H West & Son Ltd v Shephard

In personal-injury cases, general damages compensate the actual consequences of the injury, including the physical deprivation of ordinary amenities. Unconsciousness excludes compensation for pain, anxiety and other consequences that depend on awareness, but it does not eliminate compensation for the deprivation itself.

The claimant’s capacity to use the damages after judgment is irrelevant. The low conventional award for loss of expectation of life established in Benham v Gambling [1941] AC 157 is confined to that distinct head of loss and does not govern damages for bodily injury and loss of amenities during life. An appellate court should not alter an award merely because it would have selected a different figure.

The respondent suffered catastrophic brain injuries in a road accident. She remained severely disabled, unable to speak and dependent on continuous nursing care. She retained some limited awareness of her surroundings and was expected to live for about five further years.

Paull J awarded £17,500 general damages, in addition to agreed special damages, future earnings and £500 for loss of expectation of life. The Court of Appeal rejected the appellants’ challenge to the general damages. The appellants appealed to the House of Lords, contending that the respondent’s limited consciousness and inability to benefit from the money required a substantial reduction.

The central issue was the proper basis for assessing general damages for grave physical deprivation where the injured person is wholly or substantially unconscious.

1. Appeal dismissed by a 3–2 majority. Lord Tucker expressly agreed with Lord Morris of Borth-y-Gest. Lord Morris and Lord Pearce concluded that the award of £17,500 was not shown to be excessive. Lord Reid and Lord Devlin would have allowed the appeal and reduced the award.

2. Lord Morris, with Lord Tucker agreeing, held that damages compensate consequences actually caused by the tort. Unconsciousness therefore eliminates compensation for pain, distress, fear, anxiety and awareness of lost life or amenities, because those losses depend on being experienced. It does not eliminate the actual deprivation of the ordinary experiences and amenities of life caused by grave physical injury.

3. Lord Morris held that the court should not reduce a properly assessed award because the claimant may be unable to use the money. Lord Pearce gave the same answer: the court assesses a reasonable monetary sum for injury, pain and deprivation, and does not look beyond judgment to the claimant’s eventual spending or enjoyment of it.

4. Lord Morris and Lord Pearce held that Benham v Gambling [1941] AC 157 concerned the special head of loss of expectation of life. Its low conventional figure did not prescribe a general method for assessing damages for bodily injury or loss of amenities during the claimant’s life. They endorsed the majority approach in Wise v Kaye [1962] 1 QB 638.

5. Lord Morris applied the appellate restraint stated in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601. A difference of opinion as to quantum is insufficient. The award had to be shown unreasonable, excessive and out of proportion. Although high, it was not so shown.

6. In dissent, Lord Reid and Lord Devlin considered that the objective element in loss of amenities should be modest where awareness was slight or absent. They would have treated the award as excessive.

• House of Lords: dismissed the appellants’ appeal by a 3–2 majority and upheld the general-damages award.
• Court of Appeal: rejected the challenge to the £17,500 award of general damages.
• High Court (Paull J): awarded £17,500 general damages, together with sums for special damage, future loss of earnings and loss of expectation of life.