Skelton v Collins [1966] HCA 14 | Case summary

Skelton v Collins [1966] HCA 14 | Case summary | Zoe

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

[37]

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)

[39]

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)

[40]

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)

[43]

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)

[47]

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)

[50]

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)

[62]

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)

[66]

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)

[71]

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)

[76]

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)

Skelton v Collins [1966] HCA 14;

At a glance

Court

Decision date

Before

Source

Judgment (80 paragraphs)

Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94 (7 March 1966)

Parties

Cases Cited (10)