McCann v Sheppard

JurisdictionEngland & Wales
Judgment Date15 March 1973
Judgment citation (vLex)[1973] EWCA Civ J0315-1
Date15 March 1973
CourtCourt of Appeal (Civil Division)
David Alastair Mccann
John Sheppard
First Defendant
John Whetham Cart
Second Defendant

[1973] EWCA Civ J0315-1


The Master of the Rolls (Lord Denning),

Lord Justice Stamp and

Lord Justice James.

In The Supreme Court of Judicature

Court of Appeal

Appeal by first defendant from judgment of Mr. Justice Park on 6th June 1972.

Mr. PETER FALLON, Q. C, and Mr. J. ROYCE (instructed by Messrs. Hextall Erskine & Co., agents for Messrs. Cartwrights of Bristol) appeared on behalf of the Appellant First Defendant.

Mr. CHRISTOPHER FRENCH, Q. C, and Mrs. Betty Knightly (instructed by Messrs, Lee Bolton & Lee, agents for Messrs. Bush and Bush of Bristol) appeared on behalf of the Respondent Plaintiff.

The Second Defendant, Mr. Cart, did not appear and was not represented.


In this case we heard some fresh evidence de bene esse. I will bring it in so as to complete the story, but I will exclude it from consideration hereafter, if need be.


David Alastair McCann was born on 25th November 1943, in Northern Ireland. As a young man of 18 he carne over to England, He worked in a circus as an elephant groom. He used the name Raddy Green and got into trouble with the police on a few occasions. Usually it resulted in a fine, but on one occasion he was sent to prison for four months for breaking into a store and stealing. Afterwards he went back to his own name — David McCann — and had various jobs in Bristol. Latterly he was engaged in demolition work. Then, on 15th August 1968, when he was 24, he was in a motor accident. He was going to Weston-super-Mare on holiday with two friends. He was a passenger in the back seat. He was very severely injured. His injuries were all to the lower part of his body and his legs. He had a broken pelvis and much damage done to the bladder and other internal organs. His urinary and sexual functions were greatly impaired. His foot flapped up and down. He had to walk with a stick. Worst of all, he was in great pain and had to take drugs to relieve it. He never worked after the accident. He lived on National Insurance benefits. On 5th January 1970, he issued a writ against the driver of the car claiming damages for negligence.


Nearly two years after the accident, whilst his action was pending, on 12th June 1970, he got married. He said that, owing to his injuries, his sex life was practically nil, but they did have a baby born on the 3rd September 1971. He said that it was a "miracle" and that he was the "proudest man in the City".


Now I come to the part of the case which concerns us most. Drugs. In order to relieve the pain, the doctors prescribed apain-killing drug called palfium. He became more and more dependant on it. In June 1972, he action came for trial at Bristol before Mr. Justice Park. He described the pain and the drugs. "When the pain strikes me, it starts towards the back and shoots down the full length of the leg, almost like an electric shock, and it really hurts: and I have to take drugs; and the drugs I take are dangerous drugs, and I am frightened of becoming addicted, but there is no alternative". The Judge said that while the plaintiff was giving evidence, he was obviously under drugs.


On 6th June 1972, the Judge awarded him these sums: Special Damages for loss of earnings up to the date £ of trial 2,548


Loss of future earning(15 years at £1,000 a year) 15,000 General damages tor pain and suffering, loss of amenities and risk of loss of expectation of life 20,000


Total: 37,548


When interest was added, the total judgment entered for him was £41,252 and costs.


On 18th July 1972, the defendants gave notice of appeal to this Court contending that the award was excessive, and asked that it should be reduced to such sum as this Court thought just and equitable.


Meanwhile, however, in March 1972, two or three months before the hearing, he had gone to live in Birmingham with his wife's people. Whilst there, he obtained drugs in this way: He used to go to a doctor and say that he was a temporary resident and was in need of palfium. He produced the certificates from his doctor at Bristol. He went from one doctor to another getting drugs, sometimes using a false name. The police found out about it. On 18th October 1972, he was prosecuted at the Oldbury MagistratesCourt, He pleaded guilty to four cases of procuring for himself a dangerous drug (palfium) and asked for fourteen other similar cases to be taken into consideration. These dated back to April 1972. The Magistrates put him on probation, and made a condition that he should receive treatment as an in-patient at All Saints Hospital for one year.


That was Wednesday, 18th October 1972. On Saturday, 21st October 1972, he left the hospital for the weekend. On the Sunday afternoon he took an overdose of drugs, and. died.


Now, here is the point. The appeal of the defendants was still pending to this Court. It came on for hearing on Wednesday, 28th February 1973. The defendants sought to introduce a good deal of fresh evidence, which we heard de bene esse: but, as the case developed, Mr. Fallon disclaimed any reliance on it. He acknowedged that the award of damages made by the Judge could not be upset on the evidence as it stood before him. Eventually, the only fresh evidence that he sought to introduce was the fact that the plaintiff died on 22nd October 1972. This, he said, was such an overwhelming event — which had occurred since the trial — chat this Court should admit evidence of it and reduce the award to take account of it.


During the argument, it was suggested that, if the award of £37,548 and interest was reduced on account of his death, the widow might recover the difference by bringing an action under the Fatal Accidents Act. But I doubt this. There are two authorities which suggest that she cannot do so. The first is Read v. The Great Eastern Railway Co. L. R. 3 Q. B. 555. In that case the injured plaintiff, in his lifetime, received a sum in full satisfaction of his claim. He afterwards died from his injuries. His widow then sought to sue under the Fatal Accidents Act. The Court heldthat she could not do so. In argument, Mr. Justice Lush put this very question: "Suppose that the deceased had brought an action and recovered and then died, could his widow have another action?" In his judgment, Mr. Justice blackburn gave the answer: "To hold this would be to strain the words of the section". The second is Murray v. Shuter (1972) 1 Lloyds 6. Mr. Hurray was so severely injured that he could only be expected to survive for a few months. His advisors thought that the damages would be £15,000 or £16,000, if the case was tried whilst he was alive. So they applied to adjourn the case until after he was dead, because his widow and child might receive £60,000. We granted an adjournment for nine months so as to let him die. I said: "Once his claim was disposed of during his lifetime, his dependants would recover nothing more. They would have no separate action for their own benefit".


In these circumstances, it is open to doubt whether the widow here would have any claim under the Fatal Accidents Acts. Her husband has sued Mr. Sheppard to judgment. Under that Act, the matter must be looked at as at the time of his death. Applying the words of the Statute: "If death had not ensued", would he himself have been entitled to maintain an action and recover damages for negligence? I do not think so: for the simple reason that he had already recovered judgment: and, having done that, he could not maintain another action for the same cause.


It would appear, therefore, that the present action is the only one which lies in respect of the injuries to David McCann in the motor accident. He died intestate. His widow and child will benefit from any award of damages in this action, but they will not have any additional action on their own account.


What then are the damages proper to be awarded in this action? If they were to be assessed as at the trial before Mr. Justice Park,his award was right at that time, and we would not interfere. But it is open to this Court, if we think right, to receive evidence as to matters which have occurred after the date of the trial, see Order 59 Rule 10(2). In this case, therefore, we are at liberty to receive evidence of the death of David McCann. If we do receive it, then it is our duty to re-hear the case in the light of that evidence and to assess the damages as at the time of re-hearing, that is, at the time when we hear the appeal. That was decided by the House of Lords in Attorney-General v. Birmingham Drainage Board (1912) A. C. 783, 801, and Murphy v. Stone-Wallwork (1969) 1 W. L. R. 1023.


Should we receive evidence that David McCann died on 22nd October 1972, pending the appeal to this Court? Mr. French, Q. C., submits that we should not do so, because at the trial the learned Judge took into account all contingencies, including the contingency of early death. He recalls the wise words of Lord Pearson in the three leading cases of Curwen v. James (1963) 1 W. L. R. at page 755; Murphy v. Stone-Wallwork (1969) 1 W. L. R. page 1035, and Mulholland v. Mitchell (1971) A. C. at page 681. The general rule in accident cases is that the sum of damages falls to be assessed once and for all at the time of the hearing: and this Court will be slow to admit evidence of subsequent events to vary it. It will not normally do so after the time for appeal has expired without an appeal being entered — because the proceedings are then at an end. They have reached finality. But if notice of appeal has been entered in time — and pending the appeal, a supervening event occurs such as to falsify the previous assessment — then the Court will be more ready to admit fresh evidence — because, until the appeal is heard and determined, the...

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