Spittle v Bunney
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE CROOM-JOHNSON,LORD JUSTICE WOOLF |
| Judgment Date | 05 February 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0205-1 |
| Docket Number | 88/0088 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 February 1988 |
[1988] EWCA Civ J0205-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF MR JUSTICE TURNER
Royal Courts of Justice
Lord Justice Dillon
Lord Justice Croom-Johnson
Lord Justice Woolf
88/0088
(Together Being The Administrators of The Estate of Glynis Ann Hall, Deceased)
and
(A Minor Suing By Her Aunt and Next Friend, The First Plaintiff, Daphne Spittle)
and
MR R.N.B. CLEGG Q.C. and MR H.D. HALLIDAY, instructed by W.I. Corlett Esq., appeared for the Appellant (Defendant).
MR R.M. STEWART Q.C. and MR T.G. HARTLEY, instructed by Messrs Dibb & Clegg with Messrs Ahwin White & Co. (Barnsley), appeared for the Respondents (Plaintiffs).
I will ask Lord Justice Croom-Johnson to give the first judgment.
On 18th June 1979 Kate Elizabeth Hall, then aged three years and two months, was with her mother Glynis Ann Hall on the pavement in Brierley, Barnsley, when a van driven by the defendant mounted the pavement, injured Kate, and killed her mother who was aged 28. Kate's father and mother were not married, but were living together. He seems to have been the support of the little family. Since the accident he has assumed no responsibility towards his child, and he has fallen completely out of the picture.
After the accident Kate was detained in hospital overnight and was discharged the following day. Her mother's sister, Mrs Daphne Spittle, lives with her husband and their own two young children, one older and one younger than Kate. She took Kate into her family, and Kate has lived with them ever since. Mrs Spittle has been a loving substitute mother, and Kate now calls her "Mum".
The first and second plaintiffs are the administrators of the estate of Glynis Hall. They brought proceedings under the Fatal Accidents Acts, the sole beneficiary being Kate Hall. Those proceedings are the subject of this appeal. Proceedings were also brought on behalf of the estate under Law Reform (Miscellaneous Provisions) Act 1934 for the funeral expenses of £181 and for the loss of the mother's expectation of life (which last does not seem to have received an award). There is no appeal in respect of that claim. Thirdly, Kate sued for damages for her personal injuries, and there is an appeeal against that award. In addition, there was an assessment of interest payable on the damages awarded under the Fatal Accidents Acts: that is also the subject of appeal. The writ was issued on 21st May 1982. The trial did not take place until December 1986, seven and a half years after the death, by which time Kate was ten and a half years old.
It will be convenient to deal with the three appeals in the order in which they were argued.
There was an injury to her left index finger, resulting in some loss of pulp at the end, but not exposing the bone. It healed in two weeks. According to an agreed medical report dated 2nd October 1980, the pulp is foreshortened slightly, and the nail is short. There was still some remaining tenderness. The surgeon reported that "there is minimal tissue loss and manual dexterity in the future should not be impaired. The alteration in the shape of the nail and the finger end will constitute a minor cosmetic deformity when she reaches her teens." He forecast that the injury would return to total comfort. The trial judge inspected the finger, and recorded his observation that the end joint of the finger is short by about one-third of its natural length as compared with the right index finger, and about half of the length of the nail missing. He concluded that between the surgeon's examination and his own inspection the finger had returned to total comfort.
Besides the finger, there were other trivial physical injuries. There was a small laceration in the left parietal region with a large haematoma underneath it, and abrasions in the left temporal and frontal regions of the head. There were further abrasions over the face and both legs. After healing there remained no obvious residual damage.
The major injury from the accident was emotional. Her aunt gave evidence about Kate's immediate reaction to the death of her mother. She would not eat or drink. She would wake screaming and crying, and had difficulty in going back to sleep. She lost her bladder and bowel control for a year. For the first year and a half after the accident she was extremely difficult to raise and her behaviour was disturbed. At five years of age she went to school. Her scholastic ability was in the high average range, but she would not mix with other children. Mrs Spittle cared for her very competently, patiently and intelligently, and by 1984 Kate's behavioural and sleep problems had settled.
Kate's progress was traced in two agreed psychological reports dated 28th September 1982 and 20th May 1986. Her intelligence is high, but she would not in the early days mix with other children at school and was therefore socially isolated. By the time of the second report, when she was ten years old, the report was:
"Kate's behavioural and sleep problems have been settled for the last two years although she is still unable to deal with small problems on her own. She is a steady, sensible, loving and helpful child whom the Spittles enjoy very much. However, for her age, she does still need an extra bit of security and confidence boosting from time to time. Kate can still feel insecure when subjected to any kind of change or stressful situation but the Spittles are able to handle these occasions by providing her with extra support."
The conclusion was that Kate was happy and well-adjusted, making friends and mixing well both at home and at school, but would still need extra support and careful handling when in situations of stress or change.
The learned judge awarded £8,000 general damages, divided as to £3,000 for the purely physical, and £5,000 for the psychological, effects. The defence submits this was too high.
The finger injury was slight indeed, even allowing for the age and sex of the plaintiff, and in my view the sum awarded was excessive. We have been referred, by way of a cross-check, to four cases in Kemp on the Quantum of Damages, all of which were since 1979 and in three of which the injuries can be said to be more serious than Kate's. Even after updating the awards to allow for the decline in the value of money, in none of those cases was the award as much as half the sum awarded to her. In the case which on its facts was most near to Kate's, the updated award was approximately one-quarter of hers, and the Court of Appeal declined to increase it. The sum awarded for the finger injury was appealably high. I would reduce it to £1,500.
The emotional or psychological damage was not of a kind which fits readily into a bracket of damages. No comparable case was referred to us. The sum awarded was high. The description of Kate's behaviour given by Mrs Spittle was necessarily in the early period after the accident. Thereafter there was improvement which by the time of trial had left very little indeed by way of residual effects. As the judge said, the kind and sympathetic mothering by Mrs Spittle was largely responsible for the improvement, and Kate was fortunate to have so good an aunt who, by her kindness and sympathy, has produced a good result. Although I have said the award seems high, it is a sum which I am not sufficiently confident is appealably high. Such damages must otherwise be left to the trial judge to assess, and I would not reduce this part of the award.
The particulars in the statement of claim were:
"Prior to her death the deceased was aged 28 years and used to look after the Third Plaintiff. She intended when the Third Plaintiff began to attend school to obtain employment and would by her wages therefrom have maintained the Third Plaintiff."
No evidence was led to prove the second sentence of those particulars and no assessment was made on that basis. No actual financial loss was alleged. The case was advanced on the possibly more remunerative ground that Kate had lost the services provided to her by her mother and that those services should be evaluated and quantified as a capital sum. If they had been replaced, such as by hiring someone to perform them, the reasonable cost of hire might be claimed, but that has not happened.
Where orphans are claimants under the Fatal Accidents Acts, what happens to them may vary, and the valuation of their loss must depend on the facts of the case. First, there must be a loss which is capable of being evaluated in money terms. Hay v. Hughes [1975] Q.B. 790, was a case where both parents were killed in a motor accident, and the case was brought on behalf of two small children aged four and a half and two and a half, alleging loss of dependency in the usual financial way from the death of their father, and also the loss of the services of their mother. At page 810 Buckley L.J. said:
"Mr. and Mrs. Hay's children doubtless suffered greviously in a variety of ways in consequence of their parents' death…They have lost the benefits and happiness it was to be expected they would derive as they grew up from the companionship of their father and mother. They have lost parental love. They have lost the joys of a happy home. These losses cannot be assessed in monetary terms and so cannot support a claim for damages."
After dealing with the loss of the financial support from the father, he continued:
"Although damages cannot be recovered for the loss of their mother's love, they can be recovered for the loss of those services capable of being...
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