Tort. Damages. Personal Injuries. Fatal Accidents Acts

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  • Editorial Committee of the Cambridge Law Journal

    Tort. Damages. Personal Injuries. Fatal Accidents ActsAuthor(s): C. J. HamsonSource: The Cambridge Law Journal, Vol. 21, No. 1 (Apr., 1963), pp. 32-37Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4504838 .Accessed: 11/06/2014 11:02

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  • The Cambridge Law Journal The Cambridge Law Journal

    for non-occupiers, other than landlords strictly so called. The immunity of landlords has not escaped the attention of the legis- lature, for the Occupiers' Liability Act, 1957, s. 4 (1) places the landlord under the same common duty of care towards lawful visi- tors to the demised premises as if the landlord were the occupier of those premises, but only in respect of dangers arising from any default by him in carrying out an obligation to the tenant for the maintenance or repair of the premises. By section 4 (2) the land- lord is not liable unless notice of want of repair has been given to him, for such notice is necessary before the default is actionable at the suit of his tenant. The landlord is only liable to the visitor if, being in breach of his covenant or obligation, and the danger arises therefrom, he is also in breach of the common duty of care to the visitor. The Act imposes liability only where the tenancy puts an obligation on the landlord to maintain or repair the premises. It imposes no new liability on a landlord as to the condition of the premises at the beginning of the tenancy. Obligations imposed by any enactment are treated as imposed by the tenancy, and " ten-

    ancy " includes a statutory tenancy which does not in law amount to a tenancy, and includes also any contract conferring a right of occupation, and " landlord " shall be construed accordingly (sec- tion 4 (7)). The Housing Act, 1957, s. 6 provides that notwith- standing any stipulation to the contrary, there is an implied obliga- tion on the landlord of dwelling-houses below a certain rental, to keep them fit for human habitation. Under the Housing Act, 1961, ss. 82 and 88, a covenant is implied on the part of the lessor of a dwelling-house to repair the structure and exterior, and certain installations in it, where the lease is for less than seven years. There is no exclusion or limitation of this obligation, but the county court judge may with the consent of the parties exclude or modify the obligation.

    The result of the legislature's intervention is accordingly that the immunity conferred upon the landlord by Cavalier v. Pope is only operative where there is no covenant or obligation, express or implied, on his part towards his tenant to maintain or repair the premises demised.

    T. ELLIS LEWIS.

    TORT-DAMAGES-PERSONAL INJURIES-FATAL ACCIDENTS ACTS

    THE damages recoverable in an English court for personal injuries, whether or not fatal, are in general gravely inadequate-in the strictest sense that they do not provide adequate compensation

    for non-occupiers, other than landlords strictly so called. The immunity of landlords has not escaped the attention of the legis- lature, for the Occupiers' Liability Act, 1957, s. 4 (1) places the landlord under the same common duty of care towards lawful visi- tors to the demised premises as if the landlord were the occupier of those premises, but only in respect of dangers arising from any default by him in carrying out an obligation to the tenant for the maintenance or repair of the premises. By section 4 (2) the land- lord is not liable unless notice of want of repair has been given to him, for such notice is necessary before the default is actionable at the suit of his tenant. The landlord is only liable to the visitor if, being in breach of his covenant or obligation, and the danger arises therefrom, he is also in breach of the common duty of care to the visitor. The Act imposes liability only where the tenancy puts an obligation on the landlord to maintain or repair the premises. It imposes no new liability on a landlord as to the condition of the premises at the beginning of the tenancy. Obligations imposed by any enactment are treated as imposed by the tenancy, and " ten-

    ancy " includes a statutory tenancy which does not in law amount to a tenancy, and includes also any contract conferring a right of occupation, and " landlord " shall be construed accordingly (sec- tion 4 (7)). The Housing Act, 1957, s. 6 provides that notwith- standing any stipulation to the contrary, there is an implied obliga- tion on the landlord of dwelling-houses below a certain rental, to keep them fit for human habitation. Under the Housing Act, 1961, ss. 82 and 88, a covenant is implied on the part of the lessor of a dwelling-house to repair the structure and exterior, and certain installations in it, where the lease is for less than seven years. There is no exclusion or limitation of this obligation, but the county court judge may with the consent of the parties exclude or modify the obligation.

    The result of the legislature's intervention is accordingly that the immunity conferred upon the landlord by Cavalier v. Pope is only operative where there is no covenant or obligation, express or implied, on his part towards his tenant to maintain or repair the premises demised.

    T. ELLIS LEWIS.

    TORT-DAMAGES-PERSONAL INJURIES-FATAL ACCIDENTS ACTS

    THE damages recoverable in an English court for personal injuries, whether or not fatal, are in general gravely inadequate-in the strictest sense that they do not provide adequate compensation

    82 82 [1963] [1963]

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  • Case and Comment

    even for the actual monetary loss suffered, quite apart from any solatium for pain and suffering, loss of the amenities of life, etc. The inadequacy is of a monstrous order when the injured person is the breadwinner of the family and his injuries are so severe that, though he is still alive at the trial, his expectation of life has been

    very seriously reduced. As the law now stands decided, neither can he whilst alive recover in respect of the future earnings of which he has been deprived by the tortfeasor's curtailment of his life, nor after his death can his dependants raise a claim under the Fatal Accidents Acts, once judgment has been rendered in his life- time, in respect of the loss which he was debarred from claiming and which now falls upon them. The situation is aggravated both

    by the period of limitation in respect of a claim for personal injuries being of three years, and by the inability or unwillingness of the courts to make a provisional award of damages-as other courts do -so as to keep in being claims for heads of damage which is pend- ing but has not yet materialised.

    The inadequacy of the damages awarded is in general recognised by the courts, at least in the sense that they recognise that neither the injured person nor his dependants, having the choice, could opt to suffer the loss in order to obtain the damages which the courts will award. It is in the circumstances quite remarkable that some courts should exhibit a highly misplaced ingenuity (see, e.g., Brown-

    ing v. War Office, p. 37, post) in striving to reduce still further the

    inadequate damages now recoverable. The state of affairs is such that no effective remedy can be expected unless Parliament inter- venes. Some intervention by Parliament is in fact not unlikely in this field. Nevertheless the Parliamentary remedy, however neces- sary, is in itself defective; for its operation is local (whereas the common law is widely diffused over the world), the cure effected is

    fragmentary (since the Act deals with a particular matter and almost necessarily incompletely) and being an external agency act-

    ing mechanically it cannot supply the organic internal energy required to keep the common law body healthy or even alive. It is a notable failure of the common law, as a system operating in this

    country, that while claiming to be a judge-made law it is unable

    today to rely upon judicial decision to maintain itself, of its own initiative, as a going concern.

    In the meantime one must be thankful for such small mercies or alleviations as may be found to exist. Two recent cases illustrate

    points of a minor order, no doubt, but they show at least a tendency not further to aggravate the existing evil. In Voller v. Dairy Pro- duce Packers Ltd. [1962] 1 W.L.R. 960, Nield J. was able to call

    C.L.J.-2

    C.L.J. 33

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  • The Cambridge Law Journal

    in aid the proposition that a monetary benefit accruing to a depen- dant from the deceased's estate is not always, nor even usually, to be set off pound for pound against the estimated loss resulting from the deceased's death.

    This proposition is in fact most attractively and cogently set out in the case, apparently not cited to Nield J., of Daniels v. Jones

    [1961] 1 W.L.R. 1108 where the Court of Appeal, approving the

    judgment of Winn J., held that where the family was a happy and united one, though the estate of the deceased passing on his death to his widow was large " there was but little profit to the wife in

    having the capital (shorn by death duties) in her own hands instead of having a larger sum (not so shorn) in the husband's hands "

    (Holroyd Pearce L.J. at p. 1110) and " whatever its (the estate's) value, the reality of the situation is that for all practical purposes the widow (and her family) were enjoying the benefit of it almost as much before the death of the deceased as they do now

    " (Will- mer L.J. at p. 1114) and " the widow acquired title to the remain-

    ing investments and though as a matter of practical reality she is

    very little better off financially by reason of this transfer of title, probably some small allowance should be made under this head "

    (Pearson L.J. at p. 1116). All that may be happening in such a case is that the death merely accelerates the transfer of a property which would in due course come to the beneficiaries: the allowance to be made in respect of that transfer is the value, if any, of the accelera- tion merely and not of the property transferred. In some instances the transfer of the property subject to death duties would simply diminish the value to the family of the family's existing property and would in no way compensate the family for the loss of the additional income earned by the deceased in his business or

    profession-which in Daniels' case was large. Dealing with a very much smaller estate in Voller's case, Nield

    J. was able to hold that a home valued at 8,500 but subject to a

    mortgage of 779 which devolved upon the infant children of the deceased (through the estate of the widow who herself had died, also intestate, some eighteen months after the accident) should be

    regarded as conferring a benefit of 375 only upon the children. If the value of the house was to be brought into account by the children at all-and the judge properly held that it should not be

    brought into account by the widow-the method of assessing its value for the purposes of deduction is certainly welcome. Neverthe- less even in this case, in spite of this alleviation, the total damages awarded in respect of the death-to the estate of the deceased, to that of the widow and to the two children-was 4,407 12s. 6d. and that in respect of the death of a man who, aged thirty-six, had

    [1968] 84

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  • Case and Comment

    recently set up in business on his own after having been employed as a plumber and whose annual profits in business had risen from 519 in 1953 to an actual amount of 1,747 in 1957 and to an estimated amount of 1,942 in 1958, the year of his death. It is surely impos- sible to suggest that the deceased or his dependants were adequately compensated for even the strictly monetary loss resulting from the death.

    Similarly Mocatta J. in Malyon v. Plummer [1962] 3 W.L.R. 1378 was able to take advantage of the Fatal Accidents Act, 1959, s. 2-itself prompted by previous adverse decisions of the courts- and to distinguish Burgess v. Florence Nightingale Hospital for Gentlewomen [1955] 1 Q.B. 349, in order to award somewhat less

    inadequate damages to the widow and two children aged eleven and seven in the case before him.

    The husband there had been killed in a motor accident for which the defendant admitted entire responsibility. The widow was the sole beneficiary under the husband's will. The husband, aged forty, had been in reality a self-employed person selling and distributing electrical machinery. His business was prospering: it had reached its ceiling as a " one-man " business, and he was intending to engage a manager, which would have led to an increase in scale. The family was a close and happy one: the husband spent nearly two- thirds of the income from the business upon the family, and the court held that he would have spent more when the income increased. He had, no doubt for tax purposes, formed a " one- man company " in which he held 999 shares and his wife the remaining one. Both were directors of the company and both were employed by it, the wife acting as secretary. Both received salaries determined by themselves as directors and effectively distributing the profits of the business: in the three years before the death the husband received 1,600, 1,450 and 1,800; the wife 600, 600 and 800 though the wife's salary was paid into the husband's

    banking account. The company had effected an accident insurance

    policy on the life of the husband for 2,000, and this was duly paid to the company on the husband's death. What was in issue was the total sum to be awarded to the family in respect of the husband's death-the distribution of that total sum between the widow and the children is not reported.

    The amount awarded by Mocatta J. must be regarded, in the

    present state of the law, as generous. He fixed the " dependency "

    at 1,375 p.a., though this only slightly exceeded the amount actu- ally expended from the business on the family during the year previous to the death; and he took as a multiplier the figure of

    C.L.J. 85

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  • The Cambridge Law Journal

    thirteen, thus reaching a total of 17,875. The debate centred upon the amount to be deducted from this total.

    It was admitted, and the fact of this admission should be noted, that the widow being the sole beneficiary under the husband's will, the value of the husband's estate would have to be deducted. The husband's estate consisted principally of the 999 shares in the com- pany. If the 2,000 insurance money received by the company was taken into account, the shares were worth 2 14s. 6d. each; and if it was not, 14s. 6d. It was not denied that the Inland Revenue authorities would set a value of not less than 2 14s. 6d. per share for estate duty purposes. Should 2,650 or 650 be brought into account by the widow as the benefit received under her husband's will ? Mocatta J. was able to adopt a liberal interpretation of sec- tion 2 of the Fatal Accidents Act, 1959, and to hold that, though it was received by the company as a capital asset and obtained or obtainable as such by the widow upon distribution, the money paid by the insurance company nevertheless remained "insurance money... paid as a result of the death " within the meaning of that section and therefore need not be brought into account by her, with the result that the sum to be deducted under this head was 650 only.

    A more formidable argument against the widow was that since she received a salary of 800 per annum from the company as sec- retary, and since this 800 (which, less tax, was assessed at 668) was in fact used by the husband to pay for part of the 1,375 per annum " benefits " conferred upon the family, the loss resulting from the husband's death was not 1,375 per annum but 1,875- 668, so that the total dependency should be reduced from 17,875 to 9,191 (i.e., 707 x 13). On the authority of Burgess's case, it was argued, the interference (if interference there was) with the contract between the widow and the company was too remote a

    consequence of the husband's death. On this point also, Mocatta J. was able to reach a common-sense decision. He held (p. 1386) "the work done.by the plaintiff [widow] . . . was little more than nominal . . . the payment to her by way of salary as a director instead of a direct payment by the husband out of a larger salary of his own was mere machinery, no doubt carrying independent tax

    advantages ... The salary which the plaintiff received .. . derived

    solely from the relationship of husband and wife between her and the deceased." In point of fact an attempt was made to carry on the business after the husband's death, but from being a profitable concern it rapidly began to incur losses. The company's business was evidently the husband's business in every possible respect.

    86 [1968]

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  • Case and Comment Case and Comment

    Yet in spite of Mocatta J.'s assessment being properly describ- able as generous in the present state of the law, upon any realistic assessment, let alone any actuarial calculation, the sum awarded even so fails to be adequate as compensation for the monetary loss reasonably to be estimated as suffered by the family: the monetary loss resulting to a family from the death at age forty of an able and devoted husband and father who was successfully expanding a thriving business very much exceeds thirteen times a part of the annual profit he was making at that particular stage of his career. Whatever the minor alleviations which these cases may illustrate it passes belief that it can be argued, as it has been, upon the plea that damages should be compensatory and not punitive, that the damages today awarded by English courts for personal injuries, whether or not fatal, should be further reduced.

    C. J. RAMSON.

    DAMAGES-LOSS OF EARNINGS-DEDUCTION OF PENSION

    IF the plaintiff in an action for damages for personal injury receives a pension from his employer, must the value of the pension be taken into account in assessing damages for loss of earnings ? This was the question raised by Browning v. War Office [1963] 2 W.L.R. 52, and one might have been pardoned for supposing that it had already been conclusively answered in the negative by the Court of Appeal in Payne v. Railway Executive [1952] 1 K.B. 26, the reasoning of which was accepted and applied by Finnemore J. in Judd v. Hammersmith, etc., Hospital Board [1960] 1 W.L.R. 818. Nevertheless the majority of the Court of Appeal in Browning's case managed to distinguish Payne v. Railway Executive, to ignore Judd's case although it was cited in argument, and to answer the question in the affirmative. Accordingly the plaintiff, who had been a technical sergeant in the U.S. Air Force and whose injuries had caused his discharge from the service, found his damages for loss of earnings reduced by 18,000, this being the grossed up value of a " veteran's benefit " or pension to which he was entitled under U.S. law.

    The means used for disposing of Payne's case are a little sur- prising. In that case the Court of Appeal held that the plaintiff's naval pension was not to be taken into account against his damages and gave two reasons for their decision: first, that payment of the

    pension was attributable to the plaintiff's service in the Royal Navy, it being one of the benefits of such service, and not to the defendant's negligence; secondly, that the plaintiff did not have an

    Yet in spite of Mocatta J.'s assessment being properly describ- able as generous in the present state of the law, upon any realistic assessment, let alone any actuarial calculation, the sum awarded even so fails to be adequate as compensation for the monetary loss reasonably to be estimated as suffered by the family: the monetary loss resulting to a family from the death at age forty of an able and devoted husband and father who was successfully expanding a thriving business very much exceeds thirteen times a part of the annual profit he was making at that particular stage of his career. Whatever the minor alleviations which these cases may illustrate it passes belief that it can be argued, as it has been, upon the plea that damages should be compensatory and not punitive, that the damages today awarded by English courts for personal injuries, whether or not fatal, should be further reduced.

    C. J. RAMSON.

    DAMAGES-LOSS OF EARNINGS-DEDUCTION OF PENSION

    IF the plaintiff in an action for damages for personal injury receives a pension from his employer, must the value of the pension be taken into account in assessing damages for loss of earnings ? This was the question raised by Browning v. War Office [1963] 2 W.L.R. 52, and one might have been pardoned for supposing that it had already been conclusively answered in the negative by the Court of Appeal in Payne v. Railway Executive [1952] 1 K.B. 26, the reasoning of which was accepted and applied by Finnemore J. in Judd v. Hammersmith, etc., Hospital Board [1960] 1 W.L.R. 818. Nevertheless the majority of the Court of Appeal in Browning's case managed to distinguish Payne v. Railway Executive, to ignore Judd's case although it was cited in argument, and to answer the question in the affirmative. Accordingly the plaintiff, who had been a technical sergeant in the U.S. Air Force and whose injuries had caused his discharge from the service, found his damages for loss of earnings reduced by 18,000, this being the grossed up value of a " veteran's benefit " or pension to which he was entitled under U.S. law.

    The means used for disposing of Payne's case are a little sur- prising. In that case the Court of Appeal held that the plaintiff's naval pension was not to be taken into account against his damages and gave two reasons for their decision: first, that payment of the

    pension was attributable to the plaintiff's service in the Royal Navy, it being one of the benefits of such service, and not to the defendant's negligence; secondly, that the plaintiff did not have an

    C.L.J. C.L.J. 87 87

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    Article Contentsp. 32p. 33p. 34p. 35p. 36p. 37

    Issue Table of ContentsThe Cambridge Law Journal, Vol. 21, No. 1 (Apr., 1963), pp. i-xii+1-168Volume Information [pp. i-xii]Case and CommentFinal Report of the Committee on Consumer Protection [pp. 1-7]Caveat Venditor: The Reform of the Law Relating to Innocent Misrepresentation [pp. 7-10]Disguised Extradition: Deportation or Extradition? [pp. 10-13]Compulsory Purchase. Collateral Objects and Irrelevant Considerations [pp. 13-17]Manslaughter. Provocation [pp. 17-18]Bigamy. First Marriage Potentially Polygamous [pp. 18-20]Evidence. Police Eavesdropping. Tape Recorders [pp. 20-22]Evidence. Statement Recorded on Oral Information. Informant Not Called as Witness. Admissibility of Record under Evidence Act, 1938 [pp. 22-24]Contract. Intention. Revocation of Offer [pp. 24-28]Negligence. Real Property. Liability of Builder to Tenant's Wife. Donoghue v. Stevenson [pp. 28-32]Tort. Damages. Personal Injuries. Fatal Accidents Acts [pp. 32-37]Damages. Loss of Earnings. Deduction of Pension [pp. 37-40]Contract. Oral Agreement for Tenancy for Lives. Entry into Possession. Law of Property Act, 1925, s. 40. Walsh v. Lonsdale Pleaded as Defence. County Courts Act, 1959, s. 74 [pp. 40-41]Advancement and Perpetuity [pp. 42-45]Power to Appoint among Issue. Appointment on Protective Trusts. Delegation. Excessive Execution [pp. 46-48]Marriage. Mistake as to Resulting Status. Mistaken Belief That Marriage Polygamous [pp. 48-50]Marriage. Form. Lex loci celebrationis. Invalidity. Common Law Marriage. Sphere of Application [pp. 50-53]

    The Freedom of Trade and Commerce in the Indian Constitution: The Atiabari Case and after [pp. 54-84]Protected Interests in the Law of Torts [pp. 85-103]Matrimonial Cruelty and Mens Rea [pp. 104-118]Some Principles of Fiduciary Obligation [pp. 119-140]Book ReviewsReview: untitled [pp. 141-143]Review: untitled [pp. 144-146]Review: untitled [pp. 146-147]Review: untitled [pp. 147-148]Review: untitled [pp. 148-150]Review: untitled [pp. 150-151]Review: untitled [pp. 151-152]Review: untitled [pp. 152-155]Review: untitled [pp. 155-157]Review: untitled [p. 157]Review: untitled [pp. 158-159]Review: untitled [pp. 159-160]Review: untitled [pp. 160-161]Review: untitled [pp. 161-162]

    Books Also Received [pp. 162-167]The University Law Society 1962-1963 [p. 168]

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