Remedies for personal injury and death claims - General damages: pain, suffering, and loss of amenity

Learning Outcomes

This article explains the concept and assessment of general damages in personal injury claims, specifically focusing on damages for pain, suffering, and loss of amenity (PSLA). After studying this material, you should understand the purpose of these damages, the factors considered in their assessment, the key principles applied (such as objectivity and subjectivity), and the role of judicial guidelines. This knowledge will assist you in analysing scenarios and identifying relevant legal principles concerning non-pecuniary loss in SQE1 assessments.

SQE1 Syllabus

For SQE1, you are required to understand the principles governing the award of damages in tort claims, including the assessment of general damages for personal injury. This involves appreciating how the courts compensate for non-financial losses resulting from injury.

As you work through this article, remember to pay particular attention in your revision to:

  • the definition and purpose of general damages for personal injury.
  • the specific heads of general damage: pain, suffering, and loss of amenity (PSLA).
  • the factors influencing the assessment of PSLA damages.
  • the principles applied when quantifying these types of non-pecuniary loss.
  • the role and significance of the Judicial College Guidelines.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Which of the following BEST describes general damages in a personal injury claim?
    1. Compensation for quantifiable financial losses incurred up to the date of trial.
    2. Compensation for non-financial losses such as pain and impact on lifestyle.
    3. Compensation specifically for future medical expenses and loss of earnings.
    4. A fixed sum awarded regardless of the severity of the injury.

  2. True or False: Damages for 'loss of amenity' are primarily assessed based on the claimant's subjective awareness of their loss.

  3. Which publication provides guideline figures for assessing general damages in England and Wales?
    1. The Civil Procedure Rules
    2. The Law Reform (Personal Injuries) Act 1948
    3. The Judicial College Guidelines
    4. The Damages Act 1996

Introduction

When a claimant succeeds in a personal injury claim, the court awards damages designed to compensate them for the loss and harm suffered due to the defendant's tort. Damages are typically divided into special damages (covering quantifiable financial losses up to trial) and general damages (covering non-quantifiable losses and future financial losses). This article focuses specifically on the non-pecuniary aspects of general damages: compensation for pain, suffering, and loss of amenity (often abbreviated as PSLA). Understanding how these intangible losses are valued is a fundamental aspect of personal injury litigation.

COMPONENTS OF GENERAL DAMAGES: PSLA

General damages for non-pecuniary loss aim to compensate the claimant for the intangible effects of their injury. This is inherently difficult, as money cannot truly restore what has been lost in terms of physical comfort or enjoyment of life. However, the law attempts to provide a fair monetary sum. The main components are pain and suffering, and loss of amenity.

Pain and Suffering

This head of damage covers the physical pain resulting directly from the injury, any necessary medical treatment, and the psychological suffering endured by the claimant. This includes mental anguish, distress, fear, anxiety, embarrassment, and depression caused by the injury or its consequences.

Key Term: Pain and Suffering
Compensation awarded for the physical hurt and mental distress experienced by a claimant as a direct result of their personal injury.

The assessment of pain and suffering is largely subjective, taking into account the individual claimant's experience.

Key Term: Subjective Test
An assessment based on the individual's personal experience, feelings, or viewpoint, rather than external standards.

Factors considered include:

  • The severity and nature of the initial injury.
  • The duration of pain, both past and expected future suffering.
  • The extent of any mental anguish or psychological harm directly linked to the physical injury.
  • The claimant's awareness of their condition (an unconscious claimant cannot experience pain and suffering for the period of unconsciousness).

Loss of Amenity

Loss of amenity refers to the reduction in the claimant's ability to enjoy life, engage in activities, and pursue hobbies or interests due to their injury. It focuses on the loss of lifestyle.

Key Term: Loss of Amenity
Compensation awarded for the reduction in a claimant's ability to enjoy life, pursue activities, and participate in aspects of their pre-injury lifestyle due to their injury.

Unlike pain and suffering, loss of amenity is assessed objectively. The court considers the extent to which the claimant's life has been affected, regardless of whether the claimant is fully aware of the loss (e.g., an unconscious claimant still suffers a loss of amenity).

Key Term: Objective Test
An assessment based on external, measurable standards or what a reasonable person would perceive, rather than the individual's personal feelings.

Factors considered include:

  • The claimant's age and pre-injury lifestyle, hobbies, and activities.
  • The impact of the injury on work, social life, family life, and leisure pursuits.
  • The duration of the loss of amenity, including any future limitations.
  • Loss of senses (e.g., sight, hearing).
  • Impact on marriage prospects or personal relationships.

Worked Example 1.1

Aisha, a 25-year-old professional dancer, suffers a severe leg fracture in a road traffic accident caused by David's negligence. The injury requires multiple surgeries, causes significant ongoing pain, and prevents her from ever dancing professionally again. She also develops clinical depression as a result. What elements of PSLA might Aisha claim for?

Answer: Aisha can claim for:

  • Pain and Suffering: Covering the pain from the fracture, surgeries, ongoing discomfort, and her diagnosed depression (mental suffering). This is assessed subjectively based on her experience.
  • Loss of Amenity: Covering her inability to pursue her dancing career, loss of enjoyment from this activity, impact on her social life, and potentially other activities she can no longer enjoy. This is assessed objectively based on the impact on her lifestyle, considering her age and profession.

ASSESSMENT AND QUANTIFICATION

Quantifying damages for PSLA is challenging. Courts aim for consistency and fairness, relying on established principles and guidelines.

Judicial College Guidelines

To aid consistency, the judiciary refers to the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases. These guidelines provide brackets (ranges of suggested awards) for different types of injuries based on severity and impact.

Key Term: Judicial College Guidelines
Officially published guidelines providing recommended compensation brackets for various types of personal injuries, used by courts in England and Wales to ensure consistency in assessing general damages.

While not binding, these guidelines are highly influential and provide a starting point for valuing PSLA claims. The specific award within a bracket depends on the individual circumstances, considering factors like the claimant's age, the severity and duration of pain, the extent of disability, and the impact on their life.

Case Precedent

Courts also consider awards made in previously decided cases involving similar injuries. This helps maintain consistency and ensures that awards reflect current judicial thinking on the value of different types of injury and their consequences.

Factors Influencing the Award

The final amount awarded for PSLA is determined by considering:

  • Severity: More severe injuries attract higher awards.
  • Duration: Longer periods of suffering or permanent disability result in higher awards.
  • Impact: The greater the impact on the claimant's life, work, and enjoyment, the higher the award.
  • Age: A younger claimant suffering permanent disability may receive a higher award for loss of amenity due to the longer period of loss.
  • Multiple Injuries: Where a claimant suffers multiple injuries, the court avoids simply adding up individual awards. It assesses the overall impact and awards a total sum reflecting the combined effect, often slightly less than the sum of individual awards to avoid over-compensation.

Worked Example 1.2

Ben, aged 60, suffers a moderate whiplash injury in a car accident, causing pain for 12 months and restricting his ability to play golf, his main hobby. Chen, aged 30, suffers an identical whiplash injury, also causing pain for 12 months, but it prevents her from participating in her main hobby, competitive rock climbing. Are their PSLA awards likely to be the same?

Answer: Likely not identical. While their pain and suffering might be assessed similarly based on the 12-month duration, their loss of amenity awards could differ. Chen's inability to pursue competitive rock climbing might be viewed as a greater loss of amenity given her age and the nature of the activity compared to Ben's restriction from golf, potentially leading to a higher overall PSLA award for Chen, even if their physical injury descriptions are similar. The objective assessment of LoA considers the specific impact on their individual lifestyles.

Exam Warning

Remember that PSLA damages are distinct from special damages (past financial losses) and future pecuniary losses (like future loss of earnings or care costs). While a severe injury impacting amenity might also lead to significant future financial loss claims, the PSLA award specifically compensates for the non-financial impact of the injury itself. Ensure you can distinguish between these heads of damage in assessment scenarios.

Key Point Checklist

This article has covered the following key knowledge points:

  • General damages compensate for non-financial losses in personal injury claims.
  • The main components are Pain and Suffering (PS) and Loss of Amenity (LoA), collectively PSLA.
  • Pain and Suffering covers physical pain and mental distress, assessed subjectively.
  • Loss of Amenity covers the reduced ability to enjoy life and activities, assessed objectively.
  • Quantification relies on the Judicial College Guidelines and case precedent for consistency.
  • Factors like injury severity, duration, impact on lifestyle, and age influence the award amount.
  • Awards for multiple injuries are assessed holistically, not merely summed.
  • PSLA is distinct from special damages and future financial loss claims.

Key Terms and Concepts

  • Pain and Suffering
  • Subjective Test
  • Loss of Amenity
  • Objective Test
  • Judicial College Guidelines
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Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

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