Insurance And Damages For Loss Of The Breadwinner–‐a Problem Of Statutory Interpretation
| Author | J. Unger |
| Date | 01 January 1959 |
| DOI | http://doi.org/10.1111/j.1468-2230.1959.tb00523.x |
| Published date | 01 January 1959 |
96
THE
MODERN
LAW
REVIEW
VOL.
22
INSUR4NCE
AND
DAMAGES
FOR
LOSS
OF
TEE
BREADWINNER-
A
PROBLEM
OF
STATUTORY
INTERPRETATION
How
should the courts apply
a
statute
to
new circumstances which
were not contemplated by the legislator? Whatever is done will
amount to judicial law-making, but the decision may well depend
on whether this is frankly admitted
or
whether it is pretended that
it was the legislator who provided the solution which has
to
be
spelt out of the words of the statute which in the process will
acquire
a
fresh and possibly unsuspected significance.
An instructive demonstration of this problem has recently been
provided by the Fatal Accident (Damages) Act,
1908.
It
estab-
lished an exception to the rule that, when assessing damages for
loss
of
the breadwinner, gains arising from his death must be
balanced against the loss suffered by the dependants. This excep-
tion was laid down for
“
any sum paid
or
payable on the death of
the deceased under any contract of insurance.” When the Act was
passed
group
policies of life insurance taken out by employers in
respect of their employees were unknown. The question whether
the exception enacted in 1908 should be extended
to
policies of
insurance of this kind could therefore be approached either as one
which would require a new rule made deliberately,
or
as one which
the legislator must be deemed
to
have answered himself
in
1908.
The former approach would lead
to
investigation of the policy
which the Act of 1908 was intended
to
advance. Was
it
the object
of the Act
to
encourage and protect thrift?
Or
was
it
concerned
simply to deny
to
the person responsible for the death of the bread-
winner the benefit
of
financial provisions made by someone else,
so
that
it
should not be cheaper to kill an insured, rather than an
uninsured person? Both assumptions as
to
the aim of the Act
would permit its extension
to
policies of insurance taken out by a
third person such as the employer
of
the deceased, but
if
protection
of thrift was the aim
of
the Act,
it
would be essential that the
deceased had contributed
to
the payment
of
premiums.
If
the Act
was designed to deny to the wrongdoer the benefit of insurance
taken out by someone else, then it would be difficult to explain
its extension to a policy of insurance which had been taken out
by the wrongdoer.
The courts have preferred to approach the question whethcr
policies of insurance taken out by the employer of the deceased
breadwinner are covered by the Act of 1908, not by speculating
about the policy behind the Act, but by interpreting the intention
of the legislator as expressed in the words of the Act. In
Z307csliiZl
v.
Damson
the Court of Appeal relied on the fact that the Act
of
1908
used the comprehensive phrase
“
any contract
”
to justify
the conclusion that the Act was intended to apply regardless of
whether the deceased was a party to the contract of insurance.
It
1
[1955]
1
Q.B.
13.
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