Determining the amount of compensation/damages for personal injuries

The task of determining the amount of compensation for personal injuries is difficult. Personal injuries may be of two kinds : (1) non-pecuniary loss and, (II). pecuniary loss.

(1) Non-pecuniary losses.

Non-pecuniary losses are the following:

(1) Pain and suffering: If as a result of defendant’s negligent act pain and suffering is caused to the person he shall be entitled to compensation. it may include pain attributable to medical treatment for the injury. It includes present and future pain and suffering. The amount of compensation will vary with the intensity of pain and suffering of the plaintiff. For example if the plaintiff after receiving injury became unconscious or unable to experience pain he will get no compensation under this head, however, serious the injury may be.

(2) Loss of expectation of life: In order to determine damages the court has consider the question whether due to the injury caused by the tortuous act of the defendant plaintiff expectation of life has been shortened. Bodily injury may be of such type which may weaken plaintiff’s hope of future life or there may be no hope of his survival. For every healthy person it is hoped that he will remain alive up to a fixed duration. This is known as expectancy of life. To determine damages on the shortening of life expectancy of a person due to an accident and that too in the form of money is a difficult thing. But it does not mean that due to non-valuation of amount of damages compensation may not be given. In order to know the life expectancy of a person his present health, his expectancy of a happy life, and his earning capacity etc. may be considered.

The question as to what should be the amount of damages on this head came for determination of the House of Lords in England in Benham v. Gambling. In that case, in a motor accident a boy of two and half years old was seriously injured and died. The boy was healthy and living under favourable circumstances. The House of Lords awarded him 280 pounds by way of damages. The House of Lords laid down the following rules to be followed by court in determining damages in such cases:

(1) The test to determine compensation is not the length of time of life of which a person has been deprived but it should be the prospect of predominantly happy life.

(2) The test of happiness of life in not to be subjective, i.e., how the deceased thought about the chances of his son’s happiness, the test is an objective one.

(3) Damages are not awarded for future, pecuniary prospects. Damages are given for loss of life.

(4) Assessment of damages on this head is very difficult and therefore very moderate damages should be awarded. In the case of a child the damages should be even less because the prospects of his real life and happiness are very uncertain.

(5) Since happiness does not necessarily depend on wealth an status, the economic and social position of a deceased has to be ignored in assessing such damages.

In Asha Ram v. M.C. of Delhi, the plaintiff filed a suit against Municipal Corporation of Delhi for the recovery of Rs. 4 lacs as damages on account of the death of their son which was caused due to rash and negligent act of the department. The fact was that a naked and uninsulated wire was protruding across the staircase of the plaintiffs house. The plaintiff had been lodging complaint to the department of Delhi Electricity Supply Undertaking (DESU) regarding defective supply and hanging loose wire on his house. One day when the son of the plaintiff was going to meet him, who was on the first floor and was climbing the staircase he come in contact with the loose naked wire and was thus electrocuted. The Delhi High Court held that the department, the Electricity Board was negligent and liable to pay compensation for a sum of Rs. 3,60,000  with cost plus simple interest at the rate of 12 per cent from the date of the filing of the suit till realisation. Applying the principles of restitution in interregnum the Court held that in determining the damages factors like pains and sufferings, pecuniary loss, cost of amenities of life on account of death of deceased should be considered. The deceased was young boy of 19 years and was having good health and earning between Rs. 1500 to Rs. 2000 per month at the time of his death. There is a long list of the family of the deceased. His father was 62 years of age. His grand father dead on the age of 95 years and great grandfather dies at the age of 99 years. Therefore it can safely be said that the deceased would have lived at least 50 years if he had not been electrocuted. In these circumstances multiplier of 30 years can be safely applied keeping in view of his income of Rs. 1500 p.m. out of which he must be spending at least some amount to himself. Both the plaintiff’s were dependent on their unmarried son and thus there had been a pecuniary loss to them on account of the death of their son beside mental torture, pain and suffering.

(II) Pecuniary losses.

This includes the following heads of losses:

(1) Loss of Earning capacity: If as a result of injury there is loss of earnings or earning capacity of the plaintiff he will be entitled to damages. Loss of earning capacity comes under the category of ‘special damage’ and is awarded for the period of loss of earning capacity and up to the time of filling the suit for damages.

(2) Medical Expenses: The plaintiff is entitled to reasonable medical expenses which he has to incur as result of bodily injuries. This includes both present medical expenses and future medical expenses. It  also includes expenses for taking the plaintiff to a hospital, for purchasing medicines and equipments required for his treatment, fees of private doctors and similar other expenses. This includes not only expenses on medical and nursing but expenses on all those things which had made his livelihood very expensive, such as, cost of special care, or cost of special equipments or cost of very expensive food etc.

Sometimes serious injuries make a person invalid for years, and even for life. In such cases the plaintiff has to be compensated the cost of future care. In such cases now the law is well settled that the plaintiff is entitled to recover the value of nursing and other services gratuitously rendered to him by wife, parents and other relatives.

In such cases the damages are awarded on the principle that the plaintiff’s loss is the existence of the need of that services.

One of the important pecuniary loss for which damages are awarded is the ‘loss of earnings’. In assessing damages for loss of earnings two fundamentals are followed. The first damages are compensatory and intended, so far as money can, to put the plaintiff to the same financial
position as if the accident had never happened. The second is that it is no concern of the tortfeasor how the injured plaintiff chooses to dispose of his earnings.

(3) Right to interest on Damages : Both in England and as well as in India interest on damages are awarded to the plaintiff. In England interest on non-pecuniary loss is awarded at the rate of 2% from the date of filing the suit up to the date of judgment. In India, the practice is that the interest is given from the date of filing of suit. At present, practice in India is to award interest at the rate of 12% from the date of filing of the suit which is payable on the total amount of compensation. But the Karnataka High Court is in favour of awarding interest at the
rate of 6% on the amount of compensation.

In Lim Poh Choo v. Canden and Istington Area Health Authority, the plaintiff was a senior psychiatric Registar and at the time of accident he was 36 years old. In 1973 she was admitted to the defendant’s hospital for minor operation. Due to the negligence of one of the hospital staff, the plaintiff suffered cardiac arrest and irreparable brain damage and as a result she became invalid for her life. She went to Penang where her mother was living but as there was no proper facility for care there she returned to England. She became intellectually impaired that she could not understand what had happened to her. But her expectancy of life which was estimated to be 37 years had not, been reduced. Her condition was such that there was a total loss of her earning capacity and she needed total care for the rest of her life. The House of Lords awarded damages under following heads-Pain and suffering, loss of amenities £20,000, out of pocket expenses £ 3,596; cost of care to the date of judgment of the House of Lords (21st June, 1977) 22,68,964. Loss of earning to the date of judgment of trial (7th Dec, 1977) £ 14,213, cost of future care ie., from the date of the judgment of the House by applying a multiplier of 12-£-76,800, loss of future earnings from the date of judgment at the trial by applying a multiplier of 14-£-4,84,000; Loss of pension £8,000; total £ 2,29,29,864.

In Crokel (a minor) v. Wiseman, the plaintiff, a boy aged 21 months, was admitted in a hospital for treatment. Due to negligence in the treatment, the plaintiff suffered cardio-respiratory arrest, resulting in irreparable brain damage. His brain ceased to function and he became blind, and was unable to speak and was paralysed in all four limbs. His life expectancy was reduced to 40 years. The plaintiff’s mother gave up permanent service as a teacher to care for him. The Court of Appeal awarded him damages as follows:

Pain and suffering and loss of amenities £ 35,000; future cost of nursing care £ 1,19,000 (annual cost of parental nursing was valued as £2,500 and annual cost of extra nursing was valued at £ 6,000, i.e., total annual cost of nursing was assessed at £ 8,500 per annum to which a multiplier of 14 was applied), and loss of future earnings £ 2500 (annual loss was assessed at £ 5,000, and a multiplier of 5 was applied on the reasoning that the plaintiff was not expected to start earning before 18, and his maximum working life, taking 40 as his reduced life expectancy,would have lasted only for 22 years, and he was receiving a lump sum more than 11 years before earnings would commence. Plaintiff was not awarded damages for loss of earnings of lost years that in a case of child of tender age the amount of earnings are so speculative that its assessment was not possible, the Court followed the case of Picket v. British Road Engineering Ltd.

In Puspa Thakur v. Union of India the appellant, who an unmarried girl aged 23, had sustained serious injuries in her both legs in a road accident and as a result her right leg had to be amputated. The Supreme Court allowed a global award of Rs. 1,00,000 with 12% interest from the date of the Court’s order. The Court followed the principle of assessment in such cases laid down in English case of Hughes v. Mekeown. In that case a female was injured in an accident resulting in reduction of both her prospects of marriage and her future earnings. It was held that in such cases the correct approach is to consider the matter on the basis of the plaintiff’s economic loss, disregarding the intervention of marriage, since during the period when a woman is married and child bearing, she is still working, albeit in a different capacity, and is being supported by her husband, which is an economic gain. The simplest way of assessing the plaintiff’s loss of future carnings is for the Court to fix the multiplier without regard to the possibility that as a result to marriage and child bearing, the plaintiff would have ceased to work for a time. Similarly, damages for pain and suffering and loss of amenities will include an amount for loss of the comfort and companionship of marriage and will disregard the economic aspect of loss of marriage prospects.

In Jay Laxmi Works (P) Ltd. v. State of Gujarat, the facts of the case were that in 1954 the State of Saurashtra, which now is part of Gujarat made a plan for reclamation of vast area of land from saltish water of sea by erecting a reclamation bundh’ so as to prevent sea water flowing in several creeks in the area on the sea side of the bundh from flowing further to the claimed site and making the lands in that area saltish. The appellant even before the construction of the bundh had been writing to the authorities concerned either to abandon the bundh or to change the location of weirs so as not to face the appellant’s factory. Due to heavy rain, the flood water broke the protective bundh and entered into the premises of the appellant’s factory causing considerable damage. After the flood water recided the appellant approached the authorities and the Government for redress and claimed damages of about Rs. 4 lakhs. It was asked by the Government to get it privately assessed. The Chief Engineer Charotar Gram Udhar Sahkari Mandal Limited submitted a report on 30.8.1956. An official committee was also appointed and the committee found that the appellant had suffered a loss of Rs. 1,58,735. Since this amount was not paid to the appellant he filed the suit for damages against the State. It was contended by the State that there was no negligence in the construction of the bandh. The amount of damages was not acceptable to the State. The trial court dismissed the suit as it did not find any negligence and according to it the damage was an act of good. It also held that the suit was barred by time of limitation. In the High Court there was conflict of opinion between the two Judges and the matter was referred to a third judge who held that the rule of strict liability as enumerated in Rylands v. Fletcher was not applicable to the facts of the present case.

The Supreme Court held that the rule of strict liability laid down in Ryland v. Fletcher has not been modified in Modern Cultivators case and the Government was liable to pay damages to the appellant for the tortuous act committed by its employees. The damage was caused to the appellant not only because of negligence of officers but also because it was due to failure of public duty and mistake. Liability in tort may arise without fault. The Court said that where the mistake. Liability in tort may arise without fault. The Court said that where the State undertakes common law duty its ‘actions may give rise to common law tort. Negligence in performance of duty is only a step to determine if actions of Government resulting in loss or injury to common man should not go unpunished. If construction of bandh is a common law public duty then any loss or damage arising out of it gives rise to tortious liability not in the conservative sense but certainly in the modern and developing sense. A common man, a man in the street cannot be left high and dry because wrongdoer is State. The basic element of tort is duty. And that comes into play when there is a common law duty since construction of bundh was a common law duty any injury suffered by a common man was a public tort liable to be compensated. The defective planning in construction of a bundh was a negligence and therefore the Government was liable to pay damages. The Court set aside the decree and order passed by the two courts below and decreed the suit of the appellant for Rs. 1,58,735 the amount of the damage determined by the trial court which was neither appealed from nor objected to by the respondent. The respondent was also directed to pay interest at the rate of 6% pe annum from the date of decree till December 1982 and the rate of 9% per annum from 1982 to December 1992 and at the rate of 12% per annum from January, 1997 till the amount is paid.

In M.K. Gouri Kutty v. M.K. Raghavan, the plaintiff underwent an operation for Tubectomy conducted by the defendant in the Government hospital, Calicut. The fifth defendant performed anaesthesia for the said purpose. After the operation, the plaintiff did not regain consciousness even after so many days. It is stated that even today she remained unconscious. According to the plaintiff, it was due to negligence of defendants that the mishap occurred. At the time of operation, the plaintiff was only 30 years of age. The plaintiff was an assistant nurse-cum-midwife, drawing a salary of Rs. 280/-. As a result of said operation, she could not rejoin service and was finally removed from service. The trial court awarded a total compensation of Rs. 3,38,395/- with interest at 12% per annum from the date of suit till date of payment. The defendants field an appeal against this judgment. The court below had given compensation under the following heads : Rs. 1,58,395/- amount she would have received towards salary if she were in service, Rs. 60,000 amount spent for person to look after her, Rs. 20,000 for pain and suffering, Rs. 10,000/- loss of consortium to the husband, Rs. 10,000/- loss of affection and Rs. 20,000/- towards gratuity. Thus, a total amount of Rs. 3,38,395 had been decreed. This was challenged by appellants. The first question was regarding salary. The statement field showed the salary of the plaintiff is she was in service the total amount came to Rs. 2,06,392. But the court below reduced it by 40% stating that this would have been spent by the plaintiff for herself. The High Court held that this was not proper and she was entitled to the entire expenses taking into consideration that the plaintiff was now bedridden. Thus, the High Court awarded a sum of Rs. 2,80,944/- instead of Rs. 3,38,395/-.


Examine and explain the task of determining the amount of compensation/damages for personal injuries.

“There is no universal rule for determination of amount of damages. It will be determined on the basis of facts and circumstances of each case.” Examine the statement.

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