Gammell v Wilson

JurisdictionEngland & Wales
Judgment Date01 April 1980
Judgment citation (vLex)[1980] EWCA Civ J0401-3
Date01 April 1980
CourtCourt of Appeal (Civil Division)
James Gammell (Administrator of the Estate of Edward James Gammell, deceased)
Reginald Wilson Swift & Company Limited

[1980] EWCA Civ J0401-3


Lord Justice MeGaw

Lord Justice Brandon (Not present)

Sir David Cairns

In The Supreme Court of Judicature

Court of Appeal

On Appeal from the High Court of Justice

Queen's Bench Division

Canterbury District Registry

MR. P. ASHWORTH, Q. C. and MR. W. M. GAGE (instructed by Messrs. Mawby Barrie & Scott, Kingston-upon-Thames, Surrey, agents for Messrs. Gardner & Croft, Canterbury) appeared on behalf of the Appellants.

MR. L. SWIFT, Q. C. and MR. C. J. SUMNER (instructed by Messrs. Furley, Page, Fielding & Pembrook, Canterbury; appeared on behalf of the Respondent.


LORD JUSTICE MEGAV: This appeal raises a number of issues, one of which is of general importance.


The appeal is against the judgment of Mr. B. A. Hytner, Q. C., sitting as an additional Judge of the Queen's Bench Division, delivered on 27th July, 1979.


The plaintiff, Mr. James Gammell, is the father of Edward James Gammell who, on 3rd December, 1976, just after his fifteenth birthday, was killed as a result of the negligent driving of the first defendant, Mr. Reginald Wilson. There was no dispute as to the liability of the defendants. The disputes were and are as to the amount of the damages.


Mr. Gammell sues in two capacities. He claims damages for himself and his wife, as being dependants of their dead son and thus entitled to damages under the Fatal Accidents Act 1976. He also claims damages as administrator of his son's estate, by virtue of section 1 of the Law Reform (Miscellaneous Provisions) Act, 1934. Any damages recoverable by the estate in respect of that claim would be divided equally between the plaintiff and his wife, as being the persons beneficially entitled on their son's death intestate.


On the Fatal Accidents Act claim the learned judge held that the father's dependancy was £250 and the mother's dependency was £1750. On the Law Refer Act claim he held that, the total amount of damages, apart from interest, was £9,590. That amount was made up as follows: loss of future income £6,6561 special damages £1,184; loss of expectation of life £1,750


The effect of this award is to eliminate the entitlement of the father and the mother to recover anything under the Fatal Accidents Act claim because each of them would thus be receiving more, by reason of their son's death intestate, than is the amount of their respective dependencies.


The defendants attack the learned deputy judge's award in the following respects. First, and most importantly, they say that the plaintiff was not entitled to recover anything in respect of the loss of income which the deceased would have earned in the future had he not been killed. Secondly, they say that, if they are wrong on the first point, nevertheless on theevidence in this case and on the principle properly applicable, the judge ought to have held that loss was not proved at all or, at best for the plaintiff, did not exceed the total amount awarded on the Fatal Accidents Act claim in respect of the dependencies.


If the defendants are right on either of these issues the plaintiff and his wife would remain entitled to their £250 and £1,750, but would not be entitled to any additional sum in respect of the loss of future income.


Thirdly, the defendants complain that the figure of £1,750 awarded for loss of expectation of life is substantially higher than what now is, or should be, the conventional figure for such loss. Fourthly, they say that the judge erred in awarding £595, included in the special damages, in respect of the contemplated cost of erection of a tombstone or memorial for the deceased.


The first issue is, as I have said, an issue of general importance and, as I think, of great difficulty.


It relates to the potential earnings which it is to be assumed that the deceased boy would have made over the future years if he had not been deprived of those years, and therefore of those earnings, by his death caused by the defendants' fault. Are these potential earnings (subject to some deduction, the nature and amount of which would fall to be considered in the second issue) recoverable at all as a permissible element of damages in the claim on behalf of the deceased's estate – in effect heris father and mother – under the provisions of section 1 of the Law Reform (Miscellaneous Provisions) Act 1934, which allow such a claim to be brought or continued by the executors or administrators?


For the purposes of consideration of the first issue, which is entirely a matter of principle of law, it will be sufficient to say, very briefly, that the learned deputy judge held that the prospects were that, if this 15 year old boy bad not been killed, he would have been a wage earner, in a very modest way, in future years and that, after making allowance for his own living expenses, he would have had an average of £8 a week remaining that is £416 a year. Applying a 16 years multiplier, the judge arrived at the figure, above quoted,of £6,656 on this head. That is to be contrasted with the Fatal Accidents Act total dependencies of the boy's father and mother totalling £2,000. Their dependency – their financial loss as a result of their son's death – was less than one-third of his assessed loss of income in "the lost years"; and, if the damages in the Law Reform Act claim properly include, for the benefit of the estate, this loss of income of the lost years, the parents will receive substantially more than their actual financial loss as the result of their son's death.


Is the estate entitled to recover in respect of lost income ot the lost years?


The decision of the House of Lords in ( Pickett v. British Rail Engineering Ltd. 1980) AC 136, overruling ( Oliver v. Ashman 1962) 2 QB 210, was a decision in a case in which the plaintiff, Mr. Pickett, had himself during his lifetime started the action and had obtained judgment for personal injuries which included damages for shortened expectation of life. The judge who tried Pickett's case at first instance was bound by the decision of this court in Oliver v. Ashman, so that he could not award Mr. Pickett any sum in respect of his potential earnings during the so-called "lost years" that ist the years by which it was anticipated that Mr. Pickett's life would be shortened as a result of the defendants fault. Mr. Pickett appealed. Before the appeal was heard he died. His death was caused by the physical damage which had been brought about by the defendants' negligence. It was then too late for Mr. Pickett's widow to start proceedings under the Fatal Accidents Act; for, by authorities which were and still are binding on all courts below the House of Lords, once an action for personal injuries brought by the injured person has proceeded to judgment then, on his death, even though his death has been caused by the defendant's fault, there can be no claim by dependants under the Fatal Accidents Act. Here was an obvious injustice. Oliver v. Ashman precluded the plaintiff himself, while alive, from recovering damages referable to what he would have earned in the lost years. Yet his widow and other dependants were precluded from recovering their loss by an action after his death. The House ofLords in Pickett's case removed that injustice by overruling Oliver v. Ashman. It remains the law, for the House of Lords did not say that the earlier decisions to this effect were wrong, that an action cannot be brought under the Fatal Accidents Act after the death of one who has himself, while alive, obtained judgment for damages for the injuries which, later, have led to his death. But in an action by the victim, brought and resulting in judgment during his lifetime, he can now, as a result of the decision in Pickett, obtain damages, not only including a sum for shortened expectation of life, but also including a sum referable to what he could have earned in the lost years: the years in which, by reference to his shortened expectation of life, it is to be assumed that he will not be able to earn anything.


The first stage of the Argument before us on this first issue is whether the decision of the House of Lords in Pickett's case expressly or by inference either decides, or by way of obiter dictum expresses the view, that a case such as the present falls to be decided in the same way as Pickett's case: that is, that the plaintiff in his action under the Law Reform Act 1934 is entitled to recover damages referable to lost earnings in the lost years. When I refer hereafter to a "Lew Reform Act" action or claim, it will be understood that I am referring to an action or claim brought or continued by the personal representatives under the authority of section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934, as contrasted with an action brought and pursued to judgment by the victim himself before his death.


It is, I think, conceded on behalf of the plaintiff that the present case does not fall within the ratio decidendi of Pickett's case. Nevertheless, if on the correct analysis of the speeches of the four of their Lordships who constituted the majority, there emerged in obiter dicta a clear concensus that the earnings of the lost years should equally be recoverable in a Law Reform Act claim as in a claim brought by the victim himself, I would, at the least, hesitate long before having the temerity to reach a different conclusion.


For the plaintiff it is said that such an analysis of the speeches in Pickett's case does, indeed, show that their Lordships in obiter dicta Indicatedthe view that the earnings of the lost years would be equally recoverable in the personal representative's action as they were in Pickett's case in the victim's own action. Ve were referred, for example, to a passage in Lord...

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