England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
THE COURT OF APPEAL (CIVIL DIVISION)
(From: Michael Eastham, Q.C.,
sitting as a Deputy Judge of the High Court)

		Royal Courts of Justice
		18th May. 1973

LORD JUSTICE DAVIES: Lord Justice Megaw will read the judgment of the Court in this case.

LORD JUSTICE MEGAW: Christopher Stefan Donnelly was involved in a road accident at West Ham Lane, London, on 2nd December, 1968. He was then 6 years of age. He sustained injuries to his right leg as a result of contact with the wheel of a 7-ton lorry driven by the defendant, Mr. Henry Joyce. The boy, through his father, Christopher Donnelly, as next friend, brought an action against Mr. Joyce claiming that the accident was caused by his negligence. The writ was issued on 5th April, 1971. The allegation of negligence was denied. The precise circumstances of the accident, and its cause, were in dispute at the trial. That the conclusion as to liability was not easy or obvious is clear from the judgment of the trial judge, Mr. Michael Eastham, Q.C., sitting as a Deputy Judge of the High Court. However, the learned judge on balance held that negligence on the part of the defendant was established. In view of the age of the infant plaintiff, no question of contributory negligence by him was raised. Judgment was given in favour of the plaintiff in the sum of £4,689.39.

The defendant appeals.

Although the notice of appeal sets out a number of grounds on which it is asserted that the judge's finding of liability is wrong, none of these grounds was pursued by Mr. Hamilton on behalf of the defendant in this court. The appeal is concerned only with the amount of damages. On that question, two issues were raised. The first issue relates to general damages. It is a short and simple issue. If the defendant were right, the amount involved might be substantial. The second issue relates to one element of the special damages. The amount involved is relatively trivial. But it is contended that an important question of principle arises, and numerous authorities have been cited.

We should mention that a similar issue, though not relating to an infant plaintiff, was one of the issues considered by another decision of this Court in a judgment delivered yesterday in Cunningham v. Harrison. We have reached our conclusion on the authorities cited to us, which appear in some respects, perhaps, to have been more extensive than those cited on this particular issue in the other appeal. Our conclusion on the issue of principle, though not necessarily on matters mentioned obiter, is the same as that stated in Cunningham v. Harrison.

The first issue is that the defendant contends that the sum of £4,000 awarded as general damages is excessive.

While the child's leg was badly torn by the wheel of the lorry, no bone was broken; there is no serious loss of function of the leg, either now or to be anticipated in the future, except to the extent that a likelihood of continuing recurrent breaks-down of the skin of the leg, below the knee, can be described as loss of function. As a result of the accident, there was extensive skin loss on the right leg, together with some laceration of the underlying tissue. Fairly extensive skin grafting was necessary. The boy was kept in hospital for some three months and he had to visit hospital daily for attention for some considerable time thereafter. Unfortunately, there remains a tendency for the scarring on the leg to break as the result of the slightest blow or knock. He cannot, therefore, take part in games. When he returned to school he was still on crutches. After his return there were substantial periods of enforced absence from school because of the condition of his leg. He has to wear a surgical boot, because the edge of the shoe rubs against the painful scar round the ankle. There was some psychological effect as a result of the accident and its consequences. The prognosis is that the abnormal susceptibility of the skin will continue throughout the boy's life. It will be a perpetual handicap and disability in various spheres of activity. We have seen the damaged leg. It is right to say that it is a distressing sight: far worse in appearance than we had realised as a result of the reading of the two medical reports. It will so remain for the rest of his life. Taking everything into account, we are unable to accept the submissions for the defendant that £4,000 is above the maximum which ought to be awarded for such an injury as this. We should not think it right to interfere with the award so far as it relates to general damages.

We turn now to the second issue. The particulars of special damage comprised three items. They were: (i) travelling expenses, presumably of the parents, to and from hospital; (ii) cost of special socks and boots; and (iii) "Two years' loss of wages incurred by the plaintiff's mother while caring for the plaintiff". The judge awarded the plaintiff a total of £212.16 for special damages, together with interest thereon. The sum was made up of agreed figures of £40 in respect of (i) and £25 in respect of (ii); and a figure of £147.16, which was not agreed, in respect of (iii).

The defendant's attack is upon the £147.16 awarded for item (iii). The learned judge arrived at this sum by reference to a loss of wages by the mother at the rate of £5.66 per week for six months, instead of for the period of two years as claimed. The defendant's attack on that part of the special damages is two-fold.

The first line of attack was that the plaintiff had failed to produce evidence on which the judge could properly hold that the consequences of the accident, and the resulting injuries to the little boy, reasonably required the mother to give up her job at all. That was put in the notice of appeal, but at the hearing Mr. Hamilton felt unable to support that proposition to the full extent. The mother had in fact given up her job (a part-time job in a hospital involving work from 6 to 8.30 p.m. six nights a week) as soon as the boy had been discharged from being an in-patient: that is, beginning some three months after the accident. For two months thereafter he had to attend daily as an out-patient, and of course someone had to accompany him to the hospital. Mr. Hamilton conceded that for that period of two months the mother's surrender of her employment could be said to have been reasonably necessary as a result of the accident: but two months, he contended, was on the evidence all that was reasonable. In our view that line of attack upon this item of special damage wholly fails. There was ample evidence on which the judge could reach the conclusion which he did reach as to the six-months period. The boy's leg, with its continual tendency to breaking of the skin and the development of keloids, required special bathing and dressing every evening, as well as at mid-day. The mother had received from the hospital special instruction as to the treatment of the leg. If she had not been available, the daily attendance of some qualified person would have been needed during the six-months period, and there was no suggestion that such attendance, if it had been paid for, would have cost less than the amount of the mother's wages. Had it cost less, the ordinary principle of mitigation of damages would have had to be considered. The first line of attack fails.

The second line of attack involves a question of law. The contention is that, as a matter of principle, this item of special damage is not recoverable in this action as constituted. Neither counsel who appeared before us appeared at the trial. We do not know what the arguments were. The learned judge, while expressing his conclusion in favour of the plaintiff, did not indicate in any detail what were the arguments presented to him or what authorities, if any, were cited. He merely said:

"I have come to the conclusion that I am entitled to give to the mother, on all the authorities which have been read and, in particular, my own experience in court where judges have ordered it, something in respect of her loss of wages while caring for the plaintiff. I do not think she is entitled to anywhere near two years. I do not think that that is reasonable to lay at the door of the defendant, but I think she is entitled to six months at the rate of £5.66, which comes to £147.16, making a grand total of £4,212.16".

Although the judge used the words quoted, "give to the mother", she was not a plaintiff in the action; and the formal order adjudged that "the defendant do pay to the plaintiff" (that is the boy) the whole amount awarded as damages.

Before us, counsel now appearing have gone through the whole gamut of the cases touching on the question of entitlement to recover damages in respect of services voluntarily rendered, including the loss of consortium. Mr. Hamilton contends that, even assuming, as we have held, that the judge was right to hold that the mother's services, necessarily involving her surrender of her employment and the loss of wages for six months, were reasonably required by the plaintiff because of his physical needs directly attributable to the accident, still the infant plaintiff cannot, in law, recover as damages the amount which his mother has lost as a result; for that is not the plaintiff's loss.

In our judgment, it is the plaintiff's loss, and he is entitled to recover that loss in this action.

Early in his address Mr. Hamilton for the defendant indicated that the position might have been different, so that the defendant might have been liable on the facts as we have held them to be, if the mother herself had been joined as plaintiff. Later in Mr. Hamilton's argument that indication became more firm, so that, as we understood it, the defendant was conceding, if ''concession" be the appropriate description, that the mother, had she been a plaintiff in this action or in a separate action, would have had a valid claim to the £147.16 against the defendant. Mrs. Donnelly, the mother, had not been joined as a plaintiff. If she were now to be joined, or were to start a separate action, she could and presumably would be met by an unanswerable defence because the period of limitation would have expired. It had already expired by the date when the action was heard. It had not — no doubt technically this was correct — been raised by way of pleading in the defence. No step had been taken by way of an application to strike out this item of the particulars of special damages, which the defendant now says is wholly misconceived in the action as it is constituted. If either of those steps had been taken, no doubt there could and would have been an application, if only as a matter of precaution, to join the mother as plaintiff. On the basis of Mr. Hamilton's present "concession", the defendant could not have successfully resisted the application. Those are the circumstances in which this question of principle is now raised.

In considering Mr. Hamilton's submission and concession, it is relevant to look at another curious feature of the present case. The defendant has not, even at this stage, challenged the validity of, or the entitlement of the plaintiff to recover in this action, the first two items of the particulars of special damage: that is, the travelling expenses to and from hospital, and the cost of special socks and boots. The defendant, indeed, agreed the amount on both those heads, assuming, as is no longer disputed, that the defendant was liable at all. Yet these amounts both represent payments made by the father or mother, or both, out of their own pockets, for the benefit of the infant, rendered necessary by the defendant's fault. In what relevant respect do these items of special damage differ, so far as concerns the right of the plaintiff to recover them in this action in which he alone is the plaintiff, from the item of money lost by the mother in order to give nursing attention to her infant son, necessitated by the defendant's wrongdoing? If the defendant is right in contending that this latter item is not recoverable in this action because the mother has not been joined as a plaintiff, how are the first two items recoverable? The suggested principle applies equally to all the items. The mother's loss of wages can properly be treated, for the purpose of the principle now in issue, as though it were of an identical nature with the payments covered by the other two items. Is the failure to challenge the first two items a matter of generosity on the part of the defendant, or his insurers? Or is it an indication that the suggested principle is not sound in law, and that the point is taken in relation to the item now challenged because, perhaps, of a wrong inference suggested by the way in which the third item is pleaded in the particulars of special damage: "....loss of wages incurred by the plaintiff's mother while caring for the plaintiff"?

Mr. Hamilton's first proposition is that a plaintiff cannot succeed in a claim in relation to someone else's loss unless the plaintiff is under a legal liability to reimburse that other person. The plaintiff, he says, was not under a legal liability to reimburse his mother. A moral obligation is not enough. Mr. Hamilton's second proposition is that if, contrary to his submission, the existence of a moral, as distinct from a legal, obligation to reimburse the benefactor is sufficient, nevertheless there is no moral obligation on the part of a child of six years of age to repay its parents for money spent by them, as in this case.

We do not agree with the proposition, inherent in Mr. Hamilton's submission, that the plaintiff's claim, in circumstances such as the present, is properly to be regarded as being, to use his phrase, "in relation to someone else's loss", merely because someone else has provided to, or for the benefit of, the plaintiff - the injured person - the money, or the services to be valued as money, to provide for needs of the plaintiff directly caused by the defendant's wrongdoing. The loss is the plaintiff's loss. The question from what source the plaintiff's needs have been met, the question who has paid the money or given the services, the question whether or not the plaintiff is or is not under a legal or moral liability to repay, are, so far as the defendant and his liability are concerned, all irrelevant. The plaintiff's loss, to take this present case, is not the expenditure of money to buy the special boots or to pay for the nursing attention. His loss is the existence of the need for those special boots or for those nursing services, the value of which for purposes of damages - for the purpose of the ascertainment of the amount of his loss - is the proper and reasonable cost of supplying those needs. That, in our judgment, is the key to the problem. So far as the defendant is concerned, the loss is not someone else's loss. It is the plaintiff's loss.

Hence it does not matter, so far as the defendant's liability to the plaintiff is concerned, whether the needs have been supplied by the plaintiff out of his own pocket or by a charitable contribution to him from some other person whom we shall call the "provider"; it does not matter, for that purpose, whether the plaintiff has a legal liability, absolute or conditional, to repay to the provider what he has received, because of the general law or because of some private agreement between himself and the provider; it does not matter whether he has a moral obligation, however ascertained or defined, so to do. The question of legal liability to reimburse the provider may be very relevant to the question of the legal right of the provider to recover from the plaintiffs.

That may depend on the nature of the liability imposed by the general law or the particular agreement. But it is not a matter which affects the right of the plaintiff against the wrongdoer.

The corollary of this proposition is that, unless at any rate some very special circumstances exist, such perhaps as the anomalous or anachronistic rules regarding loss of consortium or loss of services, inapplicable and irrelevant here, the provider has no direct cause of action against the wrongdoer. The "concession" to which we have referred, made on behalf of the defendant, is in our judgment wrong. We do not think we are prevented from so holding because of the fact that counsel for the plaintiff, if he did not specifically accept, at any rate did not reject, the proffered concession.

Before we refer to the authorities which in our judgment justify the proposition which we have stated as to the plaintiff's right of recovery from the defendant in circumstances where no legal liability exists requiring him to repay what has been paid by another on his behalf, we would make some observations about the suggestion that (a) a moral obligation, and (b) a private agreement between the plaintiff and the provider, are or can be relevant to determine who is the proper person to sue the defendant wrongdoer for money paid or expenses incurred on the plaintiff's behalf.

So far as moral obligation is concerned, we agree with that part of the judgment of Mr. Justice Paull in Schneider v. Eisovitch (1960 2 Queen's Bench 430, at page 440), in which he said that the existence of a moral obligation is not a material factor. We are aware that in other cases, though we believe in none which are binding on us, it has been held or suggested that a moral obligation is or may be relevant. For example, there is the view expressed by Sir Owen Dixon, Chief Justice, albeit obiter and in a dissenting judgment, in the High Court of Australia in Blundell v. Musgrave (1956) 96 Commonwealth Law Reports 73, at page 79. But with great respect can this be right? It is certainly not cynical to say that the law knows no criterion for deciding what is and what is not a moral obligation; or that the views of sensible, right-thinking, people may differ widely on such a question; or that the law would be gravely uncertain and defective if the answer to the question whether or not a moral obligation existed in a particular case were to be determinant of a person's right to sue. But it goes further than this. It would produce a very odd result. Suppose the provider, being a charitable person, the Good Samaritan of St. Luke's Gospel for example, has advanced money to provide nursing treatment for an injured neighbour who had suffered injuries by the crime or negligence of another. It might well be thought, by the Good Samaritan and other right-minded people, that there was no moral obligation on the injured man to repay unless and until he recovered compensation from the wrongdoer. But it might well be thought, also, by right-minded people that, if and when he recovered compensation, there would be such a moral obligation at least to offer repayment. Would it not be absurd that the question whether or not the injured man could successfully sue the wrongdoer for damages in respect of the loss ameliorated by the Good Samaritan's expenditure should depend on the existence of a moral obligation to repay, when in its turn the very existence or non-existence of that moral obligation itself would depend on whether or not he could successfully sue the wrongdoer?

Finally, on this head, if moral obligation were somehow or other relevant, is it clear that a child who in fact has, or is going to receive, funds is not under a moral obligation to repay its mother in circumstances such as exist in this case? If not, why not? Is it a subjective question, depending on the child's age or understanding?

Then, as regards agreements between the provider and the plaintiff. There are cases, particularly in recent years (though again, so far as we are aware, none which is binding on us) in which it has been held that the plaintiff's right to recover damages in respect of money paid or the value of services rendered on his behalf by some other person can be brought into existence if, subsequent to the wrongdoing, a contract for reimbursement is made between the plaintiff and the provider. For example, the decisions in Haggar v. De Placido (1972 1 Weekly Law Reports 716) and in McDonnell v. Stevens (reported in 'The Times" newspaper on 8th April, 1967) so hold. With all respect, this, in our judgment, is erroneous doctrine. Of course, if such an agreement is made, it may be relevant to the question whether the provider can recover from the plaintiff. But it should not be, and, as we think, is not, relevant to the question of the liability of the defendant wrongdoer, its extent, or the question to whom the liability is owed. The defendant is not a party to the contract. He knows nothing of its making. It is res inter alios acta.

Moreover, apart from the question of principle - involving, as the suggested principle does, the idea that a liability can be created, binding on a person, by a contract to which he is not a party - is there not something repulsive in the idea that the extent of a wrongdoer's liability for a part of the consequences of his wrongdoing should depend upon the willingness or otherwise of a would-be provider to require such a legally binding bargain to be made with the injured person as a condition of his assistance? Suppose that a wife has been seriously injured. Is the defendant's liability to depend upon whether, and if so when, the injured woman's husband, or her sister or her neighbour, had made a bargain with her (perhaps while she is lying gravely injured) that she will repay? Further, on the doctrine applied in Haggar v. De Placido, any money paid or expenses incurred by the provider before the agreement has been made are irrecoverable. So, if you incur expenses or render services on behalf of a person who cannot contract because he is unconscious, or is a child or is mentally incapable, you do so for the financial benefit of the wrongdoer. If that were the law, it would, we think, be regrettable. Many people, we believe, would prefer that a loss should go uncompensated rather than that they should make such bargains in such circumstances. Many injured persons would be distressed at the very fact that such a bargain was asked for, even if they understood its purpose. Many people, if they did purport to make such bargains, would not intend for one moment that, however the agreement might be phrased, it should create any legal effect in accordance with its terms: that is, the imposition of an enforceable legal liability upon the injured person. If such were the law, legal advisers would, we believe, often be gravely embarrassed at having the duty to advise that such agreements should be made. As we believe and hold, that is not the law.

We come to the authorities, binding on us, which lead us to the conclusion that the defendant is liable in this action to pay to the plaintiff, in the plaintiff's action as constituted, the value of the mother's services - the £147.16. We do not refer to the authorities dealing with the loss of consortium or services, for, as we have said, we regard them as irrelevant.

The primary authority is Roach v. Yates (1938 1 King's Bench 256), a decision of this Court. As has been pointed out by Mr. Duncan Matheson in a recent interesting article in 88 Law Quarterly Review 323, Roach v. Yates appears to have passed unnoticed in all the subsequent English cases on this topic. It was considered, and disapproved, in Scotland, by the majority of the Court of Session in Edgar v. The Postmaster General (1965 Scottish Law Times 158). There was in that case a powerful, and we respectfully think convincing, dissenting judgment by Lord Guthrie. In any event, while it would be a pity if the law on this matter were different in the two countries, we must indicate our opinion that not only are we bound to follow, but also prefer, the principle accepted in Roach v.Yates.

In Roach v. Yates the plaintiff had been gravely injured. His wife and sister-in-law had devoted themselves to nursing him. Both of them had given up employment for that purpose. The weekly amount of lost wages (it will be remembered that this case was in pre-war days) was £3. A part of the special damages claimed related to the value of those services, at £3 a week. The wife and sister-in-law intended to continue to give their services for the future as long as they could. Therefore the value of the services was also brought in as an element in the claim for general damages in respect of the future loss by the plaintiff. There was no suggestion of any agreement between the two ladies and the plaintiff that he would reimburse them. The plaintiff was held entitled to recover the special damages, and it was also held that the plaintiff's general damages, in relation to future expenses of attendance and nursing, should be calculated at £3 a week, despite the fact that those services were, it was known, going to continue to be voluntarily rendered by the ladies for as long as they could continue to do so.

Lord Justice Greer, at page 263, having referred to the necessity for the nursing services, said:

"He can get those services, and perhaps get them better than in any other way, from the attendance which is being given to him by his wife and his sister-in-law; but he would naturally feel that he ought to compensate them for what they have lost by giving up the work at which they were earning the sum of £3 a week. I think that Mr. Beyfus" (who appeared for the plaintiff) ''was right in saying that we must take into account, at any rate for the period during which the plaintiff may be expected to live, the sum of £3 a week as the minimum expense which the plaintiff would have to incur in retaining the services of his wife and his sister-in-law".

It is clear that Lord Justice Slesser, who delivered a concurring judgment, and Lord Justice Mackinnon agreed that the plaintiff himself was entitled to recover damages referable to the past and future financial value of the voluntary services rendered by these "devoted women", as Lord Justice Slesser described them.

In Clerk and Lindsell on Torts, 13th Edition, at paragraph 360, the learned editor of that section of the work, Mr. Jolowicz, refers to Roach v. Yates as "a more far-reaching decision, little noticed in this connection".

Another authority which supports the principle is Liffen v. Watson (1940 1 King's Bench 556). Again, it is a decision of this Court. The plaintiff, a girl who had worked as a domestic servant, was injured by the defendant's negligence. She had to give up her employment. By her contract of employment she had been entitled to board and lodging as well as wages. Her father, after the accident, provided her with free board and lodging. There was no agreement as to repayment. The defendant claimed that the damages referable to the girl's lost employment, while admittedly including the value of wages lost, could not include the value of the lost board and lodging: for she had not lost that, since it was supplied gratuitously by her father. We see no relevant distinction between that case and the present case. It was because of the defendant's negligence that the plaintiff needed to find board and lodging: just as in the present case it was because of the defendant's negligence that the boy plaintiff needed nursing attention. If the fact, in the present case, that the mother supplied the nursing attention gratuitously prevents the boy plaintiff from recovering its value, so also, in Liffen v. Watson, the fact that the father supplied the board and lodging free should have prevented the girl plaintiff recovering the value of the board and lodging. This Court held, on the contrary, that the girl plaintiff was entitled to recover that value. Lord Justice Slesser said, at page 557:

"If, since the plaintiff's discharge from hospital, her father had provided her with board and lodging in his home, that is no reason why she should not be heard to say that the loss of board and lodging previously provided by her employer was as much a loss to her as if she had lost the actual sum in money".

Lord Justice Goddard, at page 558, said:

"The question whether the plaintiff was entitled to recover damages under that head from the defendant does not depend on whether or not she had made a contract for board and lodging with someone else. The plaintiff lost her right to the board and lodging provided by her employer because she was rendered by the accident unfit for work".

(So here, we may interpose, the infant plaintiff lost his right to a life free from special nursing and attendance and the financial cost thereof).

"It does not matter whether after the accident she was taken in by her father or by a friend to whom she might say: 'I cannot make a contract with you, but I will pay you something if I recover damages'. The only consideration is what the plaintiff lost. She lost the value of the board and lodging just as she lost her wages and she is entitled to be compensated for that loss. What she does with the compensation when she receives it is a matter for her and nobody else. If she likes to pay her father the board and lodging he has given her, she can do so. Perhaps he has got some claim on her, but, however that may be, what is done with the compensation cannot affect the question which we have to decide".

We respectfully agree with every word of that passage. It is, we think, relevant to the decision of the issue before us.

We refer, also, to two cases not binding on us, in which the same issue was decided in the same way. One is the decision in Winkworth v. Hubbard (1960 1 Lloyd's List Reports 150, at page 158). The learned judge rejected the argument that the plaintiff could not recover very heavy surgical expenses as part of his damages, because the cost had in fact been borne by his mother. The other is Wattson v. Ports of London Authority (1969 1 Lloyd's List Reports 95, at pages 101, 102). The unrevised report of the judgment in that case is not verbally correct, though the meaning is clear. The sentence beginning 18 lines down on page 102 should, we are told, read:

"....a blot on the law if the law were to be such that, if a wife in those circumstances had held her husband to make a contract to repay her, he could recover damages for that amount: but if she behaves like an ordinary decent human being and does not insist upon a contract for that service, there is financial disadvantage to the plaintiff as a result".

The only authority which might be regarded as binding upon us and which might be construed as being inconsistent with the view which we have expressed is the decision of this Court in Allen v. Waters (1935 1 King's Bench 200), the ratio of which, if we may say so with all respect, is not easy to ascertain. If the headnote is right, it would seem to be in no way inconsistent with the later decisions in Roach v. Yates and Liffen v. Watson. But it is suggested that the headnote is not right. That seems to depend on the answer to the not very easy question: what is meant by the words "on both grounds" in the second last paragraph of the judgment of Lord Hanworth, Master of the Rolls, at page 211 of the report, particularly in view of another passage in the judgment, at page 206, where Lord Hanworth says that the husband could recover the money only "with the liability imposed on him of handing over the money to the hospital"? Without seeking to resolve those difficulties, we are content to say that if, on the true interpretation of those words, Allen v. Waters is in conflict with the two later cases in this Court, we have freedom of choice and we prefer the decision in the two later cases on this issue.

We were referred to another decision of the High Court of Australia, Wilson v. McLeay (1961) 106 Commonwealth Law Reports, 523. In that case Mr. Justice Taylor was sitting alone. We do not regard his judgment as inconsistent, at least in substance, with the view which we have expressed; because, following the earlier Australian case of Morgan v. Hosking (1960) 104 Commonwealth Law Reports (note), Mr. Justice Taylor felt able to award substantial damages to the plaintiff daughter in respect of the expenses of her parents' visits to her in hospital - by air from their home in Queensland to Sydney. His reasoning was: "It was of some importance in the alleviation of her condition that, she should have the comfort and assistance of her parents". In the present case, it was not merely of some importance, but it was of total importance, to this small boy that he should have the special nursing attention which in fact his mother gave him.

Counsel for the plaintiff adduced other arguments. In the circumstances, we do not think it is necessary to deal with them.

In our judgment, the loss here in question, on principle and authority, was the infant plaintiff's loss. He is entitled to recover damages in respect of the fair and reasonable cost of the special attention, necessitated by the defendant's wrongdoing. The fair and reasonable cost is the amount awarded by the judge under this head, £147.16.

We dismiss the appeal.

MR URQUHART (for Mr. Lowe): My Lord, I appear for the respondent this time, and I ask for the costs.

LORD JUSTICE DAVIES: I think that is right?

MR HAMILTON: I cannot say anything about that, my Lord.

LORD JUSTICE DAVIES: No.