Heil v Rankin & Another, Reece & Another v Mabco, Schofield v Saunders & Taylor Limited etc Court of Appeal: 23rd March 2000 (unreported)

Seven claimants brought their cases to the Court of Appeal on the issue of "general damages". General damages are the amounts awarded by a court that cannot be precisely calculated for the pain, suffering and loss of amenity in personal injury claims - in other words the injury alone. This is distinguished from "special damages" which are the pecuniary losses that can be calculated - loss of earnings after the injury, cost of nursing care and so on.

The Law Commission, whose task is to review legislation and suggest improvements, reviewed compensation in personal injury and industrial disease cases and reported in April of 1999 (Report no. 257). Included was the recommendation that the level of general damages should be substantially increased.

The Law Commission recommendations brought uncertainty with judges taking different views as to how courts should respond. Ultimately the matter had to be decided by the Court of Appeal and Thompsons brought one of the test cases for Mavis Schofield on behalf of her husband who died from Mesothelioma at 57. He worked for the defendants for about one year removing pipes from buildings. He was exposed to substantial quantities of asbestos dust. We asked the court that heard the case to uplift the damages for Mr Schofield's pain, suffering and loss of amenity in view of the Law Commission's recommendations. The court refused on the basis that the matter had to be first dealt with by the Court of Appeal.

The Court of Appeal have now ruled in these test cases. The level of damages in certain personal injury cases needed to be increased in order to produce compensation which is fair, reasonable and just. But they gave no increases in awards which are currently below £10,000, and for those awards above £10,000 there should only be a modest tapered increase up to a maximum increase of one third in awards for the most catastrophic injuries. This is well below the Law Commission recommendations. In Mrs. Schofield's case, she received a 10% increase giving her an extra £4,000.

The Court of Appeal considered the survey commissioned by the Law Commission and also considered the level of awards in other jurisdictions. For example in Northern Ireland it is well known that claimants can be awarded three times the amounts awarded in England and Wales. Other considerations taken into account were the increases in life expectancy, improvements in medical treatment and the impact on insurance premiums and on the NHS.

The Court of Appeal were no doubt influenced by the impact on the insurance industry that in 1998 made a trading profit of £1.2 billion. They said that their decision would have a significant effect on the public at large in the form of higher premiums and that there would be less resources available for the NHS. They expressed concern that the level of awards did involve questions of social policy and accepted that the appropriate award for general damages is always a difficult one.

Their decision was a blow to those who suffer injury because the majority of claims will not receive any increase in their awards. Those who have suffered catastrophic injuries get very little increases.

The matter is now being considered for appeal to the Lords and a campaign for reform by parliament.