Avery v London & North Eastern Ry. Company
| Jurisdiction | England & Wales |
| Judge | Lord Atkin,Lord Chancellor,Lord Russell of Killowen,Lord Macmillan,The Lord Chancellor,Lord Thankerton |
| Judgment Date | 09 May 1938 |
| Judgment citation (vLex) | [1938] UKHL J0509-8 |
| Date | 09 May 1938 |
| Court | House of Lords |
[1938] UKHL J0509-8
House of Lords
Lord Chancellor
Lord Atkin
Lord Thankerton
Lord Russell of Killowen
Lord Macmillan
After hearing Counsel, as well on Thursday the 17th, as on Friday the 18th and Monday the 21st, days of March last, upon the Petition and Appeal of Eleanor Mary Avery, Spinster (an infant), by Francis Lewin Avery, her uncle and next friend, of 40 St. Mary Street, Ilkeston, in the County of Derby, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 11th of May 1937, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the Petition and Cross Appeal of the London and North Eastern Railway Company, whose offices are at Marylebone Station in the County of London, praying, That the matter of the Order set forth in the Schedule thereto, namely, the said Order of His Majesty's Court of Appeal, of the 11th of May 1937, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be varied or altered, and that the Petitioners might have the relief prayed for in the Cross Appeal, or such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of the London and North Eastern Railway Company and also upon the printed Case of the said Eleanor Mary Avery, lodged in the said Original and Cross Appeals: and due consideration had this day of what was offered on either side in these Appeals:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 11th day of May 1937, complained of in the said Original and Cross Appeals, be, and the same is hereby, Reversed, and that the Award of His Honour Judge Langman, of the 9th day of October 1936, thereby set aside, be, and the same is hereby, Restored: And it is further Ordered, That the said Petition and Cross Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the said London and North Eastern Railway Company do pay, or cause to be paid, to the said Eleanor Mary Avery the costs incurred by her in the Court of Appeal, and also the costs incurred by her in respect of the said Original and Cross Appeals to this House, the amount of such last-mentioned costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Grantham County Court, to do therein as shall be just and consistent with this Judgment.
My Lords,
The Opinion which I am about to read is that of my noble and learned friend the Lord Chancellor.
My Lords,
This appeal is one of considerable difficulty and importance; and I was engaged in preparing an Opinion designed to show my reasons for being obliged to differ from the Court of Appeal when I was enabled to peruse the judgment prepared by my noble and learned friend Lord Atkin. That Opinion so completely coincides with my own that, without intending any disrespect to the Court of Appeal, I do not feel justified in taking up the time of Your Lordships in expressing, perhaps in language not so clear and precise, my own views. In these circumstances I shall content myself by saying that I agree in all respects in the Opinion of my noble and learned friend.
My Lords,
This is an appeal from an order of the Court of Appeal who set aside judgments and awards of His Honour Judge Langman in proceedings in the County Court of Lincolnshire, holden at Grantham: and directed new trials. The proceedings all arose out of the same accident in which four workmen, servants of the Respondent railway company, were killed. They were being carried in the course of their employment in a ballast train which was run into by two light engines negligently driven by servants of the railway company. The case therefore came within section 1 (5) of the Employers' Liability Act, 1880, which provides that where personal injury is caused to a workman, "(5) by reason of the negligence of any person in the service of the employer who has the charge or control of any … locomotive engine … upon a railway, the workman, or in case the injury results in death, the legal personal representatives of the workman and any person entitled in case of death, shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of nor in the service of the employer nor engaged in his work." The result was that the widows and children of the respective workmen had the rights of compensation and remedies given to them by the Fatal Accidents Acts, 1846 and 1864, the first of which is generally known as Lord Campbell's Act, and also had the rights of compensation given to them by the Workmen's Compensation Act. But under section 29 (1) of that Act the workman (and by section 48 (3) this includes his dependants) has only an option to claim under the Act or to take proceedings independently of the Act. The option, however, is one to be exercised by each individual claimant ( Kinneil Cannel Co. v. Waddell, 1931, A.C. 575). If proceedings are taken by virtue of the Employers' Liability Act they are subject to a limit to the amount of compensation recoverable under the Act which by section 3 is not to exceed a sum equivalent to three years' earnings of a person in similar conditions to the injured workmen. The limit under the Workmen's Compensation Act is arrived at on similar principles, but may be rather larger. In the present cases the widows and children, acting no doubt under the advice of the workmen's trade union, adopted a uniform policy. The widows made a claim under the Employers' Liability Act, the children claimed as dependants, total or partial, under the Workmen's Compensation Act. The County Court Judge therefore had before him four actions in which the widows were Plaintiffs: and four arbitration proceedings in which the children were applicants. In the actions he assessed the damages to two of the widow Plaintiffs at the full amount of the maximum sum, and to two of the Plaintiffs at something less than the maximum sum. In assessing the damages he refused to take into account that there were other dependants, the children, who were not claiming in the actions. In the arbitration proceedings he awarded to the applicant children compensation either for total or partial dependency. In no case did he award the maximum under the Act, but in each case he declined to take into consideration the fact that there was another dependant, the mother, who was not in fact applying for compensation under that Act. The Court of Appeal have held that the Judge was wrong. As I understand their judgment it is that both the Employers' Liability Act and the Workmen's Compensation Act provide a limited compensation for a group of injured dependants. The compensation in both Acts must be awarded as though all the injured group were before the Court, and no one member is to get more compensation than he or she would have got if compensation were being assessed for all. You could not therefore award the total maximum to a mother if there were in fact children dependants, but only her fair share in the family group. Similarly in workmen's compensation proceedings you could not distribute the total maximum among the children applicants as the mother's share is outstanding. It is true that one or more claimants might renounce their share in favour of others: but that would only be on the footing that they had claimed their share and assigned it to the others: and if that were done they would be precluded under the option provision from claiming under the alternative proceeding.
My Lords, I am unable to agree with this construction of either Act. The question may be considered historically. If a claim were made under Lord Campbell's Act after 1846 it is manifest, I venture to think, that no question of group compensation arises. The action for damages, to which for the first time by section 1 the tortfeasor is made liable, is by section 2 expressed to be for the benefit of the wife, husband, parent and child of the person killed: the words "parent" and "child" are by section 5 expanded to include grandparents and step-parents, grandchildren and step-children. But they obviously are not the group to whom compensation is to be awarded: they form the class injured members of which may recover compensation: and the only proceeding in which such injured members may recover compensation is in an action brought for them and naming them, with an express statutory provision in section 4 that with the declaration there must be delivered full particulars of the person for whom and on whose behalf the action is brought, and of the nature of the claim. The jury are to give damages proportionate to the injury to the parties respectively for whom and for whose benefit the action...
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