West (H.) & Son Ltd v Shephard

JurisdictionUK Non-devolved
JudgeLord Reid,Lord Tucker,Lord Morris of Borth-y-Gest,Lord Devlin,Lord Pearce
Judgment Date27 May 1963
Judgment citation (vLex)[1963] UKHL J0527-2
Date27 May 1963
CourtHouse of Lords
H. West & Son Ltd. and Another

[1963] UKHL J0527-2

Lord Reid

Lord Tucker

Lord Morris of Borth-y-Gest

Lord Devlin

Lord Pearce

House of Lords

Upon Report from the Appellate Committee, to whom was referred the Cause H. West & Son Limited and another against Shephard by her next friend Frank Arthur Shephard (A.P.), that the Committee had heard Counsel, as well on Monday the 18th, as on Tuesday the 19th, Wednesday the 20th and Thursday the 21st, days of March last, upon the Petition and Appeal of H. West & Son Limited, whose registered office is at 3 Grosvenor Road, Ilford, in the County of Essex, and of Ernest Thomas Mapes, of 12 Inverness Avenue, Southend-on-Sea, in the County of Essex, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 4th of October 1962, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Phyllis Mary Shephard by her next friend Frank Arthur Shephard, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 4th day of October 1962, in part complained of in the said Appeal, be, and the same is hereby. Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by her in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Costs incurred by the Respondent in respect of the said Appeal to this House be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act, 1949, as amended by the Legal Aid Act, 1960, the amount thereof to be certified by the Clerk of the Parliaments.

Lord Reid

My Lords,


I have had an opportunity of reading the speech which has been prepared by my noble and learned friend, Lord Devlin, and I am in general agreement with it. I need not set out the facts of this case, and I can go straight to the question of general importance—What is the basis on which damages for serious injuries are awarded? The determination of that question in the ordinary case where the injured person is fully conscious of his disability will go far to decide how to deal with a case like Wise v. Kaye [1962] 1 Q.B. 638, where the injured person was wholly unconscious with no prospect of ever regaining consciousness or like the present case where the Respondent is only conscious to a slight extent.


In the ordinary case of a man losing a leg or sustaining a permanent internal injury, he is entitled to recover in respect of his pain and suffering: if he is fortunate in suffering little pain he must get a smaller award. So it is not disputed that where an injured person does not suffer at all because of unconsciousness he gets no award under this head. Nothing was awarded in Wise's case and nothing has been awarded in this case. On the other hand no one doubts that damages must be awarded irrespective of the man's mental condition or the extent of his suffering where there is financial loss. That will cover the cost of treatment or alleviation of his condition just as much as it covers the cost of repairing or renewing his property. And it will cover loss of earning power: there may be a question whether some deduction should be made where his outgoings will be less than they would have been if there had been no accident, so as to reach his net financial loss, but that does not arise in the present case.


The difficulty is in connection with what is often called loss of amenity and with curtailment of his expectation of life. If there had been no curtailment of his expectation of life the man whose injuries are permanent has to look forward to a life of frustration and handicap and he must be compensated, so far as money can do it, for that and for the mental strain and anxiety which results. But I would agree with Sellers, L.J. in Wise's case that a brave man who makes light of his disabilities and finds other outlets to replace activities no longer open to him must not receive less compensation on that account.


There are two views about the true basis for this kind of compensation. One is that the man is simply being compensated for the loss of his leg or the impairment of his digestion. The other is that his real loss is not so much his physical injury as the loss of those opportunities to lead a full and normal life which are now denied to him by his physical condition—for the multitude of deprivations and even petty annoyances which he must tolerate. Unless I am prevented by authority I would think that the ordinary man is, at least after the first few months, far less concerned about his physical injury than about the dislocation of his normal life. So I would think that compensation should be based much less on the nature of the injuries than on the extent of the injured man's consequential difficulties in his daily life. It is true that in practice one tends to look at the matter objectively and to regard the physical loss of an eye or a limb as the subject for compensation. But I think that is because the consequences of such a loss are very much the same for all normal people. If one takes the case of injury to an internal organ I think the true view becomes apparent. It is more difficult to say there that the plaintiff is being paid for the physical damage done to his liver or stomach or even his brain, and much more reasonable to say that he is being paid for the extent to which that injury will prevent him from living a full and normal life and for what he will suffer from being unable to do so.


If that is so, then I think it must follow that if a man's injuries make him wholly unconscious so that he suffers none of these daily frustrations or inconveniences, he ought to get less than the man who is every day acutely conscious of what he suffers and what he has lost. I do not say that he should get nothing. This is not a question that can be decided logically. I think that there are two elements, what he has lost and what he must feel about it, and of the two I think the latter is generally the more important to the injured man. To my mind there is something unreal in saying that a man who knows and feels nothing should get the same as a man who has to live with and put up with his disabilities, merely because they have sustained comparable physical injuries. It is no more possible to compensate an unconscious man than it is to compensate a dead man. The fact that the damages can give no benefit or satisfaction to the injured man and can only go to those who inherit the dead man's estate would not be a good reason for withholding damages which are legally due. But it is, in my view, a powerful argument against the view that there is no analogy between a dead man and a man who is unconscious and that a man who is unconscious ought to be treated as if he were fully conscious.


It is often said that it is scandalous that it should be cheaper to kill a man than to maim him, and that it would be monstrous if the defendant had to pay less because in addition to inflicting physical injuries he had made the plaintiff unconscious. I think that such criticism is misconceived. Damages are awarded not to punish the wrong-doer but to compensate the person injured, and a dead man cannot be compensated. Loss to his estate can be made good, and we can give some compensation to those whom he leaves behind. Perhaps we should do more for them—but not by inflating the claim of the dead man's executor, for then the money may go to undeserving distant relatives or residuary legatees or even to the Treasury if he dies intestate and without heirs. And it is already the case that it may benefit the defendant to injure the plaintiff more severely. If he is injured so severely that he can only live a year or two at most the damages will be much less than if he is less severely injured so that he may survive for many years. And that brings me to the other matter of loss of expectation of life.


There is no dispute about the claim for loss of expectation of life in this case, but the Appellant relies on Benham v. Gambling [1941] A.C. 157, so I must deal with the matter at least in a general way. One must have in mind the position when Benham's case came before this House. It had been established in Rose v. Ford [1937] A.C. 836 that a plaintiff is entitled to damages for the tortious shortening of his expectation of life whether or not he knew that this expectation had been curtailed. But the measure of damages was left so vague that in practice this head of claim got out of hand. In Mills v. Stanway Coaches, Ltd. [1940] 2 K.B. 334, Lord Goddard said that "damages awarded under this head have increased and are increasing and ought, as I think, to be diminished". And then in 1941 this House decided that these damages must be diminished. I cannot interpret that decision as anything other than a decision based on policy, but justified by assumptions more philosophical than legal. The decision stands that damages under this head must be limited to a low conventional figure and I would be the last to question that. But I do not accept that the decision has established that damages under other heads must be assessed...

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