Hunt v Severs [1994] UKHL 4

House of Lords
Between
HuntAppellantSeversRespondent
Before
Lord Keith of KinkelDate 28 April 1994
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 12th day of May 1993 complained of in the said Appeal be, and the same is hereby, Set Aside and that the Order of Mr. Latham Q.C. (sitting as a Deputy High Court Judge) of the 15th day of April 1992 be, and the same is hereby, so Varied that the amount of damages be reduced by £89,936: And it is further Ordered. That the Respondent do pay or cause to be paid to the said Appellant the Costs incurred by him in the Court of Appeal and in respect of the said Appeal to this House, the total amount thereof not to exceed £20,000 and the amount of such Costs in this House to be certified by the Clerk of the Parliaments if not agreed between the parties: And it is also further Ordered. That the costs of the Respondent be taxed in accordance with the Legal Aid Act 1988: And it is also further Ordered. That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice to do therein as shall be just and consistent with this Judgment.Cler: Parliamentor:

Judgment: 28 April 1994

HOUSE OF LORDS

HUNT (NOW SEVERS) (A.P.) (RESPONDENT)

v.

SEVERS (APPELLANT)

Lord Keith Lord Bridge of Harwich Lord Jauncey of Tullichettle Lord Browne-Wilkinson Lord Nolan

LORD KEITH OF KINKEL

My Lords,For the reasons given in the speech prepared by my noble and learned friend, Lord Bridge of Harwich, which I have read in draft and with which I agree, I would allow this appeal and make the order he proposes.

LORD BRIDGE OF HARWICH

My Lords,A plaintiff who establishes a claim for damages for personal injury is entitled in English law to recover as part of those damages the reasonable value of services rendered to him gratuitously by a relative or friend in the provision of nursing care or domestic assistance of the kind rendered necessary by the injuries the plaintiff has suffered. The major issue which arises for determination in this appeal is whether the law will sustain such a claim in respect of gratuitous services in the case where the voluntary carer is the tortfeasor himself.The plaintiff was gravely injured on 14 September 1985 in a road accident in France when she was riding on the pillion of a motorcycle driven by the defendant. She was then 22 years of age. The defendant's liability in negligence has never been in dispute. The plaintiffs injuries caused paraplegia and unhappily she suffered many complications. The two doctors called by the plaintiff and the defendant at the trial agreed that, in terms of complications, she was the worst paraplegic case they had come across. She spent long periods in various hospitals, but whenever she was not in hospital

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she and the defendant were living together and in November 1990 they were married.The action was tried in April 1992 by Mr. David Latham Q.C., sitting as a deputy judge of the Queen's Bench Division. He delivered judgment on 15 April 1992 awarding the plaintiff a total sum of £617,004 made up as follows:

General damages for pain and suffering and loss of amenity

90,000

Special damages

90,094

Future loss

412,104

Interest on general damages

6,588

Interest on special damages

18,218

£617,004

Included in the award of special damages was a sum of £4,429 representing the defendant's travelling expenses incurred in visiting the plaintiff while she was in hospital and a sum of £17,000 representing the value of the past services rendered by the defendant in caring for the plaintiff when she was at home. Included in the award for future loss was a sum of £60,000 representing the estimated value of the services which would be rendered by the defendant in caring for the plaintiff in future. The basis on which the judge approached the assessment of the several elements which went to make up the plaintiff's estimated future loss, subject to a number of detailed adjustments which it is unnecessary for present purposes to examine, was to apply a multiplier of 14 to the estimated future annual losses.The defendant appealed against the inclusion in the award of the sums in respect of the defendant's travelling expenses and care for the plaintiff. The plaintiff cross-appealed on various grounds. The Court of Appeal (Sir Thomas Bingham M.R., Staughton and Waite L.JJ.), in a reserved judgment delivered on 12 May 1993 [1993] Q.B. 815, dismissed the defendant's appeal and allowed the plaintiffs cross appeal to the extent of substituting 15 for 14 as the appropriate multiplier to be used in calculating future loss which, taking account of the detailed adjustments referred to, had the effect of increasing the total award of damages by £20,013.The defendant now appeals by leave of the Court of Appeal to your Lordships' House. Three issues arise for decision. The first relates to the award in respect of the defendant's travelling expenses, the second to that in respect of his past and future care of the plaintiff, the third to the Court of Appeal's increase in the judge's award. The first two issues are theoretically

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distinct, but I propose to address them together. There is no dispute that the defendant's visits to the plaintiff in hospital made a valuable and important contribution to her general well-being and were calculated to assist her recovery from the devastating consequences of the accident. But for the fact that the defendant was himself the tortfeasor, the propriety of the award under this head would be no more open to question than the award for his services as a voluntary carer. Accordingly, it seems to me that both these issues must depend upon the same considerations of principle. The third issue is, of course, quite distinct and I will consider it later.The trial

judge said of the claims now in dispute:

"It is said that these sums are irrecoverable, that they represent in effect a benefit to the defendant himself, that in so far as they reflect a loss on the plaintiff's part it has been made good by the defendant so that there is in truth no loss, and that if the incidence of insurance is put on one side it can be seen that the claim is misconceived. However, in my judgment this ignores the basis upon which the claim is made. It is merely a notional monetary figure placed on the true nature of the loss for which she is entitled to compensation. This loss is the need she now has by reason of the accident for care and support which she did not have before. This follows from the analysis of the legal basis of such claims by Megaw L.J. in Donnelly v. Joyce [1974] 1 Q.B. 454 at p. 462. The valuation of this need remains a difficult exercise. In Housecraft v. Burnett [1986] 1 All ER 332 , O'Connor L.J. made it clear that when provided by unpaid carers there remains a value to be placed on it. In my view that remains so whether provided by the tortfeasor or not. He may give his care and response to the need, but that does not make good the loss, otherwise there will be no sustainable claim in any case where the need has apparently been 'met' by unpaid carers."
In the Court of Appeal the judgment of Megaw L.J. in Donnelly v . Joyce [1974] QB 454 again provided the main foundation for the court's reasoning. Having examined this and other authorities, Sir Thomas Bingham M.R., delivering the judgment of the court, expressed their conclusion, at [1993] Q.B. 831, as follows:
"Where services are voluntarily rendered by a tortfeasor in caring for the plaintiff from motives of affection or duty they should in our opinion be regarded as in the same category as services rendered voluntarily by a third party, or charitable gifts, or insurance payments. They are adventitious benefits, which for policy reasons are not to be regarded as diminishing the plaintiff's loss. On the facts of the present case the judge's decision was not in our view contrary to principle or authority and it was fortified by what we regard as compelling considerations of public policy. We consider that he reached the right conclusion and would accordingly dismiss the defendant's appeal."

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The starting point for any inquiry into the measure of damages which an injured plaintiff is entitled to recover is the recognition that damages in the tort of negligence are purely compensatory. He should recover from the tortfeasor no more and no less than he has lost. Difficult questions may arise when the plaintiff's injuries attract benefits from third parties. According to their nature these may or may not be taken into account as reducing the tortfeasor's liability. The two well-established categories of receipt which are to be ignored in assessing damages are the fruits of insurance which the plaintiff himself has provided against the contingency causing his injuries (which may or may not lead to a claim by the insurer as subrogated to the rights of the plaintiff) and the fruits of the benevolence of third panics motivated by sympathy for the plaintiff's misfortune. The policy considerations which underlie these two apparent exceptions to the rule against double recovery are, I think, well understood: see, for example, Parry v. Cleaver [1970] AC 1 , 14 and Hussain v. New Taplow Paper Mills Ltd. [1988] A.C. 514, 528. But I find it difficult to see what considerations of public policy can justify a requirement that the tortfeasor himself should compensate the plaintiff twice over for the self same loss. If the loss in question is a direct pecuniary loss (e.g. loss of wages), Hussain's case is clear authority that the defendant employer, as the tortfeasor who makes good the loss either voluntarily or contractually, thereby mitigates his liability in damages pro tanto. The Court of Appeal, in the judgment appealed from, readily accepted a number of examples advanced in argument for the appellant defendant as showing that a tortfeasor may mitigate his liability by making good in kind the physical damage which his tort has caused to the plaintiffs property. In a wide-ranging argument before your Lordships, where many hypothetical examples were examined of gratuitous services rendered by a tortfeasor to an injured plaintiff in satisfaction of a need occasioned by his ton, Mr. McGregor, for the respondent plaintiff, was constrained to accept as a general rule that the tortfeasor, having provided those services, cannot also be held liable to the plaintiff in damages for their value. But he submitted that where the tortfeasor is a relative or close friend of the plaintiff and gratuitously provides services of an intimate personal or domestic character, he is required by law, as a narrow exception to the general rule, also to pay the plaintiff the value of those services.The law with respect to the services of a third party who provides voluntary care for a tortiously injured plaintiff has developed somewhat erratically in England. The voluntary carer has no cause of action of his own against the tortfeasor. The justice of allowing the injured plaintiff to recover the value of the services so that he may recompense the voluntary carer has been generally recognised, but there has been difficulty in articulating a consistent juridical principle to justify this result.In Roach v . Yates [1938] 1 K.B. 256 the injured plaintiff needed to be cared for day and night and his wife and sister-in-law both gave up their employment to provide that care for him and together lost wages of £3 a week. A claim for the value of their services at £3 a week was included in

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the special damages claimed and a similar claim made as an element in general damages related to future loss. The services were given voluntarily but the plaintiff was held entitled to recover in respect of them. Referring to the nursing services required by the plaintiff, Greer L.J. said, at p. 263:
"He can get those services, and perhaps get them better than in any other way, from the attendance which is being given to him by his wife and his sister-in-law; but he would naturally feel that he ought to compensate them for what they have lost by giving up the work at which they were earning the sum of £3 a week. I think that Mr. Beyfus was right in saying that we must take into account, at any rate for the period during which the plaintiff may now be expected to live, the sum of £3 a week as the minimum expense which the plaintiff would have to incur in retaining the nursing services of his wife and his sister-in-law."
In Schneider v. Eisovitch [1960] 2 Q.B. 430, the plaintiff and her husband were involved in a road accident in France in which the plaintiff was injured and the husband killed. The plaintiffs brother-in-law and his wife voluntarily flew out to France to assist the plaintiff back to England and to arrange the return of the husband's body for burial. The plaintiff claimed their expenses as part of her damages. Paull J. said with respect to this claim, at p. 440:
"Before such a sum can be recovered the plaintiff must show first that the services rendered were reasonably necessary as a consequence of the tortfeasor's tort; secondly, that the out-of-pocket expenses of the friend or friends who rendered these services are reasonable, bearing in mind all the circumstances including whether expenses would have been incurred had the friend or friends not assisted; and, thirdly, that the plaintiff undertakes to pay the sum awarded to the friend or friends."
In the event Paull J. held that these conditions were satisfied and that the plaintiff was entitled to recover.In Wattson v. Port of London Authority [1969] 1 Lloyd's Rep. 95, the plaintiffs wife had for a period given up her work and consequently lost earnings in order to look after her injured husband. Megaw J. held that the wife's loss was properly included in the husband's damages. Referring to the fact that there had been no contract between husband and wife with respect to her services in caring for him, Megaw J. said, at p. 102:
"That is not how human beings work and it would, in my judgment - and I say this because I think it ought to be said - be a blot on the law if the law were to be such that a wife who in these circumstances had held her husband to make a contract to repay her he should recover damages for that amount; but if she behaves like an ordinary decent

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human being and does not put construction upon the act of that service, there is financial disadvantage to the plaintiff as a result. In my judgment, this position is covered in substance in the judgment of Mr. Justice Paull in the case of Schneider v. Eisovitch [1960] 2 Q.B. 430. The essence of the judgment appears at p. 440, and in this case I do not think it matters that there is no firm undertaking on the part of the plaintiff that if he is awarded this sum ... he will repay that money to his wife."In the cases of Cunningham v. Harrison [1973] Q.B. 942 and Donnelly v. Joyce [1974] QB 454 judgments were delivered by different divisions of the Court of Appeal on successive days. In Cunningham the wife of a severely disabled plaintiff, who had initially looked after him, had died before the trial. Lord Denning M.R. said, at pp. 951-952:
"Before dealing with [the claim for future nursing expenses] I would like to consider what the position would have been if the wife had not died and had continued to look after her husband, as she had been doing. The plaintiff's advisers seem to have thought that a husband could not claim for the nursing services rendered by a wife unless the husband was legally bound to pay her for them. So, on their advice on July 11, 1972, an agreement was signed whereby the husband agreed to pay his wife £2,000 per annum in respect of her nursing services. We were told that such advice is often given by counsel in such cases as these when advising on evidence. I know the reason why such advice is given. It is because it has been said in some cases that a plaintiff can only recover for services rendered to him when he was legally liable to pay for them: see for instance Kirkham v. Boughey [1958] 2 Q.B. 338, 342 and Janney v. Gentry (1966) 110 S.J. 408. But, I think that view is much too narrow. It seems to me that when a husband is grievously injured - and is entitled to damages - then it is only right and just that, if his wife renders services to him. instead of a nurse, he should recover compensation for the value of the services that his wife has rendered. It should not be necessary to draw up a legal agreement for them. On recovering such an amount, the husband should hold it on trust for her and pay it over to her. She cannot herself sue the wrongdoer ... but she has rendered services necessitated by the wrong-doing, and should be compensated for it. If she had given up paid work to look after him, he would clearly have been entitled to recover on her behalf; because the family income would have dropped by so much: see Wattson v. Port of London Authority [1969] 1 Lloyd's Rep. 95, 102, per Megaw J. Even though she had not been doing paid work but only domestic duties in the house, nevertheless all extra attendance on him certainly calls for compensation."

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In Donnelly v. Joyce, the injured plaintiff was a boy of six. His mother gave up her work for a period to provide necessary care for him and the disputed item in his claim related to the mother's loss of wages. The judgment of the court delivered by Megaw L.J. contains a lengthy review of the authorities, but the key passage relied on by the trial

judge and the Court of Appeal in the instant case is at [1974] Q.B. 461-462 and reads as follows:

"We do not agree with the proposition, inherent in Mr. Hamilton's submission, that the plaintiff's claim, in circumstances such as the present, is properly to be regarded as being, to use his phrase, "in relation to someone else's loss," merely because someone else has provided to, or for the benefit of, the plaintiff - the injured person - the money, or the services to be valued as money, to provide for needs of the plaintiff directly caused by the defendant's wrongdoing. The loss is the plaintiffs loss. The question from what source the plaintiffs needs have been met, the question who has paid the money or given the services, the question whether or not the plaintiff is or is not under a legal or moral liability to repay, are, so far as the defendant and his liability are concerned, all irrelevant. The plaintiffs loss, to take this present case, is not the expenditure of money to buy the special boots or to pay for the nursing attention. His loss is the existence of the need for those special boots or for those nursing services, the value of which for purposes of damages - for the purpose of the ascertainment of the amount of his loss - is the proper and reasonable cost of supplying those needs. That, in our judgment, is the key to the problem. So far as the defendant is concerned, the loss is not someone else's loss. It is the plaintiffs loss.
"Hence it does not matter, so far as the defendant's liability to the plaintiff is concerned, whether the needs have been supplied by the plaintiff out of his own pocket or by a charitable contribution to him from some other person whom we shall call the 'provider'; it does not matter, for that purpose, whether the plaintiff has a legal liability, absolute or conditional, to repay to the provider what he has received, because of the general law or because of some private agreement between himself and the provider; it does not matter whether he has a moral obligation, however ascertained or defined, so to do. The question of legal liability to reimburse the provider may be very relevant to the question of the legal right of the provider to recover from the plaintiff. That may depend on the nature of the liability imposed by the general law or the particular agreement. But it is not a matter which affects the right of the plaintiff against the wrongdoer."
With respect, I do not find this reasoning convincing. I accept that the basis of a plaintiffs claim for damages may consist in his need for services but I cannot accept that the question from what source that need has been met is irrelevant. If an injured plaintiff is treated in hospital as a private patient he is entitled to recover the cost of that treatment. But if he receives free

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treatment under the National Health Service, his need has been met without cost to him and he cannot claim the cost of the treatment from the tortfeasor. So it cannot, I think, be right to say that in all cases the plaintiffs loss is "for the purpose of damages ... the proper and reasonable cost of supplying [his] needs".In Scotland the law on this subject has developed differently. In Edgar v. Postmaster General 1965 S.L.T. 158 it was held by a majority of the Inner House of the Court of Session that the injured pursuer's averment that his accident had caused his wife to give up work to look after him and thereby lose wages was irrelevant. Having pointed out that the wife, not being a party to the action, could not recover the loss, the Lord President (Lord Clyde) continued at p. 160:
"If, on the other hand, the averment is intended to form the basis for a claim for domestic assistance for which the pursuer would have had to pay if he had not been able to secure it gratuitously the claim is, in my opinion, an irrelevant one. It would have been another matter altogether if the pursuer had actually paid some third party, or had entered into a contract to pay some third party for this domestic assistance. It could then have formed a relevant item in his claim for damages. But if the assistance which he got was given gratuitously and there is no undertaking or understanding by him to pay for it (and that is the situation in the present case) then I am quite unable to see how he can claim to be reimbursed for a payment he has not and cannot be compelled to make. In Scotland, damages necessarily involves a loss either actual or prospective, and the plain fact of the matter is that the pursuer has sustained no such loss at all in regard to this item."
The difference in this regard between Scottish and English law was examined by the Scottish Law Commission in their report in 1978 (Scot. Law Com. No. 51). In paragraph 20 they adopted the view that "the value of the services of persons who have assisted the injured person should be recoverable by the latter in his action against the wrongdoer" but considered that "the principle should only apply as between members of the injured person's family group or circle". In paragraph 22 they criticised the reasoning used in the judgment of Megaw L.J. in Donnelly v. Joyce in the following terms:
"In cases where services have been rendered gratuitously to an injured person, it is artificial to regard that person as having suffered a net loss in the events which happened. The loss is in fact sustained by the person rendering the services, a point vividly illustrated in cases where he has lost earnings in the course of rendering those services. We suggest, therefore, that it is wrong in principle, in cases where services have been rendered gratuitously by another to an injured person, to regard the latter as having in fact suffered a net loss."

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They concluded at paragraph 23:
"... that it would be right to devise an approach which will enable the injured person to recover in his own action the value of services which have been rendered to him by relatives but which would, at the same time, enable the relative to recover, if he so wished, the value of these services from the injured person."
The Commission's recommendations in this respect were implemented by Part II of the Administration of Justice Act 1982, which applies to damages for personal injuries in Scotland and which by section 8 provides:
"8-(l) Where necessary services have been rendered to the injured person by a relative in consequence of the injuries in question, then, unless the relative has expressly agreed in the knowledge that an action for damages has been raised or is in contemplation that no payment should be made in respect of those services, the responsible person shall be liable to pay to the injured person by way of damages such sum as represents reasonable remuneration for those services and repayment of reasonable expenses incurred in connection therewith.
"(2) The relative shall have no direct right of action in delict against the responsible person in respect of the services or expenses referred to in this section, but the injured person shall be under an obligation to account to the relative for any damages recovered from the responsible person under this section."
An elaborate definition of "relative" in section 13(1), which I need not here set out, implements the Commission's recommendation that this provision should apply only if the person rendering the services and the injured person belong to the same "family group or circle".Thus, in both England and Scotland the law now ensures that an injured plaintiff may recover the reasonable value of gratuitous services rendered to him by way of voluntary care by a member of his family. Differences between the English common law route and the Scottish statutory route to this conclusion are, I think, rarely likely to be of practical importance, since in most cases the sum recovered will simply go to swell the family income. But it is nevertheless important to recognise that the underlying rationale of the English law, as all the cases before Donnelly demonstrate, is to enable the voluntary carer to receive proper recompense for his or her services and I would think it appropriate for the House to take the opportunity so far as possible to bring the law of the two countries into accord by adopting the view of Lord Denning M.R. in Cunningham v. Harrison that in England the injured plaintiff who recovers damages under this head should hold them on trust for the voluntary carer.

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By concentrating on the plaintiff's need and the plaintiffs loss as the basis of an award in respect of voluntary care received by the plaintiff, the reasoning in Donnelly diverts attention from the award's central objective of compensating the voluntary carer. Once this is recognised it becomes evident that there can be no ground in public policy or otherwise for requiring the tortfeasor to pay to the plaintiff, in respect of the services which he himself has rendered, a sum of money which the plaintiff must then repay to him. If the present case had been brought in Scotland and the claim in respect of the tortfeasor's services made in reliance on section 8 of the Administration of Justice Act 1982, it would have been immediately obvious that such a claim was not sustainable.The case for the respondent plaintiff was argued in the Court of Appeal without reference to the circumstance that the defendant's liability was covered by insurance. But before your Lordships Mr. McGregor, recognising the difficulty of formulating any principle of public policy which could justify recovery against the tortfeasor who has to pay out of his own pocket, advanced the bold proposition that such a policy could be founded on the liability of insurers to meet the claim. Exploration of the implications of this proposition in argument revealed the many difficulties which it encounters. But I do not think it necessary to examine these in detail. The short answer, in my judgment, to Mr. McGregor's contention is that its acceptance would represent a novel and radical departure in the law of a kind which only the legislature may properly effect. At common law the circumstance that a defendant is contractually indemnified by a third party against a particular legal liability can have no relevance whatever to the measure of that liability.I add a short postscript with reference to a number of Australian authorities which were helpfully drawn to your Lordships' attention. The decision of the High Court of Australia in Griffiths v. Kerkemeyer (1977) 139 C.L.R. 161, adopts in substance what I may call the principle of Donnelly v . Joyce. Since then there has been a significant number of Australian decisions, both reported and unreported, rejecting claims by injured plaintiffs to recover the value of gratuitous services rendered to them by defendants. The reported decisions to this effect by single judges are: G owling v. Mercantile Mutual Insurance Co. Ltd. and Gowling [1980] 24 S.A.S.R. 321; Jones v . Jones [1982] Tas.R. 282; Gutkin v. Gutkin [1983] 2 Qd.R. 764; and Maan v. Westbrook [1988] 2 Qd.R. 267. To the like effect are the decisions of the Full Court of the Supreme Court of Western Australia in Snape v. Reid (1984) Aust. Torts Reports, 80-620; and of the Full Court of the Supreme Court of Tasmania in Motor Accidents Insurance Board v. Pulford (1993) Aust. Torts Reports, 81-235. The only contrary decision is that of the Court of Appeal of New South Wales in Lynch v. Lynch [1991] 25 N.S.W.L.R. 411. In this case the Court's reasoning was expressly related to the circumstance that the claim arose out of an accident which was the subject of a particular statutory compulsory insurance scheme. I do not think it would be helpful to encumber this opinion with a detailed examination of the case. I am content to say that

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I agree with the criticism of the decision by the Full Court of the Supreme Court of Tasmania in Motor Accidents Insurance Board v. Pulford, who declined to follow it.I turn to the separate issue relating to the appropriate multiplier to be applied in relation to the several elements of the plaintiff's future loss. Both doctors who gave evidence at the trial estimated the plaintiff's expectation of life at 25 years. It is clear from the relevant passages of their evidence that these estimates were related solely to the plaintiff's medical condition and that there was no suggestion that the doctors had approached the problem actuarially or assessed the effect of other contingencies on the plaintiffs life expectancy. The trial

judge said:

"For the future, the first question is the appropriate multiplier. With an expectation of life of 25 years from today the right multiplier is, in my judgement, 14. This is slightly lower than the 14.82 which is produced from the 4.5 per cent. discount table, but is in line with what has to be described as a spread of multipliers to be gleaned from the decisions recorded in Kemp & Kemp. This will therefore be the appropriate multiplier for all those items in respect of which life expectancy is relevant."
The table that the judge is referring to is that showing the present value of a payment of £1 per annum for 25 years discounted at 4 1/2 per cent. as £14.82821.In the Court of Appeal the argument for the plaintiff that the multiplier should be increased from 14 to 15 was based largely on the table which appears in Kemp & Kemp vol. 1, p. 8028, headed "Multipliers for loss of earnings to pension age 60 (Females)" with the subheading "Multiplier calculated with allowance for population mortality and rate of interest of" followed by a number of columns headed with different interest rates. The column applicable to a rate of interest of 4 1/2 per cent. shows the appropriate multiplier for a woman aged 35 at date of trial as 14.8. Referring to the Kemp & Kemp tables, of which this is one, the Court of Appeal said at [1993] Q.B. 841:
"They contain, as the heading shows, 'allowance for population mortality.' In other words, as it seems to us, there may be some allowance for the contingency that the beneficiary of future payments may not live long enough to receive them. Such an allowance is not appropriate in the present case, where the agreed life expectancy of the plaintiff is 25 years. That is a fact, or rather an agreed assumption, upon which the damages payable for future care must be based. The Kemp & Kemp table could be too favourable to the defendant, if used for that purpose.

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"What we need is a simple arithmetical calculation of the present value of future payments. Counsel have provided us with a table. It shows that the present value of £1 per annum payable for the next 25 years, discounted at 4.5 per cent., is £14.82821. That is very little different from the figure in the Kemp & Kemp table, which shows that the allowance for mortality must be very small. It would suggest a multiplier of 15. Accordingly we think it right to substitute the multiplier of 15 which Mr. McGregor contends for in the calculation of future costs of care."
Subject to the same adjustments as had been made by the trial judge, the Court of Appeal applied the same reasoning to increase the multiplier in relation to future loss of earnings.The assessment of damages is not and never can be an exact science. There are too many imponderables. For this reason, the courts have been traditionally mistrustful of reliance on actuarial tables as the primary basis of calculation, approving their use only as a check on assessments arrived at by the familiar conventional methods; see, for example, Taylor v. O'Connor [1971] A.C. 115, per Lord Pearson at p. 140E-H. We are told by counsel that the practice has changed in recent years and that actuarial tables tend to figure more prominently in the evidence on which courts rely. This may well be so. But before a judge's assessment of the appropriate multiplier for future loss, which he has arrived at by the conventional method of assessment and which is not attacked as being wrong in principle, can properly be adjusted by an appellate court by reference to actuarial calculations, it is essential, in my judgment, that the particular calculation relied on should be precisely in point and should be seen as demonstrably giving a more accurate assessment than the figure used by the judge.The passage I have cited from the judgment of the Court of Appeal appears to show the court as treating the circumstance that both doctors in evidence estimated the plaintiff's expectation of life at 25 years as establishing the "fact" or "assumption" that she would live for 25 years and thus converting the process of assessing future loss into "a simple arithmetical calculation." I cannot think that this was a correct approach to the evidence. A man or woman in normal health, at a given age, no doubt has an ascertainable statistical life expectancy. But in using such a figure as the basis for assessment of damages with respect to future losses, some discount in respect of life's manifold contingencies is invariably made. Moreover, when the Court of Appeal referred to the Kemp & Kemp table as showing "that the allowance for mortality must be very small," they were not making an appropriate comparison of like with like. The figure of 14.8 taken from the Kemp & Kemp table refers, as already indicated, to a woman of 35 with an average expectation of life. From the Life Table, also set out in Kemp & Kemp, we see that this expectation is 44.6 years. Thus the fact that only a small allowance for mortality is approprate in relation to the average woman's expectation of survival from the age of 35 to the age of 60 cannot be a

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reliable guide to the allowance for mortality appropriate to a severely injured woman aged 29 with a total expectation of life estimated by doctors as no more than 25 years.I can find no fault in the trial judge's decision to take a multiplier of 14 and apply it, subject to the various adjustments he made, in arriving at his award for both the future cost of care and the future loss of earnings. The use of a discount rate of 41/2 per cent. was not and is not disputed. The judge had due regard to the full present value of £1 per annum for 25 years discounted at that rate, but decided, as I think rightly, to take a slightly lower figure which he found to be in line with a spread of multipliers in comparable cases. I do not, with respect, think that the reasoning of the Court of Appeal entitled them to substitute a multiplier of 15 by rounding up the figure taken from the discount table.I would accordingly allow the appeal, set aside the Court of Appeal's order and vary the trial judge's order by reducing the principal award by £81,429 and reducing the award of interest on special damages by so much as represents interest on the sum of £21,429 included in the principal award. In all the circumstances I would think it appropriate that there should be no order for costs in the Court of Appeal or before your Lordships' House.

LORD JAUNCEY OF TULLICHETTLE

My Lords,For the reasons given by my noble and learned friend Lord Bridge of Harwich I too would allow the appeal and make the order that he proposes.

LORD BROWNE-WILKINSON

My Lords,For the reasons given by my noble and learned friend Lord Bridge of Harwich I too would allow the appeal and make the order that he proposes.

LORD NOLAN

My Lords,For the reasons given by my noble and learned friend Lord Bridge of Harwich I too would allow the appeal and make the order that he proposes.

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