Heil v Rankin & Anor

Facts

Several appeals concerning awards of damages for non-pecuniary loss in personal injury cases were heard together by a specially constituted five-judge Court of Appeal. The Law Commission had reported in 1999 that the level of damages for non-pecuniary loss in cases of serious injury was too low and should be increased, and the appeals provided an opportunity to consider whether the courts should adjust the level of awards in response.

Issue

Whether the general level of awards for pain, suffering and loss of amenity had fallen below what was appropriate in comparison with public expectations and other awards, and whether the Court of Appeal should adjust it, and if so by how much and by what method.

Held

The level of general damages for non-pecuniary loss in cases of serious injury should be increased. There should be no increase for awards of 10,000 pounds or less; the increase should taper upwards with the size of the award, and for the very highest awards, those of about 150,000 pounds or more, the increase should be about one third. The Court of Appeal did not follow the greater increases recommended by the Law Commission.

Ratio

• The Court of Appeal may adjust the conventional scale of damages for non-pecuniary loss where the evidence shows that the awards have fallen out of line with what is just, and such a change should be gradual and based on a considered view of what the public would regard as fair compensation.
• An increase in general damages should be tapered so that it has little effect at the lower end of the scale, where awards were thought to be broadly right, and a larger effect at the top, where awards were found to be most out of line.

The judgments

Key reasoning

• The sums awarded for the most serious injuries were lower than they should be in relation to awards for less serious injuries and to the changes in the value of money, so an uplift was justified.
• The Law Commission had proposed larger increases, but the evidence did not justify a more radical change, and the court's task is to apply the conventional approach with a measured correction.
• The court took account of the effect on defendants, insurers and public bodies, and chose an increase that was measured.

Where it fits in the module

In Tort (FHS), on the Administration of Justice Act 1982, section 1(1)(b), and the assessment of damages for non-pecuniary loss, Heil v Rankin is the key case on how the courts value pain, suffering and loss of amenity. The 1982 Act preserves damages for suffering caused by awareness of a reduced life expectancy as part of pain and suffering and removes damages for the loss of expectation of life as a separate head, and Heil concerns the general scale within which such awards are made. Candidates read it with West v Shephard [1964] AC 326, Wells v Wells [1999] 1 AC 345, Simmons v Castle [2012] EWCA Civ 1039 and the Judicial College Guidelines, and consider whether it is appropriate for judges to set a tariff, how compensation for intangible loss can be justified, and whether the process should be left to Parliament.

Criticisms

• Setting the level of awards by judicial decision involves a policy choice about the allocation of resources, which is more appropriate for Parliament, and the court acted in a way that resembles legislation, in appeals not argued with the full evidence that a policy change of that scale would need.
• Non-pecuniary loss cannot be measured in money, so a tariff based on convention and public expectation has no principled basis, and reliance on public expectation is a poor guide to what the sum should be.
• A tapered uplift introduces new anomalies, because claimants whose awards are just below and just above the thresholds are treated differently for no principled reason.
• The decision benefits claimants with the most serious injuries but does nothing for those with moderate injuries, and the cost falls on public bodies, so the court did not consider the effect on the funding of public services.