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Pain and suffering includes the physical pain, mental suffering and other unpleasant mental sensations caused by the injury and any necessary medical treatment. Damages for pain and suffering are intended to provide some consolation to the plaintiff. But the calculation of the award is difficult.
Diplock LJ said in Wise v Kaye [1962] 1 QB 638 (at 664):
"…there is no rational ground for saying that £ 5,000, rather than £ 1,000 or £ 20,000, is the right award … for the loss of a leg below the knee…".
There are various approaches to calculating an appropriate award.
- One possibility is for the court to assess each case on its own facts. This is unlikely to lead to consistency between cases.
- Another possibility is to establish a scale or 'tariff' which provides a range within which individual plaintiffs, their attributes and the impact of their injuries can be assessed. This provides a framework within which the court can assess the damages in particular cases with a degree of consistency.
- A third option is for a court to refer to earlier decisions to help establish an appropriate award.
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