LEGISLATION
| Author | Peter Cane,Donald Harris |
| Date | 01 July 1983 |
| DOI | http://doi.org/10.1111/j.1468-2230.1983.tb02529.x |
| Published date | 01 July 1983 |
LEGISLATION
ADMINISTRATION
OF
JUSTICE
ACT 1982, SECTION
4
(2):
A LESSON
IN
How
NOT
TO
REFORM
THE
LAW
No
matter how desirable it might be thought that the tort system of
compensating for personal injuries should be abolished, it is still
important that interim refashioning of the law of damages for personal
injuries be well done. Perhaps the most notable feature of both the law
of damages itself and of suggestions and attempts to reform it
is
an
apparent lack of any real appreciation on the part of judges and law
reformers of the desirability of discovering, or if they do not exist,
creating, coherent general principles which might govern entitlement to
damages for personal injuries. Section
4
(2) of the Administration of
Justice Act provides an excellent example. It says that after a person's
death no surviving claim for the benefit of his estate may include
"
any
damages for
loss
of income after that person's death."
In order to appreciate the shortcomings of this terse provision it
is
necessary to understand what prompted the change in the law which it
effects. In 1962 in
Oliver
v.
Ashman
the Court of Appeal held that in
an action by
a
live plaintiff for personal injuries, damages for future
loss
of earnings were to be calculated on the basis of the plaintiff's post-
accident life expectancy.
If
one of the results of the accident was to
reduce his life expectancy in such a way as to shorten his expected
working life he was not to be awarded damages for the
loss
of amounts
he would have earned in those
"
lost
"
working years had his productive
working life not been shortened. The unfortunate effect of this rule,
which led
to
its
rejection by the House of Lords in 1980 in
Pickett
v.
British Rail Engineering Ltd.2
was produced by its interaction with the
assumed rule that if an injured plaintiff brought a successful action
during his lifetime,
his
dependants could not, after his death, bring an
action under the Fatal Accidents Act
1976
for
"
loss
of dependency
"
because it could not be said of the deceased that
if
he had lived he would
have been able to bring an action in respect of his injuries-his right of
action, having been exercised, was exhausted at the date of his death
and
so
could not satisfy the statutory precondition
of
the dependants'
claim.
The decision in
Pickett
contained within itself the seed of the technical
difficulties which it produced. The
theoretical
basis for awarding
damages for
"
loss of earnings in the lost years
*'
is what might be
called the
"
objective
loss
"
theory of damages: if the victim had not
been injured
his
life would not have been shortened and he would not
have suffered a loss of earnings. Neither the fact that the victim would
not, by definition, be alive during the lost years to earn or spend his
earnings, nor the fact that in a real sense
the victim
does not
"
need
"
~~ ~ ~
I19621
2
Q.B.
210(C.A.).
j19801A.C.
136(H.L.).
478
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