United Kingdom House of Lords Decisions

Parliamentary Archives,
HL/PO/JU/4/3/1114

HOUSE OF LORDS

H. WEST & SON LTD. and another

v.

Lord Reid

SHEPHARD

27th May, 1963

Lord Reid
Lord Tucker
Lord Morris of Borth-y-Gest
Lord Devlin
Lord Pearce




my lords,

1 have had an opportunity of reading the speech which has been prepared
by my noble and learned friend, Lord Devlin, and I am in general agreement
with it. I need not set out the facts of this case, and I can go straight to
the question of general importance—What is the basis on which damages
for serious injuries are awarded? The determination of that question in the
ordinary case where the injured person is fully conscious of his disability will
go far to decide how to deal with a case like Wise v. Kaye [1962] 1 QB 638,
where the injured person was wholly unconscious with no prospect of ever
regaining consciousness or like the present case where the Respondent is
only conscious to a slight extent.

In the ordinary case of a man losing a leg or sustaining a permanent
internal injury, he is entitled to recover in respect of his pain and suffering:
if he is fortunate in suffering little pain he must get a smaller award. So it
is not disputed that where an injured person does not suffer at all because
of unconsciousness he gets no award under this head. Nothing was awarded
in Wise's case and nothing has been awarded in this case. On the other
hand no one doubts that damages must be awarded irrespective of the
man's mental condition or the extent of his suffering where there is financial
loss. That will cover the cost of treatment or alleviation of his condition
just as much as it covers the cost of repairing or renewing his property.
And it will cover loss of earning power: there may be a question whether
some deduction should be made where his outgoings will be less than they
would have been if there had been no accident, so as to reach his net
financial loss, but that does not arise in the present case.

The difficulty is in connection with what is often called loss of amenity and
with curtailment of his expectation of life. If there had been no curtailment
of his expectation of life the man whose injuries are permanent has to
look forward to a life of frustration and handicap and he must be compen-
sated, so far as money can do it, for that and for the mental strain and
anxiety which results. But I would agree with Sellers, L.J. in Wise's case
that a brave man who makes light of his disabilities and finds other outlets
to replace activities no longer open to him must not receive less compensation
on that account.

There are two views about the true basis for this kind of compensation.
One is that the man is simply being compensated for the loss of his leg
or the impairment of his digestion. The other is that his real loss is not
so much his physical injury as the loss of those opportunities to lead a full
and normal life which are now denied to him by his physical condition—
for the multitude of deprivations and even petty annoyances which he must
tolerate. Unless I am prevented by authority I would think that the ordinary
man is, at least after the first few months, far less concerned about his
physical injury than about the dislocation of his normal life. So I would
think that compensation should be based much less on the nature of the
injuries than on the extent of the injured man's consequential difficulties
in his daily life. It is true that in practice one tends to look at the matter
objectively and to regard the physical loss of an eye or a limb as the subject
for compensation. But I think that is because the consequences of such
a loss are very much the same for all normal people. If one takes the
case of injury to an internal organ I think the true view becomes apparent.
It is more difficult to say there that the plaintiff is being paid for the physical
damage done to his liver or stomach or even his brain, and much more



2

reasonable to say that he is being paid for the extent to which that injury
will prevent him from living a full and normal life and for what he will
suffer from being unable to do so.

If that is so, then I think it must follow that if a man's injuries make
him wholly unconscious so that he suffers none of these daily frustrations
or inconveniences, he ought to get less than the man who is every day
acutely conscious of what he suffers and what he has lost. I do not say
that he should get nothing. This is not a question that can be decided
logically. I think that there are two elements, what he has lost and what
he must feel about it, and of the two I think the latter is generally the
more important to the injured man. To my mind there is something unreal
in saying that a man who knows and feels nothing should get the same
as a man who has to live with and put up with his disabilities, merely because
they have sustained comparable physical injuries. It is no more possible
to compensate an unconscious man than it is to compensate a dead man.
The fact that the damages can give no benefit or satisfaction to the injured
man and can only go to those who inherit the dead man's estate would
not be a good reason for withholding damages which are legally due. But
it is, in my view, a powerful argument against the view that there is no
analogy between a dead man and a man who is unconscious and that a
man who is unconscious ought to be treated as if he were fully conscious.

It is often said that it is scandalous that it should be cheaper to kill a
man than to maim him, and that it would be monstrous if the defendant
had to pay less because in addition to inflicting physical injuries he had
made the plaintiff unconscious. I think that such criticism is misconceived.
Damages are awarded not to punish the wrong-doer but to compensate the
person injured, and a dead man cannot be compensated. Loss to his estate
can be made good, and we can give some compensation to those whom he
leaves behind. Perhaps we should do more for them—but not by inflating
the claim of the dead man's executor, for then the money may go to un-
deserving distant relatives or residuary legatees or even to the Treasury
if he dies intestate and without heirs. And it is already the case that it
may benefit the defendant to injure the plaintiff more severely. If he is
injured so severely that he can only live a year or two at most the damages
will be much less than if he is less severely injured so that he may survive
for many years. And that brings me to the other matter of loss of expectation
of life.

There is no dispute about the claim for loss of expectation of life in
this case, but the Appellant relies on Benham v. Gambling [1941] A.C. 157, so
I must deal with the matter at least in a general way. One must have in
mind the position when Benham's case came before this House. It had
been established in Roxe v. Ford [1937] A.C. 836 that a plaintiff is entitled
to damages for the tortious shortening of his expectation of life whether
or not he knew that this expectation had been curtailed. But the measure
of damages was left so vague that in practice this head of claim got out of
hand. In Mills v. Stanway Coaches, Ltd. [1940] 2 K.B. 334, Lord Goddard
said that " damages awarded under this head have increased and are increas-
" ing and ought, as I think, to be diminished ". And then in 1941 this House
decided that these damages must be diminished. I cannot interpret that
decision as anything other than a decision based on policy, but justified by
assumptions more philosophical than legal. The decision stands that damages
under this head must be limited to a low conventional figure and I would
be the last to question that. But I do not accept that the decision has
established that damages under other heads must be assessed by reference
to a hedonistic profit and loss account of happiness and unhappiness, or
pleasure and pain. It is now a rule of law that, if a man is cut off in the
prime of life, then no matter how bright his prospects only a conventional sum
of £500 or so can be awarded in respect of his lost years. But if it were
true that no man's future on earth is worth on balance more than that I do
not see how we would justify awards of £10,000 and more for loss of amenity.
So I would not apply what Lord Simon said to any other class of case. All
that I would take from Benham's case is that in assessing damages on an
objective basis, independently of what the injured person knew or felt, a



3

low figure was taken. And that is some justification for taking a moderate
figure for the objective element in a claim by a living person for loss of
amenity and attaching more importance to what he knows and feels about
his deprivation than to his actual injuries.

Coming to the facts of this case I would accept the sum of £1,600 which
has been awarded to cover special damage, loss of earnings and loss of
expectation of life but I would reduce the general damages of £17,500. I
would consider separately the objective and the subjective element arising
from the Respondent's injuries. Accepting that in view of her shortened
expectation of life £17,500 would be a fair sum if the Respondent were
fully conscious of her position, I would think that not more than £5,000
of that ought to be attributed to the actual physical injuries, and then the
question is to what extent the Respondent is conscious and suffering. Unfor-
tunately we have nothing to go by except three medical reports and on
this matter they do not take us very far. It would seem that the Respondent
has some but not very much appreciation of her surroundings and she
seems to suffer no pain. I think that perhaps £4,000 would be appropriate
here. And then perhaps insufficient attention has been given to expense
which her husband may incur in tending her and providing amenities if
her condition should improve slightly. So I would substitute a figure in the
region of £10,000 for the sum of £17,500 which has been awarded.

Lord Tucker

MY LORDS,

The Opinion which I am about to read is that of my noble and learned
friend, Lord Morris of Borth-y-Gest. I am in complete agreement with the
reasoning and conclusions of that Opinion.

Lord Morris of Borth-y-Gest

MY LORDS,

The grievous injuries in respect of which, as has been held, liability rests
upon the Appellants, were sustained by the Respondent on the 28th
November, 1959. She was then 41 years of age, the wife of a devoted
husband and the mother of three children. On that date she was removed
to hospital in an unconscious condition. Her clinical state suggested that
there was intracranial bleeding and an operation was performed on the
same day in order to evacuate haemorrhages. There was also bruising of
the underlying brain. Following the operation her level of consciousness
lightened somewhat but she did not regain full consciousness. Later investi-
gations suggested a marked degree of cerebral atrophy on the right side of
the brain: there was asymmetry between the two hemispheres and a diffuse
abnormality such as is often seen after head injuries with extensive cerebral
contusion.

On the 1st March, 1961, she was transferred to another hospital. In
reference to that date it was said that she was conscious and responded in
a negative manner to examination but that she lay quite detached from her
environment: there was no response to external painful stimuli except slight
withdrawal by the right arm and she did not respond to any requests. A
hospital report stated that "all 4 limbs were spastic, the arms more so
" than the legs and there was no voluntary movement present beyond eye
" movements to follow a moving object."

By the 22nd November, 1961, there had been a gradual increase in her
awareness of and response to her surroundings and a little voluntary move-
ment was returning to the head and right arm. She could see and hear and
she appeared to understand simple requests though very slowly. In medical
language her state was said to be that of " post-traumatic spastic quadriplegia
" and intellectual deficit ".




4

A report dated the 16th February, 1962, recorded that there has been a
slight improvement in her mental condition in that she showed some signs
of recognition of relatives and members of the nursing staff and had
responded to commands by moving her right hand. She could appreciate
the difference between articles of food that she liked or disliked, her means
of indication being by means of facial expressions.

Her husband, a witness at the trial, noticed that in November 1961 there
was some improvement in her condition. Though she remains unable to
speak she has been able to indicate colour in that when her husband
mentioned a colour she touched a coloured card which was held up in front
of her: she could just lift her hand from the bed cover and extend a finger
so as to touch the card. When her husband mentioned a number up to
but not beyond the number 9 she could touch a card with the mentioned
number on it. Accepting the husband's evidence the learned Judge at the
trial held that though she cannot speak at all she must be able, to a certain
extent, to understand what is said to her.

She needs continuous nursing care in hospital with hourly or two-hourly
feeding by tube. Although her general condition (apart from her neuro-
logical condition) is good she is at great risk from the development of chest
and other infections. She will require full-time hospital nursing for the
period that her life continues and there is no prospect of any further
improvement in her condition.

On a consideration of the evidence, and balancing the possibilities, the
learned Judge held that she had an expectation of life " somewhere in the
" neighbourhood of five years ". On that basis her life from the date of the
accident for a period of over seven years will have been lived in the con-
dition and subject to the deprivations which I have summarised.

The award of damages made by the learned Judge at the trial on the 3rd
May. 1962. included (a) a sum of £500, the agreed special damages which
covered the Respondent's loss of earnings down to the date of trial; (b) £600
for future loss of earnings; (f) £500 for loss of expectation of life, and (d)
£17,500 general damages. In the Court of Appeal no challenge was made
of the sums awarded under (a), (b) and (c) above. The challenge which was
made of the amount of the general damages failed.

My Lords, the damages which are to be awarded for a tort are those which
" so far as money can compensate, will give the injured party reparation for
" the wrongful act and for all the natural and direct consequences of the
" wrongful act". (Admiralty Commissioners v. s.s. Susquehanna [1926]
A.C. 655, 661.) The words " so far as money can compensate " point to the
impossibility of equating money with human suffering or personal depriva-
tions. A money award can be calculated so as to make good a financial
loss. Money may be awarded so that something tangible may be procured
to replace something else of like nature which has been destroyed or lost.
But money cannot renew a physical frame that has been battered and
shattered. All that judges and courts can do is to award sums which must
be regarded as giving reasonable compensation. In the process there must
be the endeavour to secure some uniformity in the general method of
approach. By common assent awards must be reasonable and must be
assessed with moderation. Furthermore, it is eminently desirable that so
far as possible comparable injuries should be compensated by comparable
awards. When all this is said it still must be that amounts which are awarded
are to a considerable extent conventional.

In the process of assessing damages judges endeavour to take into account
all the relevant changes in a claimant's circumstances which have been caused
by the tortfeasor. These are often conveniently described as " heads of
" damage". In his judgment in the much-litigated cause of Phillips v.
London and South Western Railway Co., Cockburn, C.J., referred to some of
these (1879, 4 Q.B.D. 406, 407). He mentioned " the bodily injury sustained "
as well as " the pain undergone ", " the effect on the health of the sufferer ",
and items of expense incurred and pecuniary loss suffered.

5

If there has been some serious physical injury which as the result of skilled
medical attention has happily not necessitated the enduring of pain then
it will follow that there will be no question of including in an award any
sum as compensation for the enduring of pain. If someone has been made
unconscious so that pain is not felt the like result will follow. Damages
are awarded as a fair compensation for that which has in fact happened
and will not arise in respect of anything that has not happened.

In the case to which I have referred Cockburn, C.J. made no mention of
a head of damages which in recent years has figured prominently in personal
injuries cases—viz. damages to give compensation for the fact that the
injuries will result in a material shortening of the length of life. Such
damages formed an element in an award made by Acton, J. in Flint v.
Lovell. When that case went to the Court of Appeal Roche, L.J. said
[1935] 1 K.B. 354 at p. 367) that the admission of such a head of damage as
a separate and independent head was novel and difficult of application and
he added: " In the hearing of very many cases of personal injuries I do not
" remember this head of damage being so treated." The Court of Appeal
held that Acton, J. had been entitled to take the Plaintiff's diminution of
expectancy of life into account. That decision of the Court of Appeal was
approved in your Lordships' House in Rose v. Ford [1937] A.C. 826. As a
result of the Law Reform (Miscellaneous Provisions) Act, 1934, a cause of
action which entitles a person to claim damages for loss of an expectation of
life survives for the benefit of his estate.

In the years that followed the decisions in Flint v. Lovell and Rose v.
Ford there were wide variations in the amounts which were awarded in
reference to this head of damages whether the claims were made by and in
the lifetime of those whose lives had been shortened or were made because
causes of action survived where death had occurred. In Benham v. Gambling
[1941] A.C. 157, Viscount Simon, L.C. said (at p. 161): "It has been re-
" cognized by judges, who have had to deal with the many cases under this
" head which have fallen to be decided in the last few years, that the measure-
" ment of this head of damage in terms of money is a very difficult matter."
He added that it must be accepted that in cases where a victim's life has been
shortened " some figure to represent the loss suffered by the deceased through
" the shortening of his life may be included in the damages " and he said
that judges had drawn attention to the need for authoritative guidance on
the subject of how to arrive at it. Such authoritative guidance was given by
your Lordships' House. It was given in reference to that particular head of
damages. The speech of Viscount Simon was only concerned with that head
and dealt with no other. Viscount Simon spoke more than once of " assessing
" damages under this head ". He said (at p. 162): " The present appeal
" raises the problem of the assessment of damage for ' loss of expectation of
" ' life ' before this House for the first time, and it is indeed the only issue
" with which we are now concerned."

My Lords, I have never understood that the speech of Viscount Simon was
calculated to prescribe for judges a new method of approach in assessing
what damages to award for some bodily injury. If, for example, damages
fall to be assessed for the loss of a leg I cannot think that it was ever intended
that guidance should be sought for in the speech of Viscount Simon in
Benham v. Gambling. Indeed I think that Viscount Simon was indicating as
much when he said that " damages which would be proper for a disabling
" injury may well be much greater than for deprivation of life ". It may be
that a thesis can be formulated leading to the conclusion that the reasoning
which guided Viscount Simon towards the result which he announced is
reasoning which logically should be applied when bodily deprivations are
the subject-matter for a monetary award. If this be so then here is an
occasion for the reminder that logic is not the life of the law. The guidance
given in Benham v. Gambling was, I consider, solely designed and intended to
apply to the assessment of damages in respect of the rather special " head "
of damages for loss of expectation of life.




6

I pass now to a consideration of the submissions which were made in regard
to the award of £17,500 as general damages. It was submitted that there was
a wrong approach in law in arriving at that figure and alternatively it was
submitted that if the approach was not wrong in law the figure of £17,500
was excessive and reflected a wholly erroneous assessment.

An interesting argument was addressed to your Lordships which analysed
those elements of general damages which may be regarded respectively as
consolatory and as compensatory in their nature. My Lords, in reference to
a judicial process which must so often be undertaken such as that of the
assessment of damages for personal injuries I would favour simplicity of
expression and an absence to the greatest extent possible of any elaborate
or complex formulae. I consider that it is sufficient to say that a money
award is given by way of compensation and that it must take into account
the actual consequences which have resulted from the tort.

Certain particular questions have been raised. How are general damages
affected, if at all, by the fact that the sufferer is unconscious? How are they
affected, if at all, if it be the fact that the sufferer will not be able to make
use of any money which is awarded?

The first of these questions may be largely answered if it is remembered
that damages are designed to compensate for such results as have actually
been caused. If someone has been caused pain then damages to compensate
for the enduring of it may be awarded. If, however, by reason of an injury
someone is made unconscious either for a short or for a prolonged period
with the result that he does not feel pain then he needs no monetary com-
pensation in respect of pain because he will not have suffered it. Apart from
actual physical pain it may often be that some physical injury causes distress
or fear or anxiety. If for example personal injuries include the loss of a leg
there may be much physical suffering, there will be the actual loss of the leg
(a loss the gravity of which will depend upon the particular circumstances of
the particular case) and there may be (depending upon particular circum-
stances) elements of consequential worry and anxiety. One part of the
affliction (again depending upon particular circumstances) may be an inevit-
able and constant awareness of the deprivations which the loss of the leg
entails. These are all matters which judges take into account. In this con-
nection also the length of the period of life during which the deprivations
will continue will be a relevant factor (see Rose v. Ford [1937] A.C. 826).

To the extent to which any of these last-mentioned matters depend for
their existence upon an awareness in the victim it must follow that they
will not exist and will not call for compensation if the victim is uncon-
scious. An unconscious person will be spared pain and suffering and will
not experience the mental anguish which may result from knowledge of
what has in life been lost or from knowledge that life has been shortened.
The fact of unconsciousness is therefore relevant in respect of and will
eliminate those heads or elements of damage which can only exist by being
felt or thought or experienced. The fact of unconsciousness does not,
however, eliminate the actuality of the deprivations of the ordinary experi-
ences and amenities of life which may be the inevitable result of some
physical injury.

If damages are awarded to a plaintiff on a correct basis it seems to me
that it can be of no concern to the court to consider any question as to
the use that will thereafter be made of the money awarded. It follows
that if damages are assessed on a correct basis there should not then be
a paring down of the award because of some thought that a particular
plaintiff will not be able to use the money. In assessing damages there may
be items which will only be awarded if certain needs of a plaintiff are
established. A particular plaintiff may have to have provision made for
some future form of transport: a particular plaintiff may have to have
provision made for some special future attention or some special treatment
or medication. If, however, some reasonable sum is awarded to a plaintiff
as compensation for pain endured or for the loss of past or future earn-
ings or for ruined years of life or lost years of life the use to which a



7

plaintiff puts such sum is a matter for the plaintiff alone. A rich man,
merely because he is rich and is not in need, is not to be denied proper
compensation: nor is a thrifty man merely because he may keep and not
spend.

With this approach I turn to the question whether there is any error
in principle in the assessment of damages made by Paull, J. He referred
to the case of Wise v. Kaye [1962] 1 QB 638—which was a case where
a young woman, 20 years of age, received serious brain injuries in an
accident in May 1958. Thereafter she remained in hospital in a helpless
and unconscious condition. The medical evidence established that there
was no prospect of her recovery and that she would die at some unspecified
time of an intercurrent complaint which would take place during her
illness. At a trial on the 3rd February, 1961, she was awarded the sum
of £15,000 as general damages in addition to amounts of damages for loss
of earnings and for loss of probable future earnings and for loss of
expectation of life. On the 1st December, 1961, the Court of Appeal by
a majority upheld the award of £15,000 general damages.

In his judgment in the present case Paull, J. pointed out that there is
the factor, absent in Wise v. Kaye, that the plaintiff may well appreciate,
at least to some extent, the condition in which she is and for that reason
is probably in a worse condition than was the plaintiff in Wise v. Kaye.
Stating that had the plaintiff in the present case had a longer expectation
of life he would have awarded higher damages Paull, J. said: "However,
" I have got to take into account that she may well die within five years.
" Clearly she has lost all the amenities of life, clearly she has got to be
" looked after, and she may well recognise the condition in which she is,
" and in her mind may be the most appalling thoughts as to the condition
" in which she is. I do not know. I think in a case of this sort the
" proper sum to award for general damages is £17,500." The learned
Judge was clearly approaching some matters on an objective basis and others
on a subjective basis. Experienced judges are well accustomed to weigh
up all relevant matters and then to express a comprehensive conclusion
and it would not be profitable and would only be burdensome if they were
expected to segregate those matters which they have viewed objectively
and those which they have viewed subjectively and then to make precise
and detailed allocations of money for each separate component matter
which they had considered.

My Lords, leaving aside for the moment the question as to whether the
amount is, as an amount, excessive I can see no fault in the approach of the
learned Judge. It is necessary to have in mind the matters for which he was
awarding these general damages. Accepting the estimate as to the Plaintiff's
expectation of life, damages were to be given to cover a period of over
seven years. At the age of 41 everything that life held for her was taken
away from her. For a period of about seven years instead of having life's
activities and amenities she will have mere existence but little else, save
that, to the extent that I have described, she may have the torment of a
realisation of her helplessness. If in some degree she has processes of
thought she has the agony and frustration of being unable to convey her
thoughts or to give them expression. All these matters constitute grave
and sombre deprivations for which in my view she is entitled to receive
substantial compensation.

Unless the approach of the majority in the Court of Appeal in Wise v.
Kaye was erroneous then I detect no error of approach on the part of
Paull, J. in the present case. I have already expressed the opinion that the
decision in Benham v. Gambling was not calculated to lay down a new
basis for the assessment of general damages and should not be regarded as
having done so. On the matters which are relevant in the present appeal I
respectfully express my concurrence with the views of the majority in Wise
v. Kaye and with the reasoning which guided the powerful judgments of
Sellers and Upjohn, L.JJ.




8

With the question of principle which was decided in Wise v. Kaye as to
the basis to be taken in assessing future loss of earnings your Lordships
are not concerned. The recorded evidence in that case was not very explicit
as to the reduction in the expected span of life: apparently the doctors
could not give an estimate though it was accepted that the Plaintiff could
not be expected "to endure for anything approaching a normal span of
" life ". There were some similarities but also some differences between the
condition of the Plaintiff in that case and the condition of the Plaintiff in
the present case. Sellers, LJ. thus described the condition of Miss Wise:
" There is no hope of a real recovery and but little hope even of a degree
" of consciousness, although the Plaintiff still lives, breathing with periodic
" aid from a tube in the lungs, revealing faint signs of a waking and sleeping
" rhythm and maintaining a steady weight. The Plaintiff cannot eat or
" drink but her body can obtain nourishment from food fed to her and
" so she lives on."

Being of the opinion that there was no error of approach on the part
of Paull, J. in the present case and that the approach of the majority (on
the matters now in issue) in the Court of Appeal in Wise v. Kaye should
be endorsed the remaining question is whether the award of £17,500 was
excessive. As the case undoubtedly has many features of comparison with
Wise v. Kaye the issue may be raised as to whether the sum of £15,000 in
that case was excessive. In Wise v. Kaye an argument was addressed to
the Court of Appeal that the award was in any event too high. That
submission was rejected. Sellers, L.J. at p. 653 said: "The Judge has
" assessed a sum of £15,000 for these physical injuries with all their
" attendant deprivations. The circumstances are unprecedented. The only
" factor I can see which would operate to modify the sum awarded is
" that the Plaintiff may not live very much longer, but on the other hand
" she may. Damages of this character must be fair and reasonable and I
" do not feel able to say that this award is not."

My Lords, unless there is revealed some error in principle on what basis
can the figure of £17,500 be attacked? The attack must be on the basis
that to someone apprised of the facts the figure seems startling and suggests
that it cannot be right. The well-known principles which guide an appellate
court were expressed by Lord Wright in his speech in Davies v. Powell
Duffryn Associated Collieries, Ltd. [1942] A.C. 601, at pp. 616-7 in the
course of which he said: " It is not enough that there is a balance of
" opinion or preference. The scale must go down heavily against the figure
" attacked if the appellate court is to interfere, whether on the ground
" of excess or insufficiency." The difficult task of awarding money com-
pensation in a case of this kind is essentially a matter of opinion of
judgment and of experience. In a sphere in which no one can predicate
with complete assurance that the award made by another is wrong the
best that can be done is to pay regard to the range and limits of current
thought. In a case such as the present it is natural and reasonable for
any member of an appellate tribunal to pose for himself the question as to
what award he himself would have made. Having done so and remembering
that in this sphere there are inevitably differences of view and of opinion
he does not however proceed to dismiss as wrong a figure of an award
merely because it does not correspond with the figure of his own assessment.
My Lords, the figure of £17,500 may seem high, but I am not persuaded
that the learned Judge who fixed it and those who approved of it are
shown to have been in error. I ought not to differ from them unless I am
persuaded that they have awarded or allowed a figure which is shown to
be unreasonable and excessive and out of proportion having regard to the
injuries sustained. I ought not to overrule their discretion and their act of
judgment unless I am so satisfied. As I am not I would dismiss the appeal.

Lord Devlin

MY LORDS,

This is in effect an appeal from the decision of the Court of Appeal in
Wise v. Kaye (1962) 1 QB 638 in which the Court of Appeal by a majority
upheld an award of £17,400 general damages to a Plaintiff who had been
made completely unconscious by the accident for which the Defendant was
responsible and was presumed (correctly as the event showed) to remain
so for the rest of her life. Because of her unconsciousness she suffered
nothing and because she was cared for by the State there was no claim for
the cost of nursing her and keeping her alive. Amounts of £2,000 and £400
were allocated respectively to loss of future earnings and loss of expectation
of life. The difference of opinion in the Court of Appeal arose over the
residual figure of £15,000.

The present case was pleaded as one of unconsciousness. But the
evidence which your Lordships have already noted shews that the Plaintiff
has some command over her faculties and Paull, J. considered that " she
" may well appreciate at least to some extent the condition in which she is ".
This state is expected to last till death. Paull, J. therefore applied the prin-
ciple in Wise v. Kaye and took as the appropriate residual figure the same
figure of £15,000; but added to it £2,500 because of "some sort of know-
" ledge " which she must have of her condition. His judgment was upheld in
the Court of Appeal and the Lords Justices did not add substantially to the
reasoning of the majority in Wise v. Kaye.

The case raises a fundamental question on the nature of damages for
personal injury. There must be compensation for medical expenses incurred
and for loss of earnings during recovery ; these are easily quantified, whether
as special or as general damage. Then there is compensation for pain and
suffering both physical and mental. This is at large. It is compensation
for pain and suffering actually experienced. Loss of consciousness, however
caused, whether by the injury itself or produced by drugs or anaesthetics,
means that physical pain is not experienced and so has not to be com-
pensated for; and this must be true also of mental pain. Then there is or
may be a temporary or permanent loss of a limb, organ or faculty. Whether
it is the limb itself that is lost or the use of it is immaterial. What is to
be compensated for is the loss of use and the deprivation thereby
occasioned.

This deprivation may bring with it three consequences. First, it may
result in loss of earnings and they can be calculated. Secondly, it may put
the victim to expense in that he has to pay others for doing what he formerly
did for himself; and that also can be calculated. Thirdly, it produces loss
of enjoyment, loss of amenities as it is sometimes called, a diminution
in the full pleasure of living. This is incalculable and at large. This
deprivation with its three consequences is something that is personal lo the
victim. You do not, for instance, put an arbitrary value on the loss of a
limb as is commonly done in an accident insurance policy. You must
ascertain the use to which the limb would have been put so as to ascertain
what it is that the victim has actually been deprived of.

What has to be considered in the present case is the method of com-
pensation for the third of these consequences, loss of enjoyment or pleasure.
There is here an almost total loss of use of all the faculties or limbs, but
compensation under this head must be assessed in the same way as it would
be for a partial loss of a single limb or faculty. The degree is different
but not the principle.

There are two ways in which this loss of enjoyment can be considered
It can be said that from beginning to end it is really all mental suffering.
Loss of enjoyment is experienced in the mind and nowhere else. It may
start with acute distress at the inability to use a limb in games or exercise
as before or just in getting about, and may end with a nagging sense of
frustration. If this is the true view, then total unconsciousness as in Wise
v. Kaye relieves all mental suffering and nothing can be recovered for a
deprivation which is not being experienced.




10

The other way to look upon the deprivation of a limb is as the loss
of a personal asset, something in the nature of property. A limb can be
put both to profitable use and to pleasurable use. In so far as it is put
to profitable use, the loss is compensated for by calculating loss of earnings
and not by assessing mental pain. On the same principle, it can be said,
a sum must be assessed for loss of pleasurable use irrespective of whether
there is mental suffering or not. It used at one time to be thought that
damages could not be given for the loss of use of property that was not
profit-earning, but that idea has not survived the Greta Holme [1897] AC 596
and the Mediana [1900] AC 113.

My Lords, as might be expected, English law has not come down firmly
in favour of either of these two ways to the exclusion of the other. It
favours a compound of both, as was agreed in argument and as I shall show
later by reference to the authorities. The elements to be compounded have
been called the objective and the subjective. The loss of property element
is objective; it requires some sort of valuation that is in no way dependent
on the victim's sense of loss. The other element is subjective because it
depends entirely on mental suffering actually experienced. Is the main,—
or at least a very substantial,—element in the compound the objective so
that an evaluation must be made of it with an addition for mental suffering
when proved? Or is the main element mental suffering laid upon an
objective bedrock, so that some sum is always recoverable even where there
is no mental suffering at all? Paull, J. has proceeded on the former view. He
has taken £15,000,—the same as in Wise v. Kaye,—as a sum determined
objectively for the loss of all faculties. To this he has added £2,500 for
suffering caused to the Plaintiff by her partial appreciation of her state.

Since the learned Judge approached the problem in this way I think that
your Lordships are bound to enquire whether Wise v. Kaye was in principle
rightly decided. In my opinion it was not and the appropriate figure in that
case should have been about one-tenth of what it was, as Diplock, L.J.
thought. But even if there were no error in principle, I should consider
that the sums awarded both in Wise v. Kaye and in the present case were
inordinately high and should be reduced on that ground alone. It is con-
venient that I should express my views on this second point before I turn
to the important question of principle.

Phillips v. London and South Western Railway Company (1879) 4 Q.B.D.
406 ; 5 Q.B.D. 78, is a case that is often quoted as showing the right
direction to be given to a jury when they are awarding compensation for
personal injuries. In his direction to the jury, Field, J. at 5 Q.B.D. 79
said: —" It has been pointed out for centuries, and it is the principle of
" foreign jurisprudence as well as ours, that in actions for personal injuries
" of this kind, as well as in many others, it is wrong to attempt to give an
" equivalent for the injury sustained. I do not mean to say that you must
" not do it, because you are the masters and are to decide ; but I mean that
" it would operate unjustly, and in saying so I am using the language of the
" great Baron Parke whose opinion was quoted with approval in Rowleys
" Case (1873) L.R. 8 Ex. 221 at 231. Perfect compensation is hardly possible,
" and would be unjust." In Rowley's case Brett, J. had approved of and
laid down the rule as declared by Baron Parke that the jury " must not
" attempt to give damages to the full amount of a perfect compensation
" for the pecuniary injury, but must take a reasonable view of the case, and
"give what they consider under all the circumstances a fair compensa-
" tion ". The direction of Field, J. based on this rule was approved by
Cockburn, C.J. at 4 Q.B.D. 407.

What is meant by compensation that is fair and yet not full? I think
it means this. What would a fair-minded man, not a millionaire, but one
with a sufficiency of means to discharge all his moral obligations, feel called
upon to do for a plaintiff whom by his careless act he had reduced to so
pitiable a condition? Let me assume for this purpose that there is normal
consciousness and all the mental suffering that would go with it. It will not
be a sum to plumb the depths of his contrition but one that will enable



11

him to say that he has done whatever money can do. He has ex hypothesi
already provided for all the expenses to which the plaintiff has been put and
he has replaced all the income which she has lost. What more should he
do so that he can hold up his head among his neighbours and say with their
approval that he has done the fair thing?

I think he would say in an extreme case like this that he would provide
such a sum as would ensure that for the rest of her life the plaintiff would not
within reason want for anything that money could buy. That would not
be perfect; it would not be full; but it would be as much as money could
fairly do. Of course the extent of a plaintiff's wants depends upon the
standards of life to which he or she is accustomed. The law requires that the
standard to be taken should be that of a person of average means, for it
does not permit more to be paid to the rich or less to the poor. What
amount annually does the average person in this country have to spend
on himself or herself alone and purely on pleasure? One or two hundred
pounds perhaps: not more. Suppose the defendant gave the plaintiff that
much again. Suppose that he doubled, trebled or even quadrupled it. That
would cover all the ordinary pleasures that comparative wealth can bring
and the defendant cannot be expected to provide a margin large enough
to satisfy fantastic cravings. A defendant who on these terms provided
£1,000 a year would be doing, I think, more than a fair-minded man should
be required to do. It would produce in this case a figure of £7,000. The
award of £17,500 is two-and-a-half times that and is based on only partial
appreciation of loss. If the learned judge had said that there was total
appreciation, he could not have given less than £20,000 and might have
given as much as £30,000. This sort of figure bears no proper relation
to a fair standard. It is far more than a fair-minded plaintiff would ask
for from a Defendant of reasonable means; and the defendant who volun-
teered it would rightly be thought to be giving his money away.

There are three factors in this particular case, not by any means always
present in this type of case, which should keep the damages awarded to
this plaintiff comparatively small. The first is that the plaintiff's life has
been cut short. If another twenty years of life had to be allowed for, the
figure of £7,000 would have been £20,000. The second is that grave injuries
of this sort are very often accompanied by severe and prolonged and per-
manent physical suffering. The third is that no part of the very heavy
medical expenses incurred has to be borne by the defendant. The National
Health Service apparently makes no claim. I do not pause to enquire
whether this abstention springs from the state of the law or from a decision
of policy. If it is due to the former, the position could easily be remedied,
but there may be good reasons why it is thought preferable that the loss
should be borne by the taxpayers generally. I should imagine that the cost
of hospital treatment with all the assiduous nursing required in this case
might easily be £2,000 or £3,000 a year. This for seven years might well
equal the total figure of £17,500 awarded in this case; and twenty years in
a private nursing home, which is not an impossible thing to happen, would be
a very formidable item in an award.

My Lords, I think, with respect, that the sum awarded in this case
represents an attempt to arrive at equivalent compensation ; and that is what
the authorities condemn as unjust. Injustice may seem a strong word to use ;
but the injustice and the hardship are there, as Diplock, L. J. observed in Wise
v. Kaye at page 690, even though they are spread among many. A sum of the
order of £15,000 and upwards is not, to speak bluntly, one that any judge
or jury would have awarded purely as a solatium if they thought that it
had to come out of the pocket of a person of average means. " The attempt
" to award full compensation in damages ", Cockburn, C.J. said, in Phillips's
case at 4 Q.B.D. 407, " might be attended with ruinous consequences to
" Defendants who cannot always, even by the utmost care, protect them-
" selves against carelessness of persons in their employ". This con-
sideration, it may be thought, does not apply to insurance companies. But
" the general body of premium-paying policy-holders"—I refer again to
the judgment of Diplock, L.J. in Wise v. Kaye at page 690—are no richer



12

than the general body of railway travellers who in the end would have to pay
the damages awarded in such cases as Rowley and Phillips in which the
judges laid down the standard which should still govern. The distinction
they drew between fairness and fullness is now in danger of being lost
altogether. The quest after perfect compensation results only in the piling
up of massive sums which the plaintiffs themselves can probably never use
and which serve only to express the sense of pity which judges as well as
juries must feel for the tragedy of broken lives.

I turn now to consider the part which the objective element should play
in the total award. If this were a matter on which the House could gain
no guidance from the authorities, I could see much scope for argument
about the relative importance of the objective and the subjective. But slowly
and painfully English law has evolved ways of assessing the incalculable
and it is important that they should be followed and applied as far as
possible so that the law may be coherent. I am satisfied on the authorities
that the objective element should be rated low. They are not authorities
that are directly applicable ; if they were, there would be no division of
opinion in this House. But they are authorities which in my opinion cannot
be evaded without grave injury to the structure of the law of damages for
personal injuries and so I think they ought to be followed and applied.
As they are also the authorities which permit the objective element to be
considered at all, I must examine them with some care.

This is not a problem that has arisen very frequently. Deprivation is
almost always accompanied by knowledge of it in the victim. So the
traditional way of assessing compensation has been by reference to the
feelings of the victim. I cannot agree that judges and juries usually approach
the matter by asking themselves objectively what is the value of a leg;
they think of what it must feel like to be a cripple and they award what
is often called a solatium. Until medicine had progressed sufficiently to keep
unconscious persons alive for an indefinite period, there was never any
need in the case of the living for drawing a hard and fast distinction between
the objective and the subjective. The problem arose only in the case of
the dead when a sum had to be awarded to compensate for loss of expecta-
tion of life. What has to be compensated for in this assessment is a total
loss of enjoyment of all the faculties, a complete loss of the pleasure of
living. When the victim knows his fate, he will suffer from the distress
which except in the most saintly or philosophical is caused by the prospect
of death ; and for that clearly he must be compensated. But what if he
never knows his fate? It has been decided that he still must have some
compensation, which should be moderate. The doctrine, I think, originated
in Scotland, and Lord Sands took the view that the objective element grew out
of the subjective. In Reid v. Lanarkshire Traction, 1934 S.C. 78 at page 84,
he said that " while the doctrine of an award in respect of the shortening
" of life may have originated in the theory of mental disquiet about the
" prospect or the possibility of death, . . . that doctrine is now a matter
" positivi juris irrespective of the presence or absence of evidence as to the
" sufferer's state of mind in the particular case ". But, he said, he should
warn the jury that the weight to be given to this element must be moderate
and they must not consider what price the man would have put upon his
life.

The problem of the separation of the two elements first arose in England
because of the Law Reform (Miscellaneous Provisions) Act, 1934, which
allowed the executors of a dead man to sue for damages for personal injury,
the right to which had accrued before the man's death. Clearly, if he
had suffered from the prospect of death, damages could be recovered, as
they could be for any other form of physical or mental suffering. But if
death came suddenly, could the executors recover anything at all? It was
said that they could not on two grounds. One ground was that there was no
mental suffering in such a case and this was the ground adopted by
MacKinnon, J. in Slater v. Spreag [1936] 1 K.B. 83 at page 89, and
Humphreys, J. in Rose v. Ford [1937] A.C. 826 at page 828. This amounted
to a denial that there was any objective element in the assessment. The other



13

ground was the technical one that damages for loss of expectation of life were
the same thing as damages for injury inflicted by death and that an old rule
of the common law, left intact by the Act of 1934, forbade a recovery
of damages in such a case. Both these arguments were negatived by this
House in Rose v. Ford. I accept this decision as an authority binding
on your Lordships that there is an objective element in damages for loss
of enjoyment of life, whether it is caused by death or by maiming or by
any other form of physical injury. This does not exclude the assessment of
compensation for mental suffering in addition where that can be proved.
In Flint v. Lovell [1935] 1 K.B. 354 Greer, L.J. at page 359 gave mental dis-
quietude at the prospect of an early death as an element of damage. Lord
Roche spoke to the same effect in Rose v. Ford at page 858 and so did
Pearce, L.J. in Oliver v. Ashman [1962] 2 Q.B. 210 at page 231.

In Rose v. Ford both Lord Wright at page 850 and Lord Roche at page
860 stressed the importance of the objective element being assessed at a
moderate figure. In Mills v. Stanway Coaches Ltd. [1940] 2 K.B. 334
Goddard, L.J. said at page 348 that the Court should think in hundreds and
not in thousands. Just how moderate the figure should be was settled by this
House in Benham v. Gambling [1941] A.C. 157, when the trial judge's award
of £1,200 was reduced to £200. This case was intended to set and has set a
standard of uniformity for the assessment of damage for loss of expectation
of life where there is no mental suffering. The depreciation of the currency
has raised the figure of £200 to £500 ; and that is the figure which the judge
awarded in the present case under this head.

Mr. Littman, in seeking to sustain the award of £17,500 in this case,
relies upon these authorities in part. He argues, I think rightly, that if
irrespective of suffering damages can be recovered for deprivation of enjoy-
ment caused by death, they must also be recoverable for deprivation of
enjoyment caused by injury short of death. But he asks the House to
reject the view that such damages should be moderate in the sense in
which moderation was understood in Benham v. Gambling. He asks the
House to restrict the Benham v. Gambling principle—I shall call it that
for the sake of convenience, although, as I have pointed out, it is only the
culminating authority of those that enjoin moderation—to cases where the
deprivation of enjoyment is caused by death.

I regard this argument as quite illogical. I do not say that Benham v.
Gambling is binding on your Lordships and concludes this case. Your
Lordships have been reminded of Lord Halsbury's protest in Quinn v.
Leathem [1901] AC 495 at page 506 against authorities being quoted for
propositions that may seem to follow logically from them. Although I see no
logical distinction at all, I agree that it is open to your Lordships to say that
you dislike the Benham v. Gambling principle and will not extend it. But
I am unwilling on two grounds to take that rather drastic course. The
first is that I think it would introduce a distortion—for your Lordships
cannot drive Benham v. Gambling out of the field in which it operates—that
would make the law not merely illogical but repugnant to commonsense.
The second is that although I think that the reasoning in Benham v.
Gambling can be criticised and the figure set may be too small and the
uniformity imposed too rigid, it is fundamentally a decision on the right lines.

On the first ground, I can see no distinction, logical or otherwise, between
sudden death and death preceded by a period of unconsciousness, long or
short. The injury that mortifies the limbs and cuts off the faculties has in
both cases the same effect on the power of enjoyment; in each case the
deprivation is absolute. Death is often preceded by some period of uncon-
sciousness. For how long must the period last in order that the victim's
estate may benefit by the higher measure? For days, for weeks or for
months? I find it, with respect, repugnant to common sense and to justice
that if the victim dies at once the estate benefits only by a few hundreds
but that if the body is kept alive and inert when the mind is dead, the
amount should grow and grow until it reaches a sum such as £15,000. In
this case if, as in Wise v. Kaye. there had been no spark of consciousness,
the damages would be thirty times what they would have been if the Plaintiff
had died at once.

14

Secondly, I said that I thought Benham v. Gambling was fundamentally
on the right lines. The objective element should be very moderately assessed.
Even in cases where it is undoubtedly property which is being dealt with,
such as the loss of the use of a ship, the law, where no loss of profit can
be found, will attempt only a conventional calculation, for example, loss of
interest on capital: see the Hebridian Coast [1961] 1 All E.R. 82. Limbs
and faculties cannot be turned into cash as property can. If it were not that
the objective element has already by the authorities been given a place in the
assessment, I should question whether it ought to be there at all. I think
that deprivation should be measured mainly, if not wholly, by the sense
of loss. I cannot help feeling that the contrary view is coloured by the
thought that a wrongdoer should be made to pay damages commensurate
with the gravity of the physical injury he has inflicted rather than with the
suffering he has caused. This, as my noble and learned friend, Lord Reid,
has said, is a variant of the argument that it should not be cheaper to kill
than to maim. That argument is wholly fallacious. If a man chooses
deliberately to maim rather than to kill, he would pay the penalty for the
crime. The amount of harm done by negligence owes nearly everything
to accident and very little to the state of mind of the doer: the barest negli-
gence can cause the gravest injury and the most culpable little or none at all.

The consideration also mentioned by my noble and learned friend that
the sum awarded will in all probability be of no use to the victim is in my
opinion a legitimate and cogent argument in support of the extremely
moderate assessment made in Benham v. Gambling. It is not a considera-
tion which should be elevated into a principle. For reasons which have
already been fully stated by your Lordships it cannot be said that an award
orherwise appropriate ought to be cut because of the unlikelihood that the
victim will be able to use or dispose of it all. But as a sound practical
reason for reducing in the Ben/mm v. Gambling type of case the part played
in the assessment by the objective element, it has great force.

Accordingly, I consider that where there is no knowledge of the depriva-
tion, nothing more than a conventional sum of the same order as that
assessed on the Benham v. Gambling principle should be awarded for depriva-
tion of faculties. Indeed, where, as in Wise v. Kaye, the injury causes total
unconsciousness which lasts until death, I can see no justification for two
awards,—one for deprivation, which although inflicted on a living victim is
not experienced by him, and the other, for loss of expectation of life that
is also not experienced. To my mind there is then only one deprivation
and the passing of unconsciousness into death does not make a second one.

I think that the sum awarded for mental suffering should in this case be
generously assessed. The extent to which this plaintiff has experienced a
sense of loss is very difficult to ascertain but I think that the presumption
should be against the defendant. The difficulty arises because she cannot
express whatever it is that may be in her mind; she cannot speak or make
herself understood. It was the act of the defendant that destroyed these
faculties: omnia praesumuntur contra spoliatorem. But as I have reason
to believe that the majority of your Lordships intend to uphold the award
of the learned Judge, I do not find it necessary to decide upon an alternative
figure.

I would allow the appeal.

Lord Pearce

My lords,

The Appellants seek to use the plaintiff's condition as the foundation for
two arguments in extinction or diminution of damages claimed in respect
of her injuries and pain and loss of amenities.

First it is argued that such damages are given as compensation or con-
solation, and therefore, when the plaintiff's condition is so bad that they



15

cannot be used by her to compensate or console, they should either be greatly,
reduced or should not be awarded at all. No authority is cited in favour
of such a proposition nor can I see any principle of common law that
supports it.

The argument contains the assumption, which in my opinion is fallacious,
that the Court is concerned with what happens to the damages when they
have been awarded. The Court has to perform the difficult and artificial
task of converting into monetary damages the physical injury and deprivation
and pain and to give judgment for what it considers to be a reasonable sum.
It does not look beyond the judgment to the spending of the damages.
If it did so, many difficult problems would arise. Similar sums awarded
for similar suffering may produce wholly different results. To a poor man
who is thereby enabled to achieve some cherished object such as the educa-
cation of his family the sum awarded may prove to be a more than adequate
consolation. To a man who already has more money than he wants, it may
be no consolation at all. But these are matters with which the Court
is not concerned. Whether the sum awarded is spent or how it is spent
is entirely a matter for the plaintiff or the plaintiff's legal representatives.
If the plaintiff's personal ability to use or enjoy the damages awarded for
injury and pain and loss of amenity were a condition precedent to their
award, it would be impossible for the executors of an injured person to
obtain such damages. Yet they did so in Rose v. Ford [1937] A.C. 826 and
Benham v. Gambling (1941] A.C. 157 and many other cases.

The second argument is founded on Benham v. Gambling and would affect
the whole basis of damages awarded for personal injury, apart, of course,
from economic loss with which the argument is not concerned. Substantial
damages are not awarded, it is said for physical injury simpliciter, but only
for the pain and suffering and general loss of happiness which it occasions.
Therefore the deprivation of a limb can only command any substantial
compensation in so far as it results in suffering or loss of happiness ; and
where there is little or no consciousness of deprivation there can be little
or no damages. For this argument the Appellants rely on Benham v.
Gambling [1941] A.C. 157 and on the minority judgment of Diplock. L.J. in
Wise v. Kaye [1962] 1 QB 638.

The practice of the Courts hitherto has been to treat bodily injury as a
deprivation which in itself entitles a plaintiff to substantial damages accord-
ing to its gravity. In Phillips v. London and South Western Railway Co.
(4 Q.B.D. 406 at page 407) Cockburn, C.J. in enumerating the heads of
damage which the jury must take into account and in respect of which a plain-
tiff is entitled to compensation said, " These are the bodily injury sustained ;
" the pain undergone: the effect on the health of the sufferer, according to its
" degree and its probable duration as likely to be temporary or permanent;
the expenses incidental to attempts to effect a cure or to lessen the amount
" of injury ; the pecuniary loss . . .". In Rose v. Ford [1937] A.C. 826 at page
859 Lord Roche said: " I regard impaired health and vitality not merely as a
" cause of pain and suffering but as a loss of a good thing in itself ". If
a plaintiff has lost a leg, the Court approaches the matter on the basis that
he has suffered a serious physical deprivation no matter what his condition
or temperament or state of mind may be. That deprivation may also create
future economic loss which is added to the assessment. Past and prospective
pain and discomfort increase the assessment. If there is loss of amenity apart
from the obvious and normal loss inherent in the deprivation of the limb—
if, for instance, the plaintiff's main interest in life was some sport or hobby
from which he will in future be debarred, that too increases the assessment.
If there is a particular consequential injury to the nervous system, that also
increases the assessment. So too with other personal and subjective matters
that fall to be decided in the light of common sense in particular cases. These
considerations are not dealt with as separate items but are taken into account
by the Court in fixing one inclusive sum for general damages.

There are no rigid rules for the assessment of damages but the approach
of judges in directing juries or themselves and the approach of advocates
in addressing Courts or arranging settlements has been on the lines that I



16

have set out. Each year for many decades past some thousands of cases
have been argued and decided on those lines with a reasonable measure of
success.

Although it is not possible to get a complete consistency in human deci-
sions, there has been a general standard of fair assessments in the many cases
decided daily on those traditional lines. It was certainly not understood
by the profession generally that the decision of Benham v. Gambling had
altered them or that it had been so intended.

I agree with the words of Sellers, L.J. in Wise v. Kaye [1962] 1 QB 638
at page 650 when in referring to physical injury and pain he said: " These
" are, however, well-known heads of claims which have throughout the years
" been translated into money—no doubt on what might be called a conven-
" tional figure—and which the courts have sought to assess, and I think
" have succeeded in keeping, on a reasonable basis in the interests of both
" the recipient and the payer, and on a reasonable adjustment between one
" claimant and another. A comparative value has been assessed according to
" the gravity and duration of the infliction on the Plaintiff before the court.

" I cannot speak for my brethren, but I have not, either at the Bar or on
" the Bench in dealing with such assessments, had in mind the happiness or
" unhappiness of a claimant except in the most general way. The inner
" world or the inner life or, should it be said, the soul of a person is not,
" in my view, a matter for investigation in a court of law in order to justify
" an award of damages to a person living and I have not understood that
" Benham v. Gambling has so stated or inferentially so decided."

The fact that the learned Lord Justice and I and the legal profession in
general have not hitherto so understood (although upwards of 20 years
have passed since the decision) does not decide the question, but it is some
indication that the guidance, if guidance was intended, was far from clear.

In Benham v. Gambling this House was called on to answer a particular
problem that had recently caused grave difficulty in the Courts. It had
little direct connection with the daily cases concerned with injuries that
disable the living body. The problem simply stated was " Is life a boon?
" And, if so, what is the money value of all that which we lose by death? "

From 1934 onward every person, be it an infant in arms or an aged
cripple, who was killed by negligence, had, through his personal representa-
tives, a claim for damages for the loss of his expectation of life. These
claims were supported by varying evidence designed to give speculative
illumination on what might have been the future material, social and tem-
peramental prospects of the deceased and the resulting value of life to him.
As might be expected, the wide divergence of views as to the value of our
leases of life, whether forfeited near their beginning or end, or in the middle,
led to awards which varied very widely and unpredictably. Into this unseemly
chaos Benham v. Gambling [1941] A.C. 157, brought consistency at the
inevitable expense of withdrawing the consideration of such damages, in
effect, from the judge or jury. It imposed a small conventional figure within
narrow limits. This figure was a great deal lower than that at which many
of us would have set the value of human living. But although this might
seem a hardship to plaintiffs and a leniency to defendants it could fairly be
said that in the majority of cases the plaintiffs were no longer alive to resent
the hardship and their executors owed the very existence of their claims to
the then recent Act of 1934. To the living plaintiffs there was hardship in
the decision to the minds of those who attach a high value to life.

From the terms of Viscount Simon's Opinion and the fact that the rest of
their lordships added no observations, I think that the House was addressing
itself solely to clarifying the peculiar and difficult problem which was before
it and to imposing order on chaos in that particular aspect of the law.
Having referred to the divergences which that problem had produced Viscount
Simon continued (at page 165): "The House is now set the difficult task of
indicating what are the main considerations to be borne in mind in assess-
" ing damages under this head ". He dealt with the fallacy of assuming
that " all human life is continuously an enjoyable thing, so that the shortening



17

" of it calls for compensation, to be paid to the deceased's estate, on a quanti-
" tative basis. The ups and downs of life, its pains and sorrows as well as
" its joys and pleasures—all that makes up ' life's fitful fever'—have to be
" allowed for in the estimate. . . . The question thus resolves itself into
" that of fixing a reasonable figure to be paid by way of damages for the
" loss of a measure of prospective happiness. Such a problem might seem
" more suitable for discussion in an essay on Aristotelian ethics than in the
" judgment of a Court of law, but in view of the earlier authorities, we must
" do our best to contribute to its solution." In that peculiar problem the only
possible test which could be made was a consideration of whether there was
a general balance of happiness in life which had been lost. It was an
imprecise and unsatisfactory test, but no other test was available. And the
Courts have to do the best they can with the available material in assessing
damages.

I can see no trace of any intention to give guidance on the more prac-
tical and wholly different question, a commonplace of the Courts, which
had caused no acute difficulties, namely what was the proper method of
assessment for varying degrees of physical deprivation to plaintiffs who in
any event, whether whole or maimed, would continue to live life's fitful
fever with its ups and downs. Many of the observations are quite unsuit-
able and inapt to the latter class of case. Had Viscount Simon intended
" the fixing of a reasonable figure to be paid by way of damages for the loss
" of a measure of prospective happiness " to supersede the existing practice
of the law for generations past and to apply to the familiar assessments for
loss of limbs or amenities by living plaintiffs, he must surely have said so.
He must have added to his comment on the suitability of the problem for
discussion in an essay on Aristotelian ethics, the fact that the problem had
been dealt with tolerably successfully for generations by judges and juries
alike. He would also, I think, have contrasted the fact that before any
damages could be obtained for a shortened life, the plaintiff must first
establish on balance a positive measure of happiness with the case of injuries
to living Plaintiffs where there cannot conceivably be such a requirement.
For it is obvious that even the most miserable of pessimists is entitled to
damages for deprivation of a limb.

The loss of happiness of the individual plaintiff is not, in my opinion,
a practicable or correct guide to reasonable compensation in cases of per-
sonal injury to a living plaintiff. A man of fortitude is not made less happy
because he loses a limb. It may alter the scope of his activities and force
him to seek his happiness in other directions. The cripple by the fireside
reading or talking with friends may achieve happiness as great as that which,
but for the accident, he would have achieved playing golf in the fresh air
of the links. To some ancient philosophers the former kind of happiness
might even have seemed of a higher nature than the latter, provided that the
book or the talk were such as they would approve. Some less robust persons
on the other hand are prepared to attribute a great loss of happiness to a
quite trivial event. It would be lamentable if the trial of a personal injury
claim put a premium on protestations of misery and if a long face was the
only safe passport to a large award. Under the present practice there is no
call for a parade of personal unhappiness. A plaintiff who cheerfully
admits that he is as happy as ever he was, may yet receive a large award
as reasonable compensation for the grave injury and loss of amenity over
which he has managed to triumph.

I venture to think that an alteration of the current principles of assessing
damages for personal injury would be an embarrassment to a practice which
in spite of its difficulties does in the main produce a just result. Common
Law Courts should not lightly abandon a method of estimation that works
reasonably well and achieves a certain amount of precision, for a method
that is nebulous, variable and subjective. I cannot read Benham v. Gambling
as having by implication intended such a result. I agree with the observa-
tions of Sellers, L.J. and Upjohn, L.J. in Wise v. Kaye and also of Herring,
C.J. and Barry, J. in McGrath Trailer Equipment Pty, Ltd. v. Smith, 1956
V.L.R. 738.

18

Even so, it is contended that such a situation as arose in Wise v. Kaye
where a plaintiff became and remained unconscious over the years with no
prospect of regaining consciousness should be equated to a living death and
should fall within the principle of Benham v. Gambling. Although it is
tempting and easy to make that equation I do not think that it is necessary
or just to do so, and I agree with the majority decision in Wise v. Kaye to
that effect. Benham v. Gambling artificially and drastically limited the
liability of defendants in respect of loss of expectation of life. But I would
not extend that artificial limitation to any claims for loss of some or even
all of the amenities of living during a plaintiff's life however low that life
may have been brought.

The present case is, however, very different from Wise v. Kaye. Here
there is no continuous, total, lack of consciousness. The doctors give no
guidance as to how far the plaintiff is conscious of her plight, how far she
is plunged in misery or free from any feeling at all. I think that a reason-
able juror would on balance find it more probable that she is leading a
miserable existence and that she is at least to some extent, and possibly
to a very large extent, aware of her plight.

It is clear from Benham v. Gambling that the conventional sum awarded
to her for loss of expectation of life covers every aspect of her loss from
the date when her death may be anticipated, except in so far as she suffers
during her lifetime from a knowledge of that loss of expectation—a know-
ledge which I cannot assume in this case. It follows that her damages for
her injuries and for her suffering and deprivation of all that is good in life
are confined to a period of about seven years from the date of the accident.

It was further contended that in any event, even on the traditional lines
of approach to personal injuries, £17,500 was too high a sum for seven years
and that some lesser sum such as £10,000 would be adequate. In view of
the limited period the damages were, in my opinion, on the high side.
But seven years is a substantial time in the light of such a devastation of
the human amenities. In my opinion, the award cannot be said to be so
excessive that this House should interfere. The learned judge referred to
the award of £15,000 in Wise v. Kaye. That award was, I think, high on
the particular facts of that case, but I should be inclined to agree with the
majority judgments that it was not so high as to call for interference. We
should be doing less than justice to the experience of the learned judge,
if we assumed that he was taking the figure in Wise v. Kaye as an estab-
lished figure to which he merely had to make some necessary adjustment
in order to find the figure in the present case. But he was, I think, referring
to that case, which was very different from the present case, as a check
to his own view of the damages in the present case founded on his own
wide experience. That he was entitled to do.

I would accordingly dismiss the appeal.

(30776) Wt. 8024-149 35 7/63 St.S./PA/19