Lim Poh Choo v Camden and Islington Area Health Authority

Personal injury damages provide proper compensation for the injury and loss sustained. Their amount cannot be reduced merely because the award is large or ultimately borne through insurance or taxation. Pain depends on awareness, but loss of amenities compensates the fact of deprivation and remains recoverable despite unconsciousness.

A claimant incapacitated from working may recover lost earnings as well as care costs. Duplication is avoided by deducting working expenses from earnings and the domestic element from care costs. Future care is assessed on an annuity basis, using capital and income. Future inflation is ordinarily disregarded unless the particular facts demonstrate that this would prevent fair compensation.

Negligence during postoperative care caused Dr Lim Poh Choo catastrophic and irremediable brain damage. She became barely sentient and wholly dependent on others. The health authority admitted liability shortly before trial, leaving damages as the sole issue.

Bristow J awarded £254,765. The Court of Appeal, whose decision was reported at [1978] 3 W.L.R. 895, admitted fresh evidence and dismissed the authority's appeal by a majority. Lord Denning MR dissented and would have removed the award for lost earnings as duplicative. The claimant cross-appealed against the amount awarded for pain, suffering and loss of amenities.

The House admitted further evidence following the claimant's return from Malaysia to an English nursing home. It considered the governing principles for overall compensation, unconscious claimants, lost earnings, overlapping heads of damage, future care and inflation.

Disposition. Lord Scarman delivered the substantive speech. Lord Diplock, Viscount Dilhorne and Lord Simon of Glaisdale agreed with it, making the decision unanimous. Subject to necessary variations in the amount awarded, the authority's appeal was dismissed with costs and the claimant's cross-appeal was dismissed without an order for costs. The award was recast at £229,298.64 before appropriate interest and the necessary adjustment to the date of judgment.

1. Per Lord Scarman, damages must properly compensate the injury and loss sustained. Neither the absolute size of an award nor its effect on insurers, taxpayers or public funds permits its reduction. Comparison with other total awards may mislead where pecuniary loss predominates, although comparison remains useful for conventional non-pecuniary awards.

2. Per Lord Scarman, Law Reform (Personal Injuries) Act 1948, section 2(4), protects reasonable private-care expenses actually incurred from challenge merely because National Health Service facilities were available. It does not create entitlement to expenses which will never be incurred. On the evidence, continued private care was both reasonably obtainable and reasonably required.

3. Per Lord Scarman, the majority rules in H. West & Sons Ltd. v Shephard [1964] A.C. 326 should remain undisturbed. Pain and suffering depend on the claimant's awareness, but loss of amenities compensates the objective fact of deprivation. Unconsciousness therefore does not eliminate that loss, and the court is not concerned with the later use of properly assessed damages. The £20,000 award was substantial in contemporary values and disclosed no error of principle.

4. Per Lord Scarman, incapacity to earn creates a genuine pecuniary loss. Lost earnings therefore remain recoverable alongside care costs. Double recovery is prevented by deducting the expenses of earning the income and, for a living claimant, deducting the domestic element from care costs. The separate heads must also be reviewed together to ensure that the total provides compensation rather than a surplus.

5. Per Lord Scarman, future care must be funded on an annuity basis, with both capital and income available for expenditure. The appropriate multiplier must reflect accelerated receipt, the possibility that the claimant will not attain her full life expectancy and the availability of capital. A multiplier of 12 was adopted against annual care costs of £6,400 after the domestic deduction.

6. Per Lord Scarman, future inflation should ordinarily be disregarded. A departure is permissible only where the particular facts show that assessment at current values, coupled with the investment opportunity afforded by a lump sum, would fail to provide fair compensation. The claimant is not entitled to greater protection against inflation than others dependent on capital.

1. House of Lords: The appeal and cross-appeal were dismissed unanimously, subject to variations reflecting corrected calculations, fresh evidence and changed care arrangements. The award was recast at £229,298.64 before interest and final date adjustment.
2. Court of Appeal: The court admitted fresh evidence and, by a majority, dismissed the health authority's appeal: [1978] 3 W.L.R. 895. All three members declined to alter the award for pain, suffering and loss of amenities. Lord Denning MR dissented on the total award and would have removed lost earnings as duplicative.
3. High Court: After liability was admitted, Bristow J assessed damages at £254,765 on 7 December 1977.