Wise v Kaye [1961] EWCA Civ 2 (01 December 1961)

IN THE SUPREME COURT OF JUDICATURE
COURT OP APPEAL
(From: Mr. Justice Finnemore – Oxford)

Royal Courts of Justice
1st December 1961

B e f o r e :

LORD JUSTICE SELLERS
LORD JUSTICE UPJOHNN
and
LORD JUSTICE DIPLOCK

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Between:

VERONICA WISE (a person of unsound mind, not so found by Inquisition, by her father and next friend Frank Wise)
 
-v-
 
JOHN WILLIAM KAYE and ROBERT PRAM WISE
 

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(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters, Ltd.,
Room 392, Royal Courts of Justice, and 2 New Square, Lincoln’s Inn, London, W. C. 2).

____________________Mr. DAVID CROOM-JOHNSON. Q.C.. Mr. E.W. EVELEIGH, Q.C. and Mr. O. B. POPILEWELL (instructed by Messrs. L. Bingham & Co.)
appeared on behalf of the Appellants (Defendants).
Mr. R.V. CUSACK, Q.C. and Mr.PETER CRAWFORD (instructed by Messrs. Trower, Still & Keeling. Agents for Messrs. Thomas Mallam, Grimsdale & Co., Oxford)
appeared on behalf of the Respondent (Plaintiff).

____________________

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LORD JUSTICE SELLERS: At the Oxford Assizes on the 3rd February, 1961, Mr. Justice Finnemore awarded the plaintiff £18,279.8s.11d damages against both the defendants, who now appeal from that order alleging that it is excessive and in some respects the subject of misdirection. The appellants do not contest liability for the appropriate damages.

The plaintiff was a passenger in a Standard motor car driven by the defendant Robert Frank Aide when about midnight on the 24th/25th May, 1958, it came into collision on the main London to Oxford road about a mile from Tetsworth with a Ford motor van driven by John William Kaye. From the moment of that impact the plaintiff has remained unconscious up to the present time over three and a half years later. She was taken to the Radcliffe Infirmary and there, and at another hospital to which she has recently been moved, by surgical skill, modern medicine and devoted nursing she has been kept alive. No one could be nearer to death and survive, it would seem.

The learned judge described the plaintiff as follows: “She was a young woman of I think 20 years old, attractive looking as her photographs show, full of life as a young person of that age ought to be, living in a happy home, interested in outdoor games, especially in hockey, enjoying all the amenities of life as a young prison of good health and understanding and a happy background is entitled to enjoy, engaged to be married, in a good position with prospects of further advancement. Then in a moment all this was altered and, put in a sentence or so, literally everything which makes life in any shape worth living was taken from her”.

The total damages of £18,279. 8s.11d. are made up of (1) £879. 8s.11d. special damages being the loss of earnings which had accrued to the date of the trial, (2) £2,000 general damages for loss of probable future earnings, (3) £400 for loss of expectation of life, and (4) £15,000 general damages.

Item 1 was admitted at the trial.

Item 2 was said to be erroneous in principle and reliance was placed on a recent decision of another division of this Court in Oliver v. Ashman (1961 3 Weekly Law Reports, page 669). In making an award of £2,000 for the loss of probable future earnings the learned judge expressly agreed with Mr. Justice Streat-feild’s view in Pope v. Murphy (1961 1 Queen’s Bench, page 222), and assessed the loss over the probable life of the plaintiff assuming she had had no accident and not on the period to which it would probably be curtailed by the accident. The judgment of the Court of Appeal (Lords Justices Pearce, Willmer and Pearson) in Oliver v. Ashman was delivered after Mr. Justice Finnemore’s judgment and decided to the contrary effect. In that case the Lord Chief Justice, Lord Parker, the trial judge, taking the same view as Mr. Justice Streatfeild and Mr. Justice Finnemore, had held that a boy aged only 20 months when he received a serious brain injury in a motor accident had lost the opportunity of earning and obtaining such amenities as his earnings could buy and the Chief Justice took his whole prospective life into consideration in an award of damages totalling, under all heads of claim, £11,000. It was held on appeal that it was erroneous to take into account loss of earnings during the years of which the plaintiff would, in all probability, be deprived by reason of his injuries. But in the case of so young a child no real assessment could be made and the court did not allow the error to affect the award. In the present case Mr. Justice Finnemore said it would not make very much difference whether he took the plaintiff’s whole prospective life if uninjured or the shorter existence but as he investigated carefully the basis of the claim I think it probably included some award however slight for the longer period. Were it not that the special damage of over £800 is for loss of earnings covering about three years of the plaintiff’s total incapacity to earn I doubt if the assessment would have necessitated any variation but the further years of the plaintiff’s life are uncertain and limited and I would reduce the damages under this head of claim from £2,000 to £1,500, which makes allowance for the sum recovered under Item 1 for the same kind of loss. Although the plaintiff was in good employment there were prospects of an early marriage and at least a likelihood, if there had been no accident, of a cessation or interruption of work in a few years immediately ahead.

It was accepted at the Bar without argument that Oliver v. Ashman covered the point under this head of claim but counsel for the respondent asked to he allowed to keep the point open. In these circumstances I would express with respect a doubt as to whether a claim for loss of earnings in the years by which life is shortened could never arise. If a man before an accident habitually put aside £500 a year from his earnings and there was every probability of his continuing to do so for X years ahead I do not at present, and without the matter being argued before us,, see why the fact that he will only live by reason of the accident for X minus 5 years should deprive him when alive of compensation for the £500 he would have saved in each of the five lost years subject to the necessary allowances for the uncertainties of life and the immediate payment of a lump sum. If he had such a subsisting claim it would pass, it would seem, under the Act, to his personal representative for the benefit of his estate, as a separate head of claim independent of a claim for loss of expectation of life.

Such a claim would be rare. The many cases which have come before the courts have been for the most part cases where any assessment of future earnings in the lost years and more especially of any net loss therein would be incalculable and too speculative and doubtful for an award of damages. There was no such claim in Benham v. Gambling, which was restricted to a claim for damages for loss of expectation of life only. Similarly in Flint v. Lovell and Rose v. Ford, to which I refer later; and it would seem that these cases are no authority in relation to a claim for loss of earnings as distinct from a claim for damages for loss of expectation of life.

Item 3, £400 for loss of expectation of life, was not disputed by the appellants, who admitted that the evidence justified it. No doctor could say how long the plaintiff will live but it was accepted that she cannot be expected to endure for anything approaching a normal span of life. There is no hope of a real recovery and but little hope even of a degree of consciousness, although the plaintiff still lives, breathing with periodic aid from a tube in the lungs, revealing faint signs of a waking and sleeping rhythm and maintaining a steady weight. The plaintiff cannot eat or drink but her body can obtain nourishment from food fed to her and so she lives on.

Although the £400 for loss of expectation of life was undisputed, the principles underlying such a head of claim have been raised in argument and the quantum has been considered in the judgment of one of my brethren. I think it desirable therefore to refer to it before considering the main element of damages, the £15,000 damages awarded under the last item of award

It would appear that the assessment of £400 bore reference to the conventional figure, as it has become, under the decision of the House of Lords in Benham v. Gambling (1941 Appeal Cases page 157). This is not however strictly a case in that category as the injured party is alive with the most exceptional feature that she has remained unconscious and therefore, one concludes, wholly unaware of and untroubled by any knowledge of her loss. The decision in Flint v. Lovell (1935 1 King’s Bench, page 354), approved in the House of Lords in Rose v. Ford (1937 Appeal Cases page 826), is, with that qualification, in point. There the plaintiff, a man of 70, was alive at the trial and in an award of £4,000 general damages Mr. Justice Acton had included a sum to compensate him for the years of his life which on the medical evidence he was in all probability likely to lose because of his injuries. The court held that the judge was entitled to take into consideration as one of the elements of damage the fact that the plaintiff’s normal expectation had been materially shortened.

Shortly after that decision the Law Reform (Miscellaneous Provisions) Act, 1934, came into force and it provided that all causes of action (with some specific qualifications and exceptions which are not material here) subsisting at the death vested in a deceased person should survive for the benefit of the estate. If a party had been injured by the negligence of another and had lived for some time incurring medical and hospital expenses and loss of earnings, as well as pain and suffering, but died before a claim was heard and determined there was, prior to the Act, no redress against the tortfeasor for such accrued loss and damage. The Act altered this and it also had the effect that a claim for loss of expectation of life, established by Flint v. Lovell, survived as a separate cause of enaction which can be/forced on behalf of the estate by the personal representative of a deceased person.

This particular head of claim may not have been anticipated when the Act was passed but it had far-reaching effects which are perhaps generally regarded as unnecessary and on the whole undesirable. The Act therefore made it possible for damages to be awarded against a tortfeasor where the victim could not possibly enjoy personally the proceeds of the judgment. In Rose v. Ford (1937 Appeal Gases, page 826) Kiss Rose was a young woman of 23 when she met with an accident due to the negligence of the defendant. She was unconscious the greater part of the four days she lived after it. Her father brought the action as her administrator and he made three claims under the 1934 Act, (1) damages for the pain and suffering the deceased had suffered and could have recovered if she had lived, (2) damages for the loss of her leg, (3) damages for loss of expectation of life, or her shortened years of existence, relying on Flint v. Lovell. Under the last head the Court of Appeal had awarded £1,000, for the loss of her leg for the two days the plaintiff was without it before she died, £2, and for pain and suffering for the four days of survival after the accident, £20. Lord Atkin pointed out that how the damages were to be calculated for loss of expectation of life was not a question the House had to decide for there had been no quarrel with the sum of £1,000 assessed by the Court of Appeal.

In Benham v. Gambling (1941 Appeal Cases, page 157) the House of Lords was called upon to consider the question of damages and in so doing Viscount Simon, Lord Chancellor, analysed the basis of such a claim. That element or head of damage is an evaluation of the enjoyment, taking everything into consideration, of the lost years and as that is an unassessable or immeasurable matter on any satisfactory basis a nominal or conventional figure was established. It has since then been a guide to the Courts and has been modestly adjusted by them to varying circumstances, perhaps mainly to the change in the value of money. No regard must be had, in this assessment, to financial losses or gains during the period of which the victim has been deprived, except possibly to the extent that money or the lack of it may affect happiness. Lord Simon said at page 167:

“In assessing damages for this purpose the question is not whether the deceased had the capacity or ability to appreciate that his future life on earth would bring him happiness; the test is not subjective and the right sum to award depends on an objective estimate and what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not”.

The conventional figure may well be equally applied in respect of a claim by a person still living or by the representative of a person who has died. With the living there may be the knowledge of the tact that the span of life will be curtailed with possible anxiety, worry, disappointment and distress arising as a consequence. This, in my view, would fall for assessment in such a case under the claim for pain and suffering, not for the loss of expectation of life, and would therefore be additional thereto, although normally it would be embraced in one round sum of general damages.

No claim for pain and suffering has arisen here in any form for, it would seem mercifully, the plaintiff has remained unconscious.

Item 4, is the award of £15,000 for general damages. This was the real matter in dispute and I find it necessary to examine Benham v. Gambling further not because of the contentions at the Bar, for the claim lor £400 under that authority was not in dispute, but because of the use made of the decision in the opinion of Lord Justice Diplock in his judgment in the present case. With much of my brother’s analysis and with his desire to find, if possible, a common factor which will provide a standard of comparison between one award and another in all the varying circumstances I am in agreement. But with all deference I am of opinion that the decision in Benham v. Gambling does not permit of all that his judgment, as I read it, extracts from it, and it seems to me that logic and convenience of formula are being pressed too far. I read the judgment, about to be delivered, as setting up happiness or unhappiness as the basis or “yardstick” of comparison not only for loss of the expectation of life but for the loss of a limb or any bodily faculty. If this were to be so held then the inquiry into damages would become, I fear, an investigation of the inner feelings and outward manifestations of conduct of and affecting a claimant such as were being raised before Benham v. Gambling and which inquiries were found invidious and undesirable and as a matter of proof well-nigh unattainable and which the House of Lords decision to the great relief of the judges substantially negatived and in practice, I think, almost entirely removed.

It has always been accepted that physical injury and the personal experience of pain and also of suffering including worry and anxiety for the future and apprehension of an operation, or of nursing or deprivation of activity owing to disablement or embarrassment or limitation felt by reason of disfigurement, cannot in any true sense be measured in money, but neither, I would add, can they be brought down in my view to a measure of happiness or unhappiness or a balance of one over the other. Damages for such injuries, originally almost invariably assessed by juries, were said to be “at large” and had to be assessed on a reasonable and fair basis between party and party. There can be no restitution for the loss of a limb or loss of faculty but the law requires adequate compensation to be assessed

There is, I think, no common denominator for pain which is a bodily hurt, such as toothache, which can be acute with some people and vary in degrees of intensity down to those who are immune from pain although subject to an injury which would inflict pain on others. In modern medicine pain, it must now be recognised, can be subject to control or modification by drugs. Pain of that sort can often be described in evidence as to its extent and duration and its intensity can perhaps be assessed and compared. If suffering is to be regarded as distinct from a bodily hurt and is used to describe mental anguish and distress it is in my view generally regarded as much more difficult to assess depending as it does so much on the nature, character and outlook of an individual.

These are however well known heads of claim which have throughout the years been translated into money — no doubt on what might be called a conventional figure — and which the courts have sought to assess, and I think have succeeded in keeping, on a reasonable basis in the Interests of both the recipient and the payer and on a reasonable adjustment between one claimant and another. A comparative value has been assessed according to the gravity and duration of the infliction on the plaintiff before the court.

I cannot speak for my brethren but I have not either at the Bar or on the Bench in dealing with such assessments had in mind the happiness or unhappiness of a claimant except in the most general way. The inner world or the inner life or should it be said the soul of a person is not, in my view, a matter for investigation in a court of law in order to justify an award of damages to a person living, and I have not understood that Benham v. Gambling has so stated or inferentially so decided.

Lord Simon in that case was not dealing with a claim of a living person for loss of use of limbs and faculties but with a claim on behalf of a dead child’s estate for the restricted claim for loss of many years of life and the only loss, he held, to be assessed was the loss of a measure of prospective happiness; and I have already cited an appropriate passage. The Lord Chancellor later in his speech said “damages which would be proper for a disabling injury may well be much greater than for deprivation of life”. I would read that as distinguishing damages for a disabling injury and not as assessing them on a similar basis. As long as the assessment of happiness is made on an objective basis and within the restricted limits of this decision experience has shown that it has been applied conventionally and without difficulty. Unless authority directs I would be reluctant to apply a standard or basis which required that the happiness of a living person has to be assessed, as it ‘ would have to be assessed, to use the common expression, subjectively. I know of no authority which supports this view and have heard no evidence adduced which would in any case permit of its true solution. The head of claim for pain and suffering would cone nearer to considerations of happiness – but not I think in any deep sense – than would a claim for loss of limbs or faculties.

The complete loss of sight may bring, and I think often does, a serenity and calm of life which might lead to a happiness hitherto unknown but I cannot think that a defendant is entitled to pray that in aid in order to reduce the damages he has to pay to the sufferer. Infirmity which cripples and incapacitates a man Lay bring a sympathy and attention which reveals in him an inward comfort which he has never previously known. He may be “happier” than he has ever been.

I do not pursue this for I think it is ill suited to an investigation in a court of law and quite unnecessary.

The first element or ingredient of damages is the physical injury itself which gives rise to all the consequential claims which may arise from the injury, and the physical injury itself has always, in my opinion, been a head of claim which has justified and required in law an award of damages according to the extent, gravity and duration of the injury.

As far back as 1879, in the judgment in Phillips v. The South Western Railway Company (4 Queen’s Bench Division, page 406) Chief Justice Cockburn said (on page 407):

“We think that a jury cannot be said to take a reasonable view of the case unless they consider and take into account all the heads of damage in respect of which a plaintiff complaining of a personal injury is entitled to compensation. These are the bodily injury sustained; the pain undergone; the effect on the health of the sufferer, according to its degree and its probable duration as likely to be temporary or permanent; the expenses incidental to attempts to effect a cure, or to lessen the amount of injury; the pecuniary loss”;

and I know of no authority which excludes damages for an injury in itself. The loss of a leg was compensated in Rose v. Ford with a small amount as the period of loss was only two days. A general award no doubt includes also as a rule a sum for pain and suffering and frequently for loss of future earnings. In the present case the plaintiff being unconscious and almost certainly likely to remain so there is no scope for any award of damages for pain and suffering and no award was claimed or granted.

The physical injuries to the plaintiff are however an almost total and complete loss of all the faculties the body normally possesses. By reason of the deep and extensive injury to her brain she cannot see, she cannot talk, she cannot hear. She has lost the use of both of her legs and both her arms. She cannot sit up or lie down or control any movements of her body. The longer she lives the longer she is deprived of every faculty except the bare capacity to breathe and to digest enough food to maintain her body. She has lost all that life would have brought her.

The Legislature has not found it impossible to compensate for loss of faculty, for awards are made under the National Insurance (Industrial Injuries) Act, based on the fact only that a faculty has been lost.

At Common Law in assessing damages for physical injuries consideration has also been given expressly in recent times and perhaps at all times to what have been called loss of amenities. This is separate and distinct from pain and suffering, and in my opinion means something different from loss of happiness or even enjoyment. Physical incapacity may restrict activity in one form or another or alter the conduct of life, the manner or the extent of living. The inquiry may he taken as far as that, to ascertain the limitations and variations which a physical injury has imposed or may impose so as to compensate for that, but I see no reason for inquiring further how in any given case it has affected the happiness of the victim. And if it does, I do not know how it is to be judged. Wealth and fine physique clearly do not ensure happiness, nor do poverty or disablement necessarily entail unhappiness. Money is a false standard of assessment of man’s inner feelings although no doubt it plays a part in the enjoyment of life of many. The man who enjoyed playing football on a Saturday afternoon ray be as inwardly content, if disabled, in watching others play it, either directly or on television or in any other occupation. If this were to be established i do not see why it should prevent his being compensated for being unable to play football. Can it be said that a man who has lost a leg above the knee is any less happy than if he had lost it only below the knee? I do not think it follows at all, but he might well be awarded more for the physical injury because he would be more handicapped in all probability in doing all he could have done before.

The plaintiff in this case had lived long enough to have been aware of living her life with all its vicissitudes. Life is not spent on a drab plane. It has its depressions and its heights and their variety is as desirable as it is inevitable for the joys are accentuated by the disappointments and happiness of an individual is not, I think, assessed as on a balance sheet. All that lite had to offer, which the plaintiff would not have relinquished for any money, has been taken from her completely and irrevocably.

The learned judge has assessed a sum of £15,000 for these physical injuries with all their attendant deprivations. The circumstances are unprecedented. The only factor I can see which would operate to modify the sum awarded is that the plaintiff may not live very much longer but on the other hand she may. Damages of this character must be fair and reasonable and I do not feel able to say that this award is not.

There remain for consideration two general submissions which were made on behalf of the appellants which it was argued should greatly modify the award. In the sad circumstances of this case it would seem that any award of damages will not be personally enjoyed by the plaintiff. They are unlikely to be used to maintain her. She is powerless to dispose of them. But these in my opinion are not relevant considerations in the assessment of damages for physical injuries. It has never been so held as was contended and I can see no good reason for introducing it as a factor for consideration. The trend of authority is against it. In Rose v. Ford 40s.0d. damages were awarded for the loss of a leg for two days and neither that nor the other damages awarded could be used for the maintenance or benefit of the victim for she had died in four days from her accident. The Act of 1934 expressly imposes a liability on a tortfeasor to a deceased victim’s estate for sums which the victim cannot personally enjoy by reason of death. It would be odd if the victim were to be deprived of similar rights when alive. I agree with the views expressed on the point by the Lord Chief Justice, Lord Parker, at first instance (1961 1 Queen’s Bench page 337, at page 344) and Lord Justice Pearce on appeal in Oliver v. Ashman (1961 3 Weekly Law Reports page 669, at page 675). The view of Lord Justice Pearson at page 691 that a jury might in fact give less in circumstances where the benefit would not be enjoyed by the plaintiff but would pass to the next-of-kin, possibly remote and undeserving, may be possible but I do not think it would be correct for a judge to direct them that they might do so.

it was further submitted that because the plaintiff has been throughout unconscious and has so far no knowledge of her condition and as far as can be foreseen never will nave any knowledge of the wreck that she is, no damages or very limited damages should be awarded. In these circumstances there is no room for an award for pain and suffering but otherwise I regard it as an untenable submission.

The court is, in effect, asked to treat the injured party as if she were dead and to award compensation for loss of expectation of life and nothing else by way of general damages. I refuse so to do. I am not apprised of any branch of our law which permits a person who is known or believed to be alive to be treated as if he or she were dead. This is a most exceptional case but as long as the plaintiff lives her damages in my view fall to be considered as damages to be awarded to a living person and no living person could have lost more of the use of limbs and faculties.

Lord Justice Upjohn will refer in his judgment to two Australian cases and more particularly to the judgment of Chief Justice Herring and Mr. Justice Barry in McGrath Trailer Equipment Property Co. Ltd. v. Smith (1956 Victoria Law Reports page 738) which also rejects the argument which has been advanced here.

In a difficult case I think Mr. Justice Finnemore came to a conclusion on general damages which ought not to be disturbed. The appeal in my judgment however should be allowed to the extent that the total damages be reduced by £500 under Item 2 and judgment be entered for the plaintiff for £17,779. 8s. 11d.

LORD JUSTICE UPJOHN: This is en appeal from a judgment given on the 3rd February, 1961, by Mr. Justice Finnemore. He awarded the plaintiff the considerable sum of £18,279. 8s. 11d. damages in respect of the injuries she received in a motor car accident on the 24th May, 1958. Liability was admitted and the appeal is concerned solely with the question as to whether the learned judge’s assessment of damages was correct or excessive.

The learned judge reviewed the agreed medical evidence in this unhappy case very fully and I propose only to summarise it extremely briefly.

As a result of the accident the plaintiff received very serious injuries to her brain and she has ever since been, so far as the doctors can tell, and is now in a state of unconsciousness. The chances of making an even limited improvement are extremely slender and for all practical purposes the present situation is likely to be a permanent one. She has no purposeful movement of the limbs but her eyes are open and she appears to look at people who attend her but there is no evidence of recognition. She has established apparently some sort of sleeping and waking rhythm, but she has to be fed by a tube and is in every elementary way completely helpless and can do nothing for herself. As has been said in the case, her life is a living death. The doctors are not prepared to give any estimate as to her expectation of life but point out that intercurrent complications might easily prove fatal. The plaintiff received the most expert attention in the Department of Neurological surgery of the Radcliffe Infirmary. In August of this year she was removed from there to the Osler Pavilion, Oxford, a hospital in the United Oxford Hospitals Group, who give special and expert nursing attention to those who are in need of it for a long term, where in all probability she will remain for the rest of her life at the expense of the State.

Before the accident the plaintiff, at that time aged 20, was a normal, attractive-looking girl, engaged to be married although the date of the marriage had not been fixed, earning about £7 a week as a typist which would have increased to about £10 a week at the date of the trial; in other words she was a normal, average girl who might expect to lead the normal, average life of the ordinary inhabitant of this country today. She would expect to enjoy happiness and to suffer unhappiness; to experience the ups and downs of life; but she could have looked forward to a life which on the whole could he described as a worth-while life.

All that was virtually ended by this terrible accident.

The learned judge in a very full and careful judgment on the question of damages which recognised the great difficulty of a proper assessment in the unique circuit stances of this tragic case, split the total sum for damages into four headings: (1) £15,000 general damages; (2) £2,000 for loss of earnings; (3) £400 for the loss of expectation of life; and (4) £871. 8s. 11d. special damages. There is no issue between the parties on heads (3) and (4) and we have heard no argument on them.

The appellants’ main argument in this case, put with much force by Mr Croom-Johnson, is that the assessment of £15,000 for general damages is, in all the circumstances of the case, much too high. He presents the case in several ways, but underlying his submissions he urges two points which seem to me to raise questions of principle and I propose to deal with these first.

First it is submitted that little, if indeed any, part of the £15,000 can in fact be applied for the personal benefit of the plaintiff and that this must be taken into account by the judge or jury assessing damages. Upon the facts of this case I am prepared to assume that it is most improbable that any part of this sum can in fact be so applied; the overwhelming probability is that the sum awarded will remain intact and ultimately pass to her next-of-kin unless it or some part of it is distributed under the directions of the Court of Protection during her lifetime.

This point is not without very recent authority. It was considered in this Court in Oliver v. Ashman (1961 3 Weekly Law Reports, page 669). When that came before the Lord Chief Justice, Lord Parker, at first instance (reported in 1961 1 Queen’s Bench, page 337) he had this very point before him because at the hearing it was thought that the plaintiff in that case, a very young boy, would never be able personally to enjoy any part of the fund awarded to him but the Chief Justice treated that circumstance as irrelevant. He said this at page 344:

“In awarding such a sum,, I am conscious of the fact that it may well be – indeed, I think the overwhelming probabilities are – that a large part of this money will never be expended by or on behalf of the infant plaintiff. It will, I think, to a large extent remain untouched and left to his next-of-kin, or it may well be that the parents, if a receiver were appointed, might obtain some use of the money, but I think these considerations are entirely irrelevant. It seems to me entirely irrelevant to the damages whether the plaintiff will ever be able to use the money”.

The action went to appeal and a rather different view was taken of the facts and it was thought that the time might come in the future when the sum could be applied for the personal benefit and support of the plaintiff. Therefore this point did not directly arise. It was however dealt with by all the Lords Justices. Lord Justice Holroyd Pearce at page 675 agreed with Lord Parker and expressed the following tentative views:

“It was argued that if a jury think that the right figure would be £10,000, but are satisfied that the plaintiff cannot spend more than £5,000, they should award only £5,000 as damages or, alternatively, take into account the inability to spend and make some imprecise abatement. For the plaintiff is only entitled to damages, it is argued, as compensation and he can only have them if they can be used to compensate. But what warranty is there for such a proposition? The plaintiff having made out his cause of action in negligence and proved his damages is entitled to his judgment. There is no condition that he should spend or use the damages. They are his to save or to spend or to dissipate in any useful or useless Banner that he may choose. His needs or his ability to use his damages are, as it seems to me, irrelevant to their assessment. It would be undesirable to introduce the suggested principle into the law of tort. If that were done, an attempt would no doubt be made to extend it to cases where the plaintiff was rich so that he could never need the damages to which he was entitled”.

On the other hand Lord Justice Willmer, at page 687, expressed the view that there was much force in the argument that if the sum awarded could not be applied for the personal benefit of the plaintiff, damages should be reduced accordingly, but he expressed no concluded view. Lord Justice Pearson, at page 691, took the view on the other hand that a jury having awarded a sum sufficient to cover the foreseeable financial needs of the plaintiff might reasonably be reluctant to add more money which would in all probability pass to the plaintiff’s next-of-kin, and he thought that a jury might properly take that into account to such extent as they thought appropriate in the particular case.

I agree with the views expressed by the Lord Chief Justice, Lord Parker, and Lord Justice Holroyd Pearce. It seems to me that the contrary view, if correct, must go the whole length of saying that a plaintiff is only entitled to such damages as he can prove can be applied for his personal benefit. Assuming that that phrase is capable of definition at all, which I doubt, it means, I suppose, for his personal needs such as comforts and maintenance. I cannot, with all respect to the views of Lord Justice Pearson, see how it can merely be an element tending to reduce damages.

Damages, being proved and properly assessed, when paid become the absolute property of the plaintiff. If a plaintiff has sustained the most serious injuries so that he is permanently bedridden and is maintained at the expense of the State, damages in a sense cannot be applied for his needs but provided he remains sui juris he can enjoy the money in many ways. He can spend it well or stupidly; he can enjoy it by gambling or giving it away; he can invest it and accumulate the income and give it by Will to his relations or to a charity; it is under his entire dominion in every way and he can deal with it as he pleases and it must be wrong on principle to deny damages to a plaintiff because his personal needs are nil. It is quite clear that although a judge may properly award him damages in order that he nay maintain himself in comfort as a result of his injuries, indeed a plaintiff need not so apply the money awarded to him if he prefers and, through his own wealth or circumstances, is in a position not to do so. As Lord Justice Goddard (as he then was), in Liffen v. Watson (1940 1 King’s Bench page 556, at page 558), said, “What she does with her compensation when she receives it is a matter for her and nobody else”. I do not see why the plaintiff should be in any different position merely because she is not sui juris unless indeed ignorance of her loss is relevant, a point I deal with later.

It seems to me upon the principle that once the loss is proved and quantified at the proper figure that sum of money becomes the absolute property of the plaintiff and it matters not that the plaintiff is incapable of personal enjoyment of the money in the very vague and as I think indefinable sense of spending it on herself. That has never been the test and I think it would be a mistake to introduce it now. Indeed, it would I think be inconsistent with cases such as Benham v. Gambling (1941 Appeal Cases, page 157). In that case and the earlier case of Rose v. Ford (1937 Appeal Cases, page 826) the short answer would have been: The plaintiff is dead; he cannot enjoy the money personally, it will only go to his creditors, his legatees or his next-of-kin, therefore he has suffered no loss. On the contrary it was held in those cases that damages for loss of expectation of life passed to the deceased’s estate.

There are those who feel that the undoubted truism, that it is cheapest for a wrongdoer to kill a man, is a slur upon the law, although the lawyer understands the historical reason for it, and in any event I would myself think that damages for death must necessarily be assessed upon a different basis from the damages to a person wno continues to live. But it would I think be a very great slur upon the law, if the complete doctrine is that it is cheapest to kill but if you cannot kill then reduce damages by injuring him so severely that it is most improbable that he can personally use the damages.

I reject this argument.

The second point which seems to me to raise a question of principle is this: it is submitted that ignorance of a plaintiff of the damage that has been done to him because his brain has been affected is a relevant consideration in assessing damages.

It is no doubt relevant when considering the element of pain and suffering in the assessment of damages, but the submission at this stage is more fundamental, for Mr. Croom-Johnson invites us to say that this unhappy plaintiff is so near death that all that she has suffered in fact is a loss of expectation of life. On the medical evidence she has no pain or suffering and never will; she knows not of the loss of her future normal ordinary life and all she has suffered is damages for expectation of life or, as Lord Simon put it in Benham v. Gambling (supra at page 166), loss of a measure of future happiness, and therefore damages should be assessed upon the principles laid down in that case. Mr. Croom-Johnson does not submit that damages should be so limited as in that class of case, but he suggests that a figure would be appropriate in this case which bears some comparison to the figure of damages normally awarded under the heading of damages for loss of expectation of life.

I am unable to accept this proposition. It seems to me that a claim to damages on behalf of a deceased person and a claim by a living person are two essentially different things. Under our law a dead man’s estate can only claim for loss of expectation of life or loss of happiness. It cannot, for example, claim for loss of future pecuniary prospects: per Lord Simon in Benham v. Gambling at page 167.

Damages suffered by a living plaintiff are assessed upon entirely different principles. He may claim under many heads in appropriate cases, loss of amenities, loss of earnings, expenses for maintenance, pain and suffering, loss of expectation of life, and so on. These are real losses for which he is entitled to claim damages; and for my part I an unable to see why the plaintiff while living is prevented from so claiming merely because she is wholly ignorant of the grave loss she has suffered and her chances of recovery are negligible. The injury to her has been done; the damage has been suffered. Her ignorance of either is immaterial.

If a plaintiff suffers personal injuries from the wrongdoing of another his cause of action accrues though he may be ignorant of the fact that he has been damaged: Cartledge v. E. Jopling & Sons Ltd. (1961 3 Weekly Law Reports, page 838). It is difficult to see why in general damages for such injury should be affected by ignorance unless the ignorance prevents the head of damage arising as in the case of pain and suffering.

No case in England has dealt with this point, but we were referred to two in Australia: McGrath Trailer Equipment Property Co. Ltd. v. Smith (1956 Victoria Law Reports, page 7 38) which was followed in Hayman v. Pike (1958 South Australia Sessions Reports, page 72), which support the view I have expressed. In the earlier case the evidence was that the plaintiff suffered very serious injuries to the brain but as a result he became childlike and perfectly happy to potter about the garden and no longer wanted to lead his former full and useful life. The submission was made that the test was subjective, that the plaintiff had no idea of what he was missing in life and so pro tanto had suffered no loss. Chief Justice Herring, reading the judgment of himself and Mr. Justice Barry, dealing with this submission, said:

“However, the question is whether the submission can be supported. In our opinion, as the law now stands, it cannot be. The matter has to be treated objectively – what has the plaintiff lost as a result of his injuries, how great is the diminution of his capacity to enjoy life? The greater the injury, the less he is able to enjoy the normal human existence of men and women, the greater the loss he suffers. Here all that enjoyment of the life that the normal man looks forward to has been taken from the plaintiff and it seems to us that a fair and reasonable compensation for this loss must necessarily he substantial”.

Later on he said:

“The measure of his loss is not affected by the fact that he does not now by reason of his injuries realize what he has lost and does not miss his inability to live a normal life. It matters not that he now seems content with the cabbage-like existence that his injuries have forced upon him, although, in truth, we have no knowledge if this is so in fact”.

In my judgment, ignorance of the injury or of the damage thereby suffered is no ground for reducing damages.

Even without the aid of these two points, however, Mr. Croom-Johnson mounts his main attack upon the amount awarded. He submits with much force that there must be a pattern in awarding damages for personal injuries, and he says that for the purposes of comparison the court ought to consider the case of one who has become a paraplegic through his serious injuries. In that case a substantial element in the award is for pain and suffering; pain and suffering not only in the sense of the physical agony suffered but also of the mental anguish caused by fear of future operations and knowledge of the fact that the plaintiff’s life has been wrecked and he will remain an invalid for the rest of his life. That is always a substantial element and it is completely absent here. I agree, and, as I understand the learned judge’s judgment, he assessed damages upon the footing that it was absent in this case.

If, submits Mr. Croom-Johnson, you add a substantial sum for a case where pain and suffering is shown to exist, the figure of £15,000 would be so substantially increased that you would reach a figure which lies entirely outside the pattern of damages awarded even for the most serious injuries. He further points out that if this had been a case where the plaintiff would have to be maintained at her own expense for the rest of her life instead of by the State, there again a substantial additional sum would have to be awarded which would make the total sum awarded wholly out of step with the present pattern of damages.

These are powerful arguments. In the end, however, I have to address my mind to the question whether the damages awarded by the learned judge are excessive or not. Normally there are many elements to be taken into account in awarding general damages but the only relevant head in this case is loss of amenity. For practical purposes one can exclude all medical and nursing home expenses and expenses for future care and maintenance of the plaintiff; loss of future earnings and loss of expectation of life have been separately assessed. The loss of amenity in this case is that for the rest of her life the plaintiff has lost everything that makes life worth living. She remains alive but she is absolutely incapable of taking any part in life at all.

I find myself unable to accept the view to be propounded by Lord Justice Diplock in his judgment, which I have had the privilege of reading, that in assessing damages the court’s real duty is to assess the loss of happiness caused by the injury. I have already said when dealing with the relevance of knowledge of the injury and damage that in my judgment a claim to damages by a living plaintiff and a claim to damages for loss of happiness on behalf of a deceased person are to be assessed on quite different principles.

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

The gravely injured paraplegic is deprived of most of the amenities of life. He may be so severely crippled that he may require assistance to carry out the simplest operations of life. He may or may not be able to write; but he can think, he can see, and in many cases he can take part in many sedentary occupations. He can even in some cases be taught a trade; he can usually play some part in a social life and he is above all able to enjoy to some extent the things about him. All this is denied to the plaintiff and I would think that her loss is not really capable of comparison with a paraplegic. As the learned judge pointed out in his judgment, this is a unique case in our courts. While I recognise the force of Mr. Croom-Johnson’s argument that there must be something in the nature of a pattern of damages, I think this case must be judged on its own. I think that was the approach of the learned judge when he addressed himself to this admittedly very difficult task and reached the figure of £15,000. I do not think that his assessment was erroneous. It is a large figure, but the loss of amenity is very nearly 100 per cent.

I turn then to the figure of £2,000 awarded for loss of earnings. Upon that it was admitted before us that the learned judge proceeded upon a wrong principle. The learned judge assessed the loss of earnings upon the basis that he could take into account the whole period which the plaintiff might reasonably have lived and not only the period of her shortened expectation of life. The Court of Appeal in Oliver v. Ashman (supra), subsequent to the learned judge’s decision, decided that this was the wrong basis of assessment. The learned judge having proceeded upon a wrong basis in assessing damages, this court has the power and the duty to correct it.

It is to be noted that the special damages of £871.8s.11d. according to the pleadings were entirely in respect of loss of earnings from the time of the accident down to the time of trial in February of this year. It seems to me that the figure of £2,000 must in these circumstances be too great an estimate of her loss of earnings during the period of her shortened expectation of life especially as it seems probable that for part of it she would be married and her domestic duties would reduce or extinguish her earning power. I would reduce this figure to £1,500.

I would vary the judgment by reducing the damages awarded by the learned judge by £500 to £17,779. 8s. 11d.

LORD JUSTICE DIPLOCKIt is impossible to read without feelings of horror and compassion of the dreadful state to which this unfortunate girl has been brought as a result of the defendant’s negligence; and were it permissible to deal with the matter on the basis that “le coeur a ses raisons que la raison ne connait point“, I should not be prepared to say that the sum of £17,400 awarded by the learned judge or for that matter an award of £50,000 or £100,000 was wrong. Yet all three figures cannot be right.

It is implicit in the very existence of the jurisdiction of an appellate court to interfere with an award of damages in personal injury cases where “the damages awarded [by a jury] are out of all proportion to the circumstances of the case” or where the judge “has made a wholly erroneous estimate of the damage suffered” (Davies v. Lowell Duffryn, 1942 Appeal Cases, page 601, per Lord Wright at pages 616/7), that there are rational principles upon which damages in such cases are to be assessed. This case, happily unique in its tragic facts and isolating as no previous case has done actual physical injuries from physical pain, mental anguish and the consciousness of deprivation which almost invariably accompany physical injuries, seems to me to necessitate an attempt to ascertain what those principles are.

They tend, I think, to be obscured by familiar phrases which lawyers use but seldom pause to analyse. In the course of the arguments in the present case much use has inevitably been made of such expressions as: “subjective and objective tests”, “pain and suffering”, “loss of amenities of life”, “loss of expectation of life” and, in connection with the last-mentioned, “the conventional sum” which since 1941 has commonly been awarded as a result of the House of Lords’ decision in Benham v. Gambling (1941 Appeal Cases, page 157).

This sum, which in practice has lain within the limits of £100 and £500, is certainly a conventional sum in the sense that it is an attempt to equate money with something with which money is not commensurable – prospective happiness. But in the like sense, except for out-of-pocket expenses and loss of earnings past and future, all sums awarded as damages for personal injuries are “conventional sums”. “lain and suffering”, which, like the learned judge, I take as comprising both physical and mental anguish, if there be any scientific distinction between the two, cannot be measured in pounds, shillings and pence. Looked at in isolation there is no logical reason why for one week of pain the right award should be £20 rather than £200. All that can be said is that once you accept as a premise or convention that £20 is the right award for one week of pain, the right award for two weeks of similar pain is in the region of £40 and not in the region of £400, and that a figure in the same region is the right award for each of two sufferers with similar thresholds of pain.

When physical pain is over leaving a permanent physical disability behind, the consequent “loss of amenities of life” can also be compensated only by an arbitrary or conventional sum. Again, looked at in isolation, there is no rational ground for saying that £5,000 rather than £1,000 or £20,000 is the right award, in the case of a particular plaintiff for the loss of a leg below the knee: but once you premise that £5,000 is the right award for this “loss of an amenity of life” you can assert that the loss by the same plaintiff of a leg amputated above the knee should be compensated by a sum greater than £5,000 in the same proportion as the disability, which is of the same kind, is increased by reason of the amputation having taken place at a higher point in the limb. Here one is comparing like with like.

But if £5,000 is the right award for this physical disability in the case of an active young man who spends his leisure in physical activities such as football, walking, dancing, I take it as axiomatic that, other things being equal, one would award a lesser sum for a similar disability in an elderly man of similar tastes or in a young man of the same age but of scholarly tastes who spends his leisure reading or listening to music. Why is this so? In deciding what proportion the damages in one or other of the latter cases should bear to £5,000 the tribunal awarding damages is, in the case of a judge, I think, consciously, seeking to compare the loss of pleasure, or happiness, in the future which similar physical disabilities are likely to cause to different individuals of different ages, temperaments or tastes. And it is, I believe, by the same yardstick, the extent to which a particular plaintiff is likely to be deprived of pleasure or happiness which but for the disability he would have been likely to have enjoyed, that a court, perhaps less consciously, arrives at the proportion which damages for one kind of permanent physical disability should bear to damages for another kind. Save by this standard of comparison there seems no rational ground for saying that if an award in the region of £5,000 is right for the loss of a leg below the knee then a sum in the region of £2,000, or any other sum, is right for the loss of an eye. The loss of an eye restricts the sufferer’s activities from which pleasure can be derived less than the loss of a leg and it is primarily for this reason that, loss of earnings apart, a lesser sum is awarded in compensation. The proportion which that lesser sum bears to the amount which would be awarded for the loss of a leg below the knee represents an attempt by the court, imperfect though it must necessarily be, to assess the comparative extent by which the victim’s pleasure, happiness, enjoyment in life is likely to be reduced by these respective kinds of injuries. Such an attempt must be made if justice is to be done as between one victim and another and as between one tortfeasor and another.

If loss of pleasure or happiness provides, as I think it does, the standard of comparison for assessing damages for different permanent painless physical disabilities, it assists also in assessing the proportion which damages for the element of “pain and suffering” should bear to damages for painless physical disability. Pain is the antithesis of pleasure; it reduces happiness or causes unhappiness – there is no axis of reference of which one can say: above lies happiness, below unhappiness. In this respect and, so far as I can see, in no other, pain has a characteristic in common with painless physical disability. Why can one assert with confidence that the monetary compensation for a week of acute physical pain must be less than the damages awarded for the continuing painless disability resulting from the loss of the sight of one eye? Only, I think, because of the essential factor common to both – that each reduces the happiness of the sufferer. One of the amenities of life is freedom from, acute pain, whether organic or functional, caused by physical injury, and “pain and suffering” as an element in damages is but another instance of a “loss of the amenities of life”. in weighing the loss of happiness caused by pain against that caused by painless physical disability, there is an even wider margin for differences in assessment between judges of differing tastes, temperament or stoicism than in comparing one physical disability with another; but there is a limit to the degree of pain which can or under modern methods of medicine need be borne, and if temporary the memory of it quickly fades. It reduces happiness (or causes unhappiness) for a limited period alone while permanent physical disability reduces happiness at least recurrently as long as life remains.

Implicit in this reasoning as in much of the modern common law is an acceptance of the utilitarian philosophy of Bentham; in this particular instance that part of it which postulates that happiness is the ultimate good. But such acceptance is, I think, also implicit in Viscount Simon’s speech in Benham v. Gambling, which was concurred in by all their Lordships, in which he discusses how damages should he assessed for the prospective shortening of a victim’s life or “loss of expectation of life”. It had been established in Flint v. Lovell (1935 1 King’s Bench, page 354) and approved by the House of Lords in Rose v. Ford (1937 Appeal Cases, page 826) that quite apart from any element of mental suffering resulting from the victim’s knowledge that his life would be shorter he was entitled to some compensation for being deprived of life during those years which he would otherwise have lived. “The question”, said the Lord Chancellor (at page 166), “resolves itself into that of fixing a reasonable figure to be paid as damages for the loss of a measure of prospective happiness”. Certainly Lord Simon did not regard the figure of £200 which the House of Lords there awarded in respect of the death of a child of 2½ years as a “nominal” or “conventional” figure, for he expressly states that the court must “make an objective estimate of what kind of future on earth the victim might have enjoyed whether he” (that is to say the victim) “had justly estimated that future or not”, and vary the award in accordance with that estimate. His reason for reducing the award below the general level that had theretofore prevailed was that human life was not a continuously enjoyable process. “The ups and downs of life, its pains and sorrows as well as its joys and pleasures – all that makes up ‘life’s fitful fever’ – have to be allowed for in the estimate”.

Although the low estimate approved of by the House of Lords may reflect a view that over the normal span of life joys or pleasures and pains or sorrows are fairly evenly balanced, I do not read this speech as laying down that the scale of damages for “loss of expectation of life” bears no appropriate proportion to damages for other consequences of physical injuries. “Damages”, Viscount Simon observed, “which would be proper for a disabling injury may well be much greater than for deprivation of life”. This very statement suggests that he had in mind a proportionate relationship between this and other elements of damages for personal injuries, and as I understand the earlier portions of his speech the reason for that observation is not far to seek. Life is compounded of joys and sorrows, pains and pleasures. If he who is deprived of life loses the joys and pleasures he loses also the sorrows and the pains. It is “the prospective balance of happiness in years that the deceased might otherwise have lived” on which a money value is being put. But a disabling injury in a living victim deprives the sufferer of joys and pleasures which he would otherwise have enjoyed while leaving him exposed to much the same pains and sorrows as he would have suffered if he had not sustained the disabling injury. Whatever his prospective balance of happiness if no injury had been sustained, one assumes that one can say with certainty -for such an assumption is implicit in any award of damages -that that balance will be reduced by reason of his disability, and such reduction may be to an extent which turns it to a substantial balance of unhappiness, particularly during the period it may take him to “learn to live with” his disability. There are other features of a disabling injury which tend to increase the damages appropriate to it and are not present in a case of “loss of expectation of life”. The latter, whether the victim be alive or dead, are a present sum in respect of a loss which is future and uncertain and discount must be made for its futurity and uncertainty, while the former are in part, at least, for a past loss which is certain. So too one need not go the whole way with Berkeley to be convinced that consciousness of deprivation is if not the sole at least a major causative factor in the unhappiness resulting from a disabling injury and this factor is wholly absent in the loss one is seeking to assess under loss of expectation of life.

I should have contented myself with a bare statement of this last proposition were it not for the fact that in the Australian case of McGrath Trailer Equipment Property Co. Ltd. v. Smith (1956 Victoria Law Reports, page 738), to which my brethren hove referred, the Full Court of Victoria treated Viscount Simon’s speech from which I have been citing as authority for the proposition that in the case of a living plaintiff whose brain had been damaged by the accident “it was necessary to make an objective estimate of what kind of future on earth the victim might have enjoyed had he not been injured and that in forming this estimate it would be quite wrong to take into account his mental state after and as a result of the accident”. With this statement one cannot quarrel if it refers only to an initial step in estimating the loss which the plaintiff had sustained, but Chief Justice Herring went on: “The measure of his loss is not affected by the fact that he does not now by reason of his injuries realise what he has lost and does not miss his inability to lead a normal life”. This, with great respect, involves a misunderstanding of Viscount Simon’s reference to an objective test. He was dealing with an argument of the appellants (at page 158) that it was relevant in assessing damages for loss of expectation of life that the deceased child was too young to have had any appreciation of the value of the happiness. This was irrelevant in Benham v. Gambling because the child through his administrator was being compensated for the balance of happiness which he would have enjoyed in the years of life of which he had been deprived. When the value of that happiness has been assessed in money there is nothing to add or deduct from the figure. But in the case of a living plaintiff seeking compensation for a disabling injury the damages are intended to be a measure of the difference between (a) the happiness which he would have enjoyed had he not been injured of which an estimate has to be made which is objective only in the sense that it has to be made by the court and (b) the happiness or unhappiness which he will in fact enjoy as a result of the totality of his injuries. In the latter estimate, also objective in the same sense, there is no warrant for excluding the consideration that there will be absent that major element of unhappiness which results from consciousness of deprivation.

So far I have sought to show that in assessing damages for personal injuries other than in respect of loss of earnings and out-of-pocket expenses: (1) the Court is seeking, however imperfect the attempt may be, a just proportion as between the damages awarded to one plaintiff and those awarded to another; (2) this involves attempting to find a just proportion between the damages awarded for one kind of physical injury and another kind of physical injury and between different, kinds of consequences of physical injury such as physical pain, mental anguish and painless physical disability; (3) the only rational basis on which it can do it is by assessing the only factor common to all kinds of personal injuries and to all their different consequences, namely, the difference between the happiness which the victim would have enjoyed if he had not been injured and the happiness or unhappiness which he has experienced and will experience as an injured man; (4) no distinction, in this respect, is to be drawn between damages for “loss of expectation of life” and damages for other consequences of personal injuries, save that the subtractor in (3) is in this case nil.

This process, however, cannot result in any actual figure in money for any personal injury of any kind unless one postulates that there is a “right” figure in money to compensate for some particular kind of injury which can be used as the datum in the proportion sum. No purely logical process can enable one to arrive at the datum; it must be found empirically; and so, I think, in practice it is. There are, I believe, two main empirical considerations which determine the maximum sum to be awarded for the worst injury that can be foreseen to occur: worst, in this context, meaning: causing the greatest amount of unhappiness to the victim.

The first consideration depends upon the social environment in which we live. In the days before insurance against liability for damages for personal injuries was almost universal it was useless to award damages greater than the defendant could pay; and if the datum were set so high that a substantial proportion of defendants could not pay the damages awarded in respect of very serious personal injuries but only some lesser sum dependent on their individual means the just proportion as between the damages recovered by one plaintiff and those recovered by another would seldom be achieved. The maximum in such a social environment must be fixed at a figure at which there is a reasonable prospect that defendants responsible for causing injuries coming within the higher part of the scale based on that maximum will be able to pay; and it was lest juries should in individual cases be tempted to depart from this scale and so work injustice as between one plaintiff and another that they were not allowed to be told whether a defendant was insured or not. Today, when the vast majority of defendants are insured, this consideration does not operate so directly. Insurance removes the immediate burden of paying damages from the individual defendants and spreads it ultimately over the general body of premium-paying policy-holders. Here it increases in most cases the general cost of goods and services, in some cases merely the cost of private motoring, with consequent hardship to the public as a whole. To avoid fixing the scale at a level which would materially affect the cost of living or disturb the current social pattern is a factor, Benthamite no doubt in origin, in the empirical process by which the maximum/datum is determined.

The second consideration stems from the conception that damages are awarded as compensation for the victim. So long as pecuniary damages are the only remedy the courts can give for loss of happiness we must assume that they are in some respects commensurate or that the possession of more money makes a man happier – an assumption on which the acquisitive habits of the human race under a money-economy are based. But even to-day we are sufficiently Aristotelian to believe that wealth beyond a moderate share is not usually conducive to happiness and that to increase an award of damages beyond that moderate share could, whatever use be made of it, ensure no additional happiness to a normal human being to compensate him for that of which he has been deprived by his personal injuries. What sum constitutes the golden mean of wealth will vary with current social conditions, and, in particular, the general standard of living. To avoid misunderstanding I would stress that these two empirical considerations which take into account the social environment and characteristics of what I may call the average plaintiff and the average defendant are directed solely to arriving at the yardstick to be used where loss of happiness is to be measured, as it must be by the court, in money. The cardinal principle is that there should be a just proportion between the damages awarded to one plaintiff and those awarded to another. Money is all that the court can award and equivalent losses of happiness, whoever the plaintiffs or defendants may be, should result in the award of equal sums. It would thus be wrong to award an individual plaintiff a greater or lesser sum according to whether or not the defendant was rich or poor, insured or uninsured. So too the fact that an individual plaintiff, as in this case, cannot use or in the case of a very rich or ascetic patient does not need the money damages is not a relevant factor. I agree with and need not repeat what Lord Justice Upjohn has already said upon this topic.

The two considerations which I have discussed are, I think, the main factors which lead empirically, without precision but within broad limits, to the maximum figure which provides the datum for the proportion sum which is involved consciously or unconsciously in any estimate of damage for personal injuries. The common consensus of damage-awarding tribunals, to-day mainly judges but still occasionally juries would appear to assess it at a figure of the order of £20,000 to £25,000, and an award of this order would include a substantial sum for loss of earnings and for additional expenses on care and nursing necessitated by the physical disability. Whether in accepting as appropriate this maximum the courts have taken sufficiently into account not only the fall in value of money but also the increase in the standard of living and the real value of the average wage may be debatable; but a figure of this order is, I think, the current maximum and thus the yardstick by which the propriety of the damages awarded to the respondent in the present case should be assessed.

Any attempt, such as I have sought to make, to analyse the principles on which damages for personal injuries are assessed tends to suggest that there is some precise formula by which the correctness of the damages awarded in a particular case can be judged. This of course is not so. There is inevitably a very wide margin for differences of opinion at each stage of the process of arriving at the appropriate figure in each particular case. It is impossible to say that any particular figure within that wide margin is more “right” than another. All that one can say is that it is “wrong” if it is out of all proportion to the damages currently awarded in other cases of personal injuries when judged by the criterion of the loss of happiness to the victim which is involved.

in my view in arriving at the figure of £17,400 general damages in the present case the learned judge acted upon wrong principles of law or, if he did not, awarded a sum out of all proportion to the circumstances of the case.

As respects loss of earnings I agree with my brethren that the recent decision of the Court of Appeal in Oliver v. Ashman (1961 3 Weekly Law Reports, page 669) establishes so far as this Court is concerned authoritatively, and in my own view rightly, that the trial judge was wrong in taking into account sums which the plaintiff would have earned during her normal span of life had it not been shortened by the injury. I think it plain that in fixing the figure of £2,000 for compensation for this loss he did not regard these later sums as die minimis, for, if he had, he would hardly have troubled to discuss the conflicting decisions on this topic and express his own view as to the correct principle. Nor in the light of the fact that damages for loss of wages up to the date of trial, that is for 2¾ years alter the accident, were included in the special damages and of the relevant facts relating to the plaintiff’s prospects of employment and to her expectations of marrying soon after the date of the accident, can I do so. No doubt owing to their uncertainty and futurity the loss of earnings during the years which she would otherwise have lived constitute a minor part of the sum he awarded. if they are to be ignored, as they must, I agree with my brethren that this sum should be reduced from £2,000 to £1,500.

As respects the sum of £400 for loss of expectation of liFe the learned judge expressly refers to it as a nominal sum and appears to have regarded himself as restricted to this figure by the decision of the House of Lords in Benham v. Gambling. I have already set out my reasons for thinking that that decision shows that the sum to be awarded for loss of expectation of life is assessed on similar principles to those applicable to other consequences of personal injuries and are referable to the yardstick of the sum currently regarded as the maximum in personal injury cases. in 1940, when Benham v. Gambling was decided, I think the current maximum would have been generally regarded as being of the order of £10,000. In 1961 the figure for loss of expectation of life should be increased in the same proportion as the figure of maximum damages has increased since 1940. This is a case where but for her tragic injuries this girl of 20 had at least as good prospects of a happy life as others of that age. It is true that as she is still alive this item represents a present sum for a loss which has not already commenced but is, I think, unlikely to be long deferred. For these reasons I would increase it to £1,000.

Even if I am wrong in thinking that the figure awarded in Benham v. Gambling was not a purely arbitrary figure, it was at least expressly awarded as compensation for loss of future happiness; and as there is no reason to suppose that the value of happiness has depreciated in step with the currency I can equally see no reason why it should not be increased to-day in the proportion that the currency has depreciated since 1940. Even on this basis one would arrive at about the same figure of £1,000.

The major item in the damages is however the sum of £15,000 described as being for “the loss of the amenities of life, which here means something very much approaching the loss of life itself except in a physical existence”. The principle which the judge applied in arriving at this sum he stated in a number of slightly different ways. The first, which is unexceptionable, was that “when a person has been injured he must be compensated on the basis of what in fact he has lost”. The second way in which he stated it was that “to compensate a person for injuries it does not Latter whether he knows or not”. This is ambiguous -and erroneous if “injury” means “physical injury” in which consciousness of deprivation if present must always be an element in the damage. The third way in which he put it was: “She is entitled to damages for the loss of everything in life really except mere existence: and that compensation should be based not on the appreciation of the victim but on what in fact has happened to her and what in fact she has lost”. This again is unexceptionable. It corresponds closely except for the survival of “mere existence” with the type of loss which the House of Lords was seeking to evaluate in Benham v. Gambling. Yet the learned judge awarded nearly 40 times as much for this as he awarded for “loss of expectation of life”.

In my opinion, which is not shared by my brethren, this figure is out of all proportion to the damages currently awarded in other cases of personal injuries. There are, I think, two methods of testing its correctness. (1) This unfortunate young woman during the 3½ years that she has existed since the accident has, as the judge said, lost everything in life except mere existence. But if she has lost all joys and pleasures she is also spared all pains and sorrows. It was, as I have endeavoured to show, this consideration which led the House of Lords in Benham v. Gambling to hold that a modest level of damages was appropriate for the loss of that balance of happiness which when pains and sorrows are put into the scale against joys and pleasures a human being may be expected to enjoy. This it seems to me is the closest analogy to the plaintiff’s loss and an award wholly out of proportion to the damages appropriate to loss of expectation of life would, in my view, be erroneous. (2) A figure of the order of £25,000 would, for the empirical reasons to which I have already alluded, be appropriate had the plaintiff been reduced to the physical condition in which she now is but without damage or destruction to that part of the brain which mercifully renders her unconscious of her state. A figure of that order would include, in addition to a sum for loss of future earnings probably substantially greater than the sum of £2,000 awarded in the present case and for monies to be expended on the care and nursing of the victim, an award for physical pain and suffering and compensation for the mental anguish of the continuous consciousness of what had been lost. All these items representing the common consequences of personal injuries which would be present in a case justifying a maximum award are absent in the present case. Even her loss of “the amenities of life”, if this can be dissociated from the mental suffering consequent upon realisation of the loss, is mitigated by a factor not present in a victim who retains consciousness. Unlike even the plaintiffs in Oliver v. Ashman and in the two Australian cases, she is now spared all pains and sorrows, all trials and tribulations, all those causes of unhappiness which would be connoted by the antonym of “amenities” if there were such a word. If, as I think, a figure of the order of £15,000 or even £20,000 represents the current maximum award for personal injuries after loss of future earnings and expenses of future care and nursing have been provided for, the figure of £15,000 in the present case seems to me to be out of all proportion to that maximum.

For my own part 1 would assess the damages for the plaintiff’s loss of the amenities of life during that period while mere existence without consciousness remains to her at the sum of £1,500. I reach a figure of this order by applying the two methods to which I have just referred.

If one takes as a premise that to-day a figure of the order of £1,000 is appropriate compensation for loss of expectation of life in the case of a victim of 20 to 30 years old in the circumstances of the plaintiff, who is killed outright in an accident, such a figure must involve a substantial discount for the facts that it is a present sum awarded in respect of a future loss and that it is given in respect of a period which is uncertain. In the present case this part of the award is made in respect of a loss which had at the date of the trial been borne for some 2¾ years although it is for an uncertain period so far as it lies in the future. In those 2¾ years this unfortunate girl was likely to have experienced the joys of courtship, marriage and of motherhood. One is therefore in respect of this period awarding damages for a loss which is past and certain, and which covers that part of her life in which the balance of happiness over unhappiness is likely to be greatest. Although this period is short compared with those future years of which she has been deprived these considerations justify, I think, a rather higher measure of damages in respect of her loss of happiness and I would add to the £1,000 which I think appropriate for her loss of expectation of life another £1,500 for the period during which she had existed though without consciousness up to the date of the trial.

If on the other hand one takes as a premise that, after making full provision for loss of future earnings and the cost of care and nursing, a sum of the order of £15,000 to £20,000 would be the appropriate maximum award for the physical injuries which she sustained had they not included the damage to the brain which has rendered her unconscious, it seems to me that the great bulk of such a sum would be attributable to physical pain, the mental anguish of complete dependence upon others for all bodily functions and the bitter consciousness, most acute in the earlier years, of all the pleasures of life which had been lost while susceptibility to many of its sorrows remained. All these factors are absent in the plaintiff’s case and I cannot think that more than a tithe of the sum of €15,000 should be here awarded.

The appeal is one against the general damages of £17,400. I think the right figure to be substituted is £4,000, of which £1,500 is in respect of loss of future earnings and the balance of £2,500 is as to £1,500 in respect of her “loss of the amenities of life” during the time while she continues in this world and as to £1,000 in respect of loss of expectation of life. Although this involves including in the general damages a figure greater than the learned judge in his analysis of his award allocated to “loss of expectation of life”, in respect of which there has been no notice of cross-appeal, I think that as the appeal is against the total sum awarded as general damages and not against specific items in the learned judge’s analysis this court would be entitled to substitute the total figure which it thought correct.

I would allow the appeal and substitute for the award of £17,400 general damages the sum of £4,000.

(Appeal allowed. Judgment varied by substituting £17,779. 8s. 11d. for £18,279. 8s. 11d. damages. Appellants to pay four-fifths of Respondent’s costs. Taxation of Respondent -Plaintiff’s costs under Legal Aid and Advice Act. Leave to appeal to House of Lords. Providing Defendants pay into High Court within 14 days further sum of £3,500 (making total of £4,879. 8s. 11d.), for transfer to Court of Protection, stay of execution as to the balance, stay to continue until expiration of time for appealing or hearing of appeal).

 

 

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