Davies v Taylor
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE MEGAW,LORD JUSTICE CAIRNS |
| Judgment Date | 25 May 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0525-2 |
| Date | 25 May 1971 |
| Court | Court of Appeal (Civil Division) |
[1971] EWCA Civ J0525-2
Lord Justice Davies
Lord Justice Megaw and
Lord Justice Cairns
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: Mr. Justice Bridge - Shrewsbury)
Mr. RONALD WATERHOUSE, Q. C. and Mr. MARTIN THOMAS (instructed by Messrs. Peacock & Goddard, Agents for Messrs. J. C. H. Bowdler & Sons, Shrewsbury) appeared on behalf of the Appellant (Plaintiff)
Mr. STEPHEN BROWN, Q. C. and Mr. RICHARD TUCKER (instructed by Messrs Sharpe, Pritchard & Co., Agents for Messrs. Thomas Cooksey & Co., Wolverhampton) appeared on behalf of the Respondent (Defendant).
This is the plaintiff's appeal from a judgment of Mr. Justice Bridge given at the Shropshire Assizes on the 16th October, 1970.
The case arose out of a road accident which happened on the 14th August, 1968, in which Mr. Kenneth Stanley Davies, the then husband of the plaintiff, was killed owing to the admitted negligence of the defendant. The plaintiff, as the widow and administratrix of the estate of the deceased, brought this action under the Fatal Accidents Acts and the Law Reform ( Miscellaneous Provisions) Act. In the event the judge awarded under the Law Reform Act £500 damages for loss of expectation of life plus £56. 6s. 4d. funeral expenses, but, for reasons which will appear, no damages under the Fatal Accidents Acts. It is from this last part of the judge's decision that the plaintiff now appeals.
The plaintiff's marriage took place on the 12th March, 1955, when she was 20 and her husband 29. They had no children. At the date of his death the deceased was earning something over £1,300 per annum. According to the plaintiff, he normally gave her £60 per month to run the household and also paid for her clothes and holidays. She was earning £9. 10s. Od. a week up until May, 1968; and, as a matter of history, in August, 1969, twelve months after her husband's death, she obtained another job at £14 per week. The deceased left a small estate of £140 which devolved on the plaintiff.
At Christmas, 1966, the plaintiff first committed adultery with a Mr. Philip Evans, a fellow-employee at her place of work, and thereafter continued to commit adultery with him about once a month, either at their place of employment or at her home when the deceased was absent. It is clear that until the 31st July, 1968, the deceased was completely ignorant of this. The plaintiff, itappears, had from about 1964 been treated by her doctor for a mild neurasthenia or depression, which continued throughout and by the summer of 1968 was somewhat more serious. It should be added here that the plaintiff at no time made any sort of complaint against the deceased or of his conduct as a husband towards her.
According to the plaintiff, who inevitably as to many matters in this case was the only witness and whose evidence the judge, I think, naturally and reasonably in the circumstances approached with some circumspection, the last act of adultery between her and Evans took place in February, 1968, and she gave up her employment on the 21st May, having told Evans that she was going to do so. As to this the judge said: "The association with Evans on the evidence had come to an end in the sense there had been no physical intercourse since quite early in 1968, but whether her emotional involvement with Evans had come to an end by July and August is quite another matter. If I were to accept the husband's statement to the solicitor as a substantially accurate account of his conversation with his wife, clearly it had not".
The judge was there referring to a statement made by Mr. Davies to his solicitor on August 2nd, when he gave instructions to institute divorce proceedings. That statement is, I suppose, strictly only evidence of his state of mind at the time. But in it the deceased stated: "On Wednesday, 31st July, I met my wife by chance and I asked her to return home to me. She told me that this was impossible, that she was in love with Philip Evans". It should be added that the plaintiff in evidence denied saying this.
To go back to the history of the events. The plaintiff on the 9th July left home and went to her parents. She said in evidence that, when her husband asked why, she replied that she had lost all feeling for him. The deceased in his statement to thesolicitor had said that the plaintiff had been refusing sexual intercourse from the beginning of 1968 (the wife said that it continued up to June) and that when he approached her in this regard on the 2nd July she said "It's no good pretending, I cannot do it, I have no feelings for you".
It is to be observed at this stage that the plaintiff by her adultery and desertion forfeited all common law right to support, in the absence, of course, of a reconciliation.
The parting on the 9th July was much against the husband's will. He begged her not to go, and it is clear that he was always during the remaining few weeks of his life, even after he had learned of her adultery, most anxious for a reconciliation. However, she was determined to go; so he drove her to her parents' home and gave her £10.
Thereafter there were two meetings between them in July, one, at least, a chance meeting, on each of which he invited her back and gave her a small sum of money. According to her, on the first occasion she said that she needed more time and on the second that she was still feeling ill.
Then came the meeting of the 31st July. I have already read the deceased's version of this as contained in his statement to his solicitor. According to the plaintiff, the deceased at this meeting again begged her to go back and, when she said that she could not, he asked "Is there someone else?" and she replied "No, but there has been. I have tried to get away from him. I gave up my job". At which the deceased said "It's Philip Evans. I should have known".
On the 1st August the deceased spoke to Evans, who freely admitted having committed adultery and made a written statement to that effect. The statement is in these terms. It gives his name and address. "To K. Davies and whom it may concern. My"first case of adultery with Jean Davies was at the 1966 Christmas Party, and when we moved…. we became intimate friends and intercourse took place in the Stores. After this until August, 1967, this was a regular occurrence. It has also happened at the address of her husband….on several occasions. This had been going on for nearly two years. In August, 1967, I requested her to cease the association in fairness to both her husband and my wife - her only comment was to say that she would tell her husband of the association. I believe the whole blame to be mine in this matter and fully accept all blame and consequences. I fully accept that all costs of any action for divorce proceedings should be mine and mine alone".
At the instance of the deceased, Evans took that statement or a copy of it and showed it to the plaintiff. What passed between them we do not know. Later the same day both Evans and the deceased visited the house of the plaintiff's parents again and showed the statement to the plaintiff's mother. According to the plaintiff, they had no conversation with her, though the deceased's statement to the solicitor states: "I tackled her with regard to a reconciliation telling her that I was prepared to forgive her if she would give up the association. This she refused to do".
On the 2nd August the deceased, curiously enough accompanied by Evans, consulted his solicitor, made the statement to which I have already referred, gave instructions for divorce proceedings to be instituted and paid the solicitor £75 on account of costs. The solicitor in evidence described him as a reluctant petitioner. And, indeed, on the following day, according to Mrs. Cray, the plaintiff's mother, he was still anxious for the plaintiff to return.
From the 3rd to the 11th August the plaintiff was on holidayin Wales. And we now come to the last meeting between these two people.
On the 14th August they met by chance in the street at about 3.45 in the afternoon. That, of course, was the very day on which the deceased at about 7.30 in the evening met his death.
The plaintiff's account, of course the only account, of that meeting is as follows. "(Q) You say you saw your husband on the 14th August. Where was that? (A) In Edward Street in Shrewsbury. (Mr. Justice Bridge): By chance? (A) Yes. (Mr. Thomas): How did that come about? What were you doing there and what was he doing there? (A) Well, I had been in town shopping and I was going down Edward Street - it would be about quarter to 4, and I heard someone call 'Jean' and it was Ken. (Q) What did he say? (A) He told me what he had done, told me he had been to a solicitor and that he had named Philip Evans and he told me that he did not want my name to be dragged through the courts. He also told me that he wanted me back. He told me I could go back at any time during the five months and everything would be forgotten. (Q) Everything would be forgotten? (A) Yes, and forgiven. (Q) What was your reaction to that offer at that time? (A) I told him, I asked him if he would give me time. I felt myself that if we ever had a tiff or a disagreement, which you do get in marriage, I felt it would always be between us; I felt it might always be thrown in my face, but I told him that I would think about it and given tine I would go back to him, but I did not have any time. (Q) Mrs. Davies, it is very easy for you now to come to conclusions, but perhaps you could tell his Lordship what might have happened, do you think? (A) I feel positive that I would have gone back to my husband and there would have been no divorce".
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