Rose v Ford

JurisdictionEngland & Wales
JudgeLord Atkin,Lord Thankerton,Lord Russell of Killowen,Lord Wright,Lord Roche
Judgment Date25 June 1937
Judgment citation (vLex)[1937] UKHL J0625-1
CourtHouse of Lords

[1937] UKHL J0625-1

House of Lords

Lord Atkin

Lord Thankerton

Lord Russell of Killowen

Lord Wright

Lord Roche

Rose (Pauper)
Lord Atkin

My Lords,


This case involves a question of damages for personal injury in a claim brought by the administrator of the injured person under the provisions of the Law Reform (Miscellaneous Provisions) Act, 1934. The deceased was a girl of 23 who was seriously injured in a motor car collision by reason of the negligent driving of the Respondent, the Defendant. The accident happened on 4th August: the girl's right leg was seriously injured. On 6th August it was amputated: and on 8th August she died as the direct result of the injury to the leg. The Plaintiff, the father, who had taken out letters of administration to the girl's estate, sued in two capacities, first, to recover damages for himself and his wife as dependants under the Fatal Accidents Acts, 1846 to 1908, second, to recover damages for the benefit of the estate of his daughter under the provisions of the Law Reform (Miscellaneous Provisions) Act, 1934. The case was heard before Humphreys J. Under the first head he awarded £300 damages. The learned Judge further awarded the sum of £29 2s. 11d. special damage which included funeral expenses and this sum has been treated as awarded under the first head. On this sum of £329 2s. 11d. no further question has arisen. Under the second head the learned Judge awarded the sum of £500 for pain and suffering and the loss of the right leg. He refused to award any damages for loss of expectation of life, being of opinion that the only ground for such damages was the mental suffering caused to the girl by the shortening of her expectation of life: and that in the circumstances of this case no such pain or suffering was proved.


The Defendant appealed against the award of £500: and the Plaintiff cross-appealed against the refusal to award damages in respect of loss of expectation of life.


In the Court of Appeal all the members of the Court were agreed that the Judge was mistaken in thinking that the reason for giving damages for loss of expectation of life in the decision in Flint v. Lovell [1935] 1 K.B. 354, was mental pain and suffering from contemplation of the loss. The majority, however, Slesser and Greene L.JJ. held that no such damages could be recovered after the injured person had died. Greer L.J. was of opinion that the right to such damages vested in the injured person at the moment of injury and survived to the administrator. All the Judges were agreed that there could be no damages for loss of the leg other than for the loss for four days. They agreed that damages for pain and suffering and loss of leg should be reduced to £22. They were also all agreed that if damages for loss of expectation of life could be given the proper sum was £1,000. In the result the damages of £500 awarded by the trial Judge were reduced to £22. The appeal succeeded to that extent and the cross-appeal was dismissed.


The Appellant appeals therefore in respect of appeal and cross-appeal.


My Lords, it appears to me important to distinguish between two principles of law which are involved in this case. The first is that claims for personal injuries caused by tort by the common law did not survive to the executor. Actio personalis moritur cum persona. The second is that the law did not recognise the death of a person as giving a claim for damages. This had no application to the death of a supposed Plaintiff: for the first maxim prevented his personal representatives from suing. But if a third party negligently killed either wife or servant of the Plaintiff he could not recover. The rule is crystallised in The Amerika [1917] A.C. 38. The reasons given whether historical or otherwise may seem unsatisfactory, but it is of little purpose in a legal decision to criticise them, for the rule has the authority of this House. But the question is, does the rule affect the calculation of damages the right to which is vested in a living person? Now in Flint v. Lovell the Plaintiff was alive at the trial: indeed we are told that he is still alive. The Court of Appeal held that if a person suffered personal injuries from negligence there could be included in the estimate of damages consideration of the fact that by the wrongful injury his normal expectation of life had been shortened.


My Lords, this decision seems to me simple and inevitable: and I am satisfied that it has always been a usual element in assessment of damages in such cases. A man is injured in the prime of life: evidence is given that he is not likely to live more than two or three years: the tribunal estimating damages will take this fact into account not only in estimating actual money loss: for he may not be in a position to earn or be capable of earning anything, but as an item of personal damage. It does not seem to me necessary to say that a man has a personal right of the nature of property in his life: so that when it is diminished he loses something in the nature of valuable property. I do not say that this is not so: but I am satisfied that the injured person is damnified by having cut short the period during which he had a normal expectation of enjoying life: and that the loss, damnum, is capable of being estimated in terms of money: and that the calculation should be made. There seems to me to be a substantial distinction between damages awarded to the living because life is shortened: and damages to a third person because of some other person's death. I see no reason for extending the illogical doctrine of the Amerika to any case where it does not clearly apply. As to the supposed foundation of the doctrine in the law relating to felony I will only say that if the rule is really based on the relevant death being due to felony, it should long ago have been relegated to a museum: for deaths by negligence are often not felonious: and where they happen more than a year and a day after the wrongful act cannot be.


I am of opinion therefore that a living person can claim damages for loss of expectation of life. If he can I think that right is vested in him in life, and on his death under the Act of 1934 passes to his personal representative. I do not see any reason why the fact that the expectation is realised, i.e., that death comes at the time anticipated or sooner should make any difference. How the damages are to be calculated is a question which this House has not to decide, for there has been no quarrel with the amount fixed by the Court of Appeal in this case of £1,000. Whether the rich man's life has greater potentialities of pleasurable enjoyment than the poor man's, and what consideration should be given to physical weaknesses other than those caused by the accident and not affecting the duration of life I prefer to consider when, if ever, the points are raised. I can see the possibility of discussion in the provision of Section (2) ( c) that the damages "shall be calculated without reference to any loss or gain to his estate consequent on his death." Plainly this does not mean that his estate is not to gain by the award of any damages at all, for this would be absurd. Can the damages include a calculation of loss of income which the deceased would have received during normal expectation of life but would not have saved so as to increase his estate? I express no opinion. As to the damages for loss of the leg I think that it must be taken that the award of £1,000 assumed a normal two-legged life. If so no further damages can be given for the particular loss: and I express no opinion as to whether on another basis of calculation the Court of Appeal would be right in fixing the damages in respect of the loss of the leg for four days only.


I should add that I see no difficulty as to the alleged duplication of damages under the Act of 1934 and the Fatal Accidents Acts. If those who benefit under the last-mentioned Acts also benefit under the will or intestacy of the deceased personally their damages under those Acts will be affected. If they do not there seems no reason why an increase to the deceased's estate in which they take no share should affect the measure of damages to which they are entitled under the Act.


For these reasons I am of opinion that the appeal should be allowed: that the order of the Court of Appeal on appeal and cross-appeal be set aside: that the judgment of Humphreys J. be varied by increasing the sum awarded under the Law Reform (Miscellaneous Provisions) Act, 1934, to £1,022 and directing that judgment be entered for the Plaintiff for £1,351 2s. 11d. with costs: and that the Defendant do pay to the Plaintiff the costs of the appeal and cross-appeal and the costs in this House appropriate to a successful pauper Appellant.

Lord Thankerton

My Lords,


I concur.

Lord Russell of Killowen

My Lords,


The legal personal representative of the deceased girl, bringing an action under and by virtue of Section 1 (1) of the Law Reform (Miscellaneous Provisions) Act, 1934, recovered damages for the benefit of her estate under two heads, viz., (1) special damage, including funeral expenses, £29 2s. 11d. and (2) £500 for pain and suffering, including the loss of a leg. I disregard the further sum of £300 recovered for the benefit of dependants under the Fatal Accidents Acts, as to which no question arises. Humphreys J., who tried the action, refused to award any damages for the girl's loss of expectation of life, which damages had been claimed upon the authority of ( Flint v. Lovell 1935 1 K.B. 354). He thought that the basis of that decision was the view that damages should be awarded for the suffering caused to a person by the knowledge that the term of her life had been shortened, and that as there was no evidence that any such suffering had been caused to the girl, no damages could be awarded.


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