Davies v Powell Duffryn Associated Collieries (No. 2)

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Russell of Killowen,Lord Macmillan,Lord Wright,Lord Porter
Judgment Date27 Apr 1942
Judgment citation (vLex)[1942] UKHL J0427-1

[1942] UKHL J0427-1

House of Lords

Lord Russell of Killowen

Lord Macmillan

Lord Wright

Lord Porter

Lord Clauson

Davies and Another
and
Powell Duffryn Associated Collieries, Limited

After hearing Counsel, as well on Monday the 9th, as on Tuesday the 10th, days of March last, upon the Petition and Appeal of Doris Davies, Widow, suing as Administratrix of the estate of Daniel Davies, deceased, of 26 Trefelin, Trecynon, Aberdare in the County of Glamorgan, and Margaret Williams, Widow, suing as Administratrix of the estate of John Sidney Williams, deceased, of 52 Tramway Hirwaun, in the County of Glamorgan, 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 12th of February 1941, so far as regards the words "It is Ordered that the said Judgment be affirmed and this Appeal dismissed with costs to be paid by the said Plaintiffs Doris Davies and Margaret Williams to the Defendants or their Solicitors such costs to be taxed by a Taxing Master And it is further Ordered that there be a set off between the said Plaintiffs Doris Davies and Margaret Williams and the Defendants of the costs directed under this Order and the Order of this Court dated the 10th day of December 1940" might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied, or altered, or that the Petitioners 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 Powell Duffryn Associated Collieries, Limited, 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 12th day of February 1941, so far as complained of in the said Appeal, be, and the same is hereby, Discharged, and that in lieu thereof, the Judgment of the Honourable Mr. Justice Lewis be Varied by inserting therein the sum of Five hundred pounds (£500) in place of the sum of Five pounds (£5) awarded to the Plaintiff Margaret Williams and the sum of Nine hundred and seventy-five pounds (£975) in place of the sum of Four hundred and eighty pounds (£480), and that subject to such Variation, the said Judgment be, and the same is hereby Affirmed: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents three-quarters of the Costs incurred by them in the Court of Appeal and one-third of the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments.

Lord Russell of Killowen

My Lords,

1

The relevant facts have been fully stated by my noble friend Lord Macmillan in his opinion, which I have had the privilege of reading. There is no necessity for any additional statement.

2

The main point for our decision is short but important. It may be stated thus: Must damages recoverable under the Law Reform (Miscellaneous Provisions) Act, 1934, be taken into account in assessing damages under the Fatal Accidents Acts, 1846 to 1908, in the case of dependants who will benefit from the damages under the Act of 1934?

3

The general rule which has always prevailed in regard to the assessment of damages under the Fatal Accidents Acts is well settled viz., that any benefit accruing to a dependant by reason of the relevant death must be taken into account. Under those Acts the balance of loss and gain to a dependant by the death must be ascertained; the position of each dependant being considered separately.

4

It is conceded, and rightly conceded, that the general rule must apply, unless some statutory exception to the rule prevents its application.

5

There are two well-known instances in which such a statutory exception has been enacted. One is the case of life insurance, as to which the Fatal Accidents (Damages) Act, 1908 (section 1), enacts—"In assessing damages in any action whether commenced before or after the passing of this Act under the Fatal Accidents Act, 1846, as amended by any subsequent enactment, there shall not be taken into account any sum paid or payable on the death of the deceased under any contract of assurance or insurance whether made before or after the passing of this Act." The other instance relates to pensions, as to which the Widows', Orphans' and Old Age Contributory Pensions Act of 1936 (re-enacting section 22 of the Act of 1929) provides by section 40 that:

"In assessing damages in any action under the Fatal Accidents Acts, 1846 to 1908, whether commenced before or after the commencement of this Act, there shall not be taken into account any widow's pension, additional allowance or orphan's pension payable under this Act."

6

The Appellants claim that a statutory exception to the rule in relation to damages recoverable under the 1934 Act is to be found in section 1 (5) of that Act, which runs thus:—

"The rights conferred by this Act for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Fatal Accidents Acts, 1846 to 1908."

7

All that this subsection does, according to the language used, is to provide that the rights shall co-exist: but I can find no words which would justify me in holding that the subsection purports to alter the measure of the damages recoverable for the benefit of a dependant under the Fatal Accidents Acts. The language of the subsection falls far short of this, and its weakness for the purpose to which the Appellants seek to apply it, is emphasised by a comparison of the language used therein with the clear and unambiguous provisions of the two statutory exceptions referred to above, and by the fact that the Act which enacts the earlier of the two exceptions is actually mentioned in the subsection in question.

8

It was sought to extract some special meaning from the dual phrase shall be in addition to and not in derogation of". This, it was said, was not idly tautological, but intentionally cumulative; and the words "not in derogation of" involved a direction that there was to be no taking away or deduction from or diminution of the damages obtainable under the Fatal Accidents Acts.

9

For myself I can see no sufficient ground for reading this subtle hidden meaning into the subsection. I agree with the Court of Appeal that the words "and not in derogation of" merely emphasise what has been already said, that the rights conferred by one Act are additional to the rights conferred by the other Acts, and are to that extent tautological.

10

It was suggested that a difficulty would arise if at the time of assessing the damages under the Fatal Accidents Acts, no proceedings had been taken under the Act of 1934, and it was unknown whether any such proceedings would ever be taken. I see no real difficulty here. The authority assessing the damages could always take into account the possibility of such proceedings and make allowance accordingly. A difficult matter no doubt, and quite incapable of accurate valuation; but as Lord Watson observed, in delivering the judgment of the Judicial Committee in the case of ( Grand Trunk Railway v. Jennings 13 A.C. 800)—"In some circumstances that principle admits of easy application, but in others the extent of loss depends upon data which cannot be ascertained with certainty, and must necessarily be matter of estimate, and it may be partly of conjecture."

11

I am of opinion that upon the main point the Appeal fails.

12

The Appellants also claimed that the amounts awarded were insufficient in the cases of the two children of Mrs. Davies, and in the cases of Mrs. Williams and her three children.

13

I entertain no doubt that your Lordships have full power to alter the amounts awarded, if upon consideration of all relevant facts you come to the conclusion that in any particular case an entirely erroneous estimate has been made.

14

As regards the children I am unable to come to any such conclusion. Indeed the amounts of increase suggested by Counsel in each case was small. As regards Mrs. Williams the case is different. Counsel claimed for her a sum of £1,200 instead of the £250 and £5 in fact awarded to her. Taking into consideration all relevant matters whether operating in her favour or against her, I have come to the conclusion that the judge has in her case made an entirely erroneous estimate. On the other hand, the sum of £1,200 I regard as a very inflated claim. I would award her the sum suggested by Luxmoore L.J., viz., £750, and this sum meets, I understand, with the approval of all your Lordships.

15

It remains to consider the question of the costs here and in the Court of Appeal. The Appellants have failed in regard to the main point; but one Appellant has succeeded here, and ought to have succeeded in the Court of Appeal, in regard to the award to herself, a matter the argument on which took up but a small portion of the time occupied in your Lordships' House. In these circumstances I suggest that substantial justice would be done if the Appellants were ordered to pay one third of the Respondent's costs of the Appeal to this House and only three-quarters of the costs which they were ordered to pay by the order of the Court of Appeal.

16

I move accordingly that the order of the Court of Appeal of the 12th February, 1941, be discharged but only so far as it provides that the Judgment of the 19th March, 1940, be affirmed and the Appeal dismissed with costs, and that in lieu of such provision it be ordered that the said Judgment be varied by inserting therein the sum of "£500" in place of the...

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