A court dealing with personal injury claims normally makes a discount in respect of damages for the future loss of earnings
Lord Bridge said ‘The only issue arising in this appeal which is strictly one of law is whether, in assessing damages for loss of dependency arising from a fatal accident, the multiplier or number of years purchase should be calculated from the date of death or from the date of trial. Counsel for the defendant has contended for the former. Counsel for the plaintiff has throughout contended for the latter and this view prevailed with the learned Lord Chief Justice and the majority of the Court of Appeal. The judge, in a short note appended to the transcript in his report of the trial, said:
‘I took the view that there is no legal principle that the number of years of purchase (in this case I suggest 11 to 14) should be automatically reduced having regard to the number of years special damage since the death of the deceased and that the contrast sometimes made with personal injury cases is not a sound one’.
On this issue the majority of the Court of Appeal examined the speeches in your Lordships’ house in Cookson v Knowles [1979] AC 556 and reached the conclusion that Lord Diplock and Lord Fraser of Tullybelton had expressed opposite and irreconcilable opinions. Gibson L.J. illustrated his understanding of the supposedly conflicting doctrines by indicating how they would apply in assessing the dependency of the widow of a young man killed at the age of 21, in the following terms:
‘Should the action not come to hearing until five years had elapsed Lord Fraser of Tullybelton would assess at death the multiplier, which I take at say 18, and he would then allow five years’ special damage and 13 years as the multiplier of future loss. Lord Diplock, on the other hand, would also give five years’ special damage and then fix the multiplier on the assumption of the death of the deceased at the age of 26 years, which Mr. Hill conceded would not be appreciably less than the original figure of 18′.
On the basis of such a conflict, Gibson and O’Donnell L.JJ. held themselves free to choose which of the two doctrines they preferred and both came down in favour of the view they attributed to Lord Diplock.
It is to be observed that in Cookson v. Knowles Viscount Dilhorne, Lord Salmon and Lord Scarman all expressed their agreement with the speeches of both Lord Diplock and Lord Fraser of Tullybelton. Gibson L.J. recognised this and described it as a ‘confusing feature’ of the case. It would indeed be astonishing that such a radical conflict should have escaped the attention of the three concurring members of your Lordships’ House, but still more astonishing that neither Lord Diplock nor Lord Fraser of Tullybelton should have said a word to indicate any awareness that they were disagreeing with each other on a matter of fundamental principle.
My Lords, I have to say, with respect, that the majority of the Court of Appeal based their decision in this case on a misunderstanding of the decision in Cookson v. Knowles [1979] AC 556. In that case the widow’s claim under the Fatal Accidents Acts arose from the death of her husband at the age of 49. The trial judge took 11 years’ purchase from the date of death as the appropriate multiplier. But he applied it to the estimated annual dependency at the date of trial, 2 1/2 years after the date of death, to arrive at a single capital sum of damages on which he awarded interest at 9 per cent from the date of death to the date of trial. The Court of Appeal reduced the capital award by estimating the dependency in two parts: (a) from the date of death to the date of trial, (b) from the date of trial onwards and allowed interest on the first part of the award only at a reduced rate. For the purpose of the capital assessment, the trial judge’s figure of 11 years purchase from the date of death had to be divided; 2 1/2 was applied in calculating the pre-trial loss, 8 1/2 in calculating the future loss. But the propriety of calculating the overall multiplier from the date of death was not questioned. In the unanimous decision of this House affirming the Court of Appeal, Lord Fraser of Tullybelton dealt with the last point expressly in the following passage, at pp. 575-576:
‘In the present case the deceased was aged 49 at the date of his death and the trial judge and the Court of Appeal used a multiplier of 11. That figure was not seriously criticised by counsel as having been inappropriate as at the date of death, although I think it is probably generous to the appellant. From that figure of 11, the Court of Appeal deducted 2 1/2 in respect of the 2 1/2 years from the date of death to the date of trial, and they used the resulting figure of 8 1/2 as the multiplier for the damages after the date of trial. In so doing they departed from the method that would have been appropriate in a personal injury case and counsel for the appellant criticised the departure as being unfair to the appellant. The argument was that if the deceased man had had a twin brother who had been injured at the same time as the deceased man was killed, and whose claim for damages for personal injury had come to trial on the same day as the dependant’s claim under the Fatal Accidents Acts* the appropriate multiplier for his loss after the date of trial would have been higher than 8 1/2. On the assumption, which is probably correct, that that would have been so, it does not in my opinion follow that the multiplier of 8 1/2 is too low in the present claim under the Fatal Accidents Acts where different considerations apply. In a personal injury case, if the injured person has survived until the date of trial, that is a known fact and the multiplier appropriate to the length of his future working life has to be ascertained as at the date of trial. But in a fatal accident case the multiplier must be selected once and for all as at the date of death, because everything that might have happened to the deceased after that date remains uncertain. Accordingly having taken a multiplier of 11 as at the date of death and having used 2 1/2 in respect of the period up to the trial, it is in my opinion correct to take 8 1/2 for the period after the date of trial. That is what the Court of Appeal did in this case/
If I may say so, respectfully, I find the reasoning in this passage as cogent as it is clear. But, what is perhaps more important, I can find nothing in the speech of Lord Diplock which conflicts in any way with Lord Fraser of Tullybelton’s reasoning or with his conclusion. The two passages cited by Gibson L.J. from Lord Diplock’s speech dealing with the assessment of the dependants’ future loss from date of trial are not directed to the question of the appropriate multiplier and certainly lend no support to the doctrine that this can be calculated on the assumption that the deceased, if he had survived the accident, would certainly have remained alive and well and in the same employment up to the date of trial. Such a doctrine, ignoring the uncertainty which, as Lord Fraser of Tullybelton pointed out, affects everything that might have happened to the deceased after the date of his death, is clearly contrary to principle and would lead to the highly undesirable anomaly that in fatal accident cases the longer the trial of the dependants’ claims could be delayed the more they would eventually recover.
Accordingly, in so far as the learned Lord Chief Justice based his directions to the jury with respect to the multiplier to be applied in assessing future loss on the considerations appropriate in awarding damages for future loss of earnings to a surviving plaintiff in a personal injury case aged 4 5 (the age the plaintiff’s husband would have attained at the date of trial if he had survived) and treated the pre-trial loss as ‘special damage,’ and in so far as the majority of the Court of Appeal approved the directions given on that basis, they erred in law’.
Judges:
Lord Bridge
Citations:
[1983] 1 WLR 808, [1983] NI 22, [1983] 2 All ER 953
Statutes:
Fatal Accidents (Northern Ireland) Order 1977
Jurisdiction:
Northern Ireland
Cited by:
Not Followed – Knauer v Ministry of Justice SC 24-Feb-2016
The court was asked: ‘whether the current approach to assessing the financial losses suffered by the dependant of a person who is wrongfully killed properly reflects the fundamental principle of full compensation, and if it does not whether we . .
Lists of cited by and citing cases may be incomplete.
Personal Injury, Damages
Updated: 16 May 2022; Ref: scu.606461