Daish v Wauton

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE SALMON,LORD JUSTICE STEPHENSON,Lord Justice SALMON
Judgment Date15 October 1971
Judgment citation (vLex)[1971] EWCA Civ J1015-8

[1971] EWCA Civ J1015-8

In The Supreme Court of Judicature

Court of Appeal

Civil Division

On appeal from Judgment of Mr. Justice Lyell.

Before:-

Lord Justice Salmon,

Lord Justice Karminski (not present)and

Lord Justice Stephenson.

Between:-
Timothy Nicholas Sean Daish (an infant suing, by Albert Edward Daish, his grandfather and next friend)
Plaintiff
and
Edward Winthrop Brenton Wauton
Defendant

Sir JOSEPH MOLONY, Q.C. and Mr. D.C. GORDON (instructed by Messrs Druces & Atlee, Agents for Messrs Damant & Sons, Cowes, Isle of Wight) appeared on behalf of the Appellant (Plaintiff).

Mr. ROY BELDAM, Q. C. and Mr. W.L. MONRO DAVIES (instructed by Messrs J.E. Baring & Co.) appeared on behalf of the Respondent (Defendant).

LORD JUSTICE SALMON
1

I will ask Lord Justice Stephenson to read the Judgment of the Court.

LORD JUSTICE STEPHENSON
2

The Plaintiff has suffered a very severe injury to his brain in a collision with a motor car driven by the Defendant. The Defendant has agreed to pay him 55 per cent of the sum of money which can properly be awarded him for the resulting damage and loss.

3

Mr. Justice Lyell considered four elements in the Plaintiff's damage and loss and quantified them in a single sum of £16,000. He thereupon gave judgment for the Plaintiff for £8,800. The Plaintiff appeals on the ground that the sum is Inadequate.

4

1. There was a loss of expectation of life. The Plaintiff, under five years old when injured, is unlikely to live beyond the age of 40 to 50 years, particularly because he cannot walk many steps without falling or appreciate the dangers peculiar to his crippled condition and obvious to persons of ordinary intelligence. But the life left to him is riot a thing of much value. So the award for this loss was rightly minimal.

5

2. The Plaintiff "has been almost wholly deprived of the chance of leading a normal life", as the Judge correctly summarised the medical evidence. His intellect is retarded, he has difficulty in communicating or learning, his eyes are unco-ordinated, his speech is slow, he cannot easily put words together, the movements of his legs and arms are clumsy, he is too crippled in mind and body to be able to work for a living. He has had one epileptic fit and he may have more.

6

3. Into his pitiful condition he has and will have, as the Judge put it, "some, though probably little, and onlytransient, insight". This seems to us a fair summary again of the medical evidence. What this toy has left to him is not quite an awareness of what he has lost because he has never known it and could not recollect it, if he had. But just as he gets some pleasure from small successes, so he feels frustrated at his inability to overcome his many handicaps and with his approaching adolescence may become aggressive as he becomes increasingly aware of his difference from others. He is in this respect like a child blinded before growing old enough to remember how the world looked to eyes that could see but frustrated by being unable to see or to do without difficulty what comes easily to others. The Judge quoted Mr. Gordon Walker's description of the picture of the Plaintiff's life as one of permanent suffering, but we consider that he rightly interpreted the view of the doctors to be that "feelings of distress over what he has lost will play little part in his life" and that no complaint cart justly be made of his accepting their view. He rightly appreciated that this boy will have more insight into his condition and a longer life to bear it than the plaintiff in the earlier case of Oliver v. Ashman which he considered very closely. There the expectation of life was (as appears from the report of the case in the Court of Appeal, 1962 2 Queen's Bench at 212, but not at first instance, 1961 1 Queen's Bench, 337) reduced (at 20 months) from 60 years to 30 years and the boy's appreciation of his condition was so momentary as not really to cause him mental suffering, though it did produce some feeling of frustration ( 1961 1 Queen's Bench, 373).

7

We consider, however, that the Judge's assessment of these last two heads of damage, whether considered together asdifferent aspects of loss of enjoyment of life or separately as loss of amenities coupled with mental suffering, cannot have been adequate, however great the care that should he taken to avoid overlapping in the awards of damages under these two heads and the next head for loss of enjoyment of life and for pecuniary loss: Smith v. Central Asbestos Co., 1971 5 Weekly Law Reports, 206, 218 per Lord Denning, Master of the Rolls.

8

4. The Judge has not told us what he has awarded for loss of future earnings. Indeed he has said that in arriving at the total figure he has not even in his mind dissected it into its several parts, thereby preferring Watson v. Fowles, 1968 1 Queen's Bench, 596, to Jefford v. Gee, 1970 2 Queen's Bench, 130. But what he has told us is that he has "made only a modest allowance" for lost future earnings because most of them would have been spent on housing and maintenance whereas now the Plaintiff will be supported entirely in a State institution free of cost, and "such pleasure as he is capable of appreciating will be similarly provided". In deducting from his estimated gross earnings the unspecified figure which he attributes to housing and maintenance expenses the Judge was clearly following the decision of this Court in Oliver v. Ashman as expressed in the judgments of Lords Justices Willmer and Pearson. Their view is, in our judgment, correctly stated in the head-note. Lord Justice Willmer expressed his view in this way: "He (the plaintiff Oliver) will never have the expense of maintaining a home, whether for himself alone or for himself and dependants; and he will never have to bear the cost of food and clothing, light, heat, and so forth. Throughout the greater part of his life there will be no cause for expenditure. In those circumstancesit would seem prima facie quite wrong to have regard to any probable future loss of earnings without also having regard, on the other side of the account, to the probable saving of what would ordinarily be the expenses of life. Oddly enough this is not a matter on which there seems to be any great wealth of authority. Reference was made to Liffen v. Watson but I do not think that that is at all a parallel case. There the victim was fortunate enough to find a relative who was prepared to house her free of cost, and the Court held, in my judgment properly, that that was not a matter to be taken into consideration for the purpose of reducing the award of damages. That seems to me to be a wholly different case from that of this plaintiff, who, so far as can be foreseen, will be detained for the rest of his life in a National Health institution. The point was touched upon by Lord Atkin in Rose v. Ford in the passage of his speech to which Lord Justice Holroyd Pearce has already made reference. Lord Atkin left the question unsolved: but at least what he said does give ground for thinking that he saw a distinction between earnings which would have been saved and earnings which would not. Possibly more help is to be derived from what was said by Lord Reid in British Transport Commission v. Gourley: '… no one would suggest that it is improper to take into account expenditure genuinely and reasonably incurred or that the plaintiff's damages should be assessed on the fees which he would have continued to receive without regard to the outgoings which he would have continued to incur'. Gourley's case is, of course, a very different case from this, but so far as it goes that expression of view is in accord with what I should myself have conceived to be the right principle. In thosecircumstances, it seems to me that Lord Parker, Chief Justice, was quite right when, in taking into account the possible future loss of earnings of this child, he expressed the view that the saving of the normal expenses of life should be set off against such loss, bearing in mind that for most of this unfortunate child's life there will in fact be nothing on which to spend the money. What the future earnings of the child would have been had he not met with this accident must remain completely speculative; so also must the question how far such earnings would have exceeded what he would have been likely to spend on living and providing a home for himself and any dependants he might have".

9

Lord Justice Pearson put his view in this sentence: "Secondly, there is the possible expectation that, after being kept at home for a few years and after having probably a rather short stay in a private institution, the infant plaintiff will go to a State institution and be kept there free of charge for the rest of his life. That greatly diminishes the probable maintenance liability and provides an important offset to the loss of earning capacity, which in any case has to be discounted because the earnings would not have begun for many years".

10

Lord Justice Holroyd Pearce expressed no view on this point, but his questions when defendant's counsel submitted that "expenses such as food, rent, liability to tax, etc., must be taken into account and set off against earnings" (page 216) show that he had it in his mind and would not necessarily have accepted the view the other Lords Justices took of it.

11

Oliver v. Ashman has attracted judicial notice and the notice of textbook writers but not, we think, on this point.

12

We make these comments on Lord Justice Willmer's views, which appear to bind the Judge and this Court if they are still good law.

13

(1) We cannot find that Lord Parker, Chief Justice, in his Judgment as reported in 1961 1 Queen's Bench, 341, or elsewhere expressed the view attributed to him by Lord Justice Willmer in the passage Just quoted. It must be spelt out of his observation (at page 344) that "In addition, there are questions of taxation and...

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