reasonable steps to reduce the total sum of damages payable. Thus he is not
entitled to buy in extravagantly priced care, or go to his hospital appointments in a
chauffeur-driven Rolls Royce. If non-dangerous medical treatment would alleviate
his condition, he may be obliged to have it: if he does not, he may forfeit that part of
his claim which relates to the difference between the condition he is in fact in and
the condition which he would have been in had he had the treatment. All the
comments below about damages have to be read subject to this caveat about
mitigation.
Damages for pain, suffering and loss of amenity
These are exactly what they say. They are inevitably quantifications of the
intrinsically unquantifiable. In trying to assess this head of claim, lawyers rely on
guidelines which prescribe broad brackets of awards for particular types of injury
and disability [21], and on reported cases.
The Law Commission has recently criticised awards of damages for pain,
suffering and loss of amenity as being too low. That is a common complaint.
Certainly the disparity between such awards and awards of damages in libel cases
for injury to reputation can often be insulting to claimants who have suffered
personal injuries. InHeilv.Rankin and Others 2000) the Court of Appeal decided
that where the conventional award of damages for pain, suffering and loss of
amenity was £10,000 or under, there should be no change, and that above that,
there should be a gradual tapering up of awards so that the largest awards would
be about one third higher than they had previously been. Insurers were generally
happy with this decision, since the vast number of cases they face attract awards of
less than £10,000. The National Health Service will be hit particularly hard, since
damages for pain, suffering and loss of amenity in clinical negligence cases are
very often over the £10,000 threshold.
Special damages
These, broadly, are the financial losses which have accrued between the time of the
negligence and the time of the trial. They can only be described broadly this way
because they include heads of claim for instance the cost of care) which relate to
work which has been done free for the claimant, and it is rather artificial to
describe these as `financial losses'.
They typically include the cost of travel to and from hospital both of the
claimant and of visiting relatives), prescription and other medical expenses, the
cost of care, lost earnings and the cost of equipment needed to cope with disability.
In relation to each claim, the court will ask itself:
. whether the claimant has proved that the loss has in fact occurred;
. whether the loss was caused by the negligence;and
. in relation to expenditure, whether it was reasonable in principle to spend
money on whatever the head of claim is, and if so, whether it was reasonable to
spend the amount of money which is claimed.
If care has been given free by relatives or friends, the court values the cost of
84 Nursing Law and Ethics