Mallett v McMonagle

JurisdictionUK Non-devolved
JudgeLord Reid,Lord Morris of Borth-y-Gest,Lord Pearce,Lord Wilberforce,Lord Diplock
Judgment Date11 February 1969
Judgment citation (vLex)[1969] UKHL J0211-2
Date11 February 1969
CourtHouse of Lords
Mallet (A.P.)
McMonagle, a Minor by Hugh Joseph McMonagle, His Father and Guardian Ad Litem

[1969] UKHL J0211-2

Lord Reid

Lord Morris of Borth-y-Gest

Lord Pearce

Lord Wilberforce

Lord Diplock

House of Lords

Upon Report from the Appellate Committee, to whom was referred the Cause Mallet (A.P.) against McMonagle, a Minor by Hugh Joseph McMonagle, his father and guardian ad litem, that the Committee had heard Counsel, as well on Monday the 16th as on Tuesday the 17th, days of December last, upon the Petition and Appeal of Elizabeth Ann Mallett (Assisted Person), of 20 Upper Nassau Street, Londonderry (Widow), praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal in Northern Ireland of the 12th of January 1968, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Hugh Joseph McMonagle, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal in Northern Ireland, of the 12th day of January 1968, in part complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Costs incurred by the said Appellant in respect of the said Appeal to this House be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act (Northern Ireland) 1965.

Lord Reid

My Lords,


I agree with my noble and learned friend, Lord Morris of Borth-y-Gest, that this appeal should be dismissed.

Lord Morris of Borth-y-Gest

My Lords,


This is an appeal from the judgment of the Court of Appeal in Northern Ireland whereby the Court by a majority (Lord MacDermott C.J. and Mc Veigh L.J., Curran L.J. dissenting) set aside the verdict and judgment which had been entered for the Appellant and directed that there should be a new trial on the issue of damages under the Fatal Accidents Acts. The Appellant is the administratrix of her late husband William John Mallett who died as the result of a motor accident on the 21st November, 1964. He was a passenger in a motor vehicle driven by the first Respondent and owned by the second named Respondent. There was a collision between that vehicle and a lorry. In the action brought by the Appellant only the Respondents were held to be to blame for the accident. The Appellant was awarded damages under the Law Reform ( Miscellaneous Provisions) Act (Northern Ireland), 1937, and also for herself and for the three young children of the marriage under the Fatal Accidents Acts (Northern Ireland) 1846 to 1959. The judgment was set aside on the ground that the damages awarded by the jury were excessive and were of an amount that no reasonable jury could properly award.


The trial of the action took place on the 22nd and 23rd May, 1967. The Appellant was 24 years of age at the time of her husband's death: he was then 25 1/2: they had married in 1959. At the date of the trial the three children were aged 6, 4 and 2. Prior to his death the husband had been employed in Londonderry as a machine operator by a company called Monarch Electric Limited. His net wage was over £12 a week. He had supplemented his earnings by singing in a dance band in his spare time in the evenings. He had done that for about six weeks before his death. He had done so on an average on three nights a week. By so doing he had earned from £6 to £10 per week. Out of his weekly wage he had been in the habit of giving £9 10s. 0d. to £10 10s. 0d. to the Appellant for the housekeeping: he gave her a further sum of £3 10s. 0d. per week out of his dance band earnings. She spent about that amount per week on his food. It was established therefore that the dependency of the Appellant was about £10 per week.


Before the date of the trial the company (Monarch Electric Limited) that had employed the deceased had ceased to carry on business: they had closed down on the 17th January, 1967. Evidence was given that if the deceased had then been alive he would have been offered employment also in Londonderry as an asphalter. If he had become an asphalter his average weekly wage taking the year as a whole would have been £22 10s. 0d. In reaching this average he would in the summer months have worked from 9 a.m. to 9 p.m., or 10 p.m., during which period the weekly earnings would have been about £40. The potential employer said that a considerable amount of travelling would have been entailed in the work as an asphalter. Notwithstanding this it was contended at the trial that if the deceased had been employed as an asphalter he could still have supplemented his earnings by singing in a dance band in the evenings. In the changed circumstances it was further contended at the trial that the amount that he could and would have given to the Appellant would have been very much higher than it was at the time of his death.


On the evidence which I have summarised the jury made an award of £22,000. By agreement £500 out of that sum was appropriated as damages under the Law Reform ( Miscellaneous Provisions) Act (Northern Ireland) 1937. The jury made apportionments as between the Appellant and the three children.


On appeal by the Respondents to the Court of Appeal the substantial contention was that the damages awarded were excessive. There was no appeal in regard to the finding of the jury that the Respondents had been guilty of the negligence that caused the accident. No complaint of misdirection was urged. What was said was that having regard to the evidence and to such facts as were not in dispute the jury had awarded an amount of damages which was so excessive as to be out of all proportion to the circumstances of the case. It was pointed out that not only would there be the immediate receipt of the capital sum of £21,500 but that such sum, if reasonably invested, would without any resort to capital, produce an income exceeding double the rate of dependency at the time of death. Accepting these contentions the majority in the Court of Appeal held that the amount awarded exceeded what any reasonable jury could properly award. Accordingly a new trial was ordered but limited to the issue of the amount of damages under the Fatal Accidents Acts.


My Lords, it is well established that in considering questions as to the quantum of damages which have been awarded the approach of an Appellate Court must differ according as to whether the assessment has been by a judge or by a jury. It seems manifest that had the award now being considered been that of a judge alone the Court of Appeal would have decided that it represented a wholly erroneous estimate. But it is clear that the Court of Appeal had it firmly in mind that as the award was that of a jury a very different test must be applied. My Lords, I do not think that any useful purpose would be served by seeking to summarise or to re-iterate the principles which have often been stated. Guidance is to be found in Davies v. Powell Dyffryn Associated Collieries Ltd. [1942] A.C. 601, 616 and in Nance v. British Columbia Electric Railway [1951] A.C. 601, 614.


In cases such as that now being considered it is inevitable that in assessing damages there must be elements of estimate and to some extent of conjecture. All the chances and the changes of the future must be assessed. They must be weighed not only with sympathy but with fairness for the interests of all concerned and at all times with a sense of proportion.


My Lords, in reviewing the evidence that was given in this case and in endeavouring to decide what the future would have been and will be for the persons concerned the jury had to have many considerations in mind. Their conclusions must not be disturbed unless the Appellate court is satisfied that for some reason or another the result reached was out of all proportion to the circumstances of the case so that the award of damages exceeded any sum that a reasonable jury could have given. The majority in the Court of Appeal were so satisfied. I see no reason to disturb their conclusion and, accordingly, I would dismiss the appeal.

Lord Pearce

My Lords,


I agree with the judgments of the majority of the Court of Appeal in Northern Ireland. The learned Lord Chief Justice observed that "the amount of the verdict, if wisely invested in long-term...

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