Davies v Taylor

JurisdictionUK Non-devolved
Judgment Date1972
CourtHouse of Lords
[HOUSE OF LORDS] DAVIES (A. P.) (SUING AS WIDOW AND ADMINISTRATRIX OF THE ESTATE OF KENNETH STANLEY DAVIES, DECD.) APPELLANT AND TAYLOR RESPONDENT 1972 June 27, 28, 29; Oct. 25 Lord Reid, Lord Morris of Borth-y-Gest, Viscount Dilhorne, Lord Simon of Glaisdale, Lord Cross of Chelsea

Fatal Accidents Acts - Damages - Assessment - Widow's desertion of deceased husband five weeks before death - Deceased's instructions to institute divorce proceedings - Reconciliation not probable - Widow's possible dependency - Standard of proof

The plaintiff's husband died in a road accident caused by the defendant's negligence. They had been married for more than 13 years, had no children and no complaint had been made of him as a husband. She had unknown to him while they were living together committed adultery with a fellow-employee. She deserted her husband five weeks before his death and after her desertion he had learnt of her adultery. He was nevertheless most anxious for a reconciliation and at several meetings with her after she had left him he asked her to resume cohabitation, but she did not accept his offer. Shortly before his death he instructed his solicitor to institute divorce proceedings and an inquiry agent on the solicitor's instructions had obtained a confession statement from the fellow-employee. She had refused to make a statement to the inquiry agent.

In an action by the plaintiff as widow and administratrix of the estate under the Fatal Accidents Acts 1846–1959 and the Law Reform (Miscellaneous Provisions) Act 1934, Bridge J. awarded the plaintiff £556 damages under the Act of 1934, but dismissed the claim under the Fatal Accidents Acts 1846–1959 on the ground that she had not shown that a reconciliation with her husband, had he lived, was more probable than not.

The Court of Appeal, by a majority, dismissed an appeal by the plaintiff against the dismissal of her claim under the Fatal Accidents Acts 1846–1959.

The plaintiff appealed:—

Held, dismissing the appeal, that the test of a claim by a dependant under the Fatal Accidents Acts 1846–1959 was whether there was a reasonable expectation of pecuniary benefit from the deceased, which meant in the case of a deserting widow who had forfeited any right to maintenance that she had to show that there was some significant prospect, as opposed to a mere speculative possibility, of a reconciliation with her husband had he lived; and that in the present case, since the plaintiff had failed to establish such a prospect of reconciliation, her claim failed (post, pp. 804A, B, 805B, 807F–H, 810B–E, 815B).

Taff Vale Railway Co. v. Jenkins [1913] A.C. 1, H.L.(E.) and Wathen v. Vernon [1970] R.T.R. 471, C.A. considered.

Decision of the Court of Appeal [1972] 1 Q.B. 286; [1971] 3 W.L.R. 515; [1971] 3 All E.R. 1259, C.A. affirmed.

The following cases are referred to in their Lordships' opinions:

Barnett v. Cohen [1921] 2 K.B. 461.

Kitchen v. Royal Air Force Association [1958] 1 W.L.R. 563; [1958] 3 All E.R. 241, C.A.

Miller v. Minister of Pensions [1947] 2 All E.R. 372.

Taff Vale Railway Co. v. Jenkins [1913] A.C. 1, H.L.(E.).

Wathen v. Vernon [1970] R.T.R. 471, C.A.

The following additional cases were cited in argument:

Buckley v. National Union of General and Municipal Workers (1967) 4 K.I.R. 277.

Czarnikow (C.) Ltd. v. Koufos [1969] 1 A.C. 350; [1967] 3 W.L.R. 1491; [1967] 3 All E.R. 686, H.L.(E.).

Dalton v. South Eastern Railway Co. (1858) 3 H. & N. 211.

Grand Trunk Railway Company of Canada v. Jennings (1888) 13 App.Cas. 800, P.C.

Gregory v. Tarlo (1964) 108 S.J. 219.

Herrington v. British Railways Board [1972] 2 W.L.R. 537; [1972] All E.R. 749, H.L.(E.).

Mallett v. McMonagle [1970] A.C. 166; [1969] 2 W.L.R. 767; [1969] 2 All E.R. 178, H.L.(N.I.).

Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. [1967] A.C. 617; [1966] 3 W.L.R. 498; [1966] 2 All E.R. 709, P.C.

Pym v. Great Northern Railway Co. (1863) 4 B. & S. 396.

Stimpson v. Wood & Son (1888) 57 L.J. Q.B. 484, D.C.

Sykes v. Midland Bank Executor and Trustee Co. Ltd. [1971] 1 Q.B. 113; [1970] 3 W.L.R. 273; [1970] 2 All E.R. 471, C.A.

Yardley v. Coombes (1963) 107 S.J. 575.

APPEAL from the Court of Appeal.

This was an appeal, by leave of the House of Lords, by the appellant, Jean Elizabeth Davies (suing as widow and the administratrix of the estate of Kenneth Stanley Davies deceased) from an order of the Court of Appeal (Davies and Megaw L.JJ., Cairns L.J. dissenting) dated May 25, 1971, affirming a judgment of Bridge J. given at Shrewsbury Assizes on October 16, 1970, whereby judgment was given for the appellant on her claim against the respondent, Clarence Leopold Taylor, under the Law Reform (Miscellaneous Provisions) Act 1934 for £500 plus funeral expenses amounting to £56 6s. 4d. but judgment was given against the appellant for her claim for damages under the Fatal Accidents Acts 1846–1959 on the ground that she had failed to prove a dependency.

The issue in the trial before Bridge J. was whether there was likely to have been a reconciliation between the appellant and the deceased (her husband), since at the time of the death of the deceased the appellant had committed adultery with another man, had deserted the deceased and was living apart from him, and the deceased had instructed his solicitors to commence divorce proceedings.

The facts are set out in their Lordships' opinions.

Ronald Waterhouse Q.C. and Martin Thomas for the appellant.

Stephen Brown Q.C. and Richard Tucker for the respondent.

Their Lordships took time for consideration.

October 25, 1972. LORD REID. My Lords, I agree with your Lordships that this appeal must be dismissed and I shall only make some observations on the legal problem which has emerged. The appellant is the widow of a man who was killed in a road accident owing to the negligence of the respondent. She claims under section 2 of the Fatal Accidents Act 1846. To succeed she must show that she has suffered “injury” resulting from her husband's death. Admittedly the injury must be of a financial character. In the ordinary case where the spouses were living together on the husband's earnings what the widow loses is the prospect of future financial support. There can be no question of proving as a fact that she would have received a certain amount of benefit. No one can know what might have happened had he not been killed. But the value of the prospect chance or probability of support can be estimated by taking all significant factors into account. But, perhaps on an application of the de minimis principle, speculative possibilities would be ignored. I think that must apply equally whether the contention is that for some reason or reasons the support might have increased, decreased or ceased altogether. The court or jury must do its best to evaluate all the chances large or small, favourable or unfavourable.

The peculiarity in the present case is that the appellant had left her husband some five weeks before his death and there was no immediate prospect of her returning to him. He wanted her to come back but she was unwilling to come. But she says that there was a prospect or chance or probability that she might have returned to him later and it is only in that event that she would have benefited from his survival. Io my mind the issue and the sole issue is whether that chance or probability was substantial. If it was it must be evaluated. If it was a mere possibility it must be ignored. Many different words could be and have been used to indicate the dividing line. I can think of none better than “substantial,” on the one hand, or “speculative” on the other. It must be left to the good sense of the tribunal to decide on broad lines, without regard to legal niceties, but on a consideration of all the facts in proper perspective.

I am well aware of the fact that in real life chances rarely are or can be estimated on mathematical terms. But for simplicity of argument let me suppose two cases of a widow who had separated from her husband before he was killed. In one case it is estimated that the chance that she would have returned to him is a 60 per cent. probability (more likely than not) but in the other the estimate of that chance is a 40 per cent. probability (quite likely but less than an even chance). In each case the tribunal would determine what its award would have been if the spouses had been living together when the husband was killed, and then discount it or scale it down to take account of the probability of her not returning to him.

But in the present case the trial judge applied a different test. He held that there was an onus on the appellant to prove that on a balance of probabilities she had an expectation of continued dependency — that it was more probable than not that there would have been a reconciliation. In fairness to him I must note that he understood that this had been agreed by counsel. But we were informed that that was not so and counsel for the respondent very properly did not seek to found on this. I think that the learned judge was misled.

When the question is whether a certain thing is or is not true — whether a certain event did or did not happen — then the court must decide one way or the other. There is no question of chance or probability. Either it did or it did not happen. But the standard of civil proof is a balance of probabilities. If the evidence shows a balance in favour of it having happened then it is proved that it did in fact happen.

But here we are not and could not be seeking a decision either that the wife would or that she would not have returned to her husband. You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All that you can do is to evaluate the chance. Sometimes it is virtually 100 per cent.: sometimes virtually nil. But often it is somewhere in between. And if it is somewhere in...

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