Benham v Gambling

JurisdictionUK Non-devolved
JudgeThe Lord Chancellor,Viscount Maugham,Lord Russell of Killowen,Lord Wright,Lord Roche,Lord Porter
Judgment Date16 December 1940
Judgment citation (vLex)[1940] UKHL J1216-1
Date16 December 1940
CourtHouse of Lords
Benham
and
Gambling.

[1940] UKHL J1216-1

Lord Chancellor

Viscount Maugham

Lord Rusell of Killowen

Lord Wright

Lord Roche

Lord Romer

Lord Porter

House of Lords

After hearing Counsel, as well on Thursday the 31st day of October last, as on Friday the 1st and Monday the 4th, days of November last, upon the Petition and Appeal of Henry Frederick Benham of 22 Brokenford Lane, Totton, Southampton, in the County of Southampton, 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 4th of December 1939, 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 printed Case of Wallace Archibald Gambling, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

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 4th day of December 1939, complained of in the said Appeal, be, and the same is hereby, Discharged, except as to Costs, and That the Judgment of the Honourable Mr. Justice Asquith, of the 21st day of July 1939, be, and the same is hereby, Discharged, except as to Costs: And it is Ordered in lieu thereof, That Judgment be entered for the Plaintiff for the sum of Two hundred pounds (£200): And (by Consent) it is also further Ordered, That the said Order of His Majesty's Court of Appeal, of the 4th day of December 1939, and the said Judgment of the Honourable Mr. Justice Asquith, of the 21st day of July 1939, be, and the same are hereby Affirmed as to Costs, and that there be no costs of the Appeal to this House, and That the sum of One thousand pounds (£1000), being the excess of the damages awarded by the said Judgment of the Honourable Mr. Justice Asquith and confirmed by the said Order of His Majesty's Court of Appeal over the damages hereby awarded, be repaid by the Respondent, the said Wallace Archibald Gambling to the Appellant, the said Henry Frederick Benham.

The Lord Chancellor

My Lords,

1

Under the Common Law of England it was the general rule that no executor or administrator could sue, or be sued, for any tort committed against or by the deceased in his lifetime. Such was the actual purport of the maxim " actio personalis moritur cum persona"—a maxim which is both obscure in origin and inaccurate in expression, for the proposition that personal actions abate with the death of either party is, of course, not true, generally speaking, of causes of action arising out of contract. The Common Law rule was subject to important exceptions, some of them admitted by the Common Law itself and others introduced by statute. But the rule itself was in effect swept away by the Law Reform (Miscellaneous Provisions) Act, 1934, which provides, subject to important exceptions which do not however affect the present Appeal, that on the death of any person after the commencement of the Act all causes of action vested in him shall survive for the benefit of his estate. Accordingly, if an individual is injured by accident due to the negligence of another person, the claim for damages no longer abates at his death, but survives for the benefit of his estate and can be enforced in an action brought by his personal representative against the negligent Defendant or against the Defendant's personal representative if the Defendant has died, since the Act also provides for the survival of such a claim against the Defendant's estate.

2

This is so, of course, whatever may have been the cause of the Plaintiff's death. But, for the purpose of solving the problem which this Appeal presents, we have to consider more particularly the situation which results under the Act of 1934 if the injuries, for which the Defendant is responsible, are so severe that the victim dies of them before action brought, or at any rate before judgment. In Flint v. Lovell [1935] 1 K.B. 354 the Court of Appeal recognised the validity of a claim, made by a living person, for damages in respect of the prospective shortening of his own life due to the defendant's negligence. Flint v. Lovell was approved by this House in Rose v. Ford [1937] A.C. 826. This latter case arose out of an accident, which terminated fatally, after the commencement of the Law Reform (Miscellaneous Provisions) Act, 1934, and it followed that this element of damages, which is often described as "loss of expectation of life", could not be confined to the case where the injured person was alive at the date of the action, but must be equally admissible if the action is brought by his personal representative.

3

It has been recognised by judges, who have had to deal with the many cases under this head which have fallen to be decided in the last few years, that the measurement of this head of damage in terms of money is a very difficult matter, and the House has been furnished, with the assent of both parties to this Appeal, with a list of cases already decided (some of them appearing in the Reports, and others available only in shorthand notes), which show how wide is the variation between the judgments of different tribunals of fact in assessing, under comparable circumstances, a suitable figure of loss under this head. None the less, it must be accepted that, in cases where the victim's life has been shortened by the accident and the claim is properly formulated and proved, some figure to represent the loss suffered by the deceased through the shortening of his life may be included in the damages, and several of the judges concerned have drawn attention to the need for authoritative guidance on the subject of how to arrive at it. In Rose v. Ford the amount awarded on this head was £1,000 in respect of a young woman of 23, who was for the most part unconscious after the accident occurred and who succumbed to her injuries four days later, but in Rose v. Ford no issue arose before your Lordships' House on the question of amount. The present Appeal raises the problem of the assessment of damage for "loss of expectation of life" before this House for the first time, and it is indeed the only issue with which we are now concerned.

4

The action rose out of a motor car accident which occurred on the 1st June, 1938. The Respondent is the father, and was constituted the Administrator of the estate, of an infant, who at the time of the accident was two-and-a-half years old. The Appellant, in attempting to drive his car past another car in which this infant was one of the passengers, caused the latter car to overturn and the infant was so severely injured that he died on the same day. At the trial before Mr. Justice Asquith, sitting without a jury at Winchester Assizes, the negligence of the Appellant was admitted and the only question for the learned judge to decide was the amount of damages to be awarded to the Administrator for the benefit of the child's estate. Since the child was unconscious from the moment of the accident till his death, there could be no claim for pain and suffering, and the only question, apart from funeral expenses, was that of damages arising from the diminution of the child's expectation of life. The child was a normal healthy child, living in a country village off the main road, where the risk of being exposed to road dangers and to certain diseases would be less than in a crowded centre. His father was in steady employment and had reasonable prospects of continuing in it. The learned judge summed up his view of these facts by saying that the child was "living in modest but otherwise favourable circumstances in a village, the father having been in continuous employment for fifteen years".

5

Mr....

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130 cases
  • Lim Poh Choo v Camden and Islington Area Health Authority
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 7 July 1978
    ...sum awarded for pain and suffering and the loss of the amenities of life was too high and should have been a conventional one of the Benham v. Gambling (1941) Appeal Cases 157 kind, albeit much greater, and thirdly, that no allowance of any kind should have been made for future inflation. ......
  • Lim Poh Choo v Camden and Islington Area Health Authority
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 7 July 1978
    ...sum awarded for pain and suffering and the loss of the amenities of life was too high and should have been a conventional one of the Benham v. Gambling (1941) Appeal Cases 157 kind, albeit much greater, and thirdly, that no allowance of any kind should have been made for future inflation. ......
  • Lim Poh Choo v Camden and Islington Area Health Authority
    • United Kingdom
    • House of Lords
    • 21 June 1979
    ...for the fact of deprivation—a substantial loss, whether the plaintiff is aware of it or not. Secondly, they establish that the award in Benham v. Gambling [1941] A.C.157 (assessment in fatal cases of damages for loss of expectation of life) is not to be compared with, and has no applicatio......
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    ...- but not, I think, in any deep sense - than would a claim for loss of limbs or faculties. Sellers LJ distinguished Benham v Gambling [1941] AC 157 on the basis that the latter case was concerned with an action on behalf of a dead child`s estate for the restricted claim for loss of years of......
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1 books & journal articles
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    ...Ben Okafor v. Police (965) N.M.L.R. 89……………..................................................................…..523 Benham v. Gambling (1941) A.C. 157.........................................................................……………..14 Benson Ukwunnenyi & Anor. v. The State (1989) 7 S.C.N.J. 3......

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