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[1966] HCA 14
High Court of Australia
1966-03-07
Kitto J
Original judgment source is linked above.
SKELTON v. COLLINS [1966] HCA 14; (1966) 115 CLR 94
Kitto(1), Taylor(2), Menzies(3), Windeyer(4) and Owen(5) JJ.
Damages - Personal Injuries - Loss of earning capacity - Loss of expectation of life - Loss of amenities during reduced life span - Pain and suffering - Plaintiff rendered permanently unconscious by injuries - Basis of assessment.
Precedent - Decisions of House of Lords - Applicability - High Court - Other Australian courts.
APPEAL from the Supreme Court of Western Australia.
KITTO J. I have had the advantage of reading the judgment prepared by my say at once that I share his Honour's reasons for thinking that the judgment of the Supreme Court should be varied in regard to the amount allowed for the plaintiff's economic loss. What I have to say will relate to the challenge that has been made to the trial Judge's allowance of 1,500 pounds under the head of general damages. He allowed nothing for pain and suffering, either physical or mental; and in this he was plaintly right, for the plaintiff was rendered unconscious by the collision, had remained unconscious ever since, and, as his Honour found, would never regain consciousness. (at p96)
2. There are only two forms of loss for which the 1,500 pounds could have been intended as compensation, namely those which are often described, conveniently if not very happily, as a loss of expectation of life and a loss of amenity during the reduced life span. Each is a matter properly to be taken into account in assessing damages, but judicial opinion as to the way in which the task of allowing for them should be approached has not been unanimous. Obviously each may have a subjective as well as an objective aspect: the plaintiff may not only have sustained the loss itself but may also have to bear a sense of his loss. But the differences of opinion which are to be found in the judgments, in England at least, are not as to whether the objective aspect is to be concentrated upon to the exclusion of the subjective; it is simply as to the manner in which each is to be separately allowed for. Indeed in Flint v. Lovell (1935) 1 KB 354 the question which the Court of Appeal had to decide was whether the loss of expectation of life, considered objectively, might properly be allowed for at all, no one doubting that allowance had to be made for the suffering caused by the knowledge that death had been brought closer. The Court decided that loss of expectation of life, as an objective fact, was a proper head of damages, and assessing tribunals were then faced with a problem that was different in kind from the ordinary run: it is hard enough to fix compensation in money for injuries complained of by living persons; hard enough, for example, to fix an appropriate amount for pain and suffering, including the distress that arises from the knowledge that life has been shortened; but what estimate of life itself do you adopt in order to put a figure on a period of living, objectively considered? And until the House of Lords spoke upon the matter in Benham v. Gambling (1941) AC 157 the answers that were given varied greatly. (at p96)
3. In Benham v. Gambling (1941) AC 157 the injured person was a child of two and a half. He was unconscious from the moment of the accident until his death, which occurred later on the same day. He had acquired at the time of injury a cause of action for loss of expectation of life. Flint v. Lovell (1935) 1 KB 354 had so decided, and in Rose v. Ford (1937) AC 826 the House had approved the decision. By statute the cause of action survived for the benefit of his estate, and his administrator accordingly sued. The subjective aspect of the loss did not have to be allowed for, the child having had not a moment's realization of his loss; but it is implied clearly enough in the judgment of Viscount Simon L. C. that if the child had at any time a sense of loss the damages must have been increased by reason of it under the head of pain and suffering. The sole question was how much should be allowed as compensation for the objective element, the loss of such chance as the child had had, immediately before the accident, of living longer than he did. Should that chance be treated as having been worth much or little, when a judge or jury is trying to find an appropriate sum to award as fair compensation for the loss? It was a chance fraught with uncertainties - uncertainties not only as to how long the child would in fact have lived but also as to what causes for happiness and unhappiness the years would have given him. "The thing to be valued", said the Lord Chancellor in a speech with which all their Lordships concurred, "is not the prospect of length of days, but the prospect of a predominantly happy life . . . The ups and downs of life, its pains and sorrows as well as its joys and pleasures . . . have to be allowed for in the estimate" (1941) AC, at p 166 . The probable circumstances of the life which the injured person would have led, his character and habits, were recognized as relevant if calculated, on balance, to lead him to a positive measure of happiness or unhappiness. Then there is this passage: "I would further lay it down that, in assessing damages for this purpose, the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring him happiness; the test is not subjective and the right sum to award depends on an objective estimate of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not" (1941) AC, at p 167 . (at p97)
4. The emphasis throughout the speech is upon the objective nature of the inquiry that remains when any pain and suffering, physical or mental, have been put aside as being properly the subject of separate allowance. But it is made clear that under the head of loss of expectation of life the inquiry is not as to the value of a mere period of time - "not the prospect of length of days"; it is as to the value of the experiences that would have been lived through but for the injury. When it is said that the right sum to award depends on an objective estimate of the kind of future on earth the victim "might have enjoyed", what is meant, as the immediate context shows, is the kind of total experience the future would have offered the victim, looking at the matter objectively and not concerning oneself with any question as to the amount of pleasure or misery that the victim would have derived in fact from the variety of situations in which he would have found himself. (at p98)
5. The speech, having thus made clear what it is that has to be evaluated when compensation for loss of expectation of life is being considered, lays down the proposition, for the guidance of assessing tribunals and of the courts generally, and therefore as a proposition of law, that under this head of damages very moderate amounts only are allowable. The Lord Chancellor pointed to the extreme difficulty of fixing a solatium for a person who is dead (1941) AC, at p 165 , and to the fact that to put a money value on a prospective balance of future happiness is to attempt to equate incommensurables (1941) AC, at p 168 . Then he said that damages which would be proper for a disabling injury may well be much greater than for deprivation of life (1941) AC, at p 168 . His Lordship was not, I think, saying anything so trite as that the fixing of a sum of money as compensation for what cannot be bought and sold is difficult because of the different natures of the things that are being weighed against one another. What I understand him to be pointing to as the fact which brings in its train a special consequence for a tribunal assessing damages is that, since none can form any opinion as to what would have been the experience through which the victim would have lived if he had not suffered the injury, that which has to be measured against money is not only different from money but cannot itself be known and therefore cannot be measured at all. For this reason it is simply impossible to select any substantial figure as compensation for the loss of years of living (as distinguished from the mental distress due to realization of the loss) and feel any degree of satisfaction with it as fair compensation. This the decision underlined quite dramatically by reducing an award of only 1,200 pounds for the shortening of life to a mere 200 pounds. Speaking of that case later, Lord Pearce described it as having "artificially and drastically limited the liability of defendants in respect of loss of expectation of life" [1963] UKHL 3; (1964) AC 326, at p 369 . With the greatest respect, I feel that there is here a misunderstanding, due perhaps to the fact that Viscount Simon's speech concentrates upon developing the minor premiss. It discusses at some length the true nature of that for which damages are being given in the particular case of loss of expectation of life, and proceeds to the conclusion that an award of more than a small sum cannot be upheld. But the discussion is not intended, I venture to think, as a justification for adopting an artificial rule. Rather is the conclusion a logical deduction from general principle on the footing of what has been explained about the nature of the relevant loss. While it would be erroneous to allow an amount so small as to be illusory - for the presumption is, contra spoliatorem as Lord Devlin was to say in West's Case (1964) AC, at p 363 , that the experiences of life would have been such as to offer some balance of enjoyability - a tribunal which awards under this head a sum running into more than a very few hundred pounds must be failing to perform its function in accordance with law, because it purports to have what it cannot possibly have, namely a satisfaction that the selected sum of money is fair, or reasonable, or appropriate, as compensation for the loss of a balance of enjoyability as to which no man can have any idea whether it would have been great or small. The onus of proof as to damages is, after all, upon the claimant. (at p99)
6. Twenty years later, there came before the Court of Appeal the case of Wise v. Kaye (1962) 1 QB 638 . It resembled the present case in that the plaintiff, having been rendered permanently unconscious by the accident, had never had and would never have any knowledge of her condition. Her expectation of life had been reduced. The trial Judge awarded her 400 pounds for loss of expectation of life and 15,000 pounds for general damages, as well as other sums for items of economic loss. He awarded nothing for pain and suffering, for there had been none and could be none. Accordingly the 400 pounds must have been awarded simply for the objective fact that her life had been shortened, and the 15,000 pounds must have been awarded for the objective fact that she had lost, though she did not know it, the whole of the very good chance she would have had of keeping her faculties during the remaining years of her existence. The defendants contended that the 400 pounds represented a correct application of Benham v. Gambling (1941) AC 157 and therefore could not be challenged, but that the 15,000 pounds was excessive and should be reduced to a fraction of that amount by virtue of the considerations which had led to the decision in Benham v. Gambling (1941) AC 157 . The argument was, in effect, that the plaintiff's loss in respect of the remaining years of her life, like her loss in respect of the years which the accident had cut off from her existence, was simply a loss of experiences capable of yielding a general balance of happiness, and that for want of further information about it an award of so substantial an amount as 15,000 pounds must necessarily be erroneous as purporting to be what it could not be - an amount fixed in exercise of a real judgment and based upon a sense of appropriateness and proportion. (at p100)
7. The Court of Appeal was divided. As Sellers L.J. pointed out (1962) 1 QB, at p 649 , if the plaintiff had been aware that the span of her life would be contracted, and had consequential anxiety, worry, disappointment and distress been possible for her, damages for that would have fallen to be assessed under the claim separately made for pain and suffering, not under the claim for loss of expectation of life, and would therefore have been additional to damages under the latter head. By parity of reasoning, if the plaintiff had had any understanding of her loss of amenity during the years that were left to her, any distress or sense of frustration or disappointment likely to result from that would have had to be compensated for under the separate head of pain and suffering. The 15,000 pounds had to be supported, if at all, as a proper assessment of the compensation to be paid by the defendants for the objective fact of the non-economic loss they had caused the plaintiff in respect of the years she would have lived if the injury had not occurred. The main point of difference between the members of the Court was really as to what ought to be regarded as the subject matter of that loss. Sellers and Upjohn L.JJ. held, in effect, that it was a loss of all the plaintiff's faculties, and that since a loss of some faculties only must have called for a substantial award of damages a loss of all must call for a still larger award. (at p100)
8. Diplock L.J., who dissented, held that the loss to be compensated for was the whole enjoyment of life from the time of the accident to the time when the plaintiff would have died if the accident had not happened; and as that meant a balance of pleasure over pain a small amount only should have been awarded by analogy with Benham v. Gambling (1941) AC 157 . His Lordship, however, if I have correctly understood his judgment, interpreted Benham v. Gambling (1941) AC 157 as having treated the relevant loss as a loss of that balance of happiness which the individual plaintiff would in fact have enjoyed. The other members of the Court, pointing out that if that were so the quantum must be affected by the psychological make-up, the inner resources and so forth, of the plaintiff, which were matters unfit for consideration in an assessment of damages, declined to agree that the relevant inquiry was subjective at all. Though Viscount Simon L.C. in Benham v. Gambling (1941) AC 157 did say that a reasonable figure had to be fixed as damages for "the loss of a measure of prospective happiness" (1941) AC, at p 166 , the whole context shows, I think, that he was speaking of the measure of happiness that the lost years would have offered the plaintiff - which she in this sense "might have enjoyed" - not the measure of happiness which she, with her particular qualities and idiosyncrasies, would in fact have managed to extract from them. If Sellers and Upjohn LJJ. had held that this was the relevant distinction to be observed between the objective and the subjective, one would have had to agree with them, I should think, that the choice of the objective test was correct. Their Lordships, however, held that the loss of a faculty, or of all the faculties, is to be compensated for as a loss of a physical thing, restricting activity or altering the conduct of life, the manner or the extent of living (see per Sellers L.J. (1962) 1 QB, at p 652 ); and, while refusing to inquire "how in any given case it has affected the happiness of the victim", they did not consider the other possibility, that the tribunal ought to inquire, objectively, what opportunities for happiness were lost with the loss of the faculty or faculties. "I know of no authority," said Sellers L.J., "which excludes damages for an injury in itself" (1962) 1 QB, at p 652 . But when a judge directs a jury to give fair compensation for "the bodily injury sustained" (to repeat his Lordship's quotation from the judgment of Lord Cockburn C.J. in Phillips v. South Western Railway Co. (1879) 4 QBD 406, at p 407 ) he surely is telling them to compensate for all that the injury means in the way of diminished opportunities to get out of life what men count as good. True, he is not telling the jury to regulate the damages by reference to the effect which the injury is in fact likely to have upon the particular plaintiff's happiness. But he is directing them to weigh the probable effect of the injury in making the plaintiff's body a less valuable instrument, or unavailable as an instrument, for the attaining of ends which, but for the injury, he might reasonably have been expected to pursue, and so to make an allowance for their estimate of the whole significance of the change in relation to the plaintiff's opportunities for the living of life. (at p101)
9. If this had been given weight in Wise v. Kaye (1962) 1 QB 638 , it seems to me that both the reasoning and the authority of Benham v. Gambling (1941) AC 157 must have led to a decision that where all the faculties are destroyed the loss is of all opportunities of happiness but, being to some indefinable extent off-set by the gain consisting of release from all liability to unhappiness, should be allowed for by a very moderate sum. One need not embrace the general theory of damages which Diplock L.J. propounded to agree with him that the non-economic loss to be compensated for in a case of deprivation of consciousness is not different from the loss to be compensated for in a case of death. What Upjohn L.J. said is true in either case: the plaintiff is "entitled to point on the one side to the active and normal life, with its ups and downs, both valuable, which she had every hope of leading, and on the other to the living death which she will lead for the rest of her life" (1962) 1 QB, at p 662 . But the House of Lords saw this quite clearly in Benham v. Gambling (1941) AC 157 , and it has been fully allowed for where a loss of years of life, or a loss of consciousness for years of life, has been treated as a loss of the whole opportunity of enjoying in those years a balance of happiness - using "happiness", of course, in its most general sense as referring to all kinds of satisfactions, including those which prove how "sweet are the uses of adversity". (at p102)
10. I do not find myself able to put aside Benham v. Gambling (1941) AC 157 as affording no guidance for such a case as the present. It treated of life not as a state of being, a mere physical phenomenon, but as a thing to be lived and lived consciously. Thus, what was meant by every reference to loss of expectation of life was, in truth, loss of the possibility of conscious experience. The whole burden of the Lord Chancellor's speech was the legal impropriety of attempting to place any but the most modest figure on a human being's capacity to experience the varied quality of life; and I cannot bring myself to say that although the law sees the impropriety where a person has died it does not see it where he has lost all capacity for thought and feeling. (at p102)
11. I turn now to the later case in the House of Lords, H. West & Son Ltd. v. Shephard [1963] UKHL 3; (1964) AC 326 , where four of their Lordships interpreted Benham v. Gambling (1941) AC 157 as saying nothing of value for any case save that where the person injured has lost his life. Lord Devlin, who dissented, said: "Although I see no logical distinction at all, I agree that it is open to your Lordships to say that you dislike the Benham v. Gambling (1941) AC 157 principle and will not extend it. But I am unwilling on two grounds to take that rather drastic course. The first is that I think it would introduce a distortion - for your Lordships cannot drive Benham v. Gambling (1941) AC 157 out of the field in which it operates - that would make the law not merely illogical but repugnant to common sense. The second is that although I think that the reasoning in Benham v. Gambling (1941) AC 157 can be criticized, and the figure set may be too small and the uniformity imposed too rigid, it is fundamentally a decision on the right lines" (1964) AC, at pp 361, 362 . So far as this country is concerned, I think that Benham v. Gambling (1941) AC 157 ought to be accepted as prescribing the correct approach in all cases where the matter for which compensation is to be given is, whether by reason of death or not, the fact that the plaintiff has been excluded for a period from the whole of the experiences that make up life. Needless to say, I have earnestly and respectfully attended to the speeches of those of their Lordships who formed the majority of the House, but I venture to comment upon one passage only. Lord Morris said: "An unconscious person will be spared pain and suffering and will not experience the mental anguish which may result from knowledge of what has in life been lost or from knowledge that life has been shortened. The fact of unconsciousness is therefore relevant in respect of and will eliminate those heads or elements of damage which can only exist by being felt or thought or experienced. The fact of unconsciousness does not, however, eliminate the actuality of the deprivations of the ordinary experiences and amenities of life which may be the inevitable result of some physical injury" (1964) AC, at p 349 . What is here said of the fact of unconsciousness may equally be said of the fact of death; but in relation both to death and to unconsciousness surely it is true that what ought to affect the quantum of damages is not the actuality of the deprivations but their value: what would "the ordinary experiences and amenities of life" (in the future) have added up to, if the plaintiff had not been cut off from them? The trouble is not just that the assessment of compensation is difficult; it is that there is simply no way of forming any reliable idea, any "confident estimate" (1941) AC at p 167 , as to what the thing would have been like for which the compensation is to be assessed; and therefore an award so substantial as necessarily to imply that the judge (or jury) has in fact formed such an idea must be unsupportable. This is true, it seems to me, whether the injured person is physically dead or only dead to all experience. (at p103)
12. In the present case, could anyone really regard any figure as fairly proportioned to the closing of the door to experiences the quality of which, individually and on balance, is in the nature of things unknowable? The learned trial Judge did not pretend that he could; and when he nominated 7,000 pounds as the amount which he would have awarded if he had felt obliged to follow Wise v. Kaye (1962) 1 QB 638 he made it clear that he was only adjusting figures that he took from that case and West's Case [1963] UKHL 3; (1964) AC 326 so as to allow for the shortness of the period for which the plaintiff would continue in existence. (at p104)
13. His Honour was in a difficult position. He had before him a decision of the House of Lords which had been widely followed in this country, and another in which a majority of the House expressed views not logically reconcilable, and not put forward by their Lordships as reconcilable, with the first. He decided not to follow the later decision, and I think, if I may say so, that in the circumstances the course he took was justified. The figure which he finally adopted to cover both the loss of expectation of life and the loss of enjoyment of life during the period of continuing existence was 1,500 pounds. Having regard to currency equivalents and changes in the value of money I am not able to say that by adopting this figure his Honour failed to give due effect to the principle of Benham v. Gambling (1941) AC 157 , and I would therefore not disturb it. (at p104)
14. The position of this Court in relation to decisions of the House of Lords does not seem to me to need clarification. The Court is not, in a strict sense, bound by such decisions, but it has always recognized and must necessarily recognize their peculiarly high persuasive value. Moreover the reasoning of any judgment delivered in their Lordships' House, whether dissenting or concurring, commands and must always command our most respectful attention. The Court is, of course, bound by directly apposite decisions of the Privy Council. Other Courts in Australia are bound by such decisions of the Privy Council, and, subject to that, are bound by decisions of this Court. I should perhaps add, though it has become obvious enough in recent years, that nothing in the judgments in Piro v. W. Foster & Co. Ltd. [1943] HCA 32; (1943) 68 CLR 313 can have the effect of a general charter to Australian Courts to act upon an assumption that this Court will treat itself as if technically bound by decisions of the House of Lords, or should be treated as having in any degree diminished the binding force of decisions of this Court. (at p104)
15. For the reasons I have explained I would allow the appeal and vary the judgment of the Supreme Court by adding to the damages 675 pounds being seventy-five per centum of the 900 pounds which is the differ ence between the 1,100 pounds allowed for loss of wages for the period from the date of the injury to the probable date of the appellant's death and the 2,000 pounds suggested by my brother Taylor as a proper amount in respect of loss of the appellant's capacity to earn during the period for which he would have lived if he had not suffered the injury. (at p105)
TAYLOR J. This is an appeal from an order of the Supreme Court of Western Australia by which judgment was directed to be entered for the plaintiff, the present appellant, in the sum of 5,790 pounds. This amount was awarded as damages in respect of personal injuries sustained by the appellant as the result of the respondent's negligence and the complaint made upon this appeal is that the amount awarded is manifestly inadequate. (at p105)
2. The plaintiff, who was seventeen years of age at the time when his injuries were sustained, suffered severe brain damage which rendered him unconscious. He suffered other comparatively minor injuries but the evidence at the trial showed that he had remained unconscious since the accident and that he would remain unconscious for the rest of his life which would, as a result of his injuries, probably terminate in the second half of 1965 and, certainly, by the middle of 1966. At the trial counsel agreed that it would be proper to assume that death would occur within six months from the date of the trial, i.e. by the 11th September 1965, and the learned trial judge assessed damages upon this assumption. (at p105)
3. The sum ultimately awarded comprised a number of amounts separately assessed under different heads of damage. The first of these was an amount of 4,673 pounds which the parties agreed represented the appellant's special damages to the date of the trial including medical and hospital expenses and loss of wages. This amount apparently included a sum of 782 pounds, less a small deduction, for loss of wages up to the date of trial and, in strictness, this sum represented part of the damages awarded for loss arising from the appellant's destroyed earning capacity (see the discussion on this point in Graham v. Baker [1961] HCA 48; (1961) 106 CLR 340, at pp 346, 347 ). The second amount was 1,201 pounds representing the expenditure which would be incurred (at the rate of 46 pounds 4s. 0d. per week) in maintaining the appellant as an inmate of the Royal Perth Hospital for a period of six months from the date of trial. To these amounts was added an amount of 346 pounds for loss of wages at approximately 13 pounds a week in respect of the same period. Finally his Honour added an amount of 1,500 pounds for general damages making, in all, a total amount of 7,720 pounds but this was reduced by twenty-five per cent, it being agreed that to this extent the plaintiff had contributed to his own injuries. The resultant figure was 5,790 pounds. (at p105)
4. The argument upon the appeal was concerned with the amount assessed for general damages but before dealing with the points which were raised on behalf of the appellant I pause to observe that the inclusion in the award of practically the whole of the total amount that the appellant would probably have received for wages up to the date of trial, if he had not been injured, and for six months thereafter, operated unduly to inflate the assessment in the circumstances of the case. In the ordinary run of cases it is no doubt proper to assess damages substantially by reference to the amount of wages actually lost up to the date of trial and by reference to the present value of any probable future loss of that character. But where, as here, there is nothing to suggest that, if the appellant had not been injured, his wages would have been more than sufficient to provide for his own maintenance during his shortened life, it was erroneous to award a sum for loss of wages in addition to a larger sum calculated to provide for his complete maintenance and care during that period. The respondent, however, has made no complaint on this score but it is a material matter to be borne in mind when we come to consider whether the total amount awarded was or was not inadequate. (at p106)
5. In assessing 1,500 pounds as general damages excluding future economic loss the learned trial judge proceeded upon the basis that he should award compensation "for what the plaintiff consciously suffers" and in doing so he departed from the principles acted upon in England by a majority of the Court of Appeal in Wise v. Kaye (1962) 1 QB 638 and by a majority of the House of Lords in H. West & Son Ltd. v. Shephard [1963] UKHL 3; (1964) AC 326 . Notwithstanding that his Honour found the dissenting judgment of Diplock L.J. in the former case and that of Lord Devlin in the latter case convincing, he would have considered himself bound by the decision of the majority had it not been for the presence of other factors. Earlier his Honour had referred to the pronouncement of this Court in Parker v. The Queen [1963] HCA 14; (1963) 111 CLR 610 . Quite properly he did not consider that upon the strength of that statement he was free to refuse to act upon the views expressed by the majority of their Lordships in West's Case [1963] UKHL 3; (1964) AC 326 simply because he preferred the reasoning in a dissenting judgment. What finally led him to disregard them was the fact that in 1964 two members of the Supreme Court of Western Australia had already done so and he thought that in the circumstances the Supreme Court "should speak with one voice and not a variety of voices". The first of the two cases in 1964 was Scutt v. Bailey (No. 2) (1964) WAR 81 in which the facts showed that the plaintiff, a married woman, had as a result of her grave injuries been reduced to a condition of "flat amiability". There was nothing to suggest that her life expectancy had been diminished and it was found that she was and was likely "to remain at peace with the world and that she is not enduring any pain". After some discussion of the English cases Wolff C.J. said: "As damages for loss of enjoyment of life are based on compensation for the loss, once it is conceded that the injured person cannot appreciate the loss, to award a large sum which the victim can never enjoy and on the basis of a loss he cannot and never will sense seems to me to abandon the principle of compensatory damage and in its stead to adopt one of punitive damages which is quite foreign to this area of law. In my opinion, any award of general damages in this case should be amply adequate to cover all the reasonable needs of the plaintiff for the rest of her life and no more" (1964) WAR, at p 85 . The second case in Western Australia in 1964 was Fowler v. Fowler (1964) WAR 193 in which the views of the Chief Justice in the earlier case commended themselves to D'Arcy J. and he assessed damages on the same basis. It may be noticed, however, that a few months earlier Negus J. in Moss v. Cook (1964) WAR 244 considered himself bound by the decisions in Oliver v. Ashman (1962) 2 QB 210 and Wise v. Kaye (1962) 1 QB 638 . However, this was a case in which the plaintiff, in spite of his grave and incapacitating injuries, retained complete possession of his faculties though it appeared that his normal expectation of life had been reduced by a period of between ten and twenty years. (at p107)
6. In the present case two main complaints are made. The first is that general damages for the plaintiff's injuries, excluding those assessed for physical pain and suffering, should have been assessed without regard to the fact that he had remained unconscious since the accident. They should, it is said, have been assessed on what has, somewhat unhappily, been called an "objective" basis. The second is that in assessing damages for the plaintiff's lost earning capacity regard should have been had to the probable period of the plaintiff's working life immediately before he sustained his injuries and not merely to the period of life which remained to him after that event. (at p107)
7. The second of these contentions is directly in conflict with the decision in Oliver v. Ashman (1962) 2 QB 210 and the first is based upon the views of the majority in Wise v. Kaye (1962) 1 QB 638 and H. West & Son Ltd. v. Shephard [1963] UKHL 3; (1964) AC 326 , in both of which cases there was a clear conflict of opinion on the question whether damages for personal injuries should be assessed solely upon an "objective" basis. In each case the majority, treating the matter as one of prime importance in the assessment of damages for personal injuries generally, came down, substantially, in favour of an affirmative answer to this question (see Wise's Case (1962) 1 QB 638 per Sellers L.J. (1962) 1 QB, at p 654 and per Upjohn L.J. (1962) 1 QB, at pp 659, 660, 661 : West's Case [1963] UKHL 3; (1964) AC 326 per Lord Morris (1964) AC, at pp 349, 351 and per Lord Pearce (1964) AC, at p 369 ). In effect, they held that damages are awarded as compensation for an "actual" loss and not for a sense of loss. It was, of course, said that if a plaintiff's condition, as a result of his injuries, is such that he is insensible to physical pain and suffering it would be inappropriate to award damages under this head, the reason for this being simply that a plaintiff in such a condition does not experience pain and, consequently, does not suffer on that account. This latter proposition is unassailable and, in the discussion of the problem, it may be put on one side. (at p108)
8. In Wise's Case (1962) 1 QB 638 Diplock L.J. dissented from the other members of the Court. He observed (1962) 1 QB, at p 673 that in that case the major item in the damages awarded was the sum of 15,000 pounds, described as being for "the loss of the amenities of life, which here means something very much approaching the loss of life itself except in a physical existence". His Lordship then proceeded: "The principle which the judge applied in arriving at this sum is stated in a number of slightly different ways. The first, which is unexceptionable, was that 'when a person has been injured he must be compensated on the basis of what in fact he has lost'. The second way in which he stated it was that 'to compensate a person for injuries it does not matter whether he knows or not'. This is ambiguous - and erroneous if 'injury' means 'physical injury' in which consciousness of deprivation if present must always be an element in the damage" (1962) 1 QB, at p 673 . In West's Case [1963] UKHL 3; (1964) AC 326 Lord Reid and Lord Devlin were the dissentients. I quote from the speech of the former: "There are two views about the true basis for this kind of compensation. One is that the man is simply being compensated for the loss of his leg or the impairment of his digestion. The other is that his real loss is not so much his physical injury as the loss of those opportunities to lead a full and normal life which are now denied to him by his physical condition - for the multitude of deprivations and even petty annoyances which he must tolerate. Unless I am prevented by authority I would think that the ordinary man is, at least after the first few months, far less concerned about his physical injury than about the dislocation of his normal life. So I would think that compensation should be based much less on the nature of the injuries than on the extent of the injured man's consequential difficulties in his daily life. It is true that in practice one tends to look at the matter objectively and to regard the physical loss of an eye or a limb as the subject for compensation. But I think that is because the consequences of such a loss are very much the same for all normal people. If one takes the case of injury to an internal organ, I think the true view becomes apparent. It is more difficult to say there that the plaintiff is being paid for the physical damage done to his liver or stomach or even his brain, and much more reasonable to say that he is being paid for the extent to which that injury will prevent him from living a full and normal life and for what he will suffer from being unable to do so. If that is so, then I think it must follow that if a man's injuries make him wholly unconscious so that he suffers none of those daily frustrations or inconveniences, he ought to get less than the man who is every day acutely conscious of what he suffers and what he has lost. I do not say that he should get nothing. This is not a question that can be decided logically. I think that there are two elements, what he has lost and what he must feel about it, and of the two I think the latter is generally the more important to the injured man. To my mind there is something unreal in saying that a man who knows and feels nothing should get the same as a man who has to live with and put up with his disabilities, merely because they have sustained comparable physical injuries" (1964) AC, at p 341 . Ultimately he added: "I would consider separately the objective and the subjective element arising from the respondent's injuries. Accepting that in view of her shortened expectation of life 17,500 pounds would be a fair sum if the respondent were fully conscious of her position, I would think that not more than 5,000 pounds of that ought to be attributed to the actual physical injuries, and then the question is to what extent the respondent is conscious and suffering" (1964) AC, at p 343 . Lord Devlin also thought that in assessing damages for the loss of amenities of life two factors should be taken into consideration, one "objective" and the other "subjective". He said: "There are two ways in which this loss of enjoyment can be considered. It can be said that from beginning to end it is really all mental suffering. Loss of enjoyment is experienced in the mind and nowhere else. It may start with acute distress at the inability to use a limb in games or exercise as before or just in getting about, and may end with a nagging sense of frustration. If this is the true view, then total unconsciousness as in Wise v. Kaye (1962) 1 QB 638 relieves all mental suffering and nothing can be recovered for a deprivation which is not being experienced. The other way to look upon the deprivation of a limb is as the loss of a personal asset, something in the nature of property. A limb can be put both to profitable use and to pleasurable use. In so far as it is put to profitable use, the loss is compensated for by calculating loss of earnings and not by assessing mental pain. On the same principle, it can be said, a sum must be assessed for loss of pleasurable use irrespective of whether there is mental suffering or not" (1964) AC, at p 355 . Later he proceeded: "My Lords, as might be expected, English law has not come down firmly in favour of either of these two ways to the exclusion of the other. It favours a compound of both, as was agreed in argument and as I shall show later by reference to the authorities. The elements to be compounded have been called the objective and the subjective. The loss of property element is objective; it requires some sort of valuation that is in no way dependent on the victim's sense of loss. The other element is subjective because it depends entirely on mental suffering actually experienced" (1964) AC, at p 355 . Finally he concluded: "What has to be compensated for in this assessment is a total loss of enjoyment of all the faculties, a complete loss of the pleasure of living. When the victim knows his fate, he will suffer from the distress which, except in the most saintly or philosophical, is caused by the prospect of death; and for that clearly he must be compensated. But what if he never knows his fate? It has been decided that he still must have some compensation, which should be moderate. The doctrine, I think, originated in Scotland, and Lord Sands took the view that the objective element grew out of the subjective. In Reid v. Lanarkshire Traction Co. (1934) SC 79, at p 84 he said that 'while the doctrine of an award in respect of the shortening of life may have originated in the theory of mental disquiet about the prospect or the possibility of death . . . that doctrine is now a matter positivi juris irrespective of the presence or absence of evidence as to the sufferer's state of mind in the particular case'. But, he said, he should warn the jury that the weight to be given to this element must be moderate and they must not consider what price the man would have put upon his life. The problem of the separation of the two elements first arose in England because of the Law Reform (Miscellaneous Provisions) Act, 1934, which allowed the executors of a dead man to sue for damages for personal injury, the right to which had accrued before the man's death. Clearly, if he had suffered from the prospect of death, damages could be recovered, as they could be for any other form of physical or mental suffering. But if death came suddenly, could the executors recover anything at all? It was said that they could not on two grounds. One ground was that there was no mental suffering in such a case, and this was the ground adopted by Mackinnon J. in Slater v. Spreag (1936) 1 KB 83, at p 89; (1935) 51 TLR 577, at p 579 and Humphreys J. in Rose v. Ford (1937) AC 826, at p 828 . This amounted to a denial that there was any objective element in the assessment. The other ground was the technical one that damages for loss of expectation of life were the same thing as damages for injury inflicted by death, and that an old rule of the common law, left intact by the Act of 1934, forbade a recovery of damages in such a case. Both these arguments were negatived by this House in Rose v. Ford (1937) AC 826, at p 858 . I accept this decision as an authority binding on your Lordships that there is an objective element in damages for loss of enjoyment of life, whether it is caused by death or by maiming or by any other form of physical injury" (1964) AC, at pp 359, 360 . (at p111)
9. I think there is much to be said for the proposition, which was discussed in West's Case [1963] UKHL 3; (1964) AC 326 that the ideas expressed in these passages are implicit in the decision of the House of Lords in Benham v. Gambling (1941) AC 157 . I shall again refer to this case but for the moment it is sufficient to notice that the claim which had been made in that case was one by the administrator of a deceased child who had died on the same day as that upon which he had suffered injuries as the result of the defendant's negligence. The relevant claim was for damages for the loss of expectation of life. The case has been accepted as an attempt "to set . . . a standard of uniformity for the assessment of damage for loss of expectation of life where there is no mental suffering" (see per Lord Devlin (1964) AC, at p 361 and also per Lord Reid (1964) AC, at pp 342, 343 and Lord Pearce (1964) AC, at p 370 ) and there is much to be said for the view that, at least implicitly, it acknowledges that mental suffering caused by the knowledge that his life expectancy has been diminished will entitle a plaintiff to damages in excess of those for loss of expectation of life simpliciter. This view of Benham v. Gambling (1941) AC 157 was rejected by the Supreme Court of Victoria in McGrath Trailer Equipment Pty. Ltd. v. Smith [1956] VicLawRp 107; (1956) VLR 738, at p 741 - a decision to which Lord Pearce gave his approval in West's Case (1964) AC, at p 369 - but it seems to have found favour in the Court of Appeal in Davies and Another v. Smith and Another, (1961) (reported in Kemp & Kemp - The Quantum of Damages, 2nd ed. (1961) p. 353, at p. 358 but cf. p. 356). If the view which I have expressed be correct I fail to see that in the case of other injuries it is not proper to assess damages having regard to a combination of both "objective" and "subjective" elements. However, the validity of this final proposition was denied by the majority in West's Case [1963] UKHL 3; (1964) AC 326 but I feel that it has great force. (at p112)
10. In the present state of the authorities the question arises as to how we should attempt to solve this particular problem. Are we simply to adopt the views expressed by the majority in West's Case [1963] UKHL 3; (1964) AC 326 or should we, having regard to the sharp conflict in the House of Lords on what must be regarded as a fundamental principle relating to the assessment of damages for the loss of amenities of life, to regard ourselves free to solve the problem according to our own considered views? (at p112)
11. I observe that the correctness of the decision on this point in Wise's Case (1962) 1 QB 638 was, to say the least, doubted by two members of this Court in Teubner v. Humble [1963] HCA 11; (1963) 108 CLR 491, at pp 506, 507 . Thereafter, it seems, the observations made in that case by Windeyer J. (and concurred in by McTiernan J.) played a substantial part in inducing Wolff C.J. to pursue the course which he did in Scutt v. Bailey (No. 2) (1964) WAR 81 . Likewise, D'Arcy J. in Fowler v. Fowler (1964) WAR 193 was influenced by those observations when he decided to follow the same course as Wolff C.J. Again, Hogarth J. in the Supreme Court of South Australia followed the observations in Teubner v. Humble [1963] HCA 11; (1963) 108 CLR 491 on another point, with which I will deal presently, in preference to the decisions in Oliver v. Ashman (1962) 2 QB 210 and Wise v. Kaye (1962) 1 QB 638 : (Mizon v. Mallee and Berry (1964) SASR 185 ). The judgments in Teubner v. Humble [1963] HCA 11; (1963) 108 CLR 491 were, of course, not before Philip J. when he assessed damages in Shewan v. Sellars (No. 2) (1963) QWN 51 but, again, that was a case where the learned judge felt constrained to depart from the principles enunciated by the majority in Wise's Case (1962) 1 QB 638 . However, in a later case (Hobbelen v. Nunn (1965) QSR 105 ) Gibbs J. felt bound to follow the principles laid down in the English cases instead of the views expressed in Teubner v. Humble (1964) WAR 193 . (at p112)
12. I may express my own view shortly upon the point now under consideration for I find the reasons appearing in the speeches of Lord Reid and Lord Devlin compelling. If I may say so with respect their conclusion is that to which I would have come independently. It may be that this is one reason why their reasons appear compelling to me but, however this may be, in assessing damages for a loss of the amenities of life resulting from the physical destruction or impairment of some part of the body, I find it impossible to ignore, or, to regard merely as a minimal factor, what has been referred to as the subjective element. The expression "loss of the amenities of life" is a loose expression but as a head of damages in personal injury cases it is intended to denote a loss of the capacity of the injured person consciously to enjoy life to the full as, apart from his injury, he might have done. It may be said, of course, that a person who is completely incapacitated as a result of his injuries suffers such a loss whether or not his injuries are of such a character to render him insensible to his loss. But, in my view, a proper assessment can be made only upon a comparison of the condition which has been substituted for the victim's previously existing capacity to enjoy life and where the mind is, as it were, willing and the body incapable there is, in my view, a much higher degree of loss than where the victim is completely insensible to his lost capacity. Perhaps, in other words, it may be said that a person who is obliged for the rest of his life to live with his incapacity, fully conscious of the limitations which it imposes upon his enjoyment of life, is entitled to greater compensation than one who, although deprived of his former capacity is spared, by insensibility, from the realization of his loss and the trials and tribulations consequent upon it. In the result I am left with a firm view that the plaintiff's general damages in this case were assessed on a proper basis. This conviction coupled with the fact that a body of authority inconsistent with the decision of the majority in West's Case [1963] UKHL 3; (1964) AC 326 has grown up in this country and the fact that there was a remarkable diversity of opinion in that case induces me to say that we ought not to follow it. Accordingly, I would reject the appellant's first contention. (at p113)
13. The further question arises whether in assessing damages for the destroyed earning capacity of the appellant it was proper to have regard only to the period of life which remained to him after receipt of his injuries. Oliver v. Ashman (1962) 2 QB 210 is, of course, an authority for the course which his Honour took. The judgments in that case contain a discussion of a number of cases decided both before and after the Law Reform (Miscellaneous Provisions) Act, 1934 (England), which provided that on the death of any person after the commencement of the Act all causes of action vested in him should survive for the benefit of his estate. It was expressly provided that the rights conferred by the Act for the benefit of the estates of deceased persons should be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Fatal Accidents Act, 1908. As a result of this legislation the personal representative of a person who had died as a result of the injuries caused by the negligence of another became entitled, in England, to recover damages for the deceased's loss of expectation of life. It was pointed out in Oliver v. Ashman (1962) 2 QB 210 that "Where the estate was left to the dependants the claims under the Fatal Accidents Act and the Law Reform Act could be set off. But if the beneficiary of the estate was some person other than his dependants, there might be a double claim in respect of part of the benefit of the lost earnings" (1962) 2 QB, at p 227 . How far this possibility - if it be a possibility - influenced the decision in Oliver v. Ashman (1962) 2 QB 210 does not clearly appear but, in my view, it has no bearing upon the question of what damages should be awarded for an injured person's destroyed earning capacity whether the action be brought by the injured person himself or, upon his death, by his legal personal representative. Indeed, this, I think, is implicit in the observations of Lord Atkin and Lord Wright in Rose v. Ford (1937) AC, at pp 835, 852 . As to the possibility of the duplication of damages I observe that if an injured person has, himself, recovered damages no further action will lie for the benefit of his dependants in the event of his subsequent death whilst in the case where an action is brought, not by the injured person himself but, upon his death, by his legal personal representative for the benefit of his estate, the damages would be assessed having regard to the gain, if any, which would have accrued to the deceased from his future probable earnings after taking into account the expenditure which he would have incurred, if he had survived, in maintaining himself and his dependants, if any. Damages in any action for the benefit of the deceased's dependants would, of course, be assessed having regard to the magnitude of their loss as dependants so that the possibility of the duplication of damages would, to say the least, be remote. (at p114)
14. To me there seems to be no doubt that prior to the passing of the English Act it was the rule in assessing damages for a destroyed or diminished earning capacity to have regard to the probable working life of the plaintiff unaffected by his injuries (see e.g. Phillips v. London and South Western Railway Company (1879) 5 QBD 78 . But after the passing of that statute there were conflicting decisions. Roach v. Yates (1938) 1 KB 256 must, I think, be taken to have decided that in assessing damages for the loss of earning capacity it is proper "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" (per Slesser L.J. (1938) 1 KB, at p 268 ). It is true that in that case Greer L.J. had not made any express observations on the point but there was common agreement as to the amount of damages which should be awarded and, it seems to me, this could have been possible in the circumstances of the case only if their Lordships had proceeded to consider the assessment of damages on a common basis. MacKinnon L.J., the third of their Lordships to speak, merely agreed with what had already been said and must be taken to have agreed with the observation which I have quoted. However, in Harris v. Brights Asphalt Contractors Ltd. (1953) 1 QB 617 Slade J. refused to accept Roach's Case (1938) 1 KB 256 as deciding in favour of the proposition which is involved in the observation. The reasons advanced by his Lordship for this view have been the subject of considerable criticism (see e.g. Principles of the Law of Damages - Street (1962), p. 49: The Quantum of Damages - Kemp & Kemp, 1st ed. (1954), vol. 1, p. 91; 2nd ed. (1961), vol. 1, pp. 28, 29: Mayne & McGregor on Damages, 12th ed. (1961), par. 768). Nevertheless the decision in Harris' Case (1953) 1 QB 617 was accepted as correct in the Court of Appeal in Richards v. Highway Ironfounders (West Bromwich) Ltd. (1955) 1 WLR 1049 and in Davies v. Smith (reported in Kemp & Kemp, 2nd ed. (1961), vol.1, p. 353) but no question as to the correctness of Harris' Case (1953) 1 QB 617 was raised in either of these cases and there was no argument on the point. This was the state of the authorities in 1959 when Streatfeild J. decided Pope v. D. Murphy & Son Ltd. (1961) 1 QB 222 . In that case both the injured plaintiff's earning capacity and his expectation of life had been diminished and in assessing damages for the diminution of his earning capacity his Lordship had regard to the plaintiff's pre-accident expectation of life and expressly refused to follow the decision in Harris' Case (1953) 1 QB 617 . Shortly after, Parker C.J. in assessing damages in Oliver v. Ashman (1961) 1 QB 337 expressly stated that he had followed the decision of Streatfeild J. From this decision there was an appeal to the Court of Appeal and in the result it was unanimously held that in assessing damages for the plaintiff's loss of earning capacity regard should have been had only to the period of life remaining to him after the receipt of his injuries. (at p115)
15. The decision was based upon observations made in the House of Lords in Rose v. Ford (1937) AC 826 and in Benham v. Gambling (1941) AC 157 and it becomes necessary to consider precisely what it was that these cases decided. In the earlier case two questions arose. First of all there was the question whether the decision of the Court of Appeal in Flint v. Lovell (1935) 1 KB 354 that a living plaintiff could recover damages for the diminution of his expectation of life was sound, and secondly, the question arose whether damages under this head could be recovered in an action by the personal representative of a deceased person pursuant to the Law Reform (Miscellaneous Provisions) Act. The House of Lords decided both questions in favour of the plaintiff. It may not be to the point to notice that the decision in Flint v. Lovell (1935) 1 KB 354 did not introduce a novel doctrine into the law as is shown by the observations of Lord Wright in Rose v. Ford (1937) AC, at p 848 though, no doubt, it gave the clearest authority to the principle which it enunciated. I observe that the same principle had been followed in New South Wales almost without question (Bruce v. Rutherford (1885) 1 WN (NSW) 102 ). But it is of importance to notice that in Flint v. Lovell (1935) 1 KB 354 there was no claim for damages for the diminution of the plaintiff's earning capacity; the plaintiff was seventy years of age when the trial took place, special damages had been agreed at 400 pounds and there was no suggestion of any economic loss by reason of a resultant diminution of the plaintiff's earning capacity. Nor was there any suggestion that the head of damage which the decision recognized should be regarded as a substitute for, or, as embracing, economic loss of that character. In Rose v. Ford (1937) AC 826 in the action brought pursuant to the Law Reform (Miscellaneous Provisions) Act, there was, again, no claim for any such loss. The claim which had been related to (1935) 1 KB 354 the deceased's pain and suffering; (1937) AC, at p 848 the loss of her leg; and (1885) 1 WN (NSW) 102 the shortening of her expectation of life. In the House of Lords only the last item was in question. This claim had been rejected in the Court of Appeal but all of the members of that Court had agreed that if damages for loss of expectation of life could be recovered the appropriate award under this head was 1,000 pounds. In the result the House of Lords held that Flint v. Lovell (1935) 1 KB 354 had been correctly decided, that, therefore, in her lifetime the deceased had vested in her a right to recover damages for her loss of expectation of life, and the right survived to her legal personal representative and their Lordships increased the amount of the award by 1,000 pounds. In doing so their Lordships, it seems to me, treated this head of damages as completely independent of any other legitimate head of damages and were not concerned and did not concern themselves with any question of loss resulting from a diminished or lost earning capacity. Benham v. Gambling (1941) AC 157 was decided some three and a half years later and this case was concerned with an action commenced by the administrator of a child who had died shortly after having been injured by the negligence of the defendant. It was said that since the decision in Rose v. Ford (1937) AC 826 the amounts that had been awarded as damages for a diminished expectancy of life had varied enormously and the decision represents an attempt to set a standard by "indicating the main considerations to be borne in mind in assessing damages under this head" in the hope that "the views of this House, expressed in dealing with the present appeal, may help to set a lower standard of measurement than has hitherto prevailed for what is in fact incapable of being measured in coin of the realm with any approach to real accuracy". In the result the decision gave rise to the rule (said by Lord Reid in West's Case [1963] UKHL 3; (1964) AC 326 to be "a rule of law") that a conventional sum only should be awarded for the loss of a measure of prospective happiness. But again the House of Lords was not concerned with any question of economic loss resulting from a destroyed earning capacity. (at p117)
16. However, in Oliver v. Ashman (1962) 2 QB 210 the Court of Appeal took the view that the question before it had been concluded by observations made in Benham v. Gambling (1941) AC 157 . It seems to me that there was common agreement that, as Holroyd Pearce L.J. (as he then was) put it, there were "three matters which together make it clear that the House was saying that no regard should ever be had to financial gains or losses in such cases". These matters are referred to in a passage which I quote from his Lordship's judgment: "First the speech of Lord Roche in Rose v. Ford (1937) AC 826, at p 861 had been referred to in argument. So, too, had Reid v. Lanarkshire Traction Co. (1934) SC 79 , where the court had held that loss of future wages during the lost years was but an ingredient in the loss of expectation of life and did not fall to be valued as an item on its own. Secondly, the words used by Viscount Simon L.C., and especially the words 'of course', seem to show that the sentence was intended to be of general application. Otherwise one would expect some such words as 'on the pleadings in this case'. Thirdly, Viscount Simon L.C. ended by saying: 'I trust that the views of this House, expressed in dealing with the present appeal, may help to set a lower standard of measurement than has hitherto prevailed for what is in fact incapable of being measured in coin of the realm with any approach to real accuracy.' It is clear that the House was intending to settle once and for all a difficult problem in clear and careful terms meant to be of general application" (1962) 2 QB, at p 229 . The speech of Lord Roche to which his Lordship refers appears at p. 861 of the report of Rose v. Ford (1937) AC 826 after a reference to observations which had been made by Lord Sands in Reid v. Lanarkshire Traction Co. (1934) SC 79 . Lord Sands had observed in that case that the matter (i.e. the assessment of damages for diminished expectation of life) was so hedged about with metaphysics that "were I charging a jury, I think I should be disposed to be content to tell them that the shortening of life was an element which they were entitled to take into consideration in measuring the damage suffered by the deceased, and to leave it to them, without any strict analysis of the content of the idea, to assess the damages, contenting myself with warning them that the weight to be given to this element must be moderate, and that they must not consider what price the man would have put upon his life" (1934) SC, at pp 83, 84 . Having expressed the view that he would be content with a direction such as this Lord Roche proceeded to say that in making an assessment of damages for loss of expectation of life it should "obviously and rightly" be "arrived at without regard to the question of the amount of future earnings and solely on the basis of what was life going to be worth to a healthy young woman earning her own living, with dependent parents and with some prospects of marriage" (1937) AC, at p 861 . Thereafter he proceeded: "This method seems to me to be correct. It eliminates, and rightly so, the question of rich and poor, and pays regard to the normal and the average. A rich miser living in squalor or a very poor man deeply sunk in misery might require special treatment . . . Earnings or income are otherwise and to an extent beyond this irrelevant"(5). It is the latter part of these observations which are referred to in Oliver v. Ashman (1962) 2 QB 210 but I think, with respect, that they cannot be understood as having any application to a claim for damages for economic loss resulting from a diminished earning capacity. His Lordship was to my mind merely asserting that the extent of the probable future earnings of an individual are, in general, irrelevant in considering his prospects of future happiness. Further it is apparent that the contrary view receives no support whatever from the other Lords of Appeal who sat on the case; they expressly confined themselves to the questions, as I have already stated them, which arose upon the appeal. (at p118)
17. As for the observation in Oliver v. Ashman (1962) 2 QB 210 that in Reid v. Lanarkshire Traction Co. (1934) SC 79 the "court had held that loss of future wages during the lost years was but an ingredient in the loss of expectation of life" (1962) 2 QB, at p 229 it seems to me that this is directly opposed to the observations of Lord Roche which denied the relevance of the loss of future wages during the lost years in any assessment of damages for diminished expectancy of life, except to show that the plaintiff would have been "able to earn enough to live his or her life and to enjoy it". But, in any event, I do not think that Reid's Case (1934) SC 79 can be regarded as an attempt to deal with the problem now under consideration. It is true that Lord Wark said, in the first instance, that a jury would not be "entitled to give a sum based on the shortening of his (the plaintiff's) expectation of life, with subsequent earlier cessation of earning capacity, less the anticipated diminution in the cost of maintenance during the period between the anticipated earlier date of death and the date of his expectation had the accident not taken place" (1934) SC, at p 81 . But the judgments on appeal were eloquently silent concerning this proposition as also were the speeches of their Lordships in Rose v. Ford (1937) AC 826 . (at p119)
18. The second matter to which reference was made in the passage I have quoted from Oliver v. Ashman (1962) 2 QB 210 is part of the speech of Viscount Simon in Benham v. Gambling (1941) AC 157 . This was referred to in Oliver v. Ashman (1962) 2 QB 210 and I quote: "Viscount Simon L.C. dealt with the difficulty of assessing all that makes up 'life's fitful fever' and said: 'The question thus resolves itself into that of fixing a reasonable figure to be paid by way of damages for the loss of a measure of prospective happiness.' He said that it was necessary before damages could be given under that head 'for the court to be satisfied that the circumstances of the individual life were calculated to lead, on balance, to a positive measure of happiness, of which the victim has been deprived by the defendant's negligence.' He then said this: 'I would further lay it down that, in assessing damages for this purpose, the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring him happiness; the test is not subjective and the right sum to award depends on an objective estimate of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not. 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'" (1962) 2 QB, at pp 228, 229 . To my mind Viscount Simon was making it clear that the head of damages to which his observations were addressed was completely independent of any other legitimate head of damages. It was a head which permitted an award of damages for loss of "a measure of prospective happiness" and did not embrace and was not associated with economic loss resulting from a destroyed or diminished earning capacity. His final observation merely emphasizes that questions as to the assessment of damages for what he called "loss of future pecuniary prospects" fell within another universe of discourse. (at p120)
19. Finally, it seems to me, that when Viscount Simon referred to "what is in fact incapable of being measured in coin of the realm with any approach to real accuracy" he was speaking of the right to damages for "the loss of a measure of prospective happiness" and nothing else and it was in relation to that right that he expressed the hope that the views indicated in Benham v. Gambling (1941) AC 157 might "help to set a lower standard of measurement than has hitherto prevailed". It was only in relation to damages for such a loss that the standard was in question; there was no suggestion that in relation to damages resulting from a diminished or lost earning capacity the prevailing standards - if there could have been said to have been any "prevailing standards" - needed any correction or adjustment. No doubt there are considerable difficulties in assessing damages for a loss of this lastmentioned character. But in the main they are difficulties which must be faced and overcome as far as possible every day. They arise in some degree or other in every case where a plaintiff is incapacitated at the date of the trial of his action and, indeed, where a plaintiff has been permanently incapacitated though his life expectation has not been diminished by his injuries they must, not infrequently, be faced to the fullest extent. Likewise, substantially similar problems must be faced in every case where an action is brought on the behalf of dependants under the Fatal Accidents Act. But these difficulties were not, in my view, those to which Viscount Simon referred when he spoke of "what is in fact incapable of being measured in coin of the realm with any approach to real accuracy"; what, it seems to me, he was addressing himself to was the matter to which he had already expressly adverted - "the question . . . of fixing a reasonable figure to be paid by way of damages for the loss of a measure of prospective happiness", a loss which, it may be said, can in no way be measured by reference to the victim's pre-accident financial prospects. (at p121)
20. I need scarcely mention the anomaly that would arise if Oliver v. Ashman (1962) 2 QB 210 is taken to have been correctly decided. 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. Yet the recovery by him of damages that does not take into account his full economic loss will operate to prevent his dependants, in the event of his death, from recovering damages under the Fatal Accidents Act. However if he dies without having sued for damages his dependants will be entitled to recover damages assessed upon a consideration of what his economic prospects would have been had he survived for the full period of his pre-accident expectancy. (at p121)
21. For the reasons I have given I find myself forced to the conclusion that the recognition which has been accorded to the right of an injured plaintiff to recover damages for "the loss of a measure of prospective happiness" in no way operates to displace or destroy his right to recover damages for economic loss resulting from his diminished earning capacity. Accordingly in my view damages in the present case should have been assessed under this head having regard to the plaintiff's pre-accident expectancy and not only to the expectancy of life remaining to him after the receipt of his injuries. Any assessment should, of course, take into account the vicissitudes and uncertainties of life and also the fact that if the plaintiff had survived for the full period it would have been necessary for him to maintain himself out of his earnings and, no doubt, his expenditure on his own maintenance would have increased as his earnings increased. (at p121)
22. In considering what he called the plaintiff's economic loss the learned trial judge in the present case did not have regard to the plaintiff's pre-accident expectancy of life and he assessed an amount of 1,500 pounds for general damages which I take to be the amount which he considered an appropriate award to compensate the plaintiff both for his loss of amenities of life during the period of life remaining to him after the accident and also for his diminished expectancy of life. In making this assessment he proceeded "on the basis that in assessing damages for personal injuries beyond economic loss the primary, although not the sole, ground for awarding damages is to be for what the plaintiff consciously suffers". Assuming, for the moment, that 500 pounds of this amount was in effect a Benham v. Gambling (1941) AC 157 award merely for loss of expectancy of life, the question is whether the sum of 1,000 pounds is manifestly inadequate to compensate him on an objective basis for his injuries and his loss of amenities of life during the residue of his life. In the circumstances I am not disposed to think that it is and, accordingly, that we should not interfere. So far as his economic loss is concerned the material before us indicates that the plaintiff at the time of the injury was earning approximately 13 pounds a week, that at the age of twenty-one he would probably have earned something in excess of 20 pounds a week and that by the time he attained the age of thirty his salary would have been, had it not been for the accident, some 2,000 pounds or 2,500 pounds per annum. In those circumstances it seems to me that on a balance of what his future income and expenditure on maintenance would have been the economic loss resulting from his destroyed earning capacity should not be rated highly. Particularly is this so when account is taken of the uncertainties and vicissitudes of life. Under this head of damages I would assess the sum of 2,000 pounds as reasonable compensation. In the result the damages assessed by his Honour should be increased by the difference between the lastmentioned sum and the amount of approximately 1,100 pounds which was wrongly included and to which I have previously referred. This adjustment means that damages should be assessed at 8,620 pounds but, since that amount is to be discounted by twenty-five per cent, judgment should be entered for 6,465 pounds. (at p122)
23. I add that I have had the opportunity of considering the observations which my brother Owen has made concerning the pronouncement made by Dixon C.J., with the concurrence of the other members of the Court, in Parker v. The Queen [1963] HCA 14; (1963) 111 CLR 610 and I entirely agree with his views. (at p122)
MENZIES J. In Wise v. Kaye (1962) 1 QB 638 the Court of Appeal (Sellers L.J. and Upjohn L.J., Diplock L.J. dissenting) upheld an award of 15,000 pounds general damages - exclusive of any amount for pain and suffering, loss of expectation of life and loss of future earnings - in a case where a young woman of twenty had, in a motor-car accident, suffered brain injuries which rendered her helpless and unconscious for the rest of her life. Her life expectancy was seven years, which would be spent in hospital at the expense of the state. Diplock L.J., in the course of his dissenting judgment said: "If . . . one takes as a premise that, after making full provision for loss of future earnings and the cost of care and nursing, a sum of the order of 15,000 pounds to 20,000 pounds would be the appropriate maximum award for the physical injuries which she sustained had they not included the damage to the brain which has rendered her unconscious, it seems to me that the great bulk of such a sum would be attributable to physical pain, the mental anguish of complete dependence upon others for all bodily functions and the bitter consciousness, most acute in the earlier years, of all the pleasures of life which had been lost while susceptibility to many of its sorrows remained. All these factors are absent in the plaintiff's case and I cannot think that more than a tithe of the sum of 15,000 pounds should be here awarded" (1962) 1 QB, at p 675 . His Lordship would, therefore, have substituted 1,500 pounds for 15,000 pounds"in respect of her 'loss of amenities of life' during the time while she continues in this world" because, in addition to other injuries, she had suffered "damage to the brain which has rendered her unconscious". (at p123)
2. In H. West & Son Ltd. v. Shephard [1963] UKHL 3; (1964) AC 326 the House of Lords (Lord Tucker, Lord Morris and Lord Pearce, Lord Reid and Lord Devlin dissenting) approved Wise v. Kaye (1962) 1 QB 638 and upheld the award of 17,500 pounds general damages for a woman aged forty-one who was injured through the negligent driving of a motor-lorry and sustained severe head injuries resulting in cerebral atrophy and paralysis of all four limbs. Her condition was described as follows: "She was unable to speak, such communication as she did make being limited to movements of the eyes, face and the right hand; she could appreciate the difference between food that she liked and disliked, showing her likes and dislikes by facial expression, showed some sign of recognition of relatives and nursing staff and could respond to commands by moving her right hand. She was unable to feed herself and required full time hospital nursing; any relaxation of medical and nursing care would terminate fatally. There was no prospect of further improvement and her expectation of life had been reduced to about five years. She might, to some extent at least, have appreciated the condition which she was in". (at p123)
3. In this appeal, the first question is whether this Court should depart from the decision of the House of Lords in H. West & Son Ltd. v. Shephard [1963] UKHL 3; (1964) AC 326 approving the decision of the Court of Appeal in Wise v. Kaye (1962) 1 QB 638 and affirm the judgment of the learned trial judge, Hale J., who held that because the plaintiff - a youth of seventeen when he was injured in an accident - has since that injury been unconscious and will remain unconscious for the rest of his life, the award of so-called general damages in his favour should be 1,500 pounds instead of the 7,000 pounds which his Honour would have awarded had he applied the decision of the House of Lords in H. West & Son Ltd. v. Shephard [1963] UKHL 3; (1964) AC 326 . Referring to the decisions of the House of Lords and the Court of Appeal, his Honour said: "The effect of the decisions in those cases is that where the plaintiff is completely unconscious, a proper award over and above economic loss lies in the range of 10,000 pounds-15,000 pounds. On this basis and bearing in mind the limited duration of the plaintiff's life I would consider an award of 7,000 pounds to be appropriate in the present case. The view that this would be to assess on a wrong principle and that in such a case as the present the award should be quite small is expressed in the dissenting judgment of Diplock L.J. in Wise v. Kaye (1962) 1 QB 638 and by Lord Devlin in H. West & Son Ltd. v. Shephard [1963] UKHL 3; (1964) AC 326 . Now, if I may say so with the utmost respect, I find the last-mentioned judgments convincing: but nevertheless if the matter rested there I would consider myself bound to give effect to the majority view" (1965) WAR, at p 92 . His Honour then referred to decisions of the Supreme Court of Western Australia based upon the dissenting judgments in Wise v. Kaye (1962) 1 QB 638 and H. West & Son Ltd. v. Shephard, [1963] UKHL 3; (1964) AC 326 viz. Scutt v. Bailey (No. 2) (1964) WAR 81 and Fowler v. Fowler (1964) WAR 193 , and decided that "this Court should speak with one voice and not a variety of voices" (1965) WAR, at p 94 . His Honour thereupon followed Scutt v. Bailey (No. 2) (1964) WAR 81 and Fowler v. Fowler (1964) WAR 193 and assessed damages for personal injuries beyond economic loss at 1,500 pounds on the footing that the primary ground for awarding such damages is "compensation for what the plaintiff consciously suffers" (1965) WAR, at p 94 . (at p124)
4. I consider the Supreme Court of Western Australia should have followed the decision of the House of Lords in H. West & Son Ltd. v. Shephard [1963] UKHL 3; (1964) AC 326 , and it is my opinion that this Court should now follow that decision. (at p124)
5. No good purpose would be served by my attempting to restate the reasoning that led to the conclusions in Wise v. Kaye (1962) 1 QB 638 and H. West & Son Ltd. v. Shephard [1963] UKHL 3; (1964) AC 326 and I will do no more than say that it seems to me that injuries are not less compensable because the person who has suffered them is, and will remain, unconscious of them and of his total incapacity. Loss of capacity - total or partial, permanent or temporary - to live the life that could otherwise have been lived is, apart from damages for pain and suffering, the fundamental loss for which general damages for personal injury are awarded. It is from this loss that other losses stem. Thus, for instance, loss of earnings arises from loss of capacity to work. Moreover, the fulness of a man's life cannot be measured simply by the happiness which it brings to him; capacity to live fully includes capacity to suffer, to master adversity, to endure as well as to enjoy. Thus, unconsciousness is basic incapacity which ought not to be regarded as insignificant in itself and as depriving other injuries of their significance. Remarkable though it may be, a quadriplegic with a lively mind can live a life which seems worthwhile both to himself and to others, whereas a person whose incapacity includes loss of consciousness seems to me to have lost everything. If, therefore, damages are awarded as such compensation for injury as money can provide and part of the injury which a person suffers is brain injury, it seems to me odd that a disabled man who is conscious but not in pain should be awarded 15,000 pounds while a man additionally injured can recover but 1,500 pounds damages because he has been rendered permanently unconscious. The difference cannot, I think, be satisfactorily explained merely in terms of unhappiness from awareness of injury. From its very nature, however, unconsciousness does negative pain and suffering. (at p125)
6. The basis of the dissenting judgments in Wise v. Kaye (1962) 1 QB 638 and H. West & Son Ltd. v. Shephard [1963] UKHL 3; (1964) AC 326 was the decision of the House of Lords in Benham v. Gambling (1941) AC 157 that the loss of the expectation of life as a head of damage rates but a small arbitrary award. The process of reasoning which the minority judges in both Wise v. Kaye (1962) 1 QB 638 and H. West & Son Ltd. v. Shephard [1963] UKHL 3; (1964) AC 326 followed was to say that a person who has been rendered permanently unconscious, whatever his injuries may be, has - once care and maintenance have been provided by a proper award - lost no more than the expectation of life, so that, in accordance with Benham v. Gambling (1941) AC 157 the award should be no more than a small arbitrary amount. Benham v. Gambling, (1941) AC 157 however, was decided to meet a particular situation that developed in England with the growing practice of making large awards for the loss of expectation of life as a separate head of damage. It has been explained thus (see (1954) 70 L.Q.R. at pp. 179, 180): "The House of Lords was faced with the problem concerning compensation for loss of expectation of life which had been recognized as a head of damage in Rose v. Ford (1937) AC 826 . The large sums which juries were awarding had caused some consternation and, therefore, in the Benham Case (1941) AC 157 the opportunity was seized to limit these. It was done, not by stating boldly that as a practical matter an arbitrary limitation had to be imposed, but by arguing that 'the prospect of a predominantly happy life' was so uncertain that in the average case it ought not to be assessed at more than 200 pounds. The true ground of the decision was thus concealed by generalities concerning happiness which many would be prepared to dispute". This exceptional decision relating merely to damages for the loss of expectation of life affords no basis for reducing the damages which would otherwise have been awarded to an injured person for incapacity resulting from bodily harm - for example, loss of capacity to work, to see, hear or speak, to move, to respond in any way - simply because the capacity to appreciate the results of his injuries has also been destroyed. To apply to living persons an arbitrary rule designed to keep within limits the claims of estates of dead persons would, so it seems to me, be a substantial extension. Indeed, in Benham v. Gambling (1941) AC 157 Viscount Simon L.C., in speaking of this head of damage, said: ". . . the compensation is not being given to the person who was injured at all . . . Damages which would be proper for a disabling injury may well be much greater than for deprivation of life" (1941) AC, at p 168 . As to the attempt to treat "loss of happiness" as the measure of damages of an injured plaintiff, I would agree with Upjohn L.J. who in Wise v. Kaye (1962) 1 QB 638 said: ". . . it would be a misdirection by a judge to tell the jury that, apart from loss of earnings and so on, they ought to assess damages for loss of amenity by reference to a living plaintiff's loss of happiness. Damages are assessed not merely for the loss of the good or bright things of life, but for the disability which prevents the full living of life, including not only the good things but all that goes to make up a full life without that disability. Life is worth living even when it involves hard and sometimes unrewarding work, when it entails anxiety and unhappiness, fears and difficulties. These are the experiences of life, on the whole worth while, of which the plaintiff has been deprived. This plaintiff is surely entitled to point on the one side to the active and normal life, with its ups and downs, both valuable, she had every hope of leading, and on the other to the living death which she will lead for the rest of her life" (1962) 1 QB, at p 662 . (at p126)
7. In my opinion, therefore, damages should have been assessed in accordance with the decisions in Wise v. Kaye (1962) 1 QB 638 and H. West & Son Ltd. v. Shephard [1963] UKHL 3; (1964) AC 326 . (at p126)
8. The second point in this case relates to the damages to be awarded for lost earning capacity. As to this his Honour followed the decisions of the Court of Appeal in Oliver v. Ashman (1962) 2 QB 210 and Wise v. Kaye (1962) 1 QB 638 and held that, in assessing future loss of earnings, it was wrong to take into account sums which the plaintiff would have earned during the normal span of his life had it not been shortened by injury. In my opinion Oliver v. Ashman (1962) 1 QB 210 and Wise v. Kaye (1962) 1 QB 638 in so far as it followed that decision, were wrongly decided. I have had the advantage of reading the judgment of Taylor J. in this case and on this point I agree with him. Indeed, I am inclined to think that the reduction of the damages for future loss of earnings made by the Court of Appeal in Wise v. Kaye (1962) 1 QB 638 hardly squares with the refusal to reduce the general damages. The general damages awarded as compensation for lost capacity have the same character, whether or not the capacity which has been lost would have been used to earn money, notwithstanding that it is easier to assess damages for lost capacity to earn than for lost capacity to live a full life. It seems to me that if a great cricketer were to be rendered permanently unconscious by the negligence of another, the injured man would be entitled to substantial damages for lost capacity to play cricket, whether or not he happened to be an amateur or a professional. The distinction drawn in Wise v. Kaye (1962) 1 QB 638 would seem to put the professional at a disadvantage. (at p127)
9. I accept Taylor J.'s estimate of 2,000 pounds as the sum which should have been awarded to the appellant as damages for lost earning capacity. I agree, too, with his Honour's conclusion that the learned trial judge included in his award approximately 1,100 pounds which should not have been included. Moreover, I accept the figure of 500 pounds for diminished expectancy of life. In these circumstances, I think, damages including 7,000 pounds instead of 1,500 pounds, should have been assessed at 14,620 pounds and, since that amount is to be reduced by twenty-five per cent because of the appellant's own negligence, I am of the opinion that judgment should be entered for 10,965 pounds instead of 5,790 pounds. (at p127)
WINDEYER J. The assessment of damages for personal injuries is to-day a constant task for courts. Yet I have long thought that the law does not meet the needs of our time. We live in an age that is dominated by scientific, mechanical and technological activities, their risks largely covered by insurance: but the processes of the law do not, it seems to me, provide in a scientific and logically consistent way for the casualties that result from those activities. Moreover, the procedures involved in the assessment and awarding of damages for personal injuries sometimes delay or impede the recovery and rehabilitation of injured persons. Courts have, however, been left to meet a modern problem by applying, with some adaptation, the pronouncements of a different age. The only far-reaching contributions of the legislatures have been superimposing upon the law of negligence systems of workers' compensation based upon compulsory insurance and instituting a system of compulsory insurance against liability for traffic accidents. The present case makes it necessary for us to consider three questions each of which has become tangled in much diversity in judicial reasoning. They are: (at p128)
2. First, whether damages for loss of earning capacity should be estimated by reference to the reduced period of life of a plaintiff whose years have been made less by his injuries, or, on the other hand, by reference to the whole period during which he would have been capable of earning had he not been injured. (at p128)
3. Secondly, whether a plaintiff made by his injuries permanently unconscious, or deprived permanently of mental capacity, is entitled to have any sum by way of general damages for his loss of capacity to enjoy life as a normal person would. Thirdly, what general damages should a plaintiff have if he has been deprived of mental capacity and also of years of expected life. (at p128)
4. These questions have been much discussed. I have already stated my views on some aspects of them in Teubner v. Humble [1963] HCA 11; (1963) 108 CLR 491 . Nothing that I have heard or read since then has caused me to change my opinions. But I must consider whether I must now relinquish them. One passage from what I previously wrote I venture to repeat: "So-called principles of assessment of damages for personal injuries can be made the subject of almost endless discussion. The consequences of such injuries are not all susceptible of evaluation in money, and seeming logic can be pushed too far" (1963) 108 CLR, at p 505 . (at p128)
5. The one principle that is absolutely firm, and which must control all else, is that damages for the consequences of mere negligence are compensatory. They are not punitive. They are given to compensate the injured person for what he has suffered and will suffer in mind, body or estate. Only so far as they can do so is he entitled to have them. The significance of this fundamental consideration is emphasized when one bears in mind that the defendant in an action for negligence is often not the actual tortfeasor, but is his employer vicariously liable; and that, more often than not, the burden of damages for negligence falls upon an insurance company. As Lord Radcliffe has remarked, we live in a "society that has been almost revolutionized by the growth of all forms of insurance": Lister v. Romford Ice and Cold Storage Co. Ltd., [1956] UKHL 6; (1957) AC 555, at p 591 . Courts have been reluctant to allow juries to recognize this. But it would be naive to suppose that it has not given a new horizon to damages, whether they be assessed by judge or jury. And, in my opinion, it is wise to remember it. Doing so helps to ensure that neither sympathy for the situation of the wrongdoer nor indignation at his conduct will influence the assessment: attention is concentrated, as it should be, upon the claim of the plaintiff to compensation. (at p129)
6. The general principle that damages are compensatory yields what seem to me to be some equally sure, but more particular, doctrines. The first is that a plaintiff is entitled to be recompensed for expenses, such as for medical and nursing attention, that he incurs, or that are incurred on his behalf, as a consequence of his injury. (at p129)
7. 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. Of course, the monetary equivalent of the loss of capacity is not ascertainable with precision by a simple arithmetical calculation: assumptions and adjustments must be made. But what is to be compensated for is the destruction or diminution of something having a monetary equivalent. 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. We should not, I think, follow the English decisions in which in assessing loss of earnings the "lost years" are not taken into account. I agree in what my brother Taylor has said about those cases and with his conclusion on this aspect. I am content to accept the amount that he proposes under the head of loss of earning capacity. (at p129)
8. The next matter depends upon very different considerations. It turns upon the plaintiff's being deprived of something that he could not have sold, his ability to enjoy in the way that he formerly could whatever life should offer. A man whose capacity for activity, mental or physical, is impaired, so that no longer can he get satisfaction and enjoyment from things that he was accustomed to do and cannot do what he had planned or hoped to do, has not lost a thing the value of which for him can be measured in money by any process of calculation or estimation that I can understand. This consequence of an injury may be called by the convenient phrase, "loss of amenities", or be described more elaborately and in more elegant words. However described, it is not a loss of something in the same sense that loss of a possession or of earning capacity is. A man who loses a limb, his eyesight, or his mind, does not lose a thing that is his, as his ox or his ass or his motor car is his, but something that is a part of himself, something that goes to make up his personality. I am not prepared to carry Cartesian doctrine so far as to distinguish here between injuries to body and mind. I am unable myself to understand how monetary compensation for the deprivation of the ability to live out life with faculties of mind and body unimpaired can be based upon an evaluation of a thing lost. It must surely be based upon solace for a condition created not upon payment for something taken away. (at p130)
9. Still less can I grasp the idea that a man's life is a possession of his that can be valued in money. This must be for many people repugnant to opinions, sometimes half felt sometimes deeply held, about the meaning of life and death, duty and destiny. And for others, less attached or persuaded in their opinions, it must be unacceptable simply because life and money are essentially incommensurable. And the idea does not become more easily acceptable when the measure of the worth of life is said to be a balance of happiness over unhappiness. In some of the judgments and articles that I have read the postulated inquiry seems to depend upon some doctrine of Epicurean hedonism, in others upon a conviction that tribulation endured does not deprive life of value. The differing views have been eloquently expressed. But for myself I doubt the relevance to the present question of any particular philosophy. For the question is not, I think, Is life a boon? - but, Are the years of life that a man expects something that belongs to him, the loss of which can be measured in money? I appreciate that the House of Lords has said that, in this matter, one does not consider the individual but the lot of mankind in general, and that their Lordships in 1941 thought that, on that basis, "damages for the loss of a measure of prospective happiness" should be reckoned at two hundred pounds: Benham v. Gambling (1941) AC 157 . (Apparently this sum is now to be increased because the purchasing power of money has fallen, so that the money value of life has risen.) It is important to notice exactly what Viscount Simon said: "The question thus resolves itself into that of fixing a reasonable figure to be paid by way of damages for the loss of a measure of prospective happiness. Such a problem might seem more suitable for discussion in an essay on Aristotelian ethics than in the judgment of a Court of law, but in view of the earlier authorities, we must do our best to contribute to its solution" (1941) AC, at p 166 . Probably his Lordship meant by his reference to Aristotle's Ethics that the word "happiness" was to be understood in the wider sense of welfare or well-being. The judgment dealt with a problem that had been posed for their Lordships by earlier decisions including Rose v. Ford (1937) AC 826 ; and they had to seek a solution within the confines thus created. I confess that I have misgivings about some of the reasoning that has been devoted by courts to this question. I recognize, of course, the high authority of the pronouncements that have been made. And I would not presume to express my own thought that law has here got into depths that it cannot plumb, were it not that I find some learned persons have thought so too. I may refer in particular to an article Expectation of Happiness by Professor Kahn-Freund in the Modern Law Review, vol. 5, p. 81, which I have recently read and which expresses views that accord nearly with some of those that I had formed. (at p131)
10. I do not for a moment doubt that a man who has been deprived of the opportunity to live his life as he would have wished, and for as long as he might have expected, may, if he retains sufficient intellectual capacity to know his misfortune, feel distressed and frustrated. He is, I do not doubt, entitled to compensation for what he suffers. Money may be a compensation for him if having it can give him pleasure or satisfaction. If his expected years of life have been made less, money may enable him to cram more into the time that remains. If he has been deprived of the ability to do some things that he had enjoyed doing or had hoped to do, then money may enable him to enjoy other things instead. But the money is not then a recompense for a loss of something having a money value. It is given as some consolation or solace for the distress that is the consequence of a loss on which no monetary value can be put. I have, for convenience, used the word "recompense" to make this contrast. There is really no one word that I know which is sufficiently explicit. "Reparation" is unsuitable because in the law of Scotland, and of France, it is used to cover all forms of damages. The words do not matter however, for the distinction between a loss of a thing on which a money value can be put and the distress of mind and sense of loss for which money is only a solace is, I consider, basic and real. It is, as I understand French law on the subject, the distinction that it makes between le dommage materiel and le dommage moral. The correlatives of the two kinds of damage are the two grounds of damages, which I have called "recompense" and "solace". This, I think, provides the solution to the question that we have to consider. (at p132)
11. Of course, recognizing that general damages for "loss of amenities", including distress and concern caused by a knowledge of the curtailment of life, are by way of solace does not help much towards determining what amount it is proper to award in a particular case. In the case of persons seriously injured, but fully conscious of their condition, I have myself thought in other cases that amounts of 3,000 pounds or even more might properly be awarded under this head. But I confess to knowing no real measure that can be used. The only guide suggested is fairness and moderation, whatever those may denote. (at p132)
12. It is the same perplexity that surrounds the measuring of damages for pain and suffering. It may be that giving damages for physical pain that is wholly past, not continuing and not expected to recur, is simply an anomaly, for there can be no solace for past pain. Lord Halsbury saw this when, after remarking that it was arguable whether damages for this should be allowed, he said, "What manly mind cares about pain and suffering that is past? But nevertheless the law recognizes that as a topic upon which damages may be given". The Mediana (1900) AC 113, at p 117 . This may be a lingering result of the element of retribution by the wrongdoer which seemingly once had a place in damages for trespass. Pain and suffering is now generally regarded as an element to be remembered in estimating general damages, not as something to be separately assessed. As it is not suggested that any amount should have been allowed to this plaintiff for pain and suffering, I need not consider it further. (at p132)
13. Coming now directly to the present case: The plaintiff was entitled to have his economic loss made good. He was entitled to have whatever amount could be anticipated as necessary to ensure that he would have for the rest of his life such comfort and attention as could be provided for him. But, as my brother Taylor has pointed out, amounts provided for this future maintenance ought to be taken into account in calculating his economic loss, otherwise there is a duplication. Was he also entitled to general damages for loss of amenities and expectation of life? I see no justification for separating these as elements of general damage. Hale J., after carefully considering the problem created for him by conflicting decisions and inconsistent reasoning, thought that he should allow 1,500 pounds in addition to economic loss. He said, however: "I would merely add that if it is ultimately held that the correct principle is that there should be no award beyond economic loss unless there is at least a chance that the additional sum can be used for the advantage of the plaintiff then on the evidence and admissions in this case there should be no such additional award". In my view, his Honour, having thus held that on the evidence there was not even a chance that the additional sum could be used for the advantage of the plaintiff, ought not to have awarded it. It could not bring any advantage or consolation to the plaintiff. Consolation presupposes consciousness and some capacity of intellectual appreciation. If money were given to the plaintiff he could never know that he had it. He could not use it or dispose of it. It would simply go to his legal personal representatives on his death. It would be of no more benefit to him personally than sending the defendant to gaol would be. He is not, like Samson Agonistes, aware and able to bemoan his fate "to live a life half dead, a living death". His existence is in very truth a living death. I would therefore decide, if I be free to do so, that the award made by his Honour should be increased in respect of the amount he allowed for loss of earning capacity, but that his Honour was in error in allowing the sum of 1,500 pounds for general damages. (at p133)
14. The question remains, Am I free to come to that decision, or is it so far out of harmony with the current of authority that I must abandon it and accept another view as the revealed dogma of the law? This question arises mainly as the result of decisions in England. I may say at once that I agree in what my brother Owen has written, in the judgment which he is about to deliver, as to the position of courts in Australia when judgments of the House of Lords and of this Court conflict. The position of this Court itself in relation to the House of Lords is not, I think, open to doubt. But, because the matter was adverted to, I shall state for myself why I say so. (at p133)
15. In a passage in the judgment of the Privy Council in Robins v. National Trust Co. (1927) AC 515 it was said that "the House of Lords . . . is the supreme tribunal to settle English law, and that being settled, the Colonial Court, which is bound by English law, is bound to follow it" (1927) AC, at p 519 . This proposition is not true for the Commonwealth of Australia. It was expressly recognized in Piro v. W. Foster & Co. Ltd. [1943] HCA 32; (1943) 68 CLR 313 that this Court is not technically bound according to a strict theory of precedent by a decision of the House of Lords. The assertions in that case that the decisions of the House of Lords should nevertheless ordinarily be followed are strong; but they are not absolute. (at p134)
16. Our ancestors brought the common law of England to this land. Its doctrines and principles are the inheritance of the British race, and as such they became the common law of Australia. To suppose that this was a body of rules waiting always to be declared and applied may be for some people satisfying as an abstract theory. But it is simply not true in fact. It overlooks the creative element in the work of courts. It would mean for example, that the principle of Donoghue v. Stevenson [1931] UKHL 3; (1932) AC 562 , decided in the House of Lords in 1932 by a majority of three to two, became law in Sydney Cove on 26th January 1788 or was in 1828 made part of the law of New South Wales by 9 Geo. IV c. 83, s. 25. In a system based, as ours is, on case law and precedent there is both an inductive and a deductive element in judicial reasoning, especially in a court of final appeal for a particular realm or territory. (at p134)
17. It is, of course, impossible for anyone to say that a decision of the House of Lords is wrong in the sense of not a correct decision according to the law of England prevailing in England. But how far the reasoning of judgments in a particular case in England accords with common law principles that are Australia's inheritance is a matter that this Court may have sometimes to consider for itself. This Court is the guardian for all Australia of the corpus iuris committed to its care by the Imperial Parliament. The Constitution makes its judgments in its appellate jurisdiction final and conclusive. As the Court has said: "According to the ordinary course of the administration of justice in and for the Commonwealth of Australia, the judgment of this Court is final. The exercise of the prerogative to admit an appeal to Her Majesty in Council is an exceptional measure governed by special considerations: it would not be in accordance with the position which this Court occupies under the Constitution for it to proceed otherwise in the performance of its duties than as a final court of appeal": Ebert v. The Union Trustee Co. of Australia Ltd. [1961] HCA 29; (1961) 105 CLR 327, at p 331 . (at p134)
18. This is not the place for an essay on jurisprudence or a full consideration of the theoretical problem of reconciling a common heritage of doctrine with the development of differing doctrines. It is enough I think to say that our inheritance of the law of England does not consist of a number of specific legacies selected from time to time for us by English courts. We have inherited a body of law. We take it as a universal legatee. We take its method and its spirit as well as its particular rules. A narrower view than this would put a sad strain upon allegiance. Here, as it is in England, the common law is a body of principles capable of application to new situations, and in some degree of change by development. Lord Reid recently said in the House of Lords: "I have never taken a narrow view of the functions of this House as an appellate tribunal. The common law must be developed to meet changing economic conditions and habits of thought, and I would not be deterred by expressions of opinion in this House in old cases": Myers v. Director of Public Prosecutions (1965) AC 1001, at p 1021 . And we, in this Court, need not, in exercising our functions as an appellate tribunal, be deterred by expressions of opinion in their Lordships' House in old cases or new cases. Nevertheless I believe that we must not only give respectful attention to whatever is said there, but that the decision of the majority of their Lordships on questions of common law will ordinarily be followed in this Court, leaving it to the Australian legislatures to correct the result if they think fit. But all judgments of the House of Lords are not equally persuasive and all statements in all speeches of their Lordships are not equally acceptable. This Court must consider the question for itself; and all the more so, it seems to me, if the decision in England was reached after reference only to English decisions, not to the state of the law elsewhere, and seemingly to meet only economic and social conditions prevailing in England. And too what is said is less persuasive when law is as it were fluid and when the conditions which it is being developed to meet are not the same in England and Australia. The law of damages, especially damages or personal injuries, is of that kind. It is a branch of the law in which further developments and fresh refinements in the application of principles are still going on: and the backgrounds against which it operates are not the same in England and in Australia. Various circumstances, locally known as existing in any community, such as welfare services, pensions, hospital aid, sick pay, rates of wages and so forth, are taken into account directly or indirectly, deliberately or unconsciously, by judges and juries when assessing damages for personal injuries. Uniformity and solidarity of law throughout the countries inhabited by British peoples may up to a point be a good in themselves. But too much store can be set upon uniformity of law when it operates in conditions that are not uniform. This Court has very recently said so by refusing to follow decisions of the Court of Appeal on some aspects of the law of damages: Jones v. Gleeson (1965) 39 ALJR 258 . And it is saying so now in refusing to follow Oliver v. Ashman (1962) 2 QB 210 and Wise v. Kaye (1962) 1 QB 638 . I do not think that the law of damages for personal injuries has yet reached such a state of finality, clarity and consistency that we should in this Court and for this country simply accept the views of the majority of the House of Lords in H. West & Son Ltd. v. Shephard [1963] UKHL 3; (1964) AC 326 . Moreover, parts of what was said in that case do not stand easily with what the House of Lords had said in 1941. (at p136)
19. For reasons which I have already given, I do not find the underlying assumptions of the judgment in Benham v. Gambling (1941) AC 157 about the worth of life easy to make, even as mere assumptions. But putting that aside, I - for the sake of conformity with the views of most of my brethren, but not from conviction - agree that we can be guided in this case by what was said in that case. We can accept it as an ipse dixit of the law. I am grateful for the analysis of its meaning that my brother Kitto has proffered in his judgment, which I have had the benefit of reading and studying. Although it seems to me that the sum of 1,500 pounds awarded in this case was more than was justified on the basis of Benham v. Gambling (1941) AC 157 , I, again for conformity, agree in the order proposed. I confess that I do so the more readily because it seems that the plaintiff lived for a longer time than the learned trial judge reckoned on when he estimated what should be allowed for future medical and nursing expenses. This, of course, only shows how unsatisfactory in an insurance age is the system of lump sum damages to cover future outgoings. (at p136)
20. I can only hope that some day the law will provide some better way of meeting the consequences of day-to-day hazards than by actions for negligence and a measuring of damages by unprovable predictions, metaphysical assumptions and rationalized empiricism. (at p136)
21. I agree that the appeal should be allowed and the judgment of the Supreme Court varied as proposed by Kitto J. (at p136)
OWEN J. Two questions of general importance arise in this appeal. One of them is whether, in assessing damages for loss of earning capacity in a case in which a plaintiff's expectation of life has been shortened as a result of his injuries, the period to which regard is to be had is the probable length of the plaintiff's working life had he not been injured or merely to the period that is left to him as the result of his injuries. In Oliver v. Ashman (1962) 2 QB 210 and Wise v. Kaye (1962) 1 QB 638 , the Court of Appeal held that the latter was the relevant period and the learned trial judge in the present case naturally followed those decisions. For the reasons which my brother Taylor has elaborated and with which I agree, I am unable, with respect, to accept those decisions as correctly laying down the law on this point and in these circumstances I agree with him that in the present case the sum of 2,000 pounds is an appropriate amount to allow under this head. (at p137)
2. The other question is whether we should accept and apply to the present case the reasoning which, if I have understood it correctly, led the majority of the House of Lords to decide as it did in H. West & Son Ltd. v. Shephard [1963] UKHL 3; (1964) AC 326 . Where, as here, the injured person has at no time been conscious and will never be conscious of the fact that his life has been shortened so that no question of pain and suffering arises, it seems to me that Benham v. Gambling (1941) AC 157 clearly pointed to the conclusion that no more than a moderate sum should be awarded for the diminution of his expectancy of life and for the reasons, it seems to me, which my brother Kitto has given in his judgment. With that conclusion I agree. But I cannot reconcile the decision in Benham's Case (1941) AC 157 with that reached by the majority of the Court of Appeal in Wise v. Kaye (1962) 1 QB 638 which was approved by the majority of the House of Lords in West's Case [1963] UKHL 3; (1964) AC 326 . There is no doubt that if the majority view in those two cases is applied in the present case the amount awarded by the learned trial judge for the diminution of the plaintiff's expectation of life was inadequate since, for reasons which he gave, he based his assessment upon what had been said by Lord Reid and Lord Devlin, who were in the minority in West's Case [1963] UKHL 3; (1964) AC 326 and whose opinions seem to me to find much support in Benham's Case (1941) AC 157 . But before deciding which line I should adopt, I think it desirable to set out what I believe to be the approach which we, in the High Court, should now make when we are required to consider whether we should follow a decision of the House of Lords. In Piro v. W. Foster & Co. Ltd. [1943] HCA 32; (1943) 68 CLR 313 Latham C.J., after referring to the desirability that there should be uniformity of decision on matters of legal principle and expressing the opinion that to achieve that end this Court and other Courts in Australia should as a general rule follow decisions of the House of Lords, went on to say that "it will be a wise general rule of practice that in cases of clear conflict between a decision of the House of Lords and of the High Court, this Court, and other courts in Australia, should follow a decision of the House of Lords upon matters of general legal principle" (1943) 68 CLR, at p 320 . To much the same effect were the remarks of other members of the Court. In pursuance of this rule of practice the High Court has on occasions overruled or refused to follow its own earlier decisions when they were thought to have been in conflict with the law as later laid down in English courts. For example, in Waghorn v. Waghorn [1942] HCA 1; (1942) 65 CLR 289 , the Court for this reason refused to follow its earlier decision in Crown Solicitor (S.A.) v. Gilbert [1937] HCA 79; (1937) 59 CLR 322 , and in Piro's Case [1943] HCA 32; (1943) 68 CLR 313 it overruled its earlier decision in Bourke v. Butterfield & Lewis Ltd. [1926] HCA 38; (1926) 38 CLR 354 . But the decision of the House of Lords in Director of Public Prosecutions v. Smith (1961) AC 290 forced a reconsideration of the earlier policy based on Piro's Case [1943] HCA 32; (1943) 68 CLR 313 . In Parker's Case [1963] HCA 14; (1963) 111 CLR 610 Dixon C.J. expressed the opinion, with which every member of the Court agreed, that that policy should no longer be followed and went on to say that no court in Australia should follow Smith's Case (1961) AC 290 . This statement is not to be taken to have meant that judgments of the House of Lords are not to be treated by this and every other court in Australia with all the respect that is rightly due to decisions of the ultimate appellate tribunal in England. But it does mean that if the High Court comes to the firm conclusion that a decision of the House of Lords is wrong it should act in accordance with its own views. And I think it also follows from Parker's Case [1963] HCA 14; (1963) 111 CLR 610 that we should depart from the statement in Piro's Case [1943] HCA 32; (1943) 68 CLR 313 that, where there is a clear conflict between a decision of the House of Lords and of the High Court upon a matter of general legal principle, other courts in Australia should follow the decision of the House of Lords in preference to the High Court. In Houston v. Stone (1943) 43 SR (NSW) 118 Jordan C.J. said: "In my opinion, however, it is the duty of this Court to treat itself as bound by a decision of the High Court unless it is clearly in conflict with some later decision of the High Court itself, or of the Privy Council, which is directly in point. The High Court is the ultimate Court of Appeal for Australia, subject only to the possibility of an appeal to the Judicial Committee of the Privy Council. That Court may or may not be disposed to defer to a decision of the House of Lords in preference to an inconsistent decision previously given by itself; but unless and until it is ruled that the Supreme Court of a State is at liberty to act as arbiter between these tribunals and to follow the House of Lords in preference to the High Court, or that it is its duty in every case to prefer the former, I think that only the High Court itself or the Privy Council can determine that a decision of the High Court should no longer be treated as authoritative. This was the principle upon which this Court acted in Hall v. Wilkins (1933) 33 SR (NSW) 220; 50 WN 44 . In my opinion, it makes no difference that the House of Lords may have expressly referred to the decision of the High Court which is sought to be called in question and refused to guide itself by it" (1943) 43 SR (NSW), at p 123 . (at p139)
3. This passage, in my opinion, defines the course that should now be followed. Where, however, there is no decision of the High Court on a question that arises in some other Australian court and a decision of the House of Lords is directly in point, the court which is called upon to decide the question will no doubt follow the decision. (at p139)
4. Bearing these matters in mind, the conclusion to which I have finally come in the present case is that the principles laid down in Benham's Case (1941) AC 157 which were accepted by Lords Reid and Devlin in West's Case [1963] UKHL 3; (1964) AC 326 should be followed and applied in Australia and this necessarily involves a rejection of the reasoning upon which the majority of their Lordships in the last-mentioned case and of the Court of Appeal in Wise's Case (1962) 1 QB 638 based their conclusions. (at p139)
5. I agree, therefore, that the total award in the present case should be that proposed by my brothers Kitto and Taylor. (at p139)
Appeal allowed with costs. Judgment of the Supreme Court of Western Australia varied by substituting for the sum of 5,790 pounds the sum of $12,930.
# Skelton
Collins \[1966\] HCA 14;
(1966) 115 CLR 94
(1943) 68 CLR 313
(1961) 106 CLR 340
(1963) 111 CLR 610
(1963) 108 CLR 491
(1961) 105 CLR 327
(1965) 39 ALJR 258
(1942) 65 CLR 289
(1937) 59 CLR 322
(1926) 38 CLR 354