Pickett v British Rail Engineering Ltd [1978] UKHL 4

House of Lords
Between
PickettAppellantBritish Rail Engineering LtdRespondent
Before
Lord WilberforceLord SalmonLord Edmund-DaLord Russell of KillowenLord Scarman

LORD EDMUND-DA

My Lords,This appeal raises three questions as to the amount of damages which ought to have been awarded to Mr. Ralph Henry Pickett (" the deceased ") against his employer, the respondent, for negligence and/or breach of statutory duty.From 1949 to 1974 Mr. Pickett was working for the respondent in the construction of the bodies of railway coaches, which work involved contact with asbestos dust. In 1974 he developed symptoms which proved to be of mesothelioma of the lung, of which he later died.On 14 July 1975 he issued a writ against the respondent claiming damages for personal injuries or physical harm. The respondent admitted liability but contested the issue of quantum of damages. The case came for trial before Stephen Brown J. who on 12 October 1976 awarded damages under various heads. Those in issue in this appeal were three:(1) £7,000 by way of general damages in respect of pain, suffering and loss of amenities;(2) £787.50 as interest on the £7,000 at 9 per cent from the service of the writ;(3) £1,508.88 as a net sum in respect of loss of earnings. This sum was based on a finding that the deceased's expectation of life had been reduced to one year from the date of trial, and the loss of earnings related to that period i.e., the period of likely survival. The judge also awarded £500 for loss of expectation of life, and the total for which he gave judgment was £14,947.64.Mr. Pickett appealed to the Court of Appeal against this judgment, but before the appeal was heard he died. An order to carry on the proceedings was made in favour of his widow as administratrix of his estate. The appeal was heard in November 1977. The Court of Appeal did not award any sum for loss of earnings beyond the survival period but increased the general damages award to £10,000, without interest.The appellant now appeals to this House contending that a much larger amount ought to have been awarded in respect of loss of future earnings. She also claims that interest should be awarded on the general damages. The respondent appeals against the award of £10,000 general damages.In 1974, when his symptoms became acute, the deceased was a man of 51 with an excellent physical record. He was a champion cyclist of Olympic standard, he kept himself very fit and was a non-smoker. He was leading an active life and cycled to work every day. He had a wife and two children. There was medical evidence at the trial as to his condition and prospects, which put his then expectation of life at one year: this the judge accepted. There can be no doubt that but for his exposure to asbestos dust in his employment he could have looked forward to a normal period of continued employment up to retiring age. That2exposure, for which the respondent accepts liability, has resulted in this period being shortened to one year. It seems, therefore, strange and unjust that his claim for loss of earnings should be limited to that one year (the survival period) and that he should recover nothing in respect of the years of which he has been deprived (the lost years). But this is the result of authority binding on the judge and the Court of Appeal— Oliver v. Ashman [1962] 2 Q.B. 210. The present is, in effect, an appeal against that decision.Oliver v, Ashman is part of a complex of law which has developed piecemeal and which is neither logical nor consistent. Judges do their best to make do with it but from time to time cases appear, like the present, which do not appeal to a sense of justice. I shall not review in any detail the state of the authorities for this was admirably done by Pearce L.J. in Oliver v. Ashman. The main strands in the law as it then stood were:The Law Reform Miscellaneous Provisions Act 1934 abolished the old rule " actio personalis moritur cum persona " and provided for the survival of causes of action in tort for the benefit of the victim's estate.The decision of this House in Rose v. Ford [19371 A.C. 826 that a claim for loss of expectation of life survived under the Act of 1934, and was not a claim for damages based on the death of a person and so barred at common law (c.f. The Amerika [1917] A.C. 38).The decision of this House in Benham v. Gamblin [1941] A.C. 157 that damages for loss of expectation of life could only be given up to a conventional figure, then fixed at £200.The Fatal Accidents Acts under which proceedings may be brought for the benefit of dependants to recover the loss caused to those dependants by the death of the breadwinner. The amount of this loss is related to the probable future earnings which would have been made by the deceased during " lost years ".This creates a difficulty. It is assumed in the present case, and the assumption is supported by authority, that if an action for damages is brought by the victim during his lifetime, and either proceeds to judgment or is settled, further proceedings cannot be brought after his death under the Fatal Accidents Acts. If this assumption is correct, it provides a basis, in logic and justice, for allowing the victim to recover for earnings lost during his lost years.This assumption based upon the wording of section 1 of the Act of 1846 (now section 1 of the Act of 1976) and is not supported by any decision of this House. It cannot however be challenged in this appeal, since there is before us no claim under the Fatal Accident Acts. I think, therefore, that we must for present purposes act upon the basis that it is well founded, and that if the present claim, in respect of earnings during the lost years, fails, it will not be possible for a fresh action to be brought by the deceased's dependants in relation to them.With this background, the case of Oliver v. Ashman may now be con- sidered. I shall deal with it on authority and on principle.It is clear from the judgment of Pearce L.J. that he considered that, apart from the decision in Benham v. Gambling, there was, at the least, a case for giving damages in respect of the lost years. Thus he says :" On one view of the matter there is no loss of earnings when a " man dies prematurely. He is no longer there to earn them, since he " has died before they could be earned. He has merely lost the " prospect of some years of life which is a complex of pleasure and " pain, of good and ill, of profits and losses. On the other view he " has, in addition to losing a prospect of the years of life, lost the income " he would have earned, and the profits that would have been his had " he lived ". (p. 228).3He then proceeded to examine Benham v. Gambling and reached the conclusion that it was a binding authority in favour of the first view.The critical passage in the speech of Viscount Simon L.C. was that con- taining these words:" Of course, no regard must be had to financial losses or gains during " the period of which the victim has been deprived. The damages are " in respect of loss of life, not of loss of future pecuniary prospects" (l.c. p. 167).My Lords,if more recent periods in the House exemplify excessive multi- plication of speeches, there are instances, of which this must certainly be one, where a single speech may generate uncertainty. How far was Viscount Simon intending to go? Was he intending to lay down a principle " in " clear and careful terms " of general application? Or are his words to be related to the case then before this House? These and other perplexities might well have been resolved if any of the five (sic) other learned Lords had expressed his views in his own words. It is, of course, the function of this House to lay down general rules, to reduce the partialities of previous decisions to some simple universal, but even after the most comprehensive of arguments there remain aspects of a legal problem which were not in view when the decision is reached. Benham v. Gambling was a case of a small child (two and a half years old) almost instantly killed: the claim was for loss of expectation of life: there was no claim for loss of future earnings. Claims for loss of expectation of life, validated by Flint v. Lovell [1935] 1 K.B. 354, and held to survive in Rose v. Ford, had begun to proliferate, and sums of differing amounts, some quite large, had begun to be awarded. The judge in Benham v. Gambling had awarded £1,200. There was a clear need to bring order into this situation and the solution, to fix a conventional sum, was adapted to this need. The quoted words of Viscount Simon can well be understood as expressing no more than a principle for assessing damages under this particular heading of life expectation and as saying no more than that there was not inherent in a claim for such damages any claim for pecuniary loss arising from the loss of earnings.Apart from these general considerations, such references as can be made to the argument point both ways. There was a reference to the speech of Lord Roche in Rose v. Ford and to the judgment of Lord Blackburn in the Inner House in Reid v. Lanarkshire Traction Co. 1934 S.C. 79. It was said that in each of these cases passages can be found to support the proposition that loss of earnings can only be recovered as an element in the loss of expectation of life. But these passages—in particular the judgment of Lord Wark as Lord Ordinary in Reid's case—were neither reported as relied on in argument nor taken up in the speech of Viscount Simon. So I do not find here any support for the argument that his Lordship was dealing with loss of earnings in any way. Secondly, as the reporter mentions in a parenthesis ([1941] A.C. 159) mention was made in argument of the recent Court of Appeal case of Roach v. Yates [19381] 1 K.B. 256. The headnote in that case describes it as deciding that damages for earnings during the lost years can be recovered. Whether that headnote is wholly accurate or not, it is inconceivable that Viscount Simon would have made no mention of the case if, as is contended, he was laying down a rule to govern the assessment of damages for loss of earnings in the future. If he was, he must have expressed disagreement with it.The conclusion must be (and to my mind it is clear) that Benham v. Gambling was no authority compelling the decision in Oliver v. Ashman. It was not dealing with, and Viscount Simon did not have in mind, a claim by a living person for earnings during the lost years. Once this is established, the two views stated by Pearce L.J. remain open, and on them the existing balance of authority was slightly the other way (see Phillips v. London & South West Railway Co. 4 Q.B.D. 406, 5 Q.B.D. 78, Roach v. Yates (u.s.) Pope v. D. Murphy & Son Ltd. [1961] 1 Q.B. 222; Harris v. Brights Asphalt Contracors Ltd. [1953] 1 Q.B. 617; contra.4As to principle, the passage which best summarises the underlying reasons for the decision in Oliver v. Ashman is the following:" What has been lost by the person assumed to be dead is the " opportunity to enjoy what he would have earned, whether by spending " it or saving it. Earnings themselves strike me as being of no " significance without reference to the way in which they are used. To " inquire what would have been the value to a person in the position " of this plaintiff of any earnings which he might have made after the " date when ex hypothesi he will be dead strikes me as a hopeless " task ". (per Willmer L.J. p.240).Or as Pearce L.J. put it:" What is lost is an expectation, not the thing itself" (p.230).My Lords,I think that these are instinctual sentences, not logical propositions or syllogisms—none the worse for that because we are not in the field of pure logic. It may not be unfair to paraphrase them as saying:
" Nothing is of value except to a man who is there to spend or " save it. The plaintiff will not be there when these earnings hypothetically " accrue: so they have no value to him "
. Perhaps there are additional strands, one which indeed Willmer L.J. had earlier made explicit, that the whole process of assessment is too speculative for the courts to undertake: another that the only loss is a subjective one--an emotion of distress: but if so I would disagree with them. Assumptions, chances, hypotheses enter into most assessments, and juries had, we must suppose, no difficulties with them: the judicial approach however less robust can manage too. And to say that what calls for compensation is injured feelings does not provide an answer to the vital question which is whether, in addition to this subjective element, there is something objective which has been lost.But is the main line of reasoning acceptable? Does it not ignore the fact that a particular man, in good health, and sound earning, has in these two things an asset of present value quite separate and distinct from the expectation of life which every man possesses? Compare him with a man in poor health and out of a job, is he not, and not only in the immediate present, a richer man? Is he not entitled to say, at one moment I am a man with existing capability to earn well for 14 years: the next moment I can only earn less well for one year? And why should he be compensated only for the immediate reduction in his earnings and not for the loss of the whole period for which he has been deprived of his ability to earn them? To the argument that " they are of no value because you will not " be there to enjoy them " can he not reply, " yes they are: what is of " value to me is not only my opportunity to spend them enjoyably, but to " use such part of them as I do not need for my dependants, or for other " persons or causes which I wish to support. If I cannot do this, I have " been deprived of something on which a value—a present value—can be " placed"?I do not think that the problem can be solved by describing what has been lost as an " opportunity " or a " prospect" or an " expectation ". Indeed these words are invoked both ways—by the Lords Justices as denying a right to recover (on grounds of remoteness, intangibility or speculation), by those supporting the appellant's argument as demonstrating the loss of some real asset of true value. The fact is that the law sometimes allows damages to be given for the loss of things so described (e.g. Chaplin v. Hicks [1911] 2 KB 786 ) sometimes it does not. It always has to answer a question which in the end can hardly be more accurately framed than as asking, " Is the loss of this something for which the claimant should and

reasonably can be compensated?"

The respondent, in an impressive argument, urged upon us that the real loss in such cases as the present was to the victim's dependants and that the right way in which to compensate them was to change the law (by statute, judicially it would be impossible) so as to enable the dependants to recover their loss independently of any action by the victim There is5much force in this, and no doubt the law could be changed in this way. But I think that the argument fails because it does not take account, as in an action for damages account must be taken, of the interest of the victim. Future earnings are of value to him in order that he may satisfy legitimate desires, but these may not correspond with the allocation which the law makes of money recovered by dependants on account of his loss. He may wish to benefit some dependants more than, or to the exclusion of, others—this (subject to family inheritance legislation) he is entitled to do. He may not have dependants, but he may have others, or causes, whom he would wish to benefit, for whom he might even regard himself as working. One cannot make a distinction, for the purposes of assessing damages, between men in different family situations.There is another argument, in the opposite sense—that which appealed to Streatfeild J. in Pope v. Murphy (u.s.). Why, he asked, should the tortfeasor benefit from the fact that as well as reducing his victim's earning capacity he has shortened his victim's life? Good advocacy but unsound principle, for damages are to compensate the victim not to reflect what the wrongdoer ought to pay.My Lords,in the case of the adult wage earner with or without dependants who sues for damages during his lifetime, I am convinced that a rule which enables the " lost years " to be taken account of comes closer to the ordinary man's expectations than one which limits his interest to his shortened span of life. The interest which such a man has in the earnings he might hope to make over a normal life, if not saleable in a market, has a value which can be assessed. A man who receives that assessed value would surely consider himself and be considered compensated—a man denied it would not. And I do not think that to act in this way creates insoluble problems of assessment in other cases. In that of a young child (c.f. Benham v. Gambling) neither present nor future earnings could enter into the matter: in the more difficult case of adolescents just embarking upon the process of earning (c.f. Skelton v. Collins, infra) the value of " lost" earnings might be real but would probably be assessable as small.There will remain some difficulties. In cases, probably the normal, where a man's actual dependants coincide with those for whom he provides out of the damages he receives, whatever they obtain by inheritance will simply be set off against their own claim. If on the other hand this coincidence is lacking, there might be duplication of recovery. To that extent injustice may be caused to the wrongdoer. But if there is a choice between taking a view of the law which mitigates a clear and recognised injustice in cases of normal occurrence, at the cost of the possibility in fewer cases of excess payments being made, or leaving the law as it is, I think that our duty is clear. We should carry the judicial process of seeking a just principle as far as we can, confident that a wise legislator will correct resultant anomalies.My Lords,I have reached the conclusion which I would recommend so far without reference to the case of Skelton v. Collins (1966) 115 C.L.R. 94 in which the High Court of Australia, refusing to follow Oliver v. Ashman, achieved the same result. The value of this authority is twofold: first in recommending by reference to authority (per Taylor J.) and in principle (per Windeyer J.) the preferable solution, and, secondly, in demonstrating that this can properly be reached by judicial process. The judgments, further, bring out an important ingredient, which I would accept, namely that the amount to be recovered in respect of earnings in the " lost" years should be after deduction of an estimated sum to represent the victim's probable living expenses during those years. I think that this is right because the basis, in principle, for recovery lies in the interest which he has in making provision for dependants and others, and this he would do out of his surplus. There is the additional merit of bringing awards under this head into line with what could be recovered under the Fatal Accidents Acts. Skelton v. Collins has been followed and applied recently by the High Court in Griffiths v. Kerkmayer [1977] 51 ALJR 792.6I would allow the appeal on this point and remit the action to the Queen's Bench Division for damages to be assessed accordingly. We are not called upon in this appeal to lay down any rules as to the manner in which such damages should be calculated—this must be left to the courts to work out conformably with established principles.I shall deal briefly with the other issues. As to interest on damages, I would restore the decision of the judge. This was varied by the Court of Appeal on the theory that as damages are now normally subject to increase to take account of inflation, there is no occasion to award interest as well. I find this argument, with respect, fallacious. Increase for inflation is designed to preserve the " real " value of money: interest to compensate for being kept out of that " real " value. The one has no relation to the other. If the damages claimed remained, nominally, the same, because there was no inflation, interest would normally be given. The same should follow if the damages remain in real terms the same. Apart from the inflation argument no reason was suggested for interfering with the exercise of the judge's discretion.As to the general damages, I would also restore the judgment of the trial judge. He gave this matter most careful attention and the Court of Appeal were unable to find that he erred in principle in any way. It is important that judges' assessments should not be disturbed unless such error can be shown, or unless the amount is so grossly excessive or insufficient as to lead to the conclusion that some such error must have taken place.If the appeal and cross appeal is disposed of as I have suggested, the appellant should have the costs of the appeal in this House and the res- pondent the costs of the cross appeal.

Lord Salmon

My Lords,The relevant facts have been fully and lucidly set out by my noble and learned friend Lord Wilberforce. They raise only one point of law which is of great public importance; I shall confine myself to examining that point alone. I propose to do so first by considering the principles involved and then the authorities.Suppose a plaintiff who is 50 years old and earning a good living with a reasonable expectation of continuing to do so until he reaches 65 years of age. As a result of the defendant's negligence, he has contracted a disease or suffered injuries which cut down his expectation of life to, say, five years and prevent him from earning any remuneration during that period. Are the damages to which he is entitled confined to compensation for the loss of the remuneration he would probably have earned during those five years, or do they include compensation for the loss of the remuneration which, but for the defendant's negligence, he would probably have earned for a further 10 years, i.e., for the rest of what would have been his working life? In my opinion, there is no reason based either on justice or logic for supporting the view that he, and therefore his estate, is entitled to no damages in respect of the money he has been deprived from earning during these ten years.Suppose that, in the case I have postulated, the plaintiff's action for damages for negligence came to trial two years after he first became incapacitated. He would obviously be entitled to compensation for the remuneration he had lost in those two years. He would also, in my opinion, be entitled to a lump sum to compensate him for the undoubted loss of remuneration which, but for the defendant's negligence, he would probably have earned in the next 13 years, i.e., up to the date when he would have reached retiring age. I do not accept that there can be any justification for limiting this compensation to compensation for the earnings he would have lost in the three years immediately following the trial, and awarding7him nothing in respect of the remuneration he would, but for the defendant's negligence, have lost during the next 10 years—commonly known in cases such as these as the " lost years ".In most cases of this kind, the plaintiff, whether or not he knows he is likely to die as a result of the defendant's negligence, will bring his case to court or settle it as soon as possible because he is in urgent need of that part of the damages to which he is entitled, so that he may support himself and his family during his life. There can be no sensible reason why by doing so, he should forfeit the balance of the damages attributable to the loss of remuneration caused by the defendant's negligence.Although the point has never been considered by your Lordships' House, it is generally assumed that should the plaintiff accept a sum in settlement of his claim or obtain judgment for damages in respect of the defendant's negligence, his dependants will have no cause of action under the Fatal Accidents Acts after his death. This assumption is supported by strong authority; see Read v. Great Eastern Railway Company (1868) L.R. 3 Q.B. 555; Williams v. Mersey Docks and Harbour Board [1905] 1 K.B. 805, C.A. and Murray v. Shuter [1972] 1 Lloyd's Rep. 6 at p.7. No point about the correctness of this assumption arises for decision in this appeal and therefore I express no concluded opinion about it. I think, however, that the assumption which has held the field for upwards of 100 years is probably correct and that, for present purposes, it must be accepted. In the overwhelming majority of cases a man works not only for his personal enjoyment but also to provide for the present and future needs of his dependants. It follows that it would be grossly unjust to the plaintiff and his dependants were the law to deprive him from recovering any damages for the loss of remuneration which the defendant's negligence has prevented him from earning during the " lost years". There is, in my view, no principle of the common law that requires such an injustice to be perpetrated.When the Fatal Accidents Acts 1846 to 1908 were passed, it is, in my view, difficult to believe that it could have occurred to Parliament that the common law could possibly be as stated, many years later, by the Court of Appeal in Oliver v. Ashman [1962] 2 Q.B. 210. The clear intention of Parliament in passing those Acts appears to have been to deal with the all too frequent cases in which, as a result of someone else's negligence, a man suffered injuries which incapacitated him from earning and caused his death before he could obtain any damages from the tortfeasor to compensate him for the loss of the money he would have earned but for the tort. The policy of the Acts was, in my opinion, clearly to put that man's dependants, as far as possible, in the same financial position as they would have been in if the bread-winner had lived long enough to obtain judgment against the tortfeasor. In my opinion, Parliament correctly assumed that had the deceased lived, he would have recovered judgment for a lump sum by way of damages as compensation for the money he would have earned but for the tortfeasor's negligence; and that these damages would have included the money which the deceased would have earned during " the lost years ". Otherwise, Parliament would, surely, have made it plain that no judgment in favour of the deceased or settlement of his claim could bar a claim by his dependants under the Fatal Accidents Acts; I certainly do not think that Parliament would have used the language which it did use in section 1 of those Acts.The common law does not award a plaintiff annual payments in respect of the money he would have earned during the rest of his life had it not been for the defendant's negligence. It awards him a lump sum by way of damages to compensate him for all the money he has probably been prevented from earning because of the defendant's negligence. The common law takes many factors into account in assessing those damages, e.g., that the lump sum awarded will yield interest in the future; that the plaintiff might have lost his job in any event; that he might have been incapacitated or killed in some other way, so that the defendant's negligence may not necessarily have been the cause of his loss of earnings.8One of the factors which, however, the common law does not, in my view, take into account for the purpose of reducing damages is that some of the earnings, lost as a result of the defendant's negligence, would have been earned in the " lost years ". Damages for the loss of earnings during the " lost years " should be assessed justly and with moderation. There can be no question of these damages being fixed at any conventional figure because damages for pecuniary loss, unlike damages for pain and suffering, can be naturally measured in money. The amount awarded will depend upon the facts of each particular case. They may vary greatly from case to case. At one end of the scale, the claim may be made on behalf of a young child or his estate. In such a case, the lost earnings are so unpredict- able and speculative that only a minimal sum could properly be awarded. At the other end of the scale, the claim may be made by a man in the prime of life or, if he dies, on behalf of his estate; if he has been in good employment for years with every prospect of continuing to earn a good living until he reaches the age of retirement, after all the relevant factors have been taken into account, the damages recoverable from the defendant are likely to be substantial. The amount will, of course, vary, sometimes greatly, according to the particular facts of the case under consideration.I recognise that there is a comparatively small minority of cases in which a man whose life, and therefore his capacity to earn, is cut short, dies intestate with no dependants or has made a will excluding dependants, leaving all his money to others or to charity. Subject to the family inheri- tance legislation, a man may do what he likes with his own. Certainly, the law can make no distinction between the plaintiff who looks after dependants and the plaintiff who does not, in assessing the damages recoverable to compensate the plaintiff for the money he would have earned during the " lost years " but for the defendant's negligence. On his death those damages will pass to whomsoever benefits under his will or upon an intestacy.I think that in assessing those damages, there should be deducted the plaintiff's own living expenses which he would have expended during the " lost years " because these clearly can never constitute any part of his estate. The assessment of these living expenses may, no doubt, sometimes present difficulties, but certainly no difficulties which would be insuperable for the courts to resolve—as they always have done in assessing dependancy under the Fatal Accidents Acts.I now turn to the authorities. The first reported case in which the assess- ment of damages for loss of future earnings was discussed in relation to a plaintiff who faced a speedy death as a result of the defendant's negligence was Phillips (a consultant physician) v. London and South Western Railway Co. [1879] 5 Q.B.D. 78. After reciting a passage from the trial judge's summing up, James L.J. said at page 87:
" That comes to this, you are to consider what his income would " probably have been, how long that income would probably have " lasted, and you are to take into consideration all the other contin- " gencies to which a practice is liable. I do not know how otherwise " the case could be put."
Brett and Cotton L.JJ. agreed with that judgment. I am not at all surprised that it never occurred to that distinguished court that the " lost years " should be ignored in assessing damages for loss of earnings: nor that it did not occur to Sergeant Ballantine, who appeared for the defendants. In my opinion, to ignore the " lost years " would be to ignore the long established principles of the common law in relation to the assessment of damages.The next relevant case was Roach v. Yates [1938] 1 K.B. 256 The judgments in that case were given extempore. I confess that I find it difficult to discover anything from the judgment of Greer L.J. except that he and his brethren had agreed that the damages of £2,742 awarded by the trial judge were far too low and should be increased to £6,542. The reasons upon which Greer L.J. based that conclusion are obscure. He did however9refer to the judgment in Phillips v. London and South Western Railway Company without disagreeing with it. On the other hand, Slesser L.J. did make plain the grounds on which he based his conclusions. He said:
" Speaking for myself ... I think the proper way of approaching " the problem is that which was followed in Phillips v. London South " Western Railway Company, the leading case on this matter—namely, " first to consider what sum he (the plaintiff) would have been likely to " make during his normal life if he had not met with the accident."
MacKinnon L.J.'s judgment consists only of the enigmatic words " I agree ". It is by no means plain whether he agreed with the reasons given by Slesser L.J. who had indicated, in giving those reasons, that he was speaking for himself, or whether MacKinnon L.J. was agreeing only that the damages should be raised to £6,542. Although I agree with the reasons given by Slesser L.J., I think that it is doubtful whether the headnote was correct in saying that those reasons were the reasons upon which the whole court based its judgment.I now turn to Harris v. Brights Asphalt Contractors Ltd. [1953] 1 Q. B. 617. This is the first case in this country in which it was argued and indeed decided that(a) damages for the loss of earnings for the " lost years " is nil, and(b) " the only relevance of earnings which would have been earned " after death is that they are an element for consideration in assessing " damages for loss of expectation of life, in the sense that a person earning " a reasonable livelihood is more likely to have an enjoyable life. ". Slade J. who gave that judgment attempted, I think unsuccessfully, to explain away what had been said in Phillips v. London & South Western Railway Company and Roach v. Yates. It is interesting to note that although counsel for the defendants and third parties had relied at pp.624 and 625 upon Benham v. Gambling [1941] A.C. 157, Slade J. apparently considered, correctly in my view, that Benham v. Gambling had so little to do with the point in issue that it was not worth even mentioning in his judgment. Nor was he able to cite any other authority in support of his decision.In Pope v. D. Murphy & Son Ltd. [1961] 1 Q.B. 222, Streatfeild J. refused to follow Slade J's. judgment in Harris v. Brights Asphalt Contractors Ltd. and decided the issue on damages in favour of the plaintiff, relying upon what had been said in the Court of Appeal in the earlier cases to which I have referred.Then came Oliver v. Ashman [1962] 2 Q.B. 210. The plaintiff was a young boy who, when 20 months old, had suffered injuries as a result of the defendant's negligence which turned him into a low grade mental defective and reduced his expectation of life from 60 years to 30 years. He claimed damages not only for loss of expectation of life, pain, suffering, loss of amenities and the expenses incurred in taking care of him, but also for the loss of what he might have earned but for the accident. Lord Parker C.J., who tried the case at first instance, followed the decision in Pope v. D. Murphy & Co. Ltd. and awarded him a lump sum of £11,000. The plaintiff appealed on the ground that that award was too low. The defendant cross-appealed on the ground that the award was too high. The Court of Appeal overruled Pope v. D. Murphy & Co. Ltd. and held that Harris v. Brights Asphalt Contractors Ltd. had been correctly decided. Nevertheless they did not reduce the award because they concluded, quite rightly in my view, that in the case of a child of such tender years, the amount of the earnings which he might have lost was so speculative and unpredictable that the sum in the award attributable to that element must have been minimal and could therefore be disregarded.In considering whether loss of earnings during the " lost years " could ever be taken into account in assessing damages, Holroyd Pearce L.J. (as he then was) said:" On one view of the matter there is no loss of earnings when a man " dies prematurely. He is no longer there to earn them, since he has " died before they could be earned. He has merely lost the prospect10
" of some years of life which is a complex of pleasure and pain, of " good and ill, profits and losses. On the other view he has, in addition " to losing a prospect of the years of life, lost the income which he " would have earned and the profit which would have been his had " he lived."
Holroyd Pearce L.J. came down in favour of the first view because he concluded that he was bound to do so by the decision of your Lordships' House in Benham v. Gambling. So did Wilmer and Pearson L.JJ. I cannot agree with that conclusion. In Benham v. Gambling the plaintiff was the father and administrator of the estate of his infant child who was 2 1/2 years old and who was so badly injured by the negligent driving of the "defendant that he died on the day of the accident. Not surprisingly, no claim was made for damages in respect of the earnings that this infant might have lost because such damages could only have been minimal; and accordingly no argument was addressed to this House on the issue raised on the present appeal. The claim was confined solely to damages for the loss of expectation of life. The trial judge assessed those damages at £1,200. The Court of Appeal, by a majority, refused to reduce that amount on the defendants' appeal. The defendants then successfully appealed to your Lordships' House.Accordingly, the decision in Benham v. Gambling does not touch the issue now before this House. Indeed, Viscount Simon L.C. who made the only speech in Benham v. Gambling (with whom all the other noble and learned Lords agreed) said at p. 162:
"... The present appeal raises the problem of the assessment of " damage for ' loss of expectation of life' before this House for the " first time, and it is indeed the only issue with which we are now " concerned."
He then went on, carefully, to explain all the factors to be taken into account in assessing those damages and to stress the necessity for moderation, which he perhaps emphasised by reducing the damages, in the circumstances of that case, to £200. Two sentences which concluded a paragraph from page 229, towards the end of that speech, were fastened on by the Court of Appeal in Oliver v. Ashman and indeed constituted the cornerstone of their judgment. The sentences read as follows :
" Of course, no regard must be had to financial losses or gains during " the period of which the victim has been deprived. The damages are " in respect of loss of life, not of loss of future pecuniary interests."
Those sentences exactly fitted the facts of that case because no claim in in respect of pecuniary loss was being made. As Viscount Simon himself acknowledged, the only issue with which the House was then concerned was the assessment of damages for loss of expectation of life.My noble and learned friend Lord Pearce and Wilmer L.J. considered that what I call the two excised sentences in Viscount Simon's speech must have been intended to apply to cases in which damages for loss of earnings during the " lost years " are being claimed, because the speech by Lord Roche in Rose v. Ford [1937] A.C. 826 and the judgment in Reid v. Lanarkshire Traction Co. (1934) S.C. 79, had been cited in the argument in Benham v. Gambling. I would point out that Rose v. Ford was itself a case solely concerned with a claim for damages for loss of expectation of life. No damages for pecuniary loss were claimed on behalf of the deceased's estate. Lord Roche alone did, however, make some obiter observations which might have been of some help to the defendant in Oliver v. Ashman. According to the report of the argument in Benham v Gambling at p. 159, that, however, was not the passage in Lord Roche's speech which was cited to this House. Similarly, it is true that in Reid v. Lanarkshire Traction Co., Lord Wark, the Lord Ordinary made some observations which would also have helped the defendant in Oliver v. Ashman; but again, according to the report of Benham v. Gambling that11judgment was not cited in argument. What was cited was a passage from Lord Blackburn's judgment in the Inner House which had nothing to do with claims for pecuniary loss.I hardly think that the excised sentences were intended to apply to cases in which there was a claim for damages in respect of loss of earnings during the " lost years ". If they had been, it seems as incredible to me as it does to my noble and learned friend Lord Wilberforce that Viscount Simon would not have disapproved Roach v. Yates, and I think also Phillips v. The London & South Western Railway Company.My Lords,in my opinion, Benham v. Gambling illustrates how unfortunate it may sometimes be to have only one speech, however excellent, to explain the decision of the Appellate Committee. I have little doubt that if any other of the noble and learned Lords concerned in that case had also delivered a speech, there would have been no misunderstanding about the meaning of what I have described as the two excised sentences in Viscount Simon's speech. I agree with the view often expressed by Lord Reid, that if there is only one speech it is apt to be construed as a statute, which is not how a speech ought to be treated. If, however, there is a number of speeches, the general principles which it is the function of this House to lay down will be distilled from them. I am not, of course, suggesting that there are not sometimes circumstances in which, for instance, one section in a statute has to be construed, and one speech may accordingly be appropriate.Before leaving Oliver v. Ashman, I should like to refer to the passage in the judgment of my noble and learned friend Lord Pearson at page 245which reads as follows:;
" In my view the conclusion, shortly stated, is that the conventional " sum in the region of £200 which is to be awarded for loss of expecta- " tion of life should be regarded as covering all the elements of it— " e.g., joys and sorrows, work and leisure, earning and spending or " saving money, marriage and parenthood and providing for dependants " —and should be regarded as excluding any additional assessment for " any of those elements."
I say nothing about the exiguous amount of the damages with which the present appeal is not concerned. I do not, however, agree with the rest of that passage unless one excludes from it the words " earning and spending " or saving money . . . and providing for dependants." These words seem to me to conflict with the two sentences in Viscount Simon's speech in Benham v. Gambling to which I have already referred and with which I agree.I am reinforced in the opinion I have formed by the judgments of Kitto, Taylor, Menzies, Windeyer and Owen JJ. in Skelton v. Collins 115 C.L.R. 94. I will cite only the judgment of Windeyer J. at page 129:" The next rule that, as I see the matter, flows from the principle of " compensation is that anything having a money value which the plaintiff " has lost should be made good in money. This applies to that element " in damages for personal injuries which is commonly called ' loss of
" ' earnings '. The destruction or diminution of a man's capacity to " earn money can be made good in money. It can be measured by " having regard to the money that he might have been able to earn had " the capacity not been destroyed or diminished. . . . what is to be " compensated for is the destruction or diminution of something having " a monetary equivalent ... I cannot see that damages that flow from " the destruction or diminution of his capacity (to earn money) are any " the less when the period during which the capacity might have been " exercised is curtailed because the tort cut short his expected span of " life. We should not, I think, follow the English decisions in which " in assessing the loss of earnings the ' lost years' are not taken into " account."
12The only English decisions to which the High Court of Australia can have been referring in relation to the " lost years " were the decisions of Slade J. in Harris v. Brights Asphalt Contractors Ltd. and of the Court of Appeal in Oliver v. Ashman. My Lords, I have already stated my reasons for holding that both those decisions were wrong and should be overruled.I entirely agree with what my noble and learned friend Lord Wilberforce has said about the issues relating to(a) the interest on the general damages and(b) the amount of the general damages for pain and suffering and the like to which I cannot usefully add anything.I would, therefore, allow the appeal and cross-appeal and remit the action to the Queen's Bench Division to assess the damages in relation to the plaintiff's loss of earnings during the " lost years ".

Lord Edmund-Davies

My Lords,In the autumn of 1976 Stephen Brown J. had before him a claim for damages for negligence brought by a workman against his employers. For many years Mr. Pickett had worked in contact with asbestos dust and, as a result, he developed mesothelioma of the lung, a condition which first exhibited symptoms in 1974. In the following year he instituted these pro- ceedings and, at the time of the hearing, he was a married man of 53 with a wife and two children. Until 51 years of age he had been very fit, and was leading a most active life. Liability was admitted by the employers, and the one issue arising in this appeal relates to the award of general damages. This was compounded for the greater part by the sum of £7,000 for pain, suffering and loss of amenities. The learned judge also awarded interest at 9 per centum on the £7,000, calculated from the date of service of the writ to the date of trial.Mr. Pickett died on March 15th 1977, less than four months after he had obtained judgment, and his widow and administratrix was substituted as plaintiff for the purpose of appealing from that decision. The Court of Appeal increased the award for pain and suffering from £7,000 to £10,000, and the compensation for shortened expectation of life (as to which no question arises) from £500 to £750, but ordered that no interest should be awarded on the general damages.Three questions now arise for determination. These are:Is it right that in calculating an award for loss of future earnings, it should be restricted to the sum which the injured plaintiff would have earned (but for the accident) during what remains of his shortened life, or should he be further compensated by reference to what he could reasonably have been expected to earn during such working life as would in all probability been left to him had it not been cut down by the defendant's negligence? In short, is he also entitled to be compensated for what have conveniently been called the " lost years "?Should the Court of Appeal have increased the general damages?Was the Court of Appeal right in depriving the plaintiff of interest on the general damages?

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

The question has long been debated—indeed, ever since Oliver v. Ashman [1962] 2 QB 210. Before considering that case in any detail, it should be stressed that the decision proceeded upon the basis that the Court of Appeal was there bound by what Viscount Simon, L.C. had said in the House of Lords in Benham v. Gambling [1941] AC 157; see for example, the judgment of Holroyd Pearce L.J., in [1962] 2 Q.B. from p.228 onwards, and that of1 3Willmer L.J. at p.238. But, my Lords, in reality that was not so. It is true that in Benham v. Gambling the Lord Chancellor did say at one stage (p. 167):
" Of course, no regard must be had to financial losses or gains during " the period of which the victim has been deprived. The damages are " in respect of loss of life, not of loss of future pecuniary prospects."
But the claim there being considered was what sum should be awarded to the estate of a child of two and half years who died the day after he was injured. Ever since the decision in Rose v. Ford [1937] AC 826, the awards for shortened expectation of life had varied enormously, and it is clear from the submissions of learned counsel in Benham v. Gambling that guidance only on that matter was there being sought. This was stated in terms by the Lord Chancellor, who added (at p. 162) " . . . . and it is indeed " the only issue with which we are now concerned." Notwithstanding its citation by Upjohn L.J. in Wise v. Kaye [1962] 1 QB 638 , at p.659 as authority for the contrary proposition that "... a dead man's estate . . . " cannot . . . claim for loss of future pecuniary prospects", in my judgment the proper conclusion is that, as Lord Morris of Borth-y-Gest said in West v. Shephard [1964] AC 326 , at p.348:
" The guidance given in Benham v. Gambling was, I consider, " solely designed and intended to apply to the assessment of damages " in respect of the rather special ' head' of damages for loss of " expectation of life."
There being thus no decision compelling the Court of Appeal in Oliver v. Ashman (supra) to reject a claim for damages for the " lost years ", what guidance was to be found in the earlier cases? James L.J. said in Phillips v. L. & S.W. Railway (1879)5 QBD 78 at p.87 of a physician injured in a railway accident—" You are to consider what his income would probably have been, " how long that income would probably have lasted, and you have to " take into consideration all the other contingencies to which a practice " is liable." (The italics are mine).In Roach v. Yates [1938] 1 K.B. 256 Slesser L.J. took a similar view regarding a claim made by a plaintiff of thirty three. He said (at p.268):
" Criticism has been made of the suggestion that one method of " estimating his loss [of wages] is to consider what he would have " earned during his life. Speaking for myself, I see no justification for " approaching that problem by starting with the assumption that he " would only have lived so long as the accident has now allowed him " to live. I think the proper way of approaching the problem is that " which was followed in Phillips v. London & South Western Railway " Co. (1879)5 QBD 78, the leading case on this matter—namely, first " to consider what sum he would have been likely to make during his " normal life if he had not met with his accident."
It is said that it is not clear whether Greer L.J. was of the same view, but MacKinnon L.J. agreed with both judgments, and it is difficult to regard as other than accurate the headnote which attributes to all three members of the Court the view expressed by Slesser L.J. But in Harris v. Brights Asphalt Contractors Ltd. [1953] 1 Q.B. 617 Slade J. doubted that this was so, and held that no compensation could be awarded for earnings during the " lost years " to a plaintiff of thirty-seven whose expectation of life had been reduced to two years. He said (p.633):
".... I cannot think it right that I should give damages for loss " of earnings for a period during which ex hypothesi he is not alive to " earn them ... In my judgment, therefore, the only relevance of " earnings which would have been earned after death is that they are " an element for consideration in assessing damages for loss of " expectation of life, in the sense that a person earning a reasonable " livelihood is more likely to have an enjoyable life."
14The whole field of decisions was again surveyed by Streatfeild J. in Pope v. D. Murphy & Son Ltd. [1961] 1 Q.B. 222 and led him to say, in arriving at the opposite conclusion (at p.231):
" In my view the proper approach to this question of loss of earning " capacity is to compensate the plaintiff, who is alive now, for what he " has in fact lost. What he has lost is the prospect of earning whatever " it was he did earn from his business over the period of time that he " might otherwise, apart from the accident, have reasonably expected " to earn it."
And so we come to Oliver v. Ashman [1962] 2 Q.B. 210, where a boy aged twenty months was injured by an accident which it was estimated had halved his reasonable expectation of living another sixty years. Lord Parker C.J. followed Pope v. Murphy by taking as a separate head of damage the earnings which would have accrued to the plaintiff during the period by which life had been shortened. But this was reversed in the Court of Appeal, although Holroyd Pearce L.J. accepted that the earlier authorities were in accord with Pope's case. He summarised the nature of the conflict between that case and Harris v. Brights Asphalt Contractors Ltd. in this way (p.228):
" On one view of the matter there is no loss of earnings when a man " dies prematurely. He is no longer there to earn them, since he has " died before they could be earned. He has merely lost the prospect " of some years of life which is a complex of pleasure and pain, of " good and ill, of profits and losses. On the other view, he has, in " addition to losing a prospect of the years of life, lost the income " that he would have earned, and the profits that would have been " his had he lived."
Holroyd Pearce L.J. then examined Benham v. Gambling (ante) in detail, and concluded (p.230):
" In my judgment, therefore, the matter is concluded in this court " by Benham v. Gambling, and the decision of Slade J. in Harris v. " Brights Asphalt Contractors Ltd. was correct."
But, as I have already sought to show, the House of Lords had not concluded the matter, and it would have been sounder to say that the point had been disposed of in Roach v. Yates (ante) by the Court of Appeal itself in favour of the plaintiff. Willmer L.J. was, with respect, similarly mistaken about the effect of Benham v. Gambling (see p.238). Pearson L.J. after a wider citation of authorities, said (p.245):
" In my view the conclusion, shortly stated, is that the conventional " sum in the region of £200 which is to be awarded for loss of expectation " of life should be regarded as covering all the elements of it—e.g., " joys and sorrows, work and leisure, earnings and spending or saving " money, marriage and parenthood and providing for dependants—and " should be regarded as excluding any additional assessment for any of " those elements."
My Lords,I am unable to accept that conclusion. I prefer not to complicate the problem by considering the impact upon dependants of an award to a living plaintiff whose life has been shortened, as to which see section 1(1) of the Fatal Accidents Act 1976, Murray v. Shuter [1976] 1 Q.B. 972 and McCann v. Sheppard [1973] 1 WLR 540. For our present consideration relates solely to the personal entitlement of an injured party to recover damages for the " lost years ", regardless both of whether he has dependants and of whether or not he would (if he has any) make provision for them out of any compensation awarded to him or his estate. With respect, it appears to me simply not right to say that, when a man's working life and his natural life are each shortened by the wrongful act of another, he must be regarded as having lost nothing by the deprivation of the prospect of future earnings for some period extending beyond the anticipated date of his premature death. In the Australian case of Skelton v. Collins (1965)115 C.L.R. 94 Taylor J. referred to " the anomaly that would arise if Oliver v. " Ashman is taken to have been correctly decided ", adding15
" An incapacitated plaintiff whose life expectation has not been " diminished would be entitled to the full measure of the economic loss " arising from his lost or diminished capacity. But an incapacitated " plaintiff whose life expectancy has been diminished would not."
And Windeyer J. speaking of " the principle of compensation . . . that " anything having a money value which the plaintiff has lost should be " made good in money ", continued (p. 129):
" This applies to that element in damages for personal injuries which " is commonly called 'loss of earnings'. . . . The plaintiff could, if " he had not been injured, have sold his labour and his skill or the " fruits of his labour and his skill. I cannot see that damages that flow " from the destruction or diminution of his capacity to do so are any " the less when the period during which the capacity might have been " exercised is curtailed because the tort cut short his expected span " of life."
My Lords,neither can I see why this should be so. In my judgment, Holroyd Pearce L.J. was in error in saying in Oliver v. Ashman (ante, at p. 230):
" When the [variegated tapestry of life] is severed there is but one " sum recoverable in respect of that severance. And what is lost is an " expectation, not the thing itself. The House of Lords have laid down " that on an objective and artificial valuation, the sum which the loss " of expectation is to be assessed must be a moderate one on the scale " indicated in Benham v. Gambling"
In the present case Goff L.J. expressed the view that Oliver v. Ashman (ante) " does seem ... to work a grave injustice ", and I regard it as wrongly decided. It follows that the judgment of the trial judge and the Court of Appeal on this first question, based as they were on that case, should now be reversed.This House lacks the material to enable it to estimate what would be proper compensation for the " lost years ", and the task will have to be remitted to the Queen's Bench Division for determination. It is likely to prove a task of some difficulty, though (contrary to the view expressed by Willmer L.J. in Oliver v. Ashman, ante, at p. 240) the lost earnings are not " far too speculative to be capable of assessment by any court of law." The only guidance I can proffer is that, in reaching their final figure, the court should make what it regards as a suitable deduction for the total sum which Mr. Pickett would have been likely to expend upon himself during the " lost years ". This calculation, too, is by no means free from difficulty, but a similar task has to be performed regularly in cases brought under the Fatal Accidents Act. And in Scotland the court is required, in such cases as the present, to " have regard to any diminution ... by virtue " of expenses which in the opinion of the court the pursuer . . . would " reasonable have incurred . . by way of living expenses." (Damages (Scotland) Act 1976, section 9(2)(c)). For, macabre though it be to say so, it does not seem right that, in respect of those years when ex hypothesi the injured plaintiff's personal expenses will be nil, he should recover more than that which would have remained at his disposal after such expenses had been discharged.

(2) General Damages

My Lords,I am unable to adopt the view of the Court of Appeal that the experienced trial judge erred in any way in assessing the general damages at £7,000. They do not criticise his general approach; indeed, Lawton L.J. said expressly, "... it is manifest that he approached the matter of the " assessment of damages on the right lines." What is suggested is that he committed errors(a) by failing to take sufficiently into account the distress caused to Mr. Pickett by the realisation " that his dependants would be left " without him to care for them "; and(b) by starting at too low a figure and then failing to allow sufficiently for inflation.16I have to say that I see no signs of the trial judge having failed in these or any other respects. It may be that £7.000 would be regarded by some judges as on the low side, but even so, in my judgment it did not merit interference. I would therefore allow the defendants' cross-appeal against the decision of the Court of Appeal to increase this head of damages to £10,000 and restore the £7,000 awarded.

(3) Interest on General Damages

Although it was seemingly agreed by both sides before the learned trial Judge that the sum of £7,000 was to carry interest at 9 per centum from the date of service of the writ (amounting to £787.50), the Court of Appeal ordered that no interest was to be payable upon the increased sum of £10,000. We have no record of what led to this variation in the trial judge's order, but we were told that it sprang from the Court of Appeal decision in Cookson v. Knowles [1977] 3 WLR 279, where Lord Denning M.R. said (at p. 283):
" In Jefford v. Gee [1970] 2 QB 130 , 151, we said that, in personal " injury cases, when a lump sum is awarded for pain and suffering and " loss of amenities, interest should run ' from the date of service of the " ' writ to the date of trial'. At that time inflation did not stare us in " the face. We had not in mind continuing inflation and its effect on " awards. It is obvious now that that guide-line should be changed. " The courts invariably assess the lump sum on the ' scale ' for figures " current at the date of trial—which is much higher than the figure " current at the date of the injury or at the date of the writ. The " plaintiff thus stands to gain by the delay in bringing the case to trial. " He ought not to gain still more by having interest from the date of " service of the writ."
My Lords,I have to say with great respect that the fallacy inherent in the passage quoted is in thinking that a plaintiff who, owing to inflation, gets a bigger award than he would have secured had the case been disposed of earlier is better off in real terms. But in fact the bigger award is made simply to put the plaintiff in the same financial position as he would have been had judgment followed immediately upon service of the writ. The reality is that the plaintiff in this case has been kept out of £7,000 until the date of judgment, and there is no reason why he should be deprived of the £787 interest awarded by the trial judge for the 15-month period between writ and judgment simply because a lesser sum than £7,000 might or would have been awarded had the case come on earlier. Furthermore, the sugges- tion that the defendant is prejudiced overlooks the fact that he has meanwhile had the use of the money.My Lords,in the result, I would allow the plaintiff's appeal in respect of Points (1) and (3) and the defendant's cross-appeal in respect of Point (2). I am in agreement regarding the proposed order as to costs.

Lord Russell of Killowen

My Lords,On two of the three questions in this case, those touching interest and the increase in damages by the Court of Appeal from £7,000 to £10,000 I am in agreement, and need not repeat the reasons given for what is proposed.The third question, touching the " lost years " I have found very difficult.We are not directly concerned on that question with either the Law Reform (Miscellaneous Provisions) Act 1934, or the Fatal Accidents Acts. The deceased plaintiff survived to trial and judgment: the appeal is by his personal representative as representing his estate and does not need the 1934 Act to support it, the cause of action having merged in the judgment.17The problem is this. Was the plaintiff at the time of judgment entitled to damages on the ground that as a result of the wrong done to him his life has been shortened and that he will not in consequence receive financial benefits which would in the ordinary course of events have come to him during those lost years.I may say at once that I do not regard what was said in Benham v. Gambling in this House as throwing any light on this problem. That case was dealing only with a head of damages for loss of expectation of life which, as was there stressed, is not a question of deprivation of financial benefits at all. The problem has, as your Lordships have pointed but, been touched upon in a number of cases, but its solution is at large for this House.I have stated the problem without confining it to earnings in the lost years. Suppose a plaintiff injured tortiously in a motoring accident, aged 25 at trial, with a resultant life expectation then of only one year. Suppose him to be life tenant of substantial settled funds. If the lost years are to be brought into assessment of damages presumably allowance must be made for that part of the life interest which he would have received but will not receive. So also if he had a reversionary interest contingent upon surviving a life in being then aged 60: he will have been deprived of the probability of the funds coming to him during the lost years. Again he might at the trial be shown to be the sole beneficiary under the will of a rich relation whose age made it probable that the testator would die during the lost years, and whose testimony at the trial was that he had no intention of altering his will: in such cases presumably an allowance in damages would require to be made for the lost, and may be valuable, spes successionis: unless the testator was an ancestor of the plaintiff and the plaintiff was likely to have children surviving him. (Section 32 Wills Act 1837.)I refer to these possible situations in order to suggest that the problems which exist even in the field of earnings in the lost years may in a given case be far more difficult of solution, once there is introduced into the field of damages allowance for financial " loss " of that which death ex hypothesi forestalls. Damages are compensatory not punitive: so that it is no valid argument that a wrongdoer should not benefit by inducing early death rather than a full lifetime of pain and suffering: that must happen anyway e.g. when an infant is killed outright.It has been said that if in a case such as this damages are not to be awarded in respect of benefits that would have accrued to the plaintiff in the lost years it introduces an anomaly, since if the claim were under the Fatal Accidents Act by dependants their claim would extend into the lost years. But this so called anomaly arises from the particular nature of such a claim, which is by living people in respect of their living periods, which is expressly based upon what they have lost by a death. It is not a claim by a dead person. I do not accept the suggestion that Parliament in enacting the Fatal Accidents Acts must have assumed a live plaintiff's claim for thelost years.It has, my Lords, correctly been remarked that though in the instant case the plaintiff had dependants who (it was assumed) were barred from a Fatal Accidents Act claim by the judgment, the question of the lost years must be answered in the same way in a case of a plaintiff without dependants. But the solution proposed, involving as it does deduction from lost years' earnings of the plaintiff's living expenses, appears to me to attempt to splice two quite separate types of claim: a claim by dependants for dependency and a claim by the plaintiff himself. If a plaintiff is to be entitled to claim in respect of lost years' earnings, why should his claim be reduced by what, no doubt enjoyably, he would have spent on himself? Why should he be limited to that which he would have given away either inter vivos or by will or intestacy? The answer is I suppose that being dead he has no living expenses. But this, in the current phrase, is where we came in. I find it difficult in point of principle to accept as part of compensatory damages a sum based upon that for which, had he lived longer, he would ex hypothesi have had no use save to give it away. The comment that18the law is not concerned with what a plaintiff does with the damages to which he is entitled is of course sound: but it assumes entitlement to the damages, which is the very question.My Lords,these problems have been debated by the Law Commission. An attempt to solve them has been made for Scotland by the Damages (Scotland) Act 1976. My own opinion is that the solution is a matter whose complications are more suited for legislation than judicial decision by this House in the manner proposed.Your Lordships being unanimously of opinion on this problem to the contrary, I have not felt it necessary to argue the point in great detail.In the result I would allow the appeals on the questions of interest and quantum of damages (£7,000 or £10,000) and dismiss the appeal on the lost years point.In the circumstances of your Lordships' decision I agree with the order for remission proposed and for costs.

Lord Scarman

My Lords,I agree with the speeches of my noble and learned friends, Lord Wilberforce, Lord Salmon and Lord Edmund-Davies. My excuse for burdening your Lordships with a speech must be that, as my Lord, Lord Wilberforce, has remarked, in some cases a single speech may generate uncertainty. I would add a comment: one justification (there are others) for several speeches in your Lordships's House supporting the same conclusion is that they can show that there are more ways than one of journeying to the same end. They can shed light, and diminish the possibility of misunderstanding.Mr. Pickett, who was the plaintiff in the action, claimed damages from the defendants, British Rail Engineering Ltd., his employers, for serious personal injury sustained in the course of his employment. The defendants admit liability. The issue between the parties is as to the amount of damages which the judge at trial ought to have awarded Mr. Pickett, a living plaintiff.Mr. Pickett, a married man with two children, was aged 53 at the time of trial, which was on the llth and 12th October 1976. His wife was then 47 years old. He first realised he was ill when he became short of breath in the spring of 1974. In the words of the trial judge, " he was then " 51 years of age, a very fit man who was a non-smoker, a cyclist of great " accomplishment, for he had been a champion cyclist of apparently " Olympic standard, and he was still leading a most active life in March " 1974, cycling to work each day."Medical treatment and investigations culminating in an operation in January 1975 revealed a malignant tumour which covered the whole of his right lung and could not be wholly removed. It was caused by asbestos dust inhaled over the years while he was working in the defendants' workshops. Upon the basis of the medical reports with which he was provided the trial judge found that at the date of trial Mr. Pickett's expectation of life was one year. In fact, he died 5 months later,—on the 15th March 1977. But for his injury, Mr. Pickett could have expected to work until normal retiring age (i.e. 65) and to enjoy thereafter a period of retirement.The judge's task was to assess the damages to be paid to a living plaintiff, aged 53, whose life expectancy had been shortened to one year. He awarded a total of £14,947.64 damages. This total included: —£7,000, general damages for pain, suffering, and loss of amenities:£787.50, interest upon the award of these general damages from date of service of writ (18th July 1975) to date of trial:19£1,508.88 damages for loss of the earnings which he could have expected to earn during his shortened life expectancy:£500 damages for loss of expectation of life.Mr. Pickett appealed but before the appeal could be heard he had died. His widow, as administratrix of his estate, obtained an order to carry on the proceedings, and the appeal was heard in November 1977. The Court of Appeal increased the award of general damages to £10,000; but refused to allow interest upon this award. Following Oliver v. Ashman, [1962] 2 Q.B. 210, the court left undisturbed the award for loss of future earnings. It increased to £750 the award for loss of expectation of life. The plaintiff now appeals against the refusal of interest upon the general damages and against the sum awarded for loss of future earnings. The defendants appeal against the increase by the Court of Appeal in the award of general damages.First, some general observations.The recent development of the judicial practice of " itemising damages ", though as a matter of history closely linked with the need to differentiate between heads of damage for the purpose of calculating interest upon damages, has, my Lords, helped towards a juster assessment of the capital element in damages for personal injuries. For it ensures that pecuniary loss and non-pecuniary loss will be assessed separately. As the Law Commission has shown in its report (Law Com. No. 56), the assessment of damages for non-pecuniary loss is a very different matter from assessment of damages for pecuniary loss. There is no way of measuring in money pain, suffering, loss of amenities, loss of expectation of life. All that the court can do is to make an award of fair compensation. Inevitably this means a flexible judicial tariff, which judges will use as a starting-point in each individual case, but never in itself as decisive of any case. The judge, inheriting the function of the jury, must make an assessment which in the particular case he thinks fair: and, if his assessment be based on correct principle and a correct understanding of the facts, it is not to be challenged, unless it can be demonstrated to be wholly erroneous: Davies v. Powell Duffryn Associated Collieries Ltd. [1942] A.C. 601.But, when a judge is assessing damages for pecuniary loss, the principle of full compensation can properly be applied. Indeed, anything else would be inconsistent with the general rule which Lord Blackburn has formulated in these words: -". . . . that, where any injury is to be compensated by damages, in " settling the sum of money to be given . . . you should as nearly as " possible get at that sum of money which will put the party who has " been injured, or who has suffered, in the same position as he would " have been in if he had not sustained the wrong ",Livingstone v. Rawyards Coal Co. (1880) 5 A.C. 25 at page 39.Though arithmetical precision is not always possible, though in estimating future pecuniary loss a judge must make certain assumptions (based upon the evidence) and certain adjustments, he is seeking to estimate a financial compensation for a financial loss. It makes sense in this context to speak of full compensation as the object of the law. It is on this basis, my Lords, that I approach the three questions raised in this appeal, with which I propose to deal in thisDamages for loss of future earnings,Damages for pain, suffering, and loss of amenities,Interest on the damages for pain and suffering.

(1) Damages for loss of future earnings

In Oliver v. Ashman [1962] 2 Q.B. 210, the Court of Appeal decided that in an action for damages for personal injuries, whether brought by a living plaintiff or on behalf of the estate of a dead plaintiff, damages for20loss of earnings are limited in the first case to the period of shortened expectation of life, and, in the second, to the shortened period of life. Under the Oliver v. Ashman rule no claim for loss of earnings can be made in respect of the period the plaintiff could have expected to live, had his life expectation not been shortened by the accident giving rise to his claim. He cannot recover in respect of the earnings he could have expected during the " lost years ".My noble and learned friends Lord Wilberforce, Lord Salmon and Lord Edmund-Davies have analysed the case law which lies behind this decision. I agree with them in thinking that the decision was based upon a misconception of what this House had decided in Benham v. Gambling [1941] A.C. 157. The relevant line of authority is not that which culminated in Benham v. Gambling but that which had begun with Phillips v. L. & S.W.R. Co. (1879) 5 Q.B.D. 78 and culminated in Roach v. Yates [1938] 1 K.B. 256. If, therefore, attention be directed only to the authorities, I think it may be said that Oliver v. Ashman was wrongly decided, and that the court in that case should have followed its own decision in Roach v. Yates.Your Lordships' House is, however, concerned with the principle of the matter. The principle has been exhaustively discussed in the Australian case of Skelton v. Collins (1965) 115 C.L.R. 94. Windeyer J. (page 129) found it in " the general principle that damages are compensatory ". He thought it flowed from that principle " that anything having a money value " which the plaintiff has lost should be made good in money." He went on: —
" The destruction or diminution of a man's capacity to earn money " can be made good in money,"

And he concluded by saying: -

" I cannot see that damages that flow from the destruction or " diminution of his capacity [to earn] ... are any the less when the " period during which the capacity might have been exercised is " curtailed because the tort cut short his expected span of life."
The same point was made by Streatfeild J. in Pope v. Murphy [1961] 1 Q.B. 222 at page 231:-
" What he has lost is the prospect of earning whatever it was he did " earn from his business over the period of time that he might otherwise, " apart from the accident, have reasonably expected to earn it."
I would add that this line of reasoning is consistent with Lord Blackburn's formulation of the general principle of the law, to which I have already referred: Livingstone v. Rawyards Coal Co., supra.Principle would appear, therefore, to suggest that a plaintiff ought to be entitled to damages for the loss of earnings he could have reasonably expected to have earned during the "lost years". But it has been submitted by the respondents that such a rule, if it be thought socially desirable, requires to be implemented by legislation. It is argued that a judicial graft would entail objectionable consequences—consequences which legislation alone can obviate.There is force in this submission. The major objections are these. First, the plaintiff may have no dependants. Secondly, even if he has dependants, he may have chosen to make a will depriving them of support from his estate. In either event, there would be a windfall for strangers at the expense of the defendant.Thirdly, the plaintiff may be so young (in Oliver v. Ashman he was a boy aged 20 months at the time of the accident) that it is absurd that he should be compensated for future loss of earnings. Fourthly—a point which has weighed with my noble and learned friend, Lord Russell of Killowen—if damages are recoverable for the loss of the prospect of earnings during the lost years, must it not follow that they are also recoverable for loss of other reasonable expectations, e.g. a life interest or an inheritance? Fifthly, what21does compensation mean when it is assessed in respect of a period after death? Sixthly, as my noble and learned friend Lord Wilberforce has pointed out, there is a risk of double recovery in some cases, i.e. of both the estate and the dependants recovering damages for the expected earnings of the lost years.The law is not concerned with how a plaintiff spends the damages awarded to him. The first two objections can, therefore, be said to be irrelevant The second objection is, however, really too serious to be thus summarily rejected. The social justification for reversing the rule in Oliver v. Ashman is that it imposes hardship on dependants. But this justification is undermined if a plaintiff, having recovered damages for his lost future earnings, can thereafter exclude by will his dependants from any share of his estate. To this objection the law provides an answer: his estate will be subject to the right of dependants for whom no or no sufficient provision has been made to apply for provision under the Inheritance (Provision for Family Dependants) Act, 1975.The third objection will be taken care of in the ordinary course of litigation: a measurable and not too remote loss has to be proved before it can enter into the assessment of damages.The fourth " objectionable consequence" does not seem to me objectionable. I agree with the Law Commission, where in para. 90 of Law Com. 56 they say
" There seems to be no justification in principle for discrimination " between deprivation of earning capacity and deprivation of the " capacity otherwise to receive economic benefits. The loss must be " regarded as a loss of the plaintiff; and it is a loss caused by the " tort even though it relates to moneys which the injured person will " not receive because of his premature death. No question of the " remoteness of damage arises other than the application of the " ordinary forseeability test."
For myself, as at present advised (for the point does not arise for decision and has not been argued), I would allow a plaintiff to recover damages for the loss of his financial expectations during the lost years provided always the loss was not too remote.There is, it has to be confessed, no completely satisfying answer to the fifth objection. But it does not, I suggest, make it unjust that such damages should be awarded. The plaintiff has lost the earnings and the opportunity, which, while he was living, he valued, of employing them as he would have thought best. Whether a man's ambition be to build up a fortune, to provide for his family, or to spend his money upon good causes or merely a pleasurable existence, loss of the means to do so is a genuine financial loss. The logical and philosophical difficulties of compensating a man for a loss arising after his death emerge only if one treats the loss as a non-pecuniary loss—which to some extent it is. But it is also a pecuniary loss—the money would have been his to deal with as he chose, had he lived.The sixth objection appears to me unavoidable, though further argument and analysis in a case in which the point arose for decision might lead to a judicial solution which was satisfactory. But I suspect that the point will need legislation. However, if one must choose between a law which in some cases will deprive dependants of their dependency through the chances of life and litigation and a law which, in avoiding such a deprival, will entail in some cases both the estate and the dependants recovering damages in respect of the lost years, I find the latter to be the lesser evil.I conclude, therefore, that damages for loss of future earnings (and future expectations) during the lost years are recoverable, where the facts are such that the loss is not too remote to be measurable. But I think, for the reasons given by Lord Wilberforce, Lord Salmon and Lord Edmund-Davies, that a plaintiff (or his estate) should not recover more than that which would have remained at his disposal after meeting his own living expenses.22(2) Damages for pain, suffering, and loss of amenities The Court of Appeal thought that the sum (£7,000) awarded by the judge

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

said

" Although I well appreciate the care which the judge gave to this " case, it seems to me that there is one feature which the judge did " not take into account sufficiently, and that is the distress which " Mr. Pickett must have suffered knowing that his widow and " dependants would be left without him to care for them. I think we " ought to take this distress into account. Taking it into account, it " seems to me that we can properly increase the figure given by the " judge to the sum of £10,000. This seems itself all too little; but, as " I have said, with the law as it now stands, I do not think it is open " to the court to increase it further because no compensation is at the " moment available for loss of earnings during the ' lost years '."
My Lords,I have to say that I think that in this passage the Master of the Rolls was influenced—understandably, if I may respectfully say so,—by the pitifully small sum available to the plaintiff as damages for loss of future earnings under the law which bound the judge and the Court of Appeal. The distress suffered by Mr. Pickett knowing that his widow and children would be left without him to care for them was an element in his suffering for which I agree Mr. Pickett was entitled to fair compensation. But it would be bad law if this element of non-pecuniary damage should be used to make good in whole or in part the loss of earnings during the " lost " years ", which under the law as it stood when this case was before the Court of Appeal were not recoverable as damages. I am far from being persuaded that the judge failed to take into account this element of Mr. Pickett's suffering. The Master of the Rolls in the passage which I have quoted paid his tribute to the care which the judge gave the case. Lord Justice Lawton hesitated before differing from the judge. He said:
" My reason for having some hesitation is that it is manifest that he " approached the matter of the assessment of damages on the right lines."
I respectfully agree. In the course of an eloquent passage in his judgment describing Mr. Pickett's pain and suffering, the trial

judge said:

" He has, according to his evidence, no precise knowledge of what " the future holds for him, but he must be aware—I am certain that " he is aware—that it is a very limited future. It may be that he will " become aware of the position so far as the future is concerned. " Although he has been kept out of Court, it is unfortunately impossible " to guarantee that that fact will not be communicated to him in some " way. I am satisfied that it is right that the Court should bear in " mind the possibility; indeed, I would rate it as a probability."
And he summed it all up when he said that he had endeavoured to take into account " all the features of the tragic situation in which Mr. Pickett " finds himself." It is not possible, therefore, to fault the judge's approach to the assessment of general damages.It is not the function of an appellate court to substitute its opinion for that of the trial judge. Lord Wright stated the general principle in a well-known passage in his speech in Davies v. Powell Duffryn Associated Collieries Ltd. supra at page 617:
" In effect the court, before it interferes with an award of damages, " should be satisfied that the judge has acted on a wrong principle of " law, or has misapprehended the facts, or has for these or other reasons " made a wholly erroneous estimate of the damage suffered. It is not " enough that there is a balance of opinion or preference. The scale " must go down heavily against the figure attacked if the appellate court " is to interfere, whether on the ground of excess or insufficiency."
The trial judge correctly apprehended the facts, and adopted the correct approach in law. Though to some the award of £7,000 may seem low, it is not so low as to support the inference that the judge's estimate was wholly23erroneous. In a task as imprecise and immeasurable as the award of damages for non-pecuniary loss, a preference for £10,000 over £7,000 is a matter of opinion, but not by itself evidence of error. I would, therefore, allow the cross-appeal and restore the judge's award of £7,000 general damages.

(3) Interest

In Cookson v. Knowles [1978} 2 A11.E.R.604 your Lordships' House has recently reviewed the guidelines for the exercise of the court's discretion in awarding interest upon damages in fatal accident cases. The House expressly left open the question of interest upon damages for non-pecuniary loss in a personal injury action. My noble and learned friend, Lord Diplock, con- cluded his speech with these words:
" The question of damages for non-economic loss, which bulks large " in personal injury actions, however, does not arise in the instant case. " It has not been argued before your Lordships and I refrain from " expressing any view about it."
When, however, that case was in the Court of Appeal, [19771 3 W.L.R.279, the court did deal, obiter, with interest upon damages for non-pecuniary loss awarded to a living plaintiff in a personal injury case. The Master of the Rolls, delivering the judgment of the court, said (page 283H):
" In Jefford v. Gee [1970] 2 QB 130 . 151, we said that, in personal " injury cases, when a lump sum is awarded for pain and suffering and " loss of amenities, interest should run ' from the date of service of the " ' writ to the date of trial.' At that time inflation did not stare us in " the face. We had not in mind continuing inflation and its effect on " awards. It is obvious now that that guide-line should be changed. " The courts invariably assess the lump sum on the ' scale' for figures " current at the date of the trial—which is much higher than the figure " current at the date of the injury or at the date of the writ. The " plaintiff thus stands to gain by the delay in bringing the case to trial. " He ought not to gain still more by having interest from the date of " service of the writ. We would alter the guide-line, therefore, by " suggesting that no interest should be awarded on the lump sum " awarded at the trial for pain and suffering and loss of amenities."
In the instant case the Court of Appeal has followed its dictum, disallowing the interest granted by the judge on the damages for pain and suffering. My Lords, I believe the reasoning of the Court of Appeal to be unsound on this point. It is based upon a fallacy; and is inconsistent with the statute.First, the fallacy. It is assumed that because the award of damages made at trial is greater, in monetary terms, than it would have been, had damages been assessed at date of service of writ, the award is greater in terms of real value. There is here a complete non sequitur. The cash awarded is more, because the value of cash, i.e. its purchasing power, has diminished. In theory the higher award at trial has the same purchasing power as the lower award which would have been made at the date of the service of the writ: in truth, of course, judicial awards of damages follow, but rarely keep pace with, inflation so that in all probability the sum awarded at trial is less, in terms of real value, than would have been awarded at the earlier date. In theory, therefore, and to some extent in practice, inflation is taken care of by increasing the number of money units in the award so that the real value of the loss is met. The loss, for which interest is given, is quite distinct, and not covered by this increase. It is the loss which is suffered by being kept out of money to which one is entitled.Secondly, the statute. Section 22. Administration of Justice Act 1969, amending section 3. Law Reform (Miscellaneous Provisions) Act 1934, pro- vides that the court shall (my emphasis) exercise its power to award interest on damages, or on such part of the damages as the court considers appro- priate, " unless the court is satisfied that there are special reasons why no " interest should be given in respect of those damages." Such is the general24rule laid down by the statute, which does, however, confer upon the court a discretion as to the period for which interest is given and also permits differing rates. Nothing can be clearer than the duty placed upon the court to give interest in the absence of special reasons for giving none. Inflation is an economic and financial condition of general application in our society. Its impact upon this plaintiff has been neither more nor less than upon everybody else: there is nothing special about it.For these reasons I think the Court of Appeal erred in refusing to allow interest on the award of damages for non-pecuniary loss. I would reinstate the judge's award.In conclusion, I agree that the appeal and cross-appeal should both be allowed and that the order proposed by my noble and learned friend. Lord Wilberforce should be made. I also agree with the order as to costs which he has proposed.311031 Dd 353246 160 10/78

order

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