Curwen v James
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE HARMAN,LORD JUSTICE PEARSON |
| Judgment Date | 08 April 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J0408-2 |
| Court | Court of Appeal |
| Date | 08 April 1963 |
[1963] EWCA Civ J0408-2
Lord Justice Sellers
Lord Justice Harman and
Lord Justice Pearson
In The Supreme Court of Judicature
Court of Appeal
From Mr. Justice Marshall Carlisle
Mr. G.W. GUTHRIE JONES (instructed by Messrs. Speechly, Mumford & Soames, Agents for Messrs. Saul & Lightfoot, Carlisle) appeared on behalf of the Appellants (Defendants).
MR. ALEXANDER KARMEL, Q.C. and Mr. ANTHONY THOMPSON (instructed by Messrs. Lees Smith & Crabb, Agents for Messrs. Gaitskell, Dodgson & Bleasdale, Whitehaven) appeared on behalf of the Respondent (Plaintiff).
The plaintiff in this action was the widow of Peter Michael Curwen, aged 22, who met with a fatal accident when he was riding a motor bicycle on the 19th June, 1959. He had a pillion rider with him. He was travelling very fast, as the judge found, and came into collision with a motor car which turned across the course of the motor-cycle. The car was being driven by a man, now deceased, whose executors are the defendants to the action. The learned judge found that the plaintiff's husband was one-third to blame and the defendants (as executors) two-thirds to blame. Therefore the widow was only entitled to recover two-thirds of whatever amount the learned judge thought appropriate for the damages which were sought to be recovered under the Fatal Accidents Act and the Law Reform Act. There were no children. The wife at the time of the trial in January, 1962, was 24. The learned judge in reaching his conclusion took what can be said I think to be a quite generous figure as to the amount by which the plaintiff would have been likely to benefit in the future - that is to say £6 a week. On that figure of £6 a week the learned judge arrived at a figure of total compensation, apart from apportionment of liability, of £4,000. In so doing he did say that the plaintiff was "a presentable young lady" and that he had little doubt that she would have opportunities, if she were so minded, of starting afresh in married life with someone else, and in a case of this kind he thought it would be right (as indeed it was) for him to make some real diminution in the figures he would award because of that.
The first submission on behalf of the appellants is that the amount awarded was too much, that the learned judge erred in the amount which in all probability the plaintiff had lost - the £6 a week - and that the sum of £4,000 for the position in the future was in any event too great. But there is another point taken which has proved much more troublesome, partly because it was not taken wholly in accordance with the practice and requirement inthese matters. That is perhaps understandable because there was a desire to save costs, and there was some correspondence between the respective solicitors. First of all on the 7th March, 1962, there was a notice of appeal given – I think it is said the judgment had only "been perfected that very day – on the ground that the learned judge had made a wholly erroneous estimate of the damages, that the damages were excessive. But then on the 27th April of last year a further notice was given, said to be a supplementary notice of appeal, and in that form of notice (which was not a motion, as is customary) the respondent, the plaintiff, was informed that the defendants were going to ask for leave to adduce evidence in addition to the evidence given before Mr. Justice Marshall. That evidence was this (as stated in the notice), that on the 7th MArch, the very day of the first notice of appeal, the plaintiff was married to John Moore, a fitter aged 22, at the parish church in the parish of St. James's, Whitehaven, in the county of Cumberland. It was said that if that evidence was granted the appellants would contend that by reason of her said marriage the plaintiff has not lost the financial support assessed by the learned judge.
I said that that notice had come about by letters passing between the solicitors. But there is to my mind one serious omission in the information there which the appellants wished to put before this court – that nothing is said about the earnings of Mr. John Loore, to whom the plaintiff was married on the 7th March, 1962. Of course it is a factor which throws light on the matter, anticipated by the judge in his judgment, has the plaintiff being a presentable young lady might be inclined to marry and to nave opportunities of marriage. The marriage is now something certain which was not and could not have been known at the trial.
One of the difficulties in the case as I see it is that in circumstances perhaps understandable, although I do not think they are altogether excusable, the issue as to the probabilities of the future, apart from such evidence as the plaintiff herselfpresented by her appearance to the learned judge, was not investigated in the evidence. Apparently the plaintiff when giving evidence broke down in the witness-box and collapsed in tears and the examination or the cross-examination of her was not pursued. If she had been asked, she might have been able to tell the learned judge, not truly the fact that she was married, but sufficiently close to that to indicate to him that she was engaged and intended to be married in March, and perhaps even the day might have been fixed - the 7th March, 1962. It might well have saved this appeal and have saved any further enquiry into the matter. On the other hand, this may all have developed after the hearing and the learned judge would have been no wiser than he was at the trial with regard to what the future had in store.
Now the rule with regard to this particular matter is of old standing. It is Order 58 Rule 9 now, but it has had its predecessor in effect in earlier rules. It reads as follows: Order 58 Rule 9 (2): "The Court of Appeal shall have full discretionary power to receive further evidence upon questions of fact, either by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner: Provided that in the case of an appeal from a judgment after trial or hearing of any cause or matter upon the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds".
The special grounds which would affect our discretion here, although not strictly applicable, have been often stated in the courts and have been well summarised fairly recently in the decision of this court in Ladd v. Marshall by Lord Justice Denning, as he then was. Lord Loreburn had said in ( Brown v. Dean 1910 Appeal Cases 373, at page 374): "When a litigant has obtained a judgment in a court of justice.…he is by law entitled not to be deprived of that judgment without very solid grounds", and that is in the public interest. The grounds whichare set...
To continue reading
Request your trial
-
Abby Elizabeth Swain and Others v Swains Plc and Others
...after the date on which the fair value of the shares had to be fixed, applying by analogy the principles identified in by Harman LJ in Curwen v. James [1963] 1 WLR 748 (CA) and applied most recently in relation to the assessment of damages in Ageas (UK) Limited v Kwik-Fit (GB) Limited & Ano......
-
McCann v Sheppard
...all contingencies, including the contingency of early death. He recalls the wise words of Lord Pearson in the three leading cases of Curwen v. James (1963) 1 W. L. R. at page 755; Murphy v. Stone-Wallwork (1969) 1 W. L. R. page 1035, and Mulholland v. Mitchell (1971) A. C. at page 681. The ......
-
Engineers' and Managers' Association v Advisory, Conciliation and Arbitration Service
...before the court of first instance, see Attorney-General v. Birmingham & Tame District Board (1912) Appeal Cases 738 at pages 801-2, Curwen v. James (1963) 1 Weekly Law Reports 748, Murphy v. Stone-Wallwork (House of Lords) (1969) Weekly Law Reports 1023. So we have to decide the case as at......
-
Murphy v Stone-Wallwork (Charlton) Ltd
...your Lordships' House is equally entitled to consider such evidence. But the cases in which it does so will be exceptional. 15 In Curwen v. James [1963] 2 All E.R. 619 the Court of Appeal in a fatal accident case allowed the defendants to adduce evidence of the plaintiff widow's remarriage ......
-
What does it mean to suffer loss? Haxton v Philips Electronics
...33 MLR 386, 894.28 R. Stevens, Torts and Rights (Oxford: OUP, 2007) 140.29 Baker vWilloughby n 9 above, 479G. See also Curwen vJames [1963] 1 WLR 748; Williamson vThornycroft [1940] 2 KB 658, 660 per Du Parcq LJ; The Kingsway [1918] P 344, 362.Achas K. Burin© 2014 The Author. The Modern Law......