DAMAGES FOR PAIN AND SUFFERING PRIOR TO DEATH AND REDUCTION OF LIFE EXPECTANCY: IMPORTANT COURT OF APPEAL DECISION

The case of Kadir -v- Mistry [2014] EWCA Civ 1177 deals with two important questions in relation to pain and suffering prior to death. Firstly should there be an award for pain and suffering in circumstances where the deceased person would have had the same symptoms but at a later time; secondly whether the deceased person needs to be aware that they have a reduced life expectancy in order that damages for reduced expectancy can be awarded.

THE LAW

The Law Reform (Miscellaneous) Provisions Act 1934 allows the estate of a deceased person to bring an action for certain losses to the estate and for the pain and suffering that the deceased person has suffered prior to death.

THE FACTS OF KADIR

This was an action where the deceased had received negligent medical treatment and there was a failure to diagnose cancer. This accelerated her death.  The defendant argued that no award should be made for pain and suffering given that pain and suffering was inevitable in any event. This argument was accepted by the circuit judge.

“8. Mr Foster has not shied away from the argument that as a matter of reality this lady suffered significantly less because of the delay of diagnosis than would have been the case if she had been diagnosed when it ought to have been because of the very awful nature of the extensive treatment to which she would have been subjected and the gruelling experience to which that would have given rise. It is not an attractive submission but, having considered it at length, I have come to the conclusion that it is a submission with merit. With a good deal of reluctance and, I have to say, some hesitation I have come to the conclusion that this is not a case in which I can make an award for general damages for pain and suffering and loss of amenity. This is not because I consider there to be any form of set off as argued at one time by Mr Foster. That is an approach for monetary claims. Rather it is because the claimant has failed to establish on the balance of probabilities that the deceased suffered from any symptoms from which she would not in any event have suffered. The evidence suggests that once the deceased had undergone the gruelling experience of failed surgery and chemotherapy she would, by reason of the nature of her illness, have progressed to develop just those symptoms that she in fact developed. Further, there is no evidence to establish that her symptoms lasted any longer than they would have lasted had she undergone unsuccessful treatment. In this sense she suffered no more than she would in any event have suffered, albeit at an earlier time.”

THE DECISION IN THE COURT OF APPEAL: NO AWARD FOR PAIN AND SUFFERING

This decision was upheld by the Court of Appeal.  There was no evidence that the pain and suffering that the deceased suffered were any worse because of the negligence. Lord Justice Laws stated.

  1. It is in my judgment important to bear in mind on this part of the case that there are no special rules for the assessment of general damages for pain and suffering in a 1934 Act case compared with the case of a living claimant, save only the caveat in the Act which allows damages for mental anguish occasioned by the apprehension of an early death. This part of the case requires the court to undertake what to my mind is a wholly conventional exercise: what elements of pain and suffering as a matter of causation had been occasioned to the deceased by the respondent’s negligence? Of course the case has to be looked at as at the date of death; thereafter she is beyond pain and suffering. As I put it earlier, the question in this case must be what pain and suffering were occasioned to the deceased between June 2007 when the respondent was relevantly negligent and her death in August 2008.
  2. If the court were looking at the case of a live claimant facing an early death — say a person in the position of this deceased just before the date of her actual death in August 2008 — it would in my judgment inevitably have had to compare the facts as they eventuated with the facts as they would have been without negligence on the defendant’s part. That is a conventional exercise, to use the phrase I used before. On this footing the fact that the deceased would have suffered the same symptoms two years later must have been relevant, and the gruelling nature of the treatment she would have received without negligence must also have been relevant. The comparative exercise which is an elementary feature in deciding what is attributable to the negligence in such a case makes those matters relevant. On that approach in my judgment the judge was correct to refuse, and was entitled to refuse an award of damages for pain, suffering and loss of amenity.
  3. The exercise I have described would properly lend to such a result on the evidence in the particular case. I have to say I was at a loss to detect in Mr Sweeting’s submission this morning any articulation of principle which might produce a different result. The fact that the deceased’s suffering caused by the cancer, and the effects of the treatment that she would have received without negligence, were in Mr Sweeting’s words “conceptually different” seems me to be neither here nor there. In those circumstances I would for my part dismiss the appeal on the first issue.

HOWEVER THERE WOULD BE AN AWARD FOR KNOWLEDGE OF REDUCTION OF LIFE EXPECTANCY

There used to be a distinct head of damage for “loss of expectation of life”. This was precluded by the  the Administration of Justice Act 1982 section 1(1)(a). But there is a caveat in that a court can award damages for the suffering caused by the knowledge that life expectancy is reduced.

“If the injured person’s life has been reduced by the injuries the court in assessing damages in respect of pain and suffering caused by the injuries shall take account of any suffering caused or likely to be caused to him by awareness that his expectation of life has been so reduced.”

SHOULD AN AWARD BE MADE FOR AWARENESS THAT EXPECTATION OF LIFE HAD BEEN REDUCED?

Here the Court of Appeal allowed the appeal and held that an award should have been made.

Firstly the knowledge need not be absolutely certain:-

  1. I do not for my part consider that awareness here necessarily means strictly certain knowledge. The provision is dealing with a state of affairs arising where the claimant or deceased has good objective reason to fear that his expectation of life has been reduced. As a matter of ordinary humanity, it seems to me plain that if some good objective reason to fear is shown, then a subjective fear and the anguish that surely follows it will ordinarily be liable to be inferred.

Secondly the judge could properly infer that the deceased person had knowledge

  1. It seems to me plain on the material that we have seen that the evidence gave rise to a proper inference that Mrs Begum feared on good objective grounds that her life had been or may have been curtailed by the respondent’s failure to diagnose her condition earlier. The appellant was not required to prove that his wife knew her life expectancy had been reduced because the respondents had been negligent. On this ground only and for these reasons I would allow the appeal. If my Lords agree, a question will arise as to the further disposal of the case as to which as appropriate we will hear further submissions.

APPEAL ALLOWED ON THE KNOWLEDGE OF REDUCED LIFE EXPECTANCY GROUND ALONE

A (presumably small) amount of general damages would be awarded because of knowledge of reduced life expectancy. (The amount is not recorded in the transcript).

TWO IMPORTANT POINTS

(1) In a claim for pain and suffering brought under the 1934 Act the claimant must establish causation. That is that the negligence has caused pain and suffering that the deceased person would not, otherwise, have suffered.

(2) A court is entitled to infer knowledge of reduced life expectancy it need not be proven.

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