Graham v Dodds
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Keith of Kinkel,Lord Scarman,Lord Roskill,Lord Bridge of Harwich |
| Judgment Date | 30 June 1983 |
| Judgment citation (vLex) | [1983] UKHL J0630-5 |
| Date | 30 June 1983 |
| Court | House of Lords |
[1983] UKHL J0630-5
Lord Diplock
Lord Keith of Kinkel
Lord Scarman
Lord Roskill
Lord Bridge of Harwich
House of Lords
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bridge of Harwich. I agree with it, and for the reasons he gives I would allow the appeal and order a new trial.
My Lords,
I have had the benefit of reading in draft the speech to be delivered by my noble and learned friend, Lord Bridge of Harwich. I agree with it, and for the reasons he gives I too would allow the appeal and order a new trial.
My Lords,
I have read in draft the speech to be delivered by my noble and learned friend, Lord Bridge of Harwich. For the reasons he gives I would allow the appeal: and I assent to the orders which he proposes for a new trial and in respect of costs.
My Lords,
I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Bridge of Harwich. I entirely agree with it and for the reasons he gives I would allow this appeal.
My Lords,
This is an appeal brought by leave of the Court of Appeal in Northern Ireland from an order of that Court made on 5th October 1982 which, by a majority (Gibson and O'Donnell L.JJ., Jones L.J. dissenting), dismissed an appeal from a judgment of the High Court in Northern Ireland given on 22nd January 1982 by Lord Lowry C.J. awarding the respondent £103,562·10 damages. It will be convenient to refer to the appellant as the defendant and the respondent as the plaintiff. The plaintiff's husband was killed on 30th December 1977 in a road accident for which full liability was admitted at the trial on behalf of the defendant. The plaintiff claimed damages under the Law Reform ( Miscellaneous Provisions) Act (Northern Ireland) 1937 and, on behalf of herself and her two daughters, under the Fatal Accidents (Northern Ireland) Order 1977. The action came on for trial before Lord Lowry C.J. and a jury on 20th January 1982 and the trial extended over three days. The jury assessed the total damages to be awarded under the Fatal Accidents Order in the sum of £103,300·00. It is the quantum of that award alone which is challenged on behalf of the defendant in this appeal. Nothing turns on the apportionment of damages as between the plaintiff and her daughters or the Law Reform Act award.
Joshua Graham was born on 25th August 1936. He married the plaintiff in 1962. Their two daughters were born on 25th February 1964 and 18th January 1967 respectively. For the first six or seven years of the marriage the husband, who was the holder of a Diploma in Theology from a Baptist Theological College, worked for the Irish Baptist Mission in Donegal and Northern Ireland. He then worked for about two years in advertising. His next venture was to set up in business on his own account as a haulage contractor. He obtained the capital for this from the sale of two bungalows which he and the plaintiff owned. Unfortunately, in 1975 the business foundered. After a short period of employment with another haulage contractor, the husband, in May 1976, obtained employment with Texaco Ltd., the well known oil company, as a tanker driver operating from their Carrickfergus depot. This employment continued until his death. The Texaco drivers worked on different shifts. Throughout his employment the husband's shift was from 7 p.m. to 3 a.m. A vacancy for a driver on this shift was the only vacancy offered to him when the employment began. In addition to basic pay, workers on this shift earned a shift bonus of 25 per cent to compensate them for their unsocial hours of work. The husband also worked some overtime.
At the time of the husband's death he and the plaintiif, with their daughters, were living in rented local authority accommodation. The husband's average net pay in his employment with Texaco was about £66 a week. The plaintiff was a trained nurse. She was also in employment earning net about £33 a week. The family were saving to buy a house (no doubt with the aid of a mortgage) and to this end the plaintiff paid from her earnings about £100 a month into a Building Society account. The plaintiff also received a mileage allowance for the use of a car in her work and in fact used the family car in the daytime, while the husband used it to go to work at night.
At the time of the trial, more than four years later, the plaintiff, having gained a further qualification, was in more remunerative employment and was earning between £300 and £390 a month net inclusive of mileage allowance. She was buying a house on mortgage. The elder daughter was about to be 18. She was in her last year at school, intending to take A levels, and had been provisionally accepted for university entry. The younger daughter was just 15 and intending to stay at school a further three years. Her future beyond that was naturally uncertain.
In addition to the facts so far related, there was, I think, substantial agreement as to what the plaintiff's husband's net pay would have been at the date of the trial had he survived and continued in the identical employment with Texaco. But beyond this almost everything relevant to the assessment of damages under the Fatal Accidents Order was very much in dispute. The matters principally in issue were:—
1. What value was to be attributed to various fringe benefits enjoyed by Texaco drivers?
2. What proportion of the husband's notional net earnings was to be attributed to the dependancy ( a) in calculating the loss from the date of death to the date of trial and ( b) in calculating the multiplicand on which to base the estimate of future loss?
3. What value was to be put on the husband's services at home such as car maintenance, home decorating, and even cooking and housework?
4. How, if at all, was the calculation of dependancy affected by the plaintiff's earnings from which the husband, if surviving, would have continued to benefit?
5. What account should be taken in the assessment of a nation-wide productivity agreement which was confidently expected to be concluded between Texaco and the husband's union shortly after the date of trial?
6. What multiplier should be applied to the appropriate multiplicand in assessing damages for future loss?
The resolution of these issues depended, in the main, not on the determination of disputed primary facts, but on matters of inference and assessment. In spite of this, however, the issues were extensively canvassed with the witnesses, including an accountant, in examination and cross-examination as well as by learned counsel in speeches to the jury of which your Lordships have a full transcript. Widely divergent calculations were commended to the jury by opposing counsel as the basis for a fair assessment.
My Lords, I find it difficult to suppose that at the end of the evidence and argument the jury were not thoroughly confused. What is certain is that the learned Lord Chief Justice faced a daunting task in summing up. If I may say so respectfully, he took the eminently sensible view that, as well as giving directions in law and on matters of general principle, he ought to give the jury a lead in some detail on the figures. He introduced this part of his summing up as follows:—
"I may be in danger of being too precise, because if there is one thing that I'm still suffering from on the third day of this case, it is uncertainty, even about some figures that might perhaps be capable of being reduced to clearer proportions, but I think I must try and give you a bit of help, and I want to warn you that when I am talking figures I don't want to take your job over, you can regard my figures as examples, you can regard them as fairly reliable, but don't regard them as telling you what verdict you are to bring in this afternoon."
I will attempt to summarise very briefly the suggestions he then put to the jury, with frequent reminders that his views were not binding upon them. He commended a fraction of four-fifths of the husband's notional total contribution to the family budget as representing the dependency for the period from the date of death to the date of trial, when both daughters would have remained fully dependant. In assessing future loss, however, having regard to the ages of the daughters, he commended a fraction of three-quarters. He suggested a figure of £18,000 as representing the husband's notional contribution to the family budget from the date of death to the date of trial to which the application of his fraction of four-fifths yielded a figure of £14,400 as representing the dependants' pre-trial loss. He then went in detail through the figures to arrive at an estimate of the notional annual contribution of the husband to the family budget as at the date of trial—earnings net of tax, fringe benefits, and services at home—arriving at a total of £6,400 with a resulting figure, representing the suggested three-quarters dependency, of £4,800. He substantially discounted the relevance of the plaintiff's own earnings. The effect of the prospective productivity agreement for Texaco drivers he treated as relevant not to the multiplicand but to the multiplier to be used in calculating future loss.
The crucial directions in the summing up on which this appeal essentially turns relate to the multiplier to be applied in assessing the future loss of dependency. The learned Lord Chief Justice said:
"Now, I personally would take between 11 and 14 as the multiplier, according to what you think."
He then explained that the choice of multiplier depended on the jury's assessment of the weight of various "plus factors" or "good points" set against the "minus factors" or "bad points". Having reviewed the "plus factors"...
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