Pickett v British Rail Engineering Ltd [1978] UKHL 4 (02 November 1978)

PICKETT (ADMINISTRATRIX OF THE ESTATE OF
RALPH HENRY PICKETT DECEASED) (APPELLANT)

v.
BRITISH RAIL ENGINEERING LIMITED (RESPONDENTS)

PICKETT (ADMINISTRATRIX OF THE ESTATE OF
RALPH HENRY PICKETT DECEASED) (RESPONDENT)

BRITISH RAIL ENGINEERING LIMITED (APPELLANTS)

[Conjoined Appeals]

Lord Wilberforce
Lord Salmon
Lord Edmund-Da vies
Lord Russell of Killowen
Lord Scarman

Lord Wilberforce

my lords,

This appeal raises three questions as to the amount of damages which
ought to have been awarded to Mr. Ralph Henry Pickett (” the deceased “)
against his employer, the respondent, for negligence and/or breach of
statutory duty.

From 1949 to 1974 Mr. Pickett was working for the respondent in the
construction of the bodies of railway coaches, which work involved contact
with asbestos dust. In 1974 he developed symptoms which proved to be
of mesothelioma of the lung, of which he later died.

On 14 July 1975 he issued a writ against the respondent claiming damages
for personal injuries or physical harm. The respondent admitted liability
but contested the issue of quantum of damages. The case came for trial
before Stephen Brown J. who on 12 October 1976 awarded damages under
various heads. Those in issue in this appeal were three: (1) £7,000 by
way of general damages in respect of pain, suffering and loss of amenities;
(2) £787.50 as interest on the £7,000 at 9 per cent from the service of the
writ; (3) £1,508.88 as a net sum in respect of loss of earnings. This sum
was based on a finding that the deceased’s expectation of life had been
reduced to one year from the date of trial, and the loss of earnings related to
that period i.e., the period of likely survival. The judge also awarded £500
for loss of expectation of life, and the total for which he gave judgment
was £14,947.64.

Mr. Pickett appealed to the Court of Appeal against this judgment, but
before the appeal was heard he died. An order to carry on the proceedings
was made in favour of his widow as administratrix of his estate. The
appeal was heard in November 1977. The Court of Appeal did not award
any sum for loss of earnings beyond the survival period but increased the
general damages award to £10,000, without interest.

The appellant now appeals to this House contending that a much larger
amount ought to have been awarded in respect of loss of future earnings.
She also claims that interest should be awarded on the general damages.
The respondent appeals against the award of £10,000 general damages.

In 1974, when his symptoms became acute, the deceased was a man of
51 with an excellent physical record. He was a champion cyclist of
Olympic standard, he kept himself very fit and was a non-smoker. He
was leading an active life and cycled to work every day. He had a wife
and two children. There was medical evidence at the trial as to his
condition and prospects, which put his then expectation of life at one
year: this the judge accepted. There can be no doubt that but for his
exposure to asbestos dust in his employment he could have looked forward
to a normal period of continued employment up to retiring age. That

exposure, for which the respondent accepts liability, has resulted in this
period being shortened to one year. It seems, therefore, strange and
unjust 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 the
years of which he has been deprived (the lost years). But this is the
result of authority binding on the judge and the Court of Appeal—Oliver v.
Ashman [1962] 2 Q.B. 210. The present is, in effect, an appeal against
that decision.

Oliver v, Ashman is part of a complex of law which has developed
piecemeal and which is neither logical nor consistent. Judges do their
best to make do with it but from time to time cases appear, like the
present, which do not appeal to a sense of justice. I shall not review in
any detail the state of the authorities for this was admirably done by
Pearce L.J. in Oliver v. Ashman. The main strands in the law as it
then stood were:

1. 1. The Law Reform Miscellaneous Provisions Act 1934 abolished the
    old rule ” actio personalis moritur cum persona ” and provided for the
    survival of causes of action in tort for the benefit of the victim’s estate.
  2. The decision of this House in Rose v. Ford [19371 A.C. 826 that a
    claim for loss of expectation of life survived under the Act of 1934, and
    was not a claim for damages based on the death of a person and so
    barred at common law (c.f. The Amerika [1917] A.C. 38).
  3. The decision of this House in Benham v. Gamblin [1941] A.C. 157
    that damages for loss of expectation of life could only be given up to a
    conventional figure, then fixed at £200.
  4. The Fatal Accidents Acts under which proceedings may be brought
    for the benefit of dependants to recover the loss caused to those dependants
    by the death of the breadwinner. The amount of this loss is related to
    the probable future earnings which would have been made by the deceased
    during ” lost years “.

This creates a difficulty. It is assumed in the present case, and the
assumption is supported by authority, that if an action for damages is
brought by the victim during his lifetime, and either proceeds to judgment
or is settled, further proceedings cannot be brought after his death under
the Fatal Accidents Acts. If this assumption is correct, it provides a basis,
in logic and justice, for allowing the victim to recover for earnings lost during
his lost years.

This assumption based upon the wording of section 1 of the Act of 1846
(now section 1 of the Act of 1976) and is not supported by any decision
of this House. It cannot however be challenged in this appeal, since there
is before us no claim under the Fatal Accident Acts. I think, therefore,
that we must for present purposes act upon the basis that it is well founded,
and that if the present claim, in respect of earnings during the lost years,
fails, it will not be possible for a fresh action to be brought by the deceased’s
dependants in relation to them.

With this background, the case of Oliver v. Ashman may now be con-
sidered. I shall deal with it on authority and on principle.

It is clear from the judgment of Pearce L.J. that he considered that, apart
from the decision in Benham v. Gambling, there was, at the least, a case
for giving damages in respect of the lost years. Thus he says :

” On one view of the matter there is no loss of earnings when a
” man dies prematurely. He is no longer there to earn them, since he
” has died before they could be earned. He has merely lost the
” prospect of some years of life which is a complex of pleasure and
” pain, of good and ill, of profits and losses. On the other view he
” has, in addition to losing a prospect of the years of life, lost the income
” he would have earned, and the profits that would have been his had
” he lived “. (p. 228).

He then proceeded to examine Benham v. Gambling and reached the
conclusion that it was a binding authority in favour of the first view.

The critical passage in the speech of Viscount Simon L.C. was that con-
taining these words:

” 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”
(l.c. p. 167).

My Lords, if more recent periods in the House exemplify excessive multi-
plication of speeches, there are instances, of which this must certainly be
one, where a single speech may generate uncertainty. How far was Viscount
Simon intending to go? Was he intending to lay down a principle ” in
” clear and careful terms ” of general application? Or are his words to be
related to the case then before this House? These and other perplexities
might well have been resolved if any of the five (sic) other learned Lords
had expressed his views in his own words. It is, of course, the function of
this House to lay down general rules, to reduce the partialities of previous
decisions to some simple universal, but even after the most comprehensive
of arguments there remain aspects of a legal problem which were not in view
when the decision is reached. Benham v. Gambling was a case of a small
child (two and a half years old) almost instantly killed: the claim was for
loss of expectation of life: there was no claim for loss of future earnings.
Claims for loss of expectation of life, validated by Flint v. Lovell [1935]
1 K.B. 354, and held to survive in Rose v. Ford, had begun to proliferate,
and sums of differing amounts, some quite large, had begun to be awarded.
The judge in Benham v. Gambling had awarded £1,200. There was a clear
need to bring order into this situation and the solution, to fix a conventional
sum, was adapted to this need. The quoted words of Viscount Simon can
well be understood as expressing no more than a principle for assessing
damages under this particular heading of life expectation and as saying no
more than that there was not inherent in a claim for such damages any
claim for pecuniary loss arising from the loss of earnings.

Apart from these general considerations, such references as can be made
to the argument point both ways. There was a reference to the speech of
Lord Roche in Rose v. Ford and to the judgment of Lord Blackburn in
the Inner House in Reid v. Lanarkshire Traction Co. 1934 S.C. 79. It was
said that in each of these cases passages can be found to support the
proposition that loss of earnings can only be recovered as an element in
the loss of expectation of life. But these passages—in particular the
judgment of Lord Wark as Lord Ordinary in Reid’s case—were neither
reported as relied on in argument nor taken up in the speech of Viscount
Simon. So I do not find here any support for the argument that his
Lordship was dealing with loss of earnings in any way. Secondly, as the
reporter mentions in a parenthesis ([1941] A.C. 159) mention was made
in argument of the recent Court of Appeal case of Roach v. Yates [19381]
1 K.B. 256. The headnote in that case describes it as deciding that damages
for earnings during the lost years can be recovered. Whether that headnote
is wholly accurate or not, it is inconceivable that Viscount Simon would
have made no mention of the case if, as is contended, he was laying down
a rule to govern the assessment of damages for loss of earnings in the
future. If he was, he must have expressed disagreement with it.

The conclusion must be (and to my mind it is clear) that Benham v.
Gambling was no authority compelling the decision in Oliver v. Ashman.
It was not dealing with, and Viscount Simon did not have in mind, a claim
by a living person for earnings during the lost years. Once this is
established, the two views stated by Pearce L.J. remain open, and on them
the existing balance of authority was slightly the other way (see Phillips
v. London & South West Railway Co. 4 Q.B.D. 406, 5 Q.B.D. 78, Roach
v. Yates (u.s.) Pope v. D. Murphy & Son Ltd. [1961] 1 Q.B. 222;
Harris v. Brights Asphalt Contracors Ltd. [1953] 1 Q.B. 617; contra.

As to principle, the passage which best summarises the underlying
reasons for the decision in Oliver v. Ashman is the following:

” What has been lost by the person assumed to be dead is the
” opportunity to enjoy what he would have earned, whether by spending
” it or saving it. Earnings themselves strike me as being of no
” significance without reference to the way in which they are used. To
” inquire what would have been the value to a person in the position
” of this plaintiff of any earnings which he might have made after the
” date when ex hypothesi he will be dead strikes me as a hopeless
” task “. (per Willmer L.J. p.240).

Or as Pearce L.J. put it:

” What is lost is an expectation, not the thing itself” (p.230).

My Lords, I think that these are instinctual sentences, not logical
propositions or syllogisms—none the worse for that because we are not
in the field of pure logic. It may not be unfair to paraphrase them
as saying: ” Nothing is of value except to a man who is there to spend or
” save it. The plaintiff will not be there when these earnings hypothetically
” accrue: so they have no value to him “. Perhaps there are additional
strands, one which indeed Willmer L.J. had earlier made explicit, that the
whole process of assessment is too speculative for the courts to undertake:
another that the only loss is a subjective one–an emotion of distress: but
if so I would disagree with them. Assumptions, chances, hypotheses enter
into most assessments, and juries had, we must suppose, no difficulties with
them: the judicial approach however less robust can manage too. And
to say that what calls for compensation is injured feelings does not provide
an answer to the vital question which is whether, in addition to this
subjective element, there is something objective which has been lost.

But is the main line of reasoning acceptable? Does it not ignore the
fact that a particular man, in good health, and sound earning, has in these
two things an asset of present value quite separate and distinct from the
expectation of life which every man possesses? Compare him with a man
in poor health and out of a job, is he not, and not only in the immediate
present, a richer man? Is he not entitled to say, at one moment I am a
man with existing capability to earn well for 14 years: the next moment
I can only earn less well for one year? And why should he be compensated
only for the immediate reduction in his earnings and not for the loss of
the whole period for which he has been deprived of his ability to earn
them? To the argument that ” they are of no value because you will not
” be there to enjoy them ” can he not reply, ” yes they are: what is of
” value to me is not only my opportunity to spend them enjoyably, but to
” use such part of them as I do not need for my dependants, or for other
” persons or causes which I wish to support. If I cannot do this, I have
” been deprived of something on which a value—a present value—can be
” placed”?

I do not think that the problem can be solved by describing what has
been lost as an ” opportunity ” or a ” prospect” or an ” expectation “.
Indeed these words are invoked both ways—by the Lords Justices as denying
a right to recover (on grounds of remoteness, intangibility or speculation),
by those supporting the appellant’s argument as demonstrating the loss
of some real asset of true value. The fact is that the law sometimes allows
damages to be given for the loss of things so described (e.g. Chaplin v.
Hicks [1911] 2 K.B. 786) sometimes it does not. It always has to answer
a question which in the end can hardly be more accurately framed than as
asking, ” Is the loss of this something for which the claimant should and

reasonably can be compensated?”

The respondent, in an impressive argument, urged upon us that the real
loss in such cases as the present was to the victim’s dependants and that
the right way in which to compensate them was to change the law (by
statute, judicially it would be impossible) so as to enable the dependants
to recover their loss independently of any action by the victim There is

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 in
an 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 legitimate
desires, but these may not correspond with the allocation which the law
makes of money recovered by dependants on account of his loss. He may
wish to benefit some dependants more than, or to the exclusion of,
others—this (subject to family inheritance legislation) he is entitled to do.
He may not have dependants, but he may have others, or causes, whom
he would wish to benefit, for whom he might even regard himself as
working. One cannot make a distinction, for the purposes of assessing
damages, between men in different family situations.

There is another argument, in the opposite sense—that which appealed to
Streatfeild J. in Pope v. Murphy (u.s.). Why, he asked, should the tortfeasor
benefit from the fact that as well as reducing his victim’s earning capacity
he has shortened his victim’s life? Good advocacy but unsound principle,
for damages are to compensate the victim not to reflect what the wrongdoer
ought to pay.

My Lords, in the case of the adult wage earner with or without dependants
who sues for damages during his lifetime, I am convinced that a rule which
enables the ” lost years ” to be taken account of comes closer to the ordinary
man’s expectations than one which limits his interest to his shortened span
of life. The interest which such a man has in the earnings he might hope
to make over a normal life, if not saleable in a market, has a value which
can be assessed. A man who receives that assessed value would surely
consider himself and be considered compensated—a man denied it would
not. And I do not think that to act in this way creates insoluble problems
of assessment in other cases. In that of a young child (c.f. Benham v.
Gambling) neither present nor future earnings could enter into the matter: in
the more difficult case of adolescents just embarking upon the process of
earning (c.f. Skelton v. Collins, infra) the value of ” lost” earnings might
be real but would probably be assessable as small.

There will remain some difficulties. In cases, probably the normal, where
a man’s actual dependants coincide with those for whom he provides out
of the damages he receives, whatever they obtain by inheritance will simply
be set off against their own claim. If on the other hand this coincidence is
lacking, there might be duplication of recovery. To that extent injustice may
be caused to the wrongdoer. But if there is a choice between taking a view
of the law which mitigates a clear and recognised injustice in cases of normal
occurrence, at the cost of the possibility in fewer cases of excess payments
being made, or leaving the law as it is, I think that our duty is clear. We
should carry the judicial process of seeking a just principle as far as we can,
confident that a wise legislator will correct resultant anomalies.

My Lords, I have reached the conclusion which I would recommend so
far without reference to the case of Skelton v. Collins (1966) 115 C.L.R. 94
in which the High Court of Australia, refusing to follow Oliver v. Ashman,
achieved the same result. The value of this authority is twofold: first in
recommending by reference to authority (per Taylor J.) and in principle (per
Windeyer J.) the preferable solution, and, secondly, in demonstrating that
this can properly be reached by judicial process. The judgments, further,
bring out an important ingredient, which I would accept, namely that the
amount to be recovered in respect of earnings in the ” lost” years should be
after deduction of an estimated sum to represent the victim’s probable living
expenses during those years. I think that this is right because the basis, in
principle, for recovery lies in the interest which he has in making provision
for dependants and others, and this he would do out of his surplus. There
is the additional merit of bringing awards under this head into line with
what could be recovered under the Fatal Accidents Acts. Skelton v. Collins
has been followed and applied recently by the High Court in Griffiths v.
Kerkmayer [1977] 51 ALJR 792.

I would allow the appeal on this point and remit the action to the Queen’s
Bench Division for damages to be assessed accordingly. We are not called
upon in this appeal to lay down any rules as to the manner in which such
damages should be calculated—this must be left to the courts to work out
conformably with established principles.

I shall deal briefly with the other issues. As to interest on damages, I
would restore the decision of the judge. This was varied by the Court of
Appeal on the theory that as damages are now normally subject to increase
to take account of inflation, there is no occasion to award interest as well.
I find this argument, with respect, fallacious. Increase for inflation is
designed to preserve the ” real ” value of money: interest to compensate for
being kept out of that ” real ” value. The one has no relation to the other.
If the damages claimed remained, nominally, the same, because there was
no inflation, interest would normally be given. The same should follow if
the damages remain in real terms the same. Apart from the inflation
argument no reason was suggested for interfering with the exercise of the
judge’s discretion.

As to the general damages, I would also restore the judgment of the trial
judge. He gave this matter most careful attention and the Court of Appeal
were unable to find that he erred in principle in any way. It is important
that judges’ assessments should not be disturbed unless such error can be
shown, or unless the amount is so grossly excessive or insufficient as to lead
to the conclusion that some such error must have taken place.

If the appeal and cross appeal is disposed of as I have suggested, the
appellant should have the costs of the appeal in this House and the res-
pondent the costs of the cross appeal.

Lord Salmon

MY LORDS,

The relevant facts have been fully and lucidly set out by my noble and
learned friend Lord Wilberforce. They raise only one point of law which
is of great public importance; I shall confine myself to examining that point
alone. I propose to do so first by considering the principles involved and
then the authorities.

Suppose a plaintiff who is 50 years old and earning a good living with
a reasonable expectation of continuing to do so until he reaches 65 years
of age. As a result of the defendant’s negligence, he has contracted a
disease or suffered injuries which cut down his expectation of life to, say,
five years and prevent him from earning any remuneration during that
period. Are the damages to which he is entitled confined to compensation
for the loss of the remuneration he would probably have earned during
those five years, or do they include compensation for the loss of the
remuneration which, but for the defendant’s negligence, he would probably
have earned for a further 10 years, i.e., for the rest of what would have
been his working life? In my opinion, there is no reason based either
on justice or logic for supporting the view that he, and therefore his estate,
is entitled to no damages in respect of the money he has been deprived
from earning during these ten years.

Suppose that, in the case I have postulated, the plaintiff’s action for
damages for negligence came to trial two years after he first became
incapacitated. He would obviously be entitled to compensation for the
remuneration he had lost in those two years. He would also, in my opinion,
be entitled to a lump sum to compensate him for the undoubted loss of
remuneration which, but for the defendant’s negligence, he would probably
have earned in the next 13 years, i.e., up to the date when he would have
reached retiring age. I do not accept that there can be any justification
for limiting this compensation to compensation for the earnings he would
have lost in the three years immediately following the trial, and awarding

him nothing in respect of the remuneration he would, but for the defendant’s
negligence, have lost during the next 10 years—commonly known in cases
such as these as the ” lost years “.

In most cases of this kind, the plaintiff, whether or not he knows he is
likely to die as a result of the defendant’s negligence, will bring his case to
court or settle it as soon as possible because he is in urgent need of that
part of the damages to which he is entitled, so that he may support himself
and his family during his life. There can be no sensible reason why by
doing so, he should forfeit the balance of the damages attributable to the
loss of remuneration caused by the defendant’s negligence.

Although the point has never been considered by your Lordships’ House,
it is generally assumed that should the plaintiff accept a sum in settlement
of his claim or obtain judgment for damages in respect of the defendant’s
negligence, his dependants will have no cause of action under the Fatal
Accidents Acts after his death. This assumption is supported by strong
authority; see Read v. Great Eastern Railway Company (1868) L.R. 3 Q.B.
555; Williams v. Mersey Docks and Harbour Board [1905] 1 K.B. 805, C.A.
and Murray v. Shuter [1972] 1 Lloyd’s Rep. 6 at p.7. No point about the
correctness of this assumption arises for decision in this appeal and therefore
I express no concluded opinion about it. I think, however, that the
assumption which has held the field for upwards of 100 years is probably
correct and that, for present purposes, it must be accepted. In the
overwhelming majority of cases a man works not only for his personal
enjoyment but also to provide for the present and future needs of his
dependants. It follows 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 negligence has prevented
him from earning during the ” lost years”. There is, in my view, no
principle of the common law that requires such an injustice to be perpetrated.

When the Fatal Accidents Acts 1846 to 1908 were passed, it is, in my
view, difficult to believe that it could have occurred to Parliament that the
common law could possibly be as stated, many years later, by the Court
of Appeal in Oliver v. Ashman [1962] 2 Q.B. 210. The clear intention of
Parliament in passing those Acts appears to have been to deal with the all
too frequent cases in which, as a result of someone else’s negligence, a
man suffered injuries which incapacitated him from earning and caused
his death before he could obtain any damages from the tortfeasor to
compensate him for the loss of the money he would have earned but for
the tort. The policy of the Acts was, in my opinion, clearly to put that
man’s dependants, as far as possible, in the same financial position as they
would have been in if the bread-winner had lived long enough to obtain
judgment against the tortfeasor. In my opinion, Parliament correctly
assumed that had the deceased lived, he would have recovered judgment for
a lump sum by way of damages as compensation for the money he would
have earned but for the tortfeasor’s negligence; and that these damages
would have included the money which the deceased would have earned
during ” the lost years “. Otherwise, Parliament would, surely, have made
it plain that no judgment in favour of the deceased or settlement of his
claim could bar a claim by his dependants under the Fatal Accidents Acts;
I certainly do not think that Parliament would have used the language
which it did use in section 1 of those Acts.

The common law does not award a plaintiff annual payments in respect
of the money he would have earned during the rest of his life had it not been
for the defendant’s negligence. It awards him a lump sum by way of
damages to compensate him for all the money he has probably been
prevented from earning because of the defendant’s negligence. The common
law takes many factors into account in assessing those damages, e.g., that
the lump sum awarded will yield interest in the future; that the plaintiff
might have lost his job in any event; that he might have been incapacitated
or killed in some other way, so that the defendant’s negligence may not
necessarily have been the cause of his loss of earnings.

One of the factors which, however, the common law does not, in my
view, take into account for the purpose of reducing damages is that some
of the earnings, lost as a result of the defendant’s negligence, would have
been earned in the ” lost years “. Damages for the loss of earnings during
the ” lost years ” should be assessed justly and with moderation. There can
be no question of these damages being fixed at any conventional figure
because damages for pecuniary loss, unlike damages for pain and suffering,
can be naturally measured in money. The amount awarded will depend
upon the facts of each particular case. They may vary greatly from case
to case. At one end of the scale, the claim may be made on behalf of a
young child or his estate. In such a case, the lost earnings are so unpredict-
able and speculative that only a minimal sum could properly be awarded.
At the other end of the scale, the claim may be made by a man in the
prime of life or, if he dies, on behalf of his estate; if he has been in good
employment for years with every prospect of continuing to earn a good
living until he reaches the age of retirement, after all the relevant factors
have been taken into account, the damages recoverable from the defendant
are likely to be substantial. The amount will, of course, vary, sometimes
greatly, according to the particular facts of the case under consideration.

I recognise that there is a comparatively small minority of cases in which
a man whose life, and therefore his capacity to earn, is cut short, dies
intestate with no dependants or has made a will excluding dependants,
leaving all his money to others or to charity. Subject to the family inheri-
tance legislation, a man may do what he likes with his own. Certainly, the
law can make no distinction between the plaintiff who looks after dependants
and the plaintiff who does not, in assessing the damages recoverable to
compensate the plaintiff for the money he would have earned during the
” lost years ” but for the defendant’s negligence. On his death those damages
will pass to whomsoever benefits under his will or upon an intestacy.

I think that in assessing those damages, there should be deducted the
plaintiff’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 present
difficulties, but certainly no difficulties which would be insuperable for the
courts to resolve—as they always have done in assessing dependancy under
the Fatal Accidents Acts.

I now turn to the authorities. The first reported case in which the assess-
ment of damages for loss of future earnings was discussed in relation to a
plaintiff who faced a speedy death as a result of the defendant’s negligence
was Phillips (a consultant physician) v. London and South Western Railway
Co. [1879] 5 Q.B.D. 78. After reciting a passage from the trial judge’s
summing up, James L.J. 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. I do not know how otherwise
” the case could be put.”

Brett and Cotton L.JJ. agreed with that judgment. I am not at all surprised
that it never occurred to that distinguished court that the ” lost years ” should
be ignored in assessing damages for loss of earnings: nor that it did not
occur to Sergeant Ballantine, who appeared for the defendants. In my
opinion, to ignore the ” lost years ” would be to ignore the long established
principles of the common law in relation to the assessment of damages.

The next relevant case was Roach v. Yates [1938] 1 K.B. 256 The
judgments in that case were given extempore. I confess that I find it difficult
to discover anything from the judgment of Greer L.J. except that he and
his brethren had agreed that the damages of £2,742 awarded by the trial
judge were far too low and should be increased to £6,542. The reasons
upon which Greer L.J. based that conclusion are obscure. He did however

refer to the judgment in Phillips v. London and South Western Railway
Company without disagreeing with it. On the other hand, Slesser L.J. did
make plain the grounds on which he based his conclusions. He said:

” Speaking for myself … I think the proper way of approaching
” the problem is that which was followed in Phillips v. London South
” Western Railway Company, the leading case on this matter—namely,
” 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.”

MacKinnon L.J.’s judgment consists only of the enigmatic words ” I agree “.
It is by no means plain whether he agreed with the reasons given by Slesser
L.J. who had indicated, in giving those reasons, that he was speaking for
himself, or whether MacKinnon L.J. was agreeing only that the damages
should be raised to £6,542. Although I agree with the reasons given by
Slesser L.J., I think that it is doubtful whether the headnote was correct
in saying that those reasons were the reasons upon which the whole court
based its judgment.

I now turn to Harris v. Brights Asphalt Contractors Ltd. [1953] 1 Q. B.
617. This is the first case in this country in which it was argued and indeed
decided that (a) damages for the loss of earnings for the ” lost years ” is nil,
and (b) ” the only relevance of earnings which would have been earned
” after death is that they are an element for consideration in assessing
” damages for loss of expectation of life, in the sense that a person earning
” a reasonable livelihood is more likely to have an enjoyable life. “. Slade J.
who gave that judgment attempted, I think unsuccessfully, to explain away
what had been said in Phillips v. London & South Western Railway
Company and Roach v. Yates. It is interesting to note that although counsel
for the defendants and third parties had relied at pp.624 and 625 upon
Benham v. Gambling [1941] A.C. 157, Slade J. apparently considered,
correctly in my view, that Benham v. Gambling had so little to do with the
point in issue that it was not worth even mentioning in his judgment. Nor
was he able to cite any other authority in support of his decision.

In Pope v. D. Murphy & Son Ltd. [1961] 1 Q.B. 222, Streatfeild J.
refused to follow Slade J’s. judgment in Harris v. Brights Asphalt Contractors
Ltd. and decided the issue on damages in favour of the plaintiff, relying
upon what had been said in the Court of Appeal in the earlier cases to which
I have referred.

Then came Oliver v. Ashman [1962] 2 Q.B. 210. The plaintiff was a
young boy who, when 20 months old, had suffered injuries as a result of
the defendant’s negligence which turned him into a low grade mental
defective and reduced his expectation of life from 60 years to 30 years.
He claimed damages not only for loss of expectation of life, pain, suffering,
loss of amenities and the expenses incurred in taking care of him, but also
for the loss of what he might have earned but for the accident. Lord
Parker C.J., who tried the case at first instance, followed the decision in
Pope v. D. Murphy & Co. Ltd. and awarded him a lump sum of £11,000.
The plaintiff appealed on the ground that that award was too low. The
defendant cross-appealed on the ground that the award was too high. The
Court of Appeal overruled Pope v. D. Murphy & Co. Ltd. and held that
Harris v. Brights Asphalt Contractors Ltd. had been correctly decided.
Nevertheless they did not reduce the award because they concluded, quite
rightly in my view, that in the case of a child of such tender years, the
amount of the earnings which he might have lost was so speculative and
unpredictable that the sum in the award attributable to that element must
have been minimal and could therefore be disregarded.

In considering whether loss of earnings during the ” lost years ” could
ever be taken into account in assessing damages, Holroyd Pearce L.J. (as he
then was) said:

” of some years of life which is a complex of pleasure and pain, of
” good and ill, profits and losses. On the other view he has, in addition
” to losing a prospect of the years of life, lost the income which he
” would have earned and the profit which would have been his had
” he lived.”

Holroyd Pearce L.J. came down in favour of the first view because he
concluded that he was bound to do so by the decision of your Lordships’
House in Benham v. Gambling. So did Wilmer and Pearson L.JJ. I
cannot agree with that conclusion. In Benham v. Gambling the plaintiff
was the father and administrator of the estate of his infant child who
was 2 1/2 years old and who was so badly injured by the negligent driving
of the “defendant that he died on the day of the accident. Not surprisingly,
no claim was made for damages in respect of the earnings that this infant
might have lost because such damages could only have been minimal; and
accordingly no argument was addressed to this House on the issue raised
on the present appeal. The claim was confined solely to damages for the
loss of expectation of life. The trial judge assessed those damages at £1,200.
The Court of Appeal, by a majority, refused to reduce that amount on the
defendants’ appeal. The defendants then successfully appealed to your
Lordships’ House.

Accordingly, the decision in Benham v. Gambling does not touch the
issue now before this House. Indeed, Viscount Simon L.C. who made the
only speech in Benham v. Gambling (with whom all the other noble and
learned Lords agreed) said at p. 162:

“… The present appeal raises the problem of the assessment of
” damage for ‘ loss of expectation of life’ before this House for the
” first time, and it is indeed the only issue with which we are now
” concerned.”

He then went on, carefully, to explain all the factors to be taken into
account in assessing those damages and to stress the necessity for
moderation, which he perhaps emphasised by reducing the damages, in
the circumstances of that case, to £200. Two sentences which concluded
a paragraph from page 229, towards the end of that speech, were fastened
on by the Court of Appeal in Oliver v. Ashman and indeed constituted
the cornerstone of their judgment. The sentences read as follows :

Those sentences exactly fitted the facts of that case because no claim in
in respect of pecuniary loss was being made. As Viscount Simon himself
acknowledged, the only issue with which the House was then concerned
was the assessment of damages for loss of expectation of life.

My noble and learned friend Lord Pearce and Wilmer L.J. considered
that what I call the two excised sentences in Viscount Simon’s speech must
have been intended to apply to cases in which damages for loss of earnings
during the ” lost years ” are being claimed, because the speech by Lord
Roche 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 in
Benham v. Gambling. I would point out that Rose v. Ford was itself a
case solely concerned with a claim for damages for loss of expectation of
life. No damages for pecuniary loss were claimed on behalf of the
deceased’s estate. Lord Roche alone did, however, make some obiter
observations which might have been of some help to the defendant in
Oliver v. Ashman. According to the report of the argument in Benham v
Gambling at p. 159, that, however, was not the passage in Lord Roche’s
speech which was cited to this House. Similarly, it is true that in
Reid v. Lanarkshire Traction Co., Lord Wark, the Lord Ordinary made
some observations which would also have helped the defendant in Oliver
v. Ashman; but again, according to the report of Benham v. Gambling that

judgment was not cited in argument. What was cited was a passage from
Lord Blackburn’s judgment in the Inner House which had nothing to do
with claims for pecuniary loss.

I hardly think that the excised sentences were intended to apply to cases
in which there was a claim for damages in respect of loss of earnings during
the ” lost years “. If they had been, it seems as incredible to me as it does
to my noble and learned friend Lord Wilberforce that Viscount Simon
would not have disapproved Roach v. Yates, and I think also Phillips v.
The London & South Western Railway Company.

My Lords, in my opinion, Benham v. Gambling illustrates how unfortunate
it may sometimes be to have only one speech, however excellent, to explain
the decision of the Appellate Committee. I have little doubt that if any
other of the noble and learned Lords concerned in that case had also
delivered a speech, there would have been no misunderstanding about the
meaning of what I have described as the two excised sentences in Viscount
Simon’s speech. I agree with the view often expressed by Lord Reid, that
if there is only one speech it is apt to be construed as a statute, which is
not how a speech ought to be treated. If, however, there is a number of
speeches, the general principles which it is the function of this House to lay
down will be distilled from them. I am not, of course, suggesting that
there are not sometimes circumstances in which, for instance, one section in
a statute has to be construed, and one speech may accordingly be appropriate.

Before leaving Oliver v. Ashman, I should like to refer to the passage in
the judgment of my noble and learned friend Lord Pearson at page 245

which reads as follows:

;

” In my view the conclusion, shortly stated, is that the conventional
” sum in the region of £200 which is to be awarded for loss of expecta-
” tion of life should be regarded as covering all the elements of it—
” e.g., joys and sorrows, work and leisure, earning and spending or
” saving money, marriage and parenthood and providing for dependants
” —and should be regarded as excluding any additional assessment for
” any of those elements.”

I say nothing about the exiguous amount of the damages with which the
present appeal is not concerned. I do not, however, agree with the rest of
that passage unless one excludes from it the words ” earning and spending
” or saving money . . . and providing for dependants.” These words seem
to me to conflict with the two sentences in Viscount Simon’s speech in
Benham v. Gambling to which I have already referred and with which I
agree.

I am reinforced in the opinion I have formed by the judgments of Kitto,
Taylor, Menzies, Windeyer and Owen JJ. in Skelton v. Collins 115 C.L.R.
94. I will cite only the judgment of Windeyer J. at page 129:

” 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. . . . what is to be
” compensated for is the destruction or diminution of something having
” a monetary equivalent … I cannot see that damages that flow from
” the destruction or diminution of his capacity (to earn money) 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 the loss of earnings the ‘ lost years’ are not taken into
” account.”

The only English decisions to which the High Court of Australia can have
been referring in relation to the ” lost years ” were the decisions of Slade J.
in Harris v. Brights Asphalt Contractors Ltd. and of the Court of Appeal in
Oliver v. Ashman. My Lords, I have already stated my reasons for holding
that both those decisions were wrong and should be overruled.

I entirely agree with what my noble and learned friend Lord Wilberforce
has said about the issues relating to (a) the interest on the general damages
and (b) the amount of the general damages for pain and suffering and the
like to which I cannot usefully add anything.

I would, therefore, allow the appeal and cross-appeal and remit the action
to the Queen’s Bench Division to assess the damages in relation to the
plaintiff’s loss of earnings during the ” lost years “.

Lord Edmund-Davies

MY LORDS,

In the autumn of 1976 Stephen Brown J. had before him a claim for
damages for negligence brought by a workman against his employers. For
many years Mr. Pickett had worked in contact with asbestos dust and, as a
result, he developed mesothelioma of the lung, a condition which first
exhibited symptoms in 1974. In the following year he instituted these pro-
ceedings and, at the time of the hearing, he was a married man of 53 with
a wife and two children. Until 51 years of age he had been very fit, and
was leading a most active life. Liability was admitted by the employers,
and the one issue arising in this appeal relates to the award of general
damages. This was compounded for the greater part by the sum of £7,000
for pain, suffering and loss of amenities. The learned judge also awarded
interest at 9 per centum on the £7,000, calculated from the date of service
of the writ to the date of trial.

Mr. Pickett died on March 15th 1977, less than four months after he had
obtained judgment, and his widow and administratrix was substituted as
plaintiff for the purpose of appealing from that decision. The Court of
Appeal increased the award for pain and suffering from £7,000 to £10,000,
and the compensation for shortened expectation of life (as to which no
question arises) from £500 to £750, but ordered that no interest should be
awarded on the general damages.

Three questions now arise for determination. These are:

1. 1. Is it right that in calculating an award for loss of future earnings,
    it should be restricted to the sum which the injured plaintiff would have
    earned (but for the accident) during what remains of his shortened life, or
    should he be further compensated by reference to what he could reasonably
    have been expected to earn during such working life as would in all
    probability been left to him had it not been cut down by the defendant’s
    negligence? In short, is he also entitled to be compensated for what have
    conveniently been called the ” lost years “?
  2. Should the Court of Appeal have increased the general damages?
  3. Was the Court of Appeal right in depriving the plaintiff of interest
    on the general damages?

I proceed to deal with these questions in turn :
(1): Damages for the lost years

The question has long been debated—indeed, ever since Oliver v. Ashman
[1962] 2 QB 210. Before considering that case in any detail, it should be
stressed that the decision proceeded upon the basis that the Court of Appeal
was there bound by what Viscount Simon, L.C. had said in the House of
Lords in Benham v. Gambling [1941] AC 157; see for example, the judgment
of Holroyd Pearce L.J., in [1962] 2 Q.B. from p.228 onwards, and that of

Willmer L.J. at p.238. But, my Lords, in reality that was not so. It is
true that in Benham v. Gambling the Lord Chancellor did say at one stage
(p. 167):

But the claim there being considered was what sum should be awarded to
the estate of a child of two and half years who died the day after he was
injured. Ever since the decision in Rose v. Ford [1937] AC 826, the awards
for shortened expectation of life had varied enormously, and it is clear
from the submissions of learned counsel in Benham v. Gambling that
guidance only on that matter was there being sought. This was stated in
terms by the Lord Chancellor, who added (at p. 162) ” . . . . and it is indeed
” the only issue with which we are now concerned.” Notwithstanding its
citation by Upjohn L.J. in Wise v. Kaye [1962] 1 QB 638, at p.659 as
authority for the contrary proposition that “… a dead man’s estate . . .
” cannot . . . claim for loss of future pecuniary prospects”, in my
judgment the proper conclusion is that, as Lord Morris of Borth-y-Gest
said 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.”

There being thus no decision compelling the Court of Appeal in Oliver v.
Ashman (supra) to reject a claim for damages for the ” lost years “, what
guidance was to be found in the earlier cases? James L.J. said in Phillips
v. L. & S.W. Railway (1879)5 QBD 78 at p.87 of a physician injured in a
railway accident—

” You are to consider what his income would probably have been,
” how long that income would probably have lasted, and you have to
” take into consideration all the other contingencies to which a practice
” is liable.” (The italics are mine).

In Roach v. Yates [1938] 1 K.B. 256 Slesser L.J. took a similar view
regarding a claim made by a plaintiff of thirty three. He said (at p.268):

” Criticism has been made of the suggestion that one method of
” estimating his loss [of wages] is to consider what he would have
” earned during his life. Speaking for myself, I see no justification for
” approaching that problem by starting with the assumption that he
” would only have lived so long as the accident has now allowed him
” to live. I think the proper way of approaching the problem is that
” which was followed in Phillips v. London & South Western Railway
“ Co. (1879)5 QBD 78, the leading case on this matter—namely, first
” to consider what sum he would have been likely to make during his
” normal life if he had not met with his accident.”

It is said that it is not clear whether Greer L.J. was of the same view, but
MacKinnon L.J. agreed with both judgments, and it is difficult to regard
as other than accurate the headnote which attributes to all three members
of the Court the view expressed by Slesser L.J. But in Harris v. Brights
Asphalt Contractors Ltd. [1953] 1 Q.B. 617 Slade J. doubted that this was
so, and held that no compensation could be awarded for earnings during
the ” lost years ” to a plaintiff of thirty-seven whose expectation of life had
been reduced to two years. He said (p.633):

“…. I cannot think it right that I should give damages for loss
” of earnings for a period during which ex hypothesi he is not alive to
” earn them … In my judgment, therefore, the only relevance of
” earnings which would have been earned after death is that they are
” an element for consideration in assessing damages for loss of
” expectation of life, in the sense that a person earning a reasonable
” livelihood is more likely to have an enjoyable life.”

The whole field of decisions was again surveyed by Streatfeild J. in
Pope v. D. Murphy & Son Ltd. [1961] 1 Q.B. 222 and led him to say, in
arriving at the opposite conclusion (at p.231):

” In my view the proper approach to this question of loss of earning
” capacity is to compensate the plaintiff, who is alive now, for what he
” has in fact lost. What he has lost is the prospect of earning whatever
” it was he did earn from his business over the period of time that he
” might otherwise, apart from the accident, have reasonably expected
” to earn it.”

And so we come to Oliver v. Ashman [1962] 2 Q.B. 210, where a boy
aged twenty months was injured by an accident which it was estimated had
halved his reasonable expectation of living another sixty years. Lord
Parker C.J. followed Pope v. Murphy by taking as a separate head of damage
the earnings which would have accrued to the plaintiff during the period by
which life had been shortened. But this was reversed in the Court of
Appeal, although Holroyd Pearce L.J. accepted that the earlier authorities
were in accord with Pope’s case. He summarised the nature of the conflict
between that case and Harris v. Brights Asphalt Contractors Ltd. in this
way (p.228):

” On one view of the matter there is no loss of earnings when a man
” dies prematurely. He is no longer there to earn them, since he has
” died before they could be earned. He has merely lost the prospect
” of some years of life which is a complex of pleasure and pain, of
” good and ill, of profits and losses. On the other view, he has, in
” addition to losing a prospect of the years of life, lost the income
” that he would have earned, and the profits that would have been
” his had he lived.”

Holroyd Pearce L.J. then examined Benham v. Gambling (ante) in detail,
and concluded (p.230):

” In my judgment, therefore, the matter is concluded in this court
” by Benham v. Gambling, and the decision of Slade J. in Harris v.
” Brights Asphalt Contractors Ltd. was correct.”

But, as I have already sought to show, the House of Lords had not concluded
the matter, and it would have been sounder to say that the point had been
disposed of in Roach v. Yates (ante) by the Court of Appeal itself in favour
of the plaintiff. Willmer L.J. was, with respect, similarly mistaken about
the effect of Benham v. Gambling (see p.238). Pearson L.J. after a wider
citation of authorities, said (p.245):

” In my view the conclusion, shortly stated, is that the conventional
” sum in the region of £200 which is to be awarded for loss of expectation
” of life should be regarded as covering all the elements of it—e.g.,
” joys and sorrows, work and leisure, earnings and spending or saving
” money, marriage and parenthood and providing for dependants—and
” should be regarded as excluding any additional assessment for any of
” those elements.”

My Lords, I am unable to accept that conclusion. I prefer not to
complicate the problem by considering the impact upon dependants of an
award to a living plaintiff whose life has been shortened, as to which see
section 1(1) of the Fatal Accidents Act 1976, Murray v. Shuter [1976] 1 Q.B.
972 and McCann v. Sheppard [1973] 1 WLR 540. For our present
consideration relates solely to the personal entitlement of an injured party to
recover damages for the ” lost years “, regardless both of whether he has
dependants and of whether or not he would (if he has any) make provision
for them out of any compensation awarded to him or his estate. With
respect, it appears to me simply not right to say that, when a man’s working
life and his natural life are each shortened by the wrongful act of another,
he must be regarded as having lost nothing by the deprivation of the prospect
of future earnings for some period extending beyond the anticipated date of
his premature death. In the Australian case of Skelton v. Collins (1965)115
C.L.R. 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. But an incapacitated
” plaintiff whose life expectancy has been diminished would not.”

And Windeyer J. speaking of ” the principle of compensation . . . that
” anything having a money value which the plaintiff has lost should be
” made good in money “, continued (p. 129):

” This applies to that element in damages for personal injuries which
” is commonly called ‘loss of earnings’. . . . 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.”

My Lords, neither can I see why this should be so. In my judgment,
Holroyd Pearce L.J. was in error in saying in Oliver v. Ashman (ante, at
p. 230):

” When the [variegated tapestry of life] is severed there is but one
” sum recoverable in respect of that severance. And what is lost is an
” expectation, not the thing itself. The House of Lords have laid down
” that on an objective and artificial valuation, the sum which the loss
” of expectation is to be assessed must be a moderate one on the scale
” indicated in Benham v. Gambling”

In the present case Goff L.J. expressed the view that Oliver v. Ashman (ante)
” does seem … to work a grave injustice “, and I regard it as wrongly
decided. It follows that the judgment of the trial judge and the Court of
Appeal on this first question, based as they were on that case, should now
be reversed.

This House lacks the material to enable it to estimate what would be
proper compensation for the ” lost years “, and the task will have to be
remitted to the Queen’s Bench Division for determination. It is likely to
prove a task of some difficulty, though (contrary to the view expressed by
Willmer L.J. 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.”
The only guidance I can proffer is that, in reaching their final figure, the
court should make what it regards as a suitable deduction for the total
sum which Mr. Pickett would have been likely to expend upon himself
during the ” lost years “. This calculation, too, is by no means free from
difficulty, but a similar task has to be performed regularly in cases brought
under the Fatal Accidents Act. And in Scotland the court is required, in
such cases as the present, to ” have regard to any diminution … by virtue
” of expenses which in the opinion of the court the pursuer . . . would
” reasonable have incurred . . by way of living expenses.” (Damages
(Scotland) Act 1976, section 9(2)(c)). For, macabre though it be to say so,
it does not seem right that, in respect of those years when ex hypothesi the
injured plaintiff’s personal expenses will be nil, he should recover more
than that which would have remained at his disposal after such expenses
had been discharged.

(2) General Damages

My Lords, I am unable to adopt the view of the Court of Appeal that
the experienced trial judge erred in any way in assessing the general damages
at £7,000. They do not criticise his general approach; indeed, Lawton L.J.
said expressly, “… it is manifest that he approached the matter of the
” assessment of damages on the right lines.” What is suggested is that he
committed errors (a) by failing to take sufficiently into account the distress
caused to Mr. Pickett by the realisation ” that his dependants would be left
” without him to care for them “; and (b) by starting at too low a figure and
then failing to allow sufficiently for inflation.

I have to say that I see no signs of the trial judge having failed in these
or any other respects. It may be that £7.000 would be regarded by some
judges as on the low side, but even so, in my judgment it did not merit
interference. I would therefore allow the defendants’ cross-appeal against
the decision of the Court of Appeal to increase this head of damages to
£10,000 and restore the £7,000 awarded.

(3) Interest on General Damages

Although it was seemingly agreed by both sides before the learned trial
Judge that the sum of £7,000 was to carry interest at 9 per centum from
the date of service of the writ (amounting to £787.50), the Court of Appeal
ordered that no interest was to be payable upon the increased sum of £10,000.
We have no record of what led to this variation in the trial judge’s order,
but we were told that it sprang from the Court of Appeal decision in
Cookson v. Knowles [1977] 3 WLR 279, where Lord Denning M.R. said
(at p. 283):

” In Jefford v. Gee [1970] 2 QB 130, 151, we said that, in personal
” injury cases, when a lump sum is awarded for pain and suffering and
” loss of amenities, interest should run ‘ from the date of service of the
” ‘ writ to the date of trial’. At that time inflation did not stare us in
” the face. We had not in mind continuing inflation and its effect on
” awards. It is obvious now that that guide-line should be changed.
” The courts invariably assess the lump sum on the ‘ scale ‘ for figures
” current at the date of trial—which is much higher than the figure
” current at the date of the injury or at the date of the writ. The
” plaintiff thus stands to gain by the delay in bringing the case to trial.
” He ought not to gain still more by having interest from the date of
” service of the writ.”

My Lords, I have to say with great respect that the fallacy inherent in the
passage quoted is in thinking that a plaintiff who, owing to inflation, gets
a bigger award than he would have secured had the case been disposed of
earlier is better off in real terms. But in fact the bigger award is made
simply to put the plaintiff in the same financial position as he would have
been had judgment followed immediately upon service of the writ. The
reality is that the plaintiff in this case has been kept out of £7,000 until the
date of judgment, and there is no reason why he should be deprived of the
£787 interest awarded by the trial judge for the 15-month period between
writ and judgment simply because a lesser sum than £7,000 might or would
have been awarded had the case come on earlier. Furthermore, the sugges-
tion that the defendant is prejudiced overlooks the fact that he has meanwhile
had the use of the money.

My Lords, in the result, I would allow the plaintiff’s appeal in respect of
Points (1) and (3) and the defendant’s cross-appeal in respect of Point (2).
I am in agreement regarding the proposed order as to costs.

Lord Russell of Killowen

MY LORDS,

On two of the three questions in this case, those touching interest and the
increase in damages by the Court of Appeal from £7,000 to £10,000 I am
in agreement, and need not repeat the reasons given for what is proposed.

The third question, touching the ” lost years ” I have found very difficult.

We are not directly concerned on that question with either the Law
Reform (Miscellaneous Provisions) Act 1934, or the Fatal Accidents Acts.
The deceased plaintiff survived to trial and judgment: the appeal is by his
personal representative as representing his estate and does not need the 1934
Act to support it, the cause of action having merged in the judgment.

The problem is this. Was the plaintiff at the time of judgment entitled to
damages on the ground that as a result of the wrong done to him his life has
been shortened and that he will not in consequence receive financial benefits
which would in the ordinary course of events have come to him during those
lost years.

I may say at once that I do not regard what was said in Benham v.
Gambling in this House as throwing any light on this problem. That case
was dealing only with a head of damages for loss of expectation of life
which, as was there stressed, is not a question of deprivation of financial
benefits at all. The problem has, as your Lordships have pointed but, been
touched upon in a number of cases, but its solution is at large for this House.

I have stated the problem without confining it to earnings in the lost years.
Suppose a plaintiff injured tortiously in a motoring accident, aged 25 at trial,
with a resultant life expectation then of only one year. Suppose him to be
life tenant of substantial settled funds. If the lost years are to be brought
into assessment of damages presumably allowance must be made for that
part of the life interest which he would have received but will not receive.
So also if he had a reversionary interest contingent upon surviving a life in
being then aged 60: he will have been deprived of the probability of the
funds coming to him during the lost years. Again he might at the trial be
shown to be the sole beneficiary under the will of a rich relation whose age
made it probable that the testator would die during the lost years, and
whose testimony at the trial was that he had no intention of altering his
will: in such cases presumably an allowance in damages would require to
be made for the lost, and may be valuable, spes successionis: unless the
testator was an ancestor of the plaintiff and the plaintiff was likely to have
children surviving him. (Section 32 Wills Act 1837.)

I refer to these possible situations in order to suggest that the problems
which exist even in the field of earnings in the lost years may in a given
case be far more difficult of solution, once there is introduced into the field
of damages allowance for financial ” loss ” of that which death ex hypothesi
forestalls. Damages are compensatory not punitive: so that it is no valid
argument that a wrongdoer should not benefit by inducing early death rather
than a full lifetime of pain and suffering: that must happen anyway
e.g. when an infant is killed outright.

It has been said that if in a case such as this damages are not to be
awarded in respect of benefits that would have accrued to the plaintiff in the
lost years it introduces an anomaly, since if the claim were under the
Fatal Accidents Act by dependants their claim would extend into the lost
years. But this so called anomaly arises from the particular nature of such
a claim, which is by living people in respect of their living periods, which is
expressly based upon what they have lost by a death. It is not a claim
by a dead person. I do not accept the suggestion that Parliament in enacting
the Fatal Accidents Acts must have assumed a live plaintiff’s claim for the

lost years.

It has, my Lords, correctly been remarked that though in the instant case
the plaintiff had dependants who (it was assumed) were barred from a
Fatal Accidents Act claim by the judgment, the question of the lost years
must be answered in the same way in a case of a plaintiff without dependants.
But the solution proposed, involving as it does deduction from lost years’
earnings of the plaintiff’s living expenses, appears to me to attempt to splice
two quite separate types of claim: a claim by dependants for dependency
and a claim by the plaintiff himself. If a plaintiff is to be entitled to claim in
respect of lost years’ earnings, why should his claim be reduced by what,
no doubt enjoyably, he would have spent on himself? Why should he be
limited to that which he would have given away either inter vivos or by
will or intestacy? The answer is I suppose that being dead he has no
living expenses. But this, in the current phrase, is where we came in. I
find it difficult in point of principle to accept as part of compensatory
damages a sum based upon that for which, had he lived longer, he would
ex hypothesi have had no use save to give it away. The comment that

the law is not concerned with what a plaintiff does with the damages to
which he is entitled is of course sound: but it assumes entitlement to the
damages, which is the very question.

My Lords, these problems have been debated by the Law Commission.
An attempt to solve them has been made for Scotland by the Damages
(Scotland) Act 1976. My own opinion is that the solution is a matter whose
complications are more suited for legislation than judicial decision by this
House in the manner proposed.

Your Lordships being unanimously of opinion on this problem to the
contrary, I have not felt it necessary to argue the point in great detail.

In the result I would allow the appeals on the questions of interest and
quantum of damages (£7,000 or £10,000) and dismiss the appeal on the
lost years point.

In the circumstances of your Lordships’ decision I agree with the order
for remission proposed and for costs.

Lord Scarman

MY LORDS,

I agree with the speeches of my noble and learned friends, Lord
Wilberforce, Lord Salmon and Lord Edmund-Davies. My excuse for
burdening your Lordships with a speech must be that, as my Lord, Lord
Wilberforce, has remarked, in some cases a single speech may generate
uncertainty. I would add a comment: one justification (there are others)
for several speeches in your Lordships’s House supporting the same
conclusion is that they can show that there are more ways than one of
journeying to the same end. They can shed light, and diminish the possibility
of misunderstanding.

Mr. Pickett, who was the plaintiff in the action, claimed damages from
the defendants, British Rail Engineering Ltd., his employers, for serious
personal injury sustained in the course of his employment. The defendants
admit liability. The issue between the parties is as to the amount of
damages which the judge at trial ought to have awarded Mr. Pickett, a
living plaintiff.

Mr. Pickett, a married man with two children, was aged 53 at the time
of trial, which was on the llth and 12th October 1976. His wife was
then 47 years old. He first realised he was ill when he became short of
breath in the spring of 1974. In the words of the trial judge, ” he was then
” 51 years of age, a very fit man who was a non-smoker, a cyclist of great
” accomplishment, for he had been a champion cyclist of apparently
” Olympic standard, and he was still leading a most active life in March
” 1974, cycling to work each day.”

Medical treatment and investigations culminating in an operation in
January 1975 revealed a malignant tumour which covered the whole of his
right lung and could not be wholly removed. It was caused by asbestos
dust inhaled over the years while he was working in the defendants’
workshops. Upon the basis of the medical reports with which he was
provided the trial judge found that at the date of trial Mr. Pickett’s
expectation of life was one year. In fact, he died 5 months later,—on
the 15th March 1977. But for his injury, Mr. Pickett could have expected
to work until normal retiring age (i.e. 65) and to enjoy thereafter a period
of retirement.

The judge’s task was to assess the damages to be paid to a living plaintiff,
aged 53, whose life expectancy had been shortened to one year. He awarded
a total of £14,947.64 damages. This total included: —

1. 1. £7,000, general damages for pain, suffering, and loss of amenities:
  2. £787.50, interest upon the award of these general damages from
    date of service of writ (18th July 1975) to date of trial:

1. 1. £1,508.88 damages for loss of the earnings which he could have
    expected to earn during his shortened life expectancy:
  2. £500 damages for loss of expectation of life.

Mr. Pickett appealed but before the appeal could be heard he had died.
His widow, as administratrix of his estate, obtained an order to carry on
the proceedings, and the appeal was heard in November 1977. The Court
of Appeal increased the award of general damages to £10,000; but refused
to allow interest upon this award. Following Oliver v. Ashman, [1962] 2
Q.B. 210, the court left undisturbed the award for loss of future earnings.
It increased to £750 the award for loss of expectation of life. The plaintiff
now appeals against the refusal of interest upon the general damages and
against the sum awarded for loss of future earnings. The defendants appeal
against the increase by the Court of Appeal in the award of general
damages.

First, some general observations.

The recent development of the judicial practice of ” itemising damages “,
though as a matter of history closely linked with the need to differentiate
between heads of damage for the purpose of calculating interest upon
damages, has, my Lords, helped towards a juster assessment of the capital
element in damages for personal injuries. For it ensures that pecuniary
loss and non-pecuniary loss will be assessed separately. As the Law
Commission has shown in its report (Law Com. No. 56), the assessment of
damages for non-pecuniary loss is a very different matter from assessment
of damages for pecuniary loss. There is no way of measuring in money
pain, suffering, loss of amenities, loss of expectation of life. All that the
court can do is to make an award of fair compensation. Inevitably this
means a flexible judicial tariff, which judges will use as a starting-point in
each individual case, but never in itself as decisive of any case. The judge,
inheriting the function of the jury, must make an assessment which in the
particular case he thinks fair: and, if his assessment be based on correct
principle and a correct understanding of the facts, it is not to be challenged,
unless it can be demonstrated to be wholly erroneous: Davies v. Powell
Duffryn Associated Collieries Ltd. [1942] A.C. 601.

But, when a judge is assessing damages for pecuniary loss, the principle
of full compensation can properly be applied. Indeed, anything else
would be inconsistent with the general rule which Lord Blackburn has
formulated in these words: –

“. . . . that, where any injury is to be compensated by damages, in
” settling the sum of money to be given . . . you should as nearly as
” possible get at that sum of money which will put the party who has
” been injured, or who has suffered, in the same position as he would
” have been in if he had not sustained the wrong “,

Livingstone v. Rawyards Coal Co. (1880) 5 A.C. 25 at page 39.

Though arithmetical precision is not always possible, though in estimating
future pecuniary loss a judge must make certain assumptions (based upon
the evidence) and certain adjustments, he is seeking to estimate a financial
compensation for a financial loss. It makes sense in this context to speak
of full compensation as the object of the law. It is on this basis, my Lords,
that I approach the three questions raised in this appeal, with which I
propose to deal in this order: –

1. 1. Damages for loss of future earnings,
  2. Damages for pain, suffering, and loss of amenities,
  3. Interest on the damages for pain and suffering.

(1) Damages for loss of future earnings

In Oliver v. Ashman [1962] 2 Q.B. 210, the Court of Appeal decided
that in an action for damages for personal injuries, whether brought by
a living plaintiff or on behalf of the estate of a dead plaintiff, damages for

loss of earnings are limited in the first case to the period of shortened
expectation of life, and, in the second, to the shortened period of life.
Under the Oliver v. Ashman rule no claim for loss of earnings can be made
in respect of the period the plaintiff could have expected to live, had his
life expectation not been shortened by the accident giving rise to his claim.
He cannot recover in respect of the earnings he could have expected during
the ” lost years “.

My noble and learned friends Lord Wilberforce, Lord Salmon and Lord
Edmund-Davies have analysed the case law which lies behind this decision.
I agree with them in thinking that the decision was based upon a
misconception of what this House had decided in Benham v. Gambling
[1941] A.C. 157. The relevant line of authority is not that which culminated
in Benham v. Gambling but that which had begun with Phillips v. L. &
S.W.R. Co. (1879) 5 Q.B.D. 78 and culminated in Roach v. Yates [1938]
1 K.B. 256. If, therefore, attention be directed only to the authorities, I
think it may be said that Oliver v. Ashman was wrongly decided, and that
the court in that case should have followed its own decision in Roach v. Yates.

Your Lordships’ House is, however, concerned with the principle of the
matter. The principle has been exhaustively discussed in the Australian
case of Skelton v. Collins (1965) 115 C.L.R. 94. Windeyer J. (page 129)
found it in ” the general principle that damages are compensatory “. He
thought it flowed from that principle ” that anything having a money value
” which the plaintiff has lost should be made good in money.” He went on: —

” The destruction or diminution of a man’s capacity to earn money
” can be made good in money,”

And he concluded by saying: –

” I cannot see that damages that flow from the destruction or
” diminution of his capacity [to earn] … 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.”

The same point was made by Streatfeild J. in Pope v. Murphy [1961] 1
Q.B. 222 at page 231:-

” What he has lost is the prospect of earning whatever it was he did
” earn from his business over the period of time that he might otherwise,
” apart from the accident, have reasonably expected to earn it.”

I would add that this line of reasoning is consistent with Lord Blackburn’s
formulation of the general principle of the law, to which I have already
referred: Livingstone v. Rawyards Coal Co., supra.

Principle would appear, therefore, to suggest that a plaintiff ought to be
entitled to damages for the loss of earnings he could have reasonably
expected to have earned during the “lost years”. But it has been
submitted by the respondents that such a rule, if it be thought socially
desirable, requires to be implemented by legislation. It is argued that
a judicial graft would entail objectionable consequences—consequences which
legislation alone can obviate.

There is force in this submission. The major objections are these. First,
the plaintiff may have no dependants. Secondly, even if he has dependants,
he may have chosen to make a will depriving them of support from his
estate. In either event, there would be a windfall for strangers at the expense
of the defendant.

Thirdly, the plaintiff may be so young (in Oliver v. Ashman he was a boy
aged 20 months at the time of the accident) that it is absurd that he should
be compensated for future loss of earnings. Fourthly—a point which has
weighed with my noble and learned friend, Lord Russell of Killowen—if
damages are recoverable for the loss of the prospect of earnings during the
lost years, must it not follow that they are also recoverable for loss of other
reasonable expectations, e.g. a life interest or an inheritance? Fifthly, what

does compensation mean when it is assessed in respect of a period after
death? Sixthly, as my noble and learned friend Lord Wilberforce has pointed
out, there is a risk of double recovery in some cases, i.e. of both the estate
and the dependants recovering damages for the expected earnings of the
lost years.

The law is not concerned with how a plaintiff spends the damages awarded
to him. The first two objections can, therefore, be said to be irrelevant
The second objection is, however, really too serious to be thus summarily
rejected. The social justification for reversing the rule in Oliver v. Ashman
is that it imposes hardship on dependants. But this justification is
undermined if a plaintiff, having recovered damages for his lost future
earnings, can thereafter exclude by will his dependants from any share of
his estate. To this objection the law provides an answer: his estate will be
subject to the right of dependants for whom no or no sufficient provision
has been made to apply for provision under the Inheritance (Provision for
Family Dependants) Act, 1975.

The third objection will be taken care of in the ordinary course of
litigation: a measurable and not too remote loss has to be proved before
it can enter into the assessment of damages.

The fourth ” objectionable consequence” does not seem to me
objectionable. I agree with the Law Commission, where in para. 90 of
Law Com. 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. The loss must be
” regarded as a loss of the plaintiff; and it is a loss caused by the
” tort even though it relates to moneys which the injured person will
” not receive because of his premature death. No question of the
” remoteness of damage arises other than the application of the
” ordinary forseeability test.”

For myself, as at present advised (for the point does not arise for decision
and has not been argued), I would allow a plaintiff to recover damages for
the loss of his financial expectations during the lost years provided always
the loss was not too remote.

There is, it has to be confessed, no completely satisfying answer to the
fifth objection. But it does not, I suggest, make it unjust that such
damages should be awarded. The plaintiff has lost the earnings and the
opportunity, which, while he was living, he valued, of employing them as
he would have thought best. Whether a man’s ambition be to build up a
fortune, to provide for his family, or to spend his money upon good causes
or merely a pleasurable existence, loss of the means to do so is a genuine
financial loss. The logical and philosophical difficulties of compensating
a man for a loss arising after his death emerge only if one treats the loss
as a non-pecuniary loss—which to some extent it is. But it is also a
pecuniary loss—the money would have been his to deal with as he chose,
had he lived.

The sixth objection appears to me unavoidable, though further argument
and analysis in a case in which the point arose for decision might lead to a
judicial solution which was satisfactory. But I suspect that the point will
need legislation. However, if one must choose between a law which in
some cases will deprive dependants of their dependency through the chances
of life and litigation and a law which, in avoiding such a deprival, will
entail in some cases both the estate and the dependants recovering damages
in respect of the lost years, I find the latter to be the lesser evil.

I conclude, therefore, that damages for loss of future earnings (and
future expectations) during the lost years are recoverable, where the facts
are such that the loss is not too remote to be measurable. But I think,
for the reasons given by Lord Wilberforce, Lord Salmon and Lord
Edmund-Davies, that a plaintiff (or his estate) should not recover more than
that which would have remained at his disposal after meeting his own living
expenses.

(2) Damages for pain, suffering, and loss of amenities
The Court of Appeal thought that the sum (£7,000) awarded by the judge

was too low, and substituted a figure of £10,000. The Master of the Rolls

said

” Although I well appreciate the care which the judge gave to this
” case, it seems to me that there is one feature which the judge did
” not take into account sufficiently, and that is the distress which
” Mr. Pickett must have suffered knowing that his widow and
” dependants would be left without him to care for them. I think we
” ought to take this distress into account. Taking it into account, it
” seems to me that we can properly increase the figure given by the
” judge to the sum of £10,000. This seems itself all too little; but, as
” I have said, with the law as it now stands, I do not think it is open
” to the court to increase it further because no compensation is at the
” moment available for loss of earnings during the ‘ lost years ‘.”

My Lords, I have to say that I think that in this passage the Master of the
Rolls was influenced—understandably, if I may respectfully say so,—by the
pitifully small sum available to the plaintiff as damages for loss of future
earnings under the law which bound the judge and the Court of Appeal.
The distress suffered by Mr. Pickett knowing that his widow and children
would be left without him to care for them was an element in his suffering
for which I agree Mr. Pickett was entitled to fair compensation. But it
would be bad law if this element of non-pecuniary damage should be used
to make good in whole or in part the loss of earnings during the ” lost
” years “, which under the law as it stood when this case was before the
Court of Appeal were not recoverable as damages. I am far from being
persuaded that the judge failed to take into account this element of Mr.
Pickett’s suffering. The Master of the Rolls in the passage which I have
quoted paid his tribute to the care which the judge gave the case. Lord
Justice Lawton hesitated before differing from the judge. He said:

” My reason for having some hesitation is that it is manifest that he
” approached the matter of the assessment of damages on the right lines.”

I respectfully agree. In the course of an eloquent passage in his judgment
describing Mr. Pickett’s pain and suffering, the trial judge said:

” He has, according to his evidence, no precise knowledge of what
” the future holds for him, but he must be aware—I am certain that
” he is aware—that it is a very limited future. It may be that he will
” become aware of the position so far as the future is concerned.
” Although he has been kept out of Court, it is unfortunately impossible
” to guarantee that that fact will not be communicated to him in some
” way. I am satisfied that it is right that the Court should bear in
” mind the possibility; indeed, I would rate it as a probability.”

And he summed it all up when he said that he had endeavoured to take
into account ” all the features of the tragic situation in which Mr. Pickett
” finds himself.” It is not possible, therefore, to fault the judge’s approach
to the assessment of general damages.

It is not the function of an appellate court to substitute its opinion for
that of the trial judge. Lord Wright stated the general principle in a
well-known passage in his speech in Davies v. Powell Duffryn Associated
Collieries Ltd. supra at page 617:

” In effect the court, before it interferes with an award of damages,
” should be satisfied that the judge has acted on a wrong principle of
” law, or has misapprehended the facts, or has for these or other reasons
” made a wholly erroneous estimate of the damage suffered. It is not
” enough that there is a balance of opinion or preference. The scale
” must go down heavily against the figure attacked if the appellate court
” is to interfere, whether on the ground of excess or insufficiency.”

The trial judge correctly apprehended the facts, and adopted the correct
approach in law. Though to some the award of £7,000 may seem low, it
is not so low as to support the inference that the judge’s estimate was wholly

erroneous. In a task as imprecise and immeasurable as the award of
damages for non-pecuniary loss, a preference for £10,000 over £7,000 is a
matter of opinion, but not by itself evidence of error. I would, therefore,
allow the cross-appeal and restore the judge’s award of £7,000 general
damages.

(3) Interest

In Cookson v. Knowles [1978} 2 A11.E.R.604 your Lordships’ House has
recently reviewed the guidelines for the exercise of the court’s discretion in
awarding interest upon damages in fatal accident cases. The House expressly
left open the question of interest upon damages for non-pecuniary loss in a
personal injury action. 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.
” It has not been argued before your Lordships and I refrain from
” expressing any view about it.”

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 loss
awarded to a living plaintiff in a personal injury case. The Master of the
Rolls, delivering the judgment of the court, said (page 283H):

” In Jefford v. Gee [1970] 2 QB 130. 151, we said that, in personal
” injury cases, when a lump sum is awarded for pain and suffering and
” loss of amenities, interest should run ‘ from the date of service of the
” ‘ writ to the date of trial.’ At that time inflation did not stare us in
” the face. We had not in mind continuing inflation and its effect on
” awards. It is obvious now that that guide-line should be changed.
” The courts invariably assess the lump sum on the ‘ scale’ for figures
” current at the date of the trial—which is much higher than the figure
” current at the date of the injury or at the date of the writ. The
” plaintiff thus stands to gain by the delay in bringing the case to trial.
” He ought not to gain still more by having interest from the date of
” service of the writ. We would alter the guide-line, therefore, by
” suggesting that no interest should be awarded on the lump sum
” awarded at the trial for pain and suffering and loss of amenities.”

In the instant case the Court of Appeal has followed its dictum, disallowing
the 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 on
this point. It is based upon a fallacy; and is inconsistent with the statute.

First, the fallacy. It is assumed that because the award of damages made
at trial is greater, in monetary terms, than it would have been, had damages
been assessed at date of service of writ, the award is greater in terms of
real value. There is here a complete non sequitur. The cash awarded is
more, because the value of cash, i.e. its purchasing power, has diminished.
In theory the higher award at trial has the same purchasing power as the
lower award which would have been made at the date of the service of the
writ: in truth, of course, judicial awards of damages follow, but rarely keep
pace with, inflation so that in all probability the sum awarded at trial is
less, in terms of real value, than would have been awarded at the earlier
date. In theory, therefore, and to some extent in practice, inflation is taken
care of by increasing the number of money units in the award so that the
real value of the loss is met. The loss, for which interest is given, is quite
distinct, and not covered by this increase. It is the loss which is suffered
by being kept out of money to which one is entitled.

Secondly, the statute. Section 22. Administration of Justice Act 1969,
amending section 3. Law Reform (Miscellaneous Provisions) Act 1934, pro-
vides that the court shall (my emphasis) exercise its power to award interest
on damages, or on such part of the damages as the court considers appro-
priate, ” unless the court is satisfied that there are special reasons why no
” interest should be given in respect of those damages.” Such is the general

rule laid down by the statute, which does, however, confer upon the court
a discretion as to the period for which interest is given and also permits
differing rates. Nothing can be clearer than the duty placed upon the court
to give interest in the absence of special reasons for giving none. Inflation
is an economic and financial condition of general application in our society.
Its impact upon this plaintiff has been neither more nor less than upon
everybody else: there is nothing special about it.

For these reasons I think the Court of Appeal erred in refusing to allow
interest on the award of damages for non-pecuniary loss. I would reinstate
the judge’s award.

In conclusion, I agree that the appeal and cross-appeal should both be
allowed and that the order proposed by my noble and learned friend. Lord
Wilberforce should be made. I also agree with the order as to costs which
he has proposed.

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