A measure of damages in respect of a tortious claim is for “pain, suffering and loss of amenity”. Does that apply if a person is involved in an accident which sadly proves fatal, in all likelihood instantaneously fatal? Well yes, apparently it does in Chouza (personal representative or Rodriguez, deceased) v Martins [2021] the court had to consider precisely this point.

The deceased had been a front seat passenger in a people carrier which was hit by a lorry which was on the wrong side of the road. The liability of the lorry driver was not in question, but a careful exercise was carried out to quantify damages. The tortious measure of “pain, suffering and loss of amenity” has to be linked with physical injury and cannot be looked at in isolation. In this case the evidence was that the deceased would have been in fear of the accident for a maximum of 5 seconds before the impact in which he had probably died immediately. The court concluded that during those 5 seconds the deceased would have apprehended the risk of personal injury and that compensation could therefore be paid. The quantum of that compensation was assessed at £500. Interest from the date of the accident to the trial was due on the £500.

What do you think about this? There could certainly be a discussion point on it when you are assessing quantum in any problem question. £100 per second of fear seems quite high to us. We don’t think the courts would ever be likely to award £360,000 for an hour of such fear. Should you query this decision or just look at it as a de minimis additional amount in an overall settlement of €1,173,975.82? We love a discussion point!!