In Ward v. James,
1966 1 Q.B. 273 at pp. 299-300 speaking for the Court of Appeal in
England, Lord Denning laid down three basic principles while dealing
with the question of awarding compensation for personal injury:
Firstly,
assessability: In cases of grave injury, where the body is wrecked or
brain destroyed, it is very difficult to assess a fair compensation in
money, so difficult that the award must basically be a conventional
figure, derived from experience or from awards in comparable cases.
Secondly,
uniformity: There should be some measure of uniformity in awards so that
similar decisions may be given in similar cases, otherwise, there will
be great dissatisfaction in the community and much criticism of the
administration of justice.
Thirdly, predictability: Parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to Court, a thing very much to the public good. In deciding on the quantum of damages to be paid to a person for the personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries, as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him.
If the original position cannot be restored - as indeed in personal
injury or fatal accident cases it cannot obviously be - the law must
endeavour to give a fair equivalent in money, so far as money can be an
equivalent and so 'make good' the damage. Therefore, the general
principle which should govern the assessment of damages in personal
injury cases is that the Court should award to injured person such a sum
of money as will put him in the same position as he would have been in
if he had not sustained the injuries. But, it is manifest that no award
of money can possibly compensate an injured man and renew a shattered
human frame. To compensate in money for pain and for physical
consequences is invariably difficult but no other process can be devised
than that of making a monetary assessment. When damages have to be
assessed in a case of this kind there are many elements for
consideration: the pain and suffering undergone and that which may occur
in the future; the loss of some of the amenities of life; the fact that
a man with an injury of this kind will always require some measure of
help, even though he may be able to earn considerable money. These are
some of the matters which have to be taken into consideration, and
another is the fact that his earnings will probably be less than they
were before.
It is the manifest duty of the Tribunal to give as perfect a sum as was
within its power. There are many losses which cannot easily be expressed
in terms of money. If a person, in an accident, loses his sight,
hearing or smelling faculty or a limb, value of such deprivation cannot
be assessed in terms of market value because there is no market value
for the personal asset which has been lost in the accident, and there is
no easy way of expressing its equivalent in terms of money.
Nevertheless a valuation in terms of money must be made, because,
otherwise, the law would be sterile and not able to give any remedy at
all. Although accuracy and certainty were frequently unobtainable, a
fair assessment must be made. Although undoubtedly there are
difficulties and uncertainties in assessing damages in personal injury
cases, that fact should not preclude an assessment as best as can, in
the circumstances be made. Of course the whole region of inquiry into
damages is one of extreme difficulty. You very often cannot even lay
down any principle upon which you can give damages; nevertheless, it is
remitted to the jury, or those who stand in place of the jury, to
consider what compensation in money shall be given for what is a
wrongful act. Take the most familiar and ordinary case: how is anybody
to measure pain and suffering in moneys counted? Nobody can suggest that
you can by any arithmetical calculation establish what is the exact
amount of money which would represent such a thing as the pain and
suffering which a person has undergone by reason of an accident. But,
nevertheless, the law recognises that as a topic upon which damages may
be given.
In personal injury cases, the Court is constantly required to form an estimate of chances and risks which cannot be determined with precision. It is because, the law will disregard possibilities which are slight or chances which are nebulous; otherwise, all the circumstances of the situation must be taken into account, whether they relate to the future which the plaintiff would have enjoyed if the accident had not happened, or to the future of his injuries and his earning power after the accident. Damages are compensation for an injury or loss, that is to say, the full equivalent of money so far as the nature of money admits; and difficulty or uncertainty does not prevent an assessment.
It is well-settled principle that in granting compensation for personal
injury, the injured has to be compensated (1) for pain and suffering;
(2) for loss of amenities; (3) shortened expectation of life, if any;
(4) loss of earnings or loss of earning capacity or in some cases for
both; and (5) medical treatment and other special damages. In personal
injury cases the two main elements are the personal loss and pecuniary
loss. In assessing the compensation the jury should take into account
two things, first, the pecuniary loss the plaintiff sustains by the
accident : secondly, the injury he sustains in his person, or his
physical capacity of enjoying life. When they come to the consideration
of the pecuniary loss they have to take into account not only his
present loss, but his incapacity to earn a future improved income".
A man is not compensated for the physical injury; he is compensated for
the loss which he suffers as a result of that injury. His loss is not in
having a stiff leg; it is in his inability to lead a full life, his
inability to enjoy those amenities which depend on freedom of movement
and his inability to earn as much as he used to earn or could have
earned.
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