DAMAGES FOR PERSONAL INJURY
MR: Lunney and Oliphant, pp 894-957
FR: Lunney and Oliphant, pp 881- 894, Chapter 18 ‘How tort works’
Livingstone v Raywards Coal Co (1880) 5 App Cas 25, 39 (Lord Blackburn) — the measure of damages is ‘that sum of
money which will put the party who has been injured, or has suffered, in the same position as he would have been in if he had
not sustained the wrong for which he is now getting his compensation’.
possible tort actions
(a) action by living claimant — C brings action for damages themselves;
(b) action by administrator of deceased claimant’s estate suing in deceased claimant’s name, c.f. Law Reform
(Miscellaneous Provisions) Act 1934, s 1(2);
(c) action by dependants of deceased suing in their own names, but NOTE their action is also derivative, c.f. Fatal
Accidents Act 1976.
components of damages for personal injury
in personal injury cases, C is entitled to recover all loses, both pecuniary and non-pecuniary, that flow from D’s tort.
there is a general principle that only reasonable expenses may be recovered (and that a claimant must ‘mitigate his or her loss’
by acting reasonably), the claimant is nevertheless not obliged to make use of free care and treatment through the National
Health Service; the cost of private care may be recovered: Law Reform (Personal Injuries) Act 1948
1. pecuniary loss (financial) — e.g. loss of earnings, cost of medical treatment, etc.
i. pre-trial pecuniary loss (special damages) recoverable in full with interest — estimate clear-cut;
ii. future pecuniary loss — estimate not clear-cut, e.g. loss of future earnings or earning capacity and the cost of
future care.
c.f. Lim Po Choo v Camden & Islington AHA [1980] AC 174, 182–3 — Lord Scarman summarised the
‘insuperable problems’ arising from the lump-sum rule in compensating for personal injuries:
“The award, which covers past, present and future injury and loss, must, under our law, be of a lump
sum assessed at the conclusion of the legal process. The award is final; it is not susceptible to review
as the future unfolds, substituting fact for estimate. Knowledge of the future being denied to
mankind, so much of the award as is to be attributed to future loss and suffering (in many cases the
major part of the award) will almost surely be wrong. There is really only one certainty: the future
will prove the award to be either too high or too low.”
=> C cannot bring second action on same facts bc their injuries turn out to be worse than originally
estimated, re: damages assessed on ‘once and for all’ basis
if C’s condition deteriorates / improves unexpectedly, that is not significant: Fetter v Beal (1701) 1
Ld Raym 339
NOTE that if C goes to the NHS and so bears no cost, NHS can make a statutory claim for its own
consequential costs against the tortfeasor (even if otherwise this would be pure economic loss): Health and
Social Care Act 2003
BUT no duty to mitigate by seeking treatment on the NHS rather than privately => C is free to opt for
private medical care instead of that offered for free by the state
*** if the only way that treatment can be provided is through the NHS, no claim for private treatment
will be allowed + C cannot claim for the cost of future private medical care but in fact use the NHS
, ‘lump sum’ award — traditionally damages were recoverable once only and awarded as a lump sum, re: the loss was
continuing, the court had to anticipate all that the future held in store for the claimant and adjust the lump sum
accordingly.
=> a personal injury case, the greater the chance of recovery, the smaller the lump sum; the greater the chance
of long-term disability, the larger the payment.
lump sums = still the general rule, payment includes compensation for losses already suffered and future losses;
a. calculation ^ the multiplier/multiplicand method
multiplier = figure representing the number of years the loss will continue (adjusted to take account of
the ‘vicissitudes of life’ and accelerated payment – see below);
multiplicand = figure based on the annual loss (net of deductions) by claimant especially lost earnings
and care costs (depends on C’s life expectancy, career prospects, costs of care).
b. specific issues:
i. gratuitous care
Hunt v Severs [1994] 2 AC 350 — in principle, C can recover compensation for the presumed cost of
care provided gratuitously, e.g. from a partner, relative, charity, etc; C holds payment on trust for the
provider of the care;
facts: C was seriously injured in a road accident whilst riding on the pillion of a motorcycle
driven by the defendant, who admitted negligence. she suffered paraplegia as a result and
subsequently spent long periods in various hospitals. she and the defendant lived together and
five years after the accident they were married
issue: whether C can recover the cost of gratuitous care if the provider of care is also the
defendant.
held: no — C cannot recover for care provided gratuitously by the defendant; because the loss
is really that of the carer rather than of the plaintiff, therefore there could be no claim for such
amounts where the defendant is also the care-giver; because this would require the defendant
to bear the cost of the care twice—once by offering the services, and then again by paying for
them
Daly v General Steam Navigation [1981] 1 WLR 120 — plaintiff could recover the substitute value
of unpaid household services which she could no longer perform as a result of the tort.
ii. deductions — full deduction of collateral benefits, c.f. aim of compensation is to replace what the claimant
has lost.
^ lost income assessed net of tax; court must inquire whether C had taken up alternative (less
demanding) employment after the accident and will only award the difference between the level of
earning if the accident had not occurred and that which C will now earn; various expenses take into
account, e.g. C is saved substantial costs incurred in going to work.
Hussain v New Taplow Paper Mills Ltd [1988] AC 514 — insurance not deducted from payment, nor
money received by virtue of the benevolence of third-parties.
^ the House of Lords recognised two exceptions to the rule requiring full deduction of
collateral benefits (per Lord Bridge): “[T]o the prima facie rule there are two well-established
exceptions. First, where a plaintiff recovers under an insurance policy for which he has paid
the premiums, the insurance moneys are not deductible from damages payable by the
tortfeasor ... Second, when the plaintiff receives money from the benevolence of third parties
prompted by sympathy for his misfortune, as in the case of a beneficiary from a disaster fund,
the amount received is again to be disregarded …”
rationale for the two exceptions:
