Phipps (Plaintiff/Appellant) v Brooks Dry Cleaning Service Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STUART-SMITH,LORD JUSTICE WAITE,LORD JUSTICE SWINTON THOMAS |
| Judgment Date | 11 July 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0711-12 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 95/1778/c |
| Date | 11 July 1996 |
[1996] EWCA Civ J0711-12
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR JUSTICE DYSON)
Royal Courts of Justice
Strand
London WC2
Lord Justice Stuart-Smith
Lord Justice Waite
Lord Justice Swinton Thomas
95/1778/c
MR K L MAY (Instructed by Sharples & Co., Bristol) appeared on behalf of the Appellant
MR. A GORE (Instructed by Sansbury Hill, Bristol) appeared on behalf of the Respondent
Thursday 11 July 1996
The Issues
This appeal raises two points of general importance in relation to the calculation of damages in what have come to be known as the "lost years". That is to say where a defendant reduces the expectation of life of the primary victim by the tort. In Pickett v BREL [1980] AC 136 the House of Lords held that the primary victim as Plaintiff if he was still alive, or his estate if he was dead, could maintain an action for loss of the earnings which he would have received during the rest of his expected working life, subject to a reduction for his living expenses. They left open the question as to how these living expenses were to be calculated in relation to the shared or common expenses, incurred both on behalf of the primary victim and his dependants living with him at the material time.
The question was considered by the Court of Appeal in Harris v Empress Motors Ltd. [1984] 1 WLR 212. In that case this Court held that the common expenses should be divided equally between those involved; thus if the primary victim lives with his wife or partner alone, they should be divided in half; if there were children as well, the division should be pro rata.
If that is the ratio decidendi of that case, as Dyson J. held in this case, then it is binding on this Court. However other judges at first instance, namely Mr. Temple QC sitting as a deputy High Court Judge in ( Bateman v Hydro Agri (UK) Ltd. unreported transcript 15 September 1995. Kemp and Kemp Vol 1 P.6032) distinguished Harris's case and held that the primary victim's living expenses should be treated in the same way as is done where the claim is by the dependants under the Fatal Accidents Acts, where shared or common expenses are regarded as part of the dependency. His decision was followed by HH Judge Fawcus in ( Ramsey v Scaffolding (GB) Ltd. unreported transcript November 10 1995).
The second point relates to the DIY activity which the primary victim was in the habit of carrying out. Can he or his estate recover the value of these services during the lost years? Dyson J. held that he could not. Other judges including Mr. Temple and Judge Fawcus in Bateman and Ramsey, had held that he can; this was also the view of HH Judge Sumner in Gabriel v Nuclear Electric PLC (1966) P1QR at Q1.
A number of other points arise in this appeal which are particular to this case.
The Facts
Between 1960 and 1962 and again between 1966 and March 1969. The Plaintiff was employed as a garment presser by the Defendants at their dry cleaning factory premises at Ashley Vale, Bristol. Unfortunately this employment brought him into contact with asbestos dust from which he contracted mesothelioma. This was diagnosed in October 1994. This disease radically reduced the Plaintiff's expectation of life. It was common ground at the trial, which was concluded on 9 November 1995, that the Plaintiff was expected to die in March 1996 and the trial proceeded on this basis; though in fact he is still alive. He was 51 at the date of trial and recently married to his second wife. He was still employed by the Defendants until the trial, though he had of course stopped working earlier. A number of the heads of damage were agreed.
At the date of trial the Judge found that the Plaintiff's net earnings would have been £12,741.60 per year. The Plaintiff would have retired at the age of 60.
The Lost Years Claim. Loss of earnings.
The Judge held that the proper approach was to divide the common expenses equally between the Plaintiff and his wife and concluded that 50% of the net earnings would be attributable to the Plaintiff's living expenses in the lost years while the Plaintiff could be expected to work. This gave a multiplicand of £6,370.80. He took a multiplier of 7. There is no dispute in this Court as to the multiplier. But Mr May, on behalf of the Plaintiff Appellant, contends that the Plaintiff's living expenses should have been assessed at no more than one third, which would be the appropriate proportion if the action was one under the Fatal Accidents Act on behalf of Mrs Phipps. He submits that the approach should be identical to that adopted in assessing dependency under such Acts. In support of this proposition he cited Lord Wilberforce in Pickett's case at p.151 A-B where after referring to the decision of the High Court of Australia in Skelton & Collins 115 CLR 94 he said:
"The judgments, further, bring out an important ingredient, which I would accept, namely that the amount to be recovered in respect of earnings in the "lost" years should be after deduction of an estimated sum to represent the victim's probable living expenses during those years. I think that this is right because the basis, in principle, for recovery lies in the interest which he has in making provision for dependants and others, and this he would do out of his surplus. There is the additional merit of bringing awards under this head into line with what could be recovered under the Fatal Accidents Acts."
Lord Reid explained the reasoning that led the House to overrule Oliver v Ashman [1962] 2QB 210CA, and allow a claim to the primary victim in respect of the lost years. In relation to the argument that all that was lost was an expectation he said at p.149 C:
"But is the main line of reasoning acceptable? Does it not ignore the fact that a particular man, in good health, and sound earning, has in these two things an asset of present value quite separate and distinct from the expectation of life which every man possesses? Compare him with a man in poor health and out of a job, is he not, and not only in the immediate present, a richer man? Is he not entitled to say, at one moment I am a man with existing capability to earn well for 14 years: the next moment I can only earn less well for one year? And why should he be compensated only for the immediate reduction in his earnings and not for the loss of the whole period for which he has been deprived of his ability to earn them? To the argument that "they are of no value because you will not be there to enjoy them" can he not reply. "yes they are: what is of value to me is not only my opportunity to spend them enjoyably, but to use such part of them as I do not need for my dependants or for other persons or causes which I wish to support. If I cannot do this, I have been deprived of something on which a value—a present value—can be placed."
But the House of Lords remitted the case for determination of the deceased's living expenses and gave no guidance as to how the common and shared expenses were to be dealt with. At least that was certainly the view of this Court in Harris's case.
In Pickett's case their Lordships were troubled by the problem of double recovery which might arise in certain circumstances if a claim could be made on behalf of the estate in respect of loss of earnings in the lost years. This might occur where the deceased primary victim had left a will bequeathing his estate to someone other than his dependants. A claim could be mounted on behalf of the estate, which would enure for the benefit of the beneficiary under the will; but a claim could also be made under the Fatal Accidents Act on behalf of the dependants and based upon the same anticipated earnings of the deceased. Lord Scarman at p.170 B suggested that the solution to this particular problem might lie in an application under the Inheritance (Provisions of Family and Dependants) Act 1975. But I am not sure how this would have helped, since the widow or other dependants could not have been compelled to make an application under that Act. Another instance where there might be double recovery is if the deceased died intestate leaving a widow and children. This would almost certainly result in the children receiving a larger sum from the estate than they would have done under an apportionment made between the dependants in a Fatal Accidents Act claim. And the set off provisions, whereby benefits arising from the death had to be set off against Fatal Accidents Act damages would not wholly remedy this situation. In the result the children would get more under the Law Reform Claim and the widow more under the Fatal Accidents Act claim and the Defendants would end up paying more than if either claim were brought alone. This problem of double recovery has now been remedied by the Administration of Justice Act 1982
In Harris's case the primary victim had died as a result of his injuries and his widow brought an action both under The Fatal Accidents Acts on behalf of herself and the children in respect of their dependency and the Law Reform Act in respect of loss of earnings in the lost years on behalf of the estate. The particular problem was how to calculate the deduction that had to be made from the net earnings for the lost years in respect of the Law Reform Claim. O'Connor L.J. who gave the principal judgment, referred to the conventional approach in relation to dependency claims of deducting from the net income a percentage to represent what the deceased would have spent exclusively on himself. In the case of a husband and...
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