Skelton v Collins
115 CLR 94(Judgment by: TAYLOR J)
Between: SKELTON
And: COLLINS
Judges:
Kitto J
Taylor JMenzies 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:
TAYLOR J
This is an appeal from an order of the Supreme Court of Western Australia by which judgment was directed to be entered for the plaintiff, the present appellant, in the sum of PD5,790. This amount was awarded as damages in respect of personal injuries sustained by the appellant as the result of the respondent's negligence and the complaint made upon this appeal is that the amount awarded is manifestly inadequate.
The plaintiff, who was seventeen years of age at the time when his injuries were sustained, suffered severe brain damage which rendered him unconscious. He suffered other comparatively minor injuries but the evidence at the trial showed that he had remained unconscious since the accident and that he would remain unconscious for the rest of his life which would, as a result of his injuries, probably terminate in the second half of 1965 and, certainly, by the middle of 1966. At the trial counsel agreed that it would be proper to assume that death would occur within six months from the date of the trial, i.e. by the 11th September 1965, and the learned trial judge assessed damages upon this assumption.
The sum ultimately awarded comprised a number of amounts separately assessed under different heads of damage. The first of these was an amount of PD4,673 which the parties agreed represented the appellant's special damages to the date of the trial including medical and hospital expenses and loss of wages. This amount apparently included a sum of PD782, less a small deduction, for loss of wages up to the date of trial and, in strictness, this sum represented part of the damages awarded for loss arising from the appellant's destroyed earning capacity (see the discussion on this point in Graham v Baker [F42] .) The second amount was PD1,201 representing the expenditure which would be incurred (at the rate of PD46 4s. 0d. per week) in maintaining the appellant as an inmate of the Royal Perth Hospital for a period of six months from the date of trial. To these amounts was added an amount of PD346 for loss of wages at approximately PD13 a week in respect of the same period. Finally his Honour added an amount of PD1,500 for general damages making, in all, a total amount of PD7,720 but this was reduced by twentyfive per cent, it being agreed that to this extent the plaintiff had contributed to his own injuries. The resultant figure was PD5,790.
The argument upon the appeal was concerned with the amount assessed for general damages but before dealing with the points which were raised on behalf of the appellant I pause to observe that the inclusion in the award of practically the whole of the total amount that the appellant would probably have received for wages up to the date of trial, if he had not been injured, and for six months thereafter, operated unduly to inflate the assessment in the circumstances of the case. In the ordinary run of cases it is no doubt proper to assess damages substantially by reference to the amount of wages actually lost up to the date of trial and by reference to the present value of any probable future loss of that character. But where, as here, there is nothing to suggest that, if the appellant had not been injured, his wages would have been more than sufficient to provide for his own maintenance during his shortened life, it was erroneous to award a sum for loss of wages in addition to a larger sum calculated to provide for his complete maintenance and care during that period. The respondent, however, has made no complaint on this score but it is a material matter to be borne in mind when we come to consider whether the total amount awarded was or was not inadequate.
In assessing PD1,500 as general damages excluding future economic loss the learned trial judge proceeded upon the basis that he should award compensation "for what the plaintiff consciously suffers" and in doing so he departed from the principles acted upon in England by a majority of the Court of Appeal in Wise v Kaye [F43] and by a majority of the House of Lords in H. West & Son Ltd v Shephard. [F44] Notwithstanding that his Honour found the dissenting judgment of Diplock L.J. in the former case and that of Lord Devlin in the latter case convincing, he would have considered himself bound by the decision of the majority had it not been for the presence of other factors. Earlier his Honour had referred to the pronouncement of this Court in Parker v The Queen. [F45] Quite properly he did not consider that upon the strength of that statement he was free to refuse to act upon the views expressed by the majority of their Lordships in West's Case [F46] simply because he preferred the reasoning in a dissenting judgment. What finally led him to disregard them was the fact that in 1964 two members of the Supreme Court of Western Australia had already done so and he thought that in the circumstances the Supreme Court "should speak with one voice and not a variety of voices". The first of the two cases in 1964 was Scutt v Bailey (No. 2) [F47] in which the facts showed that the plaintiff, a married woman, had as a result of her grave injuries been reduced to a condition of "flat amiability". There was nothing to suggest that her life expectancy had been diminished and it was found that she was and was likely "to remain at peace with the world and that she is not enduring any pain". After some discussion of the English cases Wolff C.J. said:
"As damages for loss of enjoyment of life are based on compensation for the loss, once it is conceded that the injured person cannot appreciate the loss, to award a large sum which the victim can never enjoy and on the basis of a loss he cannot and never will sense seems to me to abandon the principle of compensatory damage and in its stead to adopt one of punitive damages which is quite foreign to this area of law. In my opinion, any award of general damages in this case should be amply adequate to cover all the reasonable needs of the plaintiff for the rest of her life and no more". [F48]
The second case in Western Australia in 1964 was Fowler v Fowler [F49] in which the views of the Chief Justice in the earlier case commended themselves to D'Arcy J. and he assessed damages on the same basis. It may be noticed, however, that a few months earlier Negus J. in Moss v Cook [F50] considered himself bound by the decisions in Oliver v Ashman [F51] and Wise v Kaye. [F52] However, this was a case in which the plaintiff, in spite of his grave and incapacitating injuries, retained complete possession of his faculties though it appeared that his normal expectation of life had been reduced by a period of between ten and twenty years.
In the present case two main complaints are made. The first is that general damages for the plaintiff's injuries, excluding those assessed for physical pain and suffering, should have been assessed without regard to the fact that he had remained unconscious since the accident. They should, it is said, have been assessed on what has, somewhat unhappily, been called an "objective" basis. The second is that in assessing damages for the plaintiff's lost earning capacity regard should have been had to the probable period of the plaintiff's working life immediately before he sustained his injuries and not merely to the period of life which remained to him after that event.
The second of these contentions is directly in conflict with the decision in Oliver v Ashman [F53] and the first is based upon the views of the majority in Wise v Kaye [F54] and H. West & Son Ltd v Shephard, [F55] in both of which cases there was a clear conflict of opinion on the question whether damages for personal injuries should be assessed solely upon an "objective" basis. In each case the majority, treating the matter as one of prime importance in the assessment of damages for personal injuries generally, came down, substantially, in favour of an affirmative answer to this question (see Wise's Case [F56] per Sellers L.J. [F57] and per Upjohn L.J.: [F58] West's Case [F59] per Lord Morris [F60] and per Lord Pearce [F61] ). In effect, they held that damages are awarded as compensation for an "actual" loss and not for a sense of loss. It was, of course, said that if a plaintiff's condition, as a result of his injuries, is such that he is insensible to physical pain and suffering it would be inappropriate to award damages under this head, the reason for this being simply that a plaintiff in such a condition does not experience pain and, consequently, does not suffer on that account. This latter proposition is unassailable and, in the discussion of the problem, it may be put on one side.
In Wise's Case [F62] Diplock L.J. dissented from the other members of the Court. He observed (7) that in that case the major item in the damages awarded was the sum of PD15,000, described as being for "the loss of the amenities of life, which here means something very much approaching the loss of life itself except in a physical existence". His Lordship then proceeded:
"The principle which the judge applied in arriving at this sum is stated in a number of slightly different ways. The first, which is unexceptionable, was that `when a person has been injured he must be compensated on the basis of what in fact he has lost'. The second way in which he stated it was that `to compensate a person for injuries it does not matter whether he knows or not'. This is ambiguous-and erroneous if `injury' means `physical injury' in which consciousness of deprivation if present must always be an element in the damage". [F63]
In West's Case [F64] Lord Reid and Lord Devlin were the dissentients. I quote from the speech of the former:
"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 those 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". [F65]
Ultimately he added:
"I would consider separately the objective and the subjective element arising from the respondent's injuries. Accepting that in view of her shortened expectation of life PD17,500 would be a fair sum if the respondent were fully conscious of her position, I would think that not more than PD5,000 of that ought to be attributed to the actual physical injuries, and then the question is to what extent the respondent is conscious and suffering". [F66]
Lord Devlin also thought that in assessing damages for the loss of amenities of life two factors should be taken into consideration, one "objective" and the other "subjective". He said:
"There are two ways in which this loss of enjoyment can be considered. It can be said that from beginning to end it is really all mental suffering. Loss of enjoyment is experienced in the mind and nowhere else. It may start with acute distress at the inability to use a limb in games or exercise as before or just in getting about, and may end with a nagging sense of frustration. If this is the true view, then total unconsciousness as in Wise v Kaye [F67] relieves all mental suffering and nothing can be recovered for a deprivation which is not being experienced. The other way to look upon the deprivation of a limb is as the loss of a personal asset, something in the nature of property. A limb can be put both to profitable use and to pleasurable use. In so far as it is put to profitable use, the loss is compensated for by calculating loss of earnings and not by assessing mental pain. On the same principle, it can be said, a sum must be assessed for loss of pleasurable use irrespective of whether there is mental suffering or not". [F68]
Later he proceeded:
"My Lords, as might be expected, English law has not come down firmly in favour of either of these two ways to the exclusion of the other. It favours a compound of both, as was agreed in argument and as I shall show later by reference to the authorities. The elements to be compounded have been called the objective and the subjective. The loss of property element is objective; it requires some sort of valuation that is in no way dependent on the victim's sense of loss. The other element is subjective because it depends entirely on mental suffering actually experienced". [F69]
Finally he concluded:
"What has to be compensated for in this assessment is a total loss of enjoyment of all the faculties, a complete loss of the pleasure of living. When the victim knows his fate, he will suffer from the distress which, except in the most saintly or philosophical, is caused by the prospect of death; and for that clearly he must be compensated. But what if he never knows his fate? It has been decided that he still must have some compensation, which should be moderate. The doctrine, I think, originated in Scotland, and Lord Sands took the view that the objective element grew out of the subjective. In Reid v Lanarkshire Traction Co [F70] he said that `while the doctrine of an award in respect of the shortening of life may have originated in the theory of mental disquiet about the prospect or the possibility of death ... that doctrine is now a matter positivi juris irrespective of the presence or absence of evidence as to the sufferer's state of mind in the particular case'. But, he said, he should warn the jury that the weight to be given to this element must be moderate and they must not consider what price the man would have put upon his life. The problem of the separation of the two elements first arose in England because of the Law Reform (Miscellaneous Provisions) Act, 1934, which allowed the executors of a dead man to sue for damages for personal injury, the right to which had accrued before the man's death. Clearly, if he had suffered from the prospect of death, damages could be recovered, as they could be for any other form of physical or mental suffering. But if death came suddenly, could the executors recover anything at all? It was said that they could not on two grounds. One ground was that there was no mental suffering in such a case, and this was the ground adopted by Mackinnon J. in Slater v Spreag [F71] and Humphreys J. in Rose v Ford. [F72] This amounted to a denial that there was any objective element in the assessment. The other ground was the technical one that damages for loss of expectation of life were the same thing as damages for injury inflicted by death, and that an old rule of the common law, left intact by the Act of 1934, forbade a recovery of damages in such a case. Both these arguments were negatived by this House in Rose v Ford. [F73] I accept this decision as an authority binding on your Lordships that there is an objective element in damages for loss of enjoyment of life, whether it is caused by death or by maiming or by any other form of physical injury". [F74]
I think there is much to be said for the proposition, which was discussed in West's Case [F75] that the ideas expressed in these passages are implicit in the decision of the House of Lords in Benham v Gambling. [F76] I shall again refer to this case but for the moment it is sufficient to notice that the claim which had been made in that case was one by the administrator of a deceased child who had died on the same day as that upon which he had suffered injuries as the result of the defendant's negligence. The relevant claim was for damages for the loss of expectation of life. The case has been accepted as an attempt "to set ... a standard of uniformity for the assessment of damage for loss of expectation of life where there is no mental suffering" (see per Lord Devlin [F77] and also per Lord Reid [F78] and Lord Pearce [F79] ) and there is much to be said for the view that, at least implicitly, it acknowledges that mental suffering caused by the knowledge that his life expectancy has been diminished will entitle a plaintiff to damages in excess of those for loss of expectation of life simpliciter. This view of Benham v Gambling [F80] was rejected by the Supreme Court of Victoria in McGrath Trailer Equipment Pty Ltd v Smith [F81] - a decision to which Lord Pearce gave his approval in West's Case [F82] - but it seems to have found favour in the Court of Appeal in Davies and Another v Smith and Another, (1961) (reported in Kemp & Kemp-The Quantum of Damages, 2nd ed. (1961) p. 353, at p. 358 but cf. p. 356). If the view which I have expressed be correct I fail to see that in the case of other injuries it is not proper to assess damages having regard to a combination of both "objective" and "subjective" elements. However, the validity of this final proposition was denied by the majority in West's Case [F83] but I feel that it has great force.
In the present state of the authorities the question arises as to how we should attempt to solve this particular problem. Are we simply to adopt the views expressed by the majority in West's Case [F84] or should we, having regard to the sharp conflict in the House of Lords on what must be regarded as a fundamental principle relating to the assessment of damages for the loss of amenities of life, to regard ourselves free to solve the problem according to our own considered views?
I observe that the correctness of the decision on this point in Wise's Case [F85] was, to say the least, doubted by two members of this Court in Teubner v Humble. [F86] Thereafter, it seems, the observations made in that case by Windeyer J. (and concurred in by McTiernan J.) played a substantial part in inducing Wolff C.J. to pursue the course which he did in Scutt v Bailey (No. 2). [F87] Likewise, D'Arcy J. in Fowler v Fowler [F88] was influenced by those observations when he decided to follow the same course as Wolff C.J. Again, Hogarth J. in the Supreme Court of South Australia followed the observations in Teubner v Humble [F89] on another point, with which I will deal presently, in preference to the decisions in Oliver v Ashman [F90] and Wise v Kaye: [F91] (Mizon v Mallee and Berry [F92] ). The judgments in Teubner v Humble [F93] were, of course, not before Philip J. when he assessed damages in Shewan v Sellars (No. 2) [F94] but, again, that was a case where the learned judge felt constrained to depart from the principles enunciated by the majority in Wise's Case. [F95] However, in a later case (Hobbelen v Nunn [F96] ) Gibbs J. felt bound to follow the principles laid down in the English cases instead of the views expressed in Teubner v Humble. [F97]
I may express my own view shortly upon the point now under consideration for I find the reasons appearing in the speeches of Lord Reid and Lord Devlin compelling. If I may say so with respect their conclusion is that to which I would have come independently. It may be that this is one reason why their reasons appear compelling to me but, however this may be, in assessing damages for a loss of the amenities of life resulting from the physical destruction or impairment of some part of the body, I find it impossible to ignore, or, to regard merely as a minimal factor, what has been referred to as the subjective element. The expression "loss of the amenities of life" is a loose expression but as a head of damages in personal injury cases it is intended to denote a loss of the capacity of the injured person consciously to enjoy life to the full as, apart from his injury, he might have done. It may be said, of course, that a person who is completely incapacitated as a result of his injuries suffers such a loss whether or not his injuries are of such a character to render him insensible to his loss. But, in my view, a proper assessment can be made only upon a comparison of the condition which has been substituted for the victim's previously existing capacity to enjoy life and where the mind is, as it were, willing and the body incapable there is, in my view, a much higher degree of loss than where the victim is completely insensible to his lost capacity. Perhaps, in other words, it may be said that a person who is obliged for the rest of his life to live with his incapacity, fully conscious of the limitations which it imposes upon his enjoyment of life, is entitled to greater compensation than one who, although deprived of his former capacity is spared, by insensibility, from the realization of his loss and the trials and tribulations consequent upon it. In the result I am left with a firm view that the plaintiff's general damages in this case were assessed on a proper basis. This conviction coupled with the fact that a body of authority inconsistent with the decision of the majority in West's Case [F98] has grown up in this country and the fact that there was a remarkable diversity of opinion in that case induces me to say that we ought not to follow it. Accordingly, I would reject the appellant's first contention.
The further question arises whether in assessing damages for the destroyed earning capacity of the appellant it was proper to have regard only to the period of life which remained to him after receipt of his injuries. Oliver v Ashman [F99] is, of course, an authority for the course which his Honour took. The judgments in that case contain a discussion of a number of cases decided both before and after the Law Reform (Miscellaneous Provisions) Act, 1934 (England), which provided that on the death of any person after the commencement of the Act all causes of action vested in him should survive for the benefit of his estate. It was expressly provided that the rights conferred by the Act for the benefit of the estates of deceased persons should be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Fatal Accidents Act, 1908. As a result of this legislation the personal representative of a person who had died as a result of the injuries caused by the negligence of another became entitled, in England, to recover damages for the deceased's loss of expectation of life. It was pointed out in Oliver v Ashman [F100] that "Where the estate was left to the dependants the claims under the Fatal Accidents Act and the Law Reform Act could be set off. But if the beneficiary of the estate was some person other than his dependants, there might be a double claim in respect of part of the benefit of the lost earnings". [F101] How far this possibility-if it be a possibility-influenced the decision in Oliver v Ashman [F102] does not clearly appear but, in my view, it has no bearing upon the question of what damages should be awarded for an injured person's destroyed earning capacity whether the action be brought by the injured person himself or, upon his death, by his legal personal representative. Indeed, this, I think, is implicit in the observations of Lord Atkin and Lord Wright in Rose v Ford. [F103] As to the possibility of the duplication of damages I observe that if an injured person has, himself, recovered damages no further action will lie for the benefit of his dependants in the event of his subsequent death whilst in the case where an action is brought, not by the injured person himself but, upon his death, by his legal personal representative for the benefit of his estate, the damages would be assessed having regard to the gain, if any, which would have accrued to the deceased from his future probable earnings after taking into account the expenditure which he would have incurred, if he had survived, in maintaining himself and his dependants, if any. Damages in any action for the benefit of the deceased's dependants would, of course, be assessed having regard to the magnitude of their loss as dependants so that the possibility of the duplication of damages would, to say the least, be remote.
To me there seems to be no doubt that prior to the passing of the English Act it was the rule in assessing damages for a destroyed or diminished earning capacity to have regard to the probable working life of the plaintiff unaffected by his injuries (see e.g. Phillips v London and South Western Railway Company [F104] ). But after the passing of that statute there were conflicting decisions. Roach v Yates [F105] must, I think, be taken to have decided that in assessing damages for the loss of earning capacity it is proper "first to consider what sum he (the plaintiff) would have been likely to make during his normal life if he had not met with the accident" (per Slesser L.J. [F106] ). It is true that in that case Greer L.J. had not made any express observations on the point but there was common agreement as to the amount of damages which should be awarded and, it seems to me, this could have been possible in the circumstances of the case only if their Lordships had proceeded to consider the assessment of damages on a common basis. MacKinnon L.J., the third of their Lordships to speak, merely agreed with what had already been said and must be taken to have agreed with the observation which I have quoted. However, in Harris v Brights Asphalt Contractors Ltd [F107] Slade J. refused to accept Roach's Case [F108] as deciding in favour of the proposition which is involved in the observation. The reasons advanced by his Lordship for this view have been the subject of considerable criticism (see e.g. Principles of the Law of Damages-Street (1962), p. 49: The Quantum of Damages-Kemp & Kemp, 1st ed. (1954), vol. 1, p. 91; 2nd ed. (1961), vol. 1, pp. 28, 29: Mayne & McGregor on Damages, 12th ed. (1961), par. 768). Nevertheless the decision in Harris' Case [F109] was accepted as correct in the Court of Appeal in Richards v Highway Ironfounders (West Bromwich) Ltd [F110] and in Davies v Smith (reported in Kemp & Kemp, 2nd ed. (1961), vol. 1, p. 353) but no question as to the correctness of Harris' Case [F111] was raised in either of these cases and there was no argument on the point. This was the state of the authorities in 1959 when Streatfeild J. decided Pope v D. Murphy & Son Ltd. [F112] In that case both the injured plaintiff's earning capacity and his expectation of life had been diminished and in assessing damages for the diminution of his earning capacity his Lordship had regard to the plaintiff's pre-accident expectation of life and expressly refused to follow the decision in Harris' Case. [F113] Shortly after, Parker C.J. in assessing damages in Oliver v Ashman [F114] expressly stated that he had followed the decision of Streatfeild J. From this decision there was an appeal to the Court of Appeal and in the result it was unanimously held that in assessing damages for the plaintiff's loss of earning capacity regard should have been had only to the period of life remaining to him after the receipt of his injuries.
The decision was based upon observations made in the House of Lords in Rose v Ford [F115] and in Benham v Gambling [F116] and it becomes necessary to consider precisely what it was that these cases decided. In the earlier case two questions arose. First of all there was the question whether the decision of the Court of Appeal in Flint v Lovell [F117] that a living plaintiff could recover damages for the diminution of his expectation of life was sound, and secondly, the question arose whether damages under this head could be recovered in an action by the personal representative of a deceased person pursuant to the Law Reform (Miscellaneous Provisions) Act. The House of Lords decided both questions in favour of the plaintiff. It may not be to the point to notice that the decision in Flint v Lovell [F118] did not introduce a novel doctrine into the law as is shown by the observations of Lord Wright in Rose v Ford [F119] though, no doubt, it gave the clearest authority to the principle which it enunciated. I observe that the same principle had been followed in New South Wales almost without question (Bruce v Rutherford [F120] ). But it is of importance to notice that in Flint v Lovell [F121] there was no claim for damages for the diminution of the plaintiff's earning capacity; the plaintiff was seventy years of age when the trial took place, special damages had been agreed at PD400 and there was no suggestion of any economic loss by reason of a resultant diminution of the plaintiff's earning capacity. Nor was there any suggestion that the head of damage which the decision recognized should be regarded as a substitute for, or, as embracing, economic loss of that character. In Rose v Ford [F122] in the action brought pursuant to the Law Reform (Miscellaneous Provisions) Act, there was, again, no claim for any such loss. The claim which had been related to (1) the deceased's pain and suffering; (2) the loss of her leg; and (3) the shortening of her expectation of life. In the House of Lords only the last item was in question. This claim had been rejected in the Court of Appeal but all of the members of that Court had agreed that if damages for loss of expectation of life could be recovered the appropriate award under this head was PD1,000. In the result the House of Lords held that Flint v Lovell [F123] had been correctly decided, that, therefore, in her lifetime the deceased had vested in her a right to recover damages for her loss of expectation of life, and the right survived to her legal personal representative and their Lordships increased the amount of the award by PD1,000. In doing so their Lordships, it seems to me, treated this head of damages as completely independent of any other legitimate head of damages and were not concerned and did not concern themselves with any question of loss resulting from a diminished or lost earning capacity. Benham v Gambling [F124] was decided some three and a half years later and this case was concerned with an action commenced by the administrator of a child who had died shortly after having been injured by the negligence of the defendant. It was said that since the decision in Rose v Ford [F125] the amounts that had been awarded as damages for a diminished expectancy of life had varied enormously and the decision represents an attempt to set a standard by "indicating the main considerations to be borne in mind in assessing damages under this head" in the hope that "the views of this House, expressed in dealing with the present appeal, may help to set a lower standard of measurement than has hitherto prevailed for what is in fact incapable of being measured in coin of the realm with any approach to real accuracy". In the result the decision gave rise to the rule (said by Lord Reid in West's Case [F126] to be "a rule of law") that a conventional sum only should be awarded for the loss of a measure of prospective happiness. But again the House of Lords was not concerned with any question of economic loss resulting from a destroyed earning capacity.
However, in Oliver v Ashman [F127] the Court of Appeal took the view that the question before it had been concluded by observations made in Benham v Gambling. [F128] It seems to me that there was common agreement that, as Holroyd Pearce L.J. (as he then was) put it, there were "three matters which together make it clear that the House was saying that no regard should ever be had to financial gains or losses in such cases". These matters are referred to in a passage which I quote from his Lordship's judgment:
"First the speech of Lord Roche in Rose v Ford [F129] had been referred to in argument. So, too, had Reid v Lanarkshire Traction Co, [F130] where the court had held that loss of future wages during the lost years was but an ingredient in the loss of expectation of life and did not fall to be valued as an item on its own.
Secondly, the words used by Viscount Simon L.C., and especially the words `of course,' seem to show that the sentence was intended to be of general application. Otherwise one would expect some such words as `on the pleadings in this case'.
Thirdly, Viscount Simon L.C. ended by saying: `I trust that the views of this House, expressed in dealing with the present appeal, may help to set a lower standard of measurement than has hitherto prevailed for what is in fact incapable of being measured in coin of the realm with any approach to real accuracy.' It is clear that the House was intending to settle once and for all a difficult problem in clear and careful terms meant to be of general application". [F131]
The speech of Lord Roche to which his Lordship refers appears at p. 861 of the report of Rose v Ford [F132] after a reference to observations which had been made by Lord Sands in Reid v Lanarkshire Traction Co. [F133] Lord Sands had observed in that case that the matter (i.e. the assessment of damages for diminished expectation of life) was so hedged about with metaphysics that "were I charging a jury, I think I should be disposed to be content to tell them that the shortening of life was an element which they were entitled to take into consideration in measuring the damage suffered by the deceased, and to leave it to them, without any strict analysis of the content of the idea, to assess the damages, contenting myself with warning them that the weight to be given to this element must be moderate, and that they must not consider what price the man would have put upon his life". [F134] Having expressed the view that he would be content with a direction such as this Lord Roche proceeded to say that in making an assessment of damages for loss of expectation of life it should "obviously and rightly" be "arrived at without regard to the question of the amount of future earnings and solely on the basis of what was life going to be worth to a healthy young woman earning her own living, with dependent parents and with some prospects of marriage". [F135] Thereafter he proceeded:
"This method seems to me to be correct. It eliminates, and rightly so, the question of rich and poor, and pays regard to the normal and the average. A rich miser living in squalor or a very poor man deeply sunk in misery might require special treatment ... Earnings or income are otherwise and to an extent beyond this irrelevant". [F136]
It is the latter part of these observations which are referred to in Oliver v Ashman [F137] but I think, with respect, that they cannot be understood as having any application to a claim for damages for economic loss resulting from a diminished earning capacity. His Lordship was to my mind merely asserting that the extent of the probable future earnings of an individual are, in general, irrelevant in considering his prospects of future happiness. Further it is apparent that the contrary view receives no support whatever from the other Lords of Appeal who sat on the case; they expressly confined themselves to the questions, as I have already stated them, which arose upon the appeal.
As for the observation in Oliver v Ashman [F138] that in Reid v Lanarkshire Traction Co [F139] the "court had held that loss of future wages during the lost years was but an ingredient in the loss of expectation of life" [F140] it seems to me that this is directly opposed to the observations of Lord Roche which denied the relevance of the loss of future wages during the lost years in any assessment of damages for diminished expectancy of life, except to show that the plaintiff would have been "able to earn enough to live his or her life and to enjoy it". But, in any event, I do not think that Reid's Case [F141] can be regarded as an attempt to deal with the problem now under consideration. It is true that Lord Wark said, in the first instance, that a jury would not be "entitled to give a sum based on the shortening of his (the plaintiff's) expectation of life, with subsequent earlier cessation of earning capacity, less the anticipated diminution in the cost of maintenance during the period between the anticipated earlier date of death and the date of his expectation had the accident not taken place". [F142] But the judgments on appeal were eloquently silent concerning this proposition as also were the speeches of their Lordships in Rose v Ford. [F143]
The second matter to which reference was made in the passage I have quoted from Oliver v Ashman [F144] is part of the speech of Viscount Simon in Benham v Gambling. [F145] This was referred to in Oliver v Ashman [F146] and I quote:
"Viscount Simon L.C. dealt with the difficulty of assessing all that makes up `life's fitful fever' and said: `The question thus resolves itself into that of fixing a reasonable figure to be paid by way of damages for the loss of a measure of prospective happiness.' He said that it was necessary before damages could be given under that head `for the court to be satisfied that the circumstances of the individual life were calculated to lead, on balance, to a positive measure of happiness, of which the victim has been deprived by the defendant's negligence.' He then said this: `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. Of course, no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not of loss of future pecuniary prospects' ". [F147]
To my mind Viscount Simon was making it clear that the head of damages to which his observations were addressed was completely independent of any other legitimate head of damages. It was a head which permitted an award of damages for loss of "a measure of prospective happiness" and did not embrace and was not associated with economic loss resulting from a destroyed or diminished earning capacity. His final observation merely emphasizes that questions as to the assessment of damages for what he called "loss of future pecuniary prospects" fell within another universe of discourse.
Finally, it seems to me, that when Viscount Simon referred to "what is in fact incapable of being measured in coin of the realm with any approach to real accuracy" he was speaking of the right to damages for "the loss of a measure of prospective happiness" and nothing else and it was in relation to that right that he expressed the hope that the views indicated in Benham v Gambling [F148] might "help to set a lower standard of measurement than has hitherto prevailed". It was only in relation to damages for such a loss that the standard was in question; there was no suggestion that in relation to damages resulting from a diminished or lost earning capacity the prevailing standards-if there could have been said to have been any "prevailing standards"-needed any correction or adjustment. No doubt there are considerable difficulties in assessing damages for a loss of this lastmentioned character. But in the main they are difficulties which must be faced and overcome as far as possible every day. They arise in some degree or other in every case where a plaintiff is incapacitated at the date of the trial of his action and, indeed, where a plaintiff has been permanently incapacitated though his life expectation has not been diminished by his injuries they must, not infrequently, be faced to the fullest extent. Likewise, substantially similar problems must be faced in every case where an action is brought on the behalf of dependants under the Fatal Accidents Act. But these difficulties were not, in my view, those to which Viscount Simon referred when he spoke of "what is in fact incapable of being measured in coin of the realm with any approach to real accuracy"; what, it seems to me, he was addressing himself to was the matter to which he had already expressly adverted-"the question ... of fixing a reasonable figure to be paid by way of damages for the loss of a measure of prospective happiness", a loss which, it may be said, can in no way be measured by reference to the victim's pre-accident financial prospects.
I need scarcely mention the anomaly that would arise if Oliver v Ashman [F149] is taken to have been correctly decided. An incapacitated plaintiff whose life expectation has not been diminished would be entitled to the full measure of the economic loss arising from his lost or diminished capacity. But an incapacitated plaintiff whose life expectancy has been diminished would not. Yet the recovery by him of damages that does not take into account his full economic loss will operate to prevent his dependants, in the event of his death, from recovering damages under the Fatal Accidents Act. However if he dies without having sued for damages his dependants will be entitled to recover damages assessed upon a consideration of what his economic prospects would have been had he survived for the full period of his pre-accident expectancy.
For the reasons I have given I find myself forced to the conclusion that the recognition which has been accorded to the right of an injured plaintiff to recover damages for "the loss of a measure of prospective happiness" in no way operates to displace or destroy his right to recover damages for economic loss resulting from his diminished earning capacity. Accordingly in my view damages in the present case should have been assessed under this head having regard to the plaintiff's pre-accident expectancy and not only to the expectancy of life remaining to him after the receipt of his injuries. Any assessment should, of course, take into account the vicissitudes and uncertainties of life and also the fact that if the plaintiff had survived for the full period it would have been necessary for him to maintain himself out of his earnings and, no doubt, his expenditure on his own maintenance would have increased as his earnings increased.
In considering what he called the plaintiff's economic loss the learned trial judge in the present case did not have regard to the plaintiff's pre-accident expectancy of life and he assessed an amount of PD1,500 for general damages which I take to be the amount which he considered an appropriate award to compensate the plaintiff both for his loss of amenities of life during the period of life remaining to him after the accident and also for his diminished expectancy of life. In making this assessment he proceeded "on the basis that in assessing damages for personal injuries beyond economic loss the primary, although not the sole, ground for awarding damages is to be for what the plaintiff consciously suffers". Assuming, for the moment, that PD500 of this amount was in effect a Benham v Gambling [F150] award merely for loss of expectancy of life, the question is whether the sum of PD1,000 is manifestly inadequate to compensate him on an objective basis for his injuries and his loss of amenities of life during the residue of his life. In the circumstances I am not disposed to think that it is and, accordingly, that we should not interfere. So far as his economic loss is concerned the material before us indicates that the plaintiff at the time of the injury was earning approximately PD13 a week, that at the age of twenty-one he would probably have earned something in excess of PD20 a week and that by the time he attained the age of thirty his salary would have been, had it not been for the accident, some PD2,000 or PD2,500 per annum. In those circumstances it seems to me that on a balance of what his future income and expenditure on maintenance would have been the economic loss resulting from his destroyed earning capacity should not be rated highly. Particularly is this so when account is taken of the uncertainties and vicissitudes of life. Under this head of damages I would assess the sum of PD2,000 as reasonable compensation. In the result the damages assessed by his Honour should be increased by the difference between the last-mentioned sum and the amount of approximately PD1,100 which was wrongly included and to which I have previously referred. This adjustment means that damages should be assessed at PD8,620 but, since that amount is to be discounted by twenty-five per cent, judgment should be entered for PD6,465.
I add that I have had the opportunity of considering the observations which my brother Owen has made concerning the pronouncement made by Dixon C.J., with the concurrence of the other members of the Court, in Parker v The Queen [F151] and I entirely agree with his views.