This book is the fruit of an intense collaboration between the European Commission for Democracy through Law (the ‘Venice Commission’) and academia. The Venice Commission is the Council of Europe's advisory body on constitutional matters. Established in 1990, the Commission has played a leading role in the adoption of constitutions that conform to the standards of Europe's constitutional heritage. It contributes to the dissemination of the European constitutional heritage while continuing to provide ‘constitutional first-aid’ to individual states. The Venice Commission also plays a role in crisis management and conflict prevention through constitution building and advice.

The Venice Commission is composed of independent experts. The members are senior academics, particularly in the fields of constitutional or international law, supreme or constitutional court judges or members of national parliaments. Acting on the Commission in their individual capacity, the members are appointed for four years by the participating countries. All Council of Europe member states are members of the Venice Commission; in addition, Kyrgyzstan joined the commission in 2004. Argentina, Canada, the Holy See, Israel, Japan, Kazakhstan, the Republic of Korea, Mexico, the United States and Uruguay are observers. South Africa has a special cooperation status similar to that of the observers. The European Commission and OSCE/ODIHR participate in the plenary sessions of the Commission.

The work of the European Commission for Democracy through Law aims at upholding the three underlying principles of Europe's constitutional heritage: democracy, human rights and the rule of law which represent the cornerstones of the Council of Europe.

English law

Introduction

The guiding principle for the award of damages in respect of a tort is, in English law, to compensate the victim of the wrongdoing. That is as true in cases of personal injury as it is for any other tort. Punitive or exemplary damages may not be awarded for personal injury no matter how severe the injury may be nor how gross the negligence on the part of the wrongdoer. The difference here between English and American law is significant and accounts in large part for the different size of awards found in the two countries.

If, however, injury has been caused by a deliberate act, aggravated damages may be awarded. If the personal injury has been caused by a trespass to the person rather than by negligence, the court has discretion to make such an award. Such cases are rare, and judges have discouraged the pleading of claims as a deliberate tort in an attempt to increase the damages.

There may also be a sound practical reason for framing claims in negligence. A claimant who pleads trespass in the form of assault or battery gives the defendant employer the opportunity to contend that he is not vicariously liable because the deliberate act was outside the scope of his employee's employment. It also gives the insurer standing behind the defendant the opportunity to avoid the policy.

English law

Introduction

In addition to general damages for pain, suffering and loss of amenity an injured individual will be compensated for pecuniary loss suffered by him as a direct consequence of his injuries and residual disabilities. The various heads of loss are considered later in this chapter. In essence they fall into two categories; monies which the claimant would have received but for the accident, and expenditure which he would not have incurred but for the accident. The court, inevitably, is involved in a degree of speculation. It is incumbent upon the claimant to prove, on the balance of probabilities, what would have happened in the future or what is likely to have happened in the future. The court considers the position as it is at the date of trial and makes its assessment at that date. Save in one exceptional case neither side has the opportunity to return to court to review the level of damages. Once the damages are paid it is entirely a matter for the claimant how the money is spent. The defendant is not entitled to insist that the money be used for any specific purpose nor is he entitled to return to court to complain that the claimant has not, in fact, done what he said he was going to do in the course of the evidence.

Biblical texts warn us that no one can serve two gods. Lawyers, no doubt, have occasionally done so; and comparative lawyers must, surely, have a dispensation to do so regularly. For the raison d'être of the latter is to describe and compare different systems without fear or favour, largely for the sake of the advantages and the insights that flow from any comparative exercise. We have thus tried to present in a comparative juxtaposition three major legal systems of the world and have addressed our text to two readerships which are often described as being very different – practitioners (including judges) and academics. We have done this for two reasons.

Many have written about the respective tasks of these two kinds of lawyers; and in England those who have done so have stressed how different they are. There is, of course, some truth in these assertions; but in our view these differences have also been exaggerated – at any rate whenever one is trying to make the one group work closely with the other, as we feel they must. For in such circumstances academics must try to present their theories in any way that makes them palatable to practitioners; if they do not, their dish (for which read ideas) will not be savoured.

To the extent that the book describes in modest detail what can be claimed in the event of personal (not fatal) injuries in the three systems compared, it tries to serve the first constituency.

Preliminary observations

Cross-border claims for personal injuries are becoming more and more common, particularly within the European Union. Furthermore, we know from our personal experience that European nationals and/or residents increasingly join, or seek to join, class actions in the United States of America. This tendency leads to a need to know more about the law in Europe including, of course, English law. Thus, though this book is not about American law, it makes allusions to it where this is likely to be useful to both American lawyers using it and Continental European lawyers aware of the fact that they must constantly guard against the danger of thinking that they understand the law in the USA because they usually know something about English law.

Despite the growing importance of this subject, we believe that there is a dearth of material available to practitioners in any of these jurisdictions to assist them both in advising their clients as to the heads of damage recoverable in other countries and/or the level of damages which they might expect to be awarded. It is the objective of this book to fill that gap in sufficient (but not excessive) detail and we attempt this in chapters 2 to 5. If the transnational trend we alluded to above continues, we intend to flesh out our account further in a future edition.

In this work we have deliberately limited the scope to compensation for personal injury.

English law

Social security payments

General observations

In England, the recovery and deduction of benefits is governed by the Social Security (Recovery of Benefits) Act 1997. That came into force on 6 October 1997 and applies to all cases concluded after that date irrespective of when the litigation began, the accident occurred or the condition complained of was contracted.

Major changes were instituted by the 1997 Act. First, general damages for pain, suffering and loss of amenities are not subject to any deduction. Secondly, loss of earnings, cost of care and damages for loss of mobility are subject to recoupment of certain specified benefits particularly applicable to each of those heads of damage. Thirdly, it is the defendant who is liable to make the repayment to the Compensation Recovery Unit, not the claimant. The full amount of all recoverable benefits must be paid irrespective of whether they have been claimed by the claimant or not. It is the responsibility of the defendants to obtain the relevant certificate from the Unit and to pay what is due. The payment which is made to a claimant must be, or is taken to be, net of repayable benefits. No interest is payable on the benefits so recouped.

That is equally applicable to any interim payments of damages agreed (or ordered to) be paid during the course of the proceedings.

In 1871, when reviewing Addison's recently published The Law of Torts, Oliver Wendell Holmes expressed the view that ‘Torts is not a proper subject for a law book’ ((1871) 5 Am.LR 340). In 1881 Holmes gave the lie to this idea in his famous book The Common Law which contained a magisterial chapter on the theory of the law of torts. Today, tort law has a strong claim to have generated more case law and more literature than any other branch of the law.

In an age in which comparative law has come of age the development of our tort law has benefited greatly from comparative methods. It has enabled us to test our law against feasible solutions adopted in foreign legal systems. Due perhaps in large measure to the relative inaccessibility of sources in foreign languages, the comparative exercise has unfortunately in English legal practice largely concentrated on decisions in common law jurisdictions, such as Australia, Canada, New Zealand and South Africa. That our courts need not be so inhibited has been underlined, for example, by three major works, i.e. Prof. Christian von Bar, The Common European Law of Torts, vols. 1 and 2 (2000); Prof. Walter van Gerven (van Gerven, Lever and Larouche), Cases, Materials and Text on National, Supranational and International Tort Law (2000); Prof. Basil Markesinis and Prof. Hannes Unberath, The German Law of Torts (4th edn, 2002). All three are, of course, essential reading for practitioners.

General observations

This monograph has been concerned with the law of damages in three major European legal systems. In accordance with the proclaimed belief of one of us, and in this instance also shared by all of its co-authors, this study has targeted mainly (but not exclusively) judges and international practitioners not only in order to inform them about an area of tort law of growing international significance, but also in the belief that they are the most important propagators of the comparative study of the law. Wider reflections of a more speculative nature have, on the whole, thus been restricted to the Introduction and the Conclusions; and they are concerned with mainly two issues.

The first is how to present the law of one country to lawyers of another in a way that makes sense to them. We have referred to this problem as being one of ‘suitable packaging’. Readers must not be put off by a term which could be seen in a pejorative light. The packaging does not alter the product; it just makes it more saleable. National laws have their own intrinsic value. The systems under comparison also have their own long and very respectable history to support and explain their national solutions. Last but by no means least, their lawyers have their own ways of expressing their thoughts; and we are not here referring simply to special features of the grammar of each national language.

English law

Introduction

In English law the expression ‘special damages’ can, as we stated in the Introduction, have several meanings. In this chapter it refers to the amounts payable by a tortfeasor to his victim for the pecuniary losses actually suffered between the date of the accident and the date of trial or, in the case of less serious injury, the date of recovery. Thus the basic principle is that the claimant must prove, on the balance of probabilities, either what he has lost in financial terms (as for example in loss of earnings), or what sums he has had to pay, or become liable to pay, in order to meet expenditure directly incurred as a consequence of his injuries.

It is not, of course, every penny expended which is recoverable as damages. The court will look to see whether those payments were reasonably necessary. The principle was explained by Megaw LJ in Donnelly v. Joyce. While the claimant may say, and believe, that it would aid his recovery to travel in the style and comfort of a Rolls Royce motor car and to spend an extended holiday in a five-star hotel in the Caribbean, the court is most unlikely to accept that it was reasonably necessary for him to do so. However, judges are disinclined, where the matter is marginal, to say that it was unreasonable for the claimant to have taken a certain course if he has actually expended the money.