Naylor v Yorkshire Electricity Board
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sellers,Lord Justice Danckwerts |
| Judgment Date | 30 June 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J0630-1 |
| Date | 30 June 1966 |
| Court | Court of Appeal |
(Administratrix of the estate of Paul Naylor deceased)
[1966] EWCA Civ J0630-1
Lord Justice Sellers
Lord Justice Danckwerts and
Mr Justice Salmon
In The Supreme Court of Judicature
Court of Appeal
(From: Mr. Justice Ashworth - Sheffield)
Mr. D. T. Lloyd (instructed by Messrs. Rowley Ashworth & Co.) appeared on behalf of the Appellant (Plaintiff).
Mr. K. W. Dewhurst (instructed by Messrs. James Chapman & Co., Manchester) appeared on behalf of the Respondents (Defendants)
The plaintiff is the mother of Paul Naylor, who was 20 years of age when he was killed instantaneously by an electric shock whilst he was at work with the defendant Board in circumstances in which the defendants admit their breach of duty to the deceased. The mother has taken out letters of administration and sues as administratrix of the estate of the son Paul under the Law Reform (Miscellaneous Provisions) Act, 1934. The funeral expenses were agreed and the only issue for the Court&s consideration was the claim for damages for the deceased&s loss of expectation of life.
There was no concurrent claim for damages under the Fatal Accidents Acts as, somewhat surprisingly, no dependency, actual or potential, was alleged, although the son and an elder brother aged 25 were living at home. Nothing was said as to whether, and if so to what extent, the son Paul was dependent on his parents. Whatever is awarded in this case will go to the parents and will be for their benefit but will not be a sum of compensation for any financial loss suffered by them.
The defendants were willing to pay £500, which is the sum Mr. Justice Ashworth awarded, but the plaintiff was unwilling to accept it and in the appeal the contention has been that the award of £500 (which tallied with the defendants& offer) is too low and is so erroneous that it should be substantially increased.
The argument tended to introduce considerations of the prospects of Paul Naylor having a happy life, considerations of his work, his recreations, his engagement to be married, of the age he had reached, placing him on the threshold of adult life. If these are now matters to be considered I would regard them as inadequately investigated, for the evidence as far as it goes is only superficial. The happiness and prospects of life of a deceased person in order to assess the amount to be paid for the "lost years" were the subject of inquiry in the Courts after the Act of 1934 until the decision in the House of Lords in Benham v. Gambling (1941 Appeal Cases page 157). It became an almostimpossible task and an inquiry distasteful and repugnant to relatives and counsel alike. Happily the decision in the House of Lords brought to an end such probing into the heart and feelings of deceased persons and I would be most reluctant to have it revived.
In my opinion Mr. Justice Ashworth rightly appreciated and applied what was laid down by the House of Lords in the speech of Lord Simon, Lord Chancellor, in Benham v. Gambling. That decision sought to establish, and succeeded in so doing, a low or nominal standard of damages for this type of claim and gave a guide of £200 in the case before them where the deceased was a child of two and a half years old at his death whose circumstances the House held were most favourable to an award of so much, otherwise it might have been lower. At page 167 the Lord Chancellor said: "I would further lay it down that, in assessing damages for this purpose, the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring him happiness; the test is not subjective and the right sum to award depends on an objective estimate of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not". The prospect of length of days is not the thing to be assessed, and actuarial and mathematical calculations are to be avoided. The decision did not give much scope for increasing or reducing the figure of £200 and in practice the variations were slight and the figure was regarded as a conventional one for this head of claim.
Awards have been increased as the value of money has decreased but the awards have not been based on any such evidence as was adduced in this case by Mr. Butler in his calculations of the fall in the value of the pound. The learned judge, rightly in my view, did not accede to the submission that the correct figure in a comparable case in 1941 should be mathematically adjusted to an equivalent figure in 1966. There must be very few things which are automatically adjusted with the rise or fall ofa cost of living schedule based on the prices of certain commodities and I see no reason why damages should be rigidly so adjusted. Damages have to be assessed in the light of all the factors existing at the date of assessment.
In H. West & Son Ltd. v. Shephard (1964 Appeal Cases page 326) both Lord Reid and Lord Devlin recognised that an award of £500 was the current conventional sum for loss of expectation of life and in my judgment it is not possible to say that the award of Mr. Justice Ashworth was made on an erroneous basis or was an inadequate amount. "The truth, of course, is", said Lord Simon at page 168, "that in putting a money value on the prospective balance of happiness in years that the deceased might otherwise have lived, the or judge of fact is attempting to equate incommensurables".
For the judgment of Mr. Justice Ashworth to be held to be wrong it would require the Court to re-open consideration of all those subjective matters which were being raised in the Courts under this head of claim before Benham v. Gambling put an end to an impossible task. Mr. Justice Ashworth&s judgment took into account the change in the value of money since 1941 and he also had regard to Paul Baylor&s age at the time of death and his prospects in life. "This young man's prospects appear to have been favourable". In my view he directed himself correctly and fully and arrived at a reasonable sum, in harmony with so many other recent awards. I can see no good reason for acceding to the appellant&s endeavour to establish a higher and different standard of assessment. On the whole I would think no injustice would be done if this head of claim, arising after death, were abolished and I would prefer that course to an increase in the present conventional sum.
I would dismiss the appeal.
I have had the advantage of reading the judgment of Lord Justice Salmon. Unless we are precluded by the judgment of the House of Lords in Benham v. Gambling (1941 Appeal Cases page 157)from giving effect to the altered circumstances of the value of money and other factors since 1941, in my opinion the view taken by Lord Justice Salmon must be right. Of course, it is only in cases where the Fatal Accidents Acts do not apply, because the deceased was not a contributor to the support of his family, that the Law Reform (Miscellaneous Provisions) Act, 1934, becomes important. All that Act provides is that actions are to be maintainable notwithstanding the death of the person who would have been entitled to bring the action if he had survived for the benefit of his estate. This Act met with an unfriendly reception from lawyers because the assessment of damages for loss of expectation of life is extremely difficult and the resulting damages would go to the estate of the deceased, and so would benefit, as it appeared, persons who had really suffered no loss.
Accordingly, in Benham v. Gambling the House of Lords, under the compelling influence of Lord Simon, evolved by a process of judicial legislation a theory that the damages should be a strictly moderate figure, somewhere between a minimum of £200 and a maximum of £500. This, of course, was a purely conventional assessment which paid no regard to the real facts or, perhaps I should say, the difficulties of the case. In Benham v. Gambling the House, in the case of a child of two and a half years, which presents peculiarly acute difficulties, awarded £200. Well, since then the value of money has fallen two and a half times, and, conventional or not, a figure of £200 or £500 must be even more unrealistic than it was in 1941.
In the present case we have to deal with the case of a young man of 20 with real prospects of a successful and happy life. £500 seems to me to be a ridiculous figure. £1,000, proposed by Lord Justice Salmon, cannot be too much. My doubt is whether it is not far too little.
In my opinion the appeal should be allowed.
Lord Justice Salmon: Paul Naylor, the plaintiff&s son, was killed outright on the 23rd April, 1964, whilst in the employment of the defendants, the Yorkshire Electricity Board. The plaintiff brought this action as administratrix of her son's estate claiming damages on behalf of the estate under the Law Reform (Miscellaneous Provisions) Act, 1934. There was no dependancy and accordingly no claim under the Fatal Accidents Acts. The plaintiff alleged that her son's death had been caused by breaches of statutory duty on the part of the defendants. The defendants admitted liability and damages were the only issue in the action. The learned judge assessed the general damages at £500. The plaintiff appeals to this Court on the ground that the learned judge&s assessment of those damages was wholly erroneous. I take the following from the learned judge&s judgment: "Paul Naylor was aged 20 years and 4 months at the date of his death, and was employed by the defendants as a jointer&s mate. His working prospects were favourable, and if he had lived he would soon have been sent for special training, after which at the age of 21 he would probably have qualified for the grade of jointer. He was a young man in good health, living...
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