Cunningham v Harrison
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ORR,LORD JUSTICE LAWTON |
| Judgment Date | 17 May 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J0517-1 |
| Date | 17 May 1973 |
| Court | Court of Appeal (Civil Division) |
[1973] EWCA Civ J0517-1
The Master of The Rolls (Lord Denning)
Lord Justice Orr and
Lord Justice Lawton
In The Supreme Court of Judicature
Court of Appeal
Appeal of first defendant from judgment of Mr. Justice Barbin on 1st December, 1972.
Mr. E. H. LAUGHTON-SCOTT, Q. C., and Mr. B. CARTER (instructed by Mr E. T. Blythe) appeared on behalf of the Appellant First Defendant.
Mr. F. B. PURCHAS, Q. C., and Mr. R. McAulay (instructed by Mr. P. R. Kimber) appeared on behalf of the Respondent Plaintiff.
On 18th December, 1970, Mr. Cunningham was severely injured in a road accident. He was in a car going along a major road across Epsom Downs, another car came out of a side road and there was a collision.
Mr. Cunningham was 47 years of age when this accident befell him. He was in the research department of the British Petroleum Company and earned a salary of about £1,500 a year net after tax. He was married and lived with his wife in a council house - No, 6 Marlborough Road, Sutton. They had a son and daughter living away, both married with their own children. At the time of the accident Mr. Cunningham was a passenger in the front seat. He was thrown against the windscreen, striking his nose, and his head hit the roof of the car. He was not rendered unconscious but his back was broken between the fourth and fifth vertebrae. He was taken to the Jipsorn Hospital: and a few days later to the Stoke Mandeville Hospital. He was discharged on 11th August, 1971, and went home where his wife looked after him.
The aocident was a disaster. There was a complete tetraplegia. That means that he was paralysed in all four limbs and in his body. This is permanent. He will spend the rest of his life either in bed or in a wheel-chair. He is entirely dependent on others for dressing, bath, evacuation of bowels, and partly feeding. He can move his arms a little, but his hands are useless, He can bring his arms round so as to lift a cup, but he has no feel in them so as to grip it or to know if it is hot or cold. Up till the trial all the expenses of his treatment in hospital were paid for by the State, So I expect also were the lifting apparatus at home, the wheel-chair, and so forth.
One of the most disturbing features is the working of his inside. He has no sensation there. Urine collects in his bladder and someone else has to manipulate it so as to remove theliquid. Excreta collects in his bowels and has to be removed by someone inserting two fingers. Yet with all this, his head is absolutely unimpaired. His mind, his eyes, his ears, and his tongue are as active as ever.
After he went back to his home in august 1971 his wife looked after him with entire devotion. She did everything for him from early morning till late at night. She helped him in all the distressing things that I have mentioned. The district nurse came in most days for twenty minutes or so. Some days before the trial the wife gave a proof to her solicitors in which she told it all: "He is 13 stone, and I am 8. I do my best but I do not have the strength. I should have a nurse or another woman to live in, but we do not have either the money or the accommodation." She described a typical day from 7.15 a. m. till midnight with every moment filled in doing things for him. She finished: "Normally my sleep is broken during the night by his waking for spasms or other causes and needing drinks": and she added this last sentence in her own hand: "I am now in a very low state of health and don't weigh 8 stone". It was indeed too much for her. On 24th November, 1972, three days before the case was to be heard, she died from an overdose of barbiturates. She had perhaps foreseen it. In her proof she said: "If I were ill or not available, it would be necessary to employ at least two women full time: and best for him to have trained nurses."
Now, how is he to be looked after? His personality makes it difficult. The Judge heard his evidence and described him: "He quite likes talking. He is a self-opinionated person, tie calls himself autocratic ….. when he was the Chairman of the Social Club, the club was run as he wanted it to be run."
With such a personality, it is quite clear as the Judge said:"He Is not a man who should be in a Home if it can be avoided…. that is the last place that this man should go to. One has but to see him to realise that he would not prosper there, and I do not think that he would be of great therapeutic assistance to those with whom he had to be closeted in such a place. The plaintiff would obviously be at his worst in a place with someone else. Therefore, I take the view that, in so far as it is possible, it will benefit him to live in some dwelling of his own, were, attended by his housekeeper and the persons who do the nursing, he will be best able to overcome his disability for such period of life as remains to him."
Now, what is the period of life which remains to him? On that matter the doctors were divided in opinion. There are so many contingencies. He may get a urinary infection and die from that. His kidneys may deteriorate and he may have to seek help from a kidney machine. He may have some illness which normal people could throw off but he could not. The Judge on the evidence gave him a life expectancy of about twelve years, possibly a shade longer. That means he may be expected to live to the age of 61 or 62.
If he had not been injured, lie would have retired at the age of 60 on pension. He would have received a net salary of about £1,800 a year till he retired, and then he would have received a pension of £828 a year. Since his accident his employers - B. P. - have been very good. They paid him his full salary for ten months until 10th September, 1971. They have since then made him an ex gratia payment of £828 a year - which is the same amount as the pension he would have received if he had served till he retired. They will continue it until he dies.The Judge awarded him these sums:-
| Special Damage up till trial, 1st December, 1972 | £1,266 |
| Pain and suffering and loss of amenities | £18,000 |
| Future loss of earnings | £18,050 |
| Cost of nursing and attendance | £33,25O |
| 70,566 | |
| Interest | 2,050 |
| £72,616 |
The defendants appeal on the ground that the sum was too high. The plaintiff cross-appeals on the ground that it was too low, I will take the items under discussion in order.
1. PAIN AND SUFFERING AND LOSS OF AMENITIES
We were referred to recent cases comparable with this one, such as Mitchell v. Mulholland (1972) 1 Q. B. 65 (where £20,000 was awarded); and Hagger v. de Placldo (1972) 1 W. L. R. 716 (where £13,000 was awarded); and George v. Plnnock (1973) 1 W. L. R. 118 (where £19,000 was awarded). The plaintiff here is very gravely affected physically, but his mind, speech and all the higher faculties are intact. I think that the Judge's figure of £18,000 was right.
2. THE EX GRATIA PAYMENT
The plaintiff is receiving from his employer B. P. an ex gratia payment of £828 a year for life. Should this payment be taken into account? The answer is No. It is an established principle of our law that the damages awarded to an injured person are not to be reduced by reason of any Insurance moneys received by the injured person, see ( Bradburn v. Great Western Ry. 1874 L. R. 10 Exch. 1; nor by reason of a pension to which he has contributed: see Parry v. Cleaves (1970) A. C. 1: nor by reason of gifts made to relieve his distress, see Redpath v. Belfast and County Down Ry (1947) N. I. 167, Similarly, I think that the damages are not to be reduced by reason of ex gratia payments made by his employer.
On the other hand, we know that damages for loss of earnings are reduced by the tax payable by the plaintiff, see Courley's Case (1956) A. C. 183: and by wages or half-pay paid by the employer during his incapacity where there is an obligation on the employer to pay them, see Browning v. War Office (1963) 1 Q. B. at pages 759-760: and by the medical attendance and hospital services provided by the National Health Service. In this very case there is not a penny claimed for the very valuable services provided at the Epsom Hospital or at Stoke Mandeville: whereas, if he had been taken to a private establishment and treated there, I suppose that large sums would have been claimed for such expenditure.
I can find no sound principle for saying what matters should or should not be taken into account in reduction of damages. As each new point comes up, it is decided by the Courts according to what is considered the best policy to adopt: and thenceforward it governs subsequent cases. In this present case I am clear that a voluntary ex gratia pension paid and payable by the employer is not to be taken into account. It is an uncovenanted benefit coming to the plaintiff over and above the compensation recoverable at law. In this case he receives from his employer virtually half-pay for the rest of his days. No one grudges him this money: but there it is. It is voluntary. He gets it and it is not to be taken into account.
3. THE FUTURE EARNINGS
At the time of the accident the plaintiff was receiving £1,574 net after tax. At the time of the trial he would have been receiving £1,855 net after tax. He might have got a smallincrease on It and gone on working for ten years until he retired. The Judge took a figure of £1,900 a year as the multiplicand. I see no objection to this. I will deal with the multiplier later.
4. NURSING EXPENSES AND ACCOMMODATION.
The plaintiff's case was that his present council house was quite unsuitable for his accommodation; that it was not at all appropriate for him to be placed...
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