A quantum comparison: assessment of damages around the world

In February 2020, we published our first quantum comparison report, using a recently settled English claim as a case study to consider and compare what the settlement value may have been, based on the legislation and principles applied in four other jurisdictions – Hong Kong, Australia, Spain and Ireland.

More recently, in September 2022, in our interactive virtual conference we travelled across ten jurisdictions to consider quantum in a maximum severity child brain injury case and compare the potential damages awards around the world.

In this accompanying report, we provide an overview of the approach to claims of this type, capturing the insights from our medical negligence experts in Australia, Canada, France, Hong Kong, Ireland, Israel, Latin America, Portugal, Spain and the UK.

There is a significant variation in potential damages awards across the different countries – ranging from just under £22 million (based on a capitalised sum) in England and Wales through to in the region of US$500,000 (or approximately £417,000) in Latin America. It is clear that one of the key contributory factors is whether a discount rate is applicable to future losses and if so, the level of that discount rate and the multiplier that is applied. England and Wales appears to be the only jurisdiction with a significant negative discount rate for the duration of the claimant’s life and is why multipliers of 90 are applied.

Periodical payment orders (PPOs) also represent another interesting point of difference in the approach to damages awards. Whilst common in England and Wales, in Ireland they are very rarely used despite the statutory framework being in place and in France they are at the discretion of the judge.

It is unlikely that damages in the UK will reduce without some form of tort reform such as an introduction of a cap on damages, similar to those in Australia.