DAMAGES FOR LOST AMENITIES: FOR A FOOT, A FEELING OR A FUNCTION?
| Author | A. I. Ogus |
| DOI | http://doi.org/10.1111/j.1468-2230.1972.tb01315.x |
| Published date | 01 January 1972 |
| Date | 01 January 1972 |
THE
MODERN
LAW
REVIEW
Volume
35
January
1972
No.
1
DAMAGES FOE LOST AMENITIES
:
FOR A
FOOT,
A FEELING
OR
A FUNCTION?
“The rational principles upon which damages .
.
. are
to
be
assessed . . . tend .
. .
to
be obscured by familiar phrases which
lawyers use but seldom pause
to
analyse.” (Diplock
L.J.
in
Wise
v.
Kay.)
DURING
the last decade there have been substantial developments in
the principles and methods of assessing damages for personal
injuries. The now aImost complete disappearance of juries from
personal injury cases has thrown the responsibility for quantifica-
tion upon the trial judge. The consequence has been not only that he
must exercise great care over his task, but also that he must be seen
to conform
to
certain principles of assessment which have been
developed by the courts. These developments have given rise
to
much discussion and criticism, culminating in the recently published
working paper of .the Law Commission.2
For
the most part, atten-
tion has been focused on the assessment of damages for pecuniary
losses.
It
has been suggested that greater use should be made of
actuarial evidence
;
that the trial judge should be bound by statute
to itemise awards
4;
that the court should have power to award
compensation in the form of periodical payments.5
It
is submitted
that the time
is
ripe for an equally bold scrutiny of the principles
and practice governing the compensation of non-pecuniary losses.
The need for reform should not be underestimated.0 Anomalies
abound.
No
one rational doctrine is consistently applied. On
purely practical grounds the system of assessment is inefficient.
The object of this paper is
to
consider the problems involved in
assessing what is perhaps the most important item of non-pecuniary
1
See
Ward
v.
James
[1966] 1 Q.B.
273.
2
Working Paper
No.
41.
8
Street,
Principles
of
the
Law
of
Damages
(1962), Chap. 5;
Kemp
and Kemp,
The
Quantum
of
Damages
(3rd
ed.,
1967), Vol. 1, pp. xvi-xvii; Working
Paper
No.
41, paras. 157-191.
4
Eemp
and
Kemp,
OQ.
cit.,
pp.
xv-xvi; Working Paper
No.
41, paras. 218-221.
5
Fleming (1969) 19 Univ.
of
Toronto
L.J.
295; Working Paper
No.
41,
parse.
22%252.
6
See.
e.g.
Elliott
and
Street,
Road
Accidents
(19&3), pp. 274-277.
VOL.
35
1
1
2
THE
MODERN
LAW REVIEW
VOL.
35
loss: loss
of amenities.’ The
task
of this head of damages is
to
compensate the plaintiff for the physical disability sustained as a
result of the accident
(or as
it,
is
sometimes said,
cc
for the injury
itself
”),
and for the effect of that disability
on
his enjoyment
of
life.
It
is proposed
first,
to examine the theoretical basis of compensation
for
non-pecuniary losses in general; secondly,
to
describe the
present methods of assessing damages for
loss
of
amenities; thirdly,
to evaluate critically those methods; and finally, to offer some
suggestions for reform.
1.
BASIS
OF
COMPENSATION
FOR
NON-PECUNIARY
LOSSES
Although compensation for
pecuniary
loss
poses problems of some
technical difficulty, the basis of assessment has always been clear.
Applying khe
restitutio in integrurn
principle, the cou~t attempts
to
put the plaintiff in the position he would have been in but for the
defendant’s tort. The plaintiff is awarded
a
sum
to
represent the
pecuniary advantages of which he has been deprived.
Ex
hypothesi,
compensation
on
this restitutionary basis is impossible in the case of
non-pecuniary losses. The court cannot order that the defendant
redeliver
to
the plaintiff the leg
or
eye which he has lost. Mental
pain and anguish which he has suffered cannot be obliterated.
Restitutio in integrum,
in
its ordinary sense, is impossible. This
has led one judge
to
the extreme of saying that the remedy should
not really
be
called
cc
damages.” Whatever be its correot appella-
tion,
it
is clear that the remedy exists
at
common law and that some
basis
for
its assessment must
be
found.
As the title to sthis article suggests, there are,
it
would seem,
three different theoretical approaches
to
the problem.
(i)
Conceptual approach
9-(cc
so
much for
a
foot
”)
The first approach
is
conceptual and objective.
It
has its
analogy
in
the law of property. The plaintiff’s life,
his
faculties, his
capacity for enjoying life are all
cc
valuable
”
personal assets, akin
to his house, his shares
or
his china vase.
To
deprive him of one
or
more of these assets is to deprive him of something to which he
has
a
cc
proprietary righ’t.” Each asset bears an objective
cc
value
”
which is fully recoverable in the case of
loss.
The plaintiff’s own
use
or
enjoyment of the asset, the happiness
to
be derived from
it,
are irrelevant considerations. Applied
to
loss
of amenities, this
approach requires, in effect, that resort be had
to
a
tariff system
which would prescribe
a
certain
‘(
sum
”
for
each part of the body,
7
This had
of
damages has
also
been
called “loss
of
faoulties
”
or
“
loss
of
8
Per
Ha.rmn
L.J..
Warren
v.
King
[1964]
1
W.L.R.
1,
9.
9
See, especially, Sellers
L.J.
in
Wise
v.
Kaye
[1962]
1
Q.B.
638,
644-654
the
cccpacity
for
enjoying
life.”
and
Lord Morris
in
West
v.
Shephard
[lW]
A.C.
326,
344353.
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