COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE ROUGIER)
B e f o r e :
LORD JUSTICE BUTLER-SLOSS
SIR EDWARD EVELEIGH
| MARGARET ANNE COWARD
|COMEX HOULDER DIVING LIMITED
Shorthandwriters Limited, Room 392, Royal Courts of Justice, and
2 New Square, Lincoln's Inn, London, WC2A 3RU).
MR. J. LEIGHTON WILLIAMS Q.C. and MR. A. H. JEFFREYS (instructed by Messrs. Russell Jones & Walker) appeared for the Respondents (Defendants).
Crown Copyright ©
LORD JUSTICE RALPH GIBSON: These appeals were brought from the judgment of Rougier J. given on 31st March 1987 in a fatal accident action. The plaintiff, Mrs. Margaret Anne Coward, is the widow of Edwin Arthur Coward who died in a diving accident on 5th November 1983. They were married in 1972. Mr. Coward was a self-employed professional diver. He was 35 years old when he died and was working for the defendants, Comex Houlder Diving Ltd., on their vessel called the "Byford Dolphin" in the North Sea. The accident was caused through the fault of the defendants who have from the outset admitted liability.
Rougier J. awarded the plaintiff, who sues as administratrix of the estate of her husband, a total of £165,800, to which appropriate interest was added. The plaintiff's appeal and the cross-appeal of the defendants are concerned with aspects of the award of damages under the Fatal Accident Acts. The award included £44,750 pre-trial loss, £3,500 for bereavement, £6,250 for loss of her husband's services in repairs to the house etc. and £111,300 for loss of financial support after trial.
The plaintiff's appeal is directed firstly at the judge's assessment in the sum of £20,000 of the amount which the deceased would have earned after he ceased working as a diver; and, secondly, at the judge's calculation of the net earnings by deduction of 33.3 per cent for tax etc. from the gross earnings in the last two years of diving and by deduction of 30 per cent from gross earnings thereafter. The plaintiff's contention is that the £20,000 gross should have been £25,228 and the deduction for tax etc. should have been substantially less. A further ground of appeal is the contention that this court should re-assess the future loss of the plaintiff by reference to the hypothetical lost net earnings of her husband calculated by reference to the new tax rules announced in the 1988 budget and which under the Provisional Collection of Taxes Act 1968, as the court was told, are now being applied for those taxed on Schedule E in advance of enactment of the Finance Act.
The defendants, apart from submitting that none of the plaintiff's grounds of appeal justifies any increase in the award, have first contended that the judge set the overall multiplier of 14 too high; and, secondly, that the multiplier of 5.5, which was applied to calculate the loss of earnings over the period of about 7.5 years during which the deceased would have continued work as a diver, was also too large. Next, it was said that the judge put the hypothetical earnings too high for the deceased's remaining period as a diver. Finally, it was said that the judge was wrong in principle in applying the conventional approach that two-thirds of a husband's net earnings can properly be regarded as his wife's financial dependency upon him and by failing to take into account the plaintiff's own earnings and contributions to the joint family purse. The judge should, it is said, have deducted one-third of the plaintiff's net income from the conventional amount of two-thirds of the net income of the deceased.
The facts of the case were of unusual complication and difficulty. The learned judge reduced them to certain issues which he decided in a judgment of admirable clarity. I can gratefully take from it the following summary statement of the facts.
Mr. Coward, the deceased, started his career in commercial diving in 1974 after leaving the Royal Navy. According to the evidence before the judge, the diving industry was then enjoying a prosperous time of boom because of development of the North Sea I field. By the end of the 1970's Mr. Coward had acquired experience and skills but his periods of employment and his earnings were irregular. The plaintiff was working, throughout, as she still is, as a midwife. She was a year older than Mr. Coward. By 1979 they had bought on mortgage a house in Portsmouth. Work had to be done to it and Mr. Coward himself did I much of it. By the autumn of 1983, after a bad spell of low j earnings to which further reference will be necessary, Mr. Coward was much better placed. He had got work with the defendants in April 1982 and in June of that year was assigned to the "Byford Dolphin". That was important because on the "Byford Dolphin", unlike all other work sites for divers, Mr. I Coward was kept on pay throughout the year including the winter but with, of course, much higher earnings when diving. The periods of diving were not frequent. For the year from April 1982 to March 1983 Mr. Coward's gross earnings were £13,000. From April 1983 until the accident on 5th November 1983, a few days over seven months, Mr. Coward earned £14,439 net.
It was in the autumn of 1983 that things appeared to Mr. Coward and the plaintiff to be settled enough for them to think about starting a family. The work to the house was done. The plaintiff was contemplating coming off the pill. She intended to work until about the 28th week of her pregnancy. They also wanted a larger and better house out of the city. After the babies were born - if they were successful in having the one or two children which they hoped to have - they planned to buy the larger house. The plaintiff would not have returned to work at least until the children were grown. All those plans were, as Rougier J. observed, suddenly and cruelly brought to an end.
Although Mr. Coward's current position and future prospects were improved, when he got his place on the "Byford Dolphin", there remained considerable uncertainty. Rougier J. accepted the evidence of Mr. Dark, of Petrodata, that the conditions of boom for the diving industry had come to an end. The whole of the North Sea industry had been forced to pare its overheads and that trend had been redoubled as a result of the fall in the price of oil in 1984/85• Revival in the industry was not expected until well into the 1990's. There was endemic over-supply of diving services. The number of divers employed by the defendants dropped from an average of 234 in 1984 to 134 in 1986. The security of the place on the "Byford Dolphin" would not have lasted beyond the end of 1984 when the contract, under which the defendants were operating from that vessel, was due to end. After that date Mr. Coward would have returned to the pool of all the unemployed divers looking for work in the industry. He would have been considered by the defendants for the work which they had but he would have been considered along with many others.
There was before the judge much evidence as to the age at which divers stop doing the work from which high earnings can be made. The work is recognised to be dangerous; to be capable of causing impairment of health; and to be in many respects stressful and unpleasant. Rougier J.'s conclusion was that Mr. Coward would have stopped diving between the age of 42 and 43, that is some seven to eight years after the date of his death: between November 1990 and November 1991. There has been no attack upon that holding.
The parties presented very different cases as to the probable course of the further work and earnings of Mr. Coward in diving, and after he stopped diving, if he had lived. For the plaintiff it was said that a fair picture of Mr. Coward's notional earnings while still diving could be derived by taking an average of the earnings of three divers employed by the defendants: Mr. Godfrey, Mr. Keen and Mr. Leonard. For the defendants it was contended that the judge should adopt as a safer guide the earnings of a Mr. Bremmer, and of a Mr. Aige, together with those of Mr. Leonard. In order to assess those submissions the judge had to examine the evidence about another vessel called "Staydive" which was also highly unusual in that work was carried out from it all the year round so that the earnings of a diver assigned to it would be much increased. Vacancies on "Staydive" were few and far between; jobs on it were much sought after; but the numbers employed on it had run down, namely from 42 to 28. Mr. Godfrey had got a place on "Staydive" in February 1984.
The judge's conclusions upon this highly speculative issue were as follows. He could not say that Mr. Coward would not have got a job on "Staydive" after the end of 1984; but, if Mr. Coward had applied for the job, and it was not known that he would have done, the judge was even further from being able to say that Mr. Coward might have got the particular job on "Staydive" which Mr. Godfrey secured. Of the divers put forward as "comparable", Mr. Leonard was, with one or two reservations, the "nearest" for this purpose. The judge therefore based his projection of Mr. Coward's notional future earnings on those of Mr. Leonard but added 10 per cent throughout to the sums earned by Mr. Leonard to take account of three factors: firstly, the fact that two witnesses, Mr. Woodcock and Mr. Barrett, had "rated" Mr. Coward somewhat more highly than Mr. Leonard; secondly, the chance, which was not to be rated highly, of Mr. Coward having got a job on "Staydive" after the end of 1984; and, thirdly, such extra earning potential as he would have acquired by obtaining a hyperbaric welding qualification. The evidential basis for the last factor was that Mr. Woodcock, a friend of the deceased, said that Mr. Coward was thinking of acquiring the qualification; and Mr. Coward's skills were such that he could without difficulty have acquired it; but acquiring it would have entailed quite a period off work and some capital outlay.
For the pre-trial damages, therefore the judge assessed Mr. Coward's notional gross earnings as follows. The figures were based on calendar years and upon what was known or projected as to Mr. Leonard's earnings increased by 10 per cent.
|(i)||For the rest of the year 1983: additional earnings of||£3,500|
|(v)||For January, February, March 1987||£600|
As to future loss for the remaining two years of diving work from March 1987, Mr. Coward's notional salary was assessed by "continuing the progression for the years 1984/85" in the sum of £36,000 for each year.
As to the remaining years of Mr. Coward's working life, after he ceased diving, the contentions of the parties were again very different. For the plaintiff it was asserted that Mr. Coward would have worked as a supervisor of other divers. For the defendant it was said that opportunities were narrowing in the industry and if Mr. Coward failed to get work as a supervisor he might have had to work as a welder on shore at earnings shown to be about £9,750 per annum gross. Rougier J. held that Mr. Coward's chances of becoming a supervisor were good enough to justify taking, as a figure to represent that chance, earnings considerably nearer the proved earnings of a supervisor than those of an on-shore welder. The earnings of two supervisors, Mr. Colley and Mr. Hughes, appeared to be averaging in the order of £22,000 gross. To reflect the various chances, which he listed, Rougier J. took the annual gross sum of £20,000 per annum as notional future earnings of Mr. Coward after he would have ceased diving.
Having stated his conclusions as to the gross earnings which Mr. Coward would have earned, it was necessary for the learned judge to determine what his net earnings would have been out of which would have come the dependency of the plaintiff. Rougier J. held that the net earnings for the period of diving work would be two-thirds of the gross. He said (Judgment page 12H):
"It is agreed that for figures in this range tax should be deducted at a rate of one third, which takes into account any mortgage relief which Mr. Coward might have earned."
It is clear, I think, that his reference to tax included all relevant sorts of deductions noted in the schedules before him, including National Insurance contributions. For the remainder of the period of future loss, after the end of diving work, Rougier J. said (Judgment page 19C) that deduction of one-third for tax was "over onerous" and that the deduction should be 30 per cent only instead of 33.3 per cent. Again, it has not been suggested that Rougier J. did not intend to include all relevant deductions in the 30 per cent. One of the problems in this case arises from the fact that there had been no agreement between the parties as to the deduction of one-third for tax etc. as, from his words, the learned judge might appear to have supposed.
The multiplier was set by the learned judge at 14 years purchase overall from the date of death. For the remaining seven and a half years of diving work a multiplier of five and a half was taken, leaving two years from the date of trial during which the lost dependency would be calculated by reference to lost net earnings of £24,000 per annum (two-thirds of £36,000). For the rest of the working life of Mr. Coward the balance of the multiplier, namely eight and a half years, would be applied to the lost dependency calculated by reference to net earnings of £14,000 per annum (30 per cent of £20,000).
The judge's assessment of the lost dependency gave rise to two issues of principle at the trial, firstly as to whether the plaintiff's lost dependency could be increased by reference to the family which she planned to have and, secondly, as to the I relevance and effect of the amounts of the plaintiff's own earnings. As to the first issue, it was contended that the lost dependency of the plaintiff should be increased to the conventional amount of 75 per cent of net earnings to take account of the family which the plaintiff and her husband had hoped and intended to have. Rougier J. held, on the authority of Higgs v. Drinkwater: Court of Appeal May 1956, that to increase the award on that ground was not possible. He referred to the criticism of that decision which appears in Kemp and Kemp Vol. 1 para 25-002 and said that he shared the unhappiness about it expressed by Russell J. (as he then was) in Malone v. Rowan (1984) 3 All E.R. 402 at 406. Mr. Aylen did not address argument to us on the point, recognising that the decision is binding on this court, but he reserved the right to contend hereafter that the decision was wrong. For my part, I respectfully consider that it was right. The increased financial dependency which would have occurred, if the wrongful death happened after children were born, is not lost by the plaintiff, in my judgment, if the death occurs before the children are born.
As to the second of those issues, the judge decided that the "conventional figure" of two-thirds of net earnings for the widow's dependency, where there are no children, was to be applied and could not properly be displaced merely because the plaintiff had throughout been earning and putting her earnings into a common purse with those of Mr. Coward. The judge reached his decision by the following stages:
(i) As was apparent from Harris v. Empress Motors (1984)1 W.L.R. 212 the normal figure for dependency, where there are no children, is two-thirds of the husband's net earnings. O'Connor L.J., in referring in that case to the percentages "which have become conventional in the sense that they are used unless there is striking evidence to make the conventional figure inappropriate" had drawn no distinction between working and non-working wives.
(ii)The net earnings of the plaintiff were as follows: 1983-84 £6,100; 1984-85 £7,043; 1985-86 £7,181; 1986-87 £7,400. They were thus roughly one-third of the earnings of the deceased down to the date of trial. The evidence of payments into and out of the account suggested that the plaintiff had contributed more to the common expenses than had Mr. Coward but the plaintiff said, and the judge accepted, that that was not so and Mr. Coward had on other occasions, when money was wanted, drawn out a lump sum in cash. It was not, therefore, possible to work out with any precision what proportions of joint expenses were met by the plaintiff and by Mr. Coward, but Nr. Coward had no hidden vices or expenses on which he spent his money, (iii) The plaintiff's contributions were not so high as to oust the conventional figure and therefore she was to be treated as dependent upon Mr. Coward's earnings to the extent of two-thirds of the net earnings.
THE CALCULATION OF NET EARNINGS
In the notice of appeal it was asserted for the plaintiff that the deduction of one-third of the gross earnings in the calculation of the loss to the date of trial was wrong. In this court Mr. Aylen abandoned that ground of appeal although the deduction had not been agreed as the judge appears to have supposed. Mr. Aylen recognised that there were too many uncertainties as to what the deceased might have done by the date of trial, in order to reduce his taxable income by making larger payments for mortgage interest and payments for retirement pension insurance, for it to be demonstrable that a significantly lower deduction should be made.
The remaining submission upon this point is based upon the assertion that Mr. Coward would have made substantial contributions to pension insurance and would by 1987 have bought a larger house upon which interest payments upon a maximum mortgage loan of £30,000 would have been deductible. The submission was put forward in two stages. Firstly, it was said that the deduction rate of one-third which the judge applied to the higher earnings during the diving years can be demonstrated to have been based upon, or to have been consistent with, the assumption that the existing mortgage loan of £11,000 would continue bearing interest at 12 per cent per annum, and that pension contributions in the amount of £1,000 would have been made: see Table G submitted by the appellant and corrected in argument to show a deduction of 31.85 per cent.
Next, it was said that the judge had in effect accepted that Mr. Coward and the plaintiff would have moved to a larger house and would have sought a larger mortgage loan than the existing loan of £11,000 because, in the terms of a question put to the plaintiff by the judge and accepted by her, it would be fiscally advantageous to have a larger loan: see transcript volume 1 page 12G to 13B. Therefore, the judge ought to have appreciated that acceptance of that evidence involved a finding that by the date of trial the Coward family would have had in probability a mortgage loan of £30,000, being the maximum upon which tax relief would be allowable.
Next, it was said that the judge had also accepted that I Mr. Coward was a "hard headed, thrifty and prudent man" (Judgment page 7A). Judicial notice should be taken of the fact that it would have been sound financial planning for Mr. Coward to make as large a premium payment as would qualify for relief under section 226 of the Taxes Act 1970 because tax relief is obtainable on such premium at the payers' marginal rate; because the fund invested is not subject to taxation of any kind; and because payments under such a scheme make the best provision for retirement. Calculations were put before the court to demonstrate that, if those submissions had been accepted by the judge, the deduction from gross earnings of £36,000 per annum should be 22.11 per cent and not 33.3 per cent. The consequence (see Table B) would have been to increase the net earnings for the last two years of diving work from £24,000 to £28,039 and to increase the lost dependency for each of those years by some £2,690. Further, for the remaining eight years of future loss based on gross earnings of £20,000 per annum, acceptance of those submissions would have resulted in a deduction of less than 20 per cent, producing net earnings for those years of about £16,381 instead of the £14,000 applied by the judge, and increasing the lost dependency for each of those eight years from £9,333 to £10,920, an addition of £1,586. The total addition to the award, on this ground and subject to more exact calculations, would be of the order of £18,800.
It was submitted to this court that, if it should seem to us that some smaller adjustment should be made, based upon the probability of a mortgage less than the maximum of £30,000, or of pension contributions less than the maximum of 17.5 per cent of gross earnings, the court was asked to state the conclusions reached and to permit counsel to make the calculations required.
The second stage of this submission directed to the proper deduction from gross earnings went as follows: if this court declined to accept the conclusions of fact put forward as to what Mr. Coward would have done about a mortgage or pension payments, so that the apparent assumptions upon which were based the judge's calculations of a deduction of 33.3 per cent from gross earnings in diving are to be upheld, then, if those assumptions are applied to the gross earnings of £20,000 after the end of diving work, the deduction is shown to have been too large and should only have been of the order of 24 per cent instead of 30 per cent. The net earnings should have been £15,113 instead of £14,000. The dependency should have been £10,075 instead of £9,333, and the award on that ground alone should have been increased by some £6,332: see Tables G. H and I.
For my part I am unable to accept the submissions for the appellant on this part of the case on the main factual issues. As to the deduction of one-third from the last two years of diving at gross earnings of £36,000, it seems clear to me that the judge expressed himself badly in his extempore judgment, which was delivered immediately after the end of argument, or there was come error in recording what he said. He cannot have supposed that the deduction of one-third was agreed between the parties because submissions had been made by Mr. Aylen substantially similar to those made to this court to the effect that the deduction should be much smaller. The probability is that he was recording that, as I understand it, there was not any dispute that deductions at a rate of one-third would be appropriate for gross earnings in that range in the absence of facts, such as mortgage interest payments and pension insurance payments of significant magnitude, justifying a smaller deduction. Whatever be the right explanation, it is necessary in these circumstances for this court to consider whether the deduction applied has been shown to be wrong on the facts and, if yes, whether the consequences are such that on the facts of the case as a whole some adjustment of the award is necessary on that ground.
For my part, I am confident that the judge did not accept that there was any real probability that there would have been a significantly increased mortgage or large sums paid as contributions for retirement pension. As to the mortgage, the plaintiff said in evidence that once they had the children, the one or two that they were going to have, they wanted to move. With the state of the house (that was a reference to its improved condition resulting from work done upon it by Mr. Coward) and the money they would have made on that, they would have gone in for a much larger mortgage. They would not have tried to put down the entire purchase price. She gave no indication of the size of mortgage which they could have undertaken. She had also said, however, that in 1983, when she was looking to start a family, and expecting to give up work, they were planning to try and pay off more of the existing mortgage so that the mortgage payments each month would be reduced. To my mind, to assert that Mr. Coward would have taken on a much increased mortgage, because of what Rougier J. has held would have been the course of Mr. Coward's earnings over the years, is to attribute to Mr. Coward a greater degree of confidence in his future earnings than he is likely to have had at any time while he continued to dive. Mr. Coward had had periods of low earnings and he must have been as much aware of the uncertainties of his work as the witnesses who gave evidence before the judge. It is necessary to state what the evidence was. Mr. Coward's period of low earnings had extended from about 1977 until 1982 but there were some gaps in the evidence. In 1977 he had earned about $12,000. For 1978-79 his earnings were £6,750 net. For 1979/80 his earnings were £11,623, but it is not clear whether that figure was net or gross. For 1980/81 he earned £15,775 gross; and for 1981/82 he earned about £5,500 gross. He had gone for about 18 months without diving. Rougier J. observed that many people faced with such earnings would have quitted the industry and Mr. Coward's decision to go on must have been close. For 1982/83, after joining the "Byford Dolphin", Mr. Coward's gross earnings were £13,000. From April 1983 to 5th November 1983 when the accident occurred he earned £14,439 net. Mr. Coward would have been aware of the risk of facing another period of low earnings and of the fact that any period of high earnings would not extend beyond his own capacity to do the arduous work of deep diving. By the time it would have become clear, if events had followed the course in accordance with the judge's findings, that he had established some permanence in well paid diving work, he would have realised that he had only two or three years left of such well paid work. I regard it as uncertain whether there would have been any significant increase in the mortgage and consider that Mr. Coward, if he had lived, and got the sort of work which the judge held he would have got, might well have saved money towards the new house purchase; taken the profit on his own improved house; and bought another larger house also in need of improvement upon which he would have exercised his skills. The value of those skills was separately represented in the award by the sum of £6,250 mentioned at the beginning of this judgment.
Next, as to insurance payments, there was some evidence of what Mr. Coward had in mind. A letter written by his accountant to an insurance company on 3rd June 1983 enquired about a policy to mature when Mr. Coward was aged 60 to 65 and based upon a series of single premium policies "since at this time he is in rewarding employment but the length of service is very restricted, he being a deep sea diver". The judge declined to read the letter as showing that Mr. Coward intended to stop diving at age 40 but regarded it as evidence of a "hard headed north countryman, knowing that his time in diving was bound to be limited by one factor or another, and seeking to put something by for the future while he was still earning big money". The level of payments mentioned in the letter was £500 to £1,000. It seems to me that, if the earnings in diving had continued to increase as the judge held that they would have increased, there was indeed a chance that Mr. Coward would have put away larger payments than £500 to £1,000. I regard such payments as more probable than the taking on of a large mortgage because a payment for a single premium policy can be made in a year of high earnings without commitment to similar payments in following years.
Nevertheless, despite the fact that Mr. Aylen has shown that upon the facts as found by the judge there were prospects of the taxable income of Mr. Coward while diving being reduced possibly by some increase of mortgage and more probably by qualifying payments for retirement insurance, I would not on this ground alter the award with reference to the diving years. It is conceded that the assessment of pre-trial loss, which included three and a half years of diving work, cannot on this ground be faulted. For the last two diving years, for which the judge assessed gross earnings at £36,000, the deduction applied did allow for the existing mortgage, although on the plaintiff's evidence it might by then have been reduced; and it allowed for payment for retirement pension of the larger sum mentioned by the accountant in the letter. In a case like this, in which choices had to be made at so many points upon speculative issues, and on which, as it seems to me, the learned judge has upon many of them found it possible to decide them generously in favour of the plaintiff, as I shall explain later in this judgment, I would not alter the judge's award on the ground that he might in his assessment of the chances also reasonably have decided this matter more favourably to the plaintiff. It is not clear to me that the judge's assessment of net earnings was on this ground wrong.
As to the deduction of 30 per cent from the gross earnings of £20,000 for the years after Mr. Coward would have stopped diving, Mr. Williams did not contend that there was any error in Table H put before the court by Mr. Aylen. It was not submitted that the net earnings should be calculated by reference to mortgage interest payments smaller than those appropriate to a mortgage debt of £11,000. Table H also provides for deductions of £1,000 for pension contributions. I cannot regard it as probable that, on dropping from earnings of the order of £36,000 to £20,000, Mr. Coward would have continued to apply £1,000 per annum in pension payments for a tax saving then of about £270. But if the insurance payments are omitted the proper deductions would, if my arithmetic is right, still be less than 26 per cent. The difference to the calculation of damages would not be trivial. The net earnings would be £14,860. The dependency at two-thirds would be £9,856 instead of £9,333: an increase of £523 to be multiplied by eight and a half years, giving a total of £4,445. For my part, I would give effect to this ground of appeal and make such adjustment to the award as is necessary because the judge's selection of 30 per cent for the deduction is shown to have proceeded upon a mistaken understanding of the effect of the levels of taxation in the circumstances of the case as the judge held that they would have been. This point does not turn upon the assessment of factual chances. If the judge had had Table H in front of him, as we have had it in front of us, I think he would have applied a deduction of no more than 25 per cent despite his apparent rejection of the contention that there would have been no large increase of mortgage or continued insurance payments. The result of the calculation to be made, in order to give effect to this point, will, of course, depend upon the proper calculation of the dependency from the net earnings of Mr. Coward which is dealt with later in this judgment.
GROSS EARNINGS WHEN NO LONGER DIVING
Mr. Aylen submitted that the assessment of gross earnings at the level of £20,000 per annum, for the period after diving would have ceased, was plainly wrong on the face of the judgment. His contention went as follows. The judge made a finding which was the equivalent of holding that, on the balance of probabilities, Mr. Coward would have become a supervisor but then assessed his gross earnings at a figure lower than the lowest known gross earnings for a working supervisor. Further, the judge took from a document produced by the defendants the earnings of a Mr. Colley and Mr. Hughes, who were employed as supervisors, and observed that they "appeared to be averaging something in the order of £22,000 gross". That, said Mr. Aylen, was an error because the document shows that the average for the two men over the three years 1983/84 to 1985/86 was £25,228. The notional gross earnings of Mr. Coward should therefore have been no less than £25,228.
I would reject this ground of appeal. The judge did not, as I understand his judgment, find that in probability Mr. Coward would have become a supervisor. At the outset of his judgment Rougier J. at page 2E said:
"In the circumstances it seems to me right that I have to base the figures and the heads of damage which I calculate, not upon a finding that on the balance of probability Mr. Coward would have done this, or would have done that, but upon my assessment of the strength of the chances that he had in any particular direction."
That approach was plainly correct and Mr. Aylen has not suggested that it was wrong. The chances of Mr. Coward being a supervisor were, in the judge's view, a long way from a certainty but good enough to justify taking a figure to represent that chance considerably nearer to the supervisor's earnings than those of an on-shore welder. He took the figure of £22,000 as the likely earnings of a supervisor for this purpose by reference to the earnings of Mr. Colley and Mr. Hughes. There was no mistake in calculating the precise average earnings of those two men over a three year period. If the judge had intended to find the precise average of those figures he would have done so. It is clear, I think, that he observed, as was, no doubt, commented upon in argument, that in one year, 1984/85, Mr. Hughes had earned £36,057 gross but in the following year 1985/86 Mr. Hughes had earned only £21,685. The judge took the figure of £22,000 as a fair starting point for assessing a figure "considerably nearer to the supervisor's earnings than those of an on-shore welder" which were of the order of £9,750 per annum gross. There is no error in the selection of that figure for that purpose; nor is there, in my judgment, any error in the deduction of £2,000 from it to reflect, as the judge said, the various chances which he had examined, namely the good chance of becoming a supervisor, an outside chance of getting assigned to "Staydive", and some chance of not being able to stay in the diving industry and having to revert to welding. For my part, I consider the judge's estimate to be towards the upper end of the range of reasonably possible estimates on the evidence before him and I would not alter it.
THE DEFENDANT'S CROSS APPEAL
(i) THE MULTIPLIER AND THE MULTIPLICAND
Mr. Williams submitted that the judge's award was, if not demonstrably flawed at any point, clearly at the very top of the possible bracket. The overall multiplier of 14 for a man aged 35 and a half was right for a fit man in a safe occupation. There should have been a discount for the proved risks of the work. The evidence showed that 5 per cent of men employed in deep sea diving suffered death or some disabling disorder. Next, the multiplier of 5.5 taken for calculating the loss over the remaining seven and a half years of diving was too large a part of the overall multiplier, which was to cover the remaining 30 years of working life, and should not have been more than three and a half. For my part, I would accept that both multipliers were at the top of the bracket of what could reasonably have been selected, but I cannot regard them as so high as to justify this court in altering them. The multiplier was taken as part of the judge's assessment of the case as a whole. I would reject this point as a ground of appeal but, as I said earlier in dealing with the plaintiff's appeal on the deduction of tax etc. from the gross earnings while diving, this was in my view a part of the case where the plaintiff was treated generously.
As to the multiplicand, Mr. Williams submitted that again the assessment was at the top of the possible bracket. Mr. Coward had had a very bad period of more than 18 months before getting work with the defendants in April 1982. He was self- employed and had to compete with others for the available work in an industry suffering contraction. There was no express allowance for the risk of recurrence of such a period in the calculation of notional earnings while still diving or after having ceased diving. The only reference to it was (Judgment page 11A) where the judge rejected the submission that Mr. Leonard was not fairly "comparable" to Mr. Coward because Mr. Leonard had not achieved Mr. Coward's status "D13" as a diver until two years after Mr. Coward. The judge said: "One must take into account the fact that Mr. Coward has had his lean years and one must put them into the balance". Next, Mr. Williams submitted that there was no justification for assessing the notional earnings of Mr. Coward at a level 10 per cent above those of Mr. Leonard. If acquisition of the hyperbaric qualification would have had any significant effect it would have required expenditure and a period away from work. Further, there were minor errors in the figures taken for Mr. Leonard's earnings to which 10 per cent was added: the error was £457 for 1985 and £503 for 1986. More importantly, Rougier J. assessed what Mr. Leonard's earnings would have been for 1986 by reference to the "progression" in his earnings from 1984 to 1985. Mr. Williams submitted that there was no evidence, either direct or from inference, to support the notion that Mr. Leonard's earnings would have increased. With demand for diving services proved to be falling a diminution of earnings was more probable. Lastly, and for similar reasons, it was said that there was no justification for increasing the notional earnings of the deceased by reference to those of Mr. Leonard to the sum of £36,000 for 1987 and the future notional years of continued diving.
Again, I would accept that the assessments by the judge of the notional earnings for the remaining years of diving were at the top end of the bracket and the various decisions made by the judge on this part of the case are included in those to which I referred earlier in this judgment as being generous to the plaintiff. I am, however, not persuaded that the judge is shown to have been in error in this part of his judgment. I was particularly troubled by the final increase to £36,000 because the judge gives no explanation for that advance from £34,100 for 1984/85. But the judge was carrying out an assessment in which the earnings of Mr. Leonard, so far as they were known, (and the defendants could presumably have produced or obtained further figures if they had wished to do so) were the principle basis, as the judge said, of his projection of the notional earnings. There was evidence before the judge of other divers earning more. For my part, I would leave the judge's assessment on these points as he made it.
(ii) THE DEPENDENCY AND THE PLAINTIFF'S EARNINGS
As stated above, Rougier J. held that the "normal figure" of two-thirds of the net earnings of the deceased, as described by O'Connor L.J. in Harris v. Empress Motors Limited (1984) 1 V.L.R. 212 was to be applied in this case because there was no "striking evidence" to refute it. The appellants contend that that approach was mistaken and that the normal figure referred to by O'Connor L.J. has no relevance to a case in which the plaintiff widow was earning a significant proportion of the common purse into which the earnings of her husband and herself were put.
For the plaintiff it was contended that the judge was right to start with the normal figure of two- thirds, even when the wife's net earnings are of the order of half the notional net earnings of the husband and the earnings of both are pooled. Further, it was said that the judge had ample evidence to support J his conclusion that the normal figure was not shown to be wrong. Mr. Coward was a devoted family man; he was hard headed and thrifty; he was determined to put something by for the future; and he had no vices and made no hidden or unusual expenditure upon himself.
I would accept that there was evidence upon which the judge would have been entitled to refuse to disapply the normal figure if he had been starting at the right place, that is to say if the principle, which makes that normal figure available, had been applicable to the facts of this case. In my judgment, it was not.
The basis of an award of damages to a dependant under the Fatal Accidents Act 1976 is section 3 of the Act:
"... such damages may be awarded as are proportioned to the injury resulting from the death to the dependants respectively ..."
Parliament has directed that in some respects the principle ofproof of actual damage is to be modified in favour of dependants,notably the requirement that remarriage or the prospects ofremarriage of a widow must be disregarded as first introducedin 1971 and now contained in section 3(3) of the 1976 Act asamended; and the principle, now contained in section 4 of the1976 Act, that benefits accruing as a result of the death shallbe disregarded. Subject to those special directions theplaintiff in such an action must prove actual loss.
The nature of the principle which permits reliance by acourt upon the "usual figure" is apparent from the judgment ofO'Connor L.J. in Harris v. Empress Motors. There were two casesbefore the court: the other was Cole v. Crown Poultry PackersLimited. Those cases were concerned with the principles uponwhich damages should be assessed, where the court was requiredto value the earning capacity of the injured person whose lifehas been shortened, upon the basis established in Pickett v.British Rail Engineering Ltd. (1980) A.C. 137, in which Oliver& Others v. Ashman & another (1962) 2 Q.B. 210 was overruled.Now, of course, section 4 of the Administration of Justice Act1982 has substituted a new section 1(2)(a) in the Law Reform(Miscellaneous Provisions) Act 1934 which provides that thedamages recoverable for the benefit of the estate of a deceasedperson shall not include any damages for loss of income inrespect of any period after that person's death. Although thecourt was not concerned with Fatal Accidents Acts claims,O'Connor L.J. referred to such claims as follows (at page 216H):
"I come now to the main problem in these cases: how should the deduction which has to be made from the net loss of earnings for the lost years be calculated?
In the course of time the courts have worked out a simple solution to the similar problem of calculating the net dependency under the Fatal Accidents Acts in cases where the dependants are wife and children. In times past the calculation called for a tedious inquiry into how much housekeeping money was paid to the wife, who paid how much for the children's shoes, etc. This has all been swept away and the modern practice is to deduct a percentage from the net income figure to represent what the deceased would have spent exclusively on himself. The percentages have become conventional in the sense that they are used unless there is striking evidence to make the conventional figure inappropriate because there is no departure from the principle that each case must be decided upon its own facts. Where the family unit was husband and wife the conventional figure is 33 per cent and the rationale of this is that broadly speaking the net income was spent as to one-third for the benefit of each and one-third for their joint benefit. Clothing is an example of several benefit, rent an example of joint benefit. No deduction is made in respect of the joint portion because one cannot buy or drive half a motor car. Part of the net income may be spent for the benefit of neither husband nor wife. If the facts be, for example, that out of the net income of £8,000 p.a. the deceased was paying £2,000 to a charity the percentage would be applied to £6,000 and not £8,000. Where there are children the deduction falls to 25 per cent, as was the agreed figure in the Harris case."
O'Connor L.J. was describing the current practice followed by solicitors and counsel, and by the judges deciding such cases, to the issue of fact, namely what would in probability have been the continuing dependency of the surviving family. It is true that he did not distinguish between cases where the wife was earning and contributing to the funds of the family unit and cases where she was not. But O'Connor L.J. had no reason to draw any such distinction. In neither case before the court was the surviving wife or mother earning. And if one of them had been, it would not have been necessary to refer to that fact, because O'Connor L.J. was not applying the conventional figure, or any principle which permitted its application, to the facts of those cases.
Next, O'Connor L.J. stated the rationale of the conventional figure, i.e. that broadly speaking the net income was spent as to one-third for the benefit of each and one-third for their joint benefit. As described by O'Connor L.J., it is clear that he was referring to a family unit dependant upon the earnings of the husband only.
Where both are earning and pooling their net earnings, application of the same principle requires that one-third of the joint earnings be treated as spent for the benefit of each and one-third for their joint benefit; and the justification for that is that a couple living together as a stable family are likely to divide their common resources fairly and equally. As O'Connor L.J. pointed out, the principle is always capable of being displaced by evidence. If the joint income is low, it is likely that more than a third will be applied to joint benefit. Next, a husband or wife may have special needs, or make special demands, which in fact require a larger share than can also be applied to the sole benefit of the other spouse. Further, when the joint net earnings are substantial, as they are in this case on the judge's findings, part of the one-third proportion retained by either spouse for his or her sole benefit may in probability be retained for purposes which will eventually pass to the benefit of the other.
Mr. Aylen submitted that, when the joint earnings of husband and wife are mixed, and payments out are made as necessary, the usual figure of two-thirds of net earnings should be applied in favour of either husband or wife upon the death of the other. In the absence of displacing evidence, the wife should be able to claim to be dependent to the extent of two- thirds of the husband's net earnings, and the husband should be able to claim to be dependent to the extent of two-thirds of the wife's net earnings. I cannot accept that. An example will demonstrate why the contention seems to me to be wrong. For the year 1986, on the figures accepted by the judge, the net earnings of Mr. Coward were £23,133. The net earnings of the plaintiff were £7,181 (taking her 1985 earnings). The total joint earnings were £30,314. The "usual figure" would attribute £10,104.60 to the sole benefit of Mr. Coward, a like sum to the plaintiff, and £10,104 to their joint benefit. There is no sensible basis, however, for treating such an arrangement as if the £10,104 spent for the sole benefit of Mr. Coward came as to £7,711 (one- third of his £23,133 net earnings) and as to £2,393 (one-third of the plaintiff's net earnings of £7,181), or that the £10,104 spent for the sole benefit of the plaintiff was provided in the same way.
The uncomplicated truth of the matter, in my judgment, is that, upon the suppositions made, Mr. Coward kept £10,104 from his own earnings; added £7,711 to the £2,393 contributed by the plaintiff to make up the sum of £10,104 spent for joint benefit; and contributed £5,317 to the £4,787 retained by the plaintiff so as to make up the sum of £10,104 for the plaintiff's sole benefit. The total dependency of the plaintiff upon that calculation is £7,711 plus £5,317: a total of £13,029.
Another way of expressing that point is to take the total of the joint family purse, namely £30,314. The plaintiff was enjoying the benefit of one-third of that sum, £10,104 spent for joint benefit and £10,104 spent for her sole benefit. A total of £20,208 represents what she was enjoying. Of that sum she still has her own earnings of £7,187 and in this case it is not suggested that she was not intending to go on working. The net loss is £20,208 less £7,187, producing the same figure of £13,209 odd.
Expressed in terms of a formula the plaintiff's dependency, as shown in those calculations, is two-thirds of Mr. Coward's net earnings less one-third of her own net earnings; or it is two-thirds of the joint earnings less her own earnings. Expressed in terms of percentages of the projected net earnings of Nr. Coward, as found by the judge, application of the formula as contended for by the respondents would result in figures for the dependency of the plaintiff as follows. (The final figures in brackets are in each case the dependency based upon a percentage of 66.6 per cent).
1983: 53.28 per cent of £2,333, i.e. £1,243 (£1,555)
1984: 53.86 per cent of £18,333, i.e. £9,874 (£12,222)
1985: 55.09 per cent of £20,666, i.e. £11,384 (£13,777)
1986: 56.32 per cent of £23,133, i.e. £13,029 (£15,422)
1987: 55.07 per cent of £24,000, i.e. £13,367 (£16,000)
The respondents contend that the judge's award should be reduced in conformity with the application of that formula because it is based upon the correct application of the principle on which the plaintiff herself had invited the court to rely. The plaintiff had not set out either to prove the amounts which in probability Mr. Coward would have contributed to her support and benefit, or to prove facts from which it could reasonably be inferred that Mr. Coward would have contributed more than one- third of his net earnings to the joint benefit of himself and his wife or, so far as concerns money to be spent on her sole benefit, more than the sum necessary to enable her to spend in that way one-third of their joint income.
There was, in my judgment, much force in this submission and, if there were not special facts in this case which justify the making of some further adjustment, effect would have to be given to it. But, on the facts of this case, I cannot accept that the formula should be applied without adjustment to the product of its application because it would not, as it seems to me, be just to the plaintiff to do so. If I am right, for the reasons which I have stated, Rougier J. began at the wrong point in asking whether the evidence displaced the conventional or usual figure of two-thirds of the net earnings of Mr. Coward. He should have asked, since the plaintiff was inviting him to apply a presumption of fact instead of inferences to be derived from the particular evidence in this case, whether that evidence required or permitted him to take a larger figure than that revealed by application of the principle based on equal division of joint earnings, namely two-thirds of the net earnings of Mr. Coward less one-third of the net earnings of the plaintiff. Since he did not do so, it seems to me that this court must examine his primary findings of fact, and the evidence, to see whether any larger figure is justified.
On this issue I would accept part of the submission advanced by Mr. Aylen. The judge, it was said, in effect held Mr. Coward to have been a devoted husband who would not only not spend an unusually high proportion of his earnings on himself but was likely to spend a smaller proportion than would be probable in the case of a man who lives ashore and is able to indulge in his pleasures and pastimes during the year as a whole. Mr. Coward would have had to spend much of his time in the North Sea. It seems to me unlikely that he would have retained for his separate benefit proportions of his net earnings as high as those indicated by application of the proposed formula. The chances were good of his increasing his expenditure upon joint benefits, as would have resulted, for example, from saving for, purchasing and paying the outgoings on a larger house. I therefore think that this court should adjust the result of applying the formula. It is not possible, in my view, simply to uphold the judge's assessment of the dependency at two-thirds of the net earnings of Mr. Coward. We do not know how the evidence would have gone if the plaintiff had tried to demonstrate the justice of increasing the figure based upon fair sharing of joint earnings. No attempt was made to make out such a case in this court upon the transcripts of evidence and the documents. In these circumstances this court can add no more to the dependency, calculated by reference to the formula, than such amount as this court can confidently find to be in accordance with the primary findings of fact of the judge. There can be no demonstrable certainty about the proper addition. It is essentially a jury question: see Kassam v. Kampala Aerated Water Co. (1965) 1 WLR 668 at 672. There is material, in my judgment, in the facts found by the judge upon which, if he had applied his mind to the right question, he would have held that the percentage of the net earnings of Mr. Coward which would fairly reflect the lost dependency of the plaintiff was 60 per cent instead of the 55 per cent which is a rough average of the percentages produced by application of the formula. In my view, upon the' material before this court, that is a safe conclusion and I would allow the cross- appeal to that extent only.
It is necessary to add that the figure of 60 per cent of the husband's net earnings on the special facts of this case is not in any sense a substituted formula. It is an assessment of the fair basis of the loss dependency of the plaintiff by a particular adjustment of the result which the formula would produce. It can be expressed in another way. Dependency of 60 per cent of the husband's net earnings for the year 1986 is £13,880 compared with £13,029 based on application of the formula. It represents the retention by the husband for his sole benefit of a sum of £9,251 instead of the £10,104 based on one- third of the joint earnings. That is a retention of about 30.5 per cent of the joint earnings instead of 33.3 per cent according to the principle of equal division on which the formula is based. The 69.5 per cent balance of the joint earnings is £21,068 attributable to the plaintiff's dependency out of the joint earnings, which is to be reduced by her net earnings of £7,181 which she retains, producing again the figure of £13,887. Tested again in that way the adjustment which I propose seems to me to be fair and safe.
In the result I would direct that the judge's award should be recalculated to give effect to the limited success of the parties on the appeal and the cross-appeal. The net earnings of Mr. Coward for the years after he would have ceased diving should be calculated by deducting 25 per cent for tax etc. instead of 30 per cent. The amount of the dependency throughout should be calculated by reference to 60 per cent of the net earnings instead of two-thirds. I would invite counsel to prepare a statement of the result, in accordance with the decision of this court, so that, if it cannot be agreed, any outstanding difference may be decided, I would also ask counsel to consider the figures which I have used and to point out any errors which they perceive,
(iii) THE NEW TAX PROVISIONS
There remains for consideration the last point raised by Nr. Aylen in support of the plaintiff's appeal, namely that this court should direct recalculation of the award on the basis of the 1988 budget proposals. If this recalculation were carried out, the result, based upon the adjustments to the findings of Rougier J. which I have proposed above, has not, of course, been worked out in any of the various tables submitted by Nr. Aylen. The tables, with which we have been supplied, were prepared by Nr. Davidson, junior counsel for the plaintiff, and they have been of great assistance and are admirable in their clarity and detail. Some indication of the order of change which would be worked can be got from Tables Q and R. Applied to gross earnings of £36,000 per annum, and assuming the same payments for mortgage interest and pension contributions as are consistent with the judge's deduction of one-third for tax etc., the consequence of the newly announced tax rules as to allowances and levels of tax would be to reduce the deduction from 33.3 per cent to 29.8 per cent, producing net earnings of £25,272 instead of £24,000. That change would be, as I understand it, applicable to one year at £36,000 in the judge's award.
Next, Table R shows that, for the eight and a half years at gross earning of £20,000 per annum, on the same assumptions as to mortgage interest payments and pension contributions, the net earnings would be 77.25 per cent, that is a deduction of 22.75 per cent, leaving £15,449 instead of the £14,000 in the judge's award. The dependency on that basis would have been £10,289 instead of £9,330. If the judge's award is to he amended as I have proposed the net earnings upon £20,000 gross would be £15,000, based upon a deduction of 25 per cent, instead of the figure of £14,000 taken by the judge. The dependency at two- thirds would be £9,990 against the judge's award of £9,330. If the dependency is reduced to 60 per cent of net earnings it would, upon the basis of the new tax proposals, be £15,449 x 60 per cent, namely £9,269; and, upon the basis of the tax rules applicable at trial, £15,000 x 60 per cent, namely £9,000. The difference is £269 for eight and a half years, namely £2,286.
These sums are not high proportions of the total award, even if altered as I have proposed, but they are not trivial.
I have found this point to be difficult. There is a discretion in this court to admit fresh evidence: Order 59, rule 10(2). Where the matters, as to which it is sought to put forward evidence, have occurred after the date of the trial, the requirement of proof of special grounds (see Ladd v. Marshall (1954) 1 w.L.R. 1489) does not apply, but admission of the evidence is still a matter for the exercise of this court's discretion. There is no right to require this court to have regard to it: see Mulholland v. Mitchell (1971) A.C. 666.
In a fatal accident claim the court assesses damages for future loss upon the basis of an assessment of what the dependency of the plaintiff would have been, if the death had not occurred, by reference to the facts known at the date of trial. The assessment is more reliable because the court uses the latest available information: see Cookson v. Knowles (1979) AC 556. The calculation of the notional net earnings of the deceased is a decision of fact in which are contained a number of assessments of future chances. One of those assessments relates to the rates and levels of future taxation and to the future rules dealing with tax allowances etc. It is, so far as I know, the normal practice to treat as applicable in future the rules, as to the rates and levels of taxation and of allowances, in force at the date of the trial although I see no reason why a court should not receive and have regard to evidence tending to show probable future changes in such rules. The issue, therefore, as to the probable future reduction of notional gross earnings for tax is an issue of fact which is usually determined by reference to the existing law.
The plaintiff appellant has contended that this court should have regard to the new tax rules as announced and adjust the judge's award for the notional years after and including 1988 by reference to them. There is no affidavit before the court but Mr. Williams has not disputed the accuracy of the statements made with reference to the new rules, nor has he contended that there is any real doubt that they will become law in substantially the terms as announced. One of the assumptions made at the trial was that the existing tax rules would continue to apply. This appeal has been brought in due time by notice given in May 1987. The new rules were announced in 1988 while the appeal was pending. The court should not speculate when it has certain knowledge: see Curwen v. James (1963) 1 W.L.R. 748: per Harman L.J. at page 753. If any part of the judge's award is to be altered by order of this court then, all the more, should the recalculation based upon the direction of this court proceed for the years 1988 and after on the basis of the known new rules.
There is much force in this submission but, for my part, I would not accept it. An important factor to be taken into account in exercising the discretion is the general undesirability of admitting fresh evidence on appeal because there ought to be finality in litigation: see per Lord Pearson in Mulholland v. Mitchell (1971) A.C. 666 at page 681; and see also Viscount Dilhorne at page 677D. It is clear from the cases, in my judgment, that it is not sufficient to found the basis for admission of evidence of matters occurring after the trial merely to show that the matters are relevant to the assessment of damage and would, if admitted, make a significant difference to the amount of damages. In Curwen v. James (1963) 1 W.L.R. 748 a widow had remarried very shortly after the trial and evidence of that fact was admitted. In Jenkins v. Richard Thomas and Balwins Ltd. (1966) 1 W.L.R. 476 damages had been awarded on the basis that the plaintiff's future loss would be reduced by his earnings in a new job with the defendants as a grinder. He was unable to do that work and evidence was admitted to prove the resulting increased future loss. Lord Denning at page 477H referred to Curwen v. James as a case in which the "expectation (on which damages had been assessed) had been entirely falsified by the event". He held that in the "very special circumstances" in Jenkins' case the evidence should be admitted because the plaintiff had in effect been told that he would get work at £17 per week and was only getting £11 per week. Salmon L.J. in the same case pointed out that an exceptional circumstance was that the assumption that the plaintiff would be able to earn £17 a week as a grinder was largely based upon what had been said on behalf of the defendants - genuinely but mistakenly - at the trial. He added (at page 480A):
"Save in exceptional circumstances the rule is that for better or for worse the assessment at the trial is once and for all."
In Murphy v. Stone-Wallwork (Charlton) (1969) 1 W.L.R. 1023 it had been assumed at the trial and in the Court of Appeal that the defendants would continue to employ the plaintiff and the assessment of future loss had been based upon that assumption. Shortly after the decision of the case by the Court of Appeal, the defendants dismissed the plaintiff. On appeal to the House of Lords the damages were increased to allow for the increased future loss resulting from the defendants' action. It was held that the course taken by the defendants since the accident, and the conduct of the trial on both sides, rendered it inequitable that, even though there was no bad faith, the deliberate conduct of the defendants in falsifying the belief that the appellant would not be dismissed should be allowed to yield to them a profit. Lord Upjohn in Murphy's case at page 1030G said:
"So here your Lordships are confronted with a conflict of two principles of law. First, it is a very fundamental and important principle of law established in the public interest that there should be an end to litigation between parties. ...
On the other hand, where damages have to be assessed upon estimates as to the future, the likelihood of dismissal or further ill health or, in the case of a widow making a claim under the Fatal Accidents Act, the probability of her remarriage (these are,of course, only examples), then the court does in proper cases look at the facts that have happened since judgment."
In my judgment, on this matter the first principle there mentioned by Lord Upjohn should prevail. There may be in a particular case such importance on the special facts to be attached to changes in tax rules, announced after trial, that it would be unjust not to give effect to them but this is not such a case. Changes in the tax rules are made from time to time. The new rules announced in 1988 are not bound to last for any particular period of time and further changes may well be made, making increases in tax or further reducing tax on incomes. When changes are made they must affect a considerable number of cases which have just been decided op settled. If a case has been finally settled it could not on such ground be re-opened. If a case has been decided, it should not be capable of being reconsidered in the Court of Appeal, in my view, merely on the ground that new tax rules have been announced or enacted, at least where the issue of fact affected by the new rules are of no greater importance to the issues in the case than they are in the ordinary personal injury or fatal accident case, in which category I think this case properly belongs. If the announcement or enactment of new tax rules should not in such a case provide the only ground of appeal, then, as I think, this court should not have regard to any such new rules in an appeal where the judge's award is altered on other grounds. There is, in my judgment, nothing exceptional, in the sense of the decisions mentioned above, about the arrival of new tax rules. It is something which affects all the cases decided within the band of time covered by the time for appealing and the time waiting for an appeal to be heard. It would, I think, be undesirable in cases of this nature for plaintiffs affected by tax reductions, or for defendants affected by tax increases, to be able to ask this court to recalculate awards of damages on such a ground.
I would therefore dismiss the appeal and the cross-appeal is allowed to the extent stated above without regard to the new tax rules.
LORD JUSTICE BUTLER-SLOSS: I agree.
SIR EDWARD EVELEIGH: I also agree.
Order: Appeal dismissed. Cross-appeal allowed to the extent indicated. Costs of the appeal to be paid by the plaintiff. Repayment of the difference to the defendant.