What is the correct approach towards damages for pain, suffering and loss of amenity when multiple categories of injuries are suffered by a claimant?
This was the question considered by the Court of Appeal in Sadler v Filipiak (October 2011), in an appeal by the claimant against the general damages awarded by the trial judge.
The claimant's claim arose following a road traffic accident on 26 November 2006. The claimant had been the driver of a vehicle travelling with passengers to church when there was a frontal collision with the defendant's car travelling on the wrong side of the road in the opposite direction. One of the claimant's passengers was killed and the claimant suffered serious injuries, which were summarised as follows:
- Transverse fracture of the mid femur on the left side
- Formatic dislocation of the right big toe
- Whiplash injury to the neck
- Blunt abdominal injury to the spleen
- Concussive head injury
- Multiple scarring to the face, arms and legs
- Blurred and patchy vision in the right eye following a blow to the front of the head
- Post-traumatic stress disorder
The trial judge at first instance considered, as his starting point, reported previous awards, but decided that none of the "comparable" awards put to him adequately met the circumstances of the claimant's case, or her particular constellation of injuries. The trial judge did not consider it was appropriate to simply add up different amounts for each injury as set out in the JSB Guidelines, because the pain and suffering had occurred at the same time.
The trial judge felt that the claimant suffered considerable interference with her life over a period of about five years, reducing from an initial intensity in the first few months, that she would recover substantially but that she will be left with permanent scars. In reaching his award of £32,000, the trial judge stated "I do not accept that I can simply aggregate the figures in each category, however I come to them.... there must, it seems to me, be an element of overlap".
The Court of Appeal was asked to review the general damages award. It was argued that either the trial judge undervalued each of the individual categories of injury, or had applied too great a discount before arriving at his award of £32,000.
The Court of Appeal agreed that it was always necessary to stand back from the compilation of individual figures, whether guidance had been derived from previous, comparable cases, or from the JSB guidelines, and to consider whether the actual award for pain and suffering and loss of amenity should be greater than the sum of the parts, in order to properly reflect the combined effect of the injuries, or should be smaller than the sum of the parts in order to remove any element of double recovery.
Lord Justice Pitchford noted that "in some cases, no doubt a minority, no adjustment will be necessary because the total will probably reflect the overall pain, suffering and loss of amenity endured. In others, and probably the majority, an adjustment, and occasionally a significant adjustment may be necessary".
Lord Justice Etherton was in no doubt that the trial judge should have "firstly considered the various injuries and fixed a particular figure as reasonable for each and then, secondly, stood back, and had a look at what would be the global aggregate figure and ask whether it was reasonable compensation for the totality of the injury".
On the facts of this case, the Court of Appeal considered that the correct figure for damages, by simply adding the component parts of the award, by reference to the JSB guidelines, would produce a figure of £47,500. On the facts of this case, the court considered an appropriate discount for overlap brought the award down to £40,000, which figure was about 85% of the total.
Key points for defendants
- In multiple injury claims, defendants should consider the various injuries, fix a particular figure for each, and then consider whether that figure would be reasonable compensation for the totality of the injuries
- The courts recognise that an adjustment may be necessary in the majority of cases. That adjustment can be downwards or upwards
- The JSB guidelines are issued to inform practitioners of the range of current awards made by the courts for roughly comparable injuries, but do not amount to a straight jacket within which awards of damages for different forms of injury must fall. The courts will, and should, take into account relevant comparator cases
- It would be wrong to draw the conclusion that there is judicial support for an automatic 15% discount in multiple injury cases
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.