Oliver v Ashman

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE WILLMER,LORD JUSTICE PEARSON
Judgment Date03 Jul 1961
Judgment citation (vLex)[1961] EWCA Civ J0703-1

[1961] EWCA Civ J0703-1

In The Supreme Court of Judicature

Court of Appeal

Before:

Lord Justice Rolroyd Pearce

Lord Justice Willmer and

Lord Justice Pearson.

Robin Oliver (an infant suing by his Father and next friend William Oliver) and the said William Oliver and Anthea Oliver (wife of the said William Oliver, and the said William Oliver.
Plaintiffs Appellants
and
Allen George Asrman and Samuel Staton
Defendants Respondents

MR. N.R. FOX-ANDREWS Q.C., and MR. JOHN STOCKER (Instructed by Messrs. G. Howard & Co.) appeared on behalf of the Appellant.

MR. D.P. CROOM-JOHNSON, Q.C. and MR. E.W. EVELEIGH, Q.C., (Instructed by Messrs. L. Bingham & Co.) appeared for the Respondents.

1

(as revised)

2

LORD JUSTICE HOLROYD PEARCE: This is the Plaintiffs' appeal from a Judgment of the Lord Chief Justice, awarding £11,000 damages to a small child for personal injuries caused by an accident. The Plaintiffs contend that the damages are too low. We have been much helped by the full and able argument of the Counsel on both sides.

3

On the 24th February, 1958, the child, who was then 20 months old, was on his mother's knee in a car driven by the father. The Defendants1 negligence caused a collision. in which, the child's skull was fractured. At the time of the trial, the child was 4 years and 4 months old. The tragic results of the accident are summarised in the very clear and concise findings of the Lord Chief Justice who saw the child in his room for a quarter of an hour or so in the presence of the father and the mother. At page 2 of his judgment, he refers to the fact that the child's mental condition deteriorated after the accident. "Gradually," he says", "he lost all power of speech and at present he is completely mute except that he does try to formulate the word 'daddy' and, I think, the name of his young brother, Angus".

4

The learned Lord Chief Justice then refers to the epileptic fits which were frequent, but were reduced by drugs so that they now occur only about once every week, but on the other hand are longer when they occur. "Further," says the Lord Chief Justice, "as time went by it became clear that his brain was very seriously affected. He cannot do anything for himself, dressing or undressing. He can feed himself after a fashion with his left hand and a spoon but is clearly clumsy in doing it. He entails constant attention and it is right to say that his mother has managed to look after him in effect for twenty-four hours of the day. He is highly emotional, he emits most curious screams from time to time and on top of that, he is very easily upset and cries for long periods; when he does cry it is difficult to stop him. He is quite unmanageable in the ordinary way, although his mother does exercise some control over him. He does not understand orders except that she can sake him come to her by inducing him with a sweet, but to all intents and purposes he is not responsive to any commands or instructions. He has curious jerking movements. He bites anything and everything - books, pencils, his young brother - and is clearly subject to violent emotions although, of course, he is in no sense vicious".

5

The Lord Chief Justice then refers to one medical evidence, as to which there was no real contest, That shows that there is "grave impairment of the intelligence, the child now being imbecile with severe traumatic epilepsy, and is not capable of talking. There will be a definite limit to the amount of improvement this child is capable of making in future. A little further improvement may occur but he will remain, always of gravely diminished intelligence. Epilepsy may become less marked with the passage of tine, but it is impossible to be definite about this. The presence of such frequent attacks is regarded at present as shortening the expectation of life. All his life he will stand in need of constant care and attention and prove uneducable". The reduction of expectation of life was said by Sir Russell Brain, who war, called on behalf of the Defendants, to be about half that of normality. That is to say, his expectation of life would then be 30 years instead of 60. The learned. Lord Chief justice then says this: "The prognosis as I find it is that it is unlikely he will be able to regain anything for practical purposes, at any rate in speech, and that as far as education is concerned it can only be of a very, very limited character. All the doctors agree that what this child needs is affectionate care and control all the time; secondly, constant medical supervision, in particular for the epileptic fits; thirdly, such attempts as can be made towards re-education. There is some conflict of evidence as to how that can best be achieved. All are agreed, at any rate, that as long as it is possible to retain him in the home under the constant care of his mother, the better, "but the parents, who are very sensible people, have now resigned themselves to the fact that the child will have to leave home at some time in the future. He will be getting too big to be properly controlled by his mother and in addition, there is the difficulty of bringing; him up with the younger brother, a perfectly normal child". He then discusses what is to be done with the child when he becomes too big to be managed at home. He refers to the parents' reasonable desire that he should be educated in some private institution, and in particular a Rudolph Steiner school. He then accepts Sir Russell Brain's evidence to the effect that today, provided one goes to a first-class State institution, the chances are that the child will have better care and better medical attention and education than in a private establishment. The learned Lord Chief Justice continues: "He agrees naturally that some regard must be had to the parents' wishes and quite clearly, if the Rudolph Steiner schools will take the child - and it is too early to tell that yet - or some other private institution, it would no doubt be right to try that first, but Sir Russell Brain is clearly of the view that sooner or later this child will have to go to a State institution and what is more, that there he will remain for the rest of his natural life, subject to visits home".

6

The learned Lord Chief Justice then turns to the question of damages and says: "He (the child; must be compensated in money for such expenditure as will have to be incurred on his behalf by having some extra help in the home so long as this child remains at home. It looks, on that basis, as if his parents on his behalf will have to employ a nanny for some moderate number of years, say three or four years. Also it looks as if they will have to expend, and rightly expend, money in sending him to some private institution in the first instance, if any private institution will take him. And when he goes to a State institution, they may well require extra help in the home in the periods when he comes out of the State institution and comes home. In respect of these matters, the child is clearly entitled to compensation.

7

"So far as payment for suffering is concerned, any award must be small and possibly nil because the general view is that this child really does not feel pain and suffering. If he does, it is purely momentary". He continues later: "The more difficult question is what the child is entitled to receive as a result of what he has lost through his injuries. He has lost the opportunity, to use quite general terms, of living, marrying, having children and enjoying life. He has also lost the opportunity of earning a living and obtaining such amenities as his earnings could buy. As against this, he will be kept, on one view, for the rest of his natural life at the expense of the State. Now, as to the loss of opportunity to enjoy life, this is not the case of a person who has known the enjoyment of life and has been deprived of it". 'Later he says: "At the same time, I am quite unable to accept the contention put forward by Mr. Ryder Richardson that this is purely what I may call a Benham v. Gambling case. He is, I think, entitled to something for what he has lost, whether he knows he has lost it or not, albeit that the amount may well be less than in the case of a person who has enjoyed life and amenities and knows that he has lost them. The trouble, however. is to put that into money".

8

Mr. Fox-Andrews, for the Appellants, cannot really criticise what one may call the summing up of the learned Judge: it is the verdict, the sum awarded, of which he complains Indeed, no judgment could set out more clearly and fairly the evidence and the conclusions on the relevant matters, but the sum awarded, it is argued, is to inadequate as to make it a wholly erroneous estimate. That is a difficult argument to make good in a case that both Counsel describe as unique - no comparable case has been cited to us. The child Mr. Fox-Andrews urges, has been robbed of his human intelligence and all the normal pleasures of life. He will never know a home and a wife and family, or work, or holidays or hobbies. On any normal standards, Mr. Fox-Andrews argues, the figure awarded would be barely apt for his injuries and loss of the amenities of life, without considering the expense of some thousands of pounds which the next few years will entail before he gets into a State institution, and without considering his loss of future earnings. Though the child is spared the added pain of knowing what he has lost, it is, it is argued, still a vast lose which would by itself amply support the award of £11,000.

9

Mr. Groom-Johnson for the Defendants, on his cross-appeal, contends that the figure of £11,000 is too high in that the learned Lord Chief Justice erred in the Plaintiff's favour on two points of law. First, it is said, he declined to reduce the damages by virtue of the fact that the Plaintiff would in all probability have no opportunity of...

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