Robertson v Turnbull
| Jurisdiction | England & Wales |
| Judge | Lord Wilberforce,Lord Edmund-Davies,Lord Fraser of Tullybelton,Lord Keith of Kinkel,Lord Roskill |
| Judgment Date | 05 October 1981 |
| Judgment citation (vLex) | [1981] UKHL J1005-2 |
| Court | House of Lords |
| Date | 05 October 1981 |
| Docket Number | No. 1. |
[1981] UKHL J1005-2
House of Lords
Lord Wilberforce
Lord Edmund-Davies
Lord Fraser of Tullybelton
Lord Keith of Kinkel
Lord Roskill
My Lords,
Since I am in complete agreement with the judgments of the Lord Ordinary, Lord Maxwell, and of the Lord President in the Inner House, I should not have troubled your Lordships with any observations of my own, were it not for some arguments founded upon the speeches in this House in Dick v. Burgh of Falkirk 1976 S.C. (H.L.) 1, a decision to which I was a party.
I have now had the benefit of reading in advance the speech to be delivered by my noble and learned friend, Lord Fraser of Tullybelton, which both reinforces my acceptance of the judgments below and deals in a manner which, with respect, I find satisfactory with the case of Dick. A rereading of my own speech in that appeal satisfies me that my own approach was based squarely upon the line of Scottish cases dating effectively from Eisten's case (1870) 8 Macph. 980, and was confined to a consideration of the correctness or otherwise of Darling v. Gray & Sons (1892) 19 R. (H.L.) 31, [1892] A.C. 576. It was certainly not in my contemplation that the House was endorsing, or was being asked to endorse, an entirely new principle of a duty of care owed by an employer to dependants of his employees upon the principle of Donoghue v. Stevenson [1932] A.C. 562. Such suggestions to that effect as appear in the speech of Lord Kilbrandon were not necessary to his decision, which was essentially based upon his analysis of the existing cases and his careful analysis of Darling v. Gray & Sons, to both of which I ventured to give express approval. Although, with hindsight, some express reservation as regards these suggestions might have been wise, I do not think that anything in my opinion can be taken as endorsing them, nor should the general agreement of the other members of the House be taken to extend beyond the actual decision and the reasons necessary to support it.
The present is in some ways a hard case, certainly one in which the appellants' claim merits sympathy, but I am convinced by the reasoning of my noble and learned friend, Lord Fraser of Tullybelton, that for us, judicially, to introduce a new principle, or a fresh extension, into the existing limited rule of Scottish law is not to be contemplated. I agree that the appeal must be dismissed.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Fraser of Tullybelton, and I am in respectful agreement with the views he has expressed.
It follows that I concur in holding that this appeal should be dismissed, and I should have been content to leave the matter there were it not for the fact that the basis of the appellants' claim is the speech of Lord Kilbrandon in Dick v. Burgh of Falkirk 1976 S.C. (H.L.) 1., at p.21 et seq., and that I, in common with others of their Lordships, expressed approval of that speech. So I did, and the elaborate submissions made by Mr. Cameron on behalf of the appellants demonstrated that the white sheet of penitence befits me for having done so without adding some qualifying words.
But, without seeking to divest myself of even that inadequate covering, perhaps I may moderate my contrition by saying that it never occurred to me that Lord Kilbrandon had, either deliberately or inadvertently, said anything which could be interpreted as lending support to claims in respect of non-fatal injuries such as those advanced in the present appeal. The only issues arising for determination in Dick's case were (1) whether Darling v. Gray & Sons [1892] A.C. 576 was correctly decided; and (2) if it was wrongly decided, whether this House should overrule it. Those were the only issues dealt with in the speech of my noble and learned friend, Lord Wilberforce, and Lord Kilbrandon (after conducting what Lord Wilberforce described at p. 18 as a "thorough examination of the law") himself said (at p.28):
"My Lords, I have come to the conclusion that the case of Darling v. Gray & Sons was wrongly decided. It applied an unwarrantable and arbitrary distinction to the right of action accruing on a death to a dependant according as the deceased had or had not before his death vindicated by action his own right to sue in reparation. The next question is, whether the decision ought to be overruled. I have no doubt that it ought …"
No alarm bell rang in my ears when, at an earlier stage in his speech, Lord Kilbrandon said (at p.23):
"The law now treats the employer as knowing that nearly all the men and many of the women he employs have dependants who are maintained out of the wages he pays, and that those dependants will suffer grief as well as patrimonial loss if he, by neglect of his duty of care, occasions his employees physical harm. Those dependants are therefore persons to whom he owes that duty."
My Lords, I can now see that, even though I considered that everything there being said was restricted to claims arising on death and had no application to non-fatal claims, I should have burked at that last sentence, despite my ignorance at that stage of the rejection by my noble and learned friend, Lord Keith of Kinkel, when, sitting three years earlier as Lord Ordinary in Jack v. Alexander McDougall & Co. (Engineers) 1973 S.C. 13, he declined to follow McBay v. Hamlett 1963 S.L.T. 18 where in a non-fatal case a husband was awarded compensation for expenses and loss incurred as a result of injuries sustained by his wife owing to the defendant's negligence.
But, mea culpa, I made no such qualification. However, in my abject state I feel I may properly derive a measure of comfort from some words used in the present case by the Lord Ordinary. After indicating the principal issue in Dick's case, Lord Maxwell continued:
"I would find it surprising if the House of Lords had taken the opportunity, when considering that matter, of deciding, as it were incidentally, a different and wider matter not in issue in the case before it, namely that a claim for solatium and loss of support is open to the wife of an injured but living husband, although such a claim is, as I have said, so far as any case cited to me is concerned, without precedent in Scotland."
My Lords, I have no knowledge whether Lord Kilbrandon himself regarded such a claim as sustainable in Scotland in modern times. All I know is that it was a question never entertained by me in arriving at the conclusion I formed in Dick's case. And now that it has arisen for direct determination in the present appeal, I respectfully share the view of my noble and learned friend, Lord Fraser of Tullybelton, that the claim cannot be sustained. Despite the very sad facts of the case, I would accordingly dismiss the appeal.
My Lords,
This appeal raises the question whether a wrongdoer, whose negligence has caused physical injuries, but not death, to another person, can thereby incur liability in damages to anyone other than the injured person himself. On 20th September 1974 Mrs. Robertson, a married woman, was knocked down and very seriously injured by a motor car driven by the defender. She was so severely injured that she has been in hospital ever since, and she is likely to remain there indefinitely. The pursuers and appellants are (first) the husband and (second) a minor child of Mrs. Robertson. The first pursuer sues as an individual and as tutor of the three pupil children of the marriage. He claims damages as an individual under three heads:
(1) Solatium for the loss of his wife's consortium and assistance, and for the ruin of his family life;
(2) Expenses which he has incurred, and will continue to incur ( a) in employing a woman at £20,00 per week as domestic help, and to look after the children, and ( b) in travelling to visit his wife in hospital;
(3) For the loss of the contribution which Mrs. Robertson used to make to the family income out of her earnings as a factory worker. The claim for the children is for solatium and for travelling expenses incurred in visiting their mother in hospital. Mrs. Robertson herself claimed damages from the defender, and her claim, which included an element for loss of earnings, has been settled extra-judicially. Clearly, if the appeal is successful, any award to the first pursuer would have to be adjusted so as to avoid awarding double damages in respect of Mrs. Robertson's loss of earnings. But that stage has not yet been reached. The question now is whether the defender has any direct liability at all to the appellants for the injuries to their wife and mother caused by his negligence. The Lord Ordinary (Lord Maxwell) answered that question in the negative. He sustained the defender's plea to the relevancy and dismissed the action. The First Division by a majority (the Lord President and Lord Stott) adhered to the Lord Ordinary's interlocutor. Lord Cameron dissented and would have allowed proof before answer, limited to the first pursuer's averment of pecuniary loss in respect of domestic help and travelling expenses, that is under head (2) above.
The starting point is the rule which was first clearly defined in Eisten v. North British Railway Co. (1870) 8 Macph. 980 and is now well recognised in the common law of Scotland, that a limited class of near relatives of a person who has died as a result of injuries sustained through the fault of a third party have a right of action against the wrongdoer for solatium and loss of support. The rule is subject to three limitations. First, the class of relatives is strictly limited. It was originally confined to those between whom and the deceased there was a legal obligation of mutual support during the deceased's life,...
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