By : George Pulman
The judicial basis for this decision is both interesting and novel. The Law Commission reported after detailed consultation with first instance judges (additionally at a JSB conference), ‘the people’ (an opinion poll survey was carried out) and with others. Various people had responded. There were two conflicting legal views as to how general damages could in law be increased: (1) only Parliament could do it (2) it could be done by the CA who would refer to the cases in the 1940’s and 1950’s to show that the awards (made by juries in those years) were well above current awards when inflation and other heads of damage are taken into account.
The CA declared that they (in addition to Parliament) had the power to increase awards of general damages. The basis of the argument is not clear, because it is not recorded in the judgments.
There were three courses open to the CA on the evidence and arguments put to them: (1) no change; because the CA does not have power to change 50 years legal authority overnight: that is Parliament’s function; (2) double all the awards: because the opinion poll and the consensus view of the judges at first instance thought this correct; and (3) add 100% to the top end and scale up the other awards accordingly (i.e. £75,000 general damages would be increased by 50%, etc).
Nobody argued for the result which the CA gave. What was its basis? Firstly, they dismissed the opinion poll because, they thought, it was based on the people’s misconception of total awards of damages and awards of general damages alone. That is not a view that the pollsters would accept. Secondly, they agreed that the awards should go up. But, I hear you ask, don’t they need some evidence for this? The historical analysis proposed to the Law Commission was not adopted. They relied on the evidence that an increase was seen to be appropriate. But they decided the rate and the amount. On what basis is not apparent.
One factor seems to have substantially influenced the CA, namely, some figures from the NHS on the effect on the increase of awards. That evidence was put in at the CA and could not be challenged. I make one point about it. As a former member of the Legal Aid Board I compared two figures for damages: (i) the total recovered by legally aided claimants in medical negligence cases (likely to be near the total because very few privately paying clients can afford to bring a claim for medical negligence; and (ii) what the NHS said that they paid out in negligence cases. There was no comparison. The figure recovered by legally aided claimants was a small fraction of what the NHS said that they were paying. Why is there this difference? It may well be because the NHS included all their Employers Liability claims (injured nurses and other employees) and all their RTA claims (NHS vehicles causing collisions resulting in injuries).
It is unfortunate – as the lawyers say – that the information on which the CA decision was based could not be subjected to cross examination or any other analysis. That is compounded by the fact that there was clear information – the judges’ view and the opinion poll view – on which their decision could have been based.
Large awards are made in clinical negligence cases because doctors, nurses and others are guilty of negligence leading to catastrophic injuries. Those large awards consist of general damages together with other heads of damage. It is the other heads of damage – loss of earnings, care, housing, etc – which make up about 80% of the award, if not more. Increasing general damages from £150,000 to £300,000 in a £2m case adds 7.5% to the award.
Claimants deserve just awards of damages. If the law is to be perceived to be just, those awards should accord with a general view of fairness. The CA, doing the Treasury’s bidding, does not sit easily with fairness nor with the independence of the judiciary.