Skelton v Collins

115 CLR 94

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(Judgment by: WINDEYER J)

Between: SKELTON
And: COLLINS

Court:

Judges: Kitto J
Taylor J
Menzies J

Windeyer JOwen 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

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Judgment by:
WINDEYER J

The assessment of damages for personal injuries is today a constant task for courts. Yet I have long thought that the law does not meet the needs of our time. We live in an age that is dominated by scientific, mechanical and technological activities, their risks largely covered by insurance: but the processes of the law do not, it seems to me, provide in a scientific and logically consistent way for the casualties that result from those activities. Moreover, the procedures involved in the assessment and awarding of damages for personal injuries sometimes delay or impede the recovery and rehabilitation of injured persons. Courts have, however, been left to meet a modern problem by applying, with some adaptation, the pronouncements of a different age. The only far-reaching contributions of the legislatures have been superimposing upon the law of negligence systems of workers' compensation based upon compulsory insurance and instituting a system of compulsory insurance against liability for traffic accidents. The present case makes it necessary for us to consider three questions each of which has become tangled in much diversity in judicial reasoning. They are:

First, whether damages for loss of earning capacity should be estimated by reference to the reduced period of life of a plaintiff whose years have been made less by his injuries, or, on the other hand, by reference to the whole period during which he would have been capable of earning had he not been injured.

Secondly, whether a plaintiff made by his injuries permanently unconscious, or deprived permanently of mental capacity, is entitled to have any sum by way of general damages for his loss of capacity to enjoy life as a normal person would.

Thirdly, what general damages should a plaintiff have if he has been deprived of mental capacity and also of years of expected life.

These questions have been much discussed. I have already stated my views on some aspects of them in Teubner v Humble. ^[F194] Nothing that I have heard or read since then has caused me to change my opinions. But I must consider whether I must now relinquish them. One passage from what I previously wrote I venture to repeat:

"So-called principles of assessment of damages for personal injuries can be made the subject of almost endless discussion. The consequences of such injuries are not all susceptible of evaluation in money, and seeming logic can be pushed too far". ^[F195]

The one principle that is absolutely firm, and which must control all else, is that damages for the consequences of mere negligence are compensatory. They are not punitive. They are given to compensate the injured person for what he has suffered and will suffer in mind, body or estate. Only so far as they can do so is he entitled to have them. The significance of this fundamental consideration is emphasized when one bears in mind that the defendant in an action for negligence is often not the actual tortfeasor, but is his employer vicariously liable; and that, more often than not, the burden of damages for negligence falls upon an insurance company. As Lord Radcliffe has remarked, we live in a "society that has been almost revolutionized by the growth of all forms of insurance": Lister v Romford Ice and Cold Storage Co Ltd. ^[F196] Courts have been reluctant to allow juries to recognize this. But it would be naive to suppose that it has not given a new horizon to damages, whether they be assessed by judge or jury. And, in my opinion, it is wise to remember it. Doing so helps to ensure that neither sympathy for the situation of the wrongdoer nor indignation at his conduct will influence the assessment: attention is concentrated, as it should be, upon the claim of the plaintiff to compensation.

The general principle that damages are compensatory yields what seem to me to be some equally sure, but more particular, doctrines. The first is that a plaintiff is entitled to be recompensed for expenses, such as for medical and nursing attention, that he incurs, or that are incurred on his behalf, as a consequence of his injury.

The next rule that, as I see the matter, flows from the principle of compensation is that anything having a money value which the plaintiff has lost should be made good in money. This applies to that element in damages for personal injuries which is commonly called "loss of earnings". The destruction or diminution of a man's capacity to earn money can be made good in money. It can be measured by having regard to the money that he might have been able to earn had the capacity not been destroyed or diminished. Of course, the monetary equivalent of the loss of capacity is not ascertainable with precision by a simple arithmetical calculation: assumptions and adjustments must be made. But what is to be compensated for is the destruction or diminution of something having a monetary equivalent. The plaintiff could, if he had not been injured, have sold his labour and his skill or the fruits of his labour and his skill. I cannot see that damages that flow from the destruction or diminution of his capacity to do so are any the less when the period during which the capacity might have been exercised is curtailed because the tort cut short his expected span of life. We should not, I think, follow the English decisions in which in assessing loss of earnings the "lost years" are not taken into account. I agree in what my brother Taylor has said about those cases and with his conclusion on this aspect. I am content to accept the amount that he proposes under the head of loss of earning capacity.

The next matter depends upon very different considerations. It turns upon the plaintiff's being deprived of something that he could not have sold, his ability to enjoy in the way that he formerly could whatever life should offer. A man whose capacity for activity, mental or physical, is impaired, so that no longer can he get satisfaction and enjoyment from things that he was accustomed to do and cannot do what he had planned or hoped to do, has not lost a thing the value of which for him can be measured in money by any process of calculation or estimation that I can understand. This consequence of an injury may be called by the convenient phrase, "loss of amenities", or be described more elaborately and in more elegant words. However described, it is not a loss of something in the same sense that loss of a possession or of earning capacity is. A man who loses a limb, his eyesight, or his mind, does not lose a thing that is his, as his ox or his ass or his motor car is his, but something that is a part of himself, something that goes to make up his personality. I am not prepared to carry Cartesian doctrine so far as to distinguish here between injuries to body and mind. I am unable myself to understand how monetary compensation for the deprivation of the ability to live out life with faculties of mind and body unimpaired can be based upon an evaluation of a thing lost. It must surely be based upon solace for a condition created not upon payment for something taken away.

Still less can I grasp the idea that a man's life is a possession of his that can be valued in money. This must be for many people repugnant to opinions, sometimes half felt sometimes deeply held, about the meaning of life and death, duty and destiny. And for others, less attached or persuaded in their opinions, it must be unacceptable simply because life and money are essentially incommensurable. And the idea does not become more easily acceptable when the measure of the worth of life is said to be a balance of happiness over unhappiness. In some of the judgments and articles that I have read the postulated inquiry seems to depend upon some doctrine of Epicurean hedonism, in others upon a conviction that tribulation endured does not deprive life of value. The differing views have been eloquently expressed. But for myself I doubt the relevance to the present question of any particular philosophy. For the question is not, I think, Is life a boon?-but, Are the years of life that a man expects something that belongs to him, the loss of which can be measured in money? I appreciate that the House of Lords has said that, in this matter, one does not consider the individual but the lot of mankind in general, and that their Lordships in 1941 thought that, on that basis, "damages for the loss of a measure of prospective happiness" should be reckoned at two hundred pounds: Benham v Gambling. ^[F197] (Apparently this sum is now to be increased because the purchasing power of money has fallen, so that the money value of life has risen.) It is important to notice exactly what Viscount Simon 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. Such a problem might seem more suitable for discussion in an essay on Aristotelian ethics than in the judgment of a Court of law, but in view of the earlier authorities, we must do our best to contribute to its solution". ^[F198]

Probably his Lordship meant by his reference to Aristotle's Ethics that the word "happiness" was to be understood in the wider sense of welfare or well-being. The judgment dealt with a problem that had been posed for their Lordships by earlier decisions including Rose v Ford; ^[F199] and they had to seek a solution within the confines thus created. I confess that I have misgivings about some of the reasoning that has been devoted by courts to this question. I recognize, of course, the high authority of the pronouncements that have been made. And I would not presume to express my own thought that law has here got into depths that it cannot plumb, were it not that I find some learned persons have thought so too. I may refer in particular to an article Expectation of Happiness by Professor Kahn-Freund in the Modern Law Review, vol. 5, p. 81, which I have recently read and which expresses views that accord nearly with some of those that I had formed.

I do not for a moment doubt that a man who has been deprived of the opportunity to live his life as he would have wished, and for as long as he might have expected, may, if he retains sufficient intellectual capacity to know his misfortune, feel distressed and frustrated. He is, I do not doubt, entitled to compensation for what he suffers. Money may be a compensation for him if having it can give him pleasure or satisfaction. If his expected years of life have been made less, money may enable him to cram more into the time that remains. If he has been deprived of the ability to do some things that he had enjoyed doing or had hoped to do, then money may enable him to enjoy other things instead. But the money is not then a recompense for a loss of something having a money value. It is given as some consolation or solace for the distress that is the consequence of a loss on which no monetary value can be put. I have, for convenience, used the word "recompense" to make this contrast. There is really no one word that I know which is sufficiently explicit. "Reparation" is unsuitable because in the law of Scotland, and of France, it is used to cover all forms of damages. The words do not matter however, for the distinction between a loss of a thing on which a money value can be put and the distress of mind and sense of loss for which money is only a solace is, I consider, basic and real. It is, as I understand French law on the subject, the distinction that it makes between le dommage matériel and le dommage moral. The correlatives of the two kinds of damage are the two grounds of damages, which I have called "recompense" and "solace". This, I think, provides the solution to the question that we have to consider.

Of course, recognizing that general damages for "loss of amenities", including distress and concern caused by a knowledge of the curtailment of life, are by way of solace does not help much towards determining what amount it is proper to award in a particular case. In the case of persons seriously injured, but fully conscious of their condition, I have myself thought in other cases that amounts of PD3,000 or even more might properly be awarded under this head. But I confess to knowing no real measure that can be used. The only guide suggested is fairness and moderation, whatever those may denote.

It is the same perplexity that surrounds the measuring of damages for pain and suffering. It may be that giving damages for physical pain that is wholly past, not continuing and not expected to recur, is simply an anomaly, for there can be no solace for past pain. Lord Halsbury saw this when, after remarking that it was arguable whether damages for this should be allowed, he said, "What manly mind cares about pain and suffering that is past? But nevertheless the law recognizes that as a topic upon which damages may be given".

The Mediana ^[F200] This may be a lingering result of the element of retribution by the wrongdoer which seemingly once had a place in damages for trespass. Pain and suffering is now generally regarded as an element to be remembered in estimating general damages, not as something to be separately assessed. As it is not suggested that any amount should have been allowed to this plaintiff for pain and suffering, I need not consider it further.

Coming now directly to the present case: The plaintiff was entitled to have his economic loss made good. He was entitled to have whatever amount could be anticipated as necessary to ensure that he would have for the rest of his life such comfort and attention as could be provided for him. But, as my brother Taylor has pointed out, amounts provided for this future maintenance ought to be taken into account in calculating his economic loss, otherwise there is a duplication. Was he also entitled to general damages for loss of amenities and expectation of life? I see no justification for separating these as elements of general damage. Hale J., after carefully considering the problem created for him by conflicting decisions and inconsistent reasoning, thought that he should allow PD1,500 in addition to economic loss. He said, however:

"I would merely add that if it is ultimately held that the correct principle is that there should be no award beyond economic loss unless there is at least a chance that the additional sum can be used for the advantage of the plaintiff then on the evidence and admissions in this case there should be no such additional award".

In my view, his Honour, having thus held that on the evidence there was not even a chance that the additional sum could be used for the advantage of the plaintiff, ought not to have awarded it. It could not bring any advantage or consolation to the plaintiff. Consolation presupposes consciousness and some capacity of intellectual appreciation. If money were given to the plaintiff he could never know that he had it. He could not use it or dispose of it. It would simply go to his legal personal representatives on his death. It would be of no more benefit to him personally than sending the defendant to gaol would be. He is not, like Samson Agonistes, aware and able to bemoan his fate "to live a life half dead, a living death". His existence is in very truth a living death. I would therefore decide, if I be free to do so, that the award made by his Honour should be increased in respect of the amount he allowed for loss of earning capacity, but that his Honour was in error in allowing the sum of PD1,500 for general damages.

The question remains, Am I free to come to that decision, or is it so far out of harmony with the current of authority that I must abandon it and accept another view as the revealed dogma of the law? This question arises mainly as the result of decisions in England. I may say at once that I agree in what my brother Owen has written, in the judgment which he is about to deliver, as to the position of courts in Australia when judgments of the House of Lords and of this Court conflict. The position of this Court itself in relation to the House of Lords is not, I think, open to doubt. But, because the matter was adverted to, I shall state for myself why I say so.

In a passage in the judgment of the Privy Council in Robins v National Trust Co ^[F201] it was said that "the House of Lords ... is the supreme tribunal to settle English law, and that being settled, the Colonial Court, which is bound by English law, is bound to follow it". ^[F202] This proposition is not true for the Commonwealth of Australia. It was expressly recognized in Piro v W. Foster & Co Ltd ^[F203] that this Court is not technically bound according to a strict theory of precedent by a decision of the House of Lords. The assertions in that case that the decisions of the House of Lords should nevertheless ordinarily be followed are strong; but they are not absolute.

Our ancestors brought the common law of England to this land. Its doctrines and principles are the inheritance of the British race, and as such they became the common law of Australia. To suppose that this was a body of rules waiting always to be declared and applied may be for some people satisfying as an abstract theory. But it is simply not true in fact. It overlooks the creative element in the work of courts. It would mean for example, that the principle of Donoghue v Stevenson, ^[F204] decided in the House of Lords in 1932 by a majority of three to two, became law in Sydney Cove on 26th January 1788 or was in 1828 made part of the law of New South Wales by 9 Geo. IV c. 83, s. 25. In a system based, as ours is, on case law and precedent there is both an inductive and a deductive element in judicial reasoning, especially in a court of final appeal for a particular realm or territory.

It is, of course, impossible for anyone to say that a decision of the House of Lords is wrong in the sense of not a correct decision according to the law of England prevailing in England. But how far the reasoning of judgments in a particular case in England accords with common law principles that are Australia's inheritance is a matter that this Court may have sometimes to consider for itself. This Court is the guardian for all Australia of the corpus iuris committed to its care by the Imperial Parliament. The Constitution makes its judgments in its appellate jurisdiction final and conclusive. As the Court has said:

"According to the ordinary course of the administration of justice in and for the Commonwealth of Australia, the judgment of this Court is final. The exercise of the prerogative to admit an appeal to Her Majesty in Council is an exceptional measure governed by special considerations: it would not be in accordance with the position which this Court occupies under the Constitution for it to proceed otherwise in the performance of its duties than as a final court of appeal": Ebert v The Union Trustee Co of Australia Ltd. ^[F205]

This is not the place for an essay on jurisprudence or a full consideration of the theoretical problem of reconciling a common heritage of doctrine with the development of differing doctrines. It is enough I think to say that our inheritance of the law of England does not consist of a number of specific legacies selected from time to time for us by English courts. We have inherited a body of law. We take it as a universal legatee. We take its method and its spirit as well as its particular rules. A narrower view than this would put a sad strain upon allegiance. Here, as it is in England, the common law is a body of principles capable of application to new situations, and in some degree of change by development. Lord Reid recently said in the House of Lords:

"I have never taken a narrow view of the functions of this House as an appellate tribunal. The common law must be developed to meet changing economic conditions and habits of thought, and I would not be deterred by expressions of opinion in this House in old cases": Myers v Director of Public Prosecutions. ^[F206]

And we, in this Court, need not, in exercising our functions as an appellate tribunal, be deterred by expressions of opinion in their Lordships' House in old cases or new cases. Nevertheless I believe that we must not only give respectful attention to whatever is said there, but that the decision of the majority of their Lordships on questions of common law will ordinarily be followed in this Court, leaving it to the Australian legislatures to correct the result if they think fit. But all judgments of the House of Lords are not equally persuasive and all statements in all speeches of their Lordships are not equally acceptable. This Court must consider the question for itself; and all the more so, it seems to me, if the decision in England was reached after reference only to English decisions, not to the state of the law elsewhere, and seemingly to meet only economic and social conditions prevailing in England. And too what is said is less persuasive when law is as it were fluid and when the conditions which it is being developed to meet are not the same in England and Australia. The law of damages, especially damages for personal injuries, is of that kind. It is a branch of the law in which further developments and fresh refinements in the application of principles are still going on: and the backgrounds against which it operates are not the same in England and in Australia. Various circumstances, locally known as existing in any community, such as welfare services, pensions, hospital aid, sick pay, rates of wages and so forth, are taken into account directly or indirectly, deliberately or unconsciously, by judges and juries when assessing damages for personal injuries. Uniformity and solidarity of law throughout the countries inhabited by British peoples may up to a point be a good in themselves. But too much store can be set upon uniformity of law when it operates in conditions that are not uniform. This Court has very recently said so by refusing to follow decisions of the Court of Appeal on some aspects of the law of damages: Jones v Gleeson. ^[F207] And it is saying so now in refusing to follow Oliver v Ashman ^[F208] and Wise v Kaye. ^[F209] I do not think that the law of damages for personal injuries has yet reached such a state of finality, clarity and consistency that we should in this Court and for this country simply accept the views of the majority of the House of Lords in H. West & Son Ltd v Shephard. ^[F210] Moreover, parts of what was said in that case do not stand easily with what the House of Lords had said in 1941.

For reasons which I have already given, I do not find the underlying assumptions of the judgment in Benham v Gambling ^[F211] about the worth of life easy to make, even as mere assumptions. But putting that aside, I-for the sake of conformity with the views of most of my brethren, but not from conviction-agree that we can be guided in this case by what was said in that case. We can accept it as an ipse dixit of the law. I am grateful for the analysis of its meaning that my brother Kitto has proffered in his judgment, which I have had the benefit of reading and studying. Although it seems to me that the sum of PD1,500 awarded in this case was more than was justified on the basis of Benham v Gambling, ^[F212] I, again for conformity, agree in the order proposed. I confess that I do so the more readily because it seems that the plaintiff lived for a longer time than the learned trial judge reckoned on when he estimated what should be allowed for future medical and nursing expenses. This, of course, only shows how unsatisfactory in an insurance age is the system of lump sum damages to cover future outgoings.

I can only hope that some day the law will provide some better way of meeting the consequences of day-to-day hazards than by actions for negligence and a measuring of damages by unprovable predictions, metaphysical assumptions and rationalized empiricism.

I agree that the appeal should be allowed and the judgment of the Supreme Court varied as proposed by Kitto J.