Pickett v British Rail Engineering Ltd (1980) The deceased was awarded damages before his death and made an appeal against quantum which was heard after his death. . judgment in Harris v. Brights Asphalt ContractorsLtd. His personal representatives appealed. refer to the judgment in Phillips v. London and South Western RailwayCompany without disagreeing with it. An example of data being processed may be a unique identifier stored in a cookie. In the autumn of 1976 Stephen Brown J. had before him a claim fordamages for negligence brought by a workman against his employers. They can shed light, and diminish the possibilityof misunderstanding. . It may not be unfair to paraphrase themas saying: " Nothing is of value except to a man who is there to spend or" save it. 94 Taylor J. referred to " the anomaly that would arise if Oliver v." Ashman is taken to have been correctly decided ", adding, " An incapacitated plaintiff whose life expectation has not been" diminished would be entitled to the full measure of the economic loss" arising from his lost or diminished capacity. The same should follow ifthe damages remain in real terms the same. . and providing for dependants." This appeal raises three questions as to the amount of damages which ought to have been awarded to Mr. Ralph Henry Pickett ("the deceased") against his employer, the respondent, for negligence and/or breach of statutory duty. I agree with the view often expressed by Lord Reid, thatif there is only one speech it is apt to be construed as a statute, which isnot how a speech ought to be treated. The defendants. British Transport Commission v Gourley [1956] AC 185. pre-trial loss of earning is net earnings (after tax and national insurance deductions) . If, however, there is a number ofspeeches, the general principles which it is the function of this House to laydown will be distilled from them. It is, of course, the function ofthis House to lay down general rules, to reduce the partialities of previousdecisions to some simple universal, but even after the most comprehensiveof arguments there remain aspects of a legal problem which were not in viewwhen the decision is reached. (per Willmer L.J. But, my Lords, in reality that was not so. . And Windeyer J. speaking of " the principle of compensation . If, therefore, attention be directed only to the authorities, Ithink it may be said that Oliver v. Ashman was wrongly decided, and thatthe court in that case should have followed its own decision in Roach v. Yates. was of the same view, butMacKinnon L.J. Cited - Phillips v London and South Western Railway Co CA 1879 In an action against the railway company for personal injury to a passenger, a physician, making pounds 5,000 a year, and where is an increasing practice, . There is force in this submission. Following the much anticipated decision of the Court of Appeal in Swift v Carpenter John Ross QC and Thomas Yarrow provide a comprehensive analysis of the difficulties accommodation claims present . If money was wrongfully withheld, then . The major objections are these. On 14 July 1975 he issued a writ against the respondent claiming damagesfor personal injuries or physical harm. erroneous. My excuse forburdening your Lordships with a speech must be that, as my Lord, LordWilberforce, has remarked, in some cases a single speech may generateuncertainty. United Kingdom Engineering Director Execution at B/E Aerospace Aviation & Aerospace Experience B/E Aerospace December 2014 - Present Assystem UK March 2009 - November 2014 Boeing March 2005 - March 2009 GKN Aerospace March 2002 - March 2005 GKN Aerospace May 2000 - March 2002 Aerostructures Australia January 1999 - April 2000 Boeing March 1996 . On appeal: In such a case, the lost earnings are so unpredict-able and speculative that only a minimal sum could properly be awarded.At the other end of the scale, the claim may be made by a man in theprime of life or, if he dies, on behalf of his estate; if he has been in goodemployment for years with every prospect of continuing to earn a goodliving until he reaches the age of retirement, after all the relevant factorshave been taken into account, the damages recoverable from the defendantare likely to be substantial. As a result of the defendant's negligence, he has contracted adisease or suffered injuries which cut down his expectation of life to, say,five years and prevent him from earning any remuneration during thatperiod. " In this case it was held that " it would be grossly unjust to the plaintiff and his dependants were the law to deprive him from recovering any damages for the loss of remuneration which the defendant's . claim for loss of future pecuniary prospects", in myjudgment the proper conclusion is that, as Lord Morris of Borth-y-Gestsaid in West v. Shephard [1964] AC 326, at p.348: " The guidance given in Benham v. Gambling was, I consider," solely designed and intended to apply to the assessment of damages" in respect of the rather special ' head' of damages for loss of" expectation of life. It was not possible for a live plaintiff to claim damages for his lost years. Why, he asked, should the tortfeasorbenefit from the fact that as well as reducing his victim's earning capacityhe has shortened his victim's life? LordParker C.J., who tried the case at first instance, followed the decision inPope v. D. Murphy & Co. Ltd. and awarded him a lump sum of 11,000.The plaintiff appealed on the ground that that award was too low. We had not in mind continuing inflation and its effect on" awards. The law is not concerned with how a plaintiff spends the damages awardedto him. Formany years Mr. Pickett had worked in contact with asbestos dust and, as aresult, he developed mesothelioma of the lung, a condition which firstexhibited symptoms in 1974. It is a different matter that that. Suppose that, in the case I have postulated, the plaintiff's action fordamages for negligence came to trial two years after he first becameincapacitated. Earnings themselves strike me as being of no" significance without reference to the way in which they are used. The appellant was also awarded damages for the damage done to the . . by way of living expenses." Ifind it difficult in point of principle to accept as part of compensatorydamages a sum based upon that for which, had he lived longer, he wouldex hypothesi have had no use save to give it away. you should as nearly as" possible get at that sum of money which will put the party who has" been injured, or who has suffered, in the same position as he would" have been in if he had not sustained the wrong ". The House of Lords took the opportunity in Pickett v British Rail Engineering Ltd to overrule Oliver v Ashman and decided that, where the plaintiff's life expectancy was diminished as the result of the defendant's negligence, the plaintiff's future earnings were an asset of value of which he had been deprived and which could be assessed in . But these passagesin particular thejudgment of Lord Wark as Lord Ordinary in Reid's casewere neitherreported as relied on in argument nor taken up in the speech of ViscountSimon. The conclusion must be (and to my mind it is clear) that Benham v.Gambling was no authority compelling the decision in Oliver v. Ashman.It was not dealing with, and Viscount Simon did not have in mind, a claimby a living person for earnings during the lost years. The good-looking Vauxhall Victor FE Series went on sale in 1972 and was met by indifference from the motoring press. . Similarly, it is true that inReid v. Lanarkshire Traction Co., Lord Wark, the Lord Ordinary madesome observations which would also have helped the defendant in Oliverv. Following Oliver v. Ashman, [1962] 2Q.B. and in Australia (Skelton There was a reference to the speech ofLord Roche in Rose v. Ford and to the judgment of Lord Blackburn inthe Inner House in Reid v. Lanarkshire Traction Co. 1934 S.C. 79. The interest which such a man has in the earnings he might hopeto make over a normal life, if not saleable in a market, has a value whichcan be assessed. It seems, therefore, strange andunjust that his claim for loss of earnings should be limited to that one year(the survival period) and that he should recover nothing in respect of theyears of which he has been deprived (the lost years). I think the proper way of approaching" the problem is that which was followed in Phillips v. London South" Western Railway Company, the leading case on this matternamely," 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.". and decided the issue on damages in favour of the plaintiff, relyingupon what had been said in the Court of Appeal in the earlier cases to whichI have referred. 94in which the High Court of Australia, refusing to follow Oliver v. Ashman,achieved the same result. Your Lordships' House is, however, concerned with the principle of thematter. He is no longer there to earn them, since he has" died before they could be earned. Though to some the award of 7,000 may seem low, itis not so low as to support the inference that the judge's estimate was wholly. its purchasing power, has diminished.In theory the higher award at trial has the same purchasing power as thelower award which would have been made at the date of the service of thewrit: in truth, of course, judicial awards of damages follow, but rarely keeppace with, inflation so that in all probability the sum awarded at trial isless, in terms of real value, than would have been awarded at the earlierdate. who had indicated, in giving those reasons, that he was speaking forhimself, or whether MacKinnon L.J. 2. Notwithstanding itscitation by Upjohn L.J. I am not at all surprisedthat it never occurred to that distinguished court that the " lost years " shouldbe ignored in assessing damages for loss of earnings: nor that it did notoccur to Sergeant Ballantine, who appeared for the defendants. . Willmer L.J. I proceed to deal with these questions in turn :(1): Damages for the lost years, The question has long been debatedindeed, ever since Oliver v. Ashman[1962] 2 QB 210. In myopinion, to ignore the " lost years " would be to ignore the long establishedprinciples of the common law in relation to the assessment of damages. Holroyd Pearce L.J. In fact, he died 5 months later,onthe 15th March 1977. MLB headnote and full text. Contains public sector information licensed under the Open Government Licence v3.0. He then proceeded to examine Benham v. Gambling and reached theconclusion that it was a binding authority in favour of the first view. Lord Wright . If I cannot do this, I have" been deprived of something on which a valuea present valuecan be" placed"? Pickett v British Rail Engineering Ltd [1980] AC 136, considered. I agree with the speeches of my noble and learned friends, LordWilberforce, Lord Salmon and Lord Edmund-Davies. in Oliver v. Ashman. For over 60 years, we've been recognized for our vast experience, first-rate service and exceptional safety practices. Suppose a plaintiff who is 50 years old and earning a good living witha reasonable expectation of continuing to do so until he reaches 65 yearsof age. agreed with both judgments, and it is difficult to regardas other than accurate the headnote which attributes to all three membersof the Court the view expressed by Slesser L.J. I think the proper way of approaching the problem is that" which was followed in Phillips v. London & South Western Railway" Co. (1879)5 QBD 78, the leading case on this matternamely, first" to consider what sum he would have been likely to make during his" normal life if he had not met with his accident.". . Generally, the amount recoverable may be limited where, for instance, the deceased's character or habits were calculated to . Or are his words to berelated to the case then before this House? I do not accept the suggestion that Parliament in enactingthe Fatal Accidents Acts must have assumed a live plaintiff's claim for the, It has, my Lords, correctly been remarked that though in the instant casethe plaintiff had dependants who (it was assumed) were barred from aFatal Accidents Act claim by the judgment, the question of the lost yearsmust be answered in the same way in a case of a plaintiff without dependants.But the solution proposed, involving as it does deduction from lost years'earnings of the plaintiff's living expenses, appears to me to attempt to splicetwo quite separate types of claim: a claim by dependants for dependencyand a claim by the plaintiff himself. My Lords, if more recent periods in the House exemplify excessive multi-plication of speeches, there are instances, of which this must certainly beone, where a single speech may generate uncertainty. In theory, therefore, and to some extent in practice, inflation is takencare of by increasing the number of money units in the award so that thereal value of the loss is met. This was compounded for the greater part by the sum of 7,000for pain, suffering and loss of amenities. Cited Jefford v Gee CA 4-Mar-1970 The courts of Scotland followed the civil law in the award of interest on damages. Cited Pope v D Murphy and Son Ltd QBD 1961 Both the injured plaintiffs 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 plaintiffs pre-accident expectation of life. . The judgments, further,bring out an important ingredient, which I would accept, namely that theamount to be recovered in respect of earnings in the " lost" years should beafter deduction of an estimated sum to represent the victim's probable livingexpenses during those years. . ". the defendants, British Rail Engineering Ltd., his employers, for serious. His expectation of life was reduced to one year. . For it ensures that pecuniaryloss and non-pecuniary loss will be assessed separately. Cited Rose v Ford HL 1937 Damages might be recovered for a loss of expectation of life. In a task as imprecise and immeasurable as the award ofdamages for non-pecuniary loss, a preference for 10,000 over 7,000 is amatter of opinion, but not by itself evidence of error. A full list of legal databases can be found by title and all databases available at Oxford can be found on Databases A . Hethought it flowed from that principle " that anything having a money value" which the plaintiff has lost should be made good in money." The policy of the Acts was, in my opinion, clearly to put thatman's dependants, as far as possible, in the same financial position as theywould have been in if the bread-winner had lived long enough to obtainjudgment against the tortfeasor. I would, therefore, allow the appeal and cross-appeal and remit the actionto the Queen's Bench Division to assess the damages in relation to theplaintiff's loss of earnings during the " lost years ". Get 1 point on adding a valid citation to this judgment. For these reasons I think the Court of Appeal erred in refusing to allowinterest on the award of damages for non-pecuniary loss. had said in the House ofLords in Benham v. Gambling [1941] AC 157; see for example, the judgmentof Holroyd Pearce L.J., in [1962] 2 Q.B. loss of earnings are limited in the first case to the period of shortenedexpectation of life, and, in the second, to the shortened period of life.Under the Oliver v. Ashman rule no claim for loss of earnings can be madein respect of the period the plaintiff could have expected to live, had hislife expectation not been shortened by the accident giving rise to his claim.He cannot recover in respect of the earnings he could have expected duringthe " lost years ". except that he andhis brethren had agreed that the damages of 2,742 awarded by the trialjudge were far too low and should be increased to 6,542. I shall not review inany detail the state of the authorities for this was admirably done byPearce L.J. He ought not to gain still more by having interest from the date of" service of the writ.". that, where any injury is to be compensated by damages, in" settling the sum of money to be given . . That casewas dealing only with a head of damages for loss of expectation of lifewhich, as was there stressed, is not a question of deprivation of financialbenefits at all. Once this isestablished, the two views stated by Pearce L.J. . Not surprisingly,no claim was made for damages in respect of the earnings that this infantmight have lost because such damages could only have been minimal; andaccordingly no argument was addressed to this House on the issue raisedon the present appeal. It is importantthat judges' assessments should not be disturbed unless such error can beshown, or unless the amount is so grossly excessive or insufficient as to leadto the conclusion that some such error must have taken place. The claimant sought damages for the reduction in his prospects of disease-free survival for . Indeed, anything elsewould be inconsistent with the general rule which Lord Blackburn hasformulated in these words: -. The sentences read as follows : " Of course, no regard must be had to financial losses or gains during" the period of which the victim has been deprived. and it is indeed" the only issue with which we are now concerned." On two of the three questions in this case, those touching interest and theincrease in damages by the Court of Appeal from 7,000 to 10,000 I amin agreement, and need not repeat the reasons given for what is proposed. I shall deal briefly with the other issues. Before leaving Oliver v. Ashman, I should like to refer to the passage inthe judgment of my noble and learned friend Lord Pearson at page 245, " In my view the conclusion, shortly stated, is that the conventional" sum in the region of 200 which is to be awarded for loss of expecta-" tion of life should be regarded as covering all the elements of it" e.g., joys and sorrows, work and leisure, earning and spending or" saving money, marriage and parenthood and providing for dependants" and should be regarded as excluding any additional assessment for" any of those elements.". 3 Van Gervan v Fenton (1991-1992) 175 CLR 327, considered COUNSEL: W Soffronoff QC, with K F Holyoak, for the applicant S J Given for the respondents SOLICITORS: Suncorp Metway Insurance Limited for the applicant . Ron DeSantis is squaring off with an unlikely opponent: the NHL. didmake plain the grounds on which he based his conclusions. In 1974 he developed symptoms which proved to beof mesothelioma of the lung, of which he later died. This report provides a literature review and comparative analysis of the advantages and disadvantages of no-fault compensation schemes (for medical injury) in New Zealand, Sweden, Norway, Denmark and Finland, as well as the limited schemes operating in Virginia and Florida in the United States.The report was prepared for the Scottish No Fault Compensation Review Group in 2010. 786) sometimes it does not. The determination of the quantum must answer what contemporary society "would deem to be a fair sum . This creates a difficulty. Cite article . I would, therefore,allow the cross-appeal and restore the judge's award of 7,000 generaldamages. Railway (1879)5 QBD 78 at p.87 of a physician injured in arailway accident. " And why should he be compensatedonly for the immediate reduction in his earnings and not for the loss ofthe whole period for which he has been deprived of his ability to earnthem? In either event, there would be a windfall for strangers at the expenseof the defendant. Pickett v British Rail Engineering [1980] AC 136 and Fox v British Airways [2013] EWCA Civ 972; [2013] ICR 1257), but Mrs Haxton had actually suffered the loss at the point of settling the first action. William Pickwoad OBE FRSA (1886-1975), prominent in South America's railway industry. He said (at p.268): " Criticism has been made of the suggestion that one method of" estimating his loss [of wages] is to consider what he would have" earned during his life. The damages are" in respect of loss of life, not of loss of future pecuniary prospects.". (2) Damages for pain, suffering, and loss of amenitiesThe Court of Appeal thought that the sum (7,000) awarded by the judge, was too low, and substituted a figure of 10,000. otherwise they would be overcompensated Loss of earnings - the lost years (Pickett v British Rail Engineering) established that claimants whose life expectancy had been shortened by the incident could recover loss of future . The reference to and reliance upon the principle in Pickett v. British Rail Engineering Ltd. as we may indicate presently, appears to us somewhat misplaced. . The plaintiff has lost the earnings and theopportunity, which, while he was living, he valued, of employing them ashe would have thought best. 161 (CA); 141 W.A.C. My Lords, these problems have been debated by the Law Commission.An attempt to solve them has been made for Scotland by the Damages(Scotland) Act 1976. My Lords, in my opinion, Benham v. Gambling illustrates how unfortunateit may sometimes be to have only one speech, however excellent, to explainthe decision of the Appellate Committee. From 1949 to 1974 Mr. Pickett was working for the respondent in the construction of the bodies of railway coaches . ." Enhance your digital presence and reach by creating a Casemine profile. It is not a claimby a dead person. Wright v British Railways Board [1983] 2 AC 773. the law is not concerned with what a plaintiff does with the damages towhich he is entitled is of course sound: but it assumes entitlement to thedamages, which is the very question. Liability was admitted by the employers,and the one issue arising in this appeal relates to the award of generaldamages. 1. Mr. Pickett, who was the plaintiff in the action, claimed damages fromthe defendants, British Rail Engineering Ltd., his employers, for seriouspersonal injury sustained in the course of his employment. He summarised the nature of the conflictbetween that case and Harris v. Brights Asphalt Contractors Ltd. in thisway (p.228): " On one view of the matter there is no loss of earnings when a man" dies prematurely. IMPORTANT:This site reports and summarizes cases. In Oliver v Ashman [1962] 2 QB 210 a boy of twenty months was so seriously injured in a motor accident that he became mentally defective and incapable of any . What he has lost is the prospect of earning whatever" it was he did earn from his business over the period of time that he" might otherwise, apart from the accident, have reasonably expected" to earn it.". Cited Harris v Brights Asphalt Contractors Ltd QBD 1953 The plaintiff was not to be prevented from recovering the costs of private medical treatment.It was argued and decided that (a) damages for the loss of earnings for the lost years is nil, and (b) the only relevance of earnings which would . The defendants appealagainst the increase by the Court of Appeal in the award of generaldamages. In the instant case the Court of Appeal has followed its dictum, disallowingthe interest granted by the judge on the damages for pain and suffering.My Lords, I believe the reasoning of the Court of Appeal to be unsound onthis point. But is the main line of reasoning acceptable? . Should the Court of Appeal have increased the general damages? 210, where a boyaged twenty months was injured by an accident which it was estimated hadhalved his reasonable expectation of living another sixty years. My Lords, neither can I see why this should be so. But, when a judge is assessing damages for pecuniary loss, the principleof full compensation can properly be applied. It makes sense in this context to speakof full compensation as the object of the law. Lord Wright stated the general principle in awell-known passage in his speech in Davies v. Powell Duffryn AssociatedCollieries Ltd. supra at page 617: " In effect the court, before it interferes with an award of damages," should be satisfied that the judge has acted on a wrong principle of" law, or has misapprehended the facts, or has for these or other reasons" made a wholly erroneous estimate of the damage suffered. The relevant line of authority is not that which culminatedin Benham v. Gambling but that which had begun with Phillips v. L. &S.W.R. Suffering and loss of future pecuniary prospects. `` issue with which we are now concerned. the Government... Not to gain still more by having interest from the motoring press courts of Scotland followed the law... Issue arising in this Appeal relates to the award of interest on.... Appeal relates to the way in which they are used pain, suffering and loss amenities. Pecuniaryloss and non-pecuniary loss byPearce L.J data being processed may be a fair sum isestablished, the principleof full can! 7,000For pain, suffering and loss of life was reduced to one year which had begun with v.. For pecuniary loss, the principleof full compensation as the object of the writ. `` admirably byPearce... '' died before they could be earned Lordships ' House is, however concerned... Any injury is to be a windfall for strangers at the expenseof the defendant to... 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Damage done to the case then before this House allow the cross-appeal restore! Safety practices for negligence brought by a workman against his employers of 7,000 generaldamages survival.

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