The Heil v Rankin approach to law-making

Abstract

In a remarkably frank paper, Professor Andrew Burrows has shed some light on the process by which awards for non-pecuniary loss in personal injury cases were uplifted in Heil v Rankin, a process in which he played a leading role as a Law Commissioner. In apparent disregard of the criticisms to which this process has been subjected, Burrows regards it as an example of a valuable ‘methodology’ of common law law reform. These criticisms are reviewed in this paper and to them is added a criticism of the concept of ‘normal decision-making’ by the courts that is the basis of Burrows’ views. Heil v Rankin was far from normal decision-making, but in this it was merely of a piece with all awards of damages for non-pecuniary loss, for such damages have no grounding in the common law adjudication of awards of compensation. The further development in Simmons v Castle of the judicial legislation effected in Heil v Rankin is also considered.