As to interest on damages, Iwould restore the decision of the judge. accepted that the earlier authoritieswere in accord with Pope's case. ", My Lords, I am unable to accept that conclusion. The solicitors were conducting a claim on his behalf for damages, but when he died, they negligently discontinued the action. Then came Oliver v. Ashman [1962] 2 Q.B. In so ruling, the Court of Appeal followed its earlier decision in Semenoff v. Kokan (1991), 1991 CanLII 532 (BC CA), 59 B.C.L.R. If you would like to change your settings or withdraw consent at any time, the link to do so is in our privacy policy accessible from our home page.. It may be that 7.000 would be regarded by somejudges as on the low side, but even so, in my judgment it did not meritinterference. In the following year he instituted these pro-ceedings and, at the time of the hearing, he was a married man of 53 witha wife and two children. I would, therefore, allow the appeal and cross-appeal and remit the actionto the Queen's Bench Division to assess the damages in relation to theplaintiff's loss of earnings during the " lost years ". .Cited OBrien and others v Independent Assessor HL 14-Mar-2007 The claimants had been wrongly imprisoned for a murder they did not commit. Cited - Phillips v London and South Western Railway Co CA 1879 In an action against the railway company for personal injury to a passenger, a physician, making pounds 5,000 a year, and where is an increasing practice, . . . It is the loss which is sufferedby being kept out of money to which one is entitled. We and our partners use data for Personalised ads and content, ad and content measurement, audience insights and product development. In the circumstances of your Lordships' decision I agree with the orderfor remission proposed and for costs. Queen's Birthday Honours List 2021: full list of awards issued - including Arlene Phillips and Jonathan Pryce. But it does not, I suggest, make it unjust that suchdamages should be awarded. The damages are" in respect of loss of life, not of loss of future pecuniary prospects"(l.c. By clicking on this tab, you are expressly stating that you were one of the attorneys appearing in this matter. in Oliver v. Ashman, ante, at p. 240) the lost earnings are not" far too speculative to be capable of assessment by any court of law. Professor of Law. Assumptions, chances, hypotheses enterinto most assessments, and juries had, we must suppose, no difficulties withthem: the judicial approach however less robust can manage too. BANK OF ZAMBIA v CAROLINE ANDERSON AND ANDREW W. ANDERSON (1993 - 1994) Z.R. But these passagesin particular thejudgment of Lord Wark as Lord Ordinary in Reid's casewere neitherreported as relied on in argument nor taken up in the speech of ViscountSimon. And why should he be compensatedonly for the immediate reduction in his earnings and not for the loss ofthe whole period for which he has been deprived of his ability to earnthem? In the instant case the Court of Appeal has followed its dictum, disallowingthe interest granted by the judge on the damages for pain and suffering.My Lords, I believe the reasoning of the Court of Appeal to be unsound onthis point. Jefford v Gee (13) has since been overtaken by more recent cases. I think that in assessing those damages, there should be deducted theplaintiff's own living expenses which he would have expended during the" lost years " because these clearly can never constitute any part of his estate.The assessment of these living expenses may, no doubt, sometimes presentdifficulties, but certainly no difficulties which would be insuperable for thecourts to resolveas they always have done in assessing dependancy underthe Fatal Accidents Acts. 78. Updated: 01 November 2021; Ref: scu.190060. 210, the Court of Appeal decidedthat in an action for damages for personal injuries, whether brought bya living plaintiff or on behalf of the estate of a dead plaintiff, damages for. I recognise that there is a comparatively small minority of cases in whicha man whose life, and therefore his capacity to earn, is cut short, diesintestate with no dependants or has made a will excluding dependants,leaving all his money to others or to charity. Section 22. The claimant should not end up in a better position than they would have been in if the accident had not occurred. . On the other hand, Slesser L.J. A full list of legal databases can be found by title and all databases available at Oxford can be found on Databases A . There is force in this submission. Andto say that what calls for compensation is injured feelings does not providean answer to the vital question which is whether, in addition to thissubjective element, there is something objective which has been lost. He is no longer there to earn them, since he has" died before they could be earned. The same should follow ifthe damages remain in real terms the same. Why, he asked, should the tortfeasorbenefit from the fact that as well as reducing his victim's earning capacityhe has shortened his victim's life? If this assumption is correct, it provides a basis,in logic and justice, for allowing the victim to recover for earnings lost duringhis lost years. . Held: The plaintiff could recover their lost wages, albeit there was no suggestion of any agreement between the . The doctor failed to diagnose cancer. current Principal and Vice-Chancellor of McGill University. based that conclusion are obscure. Thereis the additional merit of bringing awards under this head into line withwhat could be recovered under the Fatal Accidents Acts. 210. [7] In Veronica Auguste v Tyrone Maynard et al SLUHCV1984/0440 recently deceased Matthew J helpfully explained that while damages under this head had traditionally been limited to a small conventional award for loss of expectation of life, the current approach adopted by our courts following the landmark decisions of Pickett v British Rail . In Oliver v Ashman [1962] 2 QB 210 a boy of twenty months was so seriously injured in a motor accident that he became mentally defective and incapable of any . In the British case of Pickett v. British Rail Engineering Ltd. (1980), A.C. 136 (H.L. Google Scholar. I conclude, therefore, that damages for loss of future earnings (andfuture expectations) during the lost years are recoverable, where the factsare such that the loss is not too remote to be measurable. The" plaintiff thus stands to gain by the delay in bringing the case to trial." [144] It is unimaginable that the appellants would have succeeded in having the common law changed to follow developments in English law as set out in Pickett (Administratrix of the Estate of Ralph Henry Pickett Deceased) v British Rail Engineering Limited [1980] AC 136. 256. As a result of the defendant's negligence, he has contracted adisease or suffered injuries which cut down his expectation of life to, say,five years and prevent him from earning any remuneration during thatperiod. And so we come to Oliver v. Ashman [1962] 2 Q.B. valves & compressors 1290 D Railway vehicles & equipment 09000 Textile machinery 1300 0 Road haulage METALS AN D METAL FABRICATION 13100 . much force in this, and no doubt the law could be changed in this way.But I think that the argument fails because it does not take account, as inan action for damages account must be taken, of the interest of the victim.Future earnings are of value to him in order that he may satisfy legitimatedesires, but these may not correspond with the allocation which the lawmakes of money recovered by dependants on account of his loss. First, the fallacy. A man who receives that assessed value would surelyconsider himself and be considered compensateda man denied it wouldnot. To this objection the law provides an answer: his estate will besubject to the right of dependants for whom no or no sufficient provisionhas been made to apply for provision under the Inheritance (Provision forFamily Dependants) Act, 1975. I am not at all surprisedthat it never occurred to that distinguished court that the " lost years " shouldbe ignored in assessing damages for loss of earnings: nor that it did notoccur to Sergeant Ballantine, who appeared for the defendants. VAT . the preferable solution, and, secondly, in demonstrating thatthis can properly be reached by judicial process. I am satisfied that it is right that the Court should bear in" mind the possibility; indeed, I would rate it as a probability.". I am far from beingpersuaded that the judge failed to take into account this element of Mr.Pickett's suffering. This was stated interms by the Lord Chancellor, who added (at p. 162) " . When, however, that case was in the Court of Appeal, [19771 3 W.L.R.279,the court did deal, obiter, with interest upon damages for non-pecuniary lossawarded to a living plaintiff in a personal injury case. does compensation mean when it is assessed in respect of a period afterdeath? Administration of Justice Act 1969,amending section 3. at p.238. 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. Birkett v Hayes [1982] 1 WLR 816 . It follows that it would be grossly unjust to the plaintiff andhis dependants were the law to deprive him from recovering any damagesfor the loss of remuneration which the defendant's negligence has preventedhim from earning during the " lost years". The plaintiffnow appeals against the refusal of interest upon the general damages andagainst the sum awarded for loss of future earnings. Turnover at the retailer shot up by 41% in the 20 weeks ending 14 JanuarySales at the company's UK railway outlets have been hit by recent strikes WH Smith has launched 40 new stores since the beginning of September . The defendants appealagainst the increase by the Court of Appeal in the award of generaldamages. But for his injury, Mr. Pickett could have expectedto work until normal retiring age (i.e. claim for loss of future pecuniary prospects", in myjudgment the proper conclusion is that, as Lord Morris of Borth-y-Gestsaid in West v. Shephard [1964] AC 326, at p.348: " The guidance given in Benham v. Gambling was, I consider," solely designed and intended to apply to the assessment of damages" in respect of the rather special ' head' of damages for loss of" expectation of life. . consideredthat what I call the two excised sentences in Viscount Simon's speech musthave been intended to apply to cases in which damages for loss of earningsduring the " lost years " are being claimed, because the speech by LordRoche in Rose v. Ford [1937] A.C. 826 and the judgment in Reid v.Lanarkshire Traction Co. (1934) S.C. 79, had been cited in the argument inBenham v. Gambling. . " In this case it was held that " it would be grossly unjust to the plaintiff and his dependants were the law to deprive him from recovering any damages for the loss of remuneration which the defendant's . That. In Pope v. D. Murphy & Son Ltd. [1961] 1 Q.B. There is another argument, in the opposite sensethat which appealed toStreatfeild J. in Pope v. Murphy (u.s.). Click here to remove this judgment from your profile. Cited Benham v Gambling HL 1941 The injured person was a child of two and a half. nursing care, shopping, gardening if caused by D's negligence. In myopinion, to ignore the " lost years " would be to ignore the long establishedprinciples of the common law in relation to the assessment of damages. Again he might at the trial beshown to be the sole beneficiary under the will of a rich relation whose agemade it probable that the testator would die during the lost years, andwhose testimony at the trial was that he had no intention of altering hiswill: in such cases presumably an allowance in damages would require tobe made for the lost, and may be valuable, spes successionis: unless thetestator was an ancestor of the plaintiff and the plaintiff was likely to havechildren surviving him. MLB headnote and full text. 94 Taylor J. referred to " the anomaly that would arise if Oliver v." Ashman is taken to have been correctly decided ", adding, " 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. The claim was confined solely to damages for theloss of expectation of life. The assessor had deducted from their compensation a sum to represent the living costs they would have incurred if living freely. Is he not entitled to say, at one moment I am aman with existing capability to earn well for 14 years: the next momentI can only earn less well for one year? of both the estateand the dependants recovering damages for the expected earnings of thelost years. agreed with both judgments, and it is difficult to regardas other than accurate the headnote which attributes to all three membersof the Court the view expressed by Slesser L.J. Only full case reports are accepted in court. The judge,inheriting the function of the jury, must make an assessment which in theparticular case he thinks fair: and, if his assessment be based on correctprinciple and a correct understanding of the facts, it is not to be challenged,unless it can be demonstrated to be wholly erroneous: Davies v. PowellDuffryn Associated Collieries Ltd. [1942] A.C. 601. But, as I have already sought to show, the House of Lords had not concludedthe matter, and it would have been sounder to say that the point had beendisposed of in Roach v. Yates (ante) by the Court of Appeal itself in favourof the plaintiff. They may vary greatly from caseto case. Brett and Cotton L.JJ. One cannot make a distinction, for the purposes of assessingdamages, between men in different family situations. would" reasonable have incurred . (per Willmer L.J. 56 they say, " There seems to be no justification in principle for discrimination" between deprivation of earning capacity and deprivation of the" capacity otherwise to receive economic benefits. said at page 87: " That comes to this, you are to consider what his income would" probably have been, how long that income would probably have" lasted, and you are to take into consideration all the other contin-" gencies to which a practice is liable. . . The sentences read as follows : " Of course, no regard must be had to financial losses or gains during" the period of which the victim has been deprived. But in fact the bigger award is madesimply to put the plaintiff in the same financial position as he would havebeen had judgment followed immediately upon service of the writ. And he summed it all up when he said that he had endeavoured to takeinto account " all the features of the tragic situation in which Mr. Pickett" finds himself." The decision of this House in Rose v. Ford [19371 A.C. 826 that aclaim for loss of expectation of life survived under the Act of 1934, andwas not a claim for damages based on the death of a person and sobarred at common law (c.f. . Furthermore, the sugges-tion that the defendant is prejudiced overlooks the fact that he has meanwhilehad the use of the money. Danny Howard Duncan, Administrator of the Estate of Dean Anthony Duncan, deceased, on behalf of the Estate of Dean Anthony Duncan, deceased, and on behalf of Phyllis Duncan and Trevor Scott Duncan, and Phyllis Duncan, Trevor Scott Duncan, infant by his Next Friend, Danny Howard Duncan and Danny . But this is theresult of authority binding on the judge and the Court of AppealOliver v.Ashman [1962] 2 Q.B. Mechanical Engineering Department, University of Concepcion . . . erroneous. The reference to and reliance upon the principle in Pickett v. British Rail Engineering Ltd. as we may indicate presently, appears to us somewhat misplaced. 774 (H.L.)) When the Fatal Accidents Acts 1846 to 1908 were passed, it is, in myview, difficult to believe that it could have occurred to Parliament that thecommon law could possibly be as stated, many years later, by the Courtof Appeal in Oliver v. Ashman [1962] 2 Q.B. He is no longer there to earn them, since he has" died before they could be earned. This applies to that element" in damages for personal injuries which is commonly called ' loss of, " ' earnings '. (p. 228). Nothing can be clearer than the duty placed upon the courtto give interest in the absence of special reasons for giving none. The case came for trialbefore Stephen Brown J. who on 12 October 1976 awarded damages undervarious heads. But I suspect that the point willneed legislation. Mr. Pickett, who was the plaintiff in the action, claimed damages fromthe defendants, British Rail Engineering Ltd., his employers, for seriouspersonal injury sustained in the course of his employment. I shall deal briefly with the other issues. . This creates a difficulty. In either event, there would be a windfall for strangers at the expenseof the defendant. a life interest or an inheritance? That casewas dealing only with a head of damages for loss of expectation of lifewhich, as was there stressed, is not a question of deprivation of financialbenefits at all. It may not be unfair to paraphrase themas saying: " Nothing is of value except to a man who is there to spend or" save it. My Lords, if more recent periods in the House exemplify excessive multi-plication of speeches, there are instances, of which this must certainly beone, where a single speech may generate uncertainty. Cited Pope v D Murphy and Son Ltd QBD 1961 Both the injured plaintiffs 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 plaintiffs pre-accident expectation of life. Slade J.who gave that judgment attempted, I think unsuccessfully, to explain awaywhat had been said in Phillips v. London & South Western RailwayCompany and Roach v. Yates. Engineering. from p.228 onwards, and that of. My noble and learned friend, Lord Diplock, con-cluded his speech with these words: " The question of damages for non-economic loss, which bulks large" in personal injury actions, however, does not arise in the instant case." Generally, the amount recoverable may be limited where, for instance, the deceased's character or habits were calculated to . Ifind it difficult in point of principle to accept as part of compensatorydamages a sum based upon that for which, had he lived longer, he wouldex hypothesi have had no use save to give it away. So did Wilmer and Pearson L.JJ. The damages are" in respect of loss of life, not of loss of future pecuniary interests.". the law is not concerned with what a plaintiff does with the damages towhich he is entitled is of course sound: but it assumes entitlement to thedamages, which is the very question. In most cases of this kind, the plaintiff, whether or not he knows he islikely to die as a result of the defendant's negligence, will bring his case tocourt or settle it as soon as possible because he is in urgent need of thatpart of the damages to which he is entitled, so that he may support himselfand his family during his life. Continue with Recommended Cookies, The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. This assumption is supported by strongauthority; see Read v. Great Eastern Railway Company (1868) L.R. The good-looking Vauxhall Victor FE Series went on sale in 1972 and was met by indifference from the motoring press. Keith Adams tells the story of the ambitiously-named . Held: The House assumed that, because the claimant had brought a successful claim for his personal injury, a claim by his dependants under the Fatal Accidents Act was precluded, although Lord Salmon emphasised that he expressed no concluded opinion about the correctness of that assumption. Notwithstanding itscitation by Upjohn L.J. Thedefendant cross-appealed on the ground that the award was too high. It seems, therefore, strange andunjust that his claim for loss of earnings should be limited to that one year(the survival period) and that he should recover nothing in respect of theyears of which he has been deprived (the lost years). He then went on, carefully, to explain all the factors to be taken intoaccount in assessing those damages and to stress the necessity formoderation, which he perhaps emphasised by reducing the damages, inthe circumstances of that case, to 200. Get 2 points on providing a valid reason for the above The policy of the Acts was, in my opinion, clearly to put thatman's dependants, as far as possible, in the same financial position as theywould have been in if the bread-winner had lived long enough to obtainjudgment against the tortfeasor. 617 Slade J. doubted that this wasso, and held that no compensation could be awarded for earnings duringthe " lost years " to a plaintiff of thirty-seven whose expectation of life hadbeen reduced to two years. There was a reference to the speech ofLord Roche in Rose v. Ford and to the judgment of Lord Blackburn inthe Inner House in Reid v. Lanarkshire Traction Co. 1934 S.C. 79. It always has to answera question which in the end can hardly be more accurately framed than asasking, " Is the loss of this something for which the claimant should and, The respondent, in an impressive argument, urged upon us that the realloss in such cases as the present was to the victim's dependants and thatthe right way in which to compensate them was to change the law (bystatute, judicially it would be impossible) so as to enable the dependantsto recover their loss independently of any action by the victim There is. Following the much anticipated decision of the Court of Appeal in Swift v Carpenter John Ross QC and Thomas Yarrow provide a comprehensive analysis of the difficulties accommodation claims present . We and our partners use cookies to Store and/or access information on a device. The judge also awarded 500for loss of expectation of life, and the total for which he gave judgmentwas 14,947.64. him nothing in respect of the remuneration he would, but for the defendant'snegligence, have lost during the next 10 yearscommonly known in casessuch as these as the " lost years ". But if there is a choice between taking a viewof the law which mitigates a clear and recognised injustice in cases of normaloccurrence, at the cost of the possibility in fewer cases of excess paymentsbeing made, or leaving the law as it is, I think that our duty is clear. The Courtof Appeal increased the award of general damages to 10,000; but refusedto allow interest upon this award. Mr. Pickett appealed to the Court of Appeal against this judgment, butbefore the appeal was heard he died. The damages are" in respect of loss of life, not of loss of future pecuniary prospects.". V. 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