pickett v british rail engineering

(2d) 195. 29TH JUNE AND 22ND OCTOBER, 1993. . Pickett v British Rail Engineering [1980] AC 136 Spittle v Bunney [1988] 1 WLR 847 West v Shephard [1963] 2 WLR 1359 Wise v Kaye [1962] 1 QB 638 . The fact is that the law sometimes allowsdamages to be given for the loss of things so described (e.g. It is argued thata judicial graft would entail objectionable consequencesconsequences whichlegislation alone can obviate. Whether a man's ambition be to build up afortune, to provide for his family, or to spend his money upon good causesor merely a pleasurable existence, loss of the means to do so is a genuinefinancial loss. Lord Wilberforce, Lord Salmon, and Lord Edmund-Davies [1980] AC 136, [1978] UKHL 4 Bailii Fatal Accidents Act 1976 1(1) England and Wales Citing: Overruled Oliver v Ashman CA 1961 The rule that loss of earnings, in the years lost to an injured plaintiff whose life expectancy had been shortened, were not recoverable, was still good law.Pearce LJ summarised the authorities: The Law Reform Miscellaneous Provisions Act . I shall not review inany detail the state of the authorities for this was admirably done byPearce L.J. Duncan Estate v. Baddeley (1997), 196 A.R. In considering whether loss of earnings during the " lost years " couldever be taken into account in assessing damages, Holroyd Pearce L.J. It is not a claimby a dead person. It is interesting to note that although counselfor the defendants and third parties had relied at pp.624 and 625 uponBenham v. Gambling [1941] A.C. 157, Slade J. apparently considered,correctly in my view, that Benham v. Gambling had so little to do with thepoint in issue that it was not worth even mentioning in his judgment. And why should he be compensatedonly for the immediate reduction in his earnings and not for the loss ofthe whole period for which he has been deprived of his ability to earnthem? This House lacks the material to enable it to estimate what would beproper compensation for the " lost years ", and the task will have to beremitted to the Queen's Bench Division for determination. He began an appeal, but then died. On his death those damageswill pass to whomsoever benefits under his will or upon an intestacy. What is lost is an expectation, not the thing itself" (p.230). Exemplary damages Rookes v Barnard [1964] AC 1129 Kuddus v Chief Constable of Leicestershire [2001] 2 WLR 1789 John v MGN Ltd [1997] QB 586 Cassell & Co Ltd v Broome [1972] 2 WLR 645 The House of Lords decision in Pickett v British Rail Engineering [1980] established the principle that damages for lost years could include a sum to cover loss of earnings in that period, whatever the age of the claimant. These are: Is it right that in calculating an award for loss of future earnings,it should be restricted to the sum which the injured plaintiff would haveearned (but for the accident) during what remains of his shortened life, orshould he be further compensated by reference to what he could reasonablyhave been expected to earn during such working life as would in allprobability been left to him had it not been cut down by the defendant'snegligence? I prefer not tocomplicate the problem by considering the impact upon dependants of anaward to a living plaintiff whose life has been shortened, as to which seesection 1(1) of the Fatal Accidents Act 1976, Murray v. Shuter [1976] 1 Q.B.972 and McCann v. Sheppard [1973] 1 WLR 540. He was unconscious from the moment of the accident until his death, which occurred later on the same day. Upon the basis of the medical reports with which he wasprovided the trial judge found that at the date of trial Mr. Pickett'sexpectation of life was one year. This was compounded for the greater part by the sum of 7,000for pain, suffering and loss of amenities. Although I agree with the reasons given bySlesser L.J., I think that it is doubtful whether the headnote was correctin saying that those reasons were the reasons upon which the whole courtbased its judgment. The third question, touching the " lost years " I have found very difficult. I will cite only the judgment of Windeyer J. at page 129: " The next rule that, as I see the matter, flows from the principle of" compensation is that anything having a money value which the plaintiff" has lost should be made good in money. the defendants, British Rail Engineering Ltd., his employers, for serious. agreed with both judgments, and it is difficult to regardas other than accurate the headnote which attributes to all three membersof the Court the view expressed by Slesser L.J. The Court of Appeal deducted 50 per cent on this account. Before confirming, please ensure that you have thoroughly read and verified the judgment. Subjective, so victim must be aware of it (Wise v Kaye) Loss of Amenity: objective (West v Shephard). exposure, for which the respondent accepts liability, has resulted in thisperiod being shortened to one year. Not surprisingly,no claim was made for damages in respect of the earnings that this infantmight have lost because such damages could only have been minimal; andaccordingly no argument was addressed to this House on the issue raisedon the present appeal. I agree with the speeches of my noble and learned friends, LordWilberforce, Lord Salmon and Lord Edmund-Davies. I am not, of course, suggesting thatthere are not sometimes circumstances in which, for instance, one section ina statute has to be construed, and one speech may accordingly be appropriate. . 256 Thejudgments in that case were given extempore. We had not in mind continuing inflation and its effect on" awards. It is not" enough that there is a balance of opinion or preference. The respondent admitted liabilitybut contested the issue of quantum of damages. We would alter the guide-line, therefore, by" suggesting that no interest should be awarded on the lump sum" awarded at the trial for pain and suffering and loss of amenities.". Cited Wise v Kaye CA 1-Dec-1961 . Windeyer J. Your Lordships' House is, however, concerned with the principle of thematter. There can be no sensible reason why bydoing so, he should forfeit the balance of the damages attributable to theloss of remuneration caused by the defendant's negligence. However, if one must choose between a law which insome cases will deprive dependants of their dependency through the chancesof life and litigation and a law which, in avoiding such a deprival, willentail in some cases both the estate and the dependants recovering damagesin respect of the lost years, I find the latter to be the lesser evil. . Then came Oliver v. Ashman [1962] 2 Q.B. 210, where a boyaged twenty months was injured by an accident which it was estimated hadhalved his reasonable expectation of living another sixty years. . Icannot agree with that conclusion. My Lords, I have already stated my reasons for holdingthat both those decisions were wrong and should be overruled. In 1962 in Oliver v. Ashman 1 the Court of Appeal held that in an action by a live plaintiff for personal injuries, damages for future loss . In myopinion, to ignore the " lost years " would be to ignore the long establishedprinciples of the common law in relation to the assessment of damages. Cited Brunner v Greenslade ChD 1971 Megarry J discussed the ratio decidendi of and approving dicta in Lawrence.The substance of the views of Simonds J was that where there is a head scheme, any sub-purchasers are bound inter se by the covenants of that head scheme even though . Withrespect, it appears to me simply not right to say that, when a man's workinglife and his natural life are each shortened by the wrongful act of another,he must be regarded as having lost nothing by the deprivation of the prospectof future earnings for some period extending beyond the anticipated date ofhis premature death. Cited - Phillips v London and South Western Railway Co CA 1879 In an action against the railway company for personal injury to a passenger, a physician, making pounds 5,000 a year, and where is an increasing practice, . The Courtof Appeal increased the award of general damages to 10,000; but refusedto allow interest upon this award. Mr. Pickett, a married man with two children, was aged 53 at the timeof trial, which was on the llth and 12th October 1976. The problem is this. In fact, he died 5 months later,onthe 15th March 1977. Notwithstanding itscitation by Upjohn L.J. In the words of the trial judge, " he was then" 51 years of age, a very fit man who was a non-smoker, a cyclist of great" accomplishment, for he had been a champion cyclist of apparently" Olympic standard, and he was still leading a most active life in March" 1974, cycling to work each day.". Background to 'lost years' claims. The court gave examples of the way in which they apply the ex mora rule when calculating the interest payable in a judgment. was agreeing only that the damagesshould be raised to 6,542. In most cases of this kind, the plaintiff, whether or not he knows he islikely to die as a result of the defendant's negligence, will bring his case tocourt or settle it as soon as possible because he is in urgent need of thatpart of the damages to which he is entitled, so that he may support himselfand his family during his life. As to the general damages, I would also restore the judgment of the trialjudge. Kelland v Lamer [1988] Bda LR 69. The same should follow ifthe damages remain in real terms the same. 256. . It has been said that if in a case such as this damages are not to beawarded in respect of benefits that would have accrued to the plaintiff in thelost years it introduces an anomaly, since if the claim were under theFatal Accidents Act by dependants their claim would extend into the lostyears. This is the first case in this country in which it was argued and indeeddecided that (a) damages for the loss of earnings for the " lost years " is nil,and (b) " the only relevance of earnings which would have been earned" after death is that they are an element for consideration in assessing" damages for loss of expectation of life, in the sense that a person earning" a reasonable livelihood is more likely to have an enjoyable life. London & South West Railway Co. 4 Q.B.D. Liability was admitted by the employers,and the one issue arising in this appeal relates to the award of generaldamages. Section 22. Assumptions, chances, hypotheses enterinto most assessments, and juries had, we must suppose, no difficulties withthem: the judicial approach however less robust can manage too. Furthermore, the sugges-tion that the defendant is prejudiced overlooks the fact that he has meanwhilehad the use of the money. Increase for inflation isdesigned to preserve the " real " value of money: interest to compensate forbeing kept out of that " real " value. In the instant case the Court of Appeal has followed its dictum, disallowingthe interest granted by the judge on the damages for pain and suffering.My Lords, I believe the reasoning of the Court of Appeal to be unsound onthis point. But, as I have already sought to show, the House of Lords had not concludedthe matter, and it would have been sounder to say that the point had beendisposed of in Roach v. Yates (ante) by the Court of Appeal itself in favourof the plaintiff. Oliver v, Ashman is part of a complex of law which has developedpiecemeal and which is neither logical nor consistent. The Master of the Rolls, " Although I well appreciate the care which the judge gave to this" case, it seems to me that there is one feature which the judge did" not take into account sufficiently, and that is the distress which" Mr. Pickett must have suffered knowing that his widow and" dependants would be left without him to care for them. . We and our partners use data for Personalised ads and content, ad and content measurement, audience insights and product development. Though to some the award of 7,000 may seem low, itis not so low as to support the inference that the judge's estimate was wholly. Is he not entitled to say, at one moment I am aman with existing capability to earn well for 14 years: the next momentI can only earn less well for one year? I shall deal with it on authority and on principle. Southern Engineering Company Ltd v Mutia : Date Delivered: 10 Sep 1985: Case Class: Civil: Court: Court of Appeal at Malindi: Case Action: Judgment: . Cannot pay more than commercial rate . had said in the House ofLords in Benham v. Gambling [1941] AC 157; see for example, the judgmentof Holroyd Pearce L.J., in [1962] 2 Q.B. (2d) 495 (B.C.S.C. p. 167). Cited Pope v D Murphy and Son Ltd QBD 1961 Both the injured plaintiffs earning capacity and his expectation of life had been diminished and in assessing damages for the diminution of his earning capacity his Lordship had regard to the plaintiffs pre-accident expectation of life. Damages for pain, suffering, and loss of amenities. The Master of the Rolls in the passage which I havequoted paid his tribute to the care which the judge gave the case. Thedefendant cross-appealed on the ground that the award was too high. 805, C.A.and Murray v. Shuter [1972] 1 Lloyd's Rep. 6 at p.7. They . The claimant sought damages for the reduction in his prospects of disease-free survival for . . Cited Jefford v Gee CA 4-Mar-1970 The courts of Scotland followed the civil law in the award of interest on damages. Pickett v British Rail Engineering Ltd [1980] AC 136 - Referred By. Or are his words to berelated to the case then before this House? Formany years Mr. Pickett had worked in contact with asbestos dust and, as aresult, he developed mesothelioma of the lung, a condition which firstexhibited symptoms in 1974. Gage J agreed. Compare him with a manin poor health and out of a job, is he not, and not only in the immediatepresent, a richer man? The defendants. In 1974, when his symptoms became acute, the deceased was a man of51 with an excellent physical record. Jonathan Nitzan. He is no longer there to earn them, since he has" died before they could be earned. The relevant line of authority is not that which culminatedin Benham v. Gambling but that which had begun with Phillips v. L. &S.W.R. By clicking on this tab, you are expressly stating that you were one of the attorneys appearing in this matter. His personal representatives appealed. He was a champion cyclist ofOlympic standard, he kept himself very fit and was a non-smoker. Was the Court of Appeal right in depriving the plaintiff of intereston the general damages? It was not possible for a live plaintiff to claim damages for his lost years. We are not calledupon in this appeal to lay down any rules as to the manner in which suchdamages should be calculatedthis must be left to the courts to work outconformably with established principles. I have to say that I see no signs of the trial judge having failed in theseor any other respects. Mr. Pickett appealed but before the appeal could be heard he had died.His widow, as administratrix of his estate, obtained an order to carry onthe proceedings, and the appeal was heard in November 1977. On 14 July 1975 he issued a writ against the respondent claiming damagesfor personal injuries or physical harm. In either event, there would be a windfall for strangers at the expenseof the defendant. The policy of the Acts was, in my opinion, clearly to put thatman's dependants, as far as possible, in the same financial position as theywould have been in if the bread-winner had lived long enough to obtainjudgment against the tortfeasor. Certainly, thelaw can make no distinction between the plaintiff who looks after dependantsand the plaintiff who does not, in assessing the damages recoverable tocompensate the plaintiff for the money he would have earned during the" lost years " but for the defendant's negligence. The scale" must go down heavily against the figure attacked if the appellate court" is to interfere, whether on the ground of excess or insufficiency. It seems, therefore, strange andunjust that his claim for loss of earnings should be limited to that one year(the survival period) and that he should recover nothing in respect of theyears of which he has been deprived (the lost years). In Pickett v. British Rail Engineering Ltd . of Pickett v British Rail Engineering Limited 1979 1 AER 774 and Gammell v Wilson 1980 2 AER 557 is to allow recovery for future earnings for the "lost years". See solutions on page 215 of your study guide (self . The main strands in the law as itthen stood were: The Law Reform Miscellaneous Provisions Act 1934 abolished theold rule " actio personalis moritur cum persona " and provided for thesurvival of causes of action in tort for the benefit of the victim's estate. But it is also apecuniary lossthe money would have been his to deal with as he chose,had he lived. judgment in Harris v. Brights Asphalt ContractorsLtd. There is another argument, in the opposite sensethat which appealed toStreatfeild J. in Pope v. Murphy (u.s.). ", My Lords, I am unable to accept that conclusion. If I cannot do this, I have" been deprived of something on which a valuea present valuecan be" placed"? . . His personal representatives pursued the appeal to this House. It has not been argued before your Lordships and I refrain from" expressing any view about it.". 90 ofLaw Com. Similarly, it is true that inReid v. Lanarkshire Traction Co., Lord Wark, the Lord Ordinary madesome observations which would also have helped the defendant in Oliverv. The determination of the quantum must answer what contemporary society "would deem to be a fair sum . Suppose him to belife tenant of substantial settled funds. The present appeal raises the problem of the assessment of" damage for ' loss of expectation of life' before this House for the" first time, and it is indeed the only issue with which we are now" concerned.". If they had been, it seems as incredible to me as it doesto my noble and learned friend Lord Wilberforce that Viscount Simonwould not have disapproved Roach v. Yates, and I think also Phillips v.The London & South Western Railway Company. In Roach v. Yates [1938] 1 K.B. . I entirely agree with what my noble and learned friend Lord Wilberforcehas said about the issues relating to (a) the interest on the general damagesand (b) the amount of the general damages for pain and suffering and thelike to which I cannot usefully add anything. But I suspect that the point willneed legislation. He went on: , " The destruction or diminution of a man's capacity to earn money" can be made good in money,", " I cannot see that damages that flow from the destruction or" diminution of his capacity [to earn] are any the less when the" period during which the capacity might have been exercised is" curtailed because the tort cut short his expected span of life. I cannot see that damages that flow from" the destruction or diminution of his capacity (to earn money) are any" the less when the period during which the capacity might have been" exercised is curtailed because the tort cut short his expected span of" life. When his claim for damages was almost ready for trial, his lawyers requested an adjournment. And I do not think that to act in this way creates insoluble problemsof assessment in other cases. In such a case, the lost earnings are so unpredict-able and speculative that only a minimal sum could properly be awarded.At the other end of the scale, the claim may be made by a man in theprime of life or, if he dies, on behalf of his estate; if he has been in goodemployment for years with every prospect of continuing to earn a goodliving until he reaches the age of retirement, after all the relevant factorshave been taken into account, the damages recoverable from the defendantare likely to be substantial. It is on this basis, my Lords,that I approach the three questions raised in this appeal, with which Ipropose to deal in this order: -. Thus he says : " On one view of the matter there is no loss of earnings when a" man dies prematurely. There was a reference to the speech ofLord Roche in Rose v. Ford and to the judgment of Lord Blackburn inthe Inner House in Reid v. Lanarkshire Traction Co. 1934 S.C. 79. The interest which such a man has in the earnings he might hopeto make over a normal life, if not saleable in a market, has a value whichcan be assessed. The House of Lords in Pickett v. British Rail Engineering [1980 . current Principal and Vice-Chancellor of McGill University. Heather Monroe-Blum. He awardeda total of 14,947.64 damages. 406, 5 Q.B.D. The plaintiff has lost the earnings and theopportunity, which, while he was living, he valued, of employing them ashe would have thought best. My own opinion is that the solution is a matter whosecomplications are more suited for legislation than judicial decision by thisHouse in the manner proposed. The answer is I suppose that being dead he has noliving expenses. But I think,for the reasons given by Lord Wilberforce, Lord Salmon and LordEdmund-Davies, that a plaintiff (or his estate) should not recover more thanthat which would have remained at his disposal after meeting his own livingexpenses. An intestacy personal injuries or physical harm arising in this way creates insoluble problemsof assessment other... Earnings when a '' man dies prematurely a writ against the respondent admitted liabilitybut the... Part by the employers, for which the respondent admitted liabilitybut contested the issue of quantum of damages fair! However, concerned with the principle of thematter 7,000for pain, suffering, and loss of amenities settled funds e.g... 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Lordships and I do not think that to act in this matter Benham v. Gambling but that had... And I refrain from '' expressing any view about it. `` in his prospects of disease-free for. Damages was almost ready for trial, his employers, for which the judge gave the then! Liability, has resulted in thisperiod being shortened to one year tribute to case. See no signs of the trialjudge review inany detail the state of the authorities for this was compounded the... Would be a windfall for strangers at the expenseof the defendant is prejudiced overlooks the fact that he noliving... Valuea present valuecan be '' placed '' please ensure that you were one of the accident until his those. V Shephard ) were one of the trial judge having failed in theseor any other respects ; lost &! Which appealed toStreatfeild J. in Pope v. Murphy ( u.s. ) Appeal increased the award of generaldamages the.. Confirming, please ensure that you were one of the quantum must answer contemporary. V. 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