Between: SKELTON
And: COLLINS

Judges: Kitto J
Taylor J
Menzies J
Windeyer J

Owen J

Subject References:
Damages
Assessment
Personal injury
Loss of earning capacity
Loss of expectation of life
Loss of amenities
Pain and suffering
Plaintiff permanently unconscious
Practice and procedure
Precedent
House of Lords

Judgment date: 7 March 1966

MELBOURNE

Judgment by:
OWEN J

Two questions of general importance arise in this appeal. One of them is whether, in assessing damages for loss of earning capacity in a case in which a plaintiff's expectation of life has been shortened as a result of his injuries, the period to which regard is to be had is the probable length of the plaintiff's working life had he not been injured or merely to the period that is left to him as the result of his injuries. In Oliver v Ashman ^[F213] and Wise v Kaye, ^[F214] the Court of Appeal held that the latter was the relevant period and the learned trial judge in the present case naturally followed those decisions. For the reasons which my brother Taylor has elaborated and with which I agree, I am unable, with respect, to accept those decisions as correctly laying down the law on this point and in these circumstances I agree with him that in the present case the sum of PD2,000 is an appropriate amount to allow under this head.

The other question is whether we should accept and apply to the present case the reasoning which, if I have understood it correctly, led the majority of the House of Lords to decide as it did in H. West & Son Ltd v Shephard. ^[F215] Where, as here, the injured person has at no time been conscious and will never be conscious of the fact that his life has been shortened so that no question of pain and suffering arises, it seems to me that Benham v Gambling ^[F216] clearly pointed to the conclusion that no more than a moderate sum should be awarded for the diminution of his expectancy of life and for the reasons, it seems to me, which my brother Kitto has given in his judgment. With that conclusion I agree. But I cannot reconcile the decision in Benham's Case ^[F217] with that reached by the majority of the Court of Appeal in Wise v Kaye ^[F218] which was approved by the majority of the House of Lords in West's Case. ^[F219] There is no doubt that if the majority view in those two cases is applied in the present case the amount awarded by the learned trial judge for the diminution of the plaintiff's expectation of life was inadequate since, for reasons which he gave, he based his assessment upon what had been said by Lord Reid and Lord Devlin, who were in the minority in West's Case ^[F220] and whose opinions seem to me to find much support in Benham's Case. ^[F221] But before deciding which line I should adopt, I think it desirable to set out what I believe to be the approach which we, in the High Court, should now make when we are required to consider whether we should follow a decision of the House of Lords. In Piro v W. Foster & Co Ltd ^[F222] Latham C.J., after referring to the desirability that there should be uniformity of decision on matters of legal principle and expressing the opinion that to achieve that end this Court and other Courts in Australia should as a general rule follow decisions of the House of Lords, went on to say that "it will be a wise general rule of practice that in cases of clear conflict between a decision of the House of Lords and of the High Court, this Court, and other courts in Australia, should follow a decision of the House of Lords upon matters of general legal principle". ^[F223] To much the same effect were the remarks of other members of the Court. In pursuance of this rule of practice the High Court has on occasions overruled or refused to follow its own earlier decisions when they were thought to have been in conflict with the law as later laid down in English courts. For example, in Waghorn v Waghorn, ^[F224] the Court for this reason refused to follow its earlier decision in Crown Solicitor (S.A.) v Gilbert, ^[F225] and in Piro's Case ^[F226] it overruled its earlier decision in Bourke v Butterfield & Lewis Ltd. ^[F227] But the decision of the House of Lords in Director of Public Prosecutions v Smith ^[F228] forced a reconsideration of the earlier policy based on Piro's Case. ^[F229] In Parker's Case ^[F230] Dixon C.J. expressed the opinion, with which every member of the Court agreed, that that policy should no longer be followed and went on to say that no court in Australia should follow Smith's Case. ^[F231] This statement is not to be taken to have meant that judgments of the House of Lords are not to be treated by this and every other court in Australia with all the respect that is rightly due to decisions of the ultimate appellate tribunal in England. But it does mean that if the High Court comes to the firm conclusion that a decision of the House of Lords is wrong it should act in accordance with its own views. And I think it also follows from Parker's Case ^[F232] that we should depart from the statement in Piro's Case ^[F233] that, where there is a clear conflict between a decision of the House of Lords and of the High Court upon a matter of general legal principle, other courts in Australia should follow the decision of the House of Lords in preference to the High Court. In Houston v Stone ^[F234] Jordan C.J. said:

"In my opinion, however, it is the duty of this Court to treat itself as bound by a decision of the High Court unless it is clearly in conflict with some later decision of the High Court itself, or of the Privy Council, which is directly in point. The High Court is the ultimate Court of Appeal for Australia, subject only to the possibility of an appeal to the Judicial Committee of the Privy Council. That Court may or may not be disposed to defer to a decision of the House of Lords in preference to an inconsistent decision previously given by itself; but unless and until it is ruled that the Supreme Court of a State is at liberty to act as arbiter between these tribunals and to follow the House of Lords in preference to the High Court, or that it is its duty in every case to prefer the former, I think that only the High Court itself or the Privy Council can determine that a decision of the High Court should no longer be treated as authoritative. This was the principle upon which this Court acted in Hall v Wilkins. ^[F235] In my opinion, it makes no difference that the House of Lords may have expressly referred to the decision of the High Court which is sought to be called in question and refused to guide itself by it". ^[F236]

This passage, in my opinion, defines the course that should now be followed. Where, however, there is no decision of the High Court on a question that arises in some other Australian court and a decision of the House of Lords is directly in point, the court which is called upon to decide the question will no doubt follow the decision.

Bearing these matters in mind, the conclusion to which I have finally come in the present case is that the principles laid down in Benham's Case ^[F237] which were accepted by Lords Reid and Devlin in West's Case ^[F238] should be followed and applied in Australia and this necessarily involves a rejection of the reasoning upon which the majority of their Lordships in the last-mentioned case and of the Court of Appeal in Wise's Case ^[F239] based their conclusions.

I agree, therefore, that the total award in the present case should be that proposed by my brothers Kitto and Taylor.