IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
|Royal Courts of Justice,|
|22nd May 1985|
LORD JUSTICE O’CONNOR
MR. JUSTICE SLADE
MR. JUSTICE BRISTOW
|TRACEY DAWN HOUSECROFT
(Transcript of the Shorthand Notes of the Association of Official Shorthandwriters Limited, Room 392, Royal Courts of Justice, and 2, New Square, Lincoln’s Inn, London WC2A 3RU. Tel. No. 01-405 9884)
____________________MR. R.M. STEWART, Q.C. and MR. L.H. SCOTT (instructed by Messrs. Brearleys, Batley, West Yorkshire) appeared on behalf of the Appellant (Plaintiff).
MR. B.J. APPLEBY, Q.C. and MR. I.A.B. McLAREN (instructed by Messrs. Lupton Fawcett Bell Cumming & Co., Leeds) appeared on behalf of the Respondent (Defendant).
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LORD JUSTICE O’CONNOR: Mr. Justice Bristow cannot be present this morning. He has read and expressed his agreement with the judgment which has been handed down. The appeal will be dismissed for the reasons given therein.
On 20th February 1980 the plaintiff, aged 16, was a passenger in a motor-car driven by the defendant when it was involved in an accident, and she sustained injuries. Liability was admitted. The assessment of damages came on for hearing in July 1983 and on 8th July Kilner Brown J. assessed the damages in the sum of £323,050 which, together with interest agreed at £4,867, produced an award of £327,917 for which sum judgment was entered. The plaintiff appeals against that judgment on the ground that the award is too small.
The injuries sustained by the plaintiff resulted in tetraplegia. Three complaints are made about the assessment of damages:, 1. The learned Judge awarded £80,000 for pain, suffering and loss of amenity. Although this is the largest award to a tetraplegic under this head so far recorded, it is attacked on the ground that if the inflation factor is applied to comparable awards in the late 1960s and early 1970s a six figure award is demonstrated; 2. The Judge awarded £108,550 for future care. To arrive at this figure he used a multiplicand of £8,350 and a multiplier of 13. The multiplicand is attacked on the ground that (a) the Judge made no award for some things which called for an award and (b) the Judge so undervalued the element for the mother’s services that this court should interfere and increase it; 3. The Judge awarded £56,000 for loss of future earnings. He applied a multiplier of 10 to an agreed multiplicand of £5,600. He assessed the expectation of life at 27 years, and refused to make any award for the lost years. It is said that this is wrong in principle and that some award is called for.
By the respondent’s notice the defendant says that, in the event of the court deciding to vary the award under heads 2 and or 3 above, he will contend that the award under head 1 is too high, that the multiplier of 10 under head 3 is too great and that in the result the total award should not be increased.
|1. Pain suffering and loss of amenity.||. £ 80,000|
|2. Loss of expectation of life.||. £ 1,250 ,|
|3. Future motoring expenses, i.e. provision for outdoor mobility. Agreed at.||. £ 14,000|
|4. A miscellany of future expenses. Holidays, heat, services of a gardener, agreed at
£1,050 p.a. Judge applied multiplier of 13.
|5. Provision of therapeutic equipment, telephone future medical expenses. Agreed at.||. £ 12,000|
|6. Future physiotherapy. Agreed at.||. £ 600|
|7. Alterations to house. Agreed at.||. £ 20,000|
|8. Special damage. Agreed at.||. £ 7,000|
|9. Past care.||.. £ 10,000|
|10. Future care.||. £108, 550|
|11. Future loss of earnings.||. £ 56,000|
“My Lord, claims for damages in respect of personal injuries constitute a high proportion of civil actions that are started in the courts in this country. If all of them proceeded to trial the administration of civil justice would break down; what prevents this is that a high proportion of them are settled before they reach the expensive and time-consuming stage of trial, and an even higher proportion of claims, particularly the less serious ones, are settled before the stage is reached of issuing and serving a writ. This is only possible if there is some reasonable degree of predictability _about the sum of money that would be likely to be recovered if the action proceeded to trial and the plaintiff succeeded in establishing liability.
“The principal characteristics of actions for personal injuries that militate against predictability as to the sum recoverable are, first, that the English legal system requires that any judgment for tort damages, not being a continuing tort, shall be for one lump sum to compensate for all loss sustained by the plaintiff in consequence of the defendant’s tortious act whether such loss be economic or non-economic, and whether it has been sustained during the period prior to the judgment or is expected to be sustained thereafter. The second characteristic is that non-economic loss constitutes a major item in the damages. Such loss is not susceptible of measurement in money. Any figure at which the assessor of damages arrives cannot be other than artificial and, if the aim is that justice meted out to all litigants should be even-handed instead of depending on idiosyncrasies of the assessor, whether jury or judge, the figure must be ‘basically a conventional figure derived from experience and from awards in comparable cases'”. (776H – 777D)
“The need for a judge in assessing damages for non-economic loss to have regard to awards in comparable cases has led to progressive general increases in the level of awards particularly for serious injuries. These have been intended to reflect, though admittedly imperfectly, the general increase in the level of salaries and wages and, more particularly since inflation became rampant, the decrease in the real value of the money due to this cause.
“it is with the increase in the nominal amount of awards in ‘the money of the day’ (to borrow the apt phrase used by Barwick C.J. in O’Brien v. McKean (1948) 42 A.L.J.R. 223,224) due to inflation that your Lordships are primarily concerned in the instant case. That increase in awards has taken place irregularly by fits and starts rather than followed the actual shape of the rising curve of inflation; and there have been periods, particularly between 1973 and 1979, when it lagged sufficiently behind the decrease in real value of the money of the day. This was pointed out in Walker v. John McLean & Sons Ltd. (1979) 1 W.L.R. 760, 765, where the Court of Appeal re-affirmed the rule of practice that damages for non-economic loss are to be assessed by reference to the value of money at the date of the trial and not at some other and lower sum calculated by reference to an earlier and higher value of the pound.” (777F – 778A)
“Lord Wilberforce, Lord Edmund-Davies and Lord Scarman pointed out the fallacy underlying the new ‘no interest’ guideline propounded by Lord Denning M.R. in Cookson v. Knowles (1977) Q.B. 913. As Lord Wilberforce succinctly put it, at p. 141: ‘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.'” (780G – H)
“If judges carry out their duty of assessing damages for non-economic loss in the money of the day at the date of the trial – and this is a rule of practice that judges are required to follow, not a guideline from which they have a discretion to depart if there are special circumstances that justify their doing so – there are two routes by which the judge’s task of arriving at the appropriate conventional rate of interest to be applied to the damages so assessed can be approached.” (782C – D)
“My Lords, given the inescapably artificial and conventional nature of the assessment of damages for non-economic loss in personal injury actions and of treating such assessment as a debt bearing interest from the date of service of the writ, it is an important function of the Court of Appeal to lay down guidelines both as to the quantum of damages appropriate to compensate for various types of commonly occurring injuries and as to the rates of ‘interest’ from time to time appropriate to be given in respect of non-economic loss and of the various kinds of economic loss. The purpose of such guidelines is that they should be simple and easy to apply though broad enough to permit allowances to be made for special features of individual cases which make the deprivation caused to the particular plaintiff by the non-economic loss greater or less than in the general run of cases involving injuries of the same kind. Guidelines laid down by an appellate court are addressed directly to judges who try personal injury actions; but confidence that trial judges will apply them means that all those who are engaged in settling out of court the many thousands of claims that never reach the stage of litigation at all or, if they do, do not proceed as far as trial will know very broadly speaking what the claim is likely to be worth if 100 per cent, liability is established.
“The Court of Appeal, with its considerable case-load of appeals in personal injury actions and the relatively recent experience of many of its members in trying such cases themselves, is, generally speaking, the tribunal best qualified to set the guidelines for judges currently trying such actions, particularly as respects non-economic loss, and this House should hesitate before deciding to depart from them, particularly if the departure will make the guideline less general in its applicability or less simple to apply.
“A guideline as to quantum of conventional damages or conventional interest thereon is not a rule of law nor is it a rule of practice. It sets no binding precedent; it can be varied as circumstances change or experience shows that it does not assist in the achievement of even-handed justice or makes trials more lengthy or expensive or settlements more difficult to reach. But though guidelines should be altered if circumstances relevant to the particular guideline change, too frequent alteration deprives them of their usefulness in providing a reasonable degree of predictability in the litigious process and so facilitating settlement of claims without going to trial.
“As regards assessment of damages for non-economic loss in personal injury cases, the Court of Appeal creates the guidelines as to the appropriate conventional figure by increasing or reducing awards of damages made by judges in individual cases for various common kinds of injuries. Thus, so-called ‘brackets’ are established, broad enough to make allowance for circumstances which make the deprivation suffered by an individual plaintiff in consequence of the particular kind of injury greater or less than in the general run of cases, yet clear enough to reduce the unpredictability of what is likely to be the most important factor in arriving at settlement of claims. ‘Brackets’ may call for alteration not only to take account of inflation, for which they ought automatically to be raised, but also it may be to take account of advances in medical science which may make particular kinds of injuries less disabling or advances in medical knowledge which may disclose hitherto unsuspected long term effects of some kinds of injuries or industrial diseases.” (784F – 785F)
In Walker v. John McLean & Sons Ltd. (1979) 1 W.L.R. 760, the plaintiff was a paraplegic. The parties had accepted the accuracy of the table of comparative values of the pound found in Kemp and Kemp. Cumming-Bruce L.J. said at page 765:
“Great caution has to be exercised in the examination and analysis of comparable awards because the facts inevitably differ and the influence of other items in each total award plays a part which is not always easy to identify or measure.”
“in our view the recorded awards since 1973 are open to the criticism that they demonstrate that generally the courts have failed during the last five years to take sufficient account of the fact that the damages awarded for loss of amenity were worth significantly less than similar awards in earlier years. We do not encourage the application of a rigid multiplier to accord arithmetically with the changing values of the pound shown in the table to which we have referred. We content ourselves with the observation that by his award of £35,000 under this head the judge restores a consistency with awards made before 1973 which cannot be found in many awards made since that year.”
The task of updating awards to compensate for the fall in the value of money is not, and cannot be, a precise art. The bracket which emerges from decisions of this court must have a spread, because this court does not interfere with an award under this head unless it is manifestly too high or too low, or it can be shown that the Judge has erred in principle in relation to some element that goes to make up the award. The human condition is so infinitely variable that it is impossible to set a tariff, but some injuries are more susceptible to some uniformity in compensation than others. One such is an injury which results in tetraplegia for in the nature of things the variables are more or less limited to age, awareness, pain and expectation of life.
This concept of updating the level of awards presupposes a datum for comparison. Here is the first difficulty. Section 22 of the Administration of Justice Act 1968, which made the award of interest on damages in personal injuries cases compulsory, came into force on 1st January 1970 and Jefford v. Gee,(1970) 2 QB 130, which laid down the guidelines on how this was to be done, was decided in this court later that year. The old division of damages into general and special was not appropriate when questions of interest came to be considered. Future loss and future expense had to be isolated; and this led to the proliferation of heads of damage: the table which I have set out is a good example of the pattern which has developed. Before 1970 it is only occasionally that one can get a figure for pain, suffering and loss of amenity separated from the award of general damages. When the award is separated it will be found that it includes sometimes expressly, and certainly by implication, matters which are separately assessed today. I must give some examples of this: I will start with the case of Fowler v. Grace, (1970) 114 S.J. 193, and for convenience of reference I will use Kemp and Kemp 1-151.
|1. “Pain, suffering and loss of amenity”||£ 25,000|
|2. Future nurs ing care||£ 9,600|
|3. Adaptation of house||£ 3,000|
|4. Special damage||£ 1,350|
|5. Loss of expectation of life||£ 500|
In Chambers v. Karia, February 2, 1979 (unreported) Kemp and Kemp 1-152, I said that the award for loss of amenity took care of a claim for driving expenses. The facts of an individual case may well justify the trial Judge in leaving the award for loss of amenity to take care of items specifically claimed.
In Walker v. John McLean & Sons Ltd. this court, having examined the cases, declared that the awards during 1973 to 1978 inclusive had fallen significantly below what they ought to have been. It follows that they do not form a reliable base for the updating exercise.
For at least the last ten years when a claim by a tetraplegic has come to trial, counsel for the plaintiff has presented the Judge with a list of awards multiplied by the appropriate inflation factor taken from the table in Kemp and Kemp. The resulting figures appear to show that the going rate in use by the Judges is too low, and the Judge is invited to be bold and take a leap upwards. This submission was made to me in Chambers v. Karia, to Taylor J. in Brown v. Merton, Sutton and Wandsworth Area Health Authority (1982) 1 All E.R. 650, Kemp and Kemp 1-154, to the trial Judge and in turn to us in the present case. Mr. Stewart duly produced his table. I have come to the conclusion that this exercise has served its purpose, and that the time has come to make a fresh start. The 1969 to 1970 awards do not offer a true comparison for the reasons I have given when examining Fowler v. Grace. The 1973 to 1978 awards were too low, as recognised in Walker v. John McLean & Sons Ltd. The more recent awards are a better guide because they are net of sums assessed separately which in fact compensate for loss of amenity in part. The cases show that this case is a typical middle-of-the-road case of tetraplegia. These are cases where the injured person is not in physical pain, is fully aware of the disability, has an expectation of life of 25 years or more, powers of speech, sight and hearing are present, and needs help with bodily functions. The factors which operate to make the case one for awarding more than average are physical pain and any diminution in the powers of speech, sight or hearing. The factors which operate to make the case one for awarding less than average are lack of awareness of the condition and a reduction in expectation of life. These factors often cancel each other to a greater or lesser extent especially where there is severe brain damage.
In Brown v. Merton, Sutton and Wandsworth Area Health Authority the award was £70,000, but there was great pain. In Rialas v. Mitchell, November 10, 1982 (unreported) Kemp and Kemp 1-155, Forbes J. awarded £50,000 to a boy of 12. In December 1982 the same Judge awarded £50,000 to a paraplegic, Chapman v. Lidstone, December 3, 1982 (unreported) Kemp and Kemp 1-210. This award was upheld in the Court of Appeal.
When it is remembered that the award of £35,000 in Walker v. John McLean & Sons Ltd. was made in 1978 and approved in this court in February 1979, the updating in Chapman v. Lidstone is about right. In Croke v. Wiseman, (1982) 1 W.L.R. 71, decided in this court in July 1981, a case of severe brain damage, Griffiths L.J. said that an award of £35,000 to an infant reduced to being a vegetable at the age of 21 months was not too much, and added that “it was about right for the gravest injuries”. In Young v. Redmond 1982 C.A. No. 147, March 29, 1982, he explained that his remarks were not intended to be, and must not be, taken to be a guideline of general application: (see Kemp and Kemp 1-522).
“The plaintiff sustained (a) a head injury, though not of very severe consequence, (b) a fracture dislocation of the fifth cervical vertebra with damage to the spinal cord and (c) fracture of the right shoulder-blade and two ribs. There was no damage to the brain. She now has permanent paralysis of all four limbs. She has some use of her arms but not of her hands, nor of her legs. She has no sensation in the legs or private parts. She is almost completely tetraplegic. She cannot turn in bed or move from bed to chair. Nor can she dress herself. She is able, by thrusting with her arms, to propel with great difficulty a wheelchair, but only very slowly and for short distances. She can only feed herself if the food is cut up and a spoon or fork is strapped to her hand because she has no power in her hands or fingers. She cannot raise a beaker or glass to her lips or hold food such as a sandwich or a piece of cake in her fingers. Her considerable intellectual functions have not been impaired. She is, therefore, a bright, intelligent young woman of considerable physical attraction with complete awareness of the catastrophic destruction of her young life and the prospects of a long and happy existence for many years to come. A successful career is denied her but, much more important in my view, she is denied the happiness and fulfilment of marriage and the joy of motherhood. Her expectation of life is thought to be between twenty-five and thirty-two years and for the purpose of this case can be said to be about twenty-seven years.”
“…..she required constant attention. At night-time at the moment she has to be moved twice in a period of some eight hours or thereabouts – though the medical advisors to the defendants consider that it might be advisable in the next year or two to try and arrange for one turning of this helpless body in the course of her sleeping hours. All intimate details of personal bodily functions have to be attended to by someone else – in this case by her mother. There has to be mechanical evacuation of faeces. This is done approximately every three days. Evacuation of urine is by catheter. At menstrual periods her mother with great difficulty has to attend to her sanitary toilet. The small but virtually important details of a young girl’s everday life, such as choice of garments, the actual dressing and the brushing of her hair, all of these she is quite incapable of doing for herself and it is her mother who attends to those requirements. She is, therefore, in permanent need of constant and regular care, nursing and attention. She is relatively free from pain and discomfort and can use her arms to a very limited degree. For example, by reason of a fixed extension to this powerless hand, she is able to press an electric typewriter keyboard one letter painfully time after time individually. Her mental anguish is incalculable and her case ought to be regarded as one of the most grievous in this category because she was of such a degree of intellect, high promise and awareness of burgeoning womanhood that the permanent and perpetual recognition of her stricken condition and all that has been snatched from her is something that merits compensation to the highest scale of accepted figures by way of damages in this type of catastrophic injury.”
“…..it is right that I should say something further about the appropriate figure for general damage to be awarded for pain and suffering and loss of amenities. Were it not for the fact that I am very-conscious that the Court of Appeal over and over again and the House of Lords on several occasions has said that some sort of conformity is essential, some sort of certainty is vital in the economy of the insurance world than in the professional world of solicitor and counsel called upon to advise, I would, left to my own, have awarded a considerably higher figure than that which I am about to award. In my opinion, and it is one which I put forward and with humble respect, the sixteen year old intelligent girl, attractive, with the whole world at her feet, ranks right at the top of injuries of so severe a nature as this. I have already referred to the incalculable effect of the mental anguish. There is this girl on the threshold of life denied everything. In my judgment a young girl who is going to be on a balance of probabilities a professional woman, a happily married woman, a mother, is in far worse state than a man of twenty-two, in far worse state than a woman of thirty-five who though technically not married, and I refer to one Carol Brown, in one of the cases, who had borne a child – the only difference in the case of Carol Brown was that there was constant pain. But to think day after day, month after month, year after year, of what has been snatched from her is something which is quite impossible to quantify in terms of damage. The only way that I can approach this is to say that I take by way of comparison the top awards so far and edge up just a little, though were it left to me alone without the guidance I would increase the award of £80,000 which I think is right by a very-large amount indeed.”
While understanding and sharing the learned Judge’s sympathy for the plaintiff, I do not think that the case is other than an average example of cases of tetraplegia. I think that the award under this head was too much. I think that £70,000 would have been an adequate assessment. It is important to remember that the award under this head in cases of catastrophic injury invariably forms part of a much larger total award. I am conscious that we are considering this case some 20 months after judgment and, as I have said, I think the time has come for a fresh start. I have come to the conclusion that as a guideline in April 1985 a figure of £75,000 should be used for an average case of tetraplegia. When the factors to which I have referred earlier in this judgment are taken into consideration, there will be cases where an award of very much less will be appropriate, but I would not expect there to be many cases calling for much increase on what has to be a conventional sum. For these reasons the submission that the award of £80,000 is too little fails.
The second complaint is against the award for future care. The learned Judge finally arrived at a multiplicand of £8,350 per annum, made up as to £5,350 cost of outside help, and £3,000 for the services rendered by the plaintiff’s mother. In the body of his judgment the learned Judge had decided on sums of £4,000 and £3,500 respectively, making a multiplicand of £7,500. He had said: “I reject the totality of the claim £5 250 for extra assistance, and consider that should be fixed at £4,000 a year.” After judgment Mr. Stewart tactfully reminded the Judge that the claim for outside help had been £15,000 a year, that the defence had conceded £5,348, and enquired whether the learned Judge had intended to reduce that figure to £4,000. The judgment had been silent on this topic. The learned Judge said that he had made a mistake in his calculations, accepted the figure rounded up to £5,350 for outside help, but reduced the value of the mother’s help to £3,000, thus producing a multiplicand of £8,350. Mr. Stewart submitted that the figure of £5,350 is demonstrably inadequate, and that even if he is wrong about this, there is no justificatior for reducing the value of the mother’s help from the figure at which it had been assessed which was itself too little. These two submissions raise very different problems, but the principles underlying both are more difficult to apply to the second.
The backbone of the plaintiff’s case on outside help was formed from two reports from Miss Smalley, who is a State Registered Nurse and a director of the British Nursing Association. She assesses the circumstances of plaintiffs and gives her opinion of the help needed by caring relatives, be they parents, spouses, or others, to enable them to look after the plaintiff without assuming an unreasonable burden. She gives evidence of the going rate for employing the help; the rate varies according to the part of the country in which the plaintiff lives. At the date of the trial the mother, Mrs Anne Housecroft, had been looking after the plaintiff at home for two and a half years with the help of the district nurse. She is a widow, aged 43,with five children. The eldest son had graduated from University and left home. The second son was about to go up to University. The two youngest, a girl of fifteen and a boy of twelve, were at school and living at home. The children helped to look after the plaintiff and relieved their mother, particularly at week-ends. Mrs Housecroft was in fact resident nurse to the plaintiff. Apart from the district nurse each morning and her children, she had help three days a week for three and a half hours. She turned the plaintiff at midnight before going to bed herself. Her day began in time to get the children off to school by 8.15 a.m. She said that she wanted to go on looking after the plaintiff as long as her own health would allow, but it was obvious that she needed more help, and would need more as and when the children grew up and left home. The defence accepted that this was so, and the question was to decide what help was needed and to provide for it. Miss Smalley said that Mrs Housecroft needed help to get the plaintiff up and put her to bed one and a half hours a day at an annual cost of £928. The defence agreed. She needed help in the house at least five days a week at an annual cost of £2,080. The defence agreed. Miss Smalley said that Mrs Housecroft should be relieved of night duty, at least for some nights, by employing a “night-sleeper” at £15 per night. Miss Smalley proposed four nights a week. The defence accepted three nights at an annual cost of £2,340, and Mrs Housecroft said in evidence that three nights would be a great relief. These three figures of £928, £2,080 and £2 340 make up the sum of £5,348 which the Judge rounded up to £5,350.
Mr. Stewart makes two criticisms of this figure. First of all he says that no provision has been made for giving Mrs Housecroft a holiday, say for a month in each year, which would involve employing a housekeeper at a cost of £77 per week. The housekeeper could not be expected to undertake night duty, so there would be an additional £60 per week for a night-sleeper, making £548 per annum, which he says should be added to the multiplicand, thus adding £7,124 to the award under this head.
Secondly, he says that the Judge had made no provision whatsoever against the possibility of Mrs Housecroft not being available to look after the plaintiff by reason of death, physical incapacity or indeed temporary illness. Miss Smalley said that it would cost £5,630 per annum to have a full-time resident housekeeper, and an additional £3,120 per annum for a night-sleeper, making an additional £8,750 per annum. In addition, Miss Smalley proposed an afternoon relief for Mrs Housecroft, and/or the housekeeper, at a cost of £832 per annum, and Mr. Stewart invited us to take account of that figure. He submitted that an enlarged multiplicand should be used for some part of the mulptiplier, adding perhaps £25,000 to £30,000 to the gross figure.
This submission requires us to consider the health and capacity of Mrs Housecroft. The evidence was all one way. She is a robust woman who, so long as she had help with lifting, could be expected to be able to look after the plaintiff up to the age of 70; that is for the whole of the plaintiff’s life expectancy. The Judge had made no express finding on this topic, but the whole tenor of his judgment is that he decided that the reasonable probability was that the mother would remain able and willing to care for the plaintiff, and so made no provision for a housekeeper.
In my judgment he was fully entitled to reach this conclusion because he was providing a very substantial sum to enable the plaintiff to reward her mother for her loving care, and the sum would be available to the plaintiff if the chances of life should in the future make it impossible for Mrs Housecroft to fulfil her chosen role wholly or in part. On the other hand, I think that the first submission is well-founded. I think that in considering the help that the mother needed the Judge overlooked the need for giving her a holiday. I will return to this matter after I have considered the criticism that the Judge awarded too little in respect of the services of the mother.
Mr. Stewart submitted that it is wrong to value the mother’s services other than at a commercial rate, so that on the evidence they should have been valued at the very least at £70 per week, the wages which would have to be paid to a housekeeper, £3,640 per annum. He submits that in his original assessment of £3,500 the learned Judge was not far off the mark, and that in the circumstances there was no justification for reducing the figure to £3,000.
“Until comparatively recently the superior courts considered that the value to be put upon a devoted close relative, such as a wife in the case of a husband and a mother in the case of a child, should never be regarded in the same context as the commercial cost of provision of such services. In recent years there is one recorded instance of a judge expressing the view that the commercial cost is the only yardstick by which to measure the value of such a devoted nursing mother as in a case like this. I take the view, and have done for some years now, that it is quite impossible simply to pluck a figure from the air. It was done in a case which went to the Court of Appeal some years ago. In my judgment the trial judge has to have the assistance of the costed figures for appropriate type of assistance. He then has, as in this case I have to do, to see how much of that is necessary, to see how the mother’s part makes that extra assistance less. He has to see whether, as in the case of a devoted wife, the wife has no other duties arising out of a loving relationship other than that say of a husband or of one child. He has to try and evaluate the degree /to which7 additional loving care and attention puts a burden upon the mother who has to run a home and to look after her growing family. In this case I need not recite all the details of the arguments, nor all the figures which have been proffered to me for my consideration. I content myself by saying that I have borne the arguments in mind. I have looked at the figures and I have done the best I can to evaluate the services which the mother has rendered in the past up-to-date, the value of the services which the mother will render in the future and to see how much assistance she will require and to endeavour to put a figure upon that degree of assistance. Furthermore, I do not intend to analyse in any detail the arguments on both sides as to the application of established principles when considering how to arrive at the appropriate figures in terms of capital to which the plaintiff in my judgment is entitled.”
“To return to this difficult question of assessing the cost of the mother’s nursing care, regular day in day out attention and the cost of assistance, there was a wide disparity between the figures which were suggested to me by Mr. Appleby for the defendant and Mr. Stewart for the plaintiff. In my judgment there should be a slightly higher figure for past care and attention which this mother, without all this additional assistance which has to be provided, had to perform on her own or with little help. I have come to the conclusion that for the two and a half years before trial the value of the mother’s services should be assessed at £4,000 a year. For the future I assess the value of the mother’s services at £3,500 a year.”
The basis on which anything is awarded to a plaintiff in respect of the nursing care provided by a relative was stated in this court in Donnelly v. Joyce (1974) 1 QB 454. In that case a claim for nursing services by the mother had been quantified in the sum of £147.16 being the equivalent of earnings she had lost during the time she was looking after her son. The defendant contended that this was not the plaintiff’s loss and could not be recovered by him.
“We do not agree with the proposition inherent in Mr. Hamilton’s submission, that the plaintiff’s claim, in circumstances such as the present, is properly to be regarded as being, to use his phrase, ‘in relation to someone else’s loss’, merely because someone else has provided to, or for the benefit of, the plaintiff – the injured person – the money, or the services to be valued as money, to provide for needs of the plaintiff directly caused by the defendant’s wrongdoing. The loss is the plaintiff’s loss. The question from what source the plaintiff’s needs have been met, the question who has paid the money or given the services, the question whether or not the plaintiff is or is not under a legal or moral liability to repay, are, so far as the defendant and his liability are concerned, all irrelevant. The plaintiff’s loss, to take this present case, is not the expenditure of money to buy the special boots or to pay for the nursing attention. His loss is the existence of the need for those special boots or for those nursing services, the value of which for purposes of damages – for the purpose of the ascertainment of the amount of his loss – is the proper and reasonable cost of supplying those needs. That, in our judgment, is the key to the problem.’ So far as the defendant is concerned, the loss is not someone else’s loss. It is the plaintiff’s loss.”
Where the needs of an injured plaintiff are and will be supplied by a relative or friend out of love and affection (and in cases of little children where the provider is parent duty) freely and without regard to monetary reward, how should the court assess “the proper and reasonable cost?” There are two extreme solutions: (i) assess the full commercial rate for supplying the needs by employing someone to do what the relative does; (ii) assess the cost at nil, just as it is assessed at nil where the plaintiff is cared for under the national health scheme, but let me say at once that the defence in the present case has not contended for the second solution. The reason why a nil assessment is made where the plaintiff is to be looked after under national health is because no expense will be incurred in supplying the needs: (see the speech of Lord Scarman in Lim v. Camden Health Authority (1980) AC 174 at pages 187 to 188). It follows that in assessing the “proper and reasonable cost of supplying the needs” each case must be considered on its own facts, but it is not to be assessed regardless of whether it will be incurred.
The earlier cases were mostly concerned with recovering earnings lost by the caring relative as a result of looking after the plaintiff. The more recent cases show that substantial sums have been assessed when the relative has not given up any employment. In Taylor v. Glass, May 23, 1977 (unreported) Kemp and Kemp 1-715, Smith J. assessed the loss on the open market rate, it having been agreed that if what the parents did had to be bought on the open market the cost would be £50 per week, In Moser v. Enfield & Haringay Area Health Authority, November 11, 1982 (unreported) Kemp and Kemp 1-721, Michael Davies J. assessed the mother’s care at £3,000 per annum out of a total of £12,000 per annum for future care. Very often we find rates being agreed and, as is shown by the approach of the learned Judge in the present case, regard is had to what it would cost to buy the services in the open market, but it is scaled down.
I have found this a very difficult problem. For the reasons given by Megaw L.J. in Donnelly’s case, I am very anxious that there should be no resurrection of the practice of plaintiffs making contractual agreements with relatives to pay for what are in fact gratuitous services rendered out of love. Now that it is established that an award can be made in the absence of such an agreement, I would regard an agreement made for the purposes of trying to increase the award as a sham. I suspect that the proper assessment has been influenced by the status of the money. In Cunningham v. Harrison (1973) 1 QB 942 Lord Denning M.R. said at page 951 that the money would be held in trust for the wife. This statement was obiter, and although we have heard no argument on this point it seems to me to be inconsistent with the reasoning in Donnelly v. Joyce. Once it is understood that this is an element in the award to the plaintiff to provide for the reasonable and proper care of the plaintiff and that a capital sum is to be available for that purpose, the court should look at it as a whole and consider whether, on the facts of the case, it is sufficient to enable the plaintiff, among other things, to make reasonable recompense to the relative. So, in cases where the relative has given up gainful employment to look after the plaintiff, I would regard it as natural that the plaintiff would not wish the relative to be the loser and the court would award sufficient to enable the plaintiff to achieve that result. The ceiling would be the commercial rate. In cases like the present I would look at the award of £108,550, remembering that there is in that sum a sum of £39,000 over and above the sum required to provide the expected outgoings, and ask: “Is this sufficient to provide for the plaintiff’s needs, including enabling her to make some monetary acknowledgement of her appreciation of all that her mother does for her?” I would also ask: “Is it sufficient for this plaintiff should her mother fall by the wayside and be unable to give as she gives now?” I have no doubt that in this case the answer is “yes” to both questions.
The court is recognising that part of the reasonable and proper cost of providing for the plaintiff’s need is to enable her to make a present, or series of presents, to her mother. Neither of the extreme solutions is right. The assessment will be somewhere in between, depending on the facts of the case.
I would not interfere with the Judge’s final assessment of £3,000 per annum as the provision for the mother’s care. As I have said, I think that he omitted to make any provision for giving Mrs Housecroft a break, but when this is capitalised at £7,000 it is substantially less than the amount by which I think that the Judge was over generous in his assessment for pain, suffering and loss of amenity. I would not make any increase in the award under this head.
“in this context I have wondered whether or not it is proper to take into consideration the ‘lost years’. There is a body of judicial opinion of the most superior calibre which holds that awards for ‘lost years’ is an unsatisfactory method of going about it anyhow. Griffiths L.J. adverted to this in his judgment in the Croke case. There are all sorts of choices in various methods of approach. Speaking for myself I have never really seriously contemplated the award of any sum for ‘lost years’ because I have always considered that it is just one of those factors one doesn’t know, one of those factors which have to be borne in mind. One doesn’t know, for example, whether this young lady would have gone on earning, would have continued to work. She might have got married. She might have decided never to go back. She might not have married. She might not have had children. There are so many imponderables that one is in grave danger not only of speculating but also of considering matters twice over. It may be a legitimate argument for taking a slightly more generous view of the multiplier if one does not express in terms of actual pounds anything for ‘lost years’. I confess some feeling of unease about this. I prefer at this stage of superior guidance from authority to decide not to award anything for ‘lost years’. On the other hand, for the various matters to which I have already referred I am not prepared to go as low as Mr. Appleby would invite me on the multiplier in general, nor as high as Mr. Stewart has invited me to go.”
Earlier in his judgment the learned Judge had given his reasons for deciding on a multiplier of 10 to apply to the agreed multiplicand of £5,600 for future loss of wages. Quite correctly he had considered the expectation of life; that there would have been no earnings for some years in the event of a late start and made an allowance for future interruption in earning in the event of child bearing and the chances of life.
Mr. Stewart has submitted that, but for the reduced expectation of life, the multiplier would, indeed must, have been greater for one element of the discounting would have been removed. Therefore, it must be wrong to refuse to make any assessment for the lost years. I find this reasoning compelling. Mr. Appleby for the defence really accepted this but, supporting the respondent’s notice, submitted that the multiplier of 10 used by the Judge was too great, or at least adequate to cover the lost years. Mr. Stewart in reply submitted that, so far from being too great, the multiplier was too small because the Judge ought not to have made any allowance for interruption during child bearing.
The parties had agreed that the plaintiff would have had an earning capacity of £5,600 as a graduate from the age of about twenty two, that is from 1986 or 1987. The learned Judge held that the probability was that the plaintiff would have married in her mid twenties, and then said:
“As is becoming increasingly common in these days women with some professional qualification, or it may be commercial qualification, make arrangements after a year or two of motherhood and marriage to return to their previous occupation. The profession of teaching and the profession of nursing are two examples which instantly come to mind. Now it is suggested that in arriving at the multiplier one ought not only to allow for a late start of entry into the field of earning actuality, but also to take out appropriate number of years and then relate that by way of reduction of the multiplier for the absent years, but as Mr. Stewart in my view rightly pointed out this is not simply a question of pounds and pence, nor is it simply a question of looking at a pattern of life. It is suggested, and I accept the argument, that it would be wrong to say that there should be no allowance in terms of a multiplier because there might be no earning over a period. To be deprived of a home, the cost of heating and lighting, the cost of food, the cost of rates – all these matters a wife enjoys as an economic advantage when she is married to a bread-winner. On the other hand, as Mr. Appleby rightly says, it has been the practice for considerable discount to be made for those years when the injured person is unlikely to be earning because it is simply a question of how much money would this person have earned for herself. In my view both sides are entitled to seek for some adjustment. I reject Mr. Appleby’s argument that the discount for the years of purchase should be very appreciable.”
In Harris v. Harris (1973) 1. Lloyd’s Rep 445, this court considered this head of damage in the case of a girl aged 12½ at the date of the accident, and 17½ at the date of trial. She had suffered brain damage. She had taken six “0” levels. She was at school studying for “A” level but because of her injuries her chances of gainful employment were very limited, and her prospects of marriage much diminished. There was no reduction in her expectation of life. The trial Judge used multiplier of 15. This court reduced it to 10 on the ground that allowance had to be made for accelerated receipt and career interruption in the event of marriage. The court pointed out that compensation for loss of prospects of marriage had been included in the award for loss of amenity. Harris v. Harris, which is binding upon us, has been considered a number of times at first instance, most recently in Hughes v. McKeown Times Newspaper, January 8th, 1985. Leonard J., relying on two unreported decisions (by coincidence one of mine, the other of Kilner-Brown J.) held that as it was the plaintiff’s economic loss that was being assessed, then, so long as no account was taken of loss of marriage prospects in the award for loss of amenity, there was no need to reduce the multiplier from that which would be appropriate had the plaintiff been a man. In Moriarty v. McCarthy (1978) 1 WLR 155 I reduced the multiplier from its male equivalent of 15 to 11 in assessing the loss of earnings, but added the missing four years to the award for loss of amenity. I do not think that the approach adopted by Leonard J. is in conflict with Harris v. Harris and it is a convenient way of assessing the plaintiff’s economic loss in this very limited class of case. I must not be taken as approving the multiplier used in Hughes. However, the Judge roust be careful not to duplicate the damage, and it would not De applicable in the case of a young unmarried woman earning a lot of money, because the basis is that the loss of earnings multiplicand is reasonably equivalent to the economic support of the never-to-be husband.
In the present case I do not think that Hughes v. McKeown helps Mr. Stewart. Here it is quite apparent from the judgment that the Judge did include the loss of prospect of marriage in the award for loss of amenity, and I think he was right to do so. That being so, I think that the multiplier of 10, in line with Harris v. Harris, would have been appropriate had there been no shortening of expectation of life. In the circumstances the “lost years” are more than provided for in the award made. If the learned Judge had taken a multiplier of nine for the j live years and three for the lost years, with a multiplicand reduced by two thirds, the resulting capital sum would have been the same. The lost years, because of their remoteness in time, are highly speculative and I think are better dealt with by some small adjustment in the multiplier, such as a factor of one, or even half, as applied to the full multiplicand, i rather than trying to speculate what proportion of notional earnings 30 years hence would not form part of the plaintiff’s then living expenses.
For these reasons I have come the conclusion that the complaints made against the adequacy of the award in its various compartments cannot be supported. I am satisfied that the total award provided fair compensation for the plaintiff, and I would dismiss this appeal.
MR. JUSTICE BRISTOW: I agree.
(Their Lordships ordered that the appeal be dismissed, and legal aid taxation for the Appellant).