Heil v Rankin

JurisdictionEngland & Wales
Judgment Date13 June 2000
Judgment citation (vLex)[2000] EWCA Civ J0323-8
Docket NumberCase No: QBENF 1998/1427/A2
CourtCourt of Appeal (Civil Division)
Date13 June 2000

[2000] EWCA Civ J0323-8

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

On Appeal From:

Queen's Bench Division Mr D Brennan QC (Sitting as a Deputy High Court Judge)

Bristol County Court His Honour Judge Bursell QC

Queen's Bench Division Mr Justice Colman

Queen's Bench Division His Honour Judge Dean QC (Sitting as a High Court Judge)

Queen's Bench Division Mr Justice Turner

Queen's Bench Division Recorder Mr Robert Smith QC (Sitting as a Deputy High Court Judge)

Queen's Bench Division

Recorder Mr Robert Smith QC (Sitting as a Deputy High Court Judge)

Liverpool County Court His Honour Judge Phipps

Before:

The Master Of The Rolls

Lord Justice Beldam

Lord Justice Otton

Lord Justice May And

Mr Justice Nelson

Case No: QBENF 1998/1427/A2

CCRTF1999/0545/B2

QBENF1999/0884/A2

QBENF2000/0026/A2

QBENF1999/1104/A2

QBENF2000/0100/A2

QBENF2000/0101/A2

PTA2000/5351/A2

Heil
Claimant/Appellant
and
Rankin & Anr
Defendants/Respondents
Rees & Anr
Claimants/Appellants
and
Mabco (102) Limited
Defendant/Respondent
Schofield
Claimant/Appellant
and
Saunders & Taylor Limited
Defendant/Respondent
Ramsay
Claimant/Appellant
and
Rivers
Defendant/Respondent
Kent
Claimant/Appellant
and
Griffiths & Ors
Defendants/Respondents
Warren
Claimant/Appellant
and
Northern General Hospital Nhs Trust
Defendant/Respondent
Annable
Claimant/Appellant
and
Southern Derbyshire Health Authority
Defendant/Respondent
Connolly
Claimant/Appellant
and
Tasker
Defendant/Respondent

Mr Christopher Purchas QC and Mr David Richardson (instructed by Messrs Russell Jones & Walker, Bristol ) appeared for the Claimant

Mr Dermod O'Brien QC, Mr Stephen Worthington and

Mr Charles Dougherty (instructed by Messrs L Bingham & Co, London) appeared for the Defendants

Mr Allan Gore (instructed by Messrs Townsends, Swindon) appeared for the Claimants

Mr Roderick Denyer QC (instructed by Messrs Rigg & Co, Bristol) appeared for the Defendant's Insurers (Eagle Star Insurance Co)

Mr Nicholas Hinchliffe QC and Mr Ian Little (instructed by Messrs Thompsons, Manchester) appeared for the Claimant

Lord Goldsmith QC, Mr Dermod O'Brien QC and Mr Paul Russell (instructed by Messrs Hill Dickinson, Liverpool) appeared for the Defendant

Mr John Leighton-Williams QC and Mr Anthony Seys Llewellyn (instructed by Messrs Blatchfords, South Harrow) appeared for the Claimant

Mr Stephen Stewart QC and Mr Terence Walker (instructed by Messrs Hill Dickinson, Cheapside, London) appeared for the Defendant

Miss Elizabeth-Ann Gumbel QC and Mr Henry Witcomb (instructed by Messrs T G Baynes, Sidcup) appeared for the Claimant

Mr Philip Havers QC and Ms Mary O'Rourke (instructed by Messrs Trowers & Hamlin, London) appeared for the Third Defendant (London Ambulance Service)

Mr James Badenoch QC and Mr Richard Hermer (instructed by Messrs Irwin Mitchell, Sheffield) appeared for the Claimant

Mr Philip Havers QC and Ms Mary O'Rourke (instructed by Messrs Trowers & Hamlin, London) appeared for the Defendant

Mr Stephen Irwin QC and Mr Robin Oppenheim (instructed by Messrs Irwin Mitchell, Sheffield) appeared for the Claimant

Mr Philip Havers QC and Ms Mary O'Rourke (instructed by Messrs Trowers & Hamlin, London) appeared for the Defendant

Mr Allan Gore (instructed by Messrs David Levene, Wood Green, London) appeared for the Claimant

Mr Stephen Stewart QC and Mr Terence Walker (instructed by Messrs Hill Dickinson, Chester) appeared for the Defendant

Mr Timothy King QC (instructed by the Treasury Solicitor) appeared as Amicus Curiae

LORD WOOLF MR :

This is a judgment of the Court to which each member has contributed :

Introduction

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

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