Shaw v Kovac [2017] EWCA Civ 1028

The estate of a man who died 25 days after negligent post-operative care appealed against the conventionally low award for pain, suffering and loss of amenity. The Court of Appeal upheld the established modest sum, confirming its applicability even in medical negligence.

Facts

Mr Peter Shaw, an 86-year-old man, underwent a total hip replacement on 20 January 2014. Following the operation, he developed significant abdominal pain and distress. His condition deteriorated, and a CT scan on 12 February 2014 eventually revealed a perforated duodenal ulcer. He died the following day from peritonitis. The defendants admitted that the failure to diagnose and treat the perforation in a timely manner constituted a breach of duty. The period of pain and suffering attributable to this negligence was approximately 25 days. At first instance, the judge awarded £3,500 for Pain, Suffering, and Loss of Amenity (PSLA), following the established conventional approach for cases involving very short periods of suffering before death.

Issues

The central legal issue on appeal was the quantum of the award for PSLA. The claimant (Mr Shaw’s son and personal representative) argued that the conventional, modest award was outdated, inadequate, and failed to properly reflect the gravity of the suffering endured. The appellant contended that the anachronistic rule should be abandoned in favour of a more individualised assessment, and sought a significantly higher sum. It was further argued that the low conventional award was incompatible with the state’s obligations under Article 2 of the European Convention on Human Rights (the right to life).

Judgment

The Court of Appeal unanimously dismissed the appeal. Lord Justice Davis, giving the leading judgment, conducted a thorough review of the authorities governing awards in such cases, including Hicks v Chief Constable of the South Yorkshire Police [1992] 2 All ER 65. The court affirmed that a long-standing principle, binding on the Court of Appeal, dictated that a modest, conventional sum is appropriate for PSLA where the period of survival post-negligence is very short. It was held that such an entrenched principle could only be altered by the Supreme Court or by Parliament.

In addressing the appellant’s arguments, Davis LJ stated:

The principle which has been established for a great many years is that, for these very short periods of pain and suffering, what is awarded is a modest, conventional sum. This approach has been repeatedly endorsed by this court… I am entirely unpersuaded that it is open to this court to depart from the long-established authority which binds us. Any such departure, if it is to be made, is for the Supreme Court or for Parliament.

The court also rejected the argument based on Article 2 of the ECHR. While acknowledging that a breach of Article 2 could give rise to a claim for ‘just satisfaction’ under the Human Rights Act 1998, it was held that this did not require or justify an alteration of the established common law principles for assessing PSLA in a civil claim for negligence. The purpose of damages in tort is compensatory, and the court found no basis in ECHR jurisprudence to compel an increase in the conventional award for PSLA in this context.

Implications

The judgment firmly reaffirms the practice of awarding a modest, conventional sum for PSLA in fatal accident claims where the deceased suffered for only a short period. It clarifies that the Court of Appeal considers itself bound by precedent on this issue, directing any potential reform to the Supreme Court or the legislature. The decision also limits the utility of Article 2 ECHR arguments as a means of inflating common law damages in negligence claims, reinforcing the distinct purposes of tortious damages and ‘just satisfaction’ under human rights law.

Verdict: The appeal was dismissed.

Source: Shaw v Kovac [2017] EWCA Civ 1028