ASSESSMENT OF DAMAGES IN SEVERE
13th May 2004
By David Wilby QC
This afternoon we are going to consider one of the most interesting and
innovative areas of clinical negligence and personal injuries litigation. As
recently as the early 1990s, only a decade ago, awards in this field were
usually well below £1 million and general damages for pain, suffering and
loss of amenity were usually under £100,000 even in the most severe cases.
In Nash v. Southmead Health Authority1 the award for a birth dyskinetic
athetoid cerebral palsy was a total of £674,500 with general damages of
£90,000, and in Hogg v. Doyle2 the Court of Appeal in an incomplete C4 but
complete below C6 with a life expectancy of twenty years the total award was
£681,220 with general damages of £92,500. This must be compared with
present day cases where the total award will be usually a minimum of £2
million and often up to and in some very serious cases exceeding £5 million
1 (1993) PIQR Q156.
2 Kemp & Kemp, The Quantum of Damages, A2-005.
where the award for pain, suffering and loss of amenity in the updated JSB
Guideline figures for injuries involving paralysis (A) Quadriplegia and (2)(A)
Brain Damage, (a) Very Severe Brain Damage are in the updated brackets of
£171,280 - £212,810 or £150,000 - £212,810. In real terms, the latter have
But these substantial changes reflect a number of individual elements which
have affected our appreciation of damages.
Until the House of Lords’ decision in Wells v. Wells3 the discount rate was 4.5
per cent. It was reduced to 3 per cent and then to 2.5 per cent by Lord
Chancellor’s Direction under Section 1 of the Damages Act on 21st June 2001.
This has had a dramatic impact on the value of future loss claims, meaning
that in cases of 24 hour care or equivalent the future