Goudkamp, Tom --- "Damages for pain and suffering in the UK and Europe" [2021] PrecedentAULA 21; (2021) 163 Precedent 33

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DAMAGES FOR PAIN AND SUFFERING IN THE UK AND EUROPE

By Tom Goudkamp OAM

This article compares the rules governing compensation for pain and suffering in the UK, France, Germany, Italy, the Netherlands and Greece, which are all countries regularly visited by Australians. Generally, the law of the jurisdiction where the tort occurs is the law that applies, regardless of the country of origin of the injured person and whether they are a visitor.

A key difference between the relevant law in Australia and that in these foreign jurisdictions is that Australian law tends to rely more upon thresholds, caps and medical guidelines in the assessment of damages for pain and suffering. The law in the UK and Europe allows for more discretionary and subjective assessments. However, as is the case in Australia, factors such as the injured person’s age and their individual circumstances are relevant in determining the extent of awards for pain and suffering.

THE UNITED KINGDOM^[1]

There are different categories under the umbrella of ‘general damages’ which are outlined below.

Interestingly, in some cases, an uplift of 10 per cent is applied to awards of general damages to offset the impact of plaintiffs no longer being able to recover ‘success fees’ due to be paid to their lawyers. This is due to changes known as the Jackson reforms.^[2]

Pain, suffering and loss of amenity

The Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases^[3] (the Guidelines), regarded as a type of ‘soft law’, are used as a starting point in assessing damages for pain, suffering and loss of amenity.^[4] The Guidelines provide direction on assessing the appropriate level of general damages based on the injuries suffered. Where there are multiple injuries, the combined effects of the injuries are considered, rather than the individual figures attached to each injury. The Guidelines incorporate trends in judicial decisions when determining the appropriate figures for each type of injury.

Loss of work capacity and disadvantage in the employment market

General damages in the UK also consider the disadvantage experienced by the injured person on the open employment market as a result of their injuries, as well as the risk that they will become unemployed or underemployed in the future.^[5] This does not involve any damages awarded for actual lost wages but focuses on the injured person’s lost capacity. This category originates from the decision in Smith v Manchester.^[6]

More recently, actuarial tables known as the Ogden tables^[7] have been used to assess the damages in a more precise manner. In some cases, the Smith v Manchester approach is used to assess one part of the damages, while the Ogden tables are used for another.

The purpose of the tables is to aid in the calculation of lump sum damages for future losses arising from injuries and fatalities, through the provision of actuarial tables, explanatory notes and examples.

Rather comically, in the introduction to the most recent edition of the tables, Sir Michael Ogden QC is quoted as saying the following regarding his explanatory notes to the first edition:

‘When it comes to the explanatory notes we must make sure that they are readily comprehensible. We must assume the most stupid circuit judge in the country and before him are the two most stupid advocates. All three of them must be able to understand what we are saying.’^[8]

Loss of job satisfaction

Injured persons can also claim general damages for their loss of job satisfaction or ‘loss of congenial employment’ where they can prove that their injuries led to the loss of employment for which they had great passion and from which they derived significant satisfaction. The focus of this category is on the nature of the injured person’s pre-accident work and evidence of their passion, beyond just earning a living.

Other categories

There are various other categories of loss that can be considered depending on the injured person’s circumstances.

For instance, the injured person may receive damages for the loss of use of property and possessions that were damaged in the accident, such as motor vehicles. The damages awarded here are based on considerations such as:

• whether the item has been replaced;

• whether it is feasible for a replacement to be arranged;

• whether an alternative has been arranged;

• whether it is feasible for an alternative to be arranged; and/or

• the nature of the injured person’s use of the item before they were injured, including the purpose and frequency of use.

Other categories include the loss of enjoyment of holidays and/or other leisure activities resulting from the injuries as well as the loss of a relationship or a relationship breakdown.

FRANCE^[9]

The determinations of damages by French courts, including for pain and suffering, are based on a guide issued by His Honour Judge Dintilhac of the Supreme Court known as the ‘Dintilhac Schedule’.

Among other things, the Dintilhac Schedule indicates that damages are to be calculated based on the following three periods:

1. Prejudice and losses before the ‘consolidation date’ – the date on which maximum medical improvement is reached.

2. Consolidation date.

3. Prejudice and losses after the consolidation date.

No set table is relied upon to determine the quantum of damages for pain and suffering. However, there are indicative and general schedules used by several courts, which set out the range of damages to be awarded based on a scale involving ratings of 1 to 7 – with an ‘exceptional’ category beyond the rating of 7.

The following table explains the scale and likely range of compensation awards for each rating:

Rating	Degree of severity	Likely range of compensation (guide only) (€)
1	Très léger (very light)	Up to 2,000
2	Léger (light)	2,000 to 4,000
3	Modéré (moderate)	4,000 to 8,000
4	Moyen (medium)	8,000 to 20,000
5	Assez import (quite high/important)	20,000 to 35,000
6	Important (high/important)	35,000 to 50,000
7	Très import (very high/important)	50,000 to 80,000
-	Exceptionnel (exceptional)	80,000 and more

Pain is initially considered as part of the first period – that is, before maximum medical improvement is reached – and is assessed by a medical surveyor specialising in compensation for personal injury.

Any continuous pain that is suffered after maximum medical improvement is reached will form part of the permanent impairment evaluation.

The court relies heavily on the medical evaluation in determining the damages to be awarded.

The scale generally applies also to permanent impairments arising from ‘esthetical’ damage (for example, impact on appearance), although this damage usually only ‘solidifies’ in the period after consolidation.

On occasion, compensation can also be awarded for temporary esthetical prejudice before consolidation. In reality, compensation is rarely awarded in this category and if it is awarded, it is of minimal value given the temporary and often insignificant nature of the impairment, such as very minor scarring to a part of the body that is not easily seen.

GERMANY^[10]

In Germany, there is an emphasis on case law when assessing damages for pain and suffering.

Such damages are referred to as ‘schmerzensgeld’^[11] and the Bürgerliches Gesetzbuch (German Civil Code) applies. In addition, tables outlining the damages awarded in previous cases are used as a guide. These tables are known as the ‘Schmerzensgeldtabellen’.

Generally, the tables are consulted in the determination of damages for pain and suffering. However, there is also a wide discretion whereby the specific circumstances of each case must be considered and may warrant complete deviation from the tables.

Not dissimilar to other jurisdictions, some of the relevant considerations in Germany include:

• age of the injured person;

• loss of marriage/relationship or prospects in this regard;

• impairment of professional and vocational capacity and lost opportunities in this regard;

• impairment of capacity to engage in leisure activities and lost opportunities in this regard;

• impact on the injured person’s personality;

• loss of senses; and

• likely future effects and deterioration.

In addition, any criminal conviction against the wrongdoer as well as the financial situation of the wrongdoer is relevant in determining the damages to which the injured person is entitled.

Typically, damages for pain and suffering are paid as a lump sum. However, it is not uncommon for damages (or at times, part thereof) to be paid as an annuity.

ITALY^[12]

In Italy, damages for pain and suffering or ‘danno non patrimoniale’ (non-pecuniary damages) are divided into two sub-categories: ‘danno biologico’ (biological damage) and ‘danno morale’ (moral damage).

Danno biologico

This refers to the static profile of the injury as well as the consequences of the injury which are unique to the particular injured person.

This sub-category includes consideration of all kinds of loss of amenity and diminution of an injured person’s functioning, including everything from impairments to family life, social life and hobbies, to any impact on sexual functioning and vocational ability.

Permanent and temporary impairments are considered separately, with any temporary impairments considered from the date of the injury to the date of stabilisation.

Medical evidence is key in this sub-category as medical experts are required to conduct an assessment based on medical scales and determine the percentage of permanent invalidity.

Recognised psychiatric disorders are also considered as part of this sub-category.

Tables are used by the courts to ascertain the compensation awarded based on the percentage of permanent invalidity. The monetary value attached to temporary invalidity is dependent upon the number of days of invalidity experienced.

Danno morale

This sub-category covers such impairments as:

• pure moral internal suffering;

• mental and emotional distress;

• violation of human dignity;

• feelings of shock, fear, frustration, grief, anger, indignation, sorrow, anxiety, hurt feelings and moral offence; and

• ruined or spoiled holidays.

Although the components of this sub-category do not need to be formally assessed by a medical expert, the reality is that the experts tend to comment on them.

The court has the discretion to make awards over and above the tables to account for danno morale.

Overall, witness statements are often crucial in relation to this head of damage. The courts also rely on existing case law as well as presumptions.

THE NETHERLANDS^[13]

In the Netherlands, the term used to refer to damages for pain and suffering is ‘smartengeld’, which translates to ‘grief money’.

For example, in a claim involving a 75-year-old victim who, among other things, suffered a severe leg laceration resulting in significant scarring as well as nerve damage which led to ongoing disabilities, the range of smartengeld is arguably €10,000 (about AUD $16,000) to €40,000 (about AUD $65,000).^[14]

The determination of smartengeld is heavily reliant on the discretion of judges. Historically, judges’ awards have been quite modest compared with the amounts agreed upon between parties in settlements. However, in recent years, there has been a shift in judges’ attitudes towards damages for pain and suffering as demonstrated in judges awarding higher amounts.

The full circumstances of the claim are considered, including the:

• nature and severity of the injuries;

• degree of pain suffered by the injured person;

• presence or otherwise of permanent scarring;

• presence or otherwise of physical limitations;

• injured person’s age; and

• overall impact and influence of the injuries on the daily life of the injured person as compared with their lifestyle and level of functioning before the injury.

Existing case law is also used as a guide. Many practitioners rely on a guide book called ‘ANWB Smartengeldids’ which categorises the case law based on injury type and severity. The general approach is that if older case law is relied upon, the amounts awarded are indexed and/or a statutory interest rate is applied to account for the time that has elapsed since the judgment. Whether the increase applies from the date of the accident or the date of the award/settlement is a topic of contention.

GREECE^[15]

In Greece, damages for pain and suffering are referred to interchangeably as non-pecuniary damages/immaterial damages/moral damages. The damages are regulated primarily by Article 932 of the Greek Civil Code and case law is relied upon heavily in determining the amount of damages awarded. There are no caps, thresholds or restrictions on the amount of damages awarded.

Some of the key factors in determining the calculation of non-pecuniary damages include:

• the gravity of the wrongdoer’s fault or negligence;

• the age of the injured person;

• whether there is loss of physical or mental integrity;

• the nature of the impairment or invalidity, including whether it is temporary or permanent;

• whether there is permanent or long-term esthetical damage;

• any damage to sexual function;

• the impact on the victim’s loss of earning capacity;

• whether there is any loss of ability to socialise, partake in recreational and sporting activities and/or similar activities;

• any suffering resulting from permanent or long-term dependency on medical treatment;

• any discomfort suffered;

• in cases involving death, the distress suffered by the claimant with reference to their relationship and bond with the deceased;

• ruined or spoiled holidays; and

• generally, the loss of any ability or opportunity the injured person would have been able to enjoy.

The foregoing are only some indicative factors. Ultimately, the assessment and quantification of non-pecuniary damages is at the absolute discretion of the court in each case.

Notably, in claims involving death, all members of the deceased’s ‘family’ (defined as spouses, descendants irrespective of age including newborns, unborn children and grandchildren, ascendants including grandparents, and siblings) are entitled to damages for their pain and suffering arising from their grief and loss. The amount is determined by the court in much the same way as for primary victims.

CONCLUSION

While there are differences between each of the foregoing jurisdictions, there are common factors that are considered when determining the extent of an injured person’s pain and suffering. The general consensus is that injured people often suffer losses of a kind that cannot be calculated with precision and are not always obvious. The availability of damages for pain and suffering across the jurisdictions covered in this article allows lawyers and decision-makers to delve deeper into the nature of the victim’s loss and to identify the less tangible, yet very real, losses suffered. This enables the appropriate amount of compensation to be ascertained.

Generally, compensation payments for pain and suffering under Australian (in particular NSW) law are more generous than those in the UK and Europe. However the extensive reforms in this area of law have meant that awards in Australia are not as generous as they used to be.

Tom Goudkamp OAM is the Managing Director of Stacks Goudkamp and a former ALA National President. EMAIL [e-mail].

The author would like to acknowledge the assistance of: Rita Yousef (Accredited Specialist in Personal Injury Law, Stacks Goudkamp); Choeli Cooper (Paralegal, Stacks Goudkamp); Professor James Goudkamp (University of Oxford, Faculty of Law); Silina Pavlakis (Pavlakis – Moschos Law Firm, Greece); Paschalis Moschos (Pavlakis – Moschos Law Firm, Greece); Coen de Koning (Slot Letselschade Zeist, the Netherlands); Frank Benham (ETIC, France); Marco Bona (Studio Legale Bona Oliva & Associati, Italy); and Giulia Oberto (Studio Legale Bona Oliva & Associati, Italy).

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^[1] This section was prepared with the assistance of Professor James Goudkamp (University of Oxford, Faculty of Law). See further: B Markesinis, M Coester, G Alpa and A Ullstein, Compensation for Personal Injury in English, German and Italian law: A Comparative Outline, Cambridge University Press, 2005.

^[2] Lord Justice Rupert Jackson, Review of Civil Litigation Costs: Supplemental Report Fixed Recoverable Costs (Supplemental report, July 2017) <https://www.judiciary.uk/wp-content/uploads/2017/07/fixed-recoverable-costs-supplemental-report-online-2-1.pdf>.

^[3] 15th ed, Oxford University Press, 2019, <https://global.oup.com/academic/content/series/j/judicial-college-guidelines-for-the-assessment-of-general-damages-in-personal-injury-cases-jcg/?lang=en&cc=au>.

^[4] Simmons v Castle [2012] EWCA Civ 1039.

^[5] Smith v Manchester Corporation (1974) 17 KIR 1 (Smith v Manchester).

^[6] Ibid.

^[7] Government Actuary’s Department, Actuarial Tables with explanatory notes for use in Personal Injury and Fatal Accident Cases (8th edition, 2020) (Ogden tables).

^[8] Ibid, 8.

^[9] This section was prepared with the assistance of Frank Benham (ETIC, France).

^[10] Markesinis, Coester, Alpa and Ullstein, above note 1.

^[11] Bürgerliches Gesetzbuch (German Civil Code), s253.

^[12] This section was prepared with the assistance of Marco Bona (Studio Legale Bona Oliva & Associati, Italy) and Giulia Oberto (Studio Legale Bona Oliva & Associati, Italy). See further: Markesinis, Coester, Alpa and Ullstein, above note 1.

^[13] This section was prepared with the assistance of Coen de Koning (Slot Letselschade Zeist, the Netherlands).

^[14] These facts are based on a case that was settled on a confidential basis.

^[15] This section was prepared with the assistance of Silina Pavlakis (Pavlakis – Moschos Law Firm, Greece) and Paschalis Moschos (Pavlakis – Moschos Law Firm, Greece).