Wise v Kaye
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sellers,LORD JUSTICE UPJOHN,LORD JUSTICE DIPLOCK |
| Judgment Date | 01 December 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J1201-1 |
| Date | 01 December 1961 |
| Court | Court of Appeal |
(a person of unsound mind so found by Inquisition, by her father and next friend Frank Wise
[1961] EWCA Civ J1201-1
Lord Justice Sellers
Lord Justice Upjohn and
Lord Justice Diplock
In The Supreme Court of Judicature
Court of Appeal
Mr. Justice Finnemore – Oxford
Mr. DAVID CROOK-JOHNSON. Q.C., Mr. B.H-. EVELEIGH, Q.C. and Mr. O.E. POPPLEWELL (instructed by Messrs. L. Bingham & Co.) appeared on behalf of the Appellants (Defendants).
Mr. R.V. CUSACK, Q.C. and Mr. PETER CRAWFORD (instructed by Messrs. Trower, Still & Keeling. Agents for Messrs. Thomas Mallam, Grimsdale & Co., Oxford) appeared on behalf of the Respondent (Plaintiff).
: At the Oxford Assizes on the 3rd February, 1961, Mr. Justice Finnemore awarded the plaintiff £18,279. 8s. 11d. damages against both the defendants, who now appeal from that order alleging that it is excessive and in some respects the subject of misdirection. The appellants do not contest liability for the appropriate damages.
The plaintiff was a passenger in a Standard Motor car driven by the defendant Robert Frank Rise when about midnight on the 24th/25th May, 1958, it came into collision on the main London to Oxford road about a mile from Tetsworth with a Ford motor van driven by John William Kaye. From the moment of that impact the plaintiff has remained unconscious up to the present time over three and a half years later. She was taken to the Radcliffe Infirmary and there, and at another hospital to which she has recently been moved, by surgical skill, modern medicine and devoted nursing she has been kept alive. No one could be nearer to death and survive, it would seem.
The learned judge described the plaintiff as follows: "She was a young woman of I think 20 years old, attractive looking as her photographs show, full of life as a young person of that age ought to be, living in a happy home, interested in outdoor games, especially in hockey, enjoying all the amenities of life as a young person of good health and understanding and a happy background is entitled to enjoy, engaged to be married, in a good position with prospects of further advancement. Then in a moment all this was altered and, put in a sentence or so, literally everything which makes life in any shape worth living was taken from her".
The total damages of £18,279. 8s. 11d. are made up of (1) £879. 8s. 11d. special damages being the loss of earnings which had accrued to the date of the trial, (2) £2,000 general damages for loss of probable future earnings, (3) £400 for loss of expectation of life, and (4) £15,000 general damages.
Item I was admitted at the trial.
Item 2 was said to be erroneous in principle and reliance was placed on a recent decision of another division of this Court in ( Oliver v. Ashman 1961 3 Weekly Law Reports, page 669). In making an award of £2,000 for the loss of probable future earnings the learned judge expressly agreed with Mr. Justice Streat-feild's view in ( Pope v. Murphy 1961 I Queen's Bench, page 222), and assessed the loss over the probable life of the plaintiff assuming she had had no accident and not on the period to which it would probably be curtailed by the accident. The judgment of the Court of Appeal (Lords Justices Pearce, Willmer and Pearson) in Oliver v. Ashman was delivered after Mr. Justice Finnemore's judgment and decided to the contrary effect. In that case the Lord Chief Justice, Lord Parker, the trial judge, taking the same view as Mr. Justice Streatfeild and Mr. Justice Finnemore, had held that a boy aged only 20 months when he received a serious brain injury in a motor accident had lost the opportunity of earning and obtaining such amenities as his earnings could buy and the Chief Justice took his whole prospective life into consideration in an award of damages totalling, under all heads of claim, £11,000. It was held on appeal that it was erroneous to take into account loss of earnings during the years of which the plaintiff would, in all probability, be deprived by reason of his injuries. But in the case of so young a child no real assessment could be made and the court did not allow the error to affect the award. In the present case Mr. Justice Finnemore said it would not make very much difference whether he took the plaintiff's whole prospective life if uninjured or the shorter existence but as he investigated carefully the basis of the claim I think it probably included some award however slight for the longer period. Were it not that the special damage of over £800 is for loss of earnings covering about three years of the plaintiff's total incapacity to earn I doubt if the assessment would have necessitated any variation but the further years of the plaintiff's life are uncertain and limited and I would reduce the damages under this head of claim from £2,000 to£1,500, which makes allowance for the sum recovered under Item I for the same kind of loss. Although the plaintiff was in good employment there were prospects of an early marriage and at least a likelihood, if there had been no accident, of a cessation or interruption of work in a few years immediately ahead.
It was accepted at the Bar without argument that Oliver v. Ashman covered the point under this head of claim but counsel for the respondent asked to be allowed to keep the point open. In these circumstances I would express with respect a doubt as to whether a claim for loss of earnings in the years, by which life is shortened could never arise. If a man before an accident habitually put aside £500 a year from his earnings and there was every probability of his continuing to do so for X years ahead I do not at present, and without the matter being argued before us, see why the fact that he will only live by reason of the accident for X minus 5 years should deprive him when alive of compensation; for the £500 he would have saved in each of the five lost years subject to the necessary allowances for the uncertainties of life and the immediate payment of a lump sum. If he had such a subsisting claim it would pass, it would seem, under the Act, to his personal representative for the benefit of his estate, as a separate head of claim independent of a claim for loss of expectation of life.
Such a claim would be rare. The many cases which have come before the courts have been for the most part cases where any assessment of future earnings in the lost years and more especially of any net loss therein would be incalculable and too speculative and doubtful for an award of damages. There was no such claim in Benhan: v. Gambling, which was restricted to a claim for damages for loss of expectation of life only. Similarly in Flint v. Lovell and Rose v. Ford, to which I refer later; and it would seem that these cases are no authority in relation to a claim for loss of earnings as distinct from a claim for damages for loss of expectation of life.
Item 3, £400 for loss of expectation of life, was not disputed by the appellants, who admitted that the evidence justified it. No doctor could say how long the plaintiff will, live but it was accepted that she cannot be expected to endure for anything approaching a normal span of life. There is no hope of a real recovery and but little hope even of a degree of consciousness, although the plaintiff still lives, breathing with periodic aid from a tube in the lungs, revealing faint signs of a waking and sleeping rhythm and maintaining a steady weight. The plaintiff cannot eat or drink but her body can obtain nourishment from food fed to her and so she lives on.
Although the £400 for loss of expectation of life was un-disputed, the principles underlying such a head of claim have been raised in argument and the quantum has been considered in the judgment of one of my brethren. I think it desirable therefore to refer to it before considering the main element of damages, the £15,000 damages awarded under the last item of award
It would appear that the assessment of £400 bore reference to the conventional figure, as it has become, under the decision of the House of Lords in ( Benham v. Gambling 1941 Appeal Cases page 157). This is not however strictly a case in that category as the injured party is alive with the most exceptional feature that she has regained unconscious and therefore, one concludes, wholly unaware of and untroubled by any knowledge of her loss. The decision in ( Flint v. Lovell 1935 I King's Bench, page 354), approved in the House of Lords in ( Rose v. Ford 1937 Appeal Cases page 826), is, with that qualification, in point. There the plaintiff, a man of 70, was alive at the trial and in an sward of £4,000 general damages Mr. Justice Acton had included a sum to compensate him for the years of his life which on the medical evidence he was in all probability likely to lose because of his injuries. The court held that the judge was entitled to take into consideration as one of the elements of damage the fact that the plaintiff's normal expectation had been materially shortened.
Shortly after that decision the Law Reform (Miscellaneous Provisions) Act, 1934, came into force and it provided that all causes of action (with some specific qualifications and exceptions which are not material here) subsisting at the death vested in a deceased person should survive for the benefit of the estate. If a party had been injured by the negligence of another and had lived for some time incurring medical and hospital expenses and loss of earnings, as well as pain and suffering, but died before a claim was heard and determined there was, prior to the Act, no redress against the tortfeasor for such accrued loss and damage. The Act altered this and it also had the effect that a claim for loss of expectation of life, established by Flint v. Lovell, survived as a...
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