Skelton v Collins

115 CLR 94

---

(Judgment by: MENZIES J)

Between: SKELTON
And: COLLINS

Court:

Judges: Kitto J
Taylor J

Menzies JWindeyer 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:
MENZIES J

In Wise v Kaye ^[F152] the Court of Appeal (Sellers L.J. and Upjohn L.J., Diplock L.J. dissenting) upheld an award of PD15,000 general damages-exclusive of any amount for pain and suffering, loss of expectation of life and loss of future earnings-in a case where a young woman of twenty had, in a motor-car accident, suffered brain injuries which rendered her helpless and unconscious for the rest of her life. Her life expectancy was seven years, which would be spent in hospital at the expense of the state. Diplock L.J., in the course of his dissenting judgment said:

"If ... one takes as a premise that, after making full provision for loss of future earnings and the cost of care and nursing, a sum of the order of PD15,000 to PD20,000 would be the appropriate maximum award for the physical injuries which she sustained had they not included the damage to the brain which has rendered her unconscious, it seems to me that the great bulk of such a sum would be attributable to physical pain, the mental anguish of complete dependence upon others for all bodily functions and the bitter consciousness, most acute in the earlier years, of all the pleasures of life which had been lost while susceptibility to many of its sorrows remained. All these factors are absent in the plaintiff's case and I cannot think that more than a tithe of the sum of PD15,000 should be here awarded". ^[F153]

His Lordship would, therefore, have substituted PD1,500 for PD15,000 "in respect of her `loss of amenities of life' during the time while she continues in this world" because, in addition to other injuries, she had suffered "damage to the brain which has rendered her unconscious".

In H. West & Son Ltd v Shephard ^[F154] the House of Lords (Lord Tucker, Lord Morris and Lord Pearce, Lord Reid and Lord Devlin dissenting) approved Wise v Kaye ^[F155] and upheld the award of PD17,500 general damages for a woman aged forty-one who was injured through the negligent driving of a motor-lorry and sustained severe head injuries resulting in cerebral atrophy and paralysis of all four limbs. Her condition was described as follows:

"She was unable to speak, such communication as she did make being limited to movements of the eyes, face and the right hand; she could appreciate the difference between food that she liked and disliked, showing her likes and dislikes by facial expression, showed some sign of recognition of relatives and nursing staff and could respond to commands by moving her right hand. She was unable to feed herself and required full time hospital nursing; any relaxation of medical and nursing care would terminate fatally. There was no prospect of further improvement and her expectation of life had been reduced to about five years. She might, to some extent at least, have appreciated the condition which she was in".

In this appeal, the first question is whether this Court should depart from the decision of the House of Lords in H. West & Son Ltd v Shephard ^[F156] approving the decision of the Court of Appeal in Wise v Kaye ^[F157] and affirm the judgment of the learned trial judge, Hale J., who held that because the plaintiff-a youth of seventeen when he was injured in an accident-has since that injury been unconscious and will remain unconscious for the rest of his life, the award of so-called general damages in his favour should be PD1,500 instead of the PD7,000 which his Honour would have awarded had he applied the decision of the House of Lords in H. West & Son Ltd v Shephard. ^[F158] Referring to the decisions of the House of Lords and the Court of Appeal, his Honour said:

"The effect of the decisions in those cases is that where the plaintiff is completely unconscious, a proper award over and above economic loss lies in the range of PD10,000-PD15,000. On this basis and bearing in mind the limited duration of the plaintiff's life I would consider an award of PD7,000 to be appropriate in the present case. The view that this would be to assess on a wrong principle and that in such a case as the present the award should be quite small is expressed in the dissenting judgment of Diplock L.J. in Wise v Kaye ^[F159] and by Lord Devlin in H. West & Son Ltd v Shephard. ^[F160] Now, if I may say so with the utmost respect, I find the last-mentioned judgments convincing: but nevertheless if the matter rested there I would consider myself bound to give effect to the majority view". ^[F161] His Honour then referred to decisions of the Supreme Court of Western Australia based upon the dissenting judgments in Wise v Kaye ^[F162] and H. West & Son Ltd v Shephard, ^[F163] viz. Scutt v Bailey (No. 2) ^[F164] and Fowler v Fowler, ^[F165] and decided that "this Court should speak with one voice and not a variety of voices". ^[F166] His Honour thereupon followed Scutt v Bailey (No. 2) ^[F167] and Fowler v Fowler ^[F168] and assessed damages for personal injuries beyond economic loss at PD1,500 on the footing that the primary ground for awarding such damages is "compensation for what the plaintiff consciously suffers". ^[F169]

I consider the Supreme Court of Western Australia should have followed the decision of the House of Lords in H. West & Son Ltd v Shephard, ^[F170] and it is my opinion that this Court should now follow that decision.

No good purpose would be served by my attempting to restate the reasoning that led to the conclusions in Wise v Kaye ^[F171] and H. West & Son Ltd v Shephard ^[F172] and I will do no more than say that it seems to me that injuries are not less compensable because the person who has suffered them is, and will remain, unconscious of them and of his total incapacity. Loss of capacity-total or partial, permanent or temporary-to live the life that could otherwise have been lived is, apart from damages for pain and suffering, the fundamental loss for which general damages for personal injury are awarded. It is from this loss that other losses stem. Thus, for instance, loss of earnings arises from loss of capacity to work. Moreover, the fulness of a man's life cannot be measured simply by the happiness which it brings to him; capacity to live fully includes capacity to suffer, to master adversity, to endure as well as to enjoy. Thus, unconsciousness is basic incapacity which ought not to be regarded as insignificant in itself and as depriving other injuries of their significance. Remarkable though it may be, a quadriplegic with a lively mind can live a life which seems worthwhile both to himself and to others, whereas a person whose incapacity includes loss of consciousness seems to me to have lost everything. If, therefore, damages are awarded as such compensation for injury as money can provide and part of the injury which a person suffers is brain injury, it seems to me odd that a disabled man who is conscious but not in pain should be awarded PD15,000 while a man additionally injured can recover but PD1,500 damages because he has been rendered permanently unconscious. The difference cannot, I think, be satisfactorily explained merely in terms of unhappiness from awareness of injury. From its very nature, however, unconsciousness does negative pain and suffering.

The basis of the dissenting judgments in Wise v Kaye ^[F173] and H. West & Son Ltd v Shephard ^[F174] was the decision of the House of Lords in Benham v Gambling ^[F175] that the loss of the expectation of life as a head of damage rates but a small arbitrary award. The process of reasoning which the minority judges in both Wise v Kaye ^[F176] and H. West & Son Ltd v Shephard ^[F177] followed was to say that a person who has been rendered permanently unconscious, whatever his injuries may be, has-once care and maintenance have been provided by a proper award-lost no more than the expectation of life, so that, in accordance with Benham v Gambling ^[F178] the award should be no more than a small arbitrary amount. Benham v Gambling, ^[F179] however, was decided to meet a particular situation that developed in England with the growing practice of making large awards for the loss of expectation of life as a separate head of damage. It has been explained thus (see (1954) 70 L.Q.R. at pp. 179, 180):

"The House of Lords was faced with the problem concerning compensation for loss of expectation of life which had been recognized as a head of damage in Rose v Ford. ^[F180] The large sums which juries were awarding had caused some consternation and, therefore, in the Benham Case ^[F181] the opportunity was seized to limit these. It was done, not by stating boldly that as a practical matter an arbitrary limitation had to be imposed, but by arguing that `the prospect of a predominantly happy life' was so uncertain that in the average case it ought not to be assessed at more than PD200. The true ground of the decision was thus concealed by generalities concerning happiness which many would be prepared to dispute".

This exceptional decision relating merely to damages for the loss of expectation of life affords no basis for reducing the damages which would otherwise have been awarded to an injured person for incapacity resulting from bodily harm-for example, loss of capacity to work, to see, hear or speak, to move, to respond in any way-simply because the capacity to appreciate the results of his injuries has also been destroyed. To apply to living persons an arbitrary rule designed to keep within limits the claims of estates of dead persons would, so it seems to me, be a substantial extension. Indeed, in Benham v Gambling ^[F182] Viscount Simon L.C., in speaking of this head of damage, said:

"... the compensation is not being given to the person who was injured at all ... Damages which would be proper for a disabling injury may well be much greater than for deprivation of life". ^[F183]

As to the attempt to treat "loss of happiness" as the measure of damages of an injured plaintiff, I would agree with Upjohn L.J. who in Wise v Kaye ^[F184] said:

"... it would be a misdirection by a judge to tell the jury that, apart from loss of earnings and so on, they ought to assess damages for loss of amenity by reference to a living plaintiff's loss of happiness. Damages are assessed not merely for the loss of the good or bright things of life, but for the disability which prevents the full living of life, including not only the good things but all that goes to make up a full life without that disability. Life is worth living even when it involves hard and sometimes unrewarding work, when it entails anxiety and unhappiness, fears and difficulties. These are the experiences of life, on the whole worth while, of which the plaintiff has been deprived. This plaintiff is surely entitled to point on the one side to the active and normal life, with its ups and downs, both valuable, she had every hope of leading, and on the other to the living death which she will lead for the rest of her life". ^[F185]

In my opinion, therefore, damages should have been assessed in accordance with the decisions in Wise v Kaye ^[F186] and H. West & Son Ltd v Shephard. ^[F187]

The second point in this case relates to the damages to be awarded for lost earning capacity. As to this his Honour followed the decisions of the Court of Appeal in Oliver v Ashman ^[F188] and Wise v Kaye ^[F189] and held that, in assessing future loss of earnings, it was wrong to take into account sums which the plaintiff would have earned during the normal span of his life had it not been shortened by injury. In my opinion Oliver v Ashman ^[F190] and Wise v Kaye ^[F191] in so far as it followed that decision, were wrongly decided. I have had the advantage of reading the judgment of Taylor J. in this case and on this point I agree with him. Indeed, I am inclined to think that the reduction of the damages for future loss of earnings made by the Court of Appeal in Wise v Kaye ^[F192] hardly squares with the refusal to reduce the general damages. The general damages awarded as compensation for lost capacity have the same character, whether or not the capacity which has been lost would have been used to earn money, notwithstanding that it is easier to assess damages for lost capacity to earn than for lost capacity to live a full life. It seems to me that if a great cricketer were to be rendered permanently unconscious by the negligence of another, the injured man would be entitled to substantial damages for lost capacity to play cricket, whether or not he happened to be an amateur or a professional. The distinction drawn in Wise v Kaye ^[F193] would seem to put the professional at a disadvantage.

I accept Taylor J.'s estimate of PD2,000 as the sum which should have been awarded to the appellant as damages for lost earning capacity. I agree, too, with his Honour's conclusion that the learned trial judge included in his award approximately PD1,100 which should not have been included. Moreover, I accept the figure of PD500 for diminished expectancy of life. In these circumstances, I think, damages including PD7,000 instead of PD1,500, should have been assessed at PD14,620 and, since that amount is to be reduced by twenty-five per cent because of the appellant's own negligence, I am of the opinion that judgment should be entered for PD10,965 instead of PD5,790.