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g a z e t t e
a p r i l 1982
permit a Plaintiff (whether he be the injured party or his
personal representative) to recover damages for loss of
earnings during the "lost years", the situation calls for
urgent consideration and an appropriate amendment of the
law by the legislature. If the law is suitably amended, no
injustice need be done to the eventual dependants of a
living Plaintiff or the dependants of a person who has died
as the result of the negligence of another. It is suggested
that the consideration of justice for Defendants far
outweights the loss to a deceased's estate of what has been
described as "a windfall" and what is in some instances in
fact "double recovery" at the expense of a Defendant.
This might be done by the enactment of statutory
provisions similar in form to Section 2(3) of the Damages
(Scotland) Act 1976 which effectively precludes any
claim for damages by way of compensation for
partimonial loss attributable to any period after the
deceased's death. In the course of the Judgments in the
House of Lords in the
Gammell
and
Furness
cases it was
indeed suggested that English Law should be amended in
precisely this fashion.
The legislature might indeed go further and enact
legislation which would provide that a Plaintiff who
recovers judgment for damages in his own lifetime for
injuries which have resulted in a diminution of his expecta-
tion of working life should recover damages for future loss
of earnings on the basis of his reduced life expectancy only
and not for the period for which in the ordinary way he
might have been expected to continue working. In lieu of a
right to damages for loss of earnings in the "lost years" the
legislature might provide that, in addition, at the actual
date of his death his then dependants would become
entitled, within a limited period (say two years), to claim
damages against the original Defendant for the loss of
dependency they would henceforth experience, in a
similar manner as they could have done had the Plaintiff
been killed instantly, under Part IV of the Civil Liability
Act, 1961. In cases where the Defendant is insured such a
law should not present any problem for a Plaintiff. In the
case of an uninsured defendant, he might be required to
take out a policy providing the appropriate indemnity on
payment of a single premium.
Subject to the dependants establishing that the cause of
death was the injury complained of in the earlier
proceedings, this new claim would be solely an assessment
of the damages to which those dependants were entitled,
the determination of liability in the earlier proceedings
(including any apportionment of responsibility that might
have been made in the earlier case) binding the parties in
the new proceedings. If the eventual death resulted from
the negligent act of a third party unrelated to the earlier
proceedings, the position of the dependants could still be
protected by giving them a claim against the new tortfeasor
in lieu of that which otherwise they would have had against
the first one. If the death occurred in circumstances
unrelated to the original injury and for which no other
person could be held responsible, and, as a result the
dependants had no claim, no injustice would have been
done to these dependants in those circumstances.
Such legislation would in fact provide better protection
for the eventual dependants of persons whose expectation
of working life has been diminished by the negligent act of
another than they have under our present law. While if
damages for loss of earnings during the "lost years" are
recovered theoretically provision is thereby made in the
award to a Plaintiff for his future dependants, that
provision may prove valueless if the moneys awarded to
him are either dissipated by the Plaintiff himself during his
lifetime or (subject to such limitations as may be imposed
by the Succession Act, 1965) left by him under his Will or
even passed by virtue of his intestacy to persons other than
the dependants for whom it was notionally intended.
Finally, if the law is to be amended, consideration might
in addition perhaps be given to the possibility, instead of
awarding a lump sum to cover future loss of earnings
(whether including "lost years" or not), of directing
satisfaction of that portion of the award to dependants by
an appropriate annuity to be suitably adjusted from time to
time, which would terminate on the dependants' death. A
defendant's liability under Part IV of the Civil Liability
Act 1961 might similarly be satisfied, at least in part.
Whether the practical and financial problems that such
proposals will undoubtedly raise are capable of a
satisfactory solution is for those interested and qualified to
do so to judge for themselves. •
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