending his delivery and he has been severely disabled.[109]He developed post-natal encephalophy with reduced heart rate and seizures. He has cerebral palsy affecting his whole body with spastic, continuous purposeless movements. There is no prospect of any improvement in his condition. He thus depends upon others for all his bodily activities. He needs to be fed and is dependent upon a wheelchair and a walking aid. He cannot sit upright and has very limited hand skills. He can ride a specially adapted bicycle and swim with buoyancy aids but plainly these achievements are of limited significance. His speech is severely impaired and he has mild to moderate learning difficulties. His degree of understanding, however, gives him an insight into his condition. He may be expected to live to the age of forty-five years so that he faces a lifetime with the loss of virtually every capacity to enjoy his life. His degree of insight means that he will become increasingly frustrated and his dependence upon others will always be a source of anxiety to him.[110]In his case the judge approved an award of £135,000 on the same basis as the award to Luke Warren. This appellant also contends that the award should be increased. Summary[111]Luke Warren and Robert Annable have suffered such serious injuries at birth that they have lost virtually all the means of enjoying life. Their loss of amenity is almost total. They can take pleasure from the company and affection of their parents and their family but they will miss the joys of childhood and all the expectations, hopes and ambitions of adolescence. Pain is not a feature of their injuries but they are bound to suffer from feelings of frustration and anxiety as they increasingly realise the extent of their handicap and disability, their inability to share life's pleasures and their dependence on others for their basic needs. The Submissions to the Recorder[112]Counsel for each of the appellants submitted that the recorder ought not to regard the decision of this court in Housecroft v Burnett (supra) as imposing a ceiling on awards for general damages for pain, suffering and loss of amenity for cases of the most severe injury. They also argued that, on the basis of the recommendations in the Commission Report and in particular the increased life expectancy of patients suffering such injury, the guidelines in Housecroft's case should in any event be substantially increased.[113]The recorder accepted these submissions but considered that it was the function of this court and not a court of first instance to disturb carefully formulated guidelines. He expressed the opinion that the figure he had awarded to the appellants of £135,000 did not represent appropriate compensation for the very severe injuries they had suffered and failed to reflect the facts that money as represented by wages and salaries had outstripped the RPI, that seriously injured patients now could expect to enjoy an increased life expectancy and that the figures awarded by courts for very serious injuries were regarded as substantially too low by the majority of those consulted by the Commission. If he had felt able to do so, he would have increased the award to £200,000 in each case.[114]Although it appears that the decision in Housecroft v Burnett has come to be regarded as setting conventional limits in cases of the most severe injury, O'Connor LJ made it clear that the court intended to set a bracket only for the particular kind of injury suffered by the plaintiff in that case, i.e. a typical middle of the road case of tetraplegia. He cited from Lord Diplock's speech in Wright v British Railways Board [1983] 2 AC 773 (already set out in paragraph 43 herein).[115]Further in his judgment O'Connor LJ made it clear that he did not intend his award or indeed his bracket to be taken as a ceiling for all cases of severe injury. He said (at p.338b-d) :
"The cases show that this is a typical middle-of-the-road case of tetraplegia. These are cases where the injured person is not in physical pain, is fully aware of the disability, has an expectation of life of 25 years or more, powers of speech, sight and hearing are present, and needs help with bodily functions. The factors which operate to make the case one for awarding more than average are physical pain and any diminution in the powers of speech, sight or hearing. The factors which operate to make the case one for awarding less than average are lack of awareness of the condition and a reduction in expectation of life. These factors often cancel each other to a greater or lesser extent, especially where there is severe brain damage."
[116]No doubt the terms of this judgment influenced the Judicial Studies Board when in the 4th Edition of Guidelines for the Award of General Damages it suggested a bracket updated by RPI of £120,000 to £150,000 for quadriplegia. The fact that the upper limit of the Board's bracket for very severe brain damage of £110,000-£150,000 was the same would have supported an argument that it represented a ceiling in the case of the most severe injuries generally.[117]In the course of our review of the level of damages generally it seemed to us that the bracket appropriate for injuries of the utmost severity should be widened to give greater flexibility. The loss of amenity in such cases may differ markedly from case to case, particularly where the extent of suffering depends on the degree of awareness of the deprivation. The deprivation too may vary widely.[118]With these factors in mind we consider that the bracket for such injuries should be increased so it starts at £150,000 and rises to £200,000. The Awards to Luke Warren and Robert Annable[119]We have already described our assessment of the degree of the suffering and loss of amenity of these two appellants. We think the recorder was correct to treat them as deserving the same award of general damages.[120]In their cases the lack of awareness of their condition is not cancelled out by a reduction in their expectation of life. They will suffer the frustration of being unable to control their movements and being dependent on others for many years to come. So far as money and technology can do so, the award for special damages has provided some aids to alleviate the impact of their most severe impairments, but life's activities and amenities are in their case so curtailed that the loss of amenity remains very grave indeed. Setting a value in money terms on what they have lost is impossible. But, judged by comparison with the disabilities of a tetraplegic who may also benefit from scientific aids, their loss of amenity is accompanied by loss of intellectual faculty which reduces their ability to compensate for their loss by other achievements however limited. Their loss endures from birth until well into middle age. Had we been asked to assess in percentage terms the degree of their deprivation, we would have placed it at the level of 85-90%. This would suggest a level of damages midway within a band of between £170,000-£180,000. Accordingly we consider that they should each receive £175,000. Ramsay v Rivers[121]Ethel Ramsay, the Claimant, then aged 44, was severely injured in a road traffic accident on 25th May 1985. She sustained a head injury which rendered her deeply unconscious, together with fractures of three ribs, a comminuted fracture of the mid shaft of the left femur, fractures of her pubic rami, rupture of the spleen, a large haematoma around the left kidney and bruising of the left ovary and the pancreas. There were also lacerations of the scalp, left and upper side of the neck and the knees and feet.[122]The chest injury resulted in a left sided pneumothorax with fluid in the left side of the chest cavity. Initially the lungs had to be ventilated artificially. The ruptured spleen had to be removed and the haematoma caused impaired function of the left kidney. The injuries were life threatening. The head injury in particular was grave. Mrs Ramsay remained deeply unconscious and by 13th June 1985 was still only responding to painful stimuli. She gradually started to recover consciousness and by 12th July 1985, some 1½ months later, she appeared to be able to hear and see, but was not giving an individualised response to staff or visitors.[123]Thereafter her recovery continued, but she has been left with substantial disabilities. She has a dense left hemiparesis resulting from her head injury with the consequence that she has no useful function on her left side at all, the left arm being held across the body in a tightly flexed position and the left leg being stiff and spastic with little movement. Her right side is strong but she "is extremely wobbly" with the right arm and leg, and has begun to develop (unconnected with the accident) arthritis in her right hand. She is and will remain confined to a wheelchair. She is able to move the wheelchair only by digging her right foot into the floor and then guiding the direction of the chair with her right hand. This limited facility may reduce if the arthritic condition in her right hand deteriorates.[124]Mrs Ramsay is dependent upon her carers for virtually every task, requiring assistance with the toilet, dressing and undressing, having a bath or a shower, taking a drink and cutting up her food. She has to be helped for transfer to and from her wheelchair. She is incontinent of urine.[125]Her memory and concentration are impaired and she is occasionally disoriented as to time. She enjoys watching television programmes but finds it difficult to remember episodes from one to another. She has some impairment of vision with poor control of eye movements to the right and left, so that she has to turn her head to look right or left. She reads with difficulty.[126]Her speech is dysarthric, though her comprehension is relatively intact. Her speech can be understood by those who know her and are prepared to be patient and listen, but she has difficulty communicating with strangers unless they are prepared to make an effort. She is, however, able to respond rationally and intelligently and has a wry sense of humour. She enjoys the company of others but spends a substantial amount of time by herself.[127]She can be very demanding on her carers and become irritable and frustrated with other people. She has little if any sense of the value of money, and is impulsive and over generous with it. Nevertheless she has clear insight into her limitations, even though she may on occasions underestimate the difficulties which her behaviour creates for others. She has frequently expressed the view that life is not worth living and she has no interest in it, a view which the medical evidence suggests is not a sign of depression but a rational comment on her condition.[128]She remains fearful of travel in motor cars and has a low tolerance for traffic noise. Her life expectancy is normal, being 80.5 years as assessed at the date of trial in July 1999 when she was 58.[129]Mrs Ramsay spent some 9 years in what is described in the judgment as a locked ward at Knowle Hospital, Farnham: a ward designed for patients with far more mental and behavioural disability than she suffered. In 1995 she was able to move to a home in Scotland where her family then still lived.[130]The medical evidence at trial was that her present condition was stable and unlikely to improve. She required constant care and attendance but no input from medically qualified carers.[131]On the basis of these findings it is understandable that the judge, His Honour Judge Dean QC, sitting as a High Court Judge, found that her quality of life had been very seriously diminished by the accident. He concluded in a reserved and carefully considered judgment that her case fell within the bracket of "moderately severe brain injury": £90,000 - £110,000 as set out in the JSB Guidelines. It was submitted to him that she should be awarded general damages beyond the upper limit of that bracket, particularly having regard to the earlier part of her treatment with numerous invasive surgical treatments and many years in an unsuitable ward. It was submitted to him that the proper conventional award was £125,000 - £130,000. The judge declined to accept this submission and awarded the Claimant general damages of £110,000 at the upper end of the JSB Guidelines bracket, together with a further £270 for inflation.[132]The judge gave leave to the claimant to appeal on the grounds that general damages should be increased in the light of the Commission report, but did not give permission to appeal in respect of the award that he made on a conventional basis. Permission to appeal on the basis that the award was too low in any event is now sought from this Court. There are also appeals in relation to pecuniary loss and interest, and a cross appeal in relation to costs which were not before this Court.[133]Mr John Leighton-Williams QC submitted on behalf of the claimant that applying the existing guidelines, the award should have been £120,000 for general damages. The case fell at the very top of the moderately severe brain injury bracket and the judge should have added to the figure at the very top of the bracket an additional sum in respect of the claimant's other injuries, but in particular the fact that she had spent some nine and a half years in a locked ward when her condition did not require that. He conceded that the judge referred to this matter in the course of his judgment, but submitted that he did not spell it out, thereby indicating that he could not have appreciated its seriousness and hence placed enough importance upon it when assessing the level of the award. The judge however recited the claimant's stay in the locked ward in his judgment at page 2 and took it into account particularly at page 7 when he said:
"Furthermore, [sic] that for a considerable part of the time after she moved to the Knowle Hospital, she was detained, as is the fact, in a locked ward in a hospital which was really designed for patients with far more mental and behavioural disability than Mrs Ramsay suffered. This was due to lack of resources and lack of any other accommodation available in the Southampton hospital scheme."
[134]We consider that this passage shows that the judge did give full and proper consideration to this particular feature of Mrs Ramsay's claim. In taking it into account the judge had to consider the medical evidence before him which showed that the claimant was severely brain damaged, with some intellectual impairment and behavioural problems. There is no doubt that from an early time she was anxious to move from the ward to Scotland but the medical evidence gives some reassurance that she was at times able to cope well with her presence in that ward. For example, in his letter of the 23rd October 1992 Dr Shawcross, the consultant psychiatrist, records that Mrs Ramsay is a "popular member of the ward and in general her mood is now good". There is no doubt that she desired to go to Scotland and that would have enabled her to have, as Dr Shawcross said, a better quality of life. This indeed proved to be so and she improved substantially when she moved to Edinburgh.[135]Mr Terence Walker on behalf of the defendant submits that the award is appropriate as Mrs Ramsay still has the capacity to enjoy conversation, television, crosswords, word games, and reading the newspaper. She is not clinically depressed, in good general health and remains very independent. He also relies upon the fact that when the first schedule of losses was served prior to trial in about March 1996 the figure contended for the general damages on the claimant's behalf was £105,000.[136]Even if the award was somewhat low it could not in any way be said to be wholly erroneous or wrong in principle, he submits. Mr Walker also directed our attention to the list of cases in Kemp & Kemp, Volume 1, chapter 19, appendix 1, where the Court of Appeal had increased the judge's award in respect of pain, suffering and loss of amenity. The average percentage increase over the amounts of the awards there cited was 60.21% and the lowest increase was 25%. This reinforces the view he submits that the award here is not one with which this court should interfere.[137]We are satisfied that the judge correctly placed this case at the top end of the moderately severe brain injury category set out in the JSB Guidelines. He took into account in his assessment the fact that the claimant had suffered severe multiple injuries, the effects of which had been subsumed in the gravest of her injuries, the severe head injury and brain damage. In considering the level of the award he paid express regard to Mr Leighton-Williams' submission that the multiple injuries, involving invasive surgical treatments and the many years wrongly spent in a locked ward in a hospital for patients with more mental and behavioural disabilities than she had, were factors which should persuade him to go beyond the top of the bracket.[138]We see no error in the manner in which the judge made his assessment or the weight he attached to the factors he had to take into account. We do not regard his award as erroneous or one with which this Court should interfere. Permission for leave to appeal to the claimant in respect of the award on a conventional basis is refused.[139]We do however conclude that in this case there should be an uplift of damages in accordance with the conclusions set out earlier in this judgment. We are of the view that Mrs Ramsay's general damages for pain suffering and loss of amenity should be increased from £110,270 to £138,000, which represents an increase of approximately 25%. Tracey Kent v London Ambulance Service[140]On 16th February 1991, the claimant, Mrs Tracey Kent, who was then aged 26, suffered from a respiratory arrest which led to an anoxic expisode. This has left her with a number of features of brain damage. As a result of the injury she sustained on 16th February 1991, she is a patient within the meaning of the Mental Health Act 1983. She brought proceedings against two doctors and the London Ambulance Service. Her claim was tried by Turner J. who gave judgment on 16th July 1999. The claims against the two doctors were dismissed. The claim against the London Ambulance Service succeeded. Mrs Kent's case against them was that they were negligent in failing to respond with sufficient speed to an emergency call from one of the doctors. If they had responded with appropriate speed, there would have been no respiratory arrest and no brain damage. The judge awarded her damages of £362,377 including £80,000 general damages for pain, suffering and loss of amenity. The appeal of the London Ambulance Service against the judge's findings against them on liability was dismissed by the Court of Appeal on 3rd February 2000.[141]Mrs Kent has cross-appealed contending that the awards for general damages and for some items of pecuniary loss were too low. She was given permission to appeal by Auld L.J. on 29th October 1999. The matter presently before this court concerns the award of general damages only.[142]Mrs Kent was born on 10th July 1964. She was married to Gary Kent. In February 1991, they had a child, Gemma, born on 10th August 1988. From the age of 17, Mrs Kent suffered from asthma and sometimes had acute attacks which required several hospital admissions. On 16th February 1991, she telephoned her general practitioner and said that she was feeling wheezy and might require antibiotics. Dr Griffiths attended her home at 4 p.m. At 4.25 p.m., when her condition was acute, Dr Griffiths telephoned for an ambulance to take her to Queen Mary's Hospital immediately. The ambulance did not arrive until 5.05 p.m. She was taken to the hospital. At 5.15 p.m. she suffered a respiratory arrest just before her admission to hospital and while she was still in the ambulance. She was seen with her jaw clenched. She was blue and had stopped breathing. She was transferred to the intensive care unit. As a result of the respiratory arrest, she suffered cerebral hypoxia. She was at the time 12 or 13 weeks pregnant with her second child.[143]On her arrival at Queen Mary's Hospital, she was given endotracheal intubation and ventilation and transferred to the intensive care unit. Ventilation was discontinued on 19th February, but started again on the same day. On 1st March, she underwent a bronchoscopy. She began to wake up and open her eyes on that day. On the following day she was seen to be trying to communicate. On 4th March, she had a grand mal epileptic fit lasting 3½ to 4 minutes, followed by another fit lasting 5 to 6 minutes and a third fit lasting 20 minutes. On 5th March, she suffered a miscarriage. On 7th March, she had a tracheostomy and a Hickman line was inserted. The tracheostomy tube remained in place until 15th March. She ceased to need continuous ventilation on 10th March 1991.[144]She remained in intensive care for 4 weeks until 18th March, when she was transferred to a ward. Neurological review on 3rd April confirmed that she suffered from memory problems and speech difficulties. On 5th April, the Hickman line was removed in the operating theatre, having been stuck. She was discharged home on 12th April. She was discharged from outpatient care on 4th September 1991. She was then described as making slow improvement, but she still had profound memory losses and episodes of depression.[145]Mrs Kent suffered a second miscarriage in August 1993. After this, she suffered depression with thoughts of suicide. On 3rd October 1994, she gave birth to her second child. On 17th November 1997, she suffered an episode of confusion. On 20th November 1997, she collapsed and was admitted to Queen Mary's Hospital through the Accident and Emergency Department. When she was seen on 25th November 1997, she was noted to have definite seizures, generalised loss of consciousness and incontinence. She was transferred to King's Neuroscience Centre on 28th November 1997, where she was observed to be confused with her cognitive function impaired. She was discharged on 5th December 1997.[146]Mrs Kent can remember nothing of the events of February 1991. She had to be reintroduced to people she had previously known and had to have the previous 5 years of her life recounted to her. She could not remember her marriage, her pregnancy or that she had a 3 year old daughter. She had to be taught basic tasks again such as boiling potatoes. Her memory impairment caused difficulties in her daily life. For example, she would go back to a shop and repeat the same shopping on the same day. Her memory span was only 5 to 10 minutes. This caused her frustration and led to depression and ideas of suicide. She had difficulties in relating to her daughter Gemma. Her husband found it impossible to live with her and left her in 1995. She had sufficient understanding to know that her husband was embarrassed and ashamed of her. After the episode in November 1997, her two children moved to live with their father. Under a subsequent court order, Gemma continued to live with her father but the younger child, Hayley, remained with her mother.[147]Mrs Kent remains extremely vulnerable and requires considerable help with non-routine tasks or unfamiliar travel. She continues to suffer serious short term memory loss. She is aware of her disability. She understands the effect it has had on her family and the upbringing of her children.[148]Neurologically she has suffered hypoxic brain damage as a result of a severe asthmatic attack. Neuropsychological testing in 1996 showed that she had suffered severe cognitive impairment. There was no significant change when she was tested again in 1998. She has psychological difficulties and an established diagnosis of epilepsy. She has no remaining earning capacity. Her ability to look after her younger daughter has depended on her receiving virtually daily support from her mother, who is now too ill to provide this care. The organisation of her finances, correspondence and other matters of this kind have been done by her sister, who is in full time employment and unable to continue these tasks. The level of support that she will require is permanent and the disabilities from which she suffers are unlikely to improve.[149]In awarding her general damages of £80,000,

the judge said:

"There is in this case, unusually for a moderately severe brain injury no physical deficit. That is apart from epilepsy. The adverse effects are all to do with her level of intellectual functioning and the epilepsy. This is not to diminish their importance. In my judgment, if classification is what this part of the exercise is designed to achieve I would classify this case as being one in which there is moderate brain damage which has produced moderate intellectual deficit coupled with insight and epilepsy. Earning capacity has been destroyed and the claimant is dependent to a significant extent on the support of others for the integrity of her daily living."
[150]The range of award in the JSB Guidelines for moderate brain damage is £65,000 to £90,000. It is submitted on her behalf that the judge's award was too low. This was, or nearly was, moderately severe brain damage. In addition she has suffered psychiatric damage and a miscarriage and the award should be increased somewhat for loss of congenial employment. It is submitted that the award on existing guidelines should have been between £90,000 and £100,000. It is submitted that the injury has had a catastrophic effect on her life. She has insight into her condition and understands how it has destroyed every important aspect of her life.[151]The defendants agreed before the judge that the correct classification of Mrs Kent's condition was moderate brain damage. They contended that the appropriate bracket was that referable to moderate to modest intellectual deficit and that the award in this case should be in the middle or at the upper end of a bracket of £40,000 to £65,000. Mrs Kent suffered no physical deficit or damage to her speech or senses. The top of the bracket contended for on her behalf included cases of severe intellectual deficit, which she does not have.[152]It is submitted on behalf of the defendants that on the judge's findings and the agreed evidence before him, he placed the claimant's case as high as he could within the relevant bracket. The judge had the benefit of seeing Mrs Kent give evidence and he also heard evidence from care experts as to her abilities and needs. It is submitted that this court should not review or interfere with his award, which was at the most generous level possible and cannot be said to have been manifestly wrong. It is submitted that this is so, even if the judge intended to include in the award some element of loss of congenial employment.[153]We are not persuaded that the judge's award of £80,000 general damages should be increased under existing guidelines. Although there was a case to be made before the judge for a somewhat higher award, we see no proper basis for interfering with his award on appeal. The judge considered and took account of all relevant evidence and was entitled to reach the conclusion which he did. However, applying the principles set out in the main part of this judgement, we consider that Mrs Kent's award of general damages should be increased to £95,000 an increase of just under 20%. To that extent, this part of her appeal is allowed. Rees v Mabco[154]The claimants are the personal representatives of Mrs Florence Base who died on 8 September 1993, aged 74, of malignant mesothelioma, an asbestos induced illness. Mrs Base was the wife of Robert Base, who worked for John Perkins and Co Ltd, (later known as MABCO (102) Ltd, the respondents) from about 1946 until about 1968 and during the course of his employment he was negligently exposed to asbestos dust. It was the claimant's case that the deceased was exposed to asbestos dust by virtue of the fact that she would regularly wash her husband's work overalls and that as a result she contracted mesothelioma which was diagnosed in February 1992 and from which she died about 19 months later.[155]His Honour Judge Bursell QC in the Bristol County Court on the 17th May 1999 was invited by Counsel for the claimants to assess damages on the basis of the Commission recommendations. The Learned Judge declined and proceeded to assess damages in the normal manner, applying the JSB Guidelines. He described the case as tragic and awarded £45,000 for general damages which was the upper limit of the bracket for this type of injury. He granted leave to appeal to enable the Commission point to be argued before this Court.[156]The award of £45,000 was at the upper limit of the bracket. This is not surprising in view of what she suffered during the final months of her life. On 11th January 1993 Mrs Base was admitted to the Bristol Oncology Centre for pain control. She was given radiotherapy and discharged 14 days later. Thereafter she was prescribed the pain killer Co-dydramol and the steroid Dexamethasone. A month later her case was reviewed in outpatient clinic when it was noted that she was extremely breathless. She was admitted to hospital with a chest infection which was treated with an antibiotic. However, because she continued to have pain she was prescribed Morphine. She was discharged from hospital on 3rd March 1993. In the ensuing months she saw her General Practitioner on 24 occasions because of increasing pain, breathlessness and nausea, when she was treated in line with advice from the hospital physicians.[157]In April 1993 she was re-admitted to the Bristol Oncology Centre. Three hundred and fifty millilitres of fluid was removed from the chest and on discharge she was taking the pain killer DF118, the steroid Prednisolone, Gaviscon for nausea, and Temazepam as a hypnotic. In May she was re-admitted for further fluid to be drained from the chest. She was re-admitted in June when she was prescribed Morphine Elixir and discharged after 5 days. There were further admissions in July. On the 10 August 1993 she was admitted to St Peter's Hospice, Bristol, for terminal care. She was complaining of increasing shortness of breath, nausea and vomiting which had not been responding to medication. It was recorded that she was very frightened that her death would be imminent and was anxious to sort out her affairs. She was discharged receiving a continuous infusion of Diamorphine, Haloperidol, Hayalase and Dexamethasone, administered by a pump, and Temazepam at night.[158]Three days later she was re-admitted to Bristol Oncology Centre because of a further deterioration. Her condition was very poor and deteriorating. She was treated with oxygen and her pain was controlled until her death. The post mortem examination confirmed that the cause of death was malignant mesothelioma occupying the right side of the chest but which has also extended directly down into the liver.[159]With this history of extreme pain, acute suffering and obvious distress, an award was justified at the upper end of the bracket. Mr Allan Gore, on behalf of the claimants, does not contend that there is any ground to raise the award except in order to reflect the Commission recommendations.[160]In accordance with the conclusions recorded above we consider that an uplift of approximately 10% would be appropriate. Accordingly we allow the appeal and substitute the figure of £50,000 for general damages. Schofield v Saunders & Taylor Ltd[161]On 9th July 1999 Mr Justice Coleman awarded the claimant, Mrs Mavis Schofield, the widow and administratrix of the estate of her deceased husband the sum of £110,000 including the sum of £40,000 by way of general damages for pain, suffering and loss of amenity experienced by the deceased.[162]Mr Keith Schofield died from mesothelioma on 15th October 1996, a few days short of his 58th birthday. The deceased was exposed to and inhaled quantities of asbestos dust during his employment with the defendants and in particular when removing asbestos lagging from pipes at the Manchester Royal Infirmary.[163]At the hearing the parties stated that they had agreed between themselves an overall valuation for the case and that the appropriate valuation of general damages was £40,000. The Learned Judge was invited to uplift the agreed sum to reflect the recommendations of the Commission's report. He declined to do so saying that in his judgment this must be left to the Court of Appeal whereupon he granted leave to appeal on this point.[164]Mr Nicholas Hinchcliffe QC, on behalf of the claimant, submitted that the award on the conventional basis should be increased by a multiplier of two. Mr Dermod O'Brien, on behalf of the defendants, submitted that because the claimant did not dispute that the award was in line with current guidelines, the Court had no power to review the award and in any event, should not do so.[165]Reflecting the conclusions set out above, we allow the appeal, we apply the tapered scale resulting in an uplift of 10% and increase the award to £44,000. Heil v Rankin[166]John Heil, the claimant, was a police constable. He claimed damages for personal injury against Graham Rankin and the Motor Insurers' Bureau arising out of an incident on 15th April 1993 in Taunton. The defendants admitted liability and the trial concerned only the assessment of damages. This was heard by Mr Daniel Brennan QC, sitting as a deputy judge of the High Court, who gave judgment on 19th February 1998. The total damages resulting from this judgment were £32,837.51. This included £6,000 as general damages for pain, suffering and loss of amenity. Mr Heil appeals against that award. He also has other grounds of appeal which are not for present consideration.[167]Mr Heil was aged 44 at the time of the hearing before the deputy judge. He started as a police officer in 1975 and became a dog handler. In 1987 he was involved in a serious criminal incident at Chard in Somerset. A man called Davies fired a shotgun and killed Mr Heil's dog. The shot, or one of the shots, went very near to Mr Heil. Another armed policeman who was present was then obliged to shoot Davies, who died in consequence. It was an incredibly frightening incident and Mr Heil realised during it that he might be killed.[168]After this first 1987 incident, Mr Heil continued his employment as a police officer until, in 1993, there occurred the incident in Taunton with which these proceedings are concerned. On that occasion, he was going to stop a drunken driver, Mr Rankin. Mr Heil stood in a roadway indicating that the driver should stop, but the driver drove on. It was not clear whether the driver was acting deliberately or was trying to brake, but the result was that he hit Mr Heil and knocked him down. Mr Heil got to his feet and went to the vehicle, which by then had stopped. He tried to reach for the ignition keys, but, as he was doing so, the driver drove off at speed. This incident caused him minor physical injury, but triggered a condition of post traumatic stress disorder into a more florid form. The condition had initially manifested itself after the first incident in 1987, but it was after the second incident that it became worse. The second incident was frightening, but it was obviously much less serious than the first. As the deputy judge said, if the case had concerned the second incident only, everyone would have approached it as a matter of some seriousness. It appeared less so only in comparison with the traumatic first incident.[169]Before the incident in 1987, Mr Heil was regarded as a capable dog trainer and a very keen and competent police officer. After the first incident, he continued his employment and received consistently good reports. After the second incident in April 1993, he returned to work about a month later. By September 1993 he left work with a medical certificate describing him as suffering from anxiety. He received treatment, returning to work in the spring of 1994 on light duties. But, in September 1994, he was certified as permanently disabled because of post traumatic stress disorder. On 19th October 1994 he was discharged from the police on the grounds of permanent ill health. Since 1994 he has worked intermittently in a variety of jobs. Towards the end of 1997 he was treated at a local hospital for intermittent depression. The treatment involved anti-depressant drugs and some counselling.[170]There were difficult issues of causation and Mr Heil has grounds of appeal against the judge's decision on this topic. For present purposes, it is sufficient to say that the medical experts who gave evidence agreed that Mr Heil suffered from post traumatic stress disorder after the first incident in 1987.

The judge described his condition as follows:

"So the picture thereby established was of a condition of Post Traumatic Stress Disorder with the common symptoms of intrusive and distressing recollections; intense distress at trigger events and sights in relation to the first incident; almost an obsessive desire to do his job well, but at the same time losing interest in his family; difficulty in sleeping; he turned to drink and gambling; he was hyper-vigilant and so on. At the time of the second incident, he was, therefore, coping with his job but inadequately coping with his life generally, afflicted as he was by a condition of Post Traumatic Stress Order."
[171]After the second incident in 1993, he became very aggressive, very moody, difficult with the children and a very different man. The judge said that he suffered from these problems with varying degrees of intensity and some degree of improvement. He did work on occasions. He did receive medical treatment. The judge described his condition at the time of the hearing as significant, but not severe.[172]Both medical experts agreed that Mr Heil suffered from post traumatic stress disorder after each incident. So each incident produced separate post traumatic stress disorder. In addition, the evidence was that after the second incident he suffered from continuing, intermittent depression, which one of the experts described as mild in recent times. Both experts agreed that the 1987 incident was a major stressor event. They agreed that after 1987 he was in a state of denial, in that, by continuing to do his job as enthusiastically as he could, he was overcoming much of the condition which ought to have been allowed at some stage to become florid and to be dealt with by himself or by counselling.[173]The deputy

judge considered the medical evidence and made findings on it which included:

"(1) The 1987 incident caused Post Traumatic Stress Disorder, but not so as to disable the Plaintiff from employment. The more florid condition of Post Traumatic Stress Disorder was being repressed by his dedication to his work. (2) The 1993 incident triggered that florid development of Post Traumatic Stress Disorder originally caused by the 1987 incident. (3) The 1993 incident also caused injury as follows: Firstly, a moderate condition of Post Traumatic Stress Disorder; secondly, depression and, thirdly, by triggering a worsening of the original PTSD, it exacerbated that original disability."
[174]The judge found that it was unlikely that the second incident by itself would have led to any loss of employment or earning capacity if there had been no 1987 incident. He proceeded to make findings in relation to loss of earnings, which Mr Heil challenges in his notice of appeal but which are not for present consideration. In short, he awarded him 25% of his past and future loss of earnings to retirement in 2003. The judge considered that Mr Heil was capable of rapid improvement enabling him to return to work in the near future. The judge expressed his conclusion on the appropriate award of general damages in these terms:
"I am going to turn now to general damages. This is an assessment of the general damages arising from the second incident. As I have said, it caused a moderate condition of Post Traumatic Stress Disorder; secondly it caused depression; and, thirdly, exacerbated the previous injury, but did not itself cause long term disability. I do not find that the 1993 incident caused a specific loss of congenial employment or loss of earning capacity because I regard it as a trigger event, and my analysis of the loss of prospects for the future bespeaks the potential for such trigger event or events having occurred anyway."
[175]On these findings, the deputy judge assessed general damages resulting from the 1993 incident at £6,000.[176]It is submitted on behalf of the claimant that the award of general damages should be increased to £25,000 under existing guidelines. The submission is that his condition should properly be regarded as at the top end of the "moderately severe" class. It is further submitted generally that all existing guidelines for psychiatric injury are too low.[177]It is submitted on behalf of the defendant that the judge was correct to find that the post traumatic stress disorder following the Taunton incident was in the "moderate" JSB band, for which the guideline figures are £3,500 to £9,500. It is submitted that the defendant did not cause Mr Heil to suffer from post traumatic stress disorder, because he already had that condition. All that the Taunton incident did was to cause a temporary exacerbation of a pre-existing condition. It is submitted that the major features of post traumatic stress disorder which attract damages for pain, suffering and loss of amenity had already been inflicted on Mr Heil by the Chard incident. He suffered flashbacks of the shooting incident (but not of the Taunton incident), intense distress at matters associated with the town of Chard, personality change, mood swings, gambling, alcohol abuse, loss of interest in his family, suicidal thoughts and sleeping difficulties. The defendants accordingly submit that the judge's award of £6,000 was a correct assessment under current guidelines.[178]The parties are agreed that, because of complications arising from other grounds of appeal which are not for present consideration, this court should not determine whether the deputy judge's award of £6,000 was or was not correct under existing guidelines. In these circumstances, although we can see the possibility that a court might in the future be persuaded in an appropriate case or cases that the existing guideline brackets for psychiatric injury require expanding, we are not of the view that our present consideration of this appeal enables us to consider that question. The one conclusion that we do reach, applying the principles set out in the main part of this judgment, is that, upon the deputy judge's findings of fact and law, an award of £6,000 general damages should not be increased as part of a general revision of awards in the light of the Commission's recommendations, since it is below the level of seriousness at which we consider that any general increase should operate. All other considerations are reserved to the constitution which hears the remaining grounds of appeal. Connelly v Tasker[179]The claimant, John Connelly, sustained a whiplash injury and two fractured ribs in a road traffic accident on 19th February 1998. On 4th February 2000 His Honour Judge Phipps sitting at the Liverpool County Court gave judgment for the claimant on the issue of liability, and awarded him £15,292.63 damages, including general damages assessed in the sum of £3,000.[180]The judge gave no reasons for his award of £3,000 for general damages. He simply stated that the figure for general damages which counsel for the defendant had put to him was precisely the same figure that he had reached having read the medical report, and hence that general damages were assessed £3,000.[181]The judge appears to have found that the case fell within bracket 6(A)(c) of the JSB Guidelines which suggests awards up to £3,500 for :
"Minor soft tissue and whiplash injuries and the like where symptoms are moderate and a full recovery takes place within at most two years."
[182]It is submitted that the award of £3,000 for general damages is wholly erroneous and should be increased to £4,500 on a conventional assessment. The claimant seeks permission to appeal the award on this basis and on the basis that the damages should be increased in accordance with the recommendations of the Commission.[183]The claimant, who was 50 at the time of the accident was in considerable pain for some days. He stayed in bed for a week, took analgesics, and was off work as a company director for a property management agency for some six weeks. The worst of the pain lasted for about six weeks after which it only subsided very gradually. Initially the claimant experienced `flashbacks' and sleep disturbance.[184]The claimant restricted himself to office work for some three months, after which he went back to doing his normal work which included external maintenance.[185]He wore a neck support for the first six weeks whilst the pain was bad. The pain in the chest from the fractured ribs lasted some eight months. The period of incapacity lasted for about two months.[186]When he was examined by Mr Michael Cavendish, the consultant orthopaedic surgeon, on 18th November 1998, some nine months after the accident, his chest no longer caused him pain, but his neck still hurt him, and felt stiff in the morning when he got up. He was by then able to do his normal work but had not been able to return to the gym and had lost his confidence in driving. He had as a consequence sold his Porsche and bought a larger vehicle.[187]He then had moderate restriction of all cervical spine movement, particularly on lateral flexion, with pain at the extremes. The claimant had not had any physiotherapy when examined by Mr Cavendish and it was suggested that he undertake a course of physiotherapy to relieve the residual stiffness in his neck. By the time he made his statement on 27th September 1999 the Claimant had still not undergone physiotherapy, though he was said to be waiting an appointment on 7th October 1999. At that time he still complained of a slight restriction in his left shoulder so that he could not extend his left arm around his back to the same extent as his right and had a stiff, aching neck after a heavy day's work about twice a month.[188]The prognosis in November 1998 was that his symptoms should settle within the next six to 12 months i.e. 15 to 22 months after the accident, but that the pre-existing degenerative disease of his cervical spine shown on the radiological report might delay that.[189]It is submitted to this Court that as physiotherapy was still called for nearly two years after the accident, it was likely that the pre-existing degenerative disease had delayed full recovery beyond the two year period.[190]In addition it is submitted that the fracture of two ribs causing several months' chest pain, together with the loss of confidence, sleep disturbance and flash backs which the claimant experienced for some months, took the case significantly beyond the figure of £3,000 awarded by the judge. The proper bracket was 6(A)(b)(ii), namely moderate neck injuries (£3,500 - £6,000) where there has been some exacerbation of a pre-existing unrelated condition with a complete recovery within a few years or where there has been a moderate whiplash with a fairly protracted period of recovery and an increased vulnerability to further trauma.[191]The fact that, on the evidence before the judge, there had not been a complete recovery from the neck symptoms by the time of trial supports the submission that Mr Cavendish's view that full recovery might be delayed by the degenerative disease of the cervical spine had been borne out by events. This in itself was likely to put the claim towards the upper end of the minor neck injuries bracket i.e. damages up to £3,500. The addition of the loss of confidence, sleep disturbance and flashbacks together with the fracture of two ribs causing several months' chest pain suggests an award in excess of that sum.[192]The defendant submits that this case is similar to Wilson v Clarke (1987) Kemp & Kemp K2-176 (but now unreported), where general damages of £1,200, at present value, were awarded for a whiplash injury. This case can, however, be distinguished on the basis that there were no other significant physical injuries, a shorter period of acute pain and suffering, complete recovery in fifteen months and no such additional psychological injuries. The claimant relies upon the case of Bird v Rix (1995) Kemp K2-020 where a full recovery was expected within a few months of trial, some 13 months after the accident. In that case the sum of £3,250 was awarded for general damages in December 1995.[193]The defendant has further submitted that the claimant cannot recover for upset, nightmares or flashbacks as these do not amount to psychological injury. They contend that there is no difference between a case where a person claims psychological injury alone and fails (such as in Reilly v Merseyside RHA (1995) 6 Med LR 246 where the claimants were trapped in a lift for over an hour and suffered fear and claustrophobia) and the case where someone suffers from physical injury and separate "upset".[194]It is correct that in the nervous shock cases, where there is no recognisable psychiatric injury caused but only normal emotion in the face of a very unpleasant experience, damages are not recoverable, but that is a different case to the present, where the loss of confidence, sleep disturbance and flashbacks arose directly out of the accident and were related to the physical injuries caused. Where a duty of care to avoid causing personal injury to a claimant exists, it matters not whether the injury in fact sustained was physical, psychiatric or both. Page v Smith [1996] 1 AC 155 . Psychological injuries consequent upon the accident and physical injuries were a reasonably foreseeable result of the defendant's negligence, and form part of the injuries for which compensation is payable to the claimant.[195]We are satisfied that the award of £3,000 for general damages in this case was inadequate on a conventional basis. A proper sum to compensate the claimant in respect of his whiplash injury, still unresolved at trial nearly two years after the accident, together with the rib fractures and loss of confidence, disturbance and flashbacks, is £4,000 when assessed on the conventional basis then appropriate. Permission to appeal is granted and the appeal on that basis allowed to that extent.[196]Whilst permission to appeal was granted in respect of the Commission argument, that appeal must fail on the basis of the conclusions set out earlier in this judgment. An award in respect of minor injuries in a sum of less than £10,000, as here, does not, in this Court's judgment, justify any uplift.[197]For the reasons already indicated we do not make any order in the Heil Case. In the other cases we vary the awards in accordance with the reasons we have given. Orders:[1]No order in case of Heil[2]Remaining awards varied as per judgment[3]Legal Aid assessment of all Claimant's costs[4]Costs as per separate Judgment (This order does not form part of the approved Judgment) Click here for Picture

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