Wise v Kaye

A living claimant may recover substantial damages for physical disability and loss of amenity despite being permanently unconscious. The loss is assessed objectively by reference to the faculties and capacity for ordinary life which the injury has removed. Lack of awareness excludes damages for pain and suffering, but does not reduce compensation for the disability itself.

The assessment is unaffected by the claimant’s inability to spend or enjoy the money awarded. Future earnings are recoverable only for the claimant’s probable remaining lifetime after the injury, rather than for years by which life has been shortened.

The claimant, aged 20, suffered catastrophic brain injuries in a road collision. She remained unconscious, wholly dependent and without purposeful use of her faculties. Liability was admitted.

Finnemore J awarded £18,279 8s 11d, including £15,000 for general damages, £2,000 for future earnings and £400 for loss of expectation of life. The defendants appealed on quantum. The principal issues were whether unconsciousness and inability to use the award reduced damages for physical disability and loss of amenity, and whether future earnings could be awarded for years by which the claimant’s life had been shortened.

1. Disposition. Sellers and Upjohn LJJ held that the £15,000 award for physical injuries and loss of amenity should stand. The award for future earnings was reduced from £2,000 to £1,500. Judgment was therefore varied to £17,779 8s 11d. Diplock LJ agreed that the future-earnings award required correction but dissented from the majority’s assessment of non-pecuniary damages.
2. Loss of amenity. Per Sellers and Upjohn LJJ, a living claimant’s catastrophic loss of bodily faculties is compensable independently of pain and suffering. The relevant loss is the objective destruction of the claimant’s capacity to participate in ordinary life. A claimant’s unconsciousness or inability to appreciate the loss does not reduce damages for that disability. It merely prevents an award for pain and suffering where none is experienced.
3. Use of the award. The claimant’s inability to spend or enjoy the damages was irrelevant. Once loss has been proved and properly valued, the damages become the claimant’s property. The award cannot be reduced because it may remain unused or eventually pass to others.
4. Future earnings. The court followed Oliver v Ashman [1961] 3 WLR 669. Earnings which would have arisen after the claimant’s shortened expectation of life could not be included. Sellers LJ nevertheless expressed an obiter doubt whether the rule necessarily excluded every rare claim for identifiable net savings which would have accumulated during the lost years.
5. Loss of expectation of life. This was distinct from disability and loss of amenity. It was assessed objectively by a conventional sum under Benham v Gambling [1941] AC 157. Any anxiety caused by knowledge of shortened life belonged, where present, to pain and suffering.
6. Dissent on quantum. Diplock LJ considered loss of happiness the common measure for non-pecuniary personal injury damages. Because unconsciousness removed pain, mental anguish and awareness of deprivation, he would have reduced general damages to £4,000, including £1,500 for future earnings, £1,500 for loss of amenity and £1,000 for loss of expectation of life.

1. Court of Appeal: By Wise v Kaye [1961] EWCA Civ 2, the court allowed the appeal to the extent of reducing damages by £500 and substituted judgment for £17,779 8s 11d.
2. Oxford Assizes: Finnemore J awarded the claimant £18,279 8s 11d. Liability was not disputed. The reported citation of this decision is not stated in the judgment.