Hickman v Peacey

This appeal raises an interesting and difficult point which has not hitherto been expressly decided. It discloses a striking difference of opinion, for Mr. Justice Cohen in the first Court and the late Lord Justice Luxmoore in the Court of Appeal took one view, in favour of the present Appellants, whereas the majority of the Court of Appeal (Lord Greene M.R. and the then Lord Justice Goddard) took the opposite view. I regret to find that this difference of judicial conclusion will also appear in the Opinions about to be delivered in this House.

At about 6.30 p.m. on September 14th, 1940, when the Battle of Britain was at its height, a small house, No. 5 Upper Cheyne Row, Chelsea, was struck by a high explosive bomb, which penetrated to the basement. It is material to observe that the bomb did not explode until it got inside the house—the Master of the Rolls inferred from the evidence, and I think that the inference was perfectly justified, that it exploded in the basement. The destructive power of such a bomb and of the blast produced by its explosion are, of course, enormous. In the basement there had been constructed a small air raid shelter, strengthened by sandbags and other structures, and I agree with the Master of the Rolls that the evidence, which was on affidavit, justified the conclusion that there were at the time of the explosion five persons in the shelter. Indeed this is stated as a fact in the first question propounded in the Originating Summons taken out by the first Respondent. They were—

(1) Mrs. Mabel Edith Price Jones, aged 52, the occupier of the house;

(2) Her daughter;

(3) Elizabeth Sarah Parke, aged 70, the housekeeper to the two male persons next mentioned, who resided in another house close by, but who used the shelter at No. 5 Upper Cheyne Row because they had no shelter in their own house;

(4) Randolph Lea Grosvenor, aged 73, who may be called "the first testator"; and

(5) His brother Edward Moberley Grosvenor, aged 66, hereinafter called "the second testator".

The house was completely shattered, and all the five persons were killed. Their bodies were so mutiliated as to be unrecognisable, and in some cases there was actual dismemberment. Identity had to be established by determining the sex of each victim and by ascertaining what was found on the bodies. The Master of the Rolls and Lord Justice Goddard both reached the conclusion that the correct, and indeed the only proper, inference to draw from the facts proved was that all the persons concerned died simultaneously. This conclusion is challenged, and I must return to examine it, but it is convenient first to set out the reason why such a conclusion is vital to the Respondents' success.

The "first testator" (victim number (4)) by his last will left property in which his brother (victim number (5)) would share if the latter were one of his brothers "surviving at the date of my decease", and also the housekeeper (number (3)) if she survived him. Under the will of the "second testator" (victim number (5)) victims numbers (1), (3) and (4) would benefit if they survived number (5). If, therefore, the persons concerned died simultaneously, these legacies all failed, for the legatee in each instance would not survive the testator, and (apart from special provisions which do not exist in this case) proof of this survival is essential if the legacies are to take effect.

It is evident that the failure of a claimant to prove affirmatively that the person upon whom his title depends survived the testator might arise in either of two ways. He may fail because (as the majority of the Court of Appeal in this case held) the two died at the same time, or because, although they died in succession, it is uncertain which of them survived the other. The second of these alternatives was the one which has frequently arisen in the past, and it has sometimes given rise to controversy and litigation. Accordingly, s. 184 of the Law of Property Act, 1925, enacted—

"In all cases where, after the commencement of this Act, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the Court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder."

The interpretation of this section (save as to the words in brackets, which are very obscure but do not affect the present case) seems to me to be clear. The section establishes a presumption as to the order of a series of deaths when the deaths have arisen in circumstances which render it uncertain which of two or more persons survived the other or others. Before the statute there was no presumption in English law, and by the law of Scotland there is no presumption to this day ( Drummond's Judicial Factor v. H.M.'s Advocate, 1944, S.C. 298). The condition which must be fulfilled if the presumption is to apply at all is that there should be a survival of one person beyond the death of another, but that it should be uncertain which was the survivor. So far as the language of the section goes, it seems to me to be manifest that the section does not apply to the case (if such a case is possible, and is proved) where two or more deaths are absolutely simultaneous. Indeed, Mr. Wynn-Parry in his carefully framed argument for the Appellants expressly said that he was not contending that if it were adequately proved that deaths were simultaneous, the section would apply. The section, he readily conceded, deals with a succession of deaths and does not deal with simultaneous deaths

It is to be observed that, whatever may be the case in similar provisions in the Roman law, s. 184 is not limited to multiple deaths arising out of a "common disaster". For example, if a husband goes a long voyage and the ship completely disappears in circumstances where his death has to be presumed to have occurred, but there is no material to indicate on what date he was drowned, and if his wife was in a nursing home when he started and subsequently died under an operation, there may be absolutely no means of ascertaining which of them died first. Yet in such a case there is no "common disaster" at all. It is therefore a useful provision of the statute law which requires the question of survivorship in such a case, which otherwise remains insoluble, to be determined by asking which of them was the younger. No one in such an instance would suggest that there were grounds for believing that they both died at the same moment of time. But it is in connection with a "common disaster" that these problems more usually present themselves. If A and B are swept off the deck of a ship by the same wave in a storm and both are drowned, there is usually no material which would justify the conclusion that they both died at exactly the same instant; there may sometimes be sufficient proof that A survived B, e.g., if B was not able to swim and was seen to sink at once whereas A was a fine swimmer who...