Gammell v Wilson
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Edmund-Davies,Lord Fraser of Tullybelton,Lord Russell of Killowen,Lord Scarman |
| Judgment Date | 05 February 1981 |
| Judgment citation (vLex) | [1981] UKHL J0205-4 |
| Date | 05 February 1981 |
| Court | House of Lords |
[1981] UKHL J0205-4
Lord Diplock
Lord Edmund-Davies
Lord Fraser of Tullybelton
Lord Russell of Killowen
Lord Scarman
House of Lords
My Lords,
I understand your Lordships to be at one in holding that both of these appeals must be dismissed. I am of the same opinion—reluctantly, because I do not think that this outcome is either sensible or just.
On the answer to the question of construction of section l(2)( c) of the Law Reform (Miscellaneous Provisions) Act 1934, I find myself in agreement with your Lordships' acceptance of the interpretation placed upon it by the majority of the Court of Appeal in Gammell v. Wilson. On the question whether this House would be justified in interfering with the damages awarded by the trial judge in either of the cases I agree with your Lordships that we should not. Where the deceased is as young as in these two cases (15 and 22 years respectively) the law requires the judge to indulge in what can be no better than the merest speculation about what might have happened to the deceased during a normal working life-span if he had not been prematurely killed. Although I think that the award in Furness v. B. & S. Massey Limited was so high as to approach the borderline at which an appellate court would be justified in interfering even in so speculative an assessment, I nevertheless consider that it falls short of crossing it.
In England to-day the law about damages for death has been developed partly by Parliament through legislation now consolidated in the Fatal Accidents Act 1976, and partly by judicial decisions arrived at on a case to case basis. This has its dangers; for the facts presented by what turns out to be a land-mark case may make the legal principle therein stated appear beguilingly simple of application. But this may be falsified by subsequent experience. In the result the law of damages for death has, in my view, reached a state for which I can see no social, moral or logical justification. The first judicial step down the slippery slope that led into a morass from which I think that only Parliament can now extricate us, was taken by the Court of Appeal in Flint v. Lovell [1935] 1 K.B. 354, where it was held that a wealthy and previously healthy living plaintiff aged 69 years whose life-span was likely to be shortened by some five or six years by the injury he had sustained, could recover under the head of "loss of expectation of life" an unidentifiable part of a total sum of £4000 awarded as general damages. To draw up in hard cash a balance-sheet in which the joys and pleasures of life which the victim would have experienced during "the lost years" are weighed against its suffering and sorrows led to such divergences in assessment as between one case and another that ultimately this House in Benham v. Gambling [1941] A.C. 157, felt constrained to hold that this element in damages for personal injuries in all but the most exceptional cases, should be limited to a moderate arbitrary sum to be awarded regardless of the particular circumstances of the Plaintiff or the number of years that it was estimated he had lost. Whatever logic might have justified awarding damages upon a compensatory basis for loss of expectation of life, it vanished with the decision in Benham v. Gambling.
It might have been supposed that an award of damages for loss of expectation of life took into account upon the credit side the satisfaction of earning money by one's work. In Oliver v. Ashman [1962] 2 Q.B. 210 the Court of Appeal drew this conclusion and held that earnings lost during the lost years were not recoverable as an additional item of damages. So far as living plaintiffs were concerned, it looked by 1968 as if the law as to the assessment of damages to be awarded for "the lost years", after a temporary aberration between Flint v. Lovell and Benham v. Gambling, presented no insuperable difficulties however lacking in strict logical justification it might be.
And so the law for living plaintiffs as to the recovery of damages for the lost years remained until the decision of this House in Pickett v. British Rail Engineering Ltd. [1980] A.C. 136. If the plaintiff died after he had recovered judgment his cause of action merged in the judgment and the judgment debt became an asset which formed part of his estate; but so long as the old rule actio personalis moritur cum persona applied, if he died from his injuries before he had brought his action and recovered judgment, his own cause of action lapsed and where he left a widow or dependent relatives who had looked to him for their support, it was replaced by a statutory cause of action for their benefit under the Fatal Accidents Acts 1846 to 1908. The damages recoverable under these Acts were purely compensatory and were assessed according to the jury's estimate of the economic loss which the dependants had suffered and would continue to suffer in consequence of the withdrawal of the deceased's support. It was not until the passing of the Law Reform (Miscellaneous Provisions) Act 1934 that the personal representative of the deceased had a cause of action for loss to the deceased's estate resulting from his premature death.
Section 1 of the 1934 Act by abolishing the maxim actio personalis moritur cum persona enabled damages suffered by the deceased before his death under the three heads, loss of earnings, pain and suffering and loss of expectation of life, to be recovered for the benefit of his estate in an action brought after his death. The Act did not deprive the deceased's dependants of their statutory cause of action under the Fatal Accidents Acts, but in the usual case, in which it was the deceased's dependants who succeeded beneficially to his estate, this seldom involved any duplication of the damages recoverable, since the financial benefit accruing to the dependants from the estate fell to be deducted from the compensation for loss of dependency awarded to them under the Fatal Accidents Acts. Since damages for loss of expectation of life had become a moderate conventional sum and pain and suffering and loss of earnings were suffered only up to the time of death, it was not often that, in cases of fatal injuries, the damages under the Act of 1934 exceeded the amount of the dependency.
The amount by which the estate of the deceased was increased by damages awarded under the Act of 1934 would not, however, be deductible from the damages awarded under the Fatal Accidents Acts, except in the case of beneficiaries under the deceased's estate who were dependent relatives. This seems to have occurred very seldom, and where it did, the sums involved in bequests to non-dependent beneficiaries were relatively small. There would, however, be an anomaly that would offend one's sense of justice, if a living plaintiff, after having obtained a judgment in his favour which took no account of what he would have earned in the lost years, died shortly after from the injuries which he had sustained. His cause of action would have merged in the judgment and, although I know of no direct authority upon the point, it has always been regarded as too clear to brook of argument that the merger of this cause of action carries with it the merger of any cause of action by his dependants under the Fatal Accidents Acts, however great and prolonged their dependency might have been expected to be. At best his dependants could be compensated for their loss of his future support to the extent to which his estate had been augmented by the damages awarded to him; and they would be deprived even of this compensation unless they were the beneficial successors to his estate. The anomaly is not one that was likely to be brought to the attention of the court directly as a matter of decision; but it did arise in Pickett v. British Rail Engineering Ltd., because the deceased before his death had obtained a judgment in his lifetime for damages for personal injuries which, in accordance with the rule in Oliver v. Ashman, did not include any compensation for his potential earnings during the lost years. An appeal launched in his life-time against this judgment was carried on after his death by his dependent widow as administratrix of his estate. The deceased in that case was aged 53 at the date of the trial. But for the injury (an industrial disease) in respect of which he sued he could have expected to continue working for another twelve years until the normal retirement age of 65. As a result of the injury his expectation of life was estimated to be reduced to one year—an estimate which events proved to have been accurate. So he lost eleven years during when he would have been earning good wages out of which he would have maintained his wife.
If the deceased had died before judgment in his action had been entered his widow would have had her cause of action under the Fatal Accidents Acts. This would have enabled her to recover the value of the provision that he would have made for her needs out of his earnings during those eleven "lost years". But because he died after the judgment his dependent widow was deprived of that cause of action and the general damages for pain and suffering recoverable on behalf of his estate, of which she was the sole beneficiary, fell considerably short of the sum that she would have been likely to recover under the Fatal Accidents Acts as the amount of the dependency if that cause of action had remained open to her.
Here was an obvious injustice which this House remedied by over-ruling ...
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