Increasing the Price of Pain: Damages, The Law Commission and Heil v Rankin

AuthorRichard Lewis
Date01 January 2001
Published date01 January 2001
Increasing the Price of Pain: Damages, The Law
Commission and Heil vRankin
Richard Lewis*
Five judges in a specially constituted Court of Appeal have decided in a conjoined
appeal, involving eight test cases,1that damages for pain, suffering and loss of
amenity (PSLA)2must be increased. Claims for non-financial loss must be
revalued. But the changes Heil vRankin3makes are by no means as radical as
some feared, and others hoped. This is because, firstly, the case only affects the
small minority of personal injury claims which involve serious injury; and
secondly, even in the most extreme of these cases, it increases damages only by a
third, and in most of the affected cases the increase will be a great deal lower than
this. The overall effect is to boost damages by much less than was wanted either by
the influential claimants’ lobby4or by an ‘impertinent’5Law Commission which
recently reported on the matter. The extra money now demanded of insurers can be
found relatively easily. The case will remain of importance for some time to come
for both sides of personal injury practice feel that they have reached a stalemate in
this particular battle. No further litigation is now planned.6
According to the court, the reasons for the increase are that it is ‘fair, reasonable
and just,’ it accords with the view of society as a whole, and it results in
‘proportionate’ awards which take into account not only changes in economic
circumstances but also the impact of awards upon society. Future levels are to be
adjusted in line with the rise in the Retail Prices Index, and further appellate
consideration will not be necessary unless the awards again become significantly
ßThe Modern Law Review Limited 2001 (MLR 64:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
* Cardiff Law School. I am grateful to several colleagues at Cardiff for their comments on an earlier draft
of this article and, in particular, to David Campbell, Ken Oliphant and Richard James.
1 Although there was some difficulty in gathering together representative cases, eventually they
included, at the top end of the scale, children suffering from cerebral palsy, and at the bottom end of
the scale, whiplash injuries. Appearances were made by 12 juniors and an equal number of silks,
including one who appeared as an amicus curiae instructed by the Treasury Solicitor. Written
submissions were received from the Association of Personal Injury Lawyers, the Forum of Insurance
Lawyers, the Association of British Insurers, the Eagle Star Insurance company, and the Iron Trades
Insurance Company.
2 This abbreviation, used consistently in Heil, is less familiar to academics than the term non-pecuniary
loss. Practitioners frequently use the term general damages to mean PSLA even though, strictly, this
includes all items of loss which cannot be specially pleaded, and therefore includes future financial
loss. Although many may regret the increasing use of acronyms, at least there might be less
misunderstanding between academics and practitioners if PSLA is commonly adopted.
4 See the Association of Personal Injury Lawyers response to the Law Commission Consultation Paper
No 140 on non-pecuniary loss, and its submission made to the Court of Appeal in Heil’s case.
5 The Law Commission Report No 257, Damages For Non-Pecuniary Loss (1999) is so described by
Tony Weir, A Casebook On Tort 9th ed (London: Sweet and Maxwell, 2000) 636.
6 Although none of the claimants applied for permission to appeal when the Court of Appeal judgment
was handed down, two of them later did seek leave from the House of Lords. However, from
information supplied to the author by the relevant firm of solicitors, Russell, Jones and Walker, the
appeal is not now being pursued because of concerns about the costs and the risks involved.

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