Skelton v Collins
115 CLR 94(Judgment by: KITTO J)
Between: SKELTON
And: COLLINS
Judges:
Kitto JTaylor 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:
KITTO J
I have had the advantage of reading the judgment prepared by my brother Taylor. The facts of the case are there sufficiently stated, and I may say at once that I share his Honour's reasons for thinking that the judgment of the Supreme Court should be varied in regard to the amount allowed for the plaintiff's economic loss. What I have to say will relate to the challenge that has been made to the trial Judge's allowance of PD1,500 under the head of general damages. He allowed nothing for pain and suffering, either physical or mental; and in this he was plainly right, for the plaintiff was rendered unconscious by the collision, had remained unconscious ever since, and, as his Honour found, would never regain consciousness.
There are only two forms of loss for which the PD1,500 could have been intended as compensation, namely those which are often described, conveniently if not very happily, as a loss of expectation of life and a loss of amenity during the reduced life span. Each is a matter properly to be taken into account in assessing damages, but judicial opinion as to the way in which the task of allowing for them should be approached has not been unanimous. Obviously each may have a subjective as well as an objective aspect: the plaintiff may not only have sustained the loss itself but may also have to bear a sense of his loss. But the differences of opinion which are to be found in the judgments, in England at least, are not as to whether the objective aspect is to be concentrated upon to the exclusion of the subjective; it is simply as to the manner in which each is to be separately allowed for. Indeed in Flint v Lovell [F1] the question which the Court of Appeal had to decide was whether the loss of expectation of life, considered objectively, might properly be allowed for at all, no one doubting that allowance had to be made for the suffering caused by the knowledge that death had been brought closer. The Court decided that loss of expectation of life, as an objective fact, was a proper head of damages, and assessing tribunals were then faced with a problem that was different in kind from the ordinary run: it is hard enough to fix compensation in money for injuries complained of by living persons; hard enough, for example, to fix an appropriate amount for pain and suffering, including the distress that arises from the knowledge that life has been shortened; but what estimate of life itself do you adopt in order to put a figure on a period of living, objectively considered? And until the House of Lords spoke upon the matter in Benham v Gambling [F2] the answers that were given varied greatly.
In Benham v Gambling [F3] the injured person was a child of two and a half. He was unconscious from the moment of the accident until his death, which occurred later on the same day. He had acquired at the time of injury a cause of action for loss of expectation of life. Flint v Lovell [F4] had so decided, and in Rose v Ford [F5] the House had approved the decision. By statute the cause of action survived for the benefit of his estate, and his administrator accordingly sued. The subjective aspect of the loss did not have to be allowed for, the child having had not a moment's realization of his loss; but it is implied clearly enough in the judgment of Viscount Simon L. C. that if the child had at any time a sense of loss the damages must have been increased by reason of it under the head of pain and suffering. The sole question was how much should be allowed as compensation for the objective element, the loss of such chance as the child had had, immediately before the accident, of living longer than he did. Should that chance be treated as having been worth much or little, when a judge or jury is trying to find an appropriate sum to award as fair compensation for the loss? It was a chance fraught with uncertainties-uncertainties not only as to how long the child would in fact have lived but also as to what causes for happiness and unhappiness the years would have given him. "The thing to be valued", said the Lord Chancellor in a speech with which all their Lordships concurred, "is not the prospect of length of days, but the prospect of a predominantly happy life ... The ups and downs of life, its pains and sorrows as well as its joys and pleasures ... have to be allowed for in the estimate". [F6] The probable circumstances of the life which the injured person would have led, his character and habits, were recognized as relevant if calculated, on balance, to lead him to a positive measure of happiness or unhappiness. Then there is this passage:
"I would further lay it down that, in assessing damages for this purpose, the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring him happiness; the test is not subjective and the right sum to award depends on an objective estimate of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not". [F7]
The emphasis throughout the speech is upon the objective nature of the inquiry that remains when any pain and suffering, physical or mental, have been put aside as being properly the subject of separate allowance. But it is made clear that under the head of loss of expectation of life the inquiry is not as to the value of a mere period of time-"not the prospect of length of days"; it is as to the value of the experiences that would have been lived through but for the injury. When it is said that the right sum to award depends on an objective estimate of the kind of future on earth the victim "might have enjoyed", what is meant, as the immediate context shows, is the kind of total experience the future would have offered the victim, looking at the matter objectively and not concerning oneself with any question as to the amount of pleasure or misery that the victim would have derived in fact from the variety of situations in which he would have found himself.
The speech, having thus made clear what it is that has to be evaluated when compensation for loss of expectation of life is being considered, lays down the proposition, for the guidance of assessing tribunals and of the courts generally, and therefore as a proposition of law, that under this head of damages very moderate amounts only are allowable. The Lord Chancellor pointed to the extreme difficulty of fixing a solatium for a person who is dead, [F8] and to the fact that to put a money value on a prospective balance of future happiness is to attempt to equate incommensurables. [F9] Then he said that damages which would be proper for a disabling injury may well be much greater than for deprivation of life. [F10] His Lordship was not, I think, saying anything so trite as that the fixing of a sum of money as compensation for what cannot be bought and sold is difficult because of the different natures of the things that are being weighed against one another. What I understand him to be pointing to as the fact which brings in its train a special consequence for a tribunal assessing damages is that, since none can form any opinion as to what would have been the experience through which the victim would have lived if he had not suffered the injury, that which has to be measured against money is not only different from money but cannot itself be known and therefore cannot be measured at all. For this reason it is simply impossible to select any substantial figure as compensation for the loss of years of living (as distinguished from the mental distress due to realization of the loss) and feel any degree of satisfaction with it as fair compensation. This the decision underlined quite dramatically by reducing an award of only PD1,200 for the shortening of life to a mere PD200. Speaking of that case later, Lord Pearce described it as having "artificially and drastically limited the liability of defendants in respect of loss of expectation of life". [F11] With the greatest respect, I feel that there is here a misunderstanding, due perhaps to the fact that Viscount Simon's speech concentrates upon developing the minor premiss. It discusses at some length the true nature of that for which damages are being given in the particular case of loss of expectation of life, and proceeds to the conclusion that an award of more than a small sum cannot be upheld. But the discussion is not intended, I venture to think, as a justification for adopting an artificial rule. Rather is the conclusion a logical deduction from general principle on the footing of what has been explained about the nature of the relevant loss. While it would be erroneous to allow an amount so small as to be illusory-for the presumption is, contra spoliatorem as Lord Devlin was to say in West's Case, [F12] that the experiences of life would have been such as to offer some balance of enjoyability-a tribunal which awards under this head a sum running into more than a very few hundred pounds must be failing to perform its function in accordance with law, because it purports to have what it cannot possibly have, namely a satisfaction that the selected sum of money is fair, or reasonable, or appropriate, as compensation for the loss of a balance of enjoyability as to which no man can have any idea whether it would have been great or small. The onus of proof as to damages is, after all, upon the claimant.
Twenty years later, there came before the Court of Appeal the case of Wise v Kaye. [F13] It resembled the present case in that the plaintiff, having been rendered permanently unconscious by the accident, had never had and would never have any knowledge of her condition. Her expectation of life had been reduced. The trial Judge awarded her PD400 for loss of expectation of life and PD15,000 for general damages, as well as other sums for items of economic loss. He awarded nothing for pain and suffering, for there had been none and could be none. Accordingly the PD400 must have been awarded simply for the objective fact that her life had been shortened, and the PD15,000 must have been awarded for the objective fact that she had lost, though she did not know it, the whole of the very good chance she would have had of keeping her faculties during the remaining years of her existence. The defendants contended that the PD400 represented a correct application of Benham v Gambling [F14] and therefore could not be challenged, but that the PD15,000 was excessive and should be reduced to a fraction of that amount by virtue of the considerations which had led to the decision in Benham v Gambling. [F15] The argument was, in effect, that the plaintiff's loss in respect of the remaining years of her life, like her loss in respect of the years which the accident had cut off from her existence, was simply a loss of experiences capable of yielding a general balance of happiness, and that 0for want of further information about it an award of so substantial an amount as PD15,000 must necessarily be erroneous as purporting to be what it could not be-an amount fixed in exercise of a real judgment and based upon a sense of appropriateness and proportion.
The Court of Appeal was divided. As Sellers L.J. pointed out, [F16] if the plaintiff had been aware that the span of her life would be contracted, and had consequential anxiety, worry, disappointment and distress been possible for her, damages for that would have fallen to be assessed under the claim separately made for pain and suffering, not under the claim for loss of expectation of life, and would therefore have been additional to damages under the latter head. By parity of reasoning, if the plaintiff had had any understanding of her loss of amenity during the years that were left to her, any distress or sense of frustration or disappointment likely to result from that would have had to be compensated for under the separate head of pain and suffering. The PD15,000 had to be supported, if at all, as a proper assessment of the compensation to be paid by the defendants for the objective fact of the non-economic loss they had caused the plaintiff in respect of the years she would have lived if the injury had not occurred. The main point of difference between the members of the Court was really as to what ought to be regarded as the subject matter of that loss. Sellers and Upjohn L.JJ. held, in effect, that it was a loss of all the plaintiff's faculties, and that since a loss of some faculties only must have called for a substantial award of damages a loss of all must call for a still larger award.
Diplock L.J., who dissented, held that the loss to be compensated for was the whole enjoyment of life from the time of the accident to the time when the plaintiff would have died if the accident had not happened; and as that meant a balance of pleasure over pain a small amount only should have been awarded by analogy with Benham v Gambling. [F17] His Lordship, however, if I have correctly understood his judgment, interpreted Benham v Gambling [F18] as having treated the relevant loss as a loss of that balance of happiness which the individual plaintiff would in fact have enjoyed. The other members of the Court, pointing out that if that were so the quantum must be affected by the psychological make-up, the inner resources and so forth, of the plaintiff, which were matters unfit for consideration in an assessment of damages, declined to agree that the relevant inquiry was subjective at all. Though Viscount Simon L.C. in Benham v Gambling [F19] did say that a reasonable figure had to be fixed as damages for "the loss of a measure of prospective happiness", [F20] the whole context shows, I think, that he was speaking of the measure of happiness that the lost years would have offered the plaintiff-which she in this sense "might have enjoyed"-not the measure of happiness which she, with her particular qualities and idiosyncrasies, would in fact have managed to extract from them. If Sellers and Upjohn L.JJ. had held that this was the relevant distinction to be observed between the objective and the subjective, one would have had to agree with them, I should think, that the choice of the objective test was correct. Their Lordships, however, held that the loss of a faculty, or of all the faculties, is to be compensated for as a loss of a physical thing, restricting activity or altering the conduct of life, the manner or the extent of living (see per Sellers L.J. [F21] ); and, while refusing to inquire "how in any given case it has affected the happiness of the victim", they did not consider the other possibility, that the tribunal ought to inquire, objectively, what opportunities for happiness were lost with the loss of the faculty or faculties. "I know of no authority," said Sellers L.J., "which excludes damages for an injury in itself". [F22] But when a judge directs a jury to give fair compensation for "the bodily injury sustained" (to repeat his Lordship's quotation from the judgment of Lord Cockburn C.J. in Phillips v South Western Railway Co [F23] ) he surely is telling them to compensate for all that the injury means in the way of diminished opportunities to get out of life what men count as good. True, he is not telling the jury to regulate the damages by reference to the effect which the injury is in fact likely to have upon the particular plaintiff's happiness. But he is directing them to weigh the probable effect of the injury in making the plaintiff's body a less valuable instrument, or unavailable as an instrument, for the attaining of ends which, but for the injury, he might reasonably have been expected to pursue, and so to make an allowance for their estimate of the whole significance of the change in relation to the plaintiff's opportunities for the living of life.
If this had been given weight in Wise v Kaye, [F24] it seems to me that both the reasoning and the authority of Benham v Gambling [F25] must have led to a decision that where all the faculties are destroyed the loss is of all opportunities of happiness but, being to some indefinable extent off-set by the gain consisting of release from all liability to unhappiness, should be allowed for by a very moderate sum. One need not embrace the general theory of damages which Diplock L.J. propounded to agree with him that the non-economic loss to be compensated for in a case of deprivation of consciousness is not different from the loss to be compensated for in a case of death. What Upjohn L.J. said is true in either case: the plaintiff is "entitled to point on the one side to the active and normal life, with its ups and downs, both valuable, which she had every hope of leading, and on the other to the living death which she will lead for the rest of her life". [F26] But the House of Lords saw this quite clearly in Benham v Gambling, [F27] and it has been fully allowed for where a loss of years of life, or a loss of consciousness for years of life, has been treated as a loss of the whole opportunity of enjoying in those years a balance of happiness-using "happiness", of course, in its most general sense as referring to all kinds of satisfactions, including those which prove how "sweet are the uses of adversity".
I do not find myself able to put aside Benham v Gambling [F28] as affording no guidance for such a case as the present. It treated of life not as a state of being, a mere physical phenomenon, but as a thing to be lived and lived consciously. Thus, what was meant by every reference to loss of expectation of life was, in truth, loss of the possibility of conscious experience. The whole burden of the Lord Chancellor's speech was the legal impropriety of attempting to place any but the most modest figure on a human being's capacity to experience the varied quality of life; and I cannot bring myself to say that although the law sees the impropriety where a person has died it does not see it where he has lost all capacity for thought and feeling.
I turn now to the later case in the House of Lords, H. West & Son Ltd v Shephard, [F29] where four of their Lordships interpreted Benham v Gambling [F30] as saying nothing of value for any case save that where the person injured has lost his life. Lord Devlin, who dissented, said:
"Although I see no logical distinction at all, I agree that it is open to your Lordships to say that you dislike the Benham v Gambling [F31] principle and will not extend it. But I am unwilling on two grounds to take that rather drastic course. The first is that I think it would introduce a distortion-for your Lordships cannot drive Benham v Gambling [F32] out of the field in which it operates-that would make the law not merely illogical but repugnant to common sense. The second is that although I think that the reasoning in Benham v Gambling [F33] can be criticized, and the figure set may be too small and the uniformity imposed too rigid, it is fundamentally a decision on the right lines". [F34]
So far as this country is concerned, I think that Benham v Gambling [F35] ought to be accepted as prescribing the correct approach in all cases where the matter for which compensation is to be given is, whether by reason of death or not, the fact that the plaintiff has been excluded for a period from the whole of the experiences that make up life. Needless to say, I have earnestly and respectfully attended to the speeches of those of their Lordships who formed the majority of the House, but I venture to comment upon one passage only. Lord Morris said:
"An unconscious person will be spared pain and suffering and will not experience the mental anguish which may result from knowledge of what has in life been lost or from knowledge that life has been shortened. The fact of unconsciousness is therefore relevant in respect of and will eliminate those heads or elements of damage which can only exist by being felt or thought or experienced. The fact of unconsciousness does not, however, eliminate the actuality of the deprivations of the ordinary experiences and amenities of life which may be the inevitable result of some physical injury". [F36]
What is here said of the fact of unconsciousness may equally be said of the fact of death; but in relation both to death and to unconsciousness surely it is true that what ought to affect the quantum of damages is not the actuality of the deprivations but their value: what would "the ordinary experiences and amenities of life" (in the future) have added up to, if the plaintiff had not been cut off from them? The trouble is not just that the assessment of compensation is difficult; it is that there is simply no way of forming any reliable idea, any "confident estimate", [F37] as to what the thing would have been like for which the compensation is to be assessed; and therefore an award so substantial as necessarily to imply that the judge (or jury) has in fact formed such an idea must be unsupportable. This is true, it seems to me, whether the injured person is physically dead or only dead to all experience.
In the present case, could anyone really regard any figure as fairly proportioned to the closing of the door to experiences the quality of which, individually and on balance, is in the nature of things unknowable? The learned trial Judge did not pretend that he could; and when he nominated PD7,000 as the amount which he would have awarded if he had felt obliged to follow Wise v Kaye [F38] he made it clear that he was only adjusting figures that he took from that case and West's Case [F39] so as to allow for the shortness of the period for which the plaintiff would continue in existence.
His Honour was in a difficult position. He had before him a decision of the House of Lords which had been widely followed in this country, and another in which a majority of the House expressed views not logically reconcilable, and not put forward by their Lordships as reconcilable, with the first. He decided not to follow the later decision, and I think, if I may say so, that in the circumstances the course he took was justified. The figure which he finally adopted to cover both the loss of expectation of life and the loss of enjoyment of life during the period of continuing existence was PD1,500. Having regard to currency equivalents and changes in the value of money I am not able to say that by adopting this figure his Honour failed to give due effect to the principle of Benham v Gambling, [F40] and I would therefore not disturb it.
The position of this Court in relation to decisions of the House of Lords does not seem to me to need clarification. The Court is not, in a strict sense, bound by such decisions, but it has always recognized and must necessarily recognize their peculiarly high persuasive value. Moreover the reasoning of any judgment delivered in their Lordships' House, whether dissenting or concurring, commands and must always command our most respectful attention. The Court is, of course, bound by directly apposite decisions of the Privy Council. Other Courts in Australia are bound by such decisions of the Privy Council, and, subject to that, are bound by decisions of this Court. I should perhaps add, though it has become obvious enough in recent years, that nothing in the judgments in Piro v W. Foster & Co Ltd [F41] can have the effect of a general charter to Australian Courts to act upon an assumption that this Court will treat itself as if technically bound by decisions of the House of Lords, or should be treated as having in any degree diminished the binding force of decisions of this Court.
For the reasons I have explained I would allow the appeal and vary the judgment of the Supreme Court by adding to the damages PD675 being seventy-five per cent of the PD900 which is the difference between the PD1,100 allowed for loss of wages for the period from the date of the injury to the probable date of the appellant's death and the PD2,000 suggested by my brother Taylor as a proper amount in respect of loss of the appellant's capacity to earn during the period for which he would have lived if he had not suffered the injury.