Heil v Rankin (Annable v Southern Derbyshire Health Authority, Connolly v Tasker, Kent v Griffiths (No 2), Ramsay v Rivers, Rees v Mabco (102) Ltd (In Liquidation), Schofield v Saunders & Taylor Ltd, Warren v Northern General Hospital NHS Trust)

The Court of Appeal may revise guidelines for damages for pain, suffering and loss of amenity when existing awards no longer provide fair, reasonable and just compensation. That exercise applies established compensatory principles and does not require legislation.

Guidelines should promote consistency while allowing for individual features. In setting a general tariff, the court may consider prevailing social and economic conditions and the broad consequences for society, although a particular defendant’s means do not reduce an individual award.

A modest revision was required: the greatest awards should rise by about one third, tapering downwards, with no general increase below £10,000. The established practice of updating appropriate guideline awards by the RPI should otherwise continue.

Eight personal-injury appeals were heard together after the Law Commission recommended substantial increases in damages for non-pecuniary loss. The appeals concerned awards for injuries ranging from catastrophic birth injuries and brain damage to mesothelioma, psychiatric injury and whiplash.

The Court considered whether it was constitutionally appropriate to revise general damages, whether a retrospective judicial revision would conflict with the European Convention of Human Rights, and the level of any revision. It also decided the individual challenges to the awards.

The central question was whether the existing tariff for pain, suffering and loss of amenity continued to provide fair, reasonable and just compensation.

1. General tariff. The Court held that reviewing and revising conventional awards for pain, suffering and loss of amenity was part of its established judicial function. It was not making new law. Parliament remained free to legislate, but its possible intervention did not relieve the Court of its responsibility to keep damages guidelines current.

2. The governing aim remained full compensation. Non-pecuniary loss could only be converted into money by an artificial but necessary value judgment. Consistency, predictability and settlement utility were important, but could not freeze awards at an inadequate level. The Court endorsed the guidance in Wright v British Railways Board, [1983] 2 AC 773, that brackets may be changed for more than inflation where changing circumstances require it.

3. When fixing a general tariff, the Court could consider the broad economic and social consequences of awards, including insurance and NHS resources. Those consequences informed the assessment of a fair, reasonable and just level, but did not permit an award in an individual case to be reduced because of the particular defendant’s means. The assessment ordinarily required a global sum rather than separate sums for each element of pain, suffering and loss of amenity.

4. The Court rejected the Law Commission’s proposed increase of 50 to 100 per cent. It held that the upper end of the scale was too low, principally because seriously injured claimants now lived longer with grave deprivation. Awards at the highest level should increase by about one third; the increase should taper downwards; and awards below £10,000 should receive no general uplift. The RPI remained the ordinary means of updating guideline awards. GDP could assist a future broad review but was not a general substitute for the RPI.

5. Individual appeals. The Housecroft v Burnett, [1986] 1 All ER 332, bracket was not a ceiling for all catastrophic injuries. The appropriate bracket for the utmost severity was widened to £150,000 to £200,000. The awards to Warren and Annable were increased to £175,000 each. Ramsay’s award was increased to £138,000, Kent’s to £95,000, Rees’s to £50,000, and Schofield’s to £44,000. Connolly’s conventional award was increased from £3,000 to £4,000, but received no general uplift. No order was made in Heil.

6. The retrospective operation of the revised tariff did not breach Article 6 or Article 1 of Protocol 1. Revision of damages guidelines was foreseeable, and an award that ensured fair compensation served the public interest.

• Court of Appeal: Eight appeals were heard jointly. The Court revised the general tariff and varied the awards as stated in the judgment, except in Heil v Rankin.

• High Court and county courts: The appeals came respectively from the Queen’s Bench Division, Bristol County Court and Liverpool County Court. The lower courts had generally applied the existing Judicial Studies Board guidelines and left any general revision to the Court of Appeal.

• Earlier appellate step in Kent: The Court of Appeal had dismissed the London Ambulance Service’s liability appeal on 3 February 2000. This judgment addressed the claimant’s cross-appeal on general damages only.