1

ICLR: Appeal Cases/1980/LIM POH CHOO RESPONDENT AND CAMDEN AND ISLINGTON AREA
HEALTH AUTHORITY APPELLANTS - [1980] A.C. 174
[1980] A.C. 174
[HOUSE OF LORDS]

LIM POH CHOO RESPONDENT AND CAMDEN AND ISLINGTON AREA HEALTH
AUTHORITY APPELLANTS

1979 March 26, 27, 28, 29; April 2; June 21

Lord Diplock, Viscount Dilhorne. Lord Simon of Glaisdale and Lord Scarman
Damages - Personal injuries - Assessment - Severe brain damage - Doctor aged 36 with good prospects Hospital negligence - Expectation of life same as before injury - No depen-dants - Whether damages of
243,309 excessive - Pain and suffering and loss of amenities - Unawareness of loss - Extent to which
inflation to be considered - Damages for loss of earnings - Whether plaintiff in "catastrophic" case entitled to
recover - Need to avoid duplication of damages - Damages for cost of care to be assessed on basis that
capital as well as income to be used - Inflation - Relevance - Whether reappraisal of principles governing
awards of damages for personal injuries desirable
Law Reform - Whether necessary - Damages - Personal injuries - Radical reappraisal needed - Availability of
National Health Service facilities - Whether repeal of statutory provision advisable - Law Reform (Personal
Injuries) Act 1948 (11 & 12 Geo. 6, c. 41), s. 2 (4)
The plaintiff was a senior psychiatric registrar employed in the National Health Service. She was described in
evidence as a "remarkably intelligent doctor," and had a career ahead of her in her chosen speciality of
psychiatric medicine. On February 28, 1973, when she was 36 years old, she was admitted to a National
Health Service hospital for a minor operation, which was carried out the next day. Following the operation,
when in the recovery room, she suffered a cardiac arrest, and, as a result, extensive and irremediable brain
damage, which left her only intermittently, and then barely, sentient and totally dependent on others. Her
expectation of life remained, however, substantially the same. On
[1980] A.C. 174 Page 175
September 19, 1974, suing by her mother as next friend, she issued a writ against the defendants claiming
damages for negligence. Shortly before trial, the defendants admitted liability, and accordingly the only issue
at trial was as to damages. Bristow J., on December 7, 1977, awarded the plaintiff damages totalling
243,309, including 20,000 for pain, suffering and loss of amenities, 105,500 for the cost of future care of
the plaintiff, 84,000 for loss of future earnings and 8,000 for loss of pension. The defendants appealed. On
the appeal, the plaintiff by a respondent's notice contended that 20,000 was an insufficient award for pain,
suffering and loss of amenities at the date of judgment. The Court of Appeal (Lord Denning M.R. dissenting)
dismissed the appeal and declined to vary the sum awarded by the judge for pain, suffering and loss of
amenities. The Court of Appeal and the House of Lords admitted fresh evidence as to the cost of the future
care of the plaintiff.
On appeal by the defendants and cross-appeal by the plaintiff: -

Held, (1) that the mere fact that a total award was high was no ground for the judge reducing his assessment
or for its variation on appeal (post, p. 188D).
(2) That the fact that the plaintiff was unconscious of it did not eliminate the actuality of deprivation of the
ordinary experiences and amenities of life; that, the plaintiff's loss of the amenities of her good and useful life
being total, the award of 20,000 was not excessive; but that, since it was, even in the context of current
money values, a substantial sum, it was not inadequate to compensate for the plaintiff's substantial loss
(post, pp. 188F, 189D, 190A).
Wise v. Kaye [1962] 1 Q.B. 638, C.A. and H. West & Son Ltd. v. Shephard [1964] A.C. 326, H.L.(E.) applied.
Benham v. Gambling [1941] A.C. 157, H.L.(E.) distinguished.
(3) That, since a genuine deprivation, whether pecuniary or non-pecuniary in character, was a proper subject
of compensation, a plaintiff in a "catastrophic" case was entitled to recover damages for loss of earnings;
that, to avoid duplication, or exceeding a true compensation for the plaintiff's deprivation or loss, sums for
expenses incurred in earning an income as well as living expenses fell to be deducted from the damages
awarded; but that, in a case of incapacity where there was a cost of care claim as well as a loss of earnings
claim, the right approach in calculating living expenses was not to attempt an assessment of how much the
plaintiff would have spent and on what, but to deduct the "domestic element" from the cost of care in
calculating the multiplicand (post, pp. 190E - 191A, D - 192A, 196B); that in assessing the award for the cost
of care account should be taken of the fact that capital as well as income was to be used in meeting the cost
(i.e. by calculating the amount on an annuity basis) (post, p. 192F-H).
Phillips v. London and South Western Railway Co. (1879) 5 C.P.D. 280, C.A.; Shearman v. Folland [1950] 2
K.B. 43, C.A.; H. West & Son Ltd. v. Shephard [1964] A.C. 326, H.L.(E.) and Pickett v. British Rail
Engineering Ltd. [1980] A.C. 136 H.L.(E.) applied.
(4) That the law was now settled, by what was a sensible rule of practice rather than a rule of law, that only in
exceptional cases, where justice could be shown to require it (bearing in mind the investment opportunity that
a lump sum
[1980] A.C. 174 Page 176
award offered), would the risk of future inflation be brought into account in the assessment of damages for
future loss (post, pp. 193D-E, H - 194A).
Taylor v. O'Connor [1971] A.C. 115, H.L.(E.) and Young v. Percival [1975] 1 W.L.R. 17, C.A. applied.
Cookson v. Knowles [1979] A.C. 556; [1978] 2 W.L.R. 978, H.L.(E.) considered.
(5) That, in the result, on the questions of principle argued before the House, the defendants had
substantially failed in the appeal but succeeded on the cross-appeal; but that, having regard to the fresh
evidence adduced during the hearing of the appeal in the House of Lords as to the cost of the future care of
the plaintiff, the award of damages fell to be revised; that, after allowing for the domestic element, an
appropriate multiplicand was 6,400 per annum; that a fair multiplier would be 12 years' purchase from the
date of judgment in the House of Lords; and that the total award to the plaintiff should accordingly be
reduced to 229,298.64 with the appropriate interest added (post, pp. 195G, 196D, 197A).

Per curiam. A radical reappraisal of the law relating to compensation for personal injuries is needed, but it
cannot be made by judges or by modification of rules of court. It calls for social, financial, economic and
administrative decisions that only the legislature can take. There is force in the case for legislation repealing
section 2 (4) of the Law Reform (Personal Injuries) Act 1948 (post, pp. 182E - 183D, 188C).
Decision of the Court of appeal [1979] Q.B. 196; [1978] 3 W.L.R. 895; [1979] 1 All E.R. 332 varied.
The following cases are referred to in the opinion of Lord Scarman:
Benham v. Gambling [1941] A.C. 157; [1941] 1 All E.R. 7, H.L.(E.).
Cookson v. Knowles [1979] A.C. 556; [1978] 2 W.L.R. 978; [1978] 2 All E.R. 604, H.L.(E.).
Cunningham v. Harrison [1973] Q.B. 942; [1973] 3 W.L.R. 97; [1973] 3 All E.R. 463, C.A.
Fletcher v. Autocar and Transporters Ltd. [1968] 2 Q.B. 322: [1968] 2 W.L.R. 743; [1968] 1 All E.R. 726,
C.A.
Harris v. Brights Asphalt Contractors Ltd. [1953] 1 Q B. 617; [1953] 1 W.L.R. 341; [1953] 1 All E.R. 395.
Livingstone v. Rawyards Coal Co. (1880) 5 App.Cas. 25, H.L.(Sc.).
Phillips v. London and South Western Railway Co. (1879) 4 Q.B.D. 406, D.C.; 5 Q.B.D. 78; 5 C.P.D. 280,
C.A.
Pickett v. British Rail Engineering Ltd. [1980] A.C. 136; [1978] 3 W.l..R. 955; [1979] 1 All E.R. 744, H.L.
(E.).
Shearman v. Folland [1950] 2 K.B. 43; [1950] 1 All E.R. 976, C.A.
Taylor v. Bristol Omnibus Co. Ltd. [1975] 1 W.L.R. 1054; [1975] 2 All E.R. 1107, C.A.
Taylor v. O'Connor [1971] A.C. 115; [1970] 2 W.L.R. 472; [1970] 1 All E.R. 365, H.L.(E.).
West (H.) & Son Ltd. v. Shephard [1964] A.C. 326; [1963] 2 W.L.R. 1359; [1963] 2 All E.R. 625, H.L.(E.).
Wise v. Kaye [1962] 1 Q.B. 638; [1962] 2 W.L.R. 96; [1962] 1 All E.R. 257, C.A.
Young v. Percival [1975] 1 W.L.R. 17; [1974] 3 All E.R. 677, C.A.
The following additional cases were cited in argument:
Bolton v. Essex Area Health Authority, The Times, November 8, 1977.
[1980] A.C. 174 Page 177

Smith v. Central Asbestos Co. Ltd. [1972] 1 Q.B. 244; [1971] 3 W.L.R. 206; [1971] 3 All E.R. 204, C.A.
Walker v. John McLean & Sons Ltd. [1979] 1 W.L.R. 760; [1979] 2 All E.R. 965, C.A.
APPEAL from the Court of Appeal.
This was an appeal by the defendants, the Camden and Islington Area Health Authority, from the
judgment of the Court of Appeal (Lord Denning M.R., Lawton and Browne L.JJ.) given on July 7,
1978, by which, on an appeal by the defendants (Lord Denning M.R. dissenting), they upheld an
award by Bristow J., on December 7, 1977, of damages for negligence against the defendants in
favour of the plaintiff, Dr. Lim Poh Choo (suing by her mother and next friend, Lim Gim Hoe),
totalling 243,309, with interest. The Court of Appeal gave the defendants leave to appeal from
their judgment on condition that they did not seek to disturb the order of the Court of Appeal
awarding costs to the plaintiff on a common fund basis.
The facts are set out in the opinion of Lord Scarman.
John Davies Q.C. and Gordon Langley for the defendants. There were fundamental errors in Bristow J.'s
approach to this case, and there was very grave duplication indeed. Bristow J. was wrong in that he applied
the conventional basis of assessing damages in personal injury cases to this case, which was not a
conventional case at all. Much the same happened in Fletcher v. Autocar and Transporters Ltd. [1968] 2 Q.B.
322. [Reference was made to Phillips v. London and South Western Railway Co. (1879) 4 Q.B.D. 406, 407408]. As to duplication, see Fletcher v. Autocar and Transporters Ltd. The process of itemisation is apt to be
very artificial and to lead to hopelessly large sums. It is not just a question of duplication: at the end, one
must ask whether the sum awarded is a fair sum. The reform of the law that is necessary is that, apart from
duplication, the plaintiff here has no depen-dants, and no need for money apart from the need to keep her.
The principle is that one should not award to someone money that he or she cannot use. Damages for loss
of amenity are still to be paid, because the public conscience must be appeased; alternatively, they are to be
paid as a solatium.
The duplication that the defendants complain of is that here is a plaintiff who could be expected to earn, say,
6,000 a year. The primary purpose of earning is to provide for the cost of living. There is no evidence that
the plaintiff would have saved any of that money, nothing to indicate that she would not have spent it on
herself. In so far as she has lost the satisfaction to be gained from using that money in any connection, she is
compensated under the head of non-pecuniary loss. Her way of living is different, but she is still being
maintained, and her cost of living is covered by the cost of care; therefore, she cannot recover sums under
both heads. The duplication is between items (5) and (6) in Bristow J.'s breakdown of the award, viz., cost of
future care and loss of future earnings and pension, also between items (3) and (4), viz., cost of care at
home to date of judgment and loss of earnings to judgment. Reference may be made to Mallet v. McMonagle
[1980] A.C. 174 Page 178
([1970] A.C. 166). As to inflation, the payer of the damages is also likely to be affected by it. [Reference was
made to Cookson v. Knowles [1979] A.C. 556 and Pickett v. British Rail Engineering Ltd. [1980] A.C. 136].
The defendants do not know what Bristow J. meant by the "purely domestic" element. Apart from their broad
submission on duplication, the sum to come off for living expenses can only be a matter of generalities.
Looking at it fairly and reasonably, is not 250,000 too much in the case of a plaintiff who has no feeling and
who cannot put any excess award over and above the cost of care to any gainful use? If not, what would be
the correct award in the case of a person who had realisation of the nature of her injuries and could make
use of such excess?

Section 2 (4) of the Law Reform (Personal Injuries) Act 1948 does not preclude it being taken into account
that, if the money runs out, the plaintiff may take advantage of the National Health Service.
The Court of Appeal were wrong in saying that 250,000 was not too much. In awarding that sum they were
way out of line with current public thinking. The defendants do not attack the figure awarded for care as such,
but the duplication inherent in the award for cost of care and loss of earnings. The House of Lords should
follow the minority in H. West & Son Ltd. v. Shephard [1964] A.C. 326, not the majority. There is a distinct
possibility of these awards these days increasing at a galloping rate. The reasoning of the minority in H.
West & Son Ltd. v. Shephard was right. [Reference was made to Wise v. Kaye [1962] 1 Q.B. 638, 649, 653].
Christopher French Q.C. and George Newman for the plaintiff. Since 1961, the decrease in the value of
money has been 3.8 times; that would mean that in today's money the equivalent of the award in Wise v.
Kaye of 15,000 would be 57,000. As to section 2 (4) of the Act of 1948, there is provision for enabling the
National Health Service to charge for National Health Service long term patients; there is a means test. The
plaintiff is not completely insentient: she is more sentient than was the plaintiff in H. West & Son Ltd. v.
Shephard [1964] A.C. 326. As to section 2 (4), there is no way of preventing a plaintiff who has been
awarded damages for the cost of care on the basis of care in a private institution thereafter going into a
National Health institution, subject to the qualification that, if it is a local authority institution, there is power
under the National Assistance Act 1948, indeed, a duty, to charge for it. The plaintiff is not a patrial.
See the report of the Royal Commission on Civil Liability and Compensation for Personal Injury (1978)
(Cmnd. 7054) ("the Pearson report"), vol. 1, chs. 5 ("State Provision"), 6 ("Other Provisions"), 7
("Interrelationships"), 13 ("Offsets"). The true doctrine of overlap was considered in Fletcher v. Autocar and
Transporters Ltd. [1968] 2 Q.B. 322. The defendants' submission conflicts with two basic principles of
damages: (1) the plaintiff is entitled to the full amount of the properly estimated pecuniary loss; (2) the courts
are not concerned with the use made by the plaintiff of the money awarded, or indeed, with whether a plaintiff
personally can make use at all of the money awarded. It is a different inquiry from that as to what any dependants have lost.
[1980] A.C. 174 Page 179
As to (1), see Phillips v. London and South Western Railway Co. (1879) 5 C.P.D. 280, 290. An appellate
court's approach to a jury award and to a judge's award cannot be identical because the former is a single
figure whereas, in modern times, the latter is itemised. If a judge has assessed the component items
correctly, an appellate court cannot interfere simply because the total looks too high. As to (2), see Wise v.
Kaye [1962] 1 Q.B. 638, 653, per Sellers L.J. and H. West & Son Ltd. v. Shephard [1964] A.C. 326, per Lord
Reid, at p. 341, Lord Tucker, Lord Devlin and Lord Pearce, at p. 364.
[LORD DIPLOCK. The plaintiff need not deal with the defendants' argument that an item should not be
awarded if she cannot personally enjoy it.]
The defendants argue that where a plaintiff is deprived of the ability to enjoy the pleasant things of life and is
awarded damages for that deprivation there must be deducted from the loss of earnings award the money
she would have spent on those things; otherwise, it is said, there will be duplication. There are strong
expressions in H. West & Son Ltd. v. Shephard [1964] A.C. 326 and Wise v. Kaye [1962] 1 Q.B. 638 that the
court is not concerned with what the plaintiff will do with the money. [Reference was made to the National
Health Service Act 1977, s. 21 and Sched. 8; Fletcher v. Autocar and Transporters Ltd. [1968] 2 Q.B. 322,
per Lord Denning M.R., at p. 338, and Diplock L.J. the Pearson report, vol. 1, p. 164, paras, 757, 758; and
the Law Commission Report on Personal Injury Litigation - Assessment of Damages (1973) (Law Com. No.
56) (H.C. 373), p. 52, para. 193.] The courts are not concerned with the use to which the damages are put,
nor should they guess what the plaintiff, had she not been injured, would or would not have done with her
earnings. Compare also the example of the fell walker and fisherman that Salmon L.J. had in mind in

Fletcher v. Autocar and Transporters Ltd. [1968] 2 Q.B. 322, 364-365, and see Smith v. Central Asbestos Co.
Ltd. [1972] 1 Q.B. 244.
The domestic overlap is the only form of overlap that it is proper for the court to take into account on either
side of the equation. By "domestic overlap" is meant the overlap between the "food and lodging" expenses
(see per Lord Denning M.R. in Fletcher v. Autocar and Transporters Ltd. [1968] 2 Q.B. 322, 337) that the
injured plaintiff would have incurred if not injured and the food and lodging element that is included in the
damages that the plaintiff receives for future care. The court should fix this at the basic minimum; in the
absence of evidence it can only do the best it can, as in Shearman v. Folland [1950] 2 K.B. 43. As to what the
domestic overlap in the present case was, there is a distinction between "food and lodging" and "what the
plaintiff would have spent on herself," because the latter slips into the amenity area. One asks: what
expenses are necessarily common to the way of life imposed on the plaintiff by her injury and the way of life
that she would have led uninjured. As to the United Kingdom cost of the plaintiff's food and lodging if she had
not been injured, 1,800 a year (or three times Diplock L.J.'s figure in Fletcher v. Autocar and Transporters
Ltd. [1968] 2 Q.B. 322, 350) might be about right. The old age pension, for comparison, is not less than
1,000 a year, and one could not live on that.
[1980] A.C. 174 Page 180
See per Browne L.J. in the Court of Appeal [1979] Q.B. 196, 232D, and per Lawton L.J., at p. 225.
As to "danger of injuring the body politic" (Lord Denning M.R. [1979] Q.B. 196, 217), if the House were to
take judicial notice of the increasing size of awards in some states of the United States of America in medical
"malpractice" cases notice should also be taken of the fact that there both liability and quantum are decided
by juries; that the juries are aware that as much as half their award may go to the plaintiff's lawyer as a
contingency fee and increase the award accordingly; that such factors explain why, for example, United
States brain surgeons are almost uninsurable. In this country, by contrast, any medical practitioner can
obtain unlimited insurance cover for less than 100 per annum.
As to inflation, the plaintiff does not argue that she is entitled to protection against future inflation save to the
limited extent adumbrated by Lord Fraser of Tullybelton in Cookson v. Knowles [1979] A.C. 556, 577-578. On
the other hand she is entitled, when her pecuniary losses are calculated, to have past inflation taken fully into
account. [Reference was made to the Pearson report, para. 646, p. 139.]
On the plaintiff's cross-appeal, the plaintiff is entitled to interest in accordance with the principles established
by Pickett v. British Rail Engineering Ltd. [1980] A.C. 136. As regards pain and suffering, 20,000 is, having
regard to the value of today's money, quite out of touch. The sum awarded by Bristow J. for pain and
suffering is out of line with what should be awarded in such a dreadful case as this; compare H. West & Son
Ltd. v. Shephard [1964] A.C. 326, where 17,500 was awarded. Multiplying that by the fall in the value of
money (3.47 times), one gets 60,000 at the date of trial. The plaintiff does not contend for a mathematical
calculation, but awards must keep in touch with what plaintiffs in earlier cases received. In Wise v. Kaye
[1962] 1 Q.B. 638, the sum awarded was 15,000. That seemed a very large sum then. Multiplying it by 3.8
gives 57,000 at date of trial. [Reference was made to Walker v. John McLean & Sons Ltd. [1979] 1 W.L.R.
760.] Bolton v. Essex Area Health Authority, The Times, November 8, 1977, was a worse case than the
present, but there the plaintiff had only 10 years to live. It is a better guide to the present case than H. West
& Son Ltd. v. Shephard or Wise v. Kaye.
As to fresh evidence, see Murphy v. Stone-Wallwork (Charlton) Ltd. ([1969] 1 W.L.R. 1023). [The plaintiff's
fresh evidence was admitted de bene esse; an affidavit was handed in sworn by a partner in the firm of
chartered accountants who audited the accounts of Eastside House Ltd., the proprietors of the nursing home
where the plaintiff now was. Evidence was also admitted to prove that the plaintiff had come to England on
September 4, 1978, and entered a private nursing home instead of receiving care from her mother in
Malaysia for seven years from date of trial as Bristow J. had forecast.]

As to the multiplier to be applied for the future cost of care, the plaintiff (born on October 18, 1936) is now 42.
Her expectation of life is 34.5 years. The multiplier for loss of earnings is unchallenged: she would only work
to age 65. One would properly expect the multiplier for future care to be greater, allowing for nearly 10 years'
further
[1980] A.C. 174 Page 181
survival. There should be no reduction, as Bristow J. made, for seven years' acceleration: see Cookson v.
Knowles [1979] A.C. 556, and the reference there to the high interest rate; see per Lord Diplock, at p. 570;
and Lord Fraser of Tullybelton, at p. 577, who said that inflation should be reflected in an increase in the
multiplier. The maximum is 18 years; the figure in the present case should be close to it.
As to the possibility that private nursing homes, or this home, might cease to exist, the plaintiff might be able
to adapt a private house, or private nursing homes might still be available in Germany, where she has a
sister, or electro-convulsive therapy might have some effect, etc.; it is all speculation.
As to costs, there is an important point of principle here: an award of costs would reduce the damages
awarded to the point where the plaintiff could not afford to pay for her care.
Davies Q.C. in reply. As to duplication, if it is to be approached, as the plaintiff suggests that it should be, by
taking schedules of expenses and knocking off bits here and there and making comparisons between items
that do not really admit of comparison, the assessment of damages in a case like this is going to be very
difficult. The plaintiff was not saving anything before. She is getting now what she would have had to pay for
before. Once one includes in her damages a sum sufficient to cater for all her livingneeds, the only material
difference now is that before she was able to do things that gave her much more pleasure. It is a qualitative
difference, which can only be compensated for under the head of loss of amenity. The defendants do not say
that there should not be an element in the damages awarded for loss of amenity, but that, where the plaintiff
has no appreciation of her loss, it should be relatively small. The House cannot be in a better position to
assess it than Bristow J. was; he said 20,000, and the defendants will not quarrel with that. If, however, it is
said that it should be increased, then the matter should be examined closely as a matter of principle.
As to the items of domestic expense in the accounts of Eastside House Ltd. - lodging, heating, etc. - these
items would be much more if the plaintiff were not living in a home. Their cost in the context of the home
cannot be other than a rough and rudimentary guide. The defendants say that the duplication is complete;
they are not prepared to take a fall-back position and say what percentage of it is the domestic element and
thus duplication. [Reference was made to Law Reform (Personal Injuries) Act 1948, s. 2 (4); Harris v. Brights
Asphalt Contractors Ltd. [1953] 1 Q.B. 617 and Cunningham v. Harrison [1973] Q.B. 942.]
French Q.C. Bristow J. wrongly scaled down the earnings figure from 6,700 to 6,000. In any event,
allowance should be made for the possibility that the plaintiff might have worked in Penang or Singapore for
substantially more.
Their Lordships took time for consideration.
June 21. LORD DIPLOCK. My Lords, I have had the advantage of reading in draft the speech of my noble
and learned friend, Lord Scarman. I agree with it. and there is nothing that I can usefully add.
[1980] A.C. 174 Page 182
VISCOUNT DILHORNE. My Lords, I have had the advantage of reading in draft the speech of my noble and
learned friend, Lord Scarman. I agree with it and there is nothing that I can usefully add.

LORD SIMON OF GLAISDALE. My Lords, I have had the privilege of reading in draft the speech about to be
delivered by my noble and learned friend, Lord Scarman. I agree with it and with the order which he
proposes.
LORD SCARMAN. My Lords, on February 28, 1973, Dr. Lim Poh Choo, a senior psychiatric registrar
employed in the National Health Service, was admitted to a National Health Service hospital for a minor
operation, which was carried out the next morning. When, following upon the operation, she was in the
recovery room, she suffered a cardiac arrest. It was the result of the negligence of some person for whom
the area health authority is vicariously responsible. The consequences for Dr. Lim have been disastrous.
Before March 1, 1973, Dr. Lim, who was then 36 years old, had a career ahead of her in her chosen
speciality of psychiatric medicine. She was described by one, who knew her and her work, as a "remarkably
intelligent doctor." She is now the wreck of a human being, suffering from extensive and irremediable brain
damage, which has left her only intermittently, and then barely, sentient and totally dependent upon others.
On September 19, 1974, Dr. Lim, suing by her mother as next friend, issued her writ against the Camden and
Islington Area Health Authority, who in due course delivered a defence denying negligence. However, in
November 1977, shortly before trial, the defendants admitted liability. The one issue at trial was, therefore,
the question of damages. But its complexities are such that it has occupied the trial judge for the best part of
five days, the Court of Appeal six days, and your Lordships' House five days.
It cannot be said that any of the time judicially spent on these protracted proceedings has been unnecessary.
The question, therefore, arises whether the state of the law which gives rise to such complexities is sound.
Lord Denning M.R. in the Court of Appeal [1979] Q.B. 196, 216, declared that a radical reappraisal of the law
is needed. I agree. But I part company with him on ways and means. The Master of the Rolls believes it can
be done by the judges, whereas I would suggest to your Lordships that sucha reappraisal calls for social,
financial, economic and administrative decisons which only the legislature can take. The perplexities of the
present case, following upon the publication of the report of the Royal Commission on Civil Liability and
Compensation for Personal Injury (1978) (Cmnd. 7054) ("the Pearson report"), emphasise the need for
reform of the law.
The course of the litigation illustrates, with devastating clarity, the insuperable problems implicit in a system
of compensation for personal injuries which (unless the parties agree otherwise) can yield only a lump sum
assessed by the court at the time of judgment. Sooner or later - and too often later rather than sooner - if the
parties do not settle, a court (once liability is admitted or proved) has to make an award of damages. The
award, which covers past, present, and future injury and loss, must,
[1980] A.C. 174 Page 183
under our law, be of a lump sum assessed at the conclusion of the legal process. The award is final; it is not
susceptible to review as the future unfolds, substituting fact for estimate. Knowledge of the future being
denied to mankind, so much of the award as is to be attributed to future loss and suffering - in many cases
the major part of the award - will almost surely be wrong. There is really only one certainty: the future will
prove the award to be either too high or too low.
Lord Denning appeared, however, to think - or at least to hope - that there exists machinery in the Rules of
the Supreme Court which may be adapted to enable an award of damages in a case such as this to be
"regarded as an interim award" [1979] Q.B. 196, 220. It is an attractive, ingenious suggestion - but, in my
judgment, unsound. For so radical a reform can be made neither by judges nor by modification of rulesof
court. It raises issues of social, economic and financial policy not amenable to judicial reform, which will
almost certainly prove to be controversial and can be resolved by the legislature only after full consideration
of factors which cannot be brought into clear focus, or be weighed and assessed, in the course of the

10

forensic process. The judge - however wise, creative, and imaginative he may be - is "cabin'd, cribb'd,
confin'd, bound in" not, as was Macbeth, to his "saucy doubts and fears" but by the evidence and arguments
of the litigants. It is this limitation, inherent in the forensic process, which sets bounds to the scope of judicial
law reform.
The present litigation reveals another confusing factor in the law. The trial judge, giving judgment on
December 7, 1977, assessed damages upon the basis of the facts as they were at that date. When the case
reached the Court of Appeal in June 1978 Dr. Lim's mother, who had been caring for her in Penang, had
suffered a deterioration in her health, whichmade it very probable that in the near future Dr. Lim would have
to be transferred to a nursing home in England. The Court of Appeal, therefore, granted leave to admit fresh
evidence, and on July 7, 1978, gave judgment on the new basis. When the case reached your Lordships'
House in March 1979, the transfer had taken place and an entirely new assessment of the cost of future care
was needed, if justice was to be done. The House, in its turn, allowed fresh evidence to be called so that the
cost of future care could be assessed upon the new factual basis which had developed since trial and after
the hearing in the Court of Appeal. The device of granting the parties leave to adduce fresh evidence at the
appellate stages of litigation can, as in the present case, mitigate the injustices of a lump sum system by
enabling the appellate courts to bring the award into line with what has happened since trial. But it is an
unsatisfactory makeshift, and of dubious value in any case where the new facts are themselves in issue.
A further disturbing feature in this branch of the law is that Dr. Lim's case is not a rare exception. Our courts
have frequently to face the task of assessing the damages to be awarded to a plaintiff who by an accidental
injury has been converted from an active, healthy and intelligent member of society to a barely sentient
human wreck. In the past, it was unlikely that the victim would long survive catastrophic injury. But the
miracle of modern medicine is such that in many cases - and Dr. Lim's is such a case - the expectation of life
remains substantially as it was before the
[1980] A.C. 174 Page 184
accident - granted a high and costly level of continuing care and medical treatment.
Amidst these confusions and perplexities it falls to your Lordships' House to do what it can to provide trial
judges with guidance which will enable them to reach reasonable and consistent awards until such time as
Parliament intervenes by legislation to reform the law. Perfect justice is not attainable: nor would it be wise in
thesearch for the nearest approximation to justice to abandon principles already judicially determined,
whatever one's "saucy doubts and fears." If your Lordships can lay down, by decision in this case, an
intelligible and moderate way of assessing damages for catastrophic, but not fatal, personal injuries under
the law as it now is, there will have been achieved all that the judicial process can offer towards the
improvement of this area of the law.
My Lords, I will first set out the details of the judge's award (which was upheld by the majority of the Court of
Appeal). Secondly, I will attempt to deal with the questions of principle which arise for your Lordships'
consideration. Finally, I will consider the detailed application of the law to the facts of this particular case and
state my conclusions.
The Judge's Award [1979] Q.B. 196, 205H-206.
The judge awarded Dr. Lim a total sum of 254,765. He apportioned it as follows:
(1)
(2)

Pain, suffering, loss of amenities

20,000
Interest from date of writ
5,930
Out-of-pocket expenses including 680, cost of stay at 3,596
Tang Tock Seng Hospital and Singapore nursing home

25,930

11

(3)

Cost of care to date of judgment: 40 months at 200

per month
Interest on (2) and (3) from date of accident (March 1,
1973) to judgment
Loss of earnings to date of judgment
Interest on (5) from date of accident to judgment
Cost of future care:
Malaysia, 7 X 2,600 per annum, discounted to
England, 11 X 8,000 per annum
Loss of future earnings:
14 X 6,000
Loss of pension

(4)
(5)
(6)
(7)
(8)

8,000
2,482

14,078

14,213
3,044

17,257

17,500
88,000

105,500

84,000
8,000

92,000

On appeal to the Court of Appeal, the defendants attacked the award in many respects. Those that remain
for consideration by your Lordships' House may be classified and summarised as follows:

(A) against the total of the damages awarded. It was submitted that, regardless of the view
taken as to the correctness or otherwise of the separate items in the award, the total sum
(254,765) is
[1980] A.C. 174 Page 185

excessive, being out of line with comparable current awards and contrary to public policy.
"Damages are getting out of control" was the vivid condemnation of the total of the award by
Mr. Davies Q.C., counsel for the appellants.

(B) against the award of 20,000 for pain and suffering and loss of amenities. The appellants'
first submission, which they reserved for this House, was that in the case of an unconscious, or
barely sentient, plaintiff the award must be small - a conventional sum in recognition of an
unfelt catastrophe. Secondly, they submitted that the award was excessive in the
circumstances; that it failed to take sufficiently into account that there was no evidence that the
plaintiff was suffering any pain, and that she was so intellectually impaired as not to be able to
appreciate what had happened to her.

(C)

(1) that, in cases where the plaintiff has been rendered incapable of earning a living, there is
no right to such damages. In such cases the entitlement is to an amount of damages which will
ensure that the plaintiff shall not want for anything that money can buy to assure her of the
treatment and comfort she needs - i.e., the full cost of care.

(2) that, if damages for loss of earnings are recoverable, they should be limited to what the
plaintiff would have saved, or expended upon the maintenance of his or her depen-dants,

(3) that, upon whatever basis such damages are recoverable (if they be recoverable at all),
there must be no duplication or overlap between the separate sums awarded for loss of
earnings, loss of amenities, and cost of care.

(D) against the award for cost of future care, that the calculation must be on the basis that
resort is to be had to capital as well as income, and

(E)

against the award for loss of earnings on the following grounds:

that in calculating future loss no account may be taken of prospective inflation.

12

The plaintiff cross-appealed in the Court of Appeal and in this House, alleging that 20,000 was an
insufficient award for pain, suffering and loss of amenities at date of judgment (December 1977).
The Court of Appeal, having admitted evidence as to the cost of English nursing homes to which the plaintiff
might be admitted in the near future, dismissed the appeal, Lord Denning M.R. dissenting. They dealt as
follows with the issues summarised above.
All three judges refused to vary the sum awarded for pain and suffering and loss of amenities, though Lawton
and Browne L.JJ. thought that in the light of the medical evidence as to Dr. Lim's mental condition it might
have been too low.
Lord Denning, in the course of a powerful dissent, held that the total of the damages awarded was excessive.
He called for a radical reappraisal of the law, and declared his view of the acceptable principle in cases such
as this. He said [1979] Q.B. 196, 216:
[1980] A.C. 174 Page 186
"... fair compensation must mean that she is to be kept in as much comfort and tended with as much care as
compassion for her so rightfully demands: and that she should not want for anything that money can buy. But I see no
justification in law or in morals in awarding to her large sums of money in addition to those needed to keep her in
comfort."

Invoking the doctrine of duplication (or overlap), he felt able to eliminate the item of loss of earnings and
reduced his assessment of damages to 136,596 with appropriate interest. This sum was the aggregate of
cost of care and out-of-pockets to date of trial, cost of future care (allowing for the possibility of early return to
England), and the judge's figure of 20,000 for pain and suffering and loss of amenities.
The majority of the court held that they were bound by authority to hold that damages were recoverable for
loss of earnings. Lawton L.J. did not deal with the "duplication" point, contenting himself with the comment, at
p. 224, that the sums awarded for loss of future earnings and pension rights must be added to the other
heads of damage. Browne L.J., in rejecting the defendants' submission that nothing should be awarded for
loss of future earnings, said of the duplication argument, at p. 232:
"... that the most which can and should be done is to see that as far as possible there is no overlapping between the
sums awarded for loss of future earnings and the cost of future care in respect of the 'domestic element' (food, rent,
electricity etc.) ..."

Both Lords Justices thought that the trial judge was right to provide some protection against inflation in the
multipliers selected for calculating the cost of future care and the loss of future earnings. Each of them
believed the present case to be one of those exceptional cases, to which Lord Fraser of Tullybelton referred
in Cookson v. Knowles [1979] A.C. 556, 576-577, in which it is appropriate to allow for future inflation by
increasing the multiplier.
In your Lordships' House Mr. Davies Q.C., for the appellants, has taken the same points - but with this
difference: he hopes that he is no longer embarrassed by those authorities which are against him. The
respondent, by her cross-appeal, has sought leave to adduce fresh evidence of the significant change of
circumstances since the hearing in the Court of Appeal (i.e., the return of Dr. Lim to England on September 4,
1978) and of the cost of care in England, and also renews her appeal against the amount of damages
awarded for pain, suffering, and loss of amenities. The House allowed the fresh evidence, the consequence

13

of which is that the House has itself to assess upon a basis not available to the courts below the damages to
he awarded for future care.
The Questions of Principle
It will be convenient to take these questions in the order in which I have listed the appellants' main
submissions.
(A) The total of damages (254,765)
The submission that the total of the award was excessive was one of the broadest generality. Whether or not
he can establish duplication or overlap
[1980] A.C. 174 Page 187
or any other error in calculating the separate items of the award, Mr. Davies submitted that an award of
damages, being a "jury question," must be fair to both sides, and that in a case such as the present a judge
should bear in mind: (a) comparable cases, (b) the effect of high awards upon the level of insurance
premiums or, if, as here, the taxpayer foots the bill, upon the taxpayer, and (c) the availability of care for the
victim under the National Health Service, (d) public policy. Such generalities as that damages must be
treated as a jury question and kept in line with public policy I do not find helpful. Their very breadth merely
contributes to uncertainty and inconsistency in an area of the law the history, if not the present practice, of
which is notorious for both vices. Invoking the memory of the days when juries assessed damages for
personal injuries does no more than remind us that the modern practice of reasoned awards by judges is a
substantial advance upon the inscrutable awards of juries. of course, awards must be fair. But this means no
more than that they must be a proper compensation for the injury suffered and the loss sustained. Nor in this
case do I find helpful a comparison of one total award with another. In so far as an award consists of
"conventional" items, for example, for pain and suffering, comparability with other awards is certainly of value
in keeping the law consistent. But pecuniary loss depends on circumstances: and, where (as in the present
cases such loss predominates, comparison with total awards in other cases does not help, and may be
misleading.
The two specific matters Mr. Davies mentioned - the burden upon the public (through premiums or taxes) and
the availability of National Health Service care - prove on examination to be for the legislator, not the judge.
As to the first, the principle of the law is that compensation should as nearly as possible put the party who
has suffered in the same position as he would have been in if he had not sustained the wrong: Lord
Blackburn, Livingstone v. Rawyards Coal Co. (1880) 5 App.Cas. 25, 39. There is no room here for
considering the consequences of a high award upon the wrongdoer or those who finance him. And, if there
were room for any such consideration, upon what principle, or by what criterion, is the judge to determine the
extent to which he is to diminish upon this ground the compensation payable?
The second matter, though introduced by Mr. Davies as part of his general submissions on the total award, is
really one, as he recognised, which falls to be considered in assessing the cost of future care. It is
convenient, however, to deal with it at this stage. Section 2 (4) of the Law Reform (Personal Injuries) Act
1948 provides that in an action for damages for personal injuries there shall be disregarded, in determining
the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking
advantage of facilities available in the National Health Service. In Harris v. Brights Asphalt Contractors Ltd.
[1953] 1 Q.B. 617 Slade J. said of the subsection, at p. 635:
"I think all [it] means is that, when an injured plaintiff in fact incurs expenses which are reasonable, that expenditure is
not to be impeached on the ground that, if he had taken advantage of the facilities available under the National Health
Service Act 1946, those reasonable expenses might have been avoided. I do not understand section 2 (4) to enact

[1980] A.C. 174 Page 188

14

that a plaintiff shall be deemed to be entitled to recover expenses which in fact he will never incur."

In Cunningham v. Harrison [1973] Q.B. 942 the Court of Appeal expressed the same view, Lawton L.J.
saying, at p. 957, that a defendant can, notwithstanding the statute, submit that the plaintiff will probably not
incur such expenses because he will be unable to obtain outside the National Health Service the domestic
and nursing help which he requires.
I agree with Slade J. and the Court of Appeal. It has not been suggested that expenses so far incurred in the
care and treatment of Dr. Lim have been unreasonable. They are, therefore, protected by the subsection. But
it is open to serious question whether for the rest of her life it will continue to be possible to obtain for Dr. Lim,
outside the National Health Service, the domestic and nursing help she will require. However, Lord Denning
M.R. and Lawton L.J., both of whom were parties to the decision in Cunningham v. Harrison, have proceeded
in the instant case upon the basis, which the trial judge must also have accepted, that it will be possible and
that the expense of doing so is reasonable. In the absence of any evidence to the contrary, I am not prepared
to take a different view - though I recognise the force of the case developed in the Pearson report for
legislation repealing the subsection: see Cmnd. 7054-I, paragraphs 340-342.
The attack, therefore, on the total of damages awarded as being excessive, merely by reason of its size,
fails. If the appellants are to succeed, they must show that one or more of the component items of the award
are wrong.
(B) The award for pain and suffering and loss of amenities
Mr. Davies recognised, at the outset of his argument, that, if Wise v. Kaye [1962] 1 Q.B. 638 and H. West &
Son Ltd. v. Shephard [1964] A.C. 326 were correctly decided, his first submission (that the sum awarded
should be comparable with the small conventional awards in fatal cases for loss of expectation of life) must
fail.
My Lords, I think it would be wrong now to reverse by judicial decision the two rules which were laid down by
the majority of the House in H. West & Son Ltd. v. Shephard, namely: (1) that the fact of unconsciousness
does not eliminate the actuality of the deprivation of the ordinary experiences and amenities of life (see the
formulation used by Lord Morris of Borth-y-Gest, at p. 349); (2) that, if damages are awarded upon a correct
basis, it is of no concern to the court to consider any question as to the use that will thereafter be made of the
money awarded. The effect of the two cases (Wise v. Kaye being specifically approved in H. West & Son Ltd.
v. Shephard) is two-fold. First, they draw a clear distinction between damages for pain and suffering and
damages for loss of amenities. The former depend upon the plaintiff's personal awareness of pain, her
capacity for suffering. But the latter are awarded for the fact of deprivation - a substantial loss, whether the
plaintiff is aware of it or not. Secondly, they establish that the award in Benham v. Gambling [1941] A.C. 157
(assessment in fatal cases of damages for loss of expectation of life) is not to be compared with, and has no
application to, damages to be awarded to a living plaintiff for loss of amenities.
[1980] A.C. 174 Page 189
I do not underrate the formidable logic and good sense of the minority opinions expressed in Wise v. Kaye
and H. West & Son Ltd. v. Shephard. The quality of the minority opinions was, however, matched by the
equally formidable logic and good sense of the majority opinions. The question upon which opinions differed
was, in truth, as old and as obstinate as the philosopher's stone itself. A decision having been taken by this
House in 1963 (the year H. West & Son Ltd. v. Shephard was decided), its reversal would cause widespread
injustice, unless it were to be part and parcel of a comprehensive reform of the law. For since 1962
settlements have proceeded upon the basis that the rule adopted in Wise v. Kaye was correct: and judges
have had to assess damages on the same basis in contested cases. We are in the area of "conventional"
awards for non-pecuniary loss, where comparability matters. Justice requires that such awards continue to

15

be consistent with the general level accepted by the judges. If the law is to be changed by the reversal of H.
West & Son Ltd. v. Shephard, it should be done not judicially but legislatively within the context of a
comprehensive enactment dealing with all aspects of damages for personal injury.
I now come to Mr. Davies's second submission that, even if H. West & Son Ltd. v. Shephard be good law, the
sum of 20,000 for Dr. Lim's pain, suffering, and loss of amenities was excessive. The answer to this
submission is to be found in one stark but factually correct observation of Bristow J. He said [1979] Q.B. 196,
204: "Dr. Lim's loss of the amenities of her good and useful life is total." Accordingly, I think Mr. Davies's
attack upon this head of the award fails.
I turn now to consider the respondent's submission that this award was too low. Mr. French Q.C. for the
respondent took two points: first, that the judge underestimated Dr. Lim's awareness of her condition and her
loss: secondly, that, bearing in mind the depreciation in the value of money since Wise v. Kaye and H. West
& Son Ltd. v. Shephard, an award of 20,000 was out of line with the sums awarded in those, and other,
cases. Both Lawton L.J. and Browne L.J. were impressed by the first point. There are passages in the
evidence which suggest that Dr. Lim's awareness of her condition is greater and more sustained than the trial
judge found. He relied on the conclusions formed by Dr. MacQuaide, a very distinguished doctor, who on six
occasions in 1976 examined Dr. Lim in Penang. Dr. MacQuaide found her emotional state to be blank, and
that she was completely lacking in volition and spontaneity. He added that her powers of reasoning were
impossible to test. I am not prepared to hold that the judge was wrong in his conclusion [1979] Q.B. 196, 201
that "... she is so intellectually impaired that she does not appreciate what has happened to her."
The second point also fails, in my judgment. An award for pain, suffering and loss of amenities is
conventional in the sense that there is no pecuniary guideline which can point the way to a correct
assessment. It is, therefore, dependent only in the most general way upon the movement in money values.
Like awards for loss of expectation of life, there will be a tendency in times of inflation for awards to increase,
if only to prevent the conventional becoming the contemptible. The difference between a "Benham v.
Gambling award" and a "West v. Shephard award" is that, while both are conventional, the second has been
held by the House of
[1980] A.C. 174 Page 190
Lords to be compensation for a substantial loss. As long, therefore, as the sum awarded is a substantial sum
in the context of current money values, the requirement of the law is met. A sum of 20,000 is, even today, a
substantial sum. The judge cannot, therefore, be shown to have erred in principle, and his award must stand.
In making his assessment, the judge assumed his award would bear interest from the date of service of writ.
Were it not to bear interest, he would ([1979] Q.B. 196, 205E) have increased it by the amount of interest it
would have carried so that it reflected the situation as it was at trial. Since trial, this House has laid down in
Pickett v. British Rail Engineering Ltd. [1980] A.C. 136. that awards for pain, suffering and loss of amenities
should bear interest from the date of service of writ. The judge's original figure of 20,000 represents
therefore his assessment, in current money values at date of trial, of the plaintiff's loss as at date of service of
writ, to which, following Pickett's case, one must add the appropriate interest.
For these reasons I think the judge's award of 20,000 and interest for pain, suffering and loss of amenities
should be upheld.
(C) Loss of earnings, and duplication (overlap)
The appellants' submission is brief and simple. In paragraph 8 of their case it was put in three short
sentences:

16

"The plaintiff ought not to have been awarded damages for loss of earnings as well as for loss of amenities and cost of
care. The sum awarded for cost of care exceeded her estimated loss of earnings and covered all her needs. The
additional award of damages for loss of earnings was duplicatory."

As developed in argument, the submission was a two-fold one. First, it was submitted that in catastrophic
cases "loss of earnings" does not reflect a real loss. Secondly, if damages are recoverable for loss of
earnings, duplication with other heads of damage is to be avoided. The law must, therefore, ensure that no
more is recovered for loss of earnings than what the plaintiff, if not injured, would have saved, or reserved for
the support of his, or her, dependants. Since there was no evidence to suggest that Dr. Lim would have
accumulated any surplus income after meeting her working and living expenses, the trial judge's award for
loss of earnings was wholly wrong.
The first submission is contrary to an established line of authority which, beginning with Phillips v. London
and South Western Railway Co. (1879) 5 C.P.D. 280. has recently received the seal of this House's approval
in Pickett v. British Rail Engineering Ltd. [1980] A.C. 136. It is also contrary to the principle of the common
law that a genuine deprivation (be it pecuniary or non-pecuniary in character) is a proper subject of
compensation. This principle was recognised both in Phillips's case, where the loss was pecuniary, and in H.
West & Son Ltd. v. Shephard [1964] A.C. 326, where the loss was non-pecuniary: in Phillips's case, see per
Brett L.J., at p. 292, and, in H. West & Son Ltd. v. Shephard, per Lord Morris of Borth-y-Gest, at p. 349.
The second submission is more formidable. Undoubtedly, the courts must be vigilant to avoid not only
duplication of damages but the award
[1980] A.C. 174 Page 191
of a surplus exceeding a true compensation for the plaintiff's deprivation or loss.
The separate items, which together constitute a total award of damages, are interrelated. They are the parts
of a whole, which must be fair and reasonable. "At the end," as Lord Denning M.R. said in Taylor v. Bristol
Omnibus Co. Ltd. [1975] 1 W.L.R. 1054, 1057, "the judges should look at the total figure in the round, so as
to be able to cure any overlapping or other source of error." In most cases the risk of overlap is not great: nor,
where it occurs, is it substantial. Living expenses continue, or progressively increase, for most plaintiffs after
injury as they would have done if there had been no injury. But where, as in Pickett v. British Rail Engineering
Ltd. [1980] A.C. 136, the plaintiff claims damages for the earnings of his "lost years," or, as in the present
case, the claim is in respect of a lifetime's earnings lost because, though she will live, she cannot earn her
living, a real risk arises that the plaintiff may recover, not merely compensation for loss, which is the
entitlement given by law, but a surplus greater than could have been achieved if there had been no death or
incapacity. Two deductions, therefore, fall to be made from the damages to be awarded. First, as the cases
have always recognised, the expenses of earning the income which has been lost. Mr. French for the
respondent conceded this much. Secondly, the plaintiff's living expenses. This is necessarily a hypothetical
figure in the case of a "lost years" claim, since the plaintiff does not survive to earn the money: and,
sincethere is no cost of care claim (the plaintiff being assumed to be dead), it falls to be deducted from the
loss of earnings award. But where, as in the present case, the expectancy of life is not shortened but
incapacity exists, there will be a cost of care claim as well as a loss of earnings claim. How should living
expenses be assessed and deducted in such a case? One approach, analogous to the method necessarily
adopted in "lost years" cases, would be to attempt an assessment of how much the plaintiff would have spent
and upon what - always a most speculative exercise. How, for instance, could anyone tell how Dr. Lim would
have ordered her standard of living, had she been able to pursue her career? Another approach is, however,
available in the case of a living plaintiff. In Shearman v. Folland [1950] 2 K.B. 43 the Court of Appeal
deducted what it described as the "domestic element" from the cost of care. Inevitably, a surviving plaintiff
has to meet her living expenses. This approach, being on the basis of a future actuality (subject to the
uncertainties of life), is far less hypothetical than the former (which, "faute de mieux," has to be adopted in
"lost years" cases). It is a simpler, more realistic, calculation and accords more closely with the general

17

principle of the law that the courts in assessing compensation for loss are not concerned either with how the
plaintiff would have used the moneys lost or with how she (or he) will use the compensation received.
In the present case, my Lords, it is perfectly possible to estimate the domestic element in Dr. Lim's cost of
care. The estimated figure must. therefore, be deducted in the assessment of her damages for the cost of
her care. In the result, Dr. Lim will recover in respect of her future loss a capital sum which, after all the
proper discounts, will represent her loss of earnings, net after allowing for working expenses, and her cost of
care.
[1980] A.C. 174 Page 192
net after deducting the domestic element. A capital sum so assessed will compensate for a genuine loss and
for a genuine item of additional expenditure, both of which arise from the injury she has sustained. It will not
contain any element of duplication or go beyond compensation into surplus.
A further argument was addressed to your Lordships in the context of duplication. It was urged that there was
an overlap between the sum awarded for loss of amenities and that for loss of future earnings. The amenities
which Dr. Lim has lost, it was submitted, would have had to be provided out of her earnings. If, therefore, she
is to be compensated for the former, she should suffer a deduction from her loss of earnings claim. Reliance
was placed on the judgment of Diplock L.J. in Fletcher v. Autocar and Transporters Ltd. [1968] 2 Q.B. 322
(particularly at p. 342).
The question whether there can be any overlap between damages for non-pecuniary loss and for pecuniary
loss does not arise for decision upon the facts of this case. As the majority of the Court of Appeal said, the
amount of damages awarded to Dr. Lim for loss of amenities was a modest sum. It was not assessed by
reference to any expensive pleasures or pursuits such as Diplock L.J. postulated in Fletcher's case. There
was, indeed, no evidence to suggest that Dr. Lim had, or was likely to develop, any such tastes or pursuits.
There is, therefore, no duplication of damages between the two items in this case.
Upon the point of principle whether damages for non-pecuniary loss can properly be reduced to avoid an
overlap with damages for pecuniary loss I express no final opinion. I confess, however, that I doubt the
possibility of overlap: and I note that the Pearson Commission (Cmnd. 7054-I, para. 759) considers it wrong
in principle to reduce the one by reason of the size of the other.
(D) Cost of future care
Both parties were agreed that damages under this head are recoverable. The major dispute at trial was
whether they should be calculated upon the basis of Dr. Lim being cared for in Malaysia or in England. This
dispute had yielded to the pressure of events by the time the appeal reached this House. One question of
principle (other than duplication, with which I have already dealt, and the effect of future inflation, with which I
deal later) was however, discussed before your Lordships. Mr. Davies contended that the Court of Appeal,
when considering the fairness of the award, had erred in its approach, overlooking the rule that damages for
cost of care must be assessed upon the basis that capital as well as income is to be used in meeting the
cost. I doubt whether the criticism is a fair one, but the point underlying it is sound. Such an approach would,
of course, be incorrect in principle. It would go beyond compensation for loss: for it would yield at the
expected end of the plaintiff's life a surplus, which.if uninjured, she would not have had - namely the
untouched capital. The true principle, as Mr. French conceded, is that the estimate of damages under this
head must proceed upon the basis that resort will be had to capital as well as income to meet the
expenditure: in other words, the cost of care, having been assessed, must be met by an award calculated on
an annuity basis.
Mr. Davies invited the House to infer a departure from this principle,

18

[1980] A.C. 174 Page 193

because of the size of the multiplier selected by the judge and upheld by the Court of Appeal. His multiplier of
18 years was, indeed very high - too high, I would have thought, in the circumstances. However, it matters
not, since for reasons to which I have already briefly referred the award for cost of future care has to be
reviewed and revised by the House in the light of the fresh evidence adduced during the hearing of the
appeal. I shall attempt this review when I come to the detail of the award.
(E) Effect of future inflation
The trial judge said he made allowance for future inflation in the multiplier for cost of future care and in the
multiplier for loss of future earnings. The Court of Appeal, in holding that he had made no mistake in
principle, relied upon a recent decision of this House, Cookson v. Knowles [1979] A.C. 556. In that case Lord
Diplock, at p. 571, made the comment that future inflation "is taken care of in a rough and ready way"
because the conventional multipliers applied by the judges assume a rate of interest of 4 to 5 per cent.,
whereas actual rates of interest are much higher. Lord Fraser of Tullybelton, at pp. 577-578, added the
comment that in "exceptional cases, where the [assumed] annuity is large enough to attract income tax at a
high rate ... it might be appropriate to increase the multiplier, or to allow for future inflation in some other
way ..." My Lords, I do not read these passages in the speeches in that case of my noble and learned friends
as modifying the law in any way. The law appears to me to be now settled that only in exceptional cases,
where justice can be shown to require it, will the risk of future inflation be brought into account in the
assessment of damages for future loss. Of the several cases to this effect I would cite as of particular
importance Taylor v. O'Connor [1971] A.C. 115 and Young v. Percival [1975] 1 W.L.R. 17. It is perhaps
incorrect to call this rule a rule of law. It is better described as a sensible rule of practice, a matter of common
sense. Lump sum compensation cannot be a perfect compensation for the future. An attempt to build into it a
protection against future inflation is seeking after a perfection which is beyond the inherent limitations of the
system. While there is wisdom in Lord Reid's comment (Taylor v. O'Connor, at p. 130) that it would be
unrealistic to refuse to take inflation into account at all, the better course in the great majority of cases is to
disregard it. And this for several reasons. First, it is pure speculation whether inflation will continue at
present, or higher, rates, or even disappear. The only sure comment one may make upon any inflation
prediction is that it is as likely to be falsified as to be borne out by the event. Secondly, as Lord Pearson said
in Taylor v. O'Connor, at p. 143, inflation is best left to be dealt with by investment policy. It is not unrealistic
in modern social conditions, nor is it unjust, to assume that the recipient of a large capital sum by way of
damages will take advice as to its investment and use. Thirdly, it is inherent in a system of compensation by
way of a lump sum immediately payable, and, I would think, just, that the sum be calculated at current money
values, leaving the recipient in the same position as others, who have to rely on capital for their support to
face the future.
The correct approach should be, therefore, in the first place to assess
[1980] A.C. 174 Page 194
damages without regard to the risk of future inflation. If it can be demonstrated that, upon the particular facts
of a case, such an assessment would not result in a fair compensation (bearing in mind the investment
opportunity that a lump sum award offers), some increase is permissible. But the victims of tort who receive a
lump sum award are entitled to no better protection against inflation than others who have to rely on capital
for their future support. To attempt such protection would be to put them into a privileged position at the
expense of the tortfeasor, and so to impose upon him an excessive burden, which might go far beyond
compensation for loss.
The Details of the Award (numbered as by the judge).
(1) Pain, suffering, loss of amenities, 20,000.

19

For the reasons I have already given I would uphold this item of the award with interest from date of service
of writ. It was agreed that interest should be at 9 per cent. per annum up to February 1, 1977 (the date on
which interest rates for money in court were increased), and thereafter at 10 per cent. until judgment in this
House.
(2) Out-of-pocket expenses (Malaysia and Singapore), to date of trial
Agreed at 3,596. Interest is also agreed at 4 per cent. per annum from March 1, 1973, to date of judgment
in this House.
(3 and (4) Cost of care to date of judgment (in this House) and interest thereon
The judge's figure is necessarily out of date. The history of Dr. Lim's care is as follows. On February 2, 1974,
she was flown to her mother's home in Penang, Malaysia, where she still was at the date of trial. A major
issue at trial was whether she would remain in Malaysia or return to England, where her married sister and
family live. The judge made his award upon the basis that Dr. Lim's mother, who was 71 at the date of the
trial, could be expected to care for her in Malaysia for about seven years, after which time Dr. Lim would
come to England to be cared for in an institution within range of her sister. When the case reached the Court
of Appeal in June 1978, it was already known to the family that the mother's health had deteriorated to the
extent that she could not expect to be able to look after her daughter for very long. In fact, as the House now
knows, Dr. Lim came to England on September 4, 1978 (two months after judgment in the Court of Appeal).
Accommodation has now been found for her in a private nursing home not far from where her sister lives.
The position, therefore, is that damages have to be awarded in respect of: (a) cost of care in Malaysia from
February 2, 1974, to September 4, 1978, a period of 55 months; (b) travelling expenses, Penang to London:
and (c) cost of care in England from September 4, 1978, to date of judgment in this House. The judge
assessed the cost of care in Malaysia at 200 per month. He, specifically and correctly. excluded "the
domestic element" from his calculation. Mr. French was, however, able to demonstrate - and I did not
understand Mr. Davies to challenge the accuracy
[1980] A.C. 174 Page 195
of his figures - that the judge erred in his calculation of $850 a month for this period, and that the true
monthly figure should have been $1,286, which at the prevailing rate of exchange is about 300 per month.
The sum, therefore, for care in Malaysia is 16,500 (55 X 300) with interest at 4 per cent. per annum from
date of accident (March 1, 1973).
The travelling expenses are not in dispute. The sum is 1,923. Interest should run at 10 per cent. from
September 4, 1978.
For reasons which I shall develop when dealing with cost of future care, which we now know will be in
England, the cost of care from Dr. Lim's arrival here until date of judgment in this House is to be calculated at
the rate of 6,400 per annum (533.33 per month). Interest will run at 4 per cent. per annum from date of
accident, March 1, 1973.
Cost of care to date of judgment in this House is, therefore: (a) 16,500, (b) 1,923, (c) to be calculated from
September 4, 1978, to date of judgment in this House at the rate of 6,400 per annum, to each of which
sums must be added interest at the appropriate rate for the appropriate period.
(5) and (6) Loss of earnings to date of judgment at trial with interest thereon

20

I have answered the question of principle in favour of the respondent. The judge estimated Dr. Lim's net loss
for this period to average out at 3,158 per annum. The figure has not really been challenged as a figure.
The judge did not err in law, and the figure appears reasonable. I would, therefore, agree with the Court of
Appeal in upholding this item of the award, the result of which is: amount of loss: 14,213, to which must be
added interest at 4 per cent. per annum for the period from date of accident (March 1, 1973) to date of
judgment at trial: 3,400.
(7) Cost of future care
Events require the House to revise the judge's award. The period for assessing this item of damages now
starts from date of judgment in this House: and there is no Malaysian element to be considered, Dr. Lim
having returned to England on September 4, 1978.
Two questions arise for your Lordships' decision: (a) the likely cost of the care of Dr. Lim in a suitable private
institution, where fees will have to be paid, and (b) the number of years purchase. The House allowed
evidence to be called. It is unnecessary to burden the House with a review of the details. It is sufficient to
state a conclusion on what is a question of fact. After allowing for the domestic element, I understand the
House to be agreed that an appropriate multiplicand is 6,400 per annum. The judge accepted as the
multiplier 18 years' purchase from date of his judgment (seven years in Malaysia plus 11 thereafter in
England). Mr. Davies submitted that the multiplier ought to have been substantially less, i.e., based upon a
shorter span of years. When the judge dealt with the multiplier for the period of care in England, he said
[1979] Q.B. 196, 203:
"Her expectation of life, according to the tables, will be in the order of a further 37 years. In this case I must make a
substantial discount

[1980] A.C. 174 Page 196

because of the accelerated payment, some reduction for the contingency that she will not reach the average age, some
reduction to allow for the purely domestic element, and some increase for prospective inflation. Balancing these
elements as best I can, I find the appropriate multiplier for the period of future care in England to he 11."

It is unusual to allow for the "domestic element" in determining the multiplier. In most cases - and the present
is no exception - it is better to make the appropriate deduction in calculating the multiplicand - as I
understand your Lordships are doing in this case. It is not possible to discover how much weight the judge
gave to the prospect of inflation. One significant omission from his list of "elements" of discount is the
necessity of calculating the award upon the basis that the capital, as well as the income arising, is to be
available for meeting the cost of care.
In the present case I attach major importance to the following elements of discount: the accelerated payment,
the contingency that Dr. Lim may not live out her full expectation of life, and the availability of capital as well
as income to meet the cost of care. Upon the basis of the very helpful evidence of the accountant, Mr.
Eccleshall (evidence which was, however, not always directed to the real issues in the case), I accept Mr.
Davies's submission. A fair multiplier would, in my judgment, be 12 years' purchase from date of judgment in
this House. The figure for this item is, therefore, 6,400 X 12 = 76,800.
(8) Loss of future earnings and pension
I would not disturb the judge's award. The question of principle being answered in favour of the respondent, I
see no reason for modifying the judge's estimate upon the facts that the multiplicand should be 6,000 per
annum. He reached his multiplier of 14 years' purchase upon the basis that even after her accident Dr. Lim
was expected to survive for the duration of a normal working life: and he included "a small increase to build
in some anti-inflation protection" [1979] Q.B. 196, 204. With the recent decision of this House in Pickett v.

21

British Rail Engineering Ltd. [1980] A.C. 136 now available, it becomes necessary to fix the multiplier not, as
the judge did, by reference to post-accident expectation of life but by reference to the pre-accident
expectation. However, it makes little difference in this case because Dr. Lim's expectation of life after her
injury is substantially as it was before her injury. Nevertheless the Pickett approach is more favourable to the
respondent, because the contingency of an earlier death is plainly more likely after than it was before her
injury. Accordingly, even if the judge erred (as I think he did) in allowing for anti-inflation protection, he
reached a multiplier which accords with Dr. Lim's pre-accident expectation of working life.
When the judge turned to the loss of pension rights, he made a very substantial discount. Should Dr. Lim live
her life-table span of 12 years after retirement, she would receive 49,866 pension. The judge awarded her
8,000. Mr. Davies does not quarrel with that figure, and Mr. French for the respondent has not crossappealed against it. It is reasonable and must be upheld.
[1980] A.C. 174 Page 197
Conclusion
Upon the questions of principle argued before the House I find that the appellants have substantially failed in
the appeal, but have succeeded on the cross-appeal. Nevertheless, for the reasons I have given and
because of the changed circumstances of Dr. Lim and her family, the award is diminished, though to no very
great extent. Excluding interest, which should be calculated and, if possible, agreed by the parties when the
House makes its decision, the award should, I propose, be as follows:
Pain, Suffering, Loss of Amenities
20,000
Out of Pocket Expenses
3,596
Cost of care up to date of judgment in this House
(a) Malaysia
16,500
(b) Travelling
1,923
(c) (calculated from September 4, 1978, to an arbitrary 4,266.64
date, May 4, 1979; it will require to be revised
upwards to the actual date of judgment in the House)
Loss of earnings to date of judgment at trial
14,213
Cost of future care
76,800
Loss of future earnings (including pension rights)
92,000
Total
229,298.64,

to which the appropriate interest will have to be added.

My Lords, I would propose that, subject to the necessary variations to the amount of the award, the appeal
be dismissed with costs and the cross-appeal dismissed with no order as to costs.
On original appeal, order appealed from set aside save as to costs.
Appellants to pay respondent sum of 249,429.92. Appellants to pay respondent's costs in House of Lords
and below.
Cross-appeal dismissed with no order as to costs in House of Lords.
Solicitors: J. Tickle & Co.; Coward Chance.

M. G.