Hay v Hughes
| Jurisdiction | England & Wales |
| Judge | LORD EDMUND-DAVIES,LORD JUSTICE BUCKLEY,LORD JUSTICE ORMROD |
| Judgment Date | 17 October 1974 |
| Judgment citation (vLex) | [1974] EWCA Civ J1017-8 |
| Docket Number | 1970 H. No. 1258 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 October 1974 |
[1974] EWCA Civ J1017-8
In The Court of Appeal
On Appeal from the High Court of Justice
Queen's Bench Division
Lord Edmund-Davies
Lord Justice Buckley
Lord Justice Ormrod
MR I C. R. McCULLOUGH, Q.C. and MR. N. BAKER (instructed by Messrs. Field Fisher and Mortineau, London, Agents for Messrs. Moss, Toone & Deane of Loughborough) appeared on behalf of the Plaintiffs/Respondents.
MR. M. TURNER. Q.C. and MR. A. TAYLOR (instructed by Messrs. Robert Walters & Co., Birmingham 3) appeared on behalf of the Defendant/ Appellant.
The defendant appeals from the judgment of Mr Justice Reeve dated October 24th, 1973 & an action brought against him under the Fatal Accidents Acts, 1846 to 1959 and the Law Reform ( Miscellaneous revisions) Act, 1934 the appeal is said to raise problems in the law of damages hitherto unconsidered by the Courts or, if considered, not always satisfactorily solved and we have been referred to a very large number of authorities on the subject during its hearing.
The plaintiffs are the administrators of the estates of Francis Hay, deceased, and of his wife Patricia, both of whom were killed in a motor accident on January 10th, 1970, for which the defendant admitted liability, The action was brought on behalf of their estates and also on behalf of their two sons, born on July 29th, 1965 and May 24th, 1967, and accordingly 4 ½ and 2 ½ years old when their parents were killed. The total award was for £20,120.30p, £16,400 being in respect of the Fatal Accidents Acts claims (£7,900 relating to the death of the father and £8,500 to the death of the mother) and £l,110.30p under the 1934 Act, the balance consisting of interest. The appeal relates only to the awards under the 1846 Act, as amended, which the defendant challenges as being wrongly arrived at and excessive, while by a respondent's notice the plaintiffs seek to have both awards increased.
The relevant facts, which were set out in detail by Mr. Justice Reeve may for present purposes be summarised in this way. When the fatal accident occurred, Mr. Hay was nearly 29, his wife nearly 25 They lived with their children in a 3-bedroom house which he had bought on mortgage, After working for some years with the National Coal Board, he became a trainee welder in August, 1969, and soon showed considerable aptitude. His average weekly take-home pay at the time of his death was nearly £24.00. His chances of promotion were good and, had they been realised he would have been earning net weekly wages of £40.00 by April, 1973 when the case was first heard. The learned Judge accepted that this net wage would has been apportioned within the family circle in the mannerindicated by plaintiffs counsel. On this basis he concluded that the total annual dependency of the two boys on their father at the date of trial was £1,100. But, recognising that, while exceeding the figure prevailing at the date of the accident this was also less than the figure appropriate for the future, he said that he would bear those competing considerations in mind when considering the multiplier. He eventually applied a multiplier of 9 to both claims under the Fatal Accidents Acts.
Section 2 of the 1846 Act provides that, "the jury may give such damages as they think proportioned to the injury resulting from such death to the parties for whom and for whose benefit such action shall be brought". The relevant facts in connection with the orphaned children's' dependency on their father were not disputed, but the position was markedly different in respect of the claim brought in relation to the mother's death. I quote from the words of the learned trial Judge; "After the death of their parents the two boys were taken in by their maternal grandmother (Mrs, Toone) who has cared for them ever since, except for one and a half days at weekends and for some holiday periods when they are cared for by their paternal grandparents. Mrs. Toone has received no payment for keeping the children, and she candidly admitted to me that the question of payment never entered her head when she decided to act as mother-substitute for these two orphans. It is true that on the 18th March, 1972 she signed a letter, addressed to the Plaintiffs in their capacity as administrators of the estates of Mr and Mrs. Hay, in which she stated: I am writing to advise you that as from this date I am charging the estate of the above-named deceased the sum of £3 per week in respect of each of the two children — This total sum of £10 is for my time and trouble in looking after the said children' No secret has been made of the fact that such a letter was written on legal advice in the hope that the Plaintiffs case on the quantum of damages to be recovered in these proceedings would thereby be strengthened; and Mrs. Toone freely admittedthat she intends to continue to care for the children irrespective of whether she is or is not paid for so doing. It is now conceded by counsel that the letter is irrelevant to the assessment of damages.
"Mrs Hay (deceased) was not at any material time engaged in gainful employment Her energies were exclusively devoted to caring for the family as a wife and as a mother. The children have, by her death, been deprived of the full-time services of a mother."
As the cases repeatedly remind us, the starting point must always be the wording of the Fatal Accidents Act, 1846. That these two infants were "injured" by the death of their mother is not, in my judgment, open to doubt Thereby they were deprived of her services which had that pecuniary value which, ever since Franklin -v- S.E. Railway (1858 3 H & N. 211), has been held to be the basis of an award under the Act. What is contested is how the damages proportionate to that injury are to be arrived at, and the difficulty is due to the two-fold nature of the exorcise involved. This was explained in Malvon -v- Plummer (1964 1 Q.B. 349) by Lord Diplock who said (at p. 349): The pecuniary loss which the Court has to assess is a loss which will be sustained in the future. This involves making two estimates, videlicet, (l) what benefits in money or money's worth arising out of the relationship would have accrued to the person for whom the action is brought from the deceased if the deceased had survived but has been lost by reason of his death; and (2) what benefit in money or money's worth (subject to certain statutory exceptions) the person for whom the action is brought will derive from the death of the deceased which would not have been enjoyed had the deceased lived. The difference between these two estimates is the measure of damages recoverable under the Fatal Accidents Acts, 1846 to 1959".
As to the first estimate, we begin with the undoubted fact that, by reason of her premature death, these two very young children lost the care which their 25 year old mother could reasonably have been expected to continue to bestow upon them for several years to come. In Pevec -v- Brown (1964 108 S.J. 219) & widower claimed on behalf of himself and his infant son damages in respect of his wife's death, and contended that compensation should be awarded for loss, not of a mother's love, but for the disadvantage of the care which the child would receive from the nanny whom the father had engaged as compared with that which he would have received from his mother had she survived. The report is a very short one, but it appears that, in rejecting this submission, Mr. Justice Megaw adverted to the "irrecoverability of compensation for the father's loss of the companionship of his wife" and, saying that there was no distinction in principle in relation to the child, held that no damages should be awarded in respect of any element of the child receiving less care than he would have done had his mother survived. Were it now necessary to decide the point, I am not at present convinced that I should take the same view, and it is to be noted that in Burgess -v- Florence Nightingale Hospital (1955 1 All E.R. 511, at 513) Mr. Justice Devlin expressed the view that damages should be awarded "for what the child lost by the wife's death, both in respect of the school fees and of what she might have done for the child". While it is undoubtedly established that damages can be awarded under the Fatal Accidents Acts only in respect of pecuniary loss and not as a solatium for injured feelings (see Taff Vale Railway -v- Jenkins 1913 A.C.I, per Lord Haldane, V.C. at p. 4, and Davies -v- Powell Duffrvn, 1942 A.C. 601, at 617), so that these two children could recover nothing for the deprivation of their mother's love, yet it may sometime have to be considered whether Mr. McGregor is not right in saying ('McGregor on Damages', 13th Ed., para 1234) that "it may be argued that the benefit of a mother's personal attention to a child's upbringing, morals, education and psychology, which the services of a housekeeper, nurse or governess could never provide, has in the long run a financial value for the child, difficult as it is to assess".
Be that as it may, in the present case it was accepted by the defance that in different circumstances these children would have been entitled to damages for the quantified loss of their mother's services.Mr Turner conceded that if a ninny or housekeeper had been engaged by the plaintiffs to look after these children, the cost of employing her would be recoverable from the defendant ( as in Berry -v- Humm 1915 1 K.B. 627 and Jeffrey -v- Smith 1970 R.T.R. 279) and, furthermore, that the salary of £15 a week claimed by the plaintiffs and adopted by the learned trial Judge as the estimated cost of obtaining...
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