2000/91
4 pages
ROYAL COURT
(Samedi Division)
30th May, 2000
Before: M.C. St.J Birt, Esq., Deputy Bailiff, and
Jurats Myles and Allo.
Representation of Bedell Cristin Executors, Ltd.
(Executors of the Estate of X).
Following an out of court and confidential settlement of a claim brought on behalf of the husband and children of the Deceased under the Fatal Accidents (Jersey) Law, 1962, and on behalf of the Deceased's Estate under the Customary Law Amendment (Jersey) Law, 1948, against the Health and Social Services Committee and another, application by the Representor for the Court to approve its apportionment as between the two claims.
Advocate S.J. Young for the Representor.
JUDGMENT
THE DEPUTY BAILIFF:
1. As a result of the death of X, proceedings were brought against the Health and Social Services Committee of the States of Jersey. Those proceedings were brought by the deceased's estate under the Customary Law Amendment (Jersey) Law, 1948 (the 1948 Law) and by the husband and children of the deceased under the Fatal Accidents (Jersey) Law, 1962 (the 1962 Law). Those proceedings have been compromised by a lump sum payment of £195,000.
2. Had the matter gone to trial, the Court would have had jurisdiction to divide the damages received under the 1962 Law amongst the dependents pursuant to Article 4(1) of that Law. However the matter was settled out of Court. The executor therefore seeks the directions of the Court as to how the sum of £195,000 should be allocated between the husband and the two children who were aged 14 and 7 respectively at the date of the deceased's death.
3. The first task is to allocate the damages under the 1948 Law and under the 1962 Law respectively. Damages under the 1948 Law go to the estate. In this case the estate falls to be divided equally between the husband and the two children, i.e. they each receive one-third. Damages under the 1962 Law will be allocated as the Court directs.
4. As is often the case, there is some duplication between the claims under the 1948 Law and those under the 1962 Law. In particular it has been assumed for the purpose of this hearing that there would be a valid claim under the 1948 Law for damages for loss of earnings during what are known as 'the lost years' i.e. those years during which X would normally have been expected to work and earn income, but which were lost because of her premature death.
5. We wish to make it clear that it was not argued as to whether Jersey should follow the position in England, which itself has a very chequered history. In Oliver -v- Ashman [1962] 2 QB 210 it was held that there was no claim for damages for the lost years under the English equivalent of the 1948 Law. That was reversed by Gammell -v- Wilson [1982] AC 27, which held that there was such a claim under that statute.
6. Because of the rule we are about to refer to, the effect is that the dependency claim under the 1962 Law in respect of earnings during the lost years is rendered nugatory. The Court cannot therefore allocate the damages as it thinks fit to achieve justice. The damages fall into the estate and pass in accordance with the will or the rules of intestacy.
7. In England it was realised that the decision in Gammell -v- Wilson was unsatisfactory in this and in other respects and the problem was addressed by legislation. Section 4(2) of the Administration of Justice Act, 1982 abolished the right to claim for lost years under the English equivalent of the 1948 Law so that the matter is now dealt with, as it should be, as a dependency claim under the 1962 Law. We think that the legislature in Jersey should give attention to this problem in order to see whether either or both of these pieces of legislation in Jersey needs amendment in order to clarify the position and to improve the justice of the allocation of awards.
8. It is clear, both from the statute and from the cases, that damages recovered under the 1948 Law go to reduce damages which would otherwise be recoverable under the 1962 Law, where they overlap.
9. Damages recoverable in this case under the 1948 Law include pain and suffering and loss of amenity, loss of expectation of life, loss of earnings for the lost years, loss of wages prior to death and interest on these various summons. It has been calculated that the sum of £122,286.53 out of the global sum of £195,000 is properly attributable to the claims under these headings. This sum therefore goes to the estate and has to be divided equally between the three beneficiaries.
10. The claim under the 1962 Law is put in aggregate at some £162,204.99 but, as already mentioned, this includes a certain amount of duplication of the claim under the 1948 Law in that the dependency clearly duplicates the amount claimed for the lost years.
11. Damages under the 1962 Law in respect of claims which are not duplicated are calculated as £72,713.47. This is therefore the difference between the amount due under the 1948 Law and the total amount recovered. How is the sum of £72,713.47 to be divided? The Court has been provided with an opinion by English counsel. Under the English equivalent of the 1962 Law, the greater share is usually paid to the surviving spouse, both because of the nature of his or her dependency and the fact that he or she will assume care for the children during their minority. In addition the younger the child, the greater the dependency and therefore the greater the amount allocated to that child.
12. Having regard to various previous cases in England, counsel has advised that a suitable division in this case would be, in rounded percentages, 82.05% to the husband; 7.69% to the older child; and 10.26% to the younger child. Having looked at the matter, we consider that that is a reasonable basis for division of the claim under the 1962 Law.
13. The result therefore is that the total damages will be allocated as follows: to the husband £100,424.51; to the older child £46,355.52; and to the younger child £48,219.97; and we so order.
Authorities
Fatal Accidents (Jersey) Law, 1962.
Customary Law Amendment (Jersey) Law, 1948.
Oliver -v- Ashman [1962] 2 QB 210.
Gammell -v- Wilson [1982] AC 27.
Mallett (née Ollivier) -v- Wilson (1979) JJ 47.
Administration of Justice Act 1982: s.4(2).