Remedies for personal injury and death claims - General damages: pain, suffering, and loss of amenity

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Overview

General damages are essential in personal injury and death claims, compensating claimants for non-economic losses that significantly affect their lives. For those preparing for the SQE1 FLK1 exam, a solid understanding of how these damages are assessed and awarded is vital. This article explores general damages, highlighting pain, suffering, and loss of amenity, while examining key legal frameworks, case law, and practical applications.

Definition of General Damages

General damages compensate claimants for intangible losses resulting from personal injury or death, differing from special damages which cover financial losses. The main components include:

  1. Pain and Suffering: Covers physical and emotional distress.
  2. Loss of Amenity: Addresses reduced quality of life and limitations on activities once enjoyed.

Legal Framework for General Damages

Assessing general damages involves a mix of statutory guidelines and judicial principles:

  1. Courts Act 2003: Section 100 authorizes the Judicial College to provide guidelines for assessing damages.
  2. Judicial College Guidelines: Offer a structured method for quantifying damages based on severity and impact.
  3. Civil Liability Act 2018: Reformed damage calculations, especially for whiplash injuries.

Influential case law includes:

  • West v Shephard [1964] AC 326: Set an objective standard for assessing loss of amenity.
  • Heil v Rankin [2001] QB 272: Ensured consistency and fairness in damage assessments.
  • Simmons v Castle [2012] EWCA Civ 1288: Implemented a 10% increase in general damages for most cases.

Assessing Pain and Suffering

Pain and suffering involve physical discomfort and emotional impact. This subjective assessment considers:

  1. Severity and Duration:

    • Acute pain: Severe but short-lived
    • Chronic pain: Ongoing pain beyond the usual healing period

  2. Emotional Impact: Anxiety, depression, and PTSD

  3. Medical Evidence: Expert testimony, medical reports, pain diaries, and psychological evaluations

Case Example: Chronic Pain Syndrome

In Giles v Chambers [2018] EWCA Civ 1595, the Court of Appeal upheld significant compensation for chronic pain syndrome after a road accident, stressing the importance of comprehensive medical evidence.

Evaluating Loss of Amenity

Loss of amenity is assessed objectively, focusing on lifestyle changes and ability to engage in prior activities. Considerations include:

  1. Pre-injury lifestyle
  2. Post-injury capabilities
  3. Age and life expectancy
  4. Impact on relationships

Objective Assessment Methods

Courts use various techniques to measure loss of amenity:

  1. Comparative analysis of life before and after injury
  2. Functional capacity evaluations
  3. Quality of life scales (e.g., SF-36 Health Survey)

Case Example: Loss of Amenity in Sports Injury

In Collett v Smith [2009] EWCA Civ 583, substantial compensation was awarded to a young footballer for loss of amenity, taking into account both financial impact and loss of lifelong dreams.

Quantification of General Damages

Determining general damages involves balancing different factors:

  1. Judicial College Guidelines: Provide damage brackets for various injury types and severities.
  2. Precedent Awards: Ensure consistency by referencing similar cases.
  3. Inflation and Simmons v Castle Uplift: Adjust awards for inflation, with a 10% increase applied in most cases.
  4. Tariff-Based Systems: Introduced by the Civil Liability Act 2018 for specific injuries like whiplash claims.

Special Considerations in General Damages

Provisional Damages

Section 32A of the Senior Courts Act 1981 allows awarding provisional damages for cases with potential future deterioration, enabling claimants to seek additional compensation if their condition worsens.

Case Example: Wilson v Ministry of Defence [1991] 1 All ER 638

Provisional damages were granted to a claimant exposed to asbestos, allowing for further claims if mesothelioma developed.

Unconscious Claimants

Following West v Shephard and reaffirmed in Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174, courts award damages for loss of amenity to unconscious claimants despite their lack of awareness.

Multipliers and Discount Rates

For ongoing losses, courts apply multipliers adjusted by the discount rate set under the Damages Act 1996. The current rate of -0.25% (as of 2021) considers the real return rate on low-risk investments.

Conclusion

A strong command of general damages principles is vital for SQE1 FLK1 exam success and future legal practice. Key takeaways include:

  1. General damages cover pain, suffering, and loss of amenity in personal injury claims.
  2. Assessment involves subjective (pain and suffering) and objective (loss of amenity) elements.
  3. Judicial College Guidelines and case law guide damage quantification.
  4. Special considerations include provisional damages, unconscious claimants, and applying multipliers and discount rates.
  5. A thorough knowledge of medical evidence and its interpretation is essential.
  6. Familiarity with relevant case law and statutory guidelines is vital for accurate damage assessment and application.

By achieving proficiency in these concepts, candidates will be prepared to handle complex personal injury scenarios in exams and future legal practice.