Lim Poh Choo v Camden and Islington Area Health Authority

JurisdictionUK Non-devolved
CourtHouse of Lords
JudgeViscount Dilhorne,Lord Diplock,Lord Simon of Glaisdale
Judgment Date21 June 1979
Judgment citation (vLex)[1979] UKHL J0621-4
Date21 June 1979

[1979] UKHL J0621-4

House of Lords

Lord Diplock

Viscount Dilhorne

Lord Simon of Glaisdale

Lord Scarman

Lim Poh Choo (Suing by Her Mother and Next Friend)
(Original Respondent and Cross-Appellant)
and
Camden and Islington Area Health Authority (Teaching)
(Original Appellants and Cross-Respondents)

Upon Report from the Appellate Committee to whom was referred the Cause Lim Poh Choo (suing by her mother and next friend) against Camden and Islington Area Health Authority, et e contra, That the Committee had heard Counsel, as well on Monday the 26th, Tuesday the 27th, Wednesday the 28th and Thursday the 29th days of March last as on Monday the 2nd day of April last upon the Petition and Appeal of Camden and Islington Area Health Authority (Teaching) of Insurance House, Insurance Street, London WC1X 0JB praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 7th day of July 1978 so far as regards the words "It is Ordered that this Appeal be dismissed and the Judgment of the Honourable Mr. Justice Bristow affirmed" might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order so far as aforesaid might be reversed, varied or altered or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as also upon the Petition and Cross-appeal of Lim Poh Choo of Eastside House, 24 Eastside Road, London NW11 praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 7th day of July 1978 so far as regards the words "the Judgment of the Honourable Mr. Justice Bristow affirmed" might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order so far as aforesaid might be reversed, varied or altered or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as also upon the Case of Lim Poh Choo (Spinster) suing by Lim Gim Hoe (Widow) her Mother and next friend and also upon the Case of Camden and Islington Area Health Authority (Teaching) lodged in the said Original and Cross Appeals; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 7th day of July 1978 complained of in the said Appeal be, and the same is hereby, Set Aside save as to Costs and that the Appellants do pay to the Respondent the sum of £249,429.92 being as to £20,000 for pain, suffering and loss of amenities and £4,140 interest thereon at the rate of 9% from the 15th day of October 1974 to the 31st day of January 1977 and £4,780 interest thereon at the rate of 10% from the 1st day of February 1977 to the date hereof; as to £3,596 for out of pocket expenses and £1,021.08 interest thereon at the rate of 4 1/2% from the 1st day of March 1973 to the date hereof; as to £16,500 for cost of care in Malaysia and £4,685.18 interest thereon at the rate of 4 1/2% from the 1st day of March 1973 to the date hereof; as to £1,923 travel expenses and £153.84 interest thereon at the rate of 10% from the 4th day of September 1978 to the date hereof; as to £5,120 for cost of care in England to the date of Judgment in this House and £1,453.82 interest thereon at the rate of 4 1/2% from the 1st day of March 1973 to the date hereof; as to £14,213 for loss of earnings and £3,044 interest thereon at the rate of 4 1/2% from the 1st day of March 1973 to the 7th day of December 1977; as to £76,800 for the cost of future care; and as to £92,000 for loss of future earnings and pension rights: And it is further Ordered, That the Cross Appeal be Dismissed: And it is also further Ordered, That in the Original Appeal the Appellants do pay or cause to be paid to the said Respondent the Costs incurred by her in the Courts below and also the Costs incurred by her in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments if not agreed between the parties: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice to do therein as shall be just and consistent with this Judgment.

Lord Diplock

My Lords,

1

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Scarman. I agree with it, and there is nothing that I can usefully add.

Viscount Dilhorne

My Lords,

2

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Scarman. I agree with it and there is nothing that I can usefully add.

Lord Simon of Glaisdale

My Lords,

3

I have had the privilege of reading in draft the speech about to be delivered by my noble and learned friend, Lord Scarman. I agree with it and with the order which he proposes.

Lord Scarman

My Lords,

4

On February 28th 1973 Dr. Lim Poh Choo, a senior psychiatric registrar employed in the National Health Service, was admitted to a National Health Service hospital for a minor operation, which was carried out the next morning. When, following upon the operation, she was in the recovery room, she suffered a cardiac arrest. It was the result of the negligence of some person for whom the area health authority is vicariously responsible. The consequences for Dr. Lim have been disastrous. Before March 1st 1973 Dr. Lim, who was then thirty-six years old, had a career ahead of her in her chosen speciality of psychiatric medicine. She was described by one, who knew her and her work, as a "remarkably intelligent doctor". She is now the wreck of a human being, suffering from extensive and irremediable brain damage, which has left her only intermittently, and then barely, sentient and totally dependent upon others.

5

On September 19th 1974 Dr. Lim, suing by her mother as next friend, issued her writ against the Camden and Islington Area Health Authority, who in due course delivered a defence denying negligence. However, in November 1977, shortly before trial, the defendants admitted liability. The one issue at trial was, therefore, the question of damages. But its complexities are such that it has occupied the trial judge for the best part of five days, the Court of Appeal six days, and your Lordships' House five days.

6

It cannot be said that any of the time judicially spent on these protracted proceedings has been unnecessary. The question, therefore, arises whether the state of the law which gives rise to such complexities is sound.Lord Denning M.R. in the Court of Appeal declared that a radical reappraisal of the law is needed. I agree. But I part company with him on ways and means. The Master of the Rolls believes it can be done by the judges, whereas I would suggest to your Lordships that such a reappraisal calls for social, financial, economic, and administrative decisions which only the legislature can take. The perplexities of the present case, following upon the publication of the report of the Royal Commission on Civil Liability and Compensation for Personal Injury (Cmnd. 7054, March 1978, "the Pearson report"), emphasise the need for reform of the law.

7

The course of the litigation illustrates, with devastating clarity, the insuperable problems implicit in a system of compensation for personal injuries which (unless the parties agree otherwise) can yield only a lump sum assessed by the court at the time of judgment. Sooner or later—and too often later rather than sooner—if the parties do not settle, a court (once liability is admitted or proved) has to make an award of damages. 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.

8

Lord Denning appeared, however, to think—or at least to hope—that there exists machinery in the rules of the Supreme Court which may be adapted to enable an award of damages in a case such as this to be "regarded as an interim award" (p.912E). It is an attractive, ingenious suggestion—but, in my judgment, unsound. For so radical a reform can be made neither by judges nor by modification of rules of court. It raises issues of social, economic and financial policy not amenable to judicial reform, which will almost certainly prove to be controversial and can be resolved by the legislature only after full consideration of factors which cannot be brought into clear focus, or be weighed and assessed, in the course of the forensic process. The judge—however wise, creative, and imaginative he may be —is "cabin'd, cribb'd, confin'd, bound in" not, as was Macbeth, to his "saucy doubts and fears" but by the evidence and arguments of the litigants. It is this limitation, inherent in the forensic process, which sets bounds to the scope of judicial law reform.

9

The present litigation reveals another confusing factor in the law. The trial judge, giving judgment on the 7th December 1977, assessed damages upon the basis of the facts as they were at that date. When the case reached the Court of Appeal in June 1978 Dr. Lim's mother, who had been caring for her in Penang, had suffered a deterioration in her health, which made it very probable that in the near future Dr. Lim would have to be...

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    ...in the family;therefore the economic loss must ipso facto fall outside the ambit of the duty of34 eg Lim Poh Choo vCamden & Islington AHA [1980] AC 174.35 n 8 above, 91, 101–102 per Lord Clyde.36 ibid 76.37 White vJones [1995] 2 AC 207, 273. Lord Steyn’s explanation of ‘assumption of respon......
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    ...Century (1996) 1. (8) See Patrick Atiyah, The Damages Lottery (1997) 143. (9) Lim Poh Choo v Camden & Islington Area Health Authority [1980] AC 174, 183 (Lord (10) See Nelungaloo Pty Ltd v Commonwealth (1947) 75 CLR 495, 571 (Dixon J). An appeal to the Privy Council was dismissed for la......
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    ...to review as the future unfolds, substituting fact forestimate.’ Lord Scarman in Lim Poh Choo v. Camden and Islington Health Authority[1980] A.C. 174, at 183.6 Except for the small number of cases, usually involving very serious injury, where astructured settlement may be used to produce a ......

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