,+ S$ 127-1 38-01 'w..B. This is a Working Paper circulated for comment and criticism only. It docs not represent tha final vievs of the LEGJ Cormission.
14th June 1968 TH3 ACTIONS FOR
LOSS OF SZRVICES, LCSS OF COWSORTIUN,
1. Earlier consultations have revealed the need for further tlought on these topics, The difficulties are such that we think it necessary to have further and wider consultations before reachk.g final conclusions. Accordingly we set out in this Vorlcing Paper the questions to which we are anxious to obtain answers and the provisional conclusions so far as we feel ourselves in a position to reach any. The reasoning that lies behind these questions and conclusions is to be found in the para,mphs of tle Appendix cited below.
The Employer's Action for Loss of Services
2. Questions:- If the employer's right to damages for loss of services is to be abolished shoulf3 anything take its place? (paras,9-22) Would it in fact be likely to lead to a greater readiness to continue payment of wages during injury or to more generous sick-pay arrangernents if employers were given a right to recover such payments from the tortfeasor? (paras. 1 5-21 ) (3) If some new right should be provided, should this take the form of a right by the employer to recover by action from the tortfeasor payments which he has made that have reduced the damages which would othcmise have been recoverable by the employee? (paras. 24-29) (4) Alternatively, should the victim be entitled to recover damages from the tortfeasor without deduc-Lionof payments made to him by the employer?( paras. 30-40) (5) Alternatively, should the victim be entitled to recover, without deduction of paynents made to him by his employer, save to the exter,t of one-half the value of such papents reczived or receivable within five years of the accidont? (para.41) If the answer to (4) or (5) is in the affirmative, shoulll the victim be obliged to restore such payments to his ernployer? (paras.30-40) If the ansver to question (3) or (6) is in the affirmative, what ought the lavi to be when the damages recoversd by the employee are reduced because of his contributory negligence? (paras.25, 35 and 36) Should vhatevcr solution is adopted regarding employers apply equally to benefactors, other than the State, who have mitigated the victim's damage? (para.41)
1. 3. Provisional Conclusions Subject to reconsideration in the light of answers to these questions, our provisional conclusions (see paragraphs 42-44 of the Appendix) are: -
(a) The cmployer's right to damages for loss of services should be abolished. But an emyloyee nho has been unable to work because of a tortious injury should be entitled to recover damages in respect of earnings for the period of absence prior to the trial nhetlia or not he has received remuneration, pension or siclc pay from his eniployer or axyone else. (b) An employee should be cntitlsd to reccvcr damages in respect of paplcnts made for nedical attention prior to the trial whether the payments vcrc made by him or by his employer or anyone else. (c) HOVCVCI, in assessing his damages €or loss of future earnings, account should be taken of any paymcnts arising out of his employment vhich he will or may receive (zxcept as provided in the La17 Reform (Personal Injuries) Act 1948) but not of payments unrelated to his cclploymnt, such as proceeds of an insurance policy which he has taken out or' voluntary contributions by friznds or rclations. (d) SiLiilarly, in assessing damages for future medical attention account should bc taken of any right arising out of his cmployncnt to have those paid bu-t, again, not of any right unrelated to the employment. (e) .;rhcrc payments under (a) or (b) have Sccn nade to cr on behalf of the victim by his emTloyer or othcr third party, the lan should not provicl any definite right te recoupment from the victim. This shculd be left to be worked out bcbmcn the victim and the benefactor, either prcspcctivcly (fcr example under conditions of cnployncnt) or retro- spectively after t'nc victim has rccovzre& from the tortfeasor.
Family Losses 4. Questions:-
(1) If a husband's right to damagcs for loss of his wife's society and services or loss of a child's scrviccs is to bc abolished, is it acccptsd that a nevr right shculd tab its place? (paras.46-48) If so:- (2) Is it acccptcd that, in so €si. as rclativcs have made payments cr CO ferred benefits which mitigate tha damcp of tho victim, such pape or benefits should contiliuc to be disregarded in assessing his dam I?nd that tlis victin should not bc under ,any legal obli&ation to yes to the rclstives unlcss the court othcxvise directs? (para.50) (3) As regards othcr losses incurred by xxibers of the family, is it accepted th2-t pdcuniary lossos should be recoverable from the
2. * tortfcasor whtlthcr they arise from- (a) visits to the victim's sick bed (b) the need to lock after thc victki or to secure the perf ormnce of the donestic role pri.viously perf orriled by hin;
' (c) financial dcpcndency on thc victim? (paras.49 adL52-61) (4) As regards thcse pccuniery losses, is it ncceiAxd that clainants (in eithcr fatal or non-fatal cases) should not be rcstrictcd to 2 defi- nitely prescribed class? (paras.53, 54, 57,C' .:. ':- 61) (5) %:-t should be the positicn regarding ncn-pccuniary losscs flci-ring (a) from dsprivation of domestic sGrvices companionship and parental cam, and (b) frcm grief? Should Yfiere bc (i) no recovcry at all in either fatal or non-fatal cams (para.68), (ii) rcccvcry only cf a fixed SUL? by the estate of a deceased victim (para.69) (iii) rcccvery up to a prescribed nzxiiun swi in respect of both (a) and (b) (para.70) (iv) rccovcry without any prescribed inaxinum (para.71), or (v) recovery in rcspcct of (?-) but not (b) (para.72)? (sec paras. 73-75) (6) Is it acceytcd that if non-pecuniary faily losses mre ccccverablc iii fatal casw the dacczsed's onn claiin for non-pecuniary loss should not
survive fGr the bcilcfit of his estate? (paras.7C-72) . ... (7) Is it acccptc-d thnt, if non-pecuniary fanily losses nerz rccovmabls, they should nct survivc f Gr rho benef it clf thc clahant' s .:state (8) . As regards proceduri., is it acccptc.d that of the fcur possible il!ethodS (r2ccvery by the victic, inlividurl claim by each :.laber of the family, a system analogous to that under the Fatal liccidcnts Act, and a rcpre- sentativc action) a genzraliscd proccdurc similar to that under the Fatal Accidents Act -~ouldbc the best soluticn? If SG, should the other members of tlne family be entitled to apply tc be jcincd as plaintiffs in an action by the victin, and afteri-;hat period cf ltelay by the victim should they bc cntitld to bring proceedings indepcndciltly of him? (paras. 77-84) (9) Should t'nc amunts rcccvmable by thc fanily be reduced proportionately to any contributory nogli.gmce cjf th victim? (para.85) 5. Provisional Conclusions Subject to rcconsidnation in th2 light of ansxrs to thcse qucstions our provisional conclusions (sec paras, 86-87) are: - The husband's right to dmages for loss of the nife's society and a scrviccs or cf a child's servicc should 'sc abolished. In the victim's claim for dznagss against tlic tortfcasor, pqments or other boiiefits received by hin from relatives or other benefactors should be ignored;..but tbccmt. &~qldh8.x _pg:Je-r _g--a?p.cp)riaJ~ cases to give dirocticns cr ts obtein undertzkings rezarding restoration to thc benefactor (paras.41 and 50). Other pccuniary losscs suffcxtcd 'oy xcmbers cf the family as a result cf the injury tc the victim shculd be rccoverablc vrhethcr or not the injuries are fatal (paras.52-61). R~CGVS~~should Extend tc the reesonablc cost cf such visits to the victim's hospital or sick-bed 2s ncrc naturally to be expected in the circumstances (paras. 52-54). Claimants should not be rostricted tc a pxscribsd class of relatives and clcpenhnts; anycna who has suffored pecuniary loss which flowed frm or was a reasonable conscqucnce Gf tho nrongful injury or death should be entitled to recover (paras. 53, 54, 57 md 60) We have, as yet, fcrmed- no ccncludel: vim on vhethar non-pecuniary losses should bc rccovaablc and, if sc, to what extent and on nhnt basis (paras. 6 9 75). If non-pecuniary less is to be r-.covcrable it nil1 be necessary to prcs- cribe ths clzss cf rc1ativc.s and dependants entitled tc claim, unless e ither (i) ncn-pxuniary losses ars restricted to fatal cases and arc conpcnsatd by -a phymcnt cf a-fixed sm to--the-deccasicd's estate, or (ii) claims arc limited tJ thms who have also suffered ;mxnicry loss, If a class is nrescribed it should proba&ly exclude infant children (pars. 74) If non-pocuniary losszs of relatives an6 desendants are to be reccver- able on any basis, thc victin's claim for non-pecuniary loss in fatal cases should net survive for the bcnefit of his estate (paras. 70-72). Ror shculd th? clak of the relative or dependant for non- pecuniary loss survive for the bcncfit of his estate (para.76). (j) Thc. bsst solution to the problom of reducing multiplicity cf claims (paras.77-84) night be tcj apply tc non-fatal cases a sinlilar procedure to thzt under the Fatal Accidents Act vhercby only one action can be brought on behalf of all tncse entitled tG claim. This should normally be brought by tlic victin but rrhore he ddzyed unreasoncbly any or all claimants should be entitled tc insti-tutc one action on behalf of all tlioso cntitlcd (puss. 8 0-8 2) 4. (k) The victim's ccntributory ncgligencc should reduce the mount rccovcrablc. (pars, 85) Seduction 6. Our conclusion is that the fathm's (or oth2r master's) right to d-amagcs for the scduction of his marrizd infmt daughter (m othcr fcmale servant) sliould be abolished and nct rcplaced by any othcr czusc of action vcstcd in him (para.68). Znticcrrent cr Xarbourinp; 7. Thc existing right to damzcs shouX also be finally abolished (Paras 89-92) Comments 8. Wc shall be most &grateful if those to nhcn this is circulated -,rill let us havc thi.ir vievis by 3jst December. It is spprcciated that many recipients will be interestcd in parts cnly of thc Fapcr, but we shall particularly vrelccinc. their viens on thz parts which dircctly concern then mC:. upcn which they havc practical expcrience. In particular v.re hopo that bodies rcpresentative of enploycrs an2 c-mployccs vili be ablc to hdp us by ansvrcring thc questions rcLisLd in paragraph 2 abovs, 9. Coimants sliculd plmsc bd addrcsscd to: Michael Parlirington, Esq. Thc LaT: Comissicn, Laccn House, Thoobalds 2oad, Laiirlon , W. C .I . Tcl: 01-40? 8700, Ektn.229 14 June 1968 5. A P P E E D I X TEE ACTIOTTS FOR LOSS OF SERVICES, LOSS OF COKSORTIUM SZDUCTIOX AND EDTICE Contents Para. Nos, INTRODUCTION 1-8 B:PLOY%RS' ~~&CTIC!KRIP, LOSS OF SrnVICES 9 - 45 Possibility I - Indcpcndent right of action by employer 24 Possibility I1 - SubroGXtion 25 - 27 Possibility I11 - Rccovery fron tortfeasor b the oqloycc r 30 - 41 Provisional Conclusions 42 - 45 HUSBAND'S ACTIGN FOR LOSS OF WIFE'S SOCIETY AKD SXVICES OR OF CHILD'S SERVICES 46 - 87 Introduction 46 - 48 Typss o€Fanily Lossos 49 - 67 (i) Payncnts in Mitigation 50 - 51 (ii) Hospital visits 52 - 54 (iii) Cthor 1>suniary lossos not based on depcndmcy 55 - 57 (iv) Economic lossx based on dependency 58 - 61 (v) Loss of services, conpanionship parent2.1 carc 62 - 65 (vi) Solatim for grief 66 - 67 Possibli. Solutions to thc Problcms raiscd by (v) and (vi) 68 - 76 Fom of Action 77 - 84 Sffect of contributory negligence 85 Provisional Conclusions 86 - 87 88 89 ENTICEKDTT OF SPOUSZ OR IXFAITT DAUGHTER 90 - 92 6. IHTRCDUCTION 1. Iten XV of thc L2L-j Comission's 7irst Progmrmc reacls as follons: Euch of English lm is liz.avily owrlaid xith histcry. This does not nem that tliz pinciplcs i1ivo7-V~dnay nct still be applicable Ln fiimkm ccr?_ 2, It vas hoped tlmt cach cf thc tcgics referred tc in Iten 1XV riight bc disposed of rapidly. I",cci;rdingly after a lirnit& a9ount of cutside ccnsultation, notably with the Confcdaraticn of British InSustry, provisional proposcils mrc prepared conce-mirig Item (a), xith Ty-rhich alone this paper is concern&, and sa2t in Xarch 15'65 tc thc Bar Council, khs Imir Socicty, and the Society of P-iblic Teachcrs of Law for their ccments. These provisional pro-posals cm 'oc swatllarised as %c.lloi-~s: (a) The abclitim of the zction fm lcss of serviccs vhcthcr by an elq$c;y\=r, a s-puse or a parcnt. (b) The abolition of ths acticn for lcss ctf concortiwn. (c) The &clition c.f the acticn fc'r seduction. .. (6) The ahc;liti.cn of thc acticns for ciiticenont zrd harbcuring. .. (c) Frovisi.cn enabling ul injured person to recovsr the' reasonable zxpcnses incurmd by a s~cus~,parent fir nenber Gf the household 7. 4- This last proposal was based on thc cc;nccyL of a fmily pool to bc replsnisiiec? by action taken on bshalf of the ilpzml'l by the injured pcrscn. 3. ,Is a rosult of the conmnts rcceivd in rcspnse to these proposals the Lavr Comissicn hzs ccxludel! that it is nct possiblo to dispose of t'no questicns involve6 as rapit-ly or as sumarily ZS ha3 originally boon hopcd, m,2 -that further mc? widar ccnsultati,n is csscntial bcforc any firn prcposals cm -be fclrnulatecl. As l-ic sail in our Scccnd immal Rcport'l), thcrc are in particular tvro difficult quzsticns which requirc furtlxc study: If(i) v;hcthcr 11s vre ad$&: I1Our provisional cpinion is that the mcicnt coixmn law remedies, though they aro inadcquato Land in soiLic!respects clzarly do reflect social $ 3 assmptions which arc no iongm accc$xblc, cannot safcly be svrcyt away ii until thcsc: tvro qucsticns arc satisfadc'rily cmst;-acd. '' 1 4* The ;:resent papm is accordingly ai cximnded vcrsion of that original1 prepared and with somewhat d-iffcrent provisioiial prqrsals. It is bsing circu- 1 lated far mcire vric?ely ad-.in particular tc bodies re?rcsentative,of mploy3rs and kiployees (in via{ cjf their esl;ocial intcrcst in tlrlz first of thc two questions rcfsrrcc to sbovo) , mii Gf imurance intcrcsts. 5. Thc battcrs clealt nith in this paper linvc previously bcen considcrcd by the Lm Elcfmr:l Comiittee m19 in pat, by th? Lavr iiefcm Cc-mi'ctee fcr Scctland. The fcrixr i-Tas invitcd in 1961 : "To considar the desirzbility of: 1. abolishing the right of action by a nastzr for thc loss of his scrvmtls serviccs; mil 2. eilabling an cqloycr to rzcovar dcmages for loss suffered by hiu in consequencc Gf a wrong donc to his cmployoe by a third person." I Tllc second qusstion only nas also rcTcrrcd to the Law RGfGm Co-mittce fcr i, ScotlanZ. Both Ccl;unittces rcpcrti.6 in 1963(2). Tne Lam Rcfom Cormittcc 1 unaninously rocomiendcd tho abcliticn of thc right of action in all its aSpi.CtS, 1'1 sllbject tc a right to eit1ic.r spousi. tc recclver cxi3enses incurred as a result [ of tortious injury to thc cthor or to a depciicknt child, 3ut, by a rnajcrity, f the vieiv that an emlover should bc givcn a linitcd right of reccv~ry(~),On th?? 1. Lm COD. No.12, para.33, 2. CmC.2017 (&gland) and C:.2.1997 (ScctlanZ). 3. Cmd. 201 7, paras. 5-1 6. othcr hanc!, thc LaVj Ecforn Ccniittcc: for Scotlmd, zgcesing vith ths Zhglish aincrity, rccor?;icnclcl: that l@slation shculd not bc intrcGuccd to cnablc rn cnploycr to recovm. 6. The various actions aith nhich this p2pc.r is concerned arc in thc main bctssd upon on2 coxmn principle, nzxly thet a i.lastcr is entitled to sue anyone vho kauscs hki to suffor loss by wrcngfcliy depriving hin of thc scrvices of his sci-vant. This includes the loss of the rml or lioticnal scrviccs of pcrscns who nculd not in nodern ccnditions bc r2gmdc.d as a man’s sorvants, such as his nife mi: chilcren. On th2 cthcr hanc!, cutsi.de the range o€ thcsc fmily relationships thd sccp of thc zction is very narrovr, fcr in rxent years it has bccn confincc to injury donc to thcsc TJ~Gusecl to bc! dcscribed as ncnial scvants mfi who c‘an 5c rcgardcd 2s fcri.iing part of the nastcr’s houschcld (4). This restriction has not yst bccn aclqtcd- by the High Court of ~ustralia(~)or the Suprerie Court of mcl has provoked advcrse conmcnt in England (7) . As the Lair Fieforr,? ConTittoe 2ointcd out (8): “no dzubt it is opcn.to the Hcusc. of Lords to zxtcnd thc action to any casc‘ in which the ordinary rclatimshi? of nnster a-d servmt cxints, though it is perhaps uililrcly that this will nov bc done”. But thoy a?-dd: “In any went it is clear that tht. action is not available in casm -diere th2 orGinary rslatioliship cf nastcr ;?ni[ servant 602s iiGt exist, for exaqlz, vilicrc the injurzd nan is a plice ccnstnblc (9), or a civil servant ( 10). That, hovevcr, is a less sorious linitation vhich wmld still leave thi. acticn sufficiantly viable to plzy a r:zle in tho i.cononic life of thc 20th Century. But if rcstrictcd, as it sc‘em tc bc, to nenial SciTalltS, it can un6cr ;iioC:orn conditions havc little or no application outside the dmestic spherc. A further anomlous 1initatic.n is that tlicrc is no right tc Gmagos if thc servant is killed instead cf nzr;.ly injured("). In the svcnt of c?cath, honcvar, tlieri. :Jay bc a causc of action on behalf of cortain close relatives, i-iho suffer loss thereby, under thc Fatal I*LccidCiLtS Acts 1846-1959. 4. Inland Bz-venue Cornrnissioncrs v. Rar?hrook r1956-j 2 Q.B. 641. .. 5. Comiissionr;r for Raili-rays (AT.S.Y0) $. Scott (1959) 102 C.L.R. 392 (8nginc Crivc; 6. -Lttorncy Gcncral v. Eykorak cl9623 Sup.Ct.331; 33 B.L.R. 2d. 373 (sold-ier). ’ 7. GooZlicrt (1955) 71 L.Q.3. 308; Sa7wi.r (1955) 18 i6.L.R. 488. 8. Cnncl.2Ol7, para.2. 9. Lttorney Gancral fm Kew South Y/alos v. Porpctual Trustoe Co. [1955] A.C. 457 P.C. 10. Inlad Rcvcnuc Cozmissioncrs v. Hmbroclr (su;;;ra). 11.. khira1t:y Ccrmissionors v. S.S. ii!-Jdrika [I9171 :&.C. 38 S.L. 9. 7. At prcscnt , thorsforc!, a rencdy is available in the fcllowing tlie sc2uctic;n viill not be an actionable assault. 10. (5) It is actionable tc: inhcc ~t servant to lcavc his igastsr's mFloyncnt vrcngfully or, ii' illegal r.ic5ns zirc usecl, to leave his onploynent cvon rightfully. Siailaly7 it is sctiana5lc to harbour mothor' s scrvca.nt vhc has l2ft his nastar's crnployncnt i-rrcngfully. "his typc of actim for cnticencnt r,r harbouring is fcr all prectical purposes extinct. (6) It is also sctionablc tc entice mray c1r harbour a spouse or infant child, Thz ectim still has sonc lifc as rcspocts cnticewnt of a nifc;. It is soacwbat sinilar in function to m. action for Cmagos for adultery (15) 3ut Gnticencnt iloos nc;t rzquire prcef of azultcry a vrifc cm suc fcr anticczcnt (I6) ;:hsrcas only the husband cm sue for dxiages fijr ZGultcmJ. TG thz cxtcnt thct thc nife c;u1 sue hcr hs:hi-d-'e enticcr, thc action secas no longer to bo basad solely on tne concc2'c of loss of the servic2s to nhicii 2 mastdr is cntitlcd. 8. That thess variaus r;xo$ies in their prcscnt f om arc anachronism which ought to bc abalislicC WJC have n3 doubt (I7), This wxs the unminous opinion of thc Lau 3.icforn Colmittcc ancl vias tlie viw taken (vith sonc qualifi- cations) by tno BaCO-mcil, thc Council of the Law Society md the Soci,?ty of Public Teachers of Lw when vjc yrcviously consulted then. Xl thc roneilics (with tlie partial excsTtion of cnticcncr,t) arc based upon the archaic notion that a man has some sort of prcyrictary interest in his servant, wife or infat daughter, The problcn, howvcr, is- vhcthcr onc cm abolish tflc various actions based on the ccjncept of loss Gf scrvicm aitllout su3stituting sonc other re!~iS-i~s .-_ in their place. !de zcccrdingly turn to a consideraticn of the six diffarent situations rofcrreS! t:! in the prcvious paragraph. (1 ) B:=PLOYmS' LOSS OF SZEVIC@ .. 9. Vc think it YJGU~Cbo gciiorally accapted that there cm at the present .. day be littlc justific3"tic.n fcr entitling an ciployer to a renedy rgerely bccaus.2 sorimne' s 7;i-irongful act has ~?epsivcclthc a!nplcycr, ti.rqorarily or pcmanontly , of the .szrviccs of his cqlcyGe, It is an accepted risk of thc erqloymiit 'relationship thzt various cvcnts nay GCCU~vrhich :rill rcndcr the ~nployae incapable cf vorlcing, Iio~that YK arc all liable to be injured at my tinc by - I- 15. N.C.L. '1965, s.41, 16. Gray v. Gee (1923) 35 T.L.E. 429; Muntcn v. Hardy (1933) 149 L.T. 165; Z1lict.k v.. lilbcrt [A9341 1 E..B. 650, $.;I.; ,Best V. Srn~~lPOX-. .Ltd. [I9521 L.C. 716 at 729 por Lord Goddnrd, C.J. 17. It has hccn suggestd thnt a doctor xho pcrfome2 a sterilisation Opr2ti,X on a vri'fe or terplinated her y;r;&ancy, vithcut the husbad's consent', might be liablc to. the husband and that this liability nay be based on th.2 action for loss of scnices. Tc. are cf the opinion (a) that there is no such liability (mC yrobably shdC not be) arid (b) that VJCTC there 'my suck: liability it could not ?ossibly bc ~~oun2i.Con thi; action for loss cf services. hazards such 8s the motorcar, thc risk that an cq1oyc.e nay bc injurd rrro@ulb ( for exanplc 3y scmecns's ncgligcnt driving) is rcgsrded as one of the nomal risks which an cqloycr accepts. If the cnployee's scrvices iLlle uniquely valuable to thc crqlcycr, th lettsr can a.nL should insure against the risk ci' his Seath or injury. Hcncc '::o sce no justificatioc for rctaining the action for loss of services nerely in orkr tc csi-1pcnsatc m employm for loss of an cnployec's scrvices. 10. On the othor h~?,d,it SCE~Swrong that a good cnployer who continucs to pay his crqloyoe Guring the pmiod vhan the latter is am,y injurcd (or to pay for nedical attention), nay thcreby rcducc the dmages payable by the pzrscn vrho has vrrcngfully injured the mployce. At prcsent the position in 3glm2 is that, if an cqloyce is cntitled to receivo ~ngcsor a pcnsion during his absmcz bwause of injury, the aincunt roceived rcduccs his claim against the vmongdoer for damages for loss of sarnings (18) ""he gcneral rule is that the injurcd party should give credit for all sum which ho rcccivcs in cliininution of his loss, save that there crs exceptional cases (such as insurance benefits) f-ur which he need not give credit". (19) Thus he riust give credit for wagss and iJensions xhich he is cntitlcd to receive (whetha the p?nSiGn bc contributcry or non-contributory (2~)) and uncmploymnt bcncfit(21), but not, qparcntly for insurance Scncfits undcr a policy of as surLmce(22) , whclly voluntary b~ncfits(*~)or suppleacntxry Semfits rsceivd fron the Sup2lc:ncntary Bencfits Coxaissip (24). I:rs regzrds other impants rccoived undzr national iiisurmcc, on? half only of thess has to bc taken into account (25). Xiat the posi-tion is as rcgcrds papcnts rcceivcd unc!cr optional as o~jposc~tG conplscry pcnsion schcacs is un~et-tlcd'~~).The principle bChinc?' 18. 19. 20. But not, ap-arcntly, if it is rchciblc at pleasure; Carroll v. Iloopcr [I9641 1 W.L.R. 345; Zlstob v. Rcbiiiscn, ibid. 726. But cf. Jcnner. V. i,llen Vest [I9593 1 W.L.2. 554) C.A., xhcrc it aas hcl6 that a VGluntars. pcllsion nzs deductible in a chin by dcpcnc!.ants under thc Fatal Lcciclonts Lcts. Ec-;~cvdr, sincz 1959 no "iiisuranc~ricncy, benefit , pension or gratuity" is tc 5c dducted fron a claia unkr thc Batal Acciclents Lcts or thc Carriage by Air Act: see Fatal ,xciilcnts Act 1959, s.2. 21 Parsons v. 3.N.x. Laboratories, Ltcl., [79641 I Q.B. 95? C.A. 22 Bradburn v. Great ';Tcstmn Railway Co. (1874) L,R. 10 B. 1. 23. -Liffm v. ;-[atsoil [19403 I K.B. 556, C.L. 24 Foxleg V. Clton [I9651 2 Q.B. 306. 25 LEJ hforn (Tcrsonal Injuria) ict 1948, s.2(1). 26 Scc pgSalnon L.J. [I9681 1 Q.Ba at 20y9 210. 12. tlic gcncral rulo is char cncugli; it is bascd- upn a strict adhcrencc to tlw ccm-jonsatoq theory of 2a,qages orqhasizcd in British Transport Ccrinission v. Gourley (27). It is not howver easy to dctcct any cszsistent principlc bohind thc various exce2tions. Parry v. Clcavcr(28), the latest case on this subject, is on appeal in the House cf Lcrcls ancl it nay bc that this will produce a chsn 11 The onc valuable rcsult nhich the action for loss of services night achiovt? if cxtendcd beyon6 thc rcaln of nenial scrvctn.ts vrou16. bc to enable the crqloycr to recover frcn the tzrtfmsor' ths w:Jagss md other bm.cfits that he has pais-, thacby counterbalancing tho rduction of the mount of danages pyl'?;lc to the victim of thz tort by'thc tortfaesor. It night bc? thought that in CUI action for loss of scrviccs, the dar.iag'zs shcdC be ac-asurecl by thc cost of replacing ths services rsthcr than by the viages paicl to the injured servant (34) 27 [I9561 L.C. 185, H.L. 28. 29 30. .. 31 32 .. .- 33. 34 Hcmner that nay be, the CO fact allowed recovery of the wagR?aiL by the master so long as the .master was legally liable to pay(35). Lccordingly had the action for loss of scrviccs remaincd gznsrally available it woull! have pxvided an aclequatc mans of "shifting the loss so that while -the injured party is not enriched, the tortfoasor is ncithor relieved of any of his burden nor yet exyosed to any a2ditional burden" (36), This, broa?Jy, is still achievcd iii' Australia. England, on the othor had, avoids exposing the tortfccsor to .my dditional burden (as occurs in those ;mcric=m states which allcv the injurc3 party to rccovcr vrithcut giving credit for wages actually rcccivcc? ar,d alsc: allows the enploycr to rccovcr in an action fcr loss of sxviccs) but re1icvc.s the tortfeasor of part of his 5urdcn. This it does by insisting that the injured party shall givo credit for nagss reccivcd and that (exccpt in the case of mnial scmants) there shall be no action for loss of services by the exployer. $Tor cm the employer recover from the tortfeasor on the basis cf unjust enrichment (37) . 12. Various expedients cm be adopted whereby the criploycr can pay wagss without thereby reducing the danages payable by the tortfeasor. If the- crqloycr makes paynents to the enployee vrhich arc purely voluntary and in the nature of gifts, it seem that thssc can bc disregarded in the employee's claim for damgcs asainst thc tortfeasor. In practice, hovicver, this is not a satisfactcry - solution from the employer's pint of viei-r. The better alternative is for thc t7ages to be paid in the form of a lcan which is to be repaid in clue course. Such loans, if repayable in my event, mill 2efinitely not reduce the damages rccovcmblc fron the tortfeasor by the employee; acccrdingly he mill bc ablc to repay the loan fron the dasnagcs recovered. But this is not a very satisfmtcry solution eithar, A good eiqloyer will nclt wish to appear in the sonewhat ungencrous light of a lender nitli a right of rccovcry froin the ez@cyc-e. in all circumtaxczs. Xnat hc will l-rcbalAy vmnt to 3c a313 to say is "I ar~continu- ing to pay your - 14. damages reccverc-ble 3y the victim fron the tort.€feasor(38). The ninority on the Lax RafGrn ComTittce suggested that a term to this cffcct should bc insortec! in contracts of mC: it is 1ae-m that there are sme schcnes which do s3 prcvide(4-o). Revertlidcss difficultizs Trill arise in the ovcnt cf the danages recovere& by the er?:,loycc frm the tortfaaser being rcduccd because Gf the caployce's contributcry negligence. If the m~loyeerecovers, say, only helf his daiagcs, hc will nevertheless be under a le@l liability to rzyay the full anxnt of thc rmges advanced to his cqloycr. 13. Thc legal pcsiticn bccmcs still nor3 difficult if the arrangcnent * bctrmen employer and omployce is construcd as sntitling the cxylcyce to his wagss despite his absGncc, nith no norc than a moral obligation to mfund if his rccovery fron the tortfczsor enables him to do so1 In some cases the b courts have a1loi-d the cmj?lcyec to rzcover from the tortfeascr on giving ,U? undataking that he vrculd rcpy the advmccs to his eaployar(L?l). The power (-2) to require such an undertaking has honcvcr been denied in hstralia . Norcover in thc light of the Zhglish ciccision in Gagc V. I(ir1,4'~~),it seems doubtful -.vhcthor recGvery fron the tortfeasor is truly pcmissible in such circumstances. 1 ;. Those vho believe, as rnost nrrv Cc, that the sole cbject of damages is to compensate the injured party md not to punish the wrongdoer, can argue plausibly that there is no objxtion to a systm which lots the tortfasor cr^f ( IXr) nore lightly bccausc so.?eonc else 1iappcr.s to have nitigatec! the victiii's lcss If an criployer has done so because of gencrosity cr bocause he has bound hinsLif by contract to 20 so, it can 'msai.2 that there is no rcason why he "sli@uldrccciv, a solatiwi by being givcn a nevr kind of right of acticn" ('i-5). Tho fact that tlis 38. But this is nct tlic viw held by the ,;ustraliai High Court: Elunc?ell v. I'lusmavc (1956) 96 C.L.E. 73. ,',ccerdinc tc! that dccisicn there nust bc- a definite legal cblizatim to rGfunci v7hethi.r cr nct thcrs is reccvcry fror, the tcrtfcasor, 5ut if thzrc is such an obligation it docs not natter t'ht the eqlloyer nil1 probably not enforce it milcss the enployee succccds ~II his claim against the tcrtIcasor. It 1.12~ Isc that a Cistinction should be dravm bctnecn an obligation to rc€und if any damgm are recovered froi2 the tortfcasor znd an obligzition to refund oiily if dmages in rilspcct of lost wages 2.re rccovcrcc?. 39. Cmd.2017, p.12. Sec also Lord Goddari! C.J. [I9561 2 Q.B. at 656-7. 40. For cxm~le,thc Schcnc CP Conditions of ScrvTce of the National Joint Council for Local Lutlioritics' ;dniqistrative, Professional, Technical an2 Clxical Scrvicc-s. Jrl. Dcnnis v. L.P.T.B. [1$.';8] 1 Lll E.B. 779. 42, Slunrkll v. F.'iust;rave (1956) 96 C.L.H. 73 at 9.:- (Fullager J.). 43. [I9611 1 Q.B. 188. -T.-r.IA Sec IkGregor: Conpcsation Vcrsus Funishmmt in Dana~eskards, (1 965) 28 M.L.R. 629. 45. C~~d.2017,at p.12. tortfeasor gains thmcby is no mcre anomlous than the fact that it is ncaly clieaFcr to kill somone than to injure hin. The tortfeascr, it is said, is r,ot unjustly bencfitod but mrcly lucky that his nrong has not caused the victii grcatcr 6aiagc. The fact is, honmx, that thc 11roscnt rule does offcnd nmy Teople's sense of justice and that in itself is an cbjcction to it. Nor are those pcoplc unreasonable. The tmtious act of th? vrrongdocr has l~dto actual forcsceable finmcial loss grcatxr than the vrongdozr is called upon to bear. It smacksof legal ?,?clantry to argm t'nat tho loss lsorne by the erqloycr flows, not from tort, but fron thc oqloycr's c?~i~ngencrosity 01contract md that the tGrt is not thc causa caiisans but rzsrely the causa sine qua lion cf the loss. Hoxcver one looks at it, the loss has becn suffered an< ncluld not havc becn suffered but for the tort. What can p-rhaps be sait is that the eqloya shcu2.i not bo able tc recovcr a loss which h2 hes voluntarily assmcc! (cf. para.9 a3ovz) 15. It seems self-cvicknt that thc public intercst as well as tha scctional interests of enploycrs and cm7lcyces nould Scst 1x2 served if: (a) an enploycc continued to receive his ya,-cs nctvrithstmding absbnce from t70rlc baausc of injury; (b) thc mount or" such wages TELS ultirmtely rccovcrecl fron the tortfeascr; and (c) any mount so rccovcrcd VES then rcstord to the enploycr. From the point of view of the cnployce it is =ore satisfactory that the ma@s should continue to be yaid 5y the enploycr rathx than that the eqdoyee should , have to try to rccover then from the ...tcrtfcasor.. The enployee'ncads his wa@s as they accmc and nomally c,annct afford to wait for then until his act'ion is .. ..._. .. - ...... '' ' docidod or settled ycxcs 1ati.r. .,. 16. It is char that thc grcsent legal 2ositicn is not concucivc to thc above aim. Tno law ~GSSnct cncourag; enploycrs to continui. to pay wages. If they do so, they mill not be ablc to socovcr thm fron the tortfcasor cxceilt on the very rare c;ccasions when an action for loss of services is available. In other circmstmces, if they pay wzps the rcsult is often to prevent my' reccivery in that res7cct fron'thc tortfcssor. Even if wages arc paid by diay cf a loan to 5e r;.fundcd whcn the enpioyce recovers fraa the tortfcasor, Ciffi- culties arise vhcn the cnyloyee's rccovay is only partial because c.f his OYM ,. contributory ncgligsnce, In that cv'cfit tnc xqloyce or'his trade union.. may .. ., .. .. resist my refund to the employer. f 7. The aboliticn of the action for loss of serviccs would not make thc . . .. position worse, except marginally: it nould have L~ effect .only in the' rsrs casss where the relntionship between aqloya ad criiploycc 2s such that an action for loss of services is at present available to thc cnploycr and in these cascs wul?. remove the present incentive to continue to ?ay wages. 16. 4 On tha other hand, th abclitisn of the action, i-ihile it wculd rarely nakc the pcsition 'I;'orsc, rrould certainly never naka the position bcttcr. If 'die lctr.~is to assist in accox2lishinT the aim set out in para.15, sone nm or iripovcd rencdy rust be providec. The first quosticn fcr deterilination thcrcfarc, is whether nhat rctually cccurs nt prcscnt does substantially achicvc thosc aiss (7-cspitc the inaikquacics of the Lm. It is on this point that ue would particulzzly nelconc aclvice mcl infcmztion €Erox boc?ics reprcsmtativc of cnploycrs and cxll;?loy.xs (for CS~I~~L,thc C.B.I. 3mcl the T.U.C.). 19. The cvidencz given six or scvcn yczl-s ago tc; the La-;.Rcfom Comittce and the Lax Refcrn Comittec of Sco'dan2 alqcars to have suggestoc', that, yjhatevor the defzcts in the lai:i, thc zctusi pcsiticn nas rearonably satisfactcry. Certain it is that at that tinc tlic-: British Tqloyers Confederation (me of ths !x.&as noi7 mcrged into the C.B.I.) wre o:)>osed to any cli,ange in the law bcyon? a sinplc abolition of tlic action for loss of scrvicas arid did not vrmt employas to be givcn a right of action to rcplacc it. Hmcvcr, our discussions with the C.B.I. in February 1966 nab it clear that that vicvr had not been unaninous thm ancl that the balance cf opinion rimy ccll hzvc chmged since. It seem to be quits clear that svants have not realised thc- hopc of the ninority of the Lay;: Reforrn ConnittGe thet it sould becoxe cornrncn fom1 for tarns of eaploynent to include a provision that vagzs would contiilue during m injured enployee's incapacity and bc repayablc only if the victin recovered dkmages froa a third party. Such evidencs as we have suggests that, on the cofitrary, the rractice of continuing to pay wagds is bxoning 1css cormon ,and that provisions to .that effcct are rarely mong tiisse Gf Tdnich nritten particulars are furnished to .. cqloyces in accordance xith the Contmcts of Etiploynent Act 1963. In so far as express provisions are nade for paymnts 2uring abscncc through injury it ' scerns that thcy arc norrnally limited to sick pay not axcceding an ,mount vhich, whcn added to the national insurance benefit, will approximate to the basic wage. Morecver, em2loyees ad thair unions aro in a less strong position to bargain for bcttcr terns na-i that thcre is a largzr body cf unemployed thLm there was a far ycars ago. Ir, actual practice tl.iC-rc appears to be a nz-rlceci difference Sc-twcen the exyericnce cf manual ?ad non-nanual workers l!Irs. DcrGthy Bedderburn of Ixperial College in a recent survey(46) found that 8276 of non- manual vorksrs received some 3oi?zy from their wiployers during sickness and 36$ received their full sages. But only 5/52 of i,Imual norlcers received- anything and only. cot full ~rages'~'~).Wcr dGes the yosition seen to be nhclly 46. Publishe6 in J!le~vr Socictx for 12th Oct.1967 at 3.512. 47. Sca ibid. p.514. mG Tablo 1Ec at p.512. Thcse figures relate to a3sencc fcr siclsmss gsncrally - not cxclusively to incqacity due to an accident vrhorc-, conceivably, the f igurcs nay be hi*er. satisfactory fron tie employer's point of view. Unless express provisidn i!P ..U -', cover tlie situation wneii a vrorker is absent, then, unless he is on piece-vork, the' normal positicn nil1 be that he i-rill be entitled to be paid his wages until his employment is terniiiated. The last step that the enployer will normally wish to take is definitely to dismiss an injured aorkman merely because he is injured. This frequently leads to doubts and disputes on YJhether or not the employment has in fact been terminated, and ir" so ;:lien, and accordingly to what vrages the employee is legally entitled. 20 Apart fron t'nese consequences there is also the question of justice as between the employer and employee on the one hand, and the tortfeasor on the other. In the eyes of many it must appear arbitrary and unjust that the extent of the tortfeasorls liability is dependent upon (a) i-rhetlier the man he has injured happeiis to be a menial servant , (bj whether the latter is under the terms of his employment, legally entitled to his wages durin;. absence through ir@ry and (c) what arrangements are in fact mad-e between employer and enployee, If the injured man is a menial servant and is legally entitled to nages'during absence the injured man cannot recover loss of vrages fron the tortfeasor, but the master can and no reduction viill be nade for the servant's contributory negligence(48). In other circwmstancss the employer can never recover directly from the tortfeasor. The employee nay or may not be able to recover fron the tortfeasor according to whether nages are in fact paid, and, if paid, on vhat basis. If wages are recoverable by the enyloyee at all, his contributory negligence will reduce the arnount rscoverable by hin. 21. There is therefore sane reason to suppose that the present position is unsatisfactory and would be no less satisfactory if the action for loss of services were abolished, as we have no doubt that it should be. But thc case for further reforming the lavr is, to soae extent, dependent on :;rhcther any ' change in the lcgal position nould be likely to lead in practice to greater readiness on the part of employers to continue to pay vrages to their injured viorkers. If, as may vrcll be the case, their apparent reluctance has nothing to do with the fact that they knoa that tliareby they nay herely ba benefiting thii tortfeasor and if, as nay also b? the case, they are indiffcrcnt as to the possibility of ever recovering what they pay, the case for any lcgal change is much nealrened. This is anotha question on nhich ne should particularly irrelco:x tlie view of the C.B.I. and other employers' associations, and of the T.U.C. and craplopes l Unions. 22. One other factor which any rcforn should scck to prescrve is that so far as possible all liabilities arising out of one event should be disposed of. 18. in,one action. This is dasirabla not only b2causc nultiplicity cf actions is inherently undesirable but because thc injured party nil1 find it difficult to negotiatc a sattleacnt with the tortfeasor (or his insurers) unless that settlement disposes of the ;Thole claiil. This is a ponerful objection to any proposal vhich aould give an cnploycr an independent right of action against the party t7ho had wrongfully injurcd his mpioyee. It is also a further objection to the pmsent acticn for loss of serviccs - although not a very pctcnt one because of the nininal nuxber of cases in which such an action is possiblt.. 23 Assurning that there should be a new renedy on the abolition of the employer's present action for loss of sorviccs, there are, as -;re sce it, three possibilitics. Possibility I - Independent right cf action by enrjloyer 24 The first possibility is to confer on the e:nployer an entircly independent right of action against the tortfcasor. In effect this mould be to retain the present action for loss of sei-vices but to free it fron the lini- tations ;-rhich the Znglish courts have itlposzd. This night be supported upon the theory that uhcn a tortfeasor injures sor.icone hc ought to foresee that the employer of the injured party is along those likcly to suffcr loss and that accordingly the enployer should be rcgarded as r;ri-tlin thc range c;f those to ~-~~xx a duty of care is oned. It is not thought that this proposal is one which deserves serious consideration. It has, as we sm it, all the disadvantages cf Vile other possible soluticns canvasscd bcloi-; and none of their advantages. It 170Uld lead to the possibility of rmltiplc actions and to acessive rccovcry fron the tortfeasor - since presuxably the contributory nG,.;;ligencc of the injurcd eqloyee would be irrelevant in an action by the enployer. If a right of rwovery is to be vested in tha cnployer thcrc seem every advantage in basing this on the subrogation principle considered under the next head; Possibility I1 - Subro,:ation 25 9 A solution based cn the subrogation principle is, in effect, that reconqended, by a najoritl; , by the Lav: Rcforra Cormittee (49). Under thcir proposals an enyloyer (50) -,-,rhoi:lade payxents or conferred other benefits on his injured employw 7;Jould have bccn entitled to recover fron the toitfeasor to the extent that the tortfcasor's liability .to the eqloyee had been reduced in consequence of t'ne action of ths cnploycr. Bccardingly the liability of the tortfeasor nmld not have bccn incrascd 'out' thc anount fcr stnich hc i7as liable .. 49 C-md. 201 7 , parns. 5-1 6. 50. llEnployerll J-ias to be defined vridely so as to amid diflicultics regarding, for exaiiple, the police. Ccrmittee further recoimzndcd that the aiciunt rccovcrablc 3y the cnploycr frc-1 the tortfeasor shauld be reduced in proportion to sly contributory negligcncc on the part oi thc enploycc. Trofessor F1eil:ing points out that this further limitation was not nxcssary in crder 'CO avoid exccssivc rccovery against thn tcrtfcasor (51). If the eqloyce's tctal darnage is ~10,000of which iE1,OOO \ represcnts icages that vrculd hslve been lost but for thc fact that the cn-ploycr continued to pay viagas, and if, because of 5C$ contributcry negligence the silployee is entitlod to recover cnly g5,0009 it nakes no differcncc tc the tcrtfeasor vJhethcr thc enTloyor recovers in full (Cl ,000) and the enployec recovsrs E4,OOO or i-rhethcr the ernployer mcovcrs PjOO and the enployce g4,500. For the protection of the tortfcasor the only rule need& is that the mplogcr's-- claii:? shall not exceed the total liability to the enployee(52). In principle the ei~1ployerought to reccvcr in full; tlic rule reconr;lended by the Committee mans that the ei;iployee is benefited (he recovers 25,500 in"all] aftd tlic cnployer dannifii.d bacause of the oiiployee' s negligcncc. It nay be that the Cormittee thought tlia-t. therc would be objection by the trade unions if the employer recovered in full while tha eqdoyec did not, and on purely praaatic g-owids this nay justify their rxomcndaticn. Moreover they nay hzve becn conscious of the fact that the c7positc rule would pcduce what !2ight seen to 3e an anor3alous distinction bctwecn the tvro major typcs of personal injury cases - road accicents and factory accidents. In thc fomer the enployec's claim is against a third party; in the latter nomally against his eixploycr. In the latter, the erqloyee's clai-n in respcct of loss of wages is re6uced by tlc iLmunt cf wages ahich thi. erli2loycr-C-efcndant has continued to pay. If in such EL case the enployec's total clain i;IC;ulG, again, have bcen for 210,000, including g1,OOO for loss of wagss had they mt been paid, thc eqJoyee' s clain is.reduced to 23,000 if .i.ragss ars paid, and if he is 5@ to blam he rmovers $4,500 which, with the iC1,OOO aages alrca6y raid, gives hin e5,500 in all. Akccrdingly the rule suggested by tnc Cornrnittcc proZuces the sam rcsult vdicthzr the clain is against a third party cr the eqloycr. It does not, hovmer, ilradicatc thc azcimly that in both cases if tlic erqloyec has been contributcrily negligent an employer who continues to pay I-J~~ZSends up worse off than if hc hsd not paid. 26. The cfr^nct of contributory ncgligmce can be left fcr later consider- ation. The qucstim which first iieccis decisioii is whether thc subro.gation- principh is tha best solutitn. The casa asainst it is strongly arguad by the 51. Op.cit., p.1525. 2. It is arguable. that, whcrc it does, the c:l::doycr shculd ba cntitled tc rccovcr from tile mploycc. T1x Isradi Lavi, consiclcrad bclo-~~,so. provid-cs. 2U. isscnting minority on the Lav! Iictfom Comitt;;.e(53) . ldost of tncir zrgmcnts, howcver, are agziiist prcviding any renady ratner than against this particular sclution. The Tain argunents against any soluticn which noulcl vest a right cf actiGn in the enl3loyer are that it XGUld mccurage xultiplicity of actions and make it rnore difficult to sett12 out of court. Thc fcrrier objxtion is act to som consibmbla extent by the rnajority reco;nr;cndations cf the Cormit tce tnat ssparate action should bc disccuraged by ccsts sanctions a.n& by othcr pocedural The cbjzction -that it would r,iake it difficult t:, sett12 is not mt, ancl is, in cur viz?, a swicus one. Defendants (and t~icir insursrs) vrnat to hc. abls to szttlo thz whch of tlic claiiz at cne tine. They vill be rsluctLmt to ssttl;. with tho enplcyz-e unloss, at the sane tine, they mx scttlc niti? thc wiplcya. Xiglit it not mh fzr 2tisharriony in labour relations if ncithcr cqlcyer nor enploy~swcro eblc -to cffcct a scttlcnent vithout tlic concurrmcs of the othcr? On this qucstion ac shall again vrclcone the vicm of associations rcprcscntiiig thc txo sidcs of industry. In ncst cases we inaginc! that thcrc aculd bc littlc difficulty mid that mplcysrs muld be willing to subor&hate their ihterzsts t.- thcsa of their injured workers. But would ecployers I;.O~CG>C; thc nccd to ~IUSUC. thcir ,szp-rate claii:: agaiiist ti?~tortfcascr'? Jculc? they not pxfer to leav? mcrythiizg in thz hculds of the ;.nployee? Xhicl.1 solution i-foulS. afford the gres-tcr cncouragcnznt to ccntinuc to pay nags? 27 Althcugh the rccomien6.ations of thc Lax Rcforx Connittee have not Sca impleacntec? in &glan2 and mrc rojcctd. by the Law Rofom Comittee for S~otlan6'~~), th.ey vcrz the ins2irati.m of Israeli legislation - the L~JI cf Torts (Repair of Bo6ily Hz::;) Act 1964'~~)~This Act goes furthm than the Lai;J Xoforr.1 Co:.xittm's proBosals in that it zxtcnds tc: anyo~cwho through his services :nitipWtes,the injured ?erson' s ham mcl is not linited to bonefits conferred by an cn$oyer. It is, acccrdingly, o€ relcvmce not only in the prssent context but also in rclation to the prcblm of family sx-pcnditurs con- sidered in paras.46. zt.seq. It afford-s a rcnedy to all pcrsons who offer roascnable aid to those suffcring from "bodily 1iar.m" (which includes illness , bdily or ncntal defact '31' clcath) an2 is thcrcforc in line with the so-callcd "Good Smaritan" Acts in thc U.S,h, (57) ...... , . 53. C%I~..~OI~,pp.12-14...... 54. c~~%i.-2017,para.15. But scc the ?,linority i?cport, para.6 at p.13. 55. CLlrld. 1997. 56, For a dcscripticn i;f its prc-Jisdcns, scc X. Shalgi: fi Bencfector's Rignt ' of Acticn a@-inst a Tortfmsor: B Mcn i?ppc;ach in Israel, (1966) 29 M.L.R. 42. Tie must ac~~~c~;~l~~g~our indcbtcdncss to this articlc cn which the present acccunt is bascd. 57. On these, so8 Flcning, o7.cit. p.1512 and sr~urccsthzrc cited. It allons recovery ini rcspcct of ltexpaXXturc incurred or scrvic@ renddrcd in crLer to rcpair bcdily ham, yrzszrvc the victim 'fron aggravation of the ham or fro2 furthar ham or rclicve his suffzring, includ.cs such assistance givc-n to thc victin to:-lards his r.;aintcnance Dr thc naintznancc of hi fanily as he needs as 3 result of the ham and, \-hcrc thc victin has dicd, assistancc as afcrcsaid given to a persm ciititlecl to coapnsation fror.1 thc tortfcascr in rcspcct of thi. victin's dcath", Th2 only cxccpticn is vrhcrc a12 insurance ccnpany repairs thc ha-m. under an insurancc policy with thc victin. The person who repairs the liar3 is givcn a dirzct action against t!iS hcn th3 latter's tcrtious liability to thc v,:tin is establishcd, h ex-pnditv-ro as is rcasonablz can 52 recovcrdd. It is cxprassly at salary or mgcs paid bjr an c:qloyer arc to be rcgardocl as provided that they do not cxcecd thd salaiy er nagcs nhich the ould have recsiveC if he hcd bscn at 7,io-rk yLgain, it ixgrcss1;r this iiicluLcs thc rcasona'uls upke~,.il: c.f a solGicr during thi: iicri;: c is unfit for scmicc.. Hoi:i\vcr, th xzirnu.1 liability of the 4x-c-t- not to Sxcccd thc mcunt vhich ho -;iould hcrvc had tc py th, vic-ii.1 had net Seen rqaire6. ?Xior< th; injurd ;?arty i12s bcm caitri- egligcnt the bencfactcz xay rcccvcr fron thi, victic in prcgc;rtion tx tter's bl~.~~rnorthin~ss(~~'.If thc victi!i has ropzi2 tilc bzncfnct4-Y the victin, nay then rcccvcr frm thG tcz::za-scr. .. thdrn j s an irtdr-s'iiq; ::rivislm C;;csigncS. La .yilli:-,isz the diff icultics cnusc2 by allc-;,-iri; s~~~s~-'L~actiL,ns by thc: vic-tirl ail:- bc:?cI'nct$ _.. The court which trii.s tiw bz%fnctcr' s cla;:? :xq, cn his appiiceticn, adrii; 3s videnci. findings in the action by th~victin azzinst tl?c tcrtfcasor rz;;ardin; doss not apply since it is i;h~uglii;thst Scnirally the nain issuc is bctvrcen th;! victin and thc. wrongdoer mad that th2 cmrt iihich trics this riust bct xntrmmlld by any finGin2 in the subsiZiary action by the bcncfactor. Nornally, no doubt, thz kro actions, if fou-sht at all, Trill bc hxd togctner. 28. It smrx to us then-t, if a rc;?.ecly based on thc subrogation principle is to be adopted, the Israeli ht is a pxcdent which descrvss closi. study. 58. As Shalgi '(op'cit. 2.46) pifits out, the erqloyx is not rcstrictd to the rccovcry ~f !mgc:s at thc rat2 prcczciins the injury; this is of inportancc in Israel c-fi,rc most ccllzctivs agrccxcnts. 2rovide for periodical incroascs. 59. Tf thc: victiri alone is ncgligmt thc bcncfactm nay xcovcr from hin. 60. Tncrc is also an intcrcsting and usc€ul 1:rovision v:hercby tha bcnzfactor is givcn a dircct right a&nsl the tortfcasor's insurcr, if any, 22. Q !$% (61) it At thc time of nriting thc article on which th? abov? account is based was too early to jud@ how it is ncrlting, By noiir, houevcr, sore expericncc sh'ould hzvo bem gaincd (62) and in hcpc that those in Israel to Whoa this Papr is sent mill be abls to givi us ai asscssncnt Gf tha rcsults so far. One OP the Israeli Law's attractions, as alrca6y ncntioned, is that it subsums the chin of an employer within a wider principlc which would partially solve the problm of clairis by ner-ibers of thc victin's faxily, 29. If it were decided that thc right coursc would bc to trmsfcr part of tne victim's clain to the eqloycr for snfcrccnent by thc lattcr there are, cf course, othcr ways of achieving this apart fron those based on subragation. One could, for oxanplc, provide for an cxpress assiwcnt of the appropriate proportion of the victim's clair.1 to tho sqloyer. Gcrnan 1ai-1 in fact intaryrsts cnploymcnt contracts as imTosin,- an obligation on the cmployce to assign his tort clai-2 to the enploycr in rcspsct of any viagcs paid during disability(63) . This, honever, scems to have no advantage over a solution based on subrogation. Apart altcgcther fron doctrinal ob.joctions to the assigment of rights of action for torts, "the common law techniquo of subrozation , being autonatic in operation, seems preferable since it avoids the noccssity of resorting to legal process in order to comycl a recalcitrant emplcycc to assign" (64) BossiSility I11 - Zccovcry fror.1 tortfzs-scr by the cri:)loyoe 30. The third possible solution - cnc i-rhich has Sccn sugscsted to us by the Bar iissocistion for Coimxczp Financc and Inhstry - is to allo-:: the cnplqbc to recovsr frcn the tartfcasor srithGut giving crcZit for any sw-s pi?t by thc employer, leaving subsequent ad.justncnt to takc place bctvrcen the mploycr and cnployee. This solution, if it could bc elzbcretcd so as to nork satisfactorily ip practice, has considerable advantages ovcr those previously canvassed - advantages fron tlic vimpoints of employer, employee, and tortfcasor alike. Tne erqloyer noull! not be saddled viith the burden of bringing a separate ac'tion against the tcrtfcasor and the enployce ,znd thc tortfcasor vrculcl bc free to scttle thE whole claim. It vrculd also have tho peat advantage of automatically eradicating nost cf thc prcsent uncertainty abcut, and anonalous d-istincticns behvecn, thoss bcnGfits rcceivec? from an amploycr which thc cnploycc must CeGuct fron thc damsgcs recoverable from the tsrtfcasor and those which he nxd not (65) 61. Sec n.56, sums. 62. It cme into forcc on 2nZ- iipril, 1964. 63. Scc on this Flming, op.cit. py.1512, 1513, 1520-1523. 64. Flening: op.cit. p.1513. 65. See pars.10, suprs. expsnscs vhethcr or not thcsc had been paid by the crnploycr and ~7hcthc.rcr not the enclover had Daid thcn vcluntarily or becausc he 'ifm bound to dc so. It mould avoid +hi. nced in the cqlloyce's action tc ensure that full account was / taken of'what he had rcccivcd fron the eni>loycr, Furthernor;, if the enploycz tirerc placecl under a kgal c,bligation to restore to the enp1cyc.r whatevcr he recovered fron the tortfeasGr in rcspect of lizbilitiss in fact borne by the employer, doublc racompensz to tlic eiqloyee vrould always be avciCeC1 - as it scczs not to be at grescnt where tlic payments are nacle gratuitously by the erqloyer. 31 However, as will 'uc poiiitcd cut later(66), if the enyloyec mere placcc". I p under EL legal cbligation to acccunt to the cnployer it ViGUld undoubtecly add to i the conplicstions. It is for consideration, thcrafore, whether it aoulcl be necessary ar desirablc to impose any such oSligaticn. The natter could instead be le€t to be workad out between enploysr and cilployec. If en-iloycrs v~cmfiat prepared to rely on en$oyecs' sense cjf noral obligation they could insort expcss provisions in their terns cf eriployment. It is true that if employees wcrc mC:. no legal obligation to acccunt they night sornctincs cnjoy a doublc recovery. It can bc argued however that this is lcss objcctionablc than that the tortfeaoor. should benefit because cf thc generosity of thc enyloyer sr because the cnp1oyc.c has forogmc a hi@cr reslar trage in considcretion of thc cclploycr undortakind to 7rovide him with mgcs cr sick pay Gr tc ;ay fcr his ncdical attention. AS ire have as 2 rcsult of th? Fatal ,',ccidsnts Act 1959 such benefits arc i nct to be dductsd in a dcpcnc?,mtts c1air.z undm the Fatal Accidents ,'.ct or in a claiii unc?cr the Carricgc by Air ht. IT .that c??be rcprded 3s shoving CL legislativz policy(68) that ilcycndats shall '33 cntitlcd to such bcncfits in add-ition to any corn:xnssticn frcm thc tcrtfeasor, it secills strange that the smc 24.. to honour this ncral c1;ligaticn. %c.n if tncy did so by agrccrnellt with the beneficiarics tliz mount repaid would presumbly not be deductible as a debt to rduce the amount of the cstate for death duty yur-poses. 33. It is questionable xhethcr eithcr cf these ob jections has nuch vzli?-ity. ;is regards first, whether an enplc,ycr continues to pay nages deljends r?ain:g, ?,:E susixct, on .,:!hcther he imaits to rztain the mployee. Xhether sick-pay is forthconing depends !minly, xe havo no bubt, on whethcr it is payable under th,c conc?itions of servicc; it nay or nay not be th;3 case that it xould norc comionly bc providecl for if thcrc was a charice of ultinately rccovering it. Occasionall>- one c?r other 122y be yid out of a huxane dcsirc to help the v;or!man ,and- his fmily, and doubtlcss this is ccmonly the riotivc yhcn incclical expenses are dcfrayecl by the employcr. Vc\ry rarely, ‘23 tlninl.;, vjill the c-nployer’s decision in any particular case depevld on t‘nc 1il;eliliood of king repid. A11 that cm- be said is that papcnts arc more 1ikc:ly to be mad;;. ciut of a desire to help tlx workillan than out of a dcsire to help the tortfeasor. That being so,Ms tl*C sol- utia, men nithout aleQ;al ri&t to recoupnent, r;.y 1~ ?.s likdy as tk xcos6. to encourage such yy:?ents to he nade. As ropx6.s thz sccond objection we cannot ina&na that many cnplsycrs arc liksly to bc upxt by the fact that an exyected voluntary repapent does not natcrialisc because the cnplcyce dies. ~LbrcGvcL’, it is cnly in the rarest of casss that liability to cstate duty v;ill be a serious consideration i2rscluGing a voluntary rqayxent if thcse interested in the estate vrish to 381cc it. >ay cr.iployer who Ts concerncd to secure a lcgal right to repzyncnt can Trovicic for that in his tcnas of ca~;lopent, thereby avoi6iiig my such difficulties. 34 If, desyits the cbove arLmmnts it is thoufyht essential cr clcsirsblc tc provicle the enplciyer vith a lee1 right of rccovery against his c;aployee we see no ovewhelning d-ifficultizs in so prcviding so long as the right of reccup- xent is’linited to sms paid prior to the judgelit in the enployee’s action against the tortfeasor 2nd therefore inclucled in the spLcial damges rccovcrec- by hin. Tc extend the right of rccoupcnt to futurs papcnts aould Be obvicusly impractica51c. €To ei>?:;loyee is gGifig to hanc? over to his enplcycr a capital su:i representing cornpiisation fcr loss’ of futura earnings, ho;3ing that his futurc wages nil1 ultimately rccouy, lib. Bcr is hc ping to work fcir the eqdc?ycr for nothing until he has rcndcrec? services cquivalcnt in vduc to the capital su!. ]@art fron this, equitablc adjustnent cf the incone t,ax positioll nould bc: inpossibly clifficult. But so long as th2 erq)loycr’s risht of recoup nent is linitcd tc: SUCIS already paic! vre can scc no particular difficulty. 35. If the enpl0yc.r nere to bc given a legal right of recovery a decision ~ouldhave to be rcached on what vms to ha2pn if the daiiages rccovered viere . .. 25. rcduccd bccausc of the cnyloyec's contributcry negligence. This nattcr ha9 already been advertcd to above(69), and it nas pointed out that this is solely c. qucstion as befmcen em;>loycr and ezi2lcy.x an2 c!oes nct affxt the liability of the tcrtfeasor. The liability of thc latter nil1 5c reduccd if tlie employee has been contrilsutorily negligent. The qwstim is vbthcr tha enployoc's liability to rcco-ip the enploycr should sinilsrly be re6uceci. It seems to us that in a situatioz such as s-ie ars at pqscnt Ziscussing thc rule vould have tc: bc that the onpioyec, on recovering frcn the tortfmsor, should restore to thd cnploycr the 1;iliole of the suns acvznced byhin-atany rate so long as thcy did not exceed tho tot21 mount rucovcrccl. It cannot be right, as RC sec it, that the amount to be rxtared by the ci:q:loycr should bc rzduccd bccause the employee is lii;,?sGlfat fault. Pcssiblc trade union objections to such a nlc, readily understanclablc thcugh thcy nay 32, rnust bz neighed cgainst ths arpeflt that cnploycrs cannot be ex>ectcd to go on payin3 rrages if they lmon that the mount thet they vill get back is dcpcni!ent on the cxtent of the enployee's cor,tributory ncgligencc. ils 1;:3 see it, tlic prdscnt situation is totally diffcrei fron that consiL:ercd later(70) SThcrc xmbers of thc fmily seek to rocovcr soncthing dditional to thc tortfeasor's liability to the imicdiatc victim. Thcrc it saxis quite right that the tortfcasor's additional liability should 5c rcd-uccd proportionately to thz victki's contributory ncgligcncc. In the present context, hovcver, thc question is sinply hcn the mount for nhich thc tcrtfeasor is liabl,: to the victin should he dividcd 3etT,JzC-n ti?e victin and the ezploycr nho has advanccd sagzs to him. 36. Vhcrs, hoimvi'r, tlie totzl mount rxovered by the employee is less thar the total wages alxady paid by the mp1oyi.r it seems clear that, in thc absence of exprcss apecnent tc the contrary, the cn-&oycc should not be required to restore tc thz enploycr rncre thLm he, the erqloyee, has rccovcred from thc'tort- feascr. This, hcmvcr, is ncjt a very co-mon situation sincc normally past v~;rag>s nill constitute only a snall fraction of the total damages clain. Unless the er-iployec's proportionate responsibility for the accident is very high or his claim for past vm~csconstitutcs an unusually lug2 fraction of his total loss, tha total dama@-zsV7hiCh hc my be cxpsctcd to rzcover shoulZ be sufficient to cna5lc him to rccoup the em$oycr. Vkat, hoi'i;3.V2r9nill ciore comonly occur is thathis rccovcry in rcspc-ct of past air2 futura carnings will, bmausc of his. contributcry nogligence be less th,m .tli;, wages already paid by thc cn21oyc-r. Yhen this occurs should! tlie mount recoverable fron the enployoe by the enp1oy.n be rduced likewisc? In our cyiiiion it shculd no'c, if only because this would 'x ir-ipracticable kc, long as jucigcs dc: not ali-Jays cxprcssly divicle the total sur amrc?,?d by my of d,unages uncicr varicus heads zf dxiag:i.s. bven1 if judgcs 69. See para.25. 70, Inf ra. parn. 85, 26. q) hanged tbir pactiix iii this ragarc; it vrould still naks for difficulty vrhcr, chins were settlac? Gut of scurt; then both partics want to bc able to settle €Qra lumy sax :-rithout coxplicatd assessncnts unda various heads. 37 The Law Rcfore Cormittee prcferrcd thc soconcl solution to this, tlx third, on the fol1cv:ing grounc?s: (71 1 "Thc cnployec 7;iculd hmi. little inccrztivz to clain daxagcs frog nliich iie wou1d- dcrivs no advantage, i2i?re particularly"if, as in the C~SOcf ncdical cxpcnscs incmral 011 his 'behalf 5y his c-nyloyer, h6 nculd hzv? to go to sone trcuble tc asci.rtain the 2articulars. Korcover, as the employer' s right of rccovcry rrculcl 13e clepmctixt upzn thc awwd of dmagcs to the cnployce, tlie cn;?loycr nculd hzvi31 i10 rmc6-y if the em$oyee did nct choose tc bring procacdings aid it night 32 difficult fcr the cmplcyer tc rcccvcr if the crisloyee scttlecl his clain out of ccurt. Finally, ve Iiavc no rcascn to bi.lic:ve that eiqloycrs vrcxld vrelcone a rmedy which muld in the last rc.sc1r.t depend on tlicir brinsinz yoccdings against an cqloyee vho ha6 been tnc victim c;f an accidcnt." Lll these crgwients obviously hzvs sme forcc but zll are based cn tlic assuqkicn that ths cmployee is to be placad urikr a lzpl obligction to rciciburse th2 crirloyer. If he is not, but if, as we havz suggstod r?bovc, the question of rccoupacnt is left to bc mrkd out Sctvredn the cnTloyGr and cnploycc, the objections largely c!isziqxar. 38. 3i.n if the ccPloyce mre >laced- under a legal obligation we arc not convinced that the objectioiis of thc Lav Iicforn Comittze are vcry weighty. If the mployc-eqs only dmages were loss of past mges no doubt he vrould not botlicr to SLIC if thc cmploycr had continued to ;lay hin. But ncmally this wcul:? not be the only or the xajor part of his loss. h.6 in the vast najority of cases the cngloyer has 8 rcmocly in his wn hands. If tlie oq~loyoeshons no s.igm of pwsuing his action a@nst the tortfeasor, the eqloyer ca,n force his hmd 3y coasing to pay wagcs sic? rcturning his carch. Scttlmmts out of court nculc? aciLiitteGlybr3 slightly 1?1orc canplicntcd since the cnploycc, to 5c sure of his ultimate positicn, wiiuld necd to ctcnsult the cnplcycr before accepting tlio settlcnent and to agecc nitli the ea$oycr hew r'iuch should be ropnic? him. But it ~ouldstill avoid soiw of the difficu-ltiss of cff'ccting a settlcnent which would inevitably ?.rise cm the second sGlution to be ad0pti.d vheii, as .xe havc men, the tortfcascr CGLI~~iuver be surG of achieving a full ad final se+,tlcnar;t by aaking an offzr to the c~ployccalone. Finally, ahile ne agme that cmp1oyc;zs ...... i70ul6 not nish to hmc to Sring actions apinst thcir enployees, actual liti- gation wculd- Sc vcry nuch a last rcsort zliich voulil' IiGrd-ly svor bc used.' i'di amicable scttlenent Sctmcen exploycr an?- crip1oy;'e' shculc? norzally be easier to reach than 2 scttlcment b2t:;iscn the onployer aid tic tcrtfeasor. 39. The Law Rcfom Csmittee for ScatlanC auggcsted that if an cnpJcycr 27 were given a ri@t cf recovery this coulC: lead tc difficultics regarding incox tax(72). So long as the right cf rzcovcry vcre linitcd, as suggested above, papents nade picr to tho trial cr^ tlic. cmr,loycc's action ne do not think that any serious trouble would arisc, The ultinato rcsult, hcvevx, night diffcr accorcling to whether the enployer i-;crs given a right against thc tortfeasor (i.e. soluticn 11), or left to recover frcirl the emyloyee (solution 111). Sincc British Transport Coxmission v. Gourleg (73) the mount i-zcovcrablc by the eiqloyee frcn the tortfcasor is tlic cqiaivalent cf the lost .iTaGCs afta tax. Tht.-U -. tliz e;q)lcycr has continued to pzy nagos hi. will9 pri!su;?a5ly, have doductcd tax under €'LYE an6 accountcd to thc Rcvznue thcrsfor. If he nerc givcri a direct action against tlie tcrtfcasor it n~uld,prc.smably, bc for the total mount vhich he 5ad ppaii! to thc cr-i;)oycc and to tho Revenue. -Onthat basis, both the employer and the 0~2loysevrould be fully conpnsatcd, 3ut the tcrtfcasor vroull have 2aid the mcunt cf t'nc tLawhich he noulr2 hzvc cscapcd paying if no wages had bcen aZZvcanced - in the lattcr ovent the loser nculcl bc the Revenue which nould not receive tax on the wages. If, on the other hand, thc erqloyee vme alloved to recover from the tortfcasor, his rwcvcry, unlcss tho rulc in Gourley is altered, would- prcsumbly bc. th2 equivalent of ti?e mages less tax, and this is all that he cm fairly be asltad to rostorc to the onployer. Lcccrdingly the tOrtfeaSOr ncuhii be in thc smm position as-if wages had not bcen'paid, 'iiut the x:?ployer vrould be undcrccnpcnsatcd 5y thc mount of thc The c?iffcrcnt result nay be ,anoxdous 13ut 173 cannot regard it as of grcat iqortmcc. 40 . TIC have alrmcly statcd that in our view it nsuld 3s quite inpractica?:.lc. to rcquirc the C~i~lOycc:tc refun6 to tl?c orqloycr payments exccedinc the mount of wagcs paid prior to the juc!,qiant in the arqiloycr's action. The question ariscs whethcr, if thc third srjlution wers adoptcd, it should be these prior ;>ayi;lcnts alone which should be disrsgardc-d in assassing the danagas rcccverabli. by the omploycc frcrn thc tcrtfcascr or vrhcther all such benefits past or future should be disregarded. As alrcaiy pointd out, in assessing dmagcs in clains under the Fatal ikcidcnts Act or Carriage by Air Act no account is to be takcr, of "ay insuraiice noncy, bencfit, pcnsion or patuity which has bcen or will or ;.'ay bc 29id as a rosult of thi! deat'n" (75). iido>tion cf the same rule would itcad 74. Unlsss he cGu1C: recover fro21 the Rzvcnue - a;ld 57e do not see how he coul?. 75. Fatal Lcciclents Lct 1959, s.2(1). %mys payable under a contrect of insurance had already boen xccluGed by th2 Fatal kxidcnts (Damages) Lct 1908. - _.. .._. ~ . 28. .. G,$ to a provision that Scncfits "which have bcen or -;rill or nay be pait! as a msult cf the should be disragzrded (76) .,i;hile this would iiiclude insurance moneys, pensions, and papicnts for xcdical ettention, it vrculd prcswaably not include waps (for wages arc paid not as a result of tho injury but dcsgite the injury). Hovrcvor, it probably goes too far to argw that the provision in tho Fatal Accidents ixt shoi-;s a gcncral lcgisletive 2olicy to oxclude benofits, sincc: a Ciffcrnnt policy as regards ITationzll Iiisurmcc has becn adopted. in thc Law Zeform (Personnl Injuries) Lct 1948. Undor s.2(1) cf that Act in a1 action for pcrsonal injurics account has to h? tdcm of "onc: half of thc value of Xiiy richts ahicli have accrud or probably will accrue ., . . tharefron in rcspi.ct cf in&ustrial injury benzfit, industrial disablenent lxnofit or sickncss Scncfit for tlio five years bcciiininS vrith thct tir:is rhcn the cause of action accrued". This provision reprcscnts a coxqronise b@t-i:eenthz vicu-6 of the Monckton Cormit tco (77', vrhich had fmcurcd- taking thc nholc of these benefits into account in rcGuction of tlic d-xnagos recovcrablc, mZ thaw vrho thought they should be totally disrcp.rdcd. It secins to us that this probably is a ficl?: iii nliich it would bc apyropriate tc ac1oI;t a prasqatic corqironisc rkithcr than to attempt a rigid adherclice to a strict pinciplc eithor that thcre shoulC ncvsr be cvcr-conpensation or tint thc tortfcasur should never bcncfit froa the niti- gztion of dLmases by a third pzrty. 41 Vhatcvor sclution is ado;?tcci as reprc?s ;qmants by ciqloycrs slioulc? i-rc think, apply squally to paynonts by otlicr Senkfactcrs r-rhich nitigato loss to the party primarily injured-. As x-;~ have seen (7r) ., such,. . iX.pcnts, do... not , sce!g9 under the >rcscnt law9 to rcilucc the hnagcs rccovora5lo against the tortfcascr. If the cmploycr xwz Given a LirGct action against the tortfaasor (i.e. if solution 11 nerc zdo7tait) it wouX prcsumhly bo dxirable to provide othcr benefactors with a dircct zction as COCS thc Israzli locislation referred to a3cve (79). In that ?vent it mGuld br3. necessary to ?rcvic!c thet payncnts 5y such bmofactcrs shculc? opcrate to rcduce the C?aizgzs rccoverable by the iLmicdiate victin from the tortfeasor. If, homvcr, the third soluticn to the prolilcm of enpioyers' payncnts ylere ad-cptd, as -:rc ay2 inclined tc. favour., the rcsult would be to equate the positiGn of eixFlcycss vith othor bcncfactors unc?,er the yrcsciit lm, In that event thc question would arise vhcthzr other benefactors should ._. . -. . . . be given a definite 1egd right tc rcccjver from thc victin oncc he ha2 recoverd . . . . . _., .. . 76 This is the position in th? Rcpublic bf IrclanC $y virtue of s.2 of thc Civil Liability (fmenCxant) I,ct 1964 (no. 17 of 1964). 77. Rqort of tlic Cornittee cn iLltcrnative3emc6-ics9 Cnd.6860, of 1946. 78, Para. I 0, suprn. 79. Para. 27, suixzi. 29 from the tortfoasor. Our provisional view is that tho case for so doing is0 far y;Jcaker thm in the case of en2loyers. The bcncfactors nil1 normally 5e relnticna or friends an?;, as was saic!. long a~min a c?iffcrcnt but aialocous context: "perhaps it is bcttcr for the 2ublic that these voluntary acts of benevolence fron ono mm to anothcr which are charities and moral duties, but not legal c'utics, shoulC G-e-peni! altogi.thcr for their reward on the inoral duty of gratitude" (80) In saying that WL? are thinlij-n? only cf the situsticn i7hcrc the bmcfactor's expenditure hss 5cm recovi3-rc ' Insurance, We do not su:;gcst that anything shoulct be done to upset the delicatc balance of intcrcsts repescnted by S. 2( 1 ) of thc 'Lm Reform (Pcrsonal Ir7jlries) Act 1948(82) though it is not easy to justify thc continuance of a d-ifferent rule uncler thz Fatal Lccidents Ifidce8, it can be arguoc? that thc Sest sclution ~roulc?be to gcneralisc the conpronise a6optc.d in the 1948 Lct. If that i-?;rCre done the rulc vculd be that one half of the value of all bcncfits receive6 or likcly to bc received by tlic victin within tlio first fivc yzars " noul? be takcn into acccwt ancl cvorything. clss iGnoroc!. Such a solution wculi! have thc nc'Lvantace of introducing a measure of consistency into the present sonewhat chaotic position. Provisional Conclus ions 42 LccorZingLy, our suGScsti.6 ssluti.cn nould $E as follos7s: (a) Tho enplcyx's action €c,r loss of s,xviccs should 5c cbolishd but whcrc an ~sn~lcyuchas bxn off work bccaus~sof the tortious injury he slioulcl be entitled to reccvor il?~.iagcsin rcspcct of imgcs for the period of zi5sence pior to th3 trial irrespective Gf whether he has been paid nages, pnsion or sick pay by his onployer (83) or anyone else. (b) Similarly he shoul5 3c mtitlccl to rzcovcr dmagcs in respect of paynents fcr aeCical attcntion irrcsixctivc of whethcr thcse paymnts 80. Lord Zyrz in Nicholson V. ChaTmm (1793) 2 ,Hy. B1. at p.259. - ' ' 81. See paras.52 ct.scq. infra. 82. Para,40 su:xa. 83. This of course, would not apply i-ihcrc tile acF1oyc.r R~Shinself the tortfeasor. . have 3ceii boimc by him his em2lcycr or anyone else(84) . _.(c) --, Harever, ~ in asssssing his itxiages fcr loss of future earnings, acccunt should be t,akcn of any payaonts arising out of his'cqloyncnt vd-iich.. 1ic vill or ;?.ay rcccivo (cxcqt as yxvicled in thc Lax Rsforn (Personal Injuries) Act 1948) but nct of paymnts unrelatccl tc his .. . .. nnylcymnt such as procceds of XI insummx iiolicy IThich hc has talcen out cr.. voluntary contributicns tly frioi-ds or relations. Similarly, in assessing dmazzs for future modical attention acccsmt shculd bc taken of my right erisin,- out of his cm.sloyncnt to havc thcsc ;;aid but, again, nct cf my right unrclatcd to thc. ,en$oymant. Yhae payimnts uns-cr (a) or (b) have been xade to the victim by his employer or othcr thirc", party thc.1a-i-r should not provide any &finit? right tc reccupnent frcn the victim, This should be left to be wcrkod out betmen the victin and the bencfactor, eithcr prospactively (e.g. under concLitions of cmploynsnt) or rctrospdctivcly after tile victim hzs recovcrcd from the tortfcasor. The contrast betwcen the rulc eiY!xZiecl in (a) ancl (b) anC that in (c) and (2) my seem illosical but is, in our vien, 'justified on the pounds of .. . f,airncss, convcnicnce.and tho snds ..sought to bc achievcc?.. Damages rccovorecl vqczr (a). aiid (b) arz, spccial ?LamLgcs.rcprcsentin;;. a CL2finite nsccrtainable su:. 1"1 rule that ppents rcccivcd frm cthcrs do not have to bc dcductcd wculc! sinplify thc ackiinistration cf justicc an?' shoulc? encoura,Te the mXing of payxents by enployers and othors to the injurd prty at the tix when he Zost nceds thcix, i.c. in the i-ionths or ye?-rs prcccding thc rmovcry of Cmagcs fron the tcrtfeasor. Dmagcs unZer (c) and mx .cstimtcs of future gencral racoverd (d) .. dxmgcs and, fron a practical point of visr., in a totally different position. Benefits likcly to bi. rcccivcd in future as an incident of the victin's cnploy- ixnt should, we think, ba taken into account, but nct entirely extraneous bcncfits fcr which the victim has contractcc?. nith k.1 insurance company or *&iicii he hope3 to rzceive fro3 bcnzfactors. Vhthcr an employinknt pension is pyable obliptorily or volmtarily should 5e irrolamit cxcept 9. of course, that th2 84. It is alrcaC-y proviiled that the fact that r?l? injured person night have takcn advaiitagc of thc frcc NatFcnal Hsalth Scharnc is to ?IS d-isrccardcd: hu?afGlm (Persmal Injuries) !dr, 1948, s.2(4). __;!hi.re zi fixm L?S its ~rn ncdical or hosl:ital scrvice fcr its norkcrs it is not sugs2stcd that ...... a vorl~er-'~~~o"'h,s.taken ac?vmtace of this should be alslc to . rscavcr' by- way . of dar:izg;es what hc would othnrr-risi. have hu-2 to sTmd (my rnorc .thm sonooiic nho has takcn advantags of the frco Ihtimnl Xmlth Service could 20 'so). %r,.n if the em;:loyer -:;crc c:Tv2n an inCc;xnC:ciit right of action. clgz1.:.nst the tortfaasor it is Cifficult tc see hoi;i, in prxtice, lic coul6 recover .in these circuristancqs since thx< \.iou:d be virtually insupzral~lcdifficultics in sqarating the ccgt incurred in ras;>cct cf the rartr'cular ozployce fron thc gcncral cost Gf. toe .sc~icc. lLllthat could 5e dGn2 is to pxscribc ...... charps in rzsyc-t of particuler !::&ical scrviccs ;'which.-eculd- be rLdcverdd for the bcnofit of thz health smvice) xhe-thzr K8tional OP Trivatc. . 31 value to bo placed on the latter will bo fa= lessc This seems- to be the rat to vhich the courts are tending(85). Ve think that it would be generally rcxardcd as fair that in assessing general i?m,a;Ccs for loss of earning capcity or for fube mdical attcnkion, regard should bc had to thc extent to vhich the victin's conditions of cnplopmt uill OF my lead to a mitimtion of his loss. Thou& strict logic nay denand that the sane should apply to niticption under an insurance policy talrcn out by the victin TO think it t-lould generally be rcgsrded as unfair(86) to deprivc thc victim of the benefit of his om initiative in paying for a policy vhich is not nomally intended as a pure indcnnity policy but as one giving hin dcfinitc amounts in the event of certain injurics. 44. In suggesting in rule (e) that thcrc should not be any le& right of . rccovcry by the employer (or other benefactor), we would not wish to rulc out the possibility that, in agpropriato cases, the court when awarding c?amaC;es night Give directions or extrzct an undertaking that appropriate restoration of part of then should bo made to the cqloyer, As we have seen, the courts havc, occasionally, mde such Circctions whcn they consider that the victim is under a noral obligation to refund(87), In connection with family losscs to which we adverb later(BB), vie think that such directions or undertakings might be more widely used. But, in relation to an cmploycr i7re think that it xould only be rarcly that they would be approprictc. One of the nain objccts of our provisional proyosal is to avoir! tlic ned to bring before the court any details of the state of account between the oqloycr and eqloyce or of the arransementz which they haw made between thensolvcs. 7ithmt these details the court will not Bc in a position to nake any definite dirdxi.cn or to extract a binding undertaking . 45 These vicvis me, homv~r,only provisional. Before coning to any final conclusions we nould be grcatly helped by vims on the various qucstions raised in the foregoing paraGm2hs which can 3e smariscd as follows: (1) On thc assm9tion that thz cqloyer's action for loss of services is abolished, shoulcl anything take its place? (paras.9-22) (2) Would it in fact be likely to lcad to a greater readincss to continue payment cf nagcs during injury or to more gcncrous sick-pay 85. Subjcct, of course, to what the House of Lords may decide when Parm v. Clcavcr reaches then: sce para.10, sums. 86. Unless perhaps the insurance company worc subrogatcd to thc victim's rishts and enzblcd to recovcr fron the tortfeasor, thereby - hopcfully - leading to a general reduction in insurance prcniuns. 87. See Dennis V. L.P.T.B. [+948] 1 All E.R. 779, >upra, para.13. 88. See gara.50, infra. ,if arrmgernents if cm?loycrs v;rG eivcn a ri&t to ri'cover such paynents froii the tcrtfcasor? (parzs.15-21). (3) If some nw rcne6y shoul? Iso provided shoulc? this take thc fom of zn action by thc ci@oycr tc rccover fron the torifeasor paynents rmde by tlic crqloycr that have rocluccd the darragcs vhich would OthemisL? have bson rccovarablc by the cmployce? (pzras, 24-29) (4) Lltcrnativcly, siioul?. tnc! victin 722 yernittd to rccover special daxqcs fron the tortfasor withcut clchcticn of yayncnts mde by tine eay-loyar? (imras, 30-40) (5) Llt8-.rn~~tivzly,slisuld tlc victim 52 pcnlittcd to recover without dccluc-ticn of such payxnts cxccpt to the cxtent of onc half the valuo of such I;apcnts rcceivhle nithin fivc yilars cf thc cmse of action? ( yara. 41 ) (6) If thz msvcr to (4) or (5)j;s in the affirmcltive should the victim be placcd tmdcr a lcp-1 oblip-ticn to rcstorc such pqmcnts to the emnylcyer (or other ?.xnofactor)? (l3aras.30-40) (7) If the insner to qucsticn (3) OS (6) is in the affimctive, vhat should Be the position whcn the dmag~srocovcred by the cm2loyce arc rcduccd bccausc of his ccntributory ncgligcnce? (paras.25, 35 and 36). (8) Should whatcvcr solution is acoptcd rcp.rdin3 cm2loycrs apply equally to bsncfwtors, othcr than the State, who have niti&cd thc victir3's CIL~~SCS?(para.AcI). 7OF CHILD'S SZRVICB Intro6uction 46 It sccnis convanicnt to dm1 nith situations (2) mcl (3) together sincc they raise jyecissly thc sax issuzs. The utterly ,anachronistic Sasis of th? action nceds no stressing ..and no one, vc think, woul?. advocate its rctcntion in its prosent form vhich sonctims affords 8 remedy to the husband but ncvzr to the ~.iife(~~),On the oth3-i. hmd, tlic action, though anachronistic, is far from obsolctc and it oftm cnsb1c.s a husb,md to rzcovcr in circurnstances .which justice clcarly der-imids that he should -,-There, in thc present stztc cf the law, it .would 3e dif€icult for him to rccovcr on any otha bads. .In the recent case of Cutts v. Chu~lle&~~),-avifo and nothcr of three little boys had bcen so scricusly injurdd that she wculd hme to spend the rest 6f her life in cm institution. As a rcsult the hus?imL had bcen virtually deprived of her society and xholly deicivcd of her services in running the home ancl looking 89. ?3ccept very occasionally fcr Loss of a child's scmiccs: see psn.7, n.14, supra. 90. [I9671 1 V.L.R. 742. 33 i! after the child-ren, He rccovered a conventional figure of 8200 in respect g, d of inpairment of con~ortiun(~~)and L5,OOO for loss of services. ';Se think f had no'i it i7ould be nenerallvv U- az~ecd that it ::.cull hzve Seen outrageous if hc beenI conpensated in respect of the latter iten at least anC that the award was husbanC, wif,?, and, perhaps othcr nei.1bers of t'ne houschold! nay recover for th econor.iilc loss that they suffcr and the expenses they reasonakly incur as a result of thc tortious in.iw"., of the imcdiate victim This was the unanimou opinion of the LX; ikforct C~nnittee'~~).At present there is a renedy for loss of dependency un6-er the Fatal lrccidents Acts if the Sreadvinner is liillcdi and it would be anonalous to dony such a renedy when his su2port is lost 3y a non-fatal injury, 47 It would be an exaggeration to sugsst that it is clear that damages ,$ are never rzcoverable except through an action for loss of services. There is '4k% some authority for saying that anyonc yfho is under a legal obligation to nainta,. the bediatz victim nay rccovor fron the tortfeasor the cost of doing so , On this alternative basis a husband niGht be zblo to rccovcr ineGical expenses I or the cost of hirii1c.r- assistznce to look aftzr an injured nife or infant child, and a wife, pcrhaps, niTht sonctims xcovcr in rospect of cxpeiises incurred f /nn\ an infant child-"" - but not yresuimbly for her husband. But it is not easy to understand what is the exact lcpl basis. fcir such action if it is not an action for loss cf services. If discliargc. of a lcgal oblization affords an _..-- altcrnative basis, an anployer she, under thc t'C?r:is -of his 'contract with an eqloyce, is lisble to ;uovide ne2ical attd2.on, sick pay or nages ought to 5e i able to rccovcr (95), but this, as 'c-E havc seen, is not so under thc present law. Neither this altc-rnative basis, if it mists, nor the action for loss of. Follouing Lmrence v, Biddle [I9661 2 Q.B. 504?. In Bcst V. ~~ __~~~ thc C.A. would apprently havc allovral E. claim for loss of consortim only vrhen the lcss ~rastotal ([I9511 2 K.B. 639) and, in thc H.L., Lords Fortzr ancl Goddard r-rould apparently have gone still further- - an6 denied any claig' for loss of consortium as opposed to scrvic,?s: Ll9521 L.C. at 728 and 734. Cmnd.2017, paras.19-20. The minority did not dissent on this point. -Pcr Lord Goc!dard in Best v. Sarnucl Fox & Co. [I9521 A,C. at 731 .and 7311, Diplock J. in Kirkhm v. Scu&y Ll958J Q.B. 338 and 3Lr2. .. - -Cf. Diplock J. in Kirkharn v. Sou,yhey, supra. . i Unlcss a voluxtarily incurrsd Gbligation is to 5e distinguished fro3 one :.-----a L-- l-l- . _^Y^Y^ 1 1 _.- ...... , ..... -. - -- 34. ... 'serviccs necessarily entitlos a husband to recover all the.loss which he reascnably incurs(96). Nor, as im have sscn, does Either assist a nife when she has incurred expnsc- as a rcsul't cf her hmbandts injury. It nay be that if she too has suffered injury shc can recover fron the tortfeasor expx3itura reasonably incurred 5y othcr clernbers of tl-ic fmily tc the extent that that reduces t'ne dzmages to which shz would otherwise be 'entitled-(97). But in Ga;y;;e v. King (98), Biplock J. held that unlass the l31aintiff was unclkr a le@ iia5ility to incur tlic zxpmses she cculd not recover them by my of damges. Lccordingly in that case the plaintiff xifa nas held not cntitlcd to rccover eqcnses incurred for her own mdical attention since her husband was legally liablo to provic?e hcr with acdical attenticn and if she cchtractd for it shz was presumd to have done so as her huslsancl's a3er1-b''~). If this is correct it presumably iaeans that a nifc can never reccver, evzn in respect of hcr o?i:M medical expenses, unless she has actually 2aiC .them out-of licr.cm pocket or unless, whcn slic contractcd for then, shc s2ccifically ple2ged her oy;n credit. 48. Hence although defcndcmts often concedo that the ;ilaintiff can rcccvor wards which reflect tlic iro-pcb of financial loss on other iaen3crs of thc failyy they do not allrays clo so an2 Zrequontly them is no legal basis for the rccovcq. The Bar C~uncil,in thcir evidence in 1961 to the Lav &fora Comittcc, drew attention to the unhap-pincss awn,- practitionors in the field of perscnal injuries litiption caused by tho pxsent unccrtaiiity and by the "Dickensian for12 vihich their plcadincs assum" in cn atteapt to provide a legal basis for a recovery. The a3olition of the action fcr loss of servicos v~ouldrenove onc Sasis (and perhaps the cnly lcpl om) on vhich such recovery is sometincs pcssiblc. It soens clear that CL ns-it an2 uorz satislactcry legal basis clust 3c found . TVTCSof Family Losses 49. Before proceecling further it nay ;IC helpful to nftenpt to distinpish between the varicus types of loss which nerhrs of n fmily my sustain if one nember is injurcd. The borderline between the vSricus types nay not always he crystal clear 5ut, as we see it, thcre ere in effxt six reasonably distinct types, a. 96. See9 for exanplc, %irkham v. Bougheg, sugra, vrhcre it zas heXL that the husband vas not cntitlcd tcj rccovcr lxs of mm1in.p lincurred becausc he reasona3ly stayed in En@md to lock aft;.r his injursd nife instoncl. of returning to his job in Africa. And cp. TkDonnell v. Stovms, The Tines c . 8th April 1967. But contrast XcR'eill 7. 'i-1956m.R. 888. 97. Scc Schncider v. Zisovitch 1-19601 2 &.E. 430 t7here the.plaintiff vifc under- t'ook to TCpiy her brothcr-in-l~i:~'s expnditurc in bririging her ancl her husband's body Sack frocl I?rmicc where the accident occurrd. 98. [I9611 I Q.B. 188. __ 99. This seem to conflict with -Rces v. Hu:'.hcs [I9fk6] K.B. 517, C.L. (i) Payments in mitigation. First there are payments which other menbe of the family nake to their injured colleague to mitigate the damage which he would otherwise incur. Obvious examples are payments made by a man to maintain his son during the time when the latter is not receiving wages, or for medical attention in respect of his injured wife , or children. Unlike losses considered under the following heads, these losses are not adZitiona1 to those suffered by tlie immediate victim; they are merely borne initially by another instead of being incurred'by tlie injured party. (ii) Hospital visits. Secondly there are the costs of visits to the injured man's sickbed. These costs inay include both out-of-Focket expenses in fares and,, soinetimes, loss of earnings resulting from time off work to make hospital visits. (iii) Other pecuniary losses not based on dependency. Thirdly there are types of pecuniary loss which flow not from the fact that other members of the family are dependent on the injured party (on which see (iv) below) but from the need to lool: after the injured party or to secure the'performancc of the domestic role hitherto performd by hin. For examples loss of earnings ;nay be suffered by a nife who has to nurse her injured husband, or by an elder daughter r:ho has to look after the younger children uhilc the mother is incapacitated, or expenditure nay 'oe incurred by a husbanc! -,-rho has to engage a houseiceeper to rcplace his injured nife. (iv) Economic losses based on dapendency. ~ourtlnlytliere is tlie situatiofi y;here one neri'oz oi tlic fmily Is ?j-holly or partially de'pendent on ailother 36. /3 financial character, If a aife and mother is injured it nay be that a servant or housekeeper nil1 be engagsd to take her place. In that evcnt the husband has suffered an econonic loss falling under head (iii). . More proba73ly, hovcver, ths other monbcrs of thc family vill rally round and undertake nore of the fanily chores. In that event, a hurdeiz, but no definite financial loss, is borne by tner?. Sinilarly infant childrcn who are deprived of the care of on2 or otlicr of their parents normally do not suffer scononiczlly thcrsby but nevcrthclcss suffer nhat most people vould rcgard as a grievous loss. (vi) Solatiur? for grief. Finally there is the grizf and :-lorry which nenbers of the Panily trill suffar when another is injurcd. This again is cntircly non-economic but is, as -;;e see it, distinguishable from the type of loss rcfcrrcd to in (v). Ia som cases, hoxever, it may be difficult to dccide Tvhcthcr ther? is a loss undcr head (v) as vrcll as under head (vi). 'lherc a parant is injured infant children clearly suffer loss under both heads and, irhere the parent is the breadwilmer, under head (iv) also. 'Therc, hvirever, a dependent child is injured there 2s a loss under head (vi) but no loss under head (iv) - but rather EL gain - and probably no loss under had (v) either, unless th2 child rendored doncstic services. The questions v!iich first have to be detcrmincd are whether any, and if so which, of these types of lossos should bc rc.covcrablc, axi by ~7hom. (i) Payments in Tfitigation 50 Te have alrzady dealt with ppccnts in mitigation of the imcdiatc victin's damage nhcn considering the position of the eqloyer, In our vie17, uhichcver solution is adoptcd resarding payxents by an cmploycr should apply equally to payncnts by my baxfactor, vhethcr or Dot a ncmbcr- of the family. Hence if the subrogation solution(') were adopted it should, as in the Israeli i be nad-2 to extend to rayrncnts rnade or benefits conferred by 1. f naibers of the faxily and others in so far as thcss diminished the danagcs v;i?ich &uld othcn~isebe rocoverable by the imisdiate victim fron the tortfcasor. The sane principle should ap2ly if, instead, the solution which vrc favoured vxc. adapted of disrcsarding such payrqcnts and taenefits in asscssing the darnages recoverable by the victiri fron the t~rtfcasor'~).As 'iio have scen,payments and benefits conferred by bencfactors, as opposcd to enployers, scm to be dis- regarded under the prcsent ld4)?and in our view that practice should contirx,?. 1. See paras.25-25, nupra. 2. See paras.27-28, supra. 3. See paras. 30-45. 4. See paras.10 and 47. 37 Similarly we nould favour, cvsn more strongly, the view that no legal righ recouprncnt should be given to the nenibers of the faiiily who aade the payncnts; essentially the danages recovered frori the tortfcasor should be regarded as replenishing thc "fmily pool'' out of which the payments nere nade, However, to avoid the risk of futurc falily discord 'i;o think that here it riay often be appropriate for the court ?;hen axardiiig damges to give directions or to obtain an undadaking regarding recoupxnt of other nambers of the family (5) , 51 An squally straightforward solution, hovrevsr, is not possibh as regards the remzining types of loss, for these arz additional to tne loss suffared by the immediate victim and, if tlicy aro to be recovcrablc at all, will have to bs claimed scparately, though not necessarily in a separate and mill add to the total dmagas payable by the tortfcasor. Hencct one has to consider carefully (a) whcther tlioy should bc recovmablz at all, and (b) if so, by cr on behalf of vrhich mnbei-s of the family. (ii) Hospital visits 52. It secm to bz generally accoptcd that the cost of visits to tlic I victim's sick-bcd is essentially the type of loss i-Jhich should be recoverable; this was certainly the viw of tk~Law Reform Corx~i.ttce(~).As alrcady pointcd out (8 ) , tho cost is not nccossarily linited to fares to and from the hospital; if a husband has to lose a day's work am? earnings, th2 cost to him ought also to bz rccovcrablc.. Nor should recovery be depcndent on vrhcthcr the visit of thc relative has hastencd the victirn's restoration to health. Any attegpt to subsuzc. rccovcry under xitigation of damgc is obviously iqracticable. On the other hand some limit imst be placed on the extent to vliich the tortfcasor ought to pay; thc victim's cousin ir? Australia can hardly cxpxt 2 subsidised trip to London. The Law Reform Connittee spoka of "reasonable visits to hospital" and reasonablcncss ourat obviously to be an cssmtial criterion. But, as it seems to us, the qusstion is not solely i2wther it was rmsonable for the rdative to maks the visits but also mhetlisr it is reasonable to expect the tortfcasor to pay for then. Casual visits by a distant rulativc are very different fron regular, tine-consuming, and thcr2forz potentially costly, visits by a husband, vrife, son or daughter. It night, thereforc, be desirable to linit rccovery to tlic reasonable cost (both in out-of-pocket expenses and loss of earnings) of such vislts as ncre to be ckpccted in thc natural course of cvcnts having rcgai-6 to the extent of t'ne victin's injurias and his far.iily circunstances. I 5. Cf. as rcgards e:qloycrs, para.44, supra. 6. See paras,80-84, infra, for suzgastions rzg-ardiiig linkage of claims. $ Alternatively one night have it to judicial discretion by providing for recovery of such costs as the court cmsidered it raasonable for the tortfcasor to bear. 53 A second and relatcd qucstion is xhethsr clains undcr this head should be restricted to prescribed fiierr,bers of the fmily. If this were done it night eliminate or rc6uce the lized to dcfinc the type of visits; any visits by the prescribed senbers night bc regarded as rcascnable -. so long as the cost v~as not cxcessivz (e.g. a son's trip fron Australia to visit his father with a broken ankle). The difficulty, homver9 is to find a ne.aningful prescription. Onc nould suppose that visits by a nenbzr of t'nc sane household ought to be jncl-adcd even though the visitor is not a legal relation but, for exmplc, tha "coniion-lax viifc". But ambers of the household ~rouldsee2 to be too narrow (a nan who lives on his om should not be deprived of visitors to his sickbed) - unless it can be argued that costs should be recoverablz only if they have deplctod the household pool. But even on the latter basis it V70Uld be harsh to exclude visit9 from a fianc6e or fianc6; sost engagsd couples arc in the process of building -a2 a cormon pool for use aftcr marriage. &id since thesc visits are, perhaps, tlic! most eagcrly avaitcd of all, it would, nc think, be lancntablc if they vmx excluded. 54 Tho fact is, 172 bclicve, that circumstances diffcr so greatly that it nould be virtually irnpossiblc to dcfinz any classes in a nay which nould not yroduce anonalies. In sor-ie casCs the only lilxly visitors wculd be parentss children and spouses. In cthers, particularly nith the a&, tlii. only visits night be fron cld friends IhO -i:crc not rcla-Lions at all. On balance, thereforc, vc should favour sone such foi-iula as that suggestcd in para..52, vith no restriction on the class of i"ricn6s and relations, An injurcd man should- be entitled to ri.ccivo visits and, il" thc visitors care to clah, the rcasonable costs involvcd slioul~dbe rccoverablc from tlic parson who has injurcd him. In the case of occasional visits by fricnds or distant relations it is unlikely thet the cost nould be othar than trivial or that thc visitor wouk! wish to clairn. We should, ho;.icver, vrelcome vic-\7s on this. .. (iii) Other pecuniary losscs not based on dependency 55 In separating this head from hoad (iv) we arz sseking to distinguish types of econonic loss nhich flov, r,ot fron the fact thet other nmbers of ths fmily are dependants of the injurad party (head iv), but fron the fact that the incapacity. of the injurcd party causes 2.nothcr r.ieI;iber of thn fanily citncr to give up.renuncrative employmcnt or to cnga-": sonsone elsc to perform the -_ role hitherto carried out by the injured party. de are not saying definitel3- that dependency clains should be treated differently fron the latter clains bui __ marely.. th,at . it is arguable that they gh.oulcl. :de have not thought it necessary 39. to distinguish between giving up en-ployment and engaging another; it appears0 'Go us that they clearly ought to be treated in tht. sane way. Under the present law they are treated differently; a wife vdio gives up her job to look after her injured husband cannot recover from tile tortfeasor (though the husband may be able to if he pzys her as B nurse or9 concaivcbly, on the Sasis that the j services have mitigated his damge by obviating the need to pay for a nurse ts> but a husband who is deprived of tine donestic services of his wife or daughter can recover ti?e cost of replacing them Qr an action for loss, of szrvices. The $ whole object of abolishing the action for loss of services and replacing it by something better is to remove anomalous distinctions of this sort. 56 . Uncler this head also, it seems clear that losses should not be recovera'ole from the tortfeasor except to the extent that they were incurred GS a reasonable mems of meeting the situation arising from the injury to the immediate victim. If a wife threw up a Sl0,OOO per mum job in order to nursc her husband instead of employing someoiie else to do so at a tenth of the COS^, the court would obviously not regzrd her viiole loss of income as flowing reaSGnably from the tort. And it mould take the same view if a husband cngagd the chef at the S~oyto cook his meals in place of his injured nife. But, once again, if the course taken i-ms reasonabls in the circuqstances the extent of the rxovery should not be measurad by tha cxtent to which it mitigated the damage of the imxdiatc victim. 57. So long as this "reasonablsness" test is laiZ down them is, -ue suggest, no need in this caee to limit rccovery nithin,any prescribed class of ' relatives. If it is a rcasonabla rasponsc to the emergency for someone to give up his or her j,ob in order to loolr aftar the imicdiatc victim or to discharge th domcstic duties hithmto undertaken by liin it cannot matter, as it seems to us9 what relationship, if my, tlia prson vho steps into the breach bears to the victim. It zould appear to be wholly unreasonable to say that a wife can be compensated but not an adult sistcr. And if there is no relation prepared to step into the breach, se can see no rzason why a friend should be precluded fron doing so except at her 0w.n expnsc. Similarly if a nurse or a housekeeper is ergaged it cannot make any diffarance ;;rho cngages the nurse or housekeeper and makes himself .rcsponsiblz for paying her. . When i-ie come"to dedlp under 'heads (v) aid (vi) , with non-pecuriiaiy losses a legal relationship between the claimat and the victim of thc tort nay acll 5e essential, but we cannot see its rclevance in the present context. liv) Economic losses bzsed on dependency 58 Tie non come -to the type of losses 1:;itli which claims under the Fatal I' , Bccidents Acts are primarily conccrnc-d, namel-y losscs flowing from deperdency. 9. See para.47. 40 4P Once again ne aro concerned with strictly economic losses but, as already pointed out'lo) they nxd not nsccssarily be imediately quantified but may depend on an estimzte of the loss of future -prospects. Undcr the present lan, if the breadwinner is killcd, action may be brought on behalf of his dependants to recovsr thc cconomic loss i-hich tncy suffer thereby. When the Fatal Accidents Acts vcre originally introduced (1') ail causes of action vestxl in the victim of a -tort aljatcd nith his dcatli - actio personalis aoritur cui persona - thus rendering tnc plight Gf dcpi.ndLats grme indecd. But the right of action affcrded the dependants isy the Acts in cases of nrongful death h'as survived the abolition of thc actio personalis rule (I2) so that today tho victin's pcrsonal rcpresantativqs can r2covGr both the loss he suffered and, on behalf of the dependants of a wide but prescribed class, any additional economic loss that they have suffered. Since my benifits received by the dependw-ts as a result of tlic death have to bc sct-off against tlioir clainis, these will be dininishGd to thc: cxtmt that the depcndants succeed to those dmagcs as beneficiaries undcr thc dccmsed's vill or intestacy. But this has certainly not rsndercd Fatal Accidents Act claims otiosc, for in inany cases the loss to the depondmts will be additional to, adgmatcr than, the loss to the deceased. Dcpcndmts my equally suffc-r additional loss whcn the victill is incapacitatcd instaad of bcing j;illcd outri;%t, but thcir claims thm arc nct at present recognised by the lair cxccpt when m action for loss of scrviccs ic possiblc, i.e. in practicc only whdn a nifa or daughtcr is injured. In rAost casm this cm bc justified on thc basis that, if the i.miediatc victim rccovzm I dcmages for loss OP future carnings, this rill malle him to continue to rnaintzid his dqendmts vho, accordingly, nzithcr med nor should be givcn -an indepcndsnt claim. since this would lcad to doubld recovzry. This, homvor, is not alviays so. If the breadvinner's zxpzctation of lifs has bccn rzduccd, neithzr the noninal sum avarded for that nor the dmagcs for loss of cmninss during his cxgected lifc can lcad to adequatz compensation for his dependants. Xor will a son vrho had to bo taken avay from 3ton as 8 rcsult of thd father's injury bc adequately compensated by an axrard o€ darmgGs to the father five years later. Tlhilc steps would lmve to be talren, as they arc under thc Fatal Accidents Acts, to avoid double recovery, if dependants ar? to bc adequately compensated th'ey need a remedy l;rhethdr the injury of the breadwinner be fatal or not. 59. Hence to prcvide a ready to depsndants which vould operate in the smr? way vhcncver there nas a srongful-injury mhathm or not it caused.death would, it seens to us, bc an zninently desirablc rationalisation of the lai-f. For the present -m assum that thc rcnedy should be restricted, as claims undx 10. See para.49, supra. 11. Lord Campbsll' s Act 1846. 12. By the Lm-: ilicfom (liiscellaneous Provisions) Act 1934. 41 the Fatal Accidcnts Acts are treated as restricted(13), to strictly econoe losses as opposed to t'nosc considered under haacls (v) and. (vi). 60. Under the Fatal Accidcnts ActsO clains cm be brought only on' behalf of a prescribed class of relatives. This, ho-;rever, has not7 beconc so nide (14) that it is difficult to sec why any prcscripticfi is nceded and why rccovery should not be based simply on the fact of dc:xxidcncy rather than on dependency plus a.lega1 relaticnship crnbracing almost every lilcoly typc of dependant. The main classes of li!;cly d-ei)cndmts VAOarc excluded arc "cornnon law" husl;iXds or wives (who clearly ham a prc.ssnt d-eyenclcncy) divorced wives being paid xaintenance (i-rhich nil1 normally ccasc on the ex-husband' s death) , and f ianchs (viho arc likely to hwe a fui;:im depmdency). It satlms to us that these classes ought to be includcd. Xorecver if th2 victim ims in fact maintaining in t7hOlC or in part someone who does not hapi3cn to be a blood relation or legally adsptcc?. (for example sorneona over whom tlic victim has accopted ..the obligations of . guardianship) we do not see xhy that clepcnc?.arL should be deziied a claim. Specifying a relationship has, perhaps, fulf illed cne desirable purpose in that it has mabled the courts to hold that one cznnot under the Fatal Sccicicnts hcts claim fcr a loss flozing so1;tly froxi a comiercial association'''). It ~ould,honcvcr, be possibls to axcludc. t'nat typc of dependency without having to spccify'prcscribcd classcs of rdaticns. 63. Hence, if claims, nhether for fatal or non-fatal cascs, i-mx to be rcstrictcd to dcfinitc. econoxic losses, ire arc- inclincd to think that them should not be a fixed list of rclntivcs but that tho right of rzcovcry should depend on the fact of dependence in cnch cas3. This, hclj-cvcr, is another point on which 1:ie i,iouli! velcom viows. If them is to be 2 fixcd list rre fecl stronzly that it should bc the smc. i7l~thcrthe injury inflictzd by the tort- feasor leads to dcath or merely to injury. It could. therefore hardly be narrOiilcr than the present list under thi. Patal Lccidents Lets cancl a strong C~SCcan be made for widening it so as to avoid the prcscnt cxclusion of the comon law spouse (16) . __ - 13. See para.63, iilfra. 14. It includes spouses children and gan6children (lawful, illegitinatc , stq or adoptcd) , parents (ii?cluding step-parents) , panilparmts and brothcrs sisters, aunts, uuclcs aid thcir issue: Eta1 kcidents Acts I846 and 1959. 15. Burgess v. Florence Kightingalc Zospital 1119551 I Q.B. 349, where it 7'*JUS he12 that a husband could nct chin fcr the loss of his wife as a pro- fessional dancing partner. Contrast TImkin v. Scala Thcodroine Co. [I 9477 K.B. 257 :i-herc dmz~gosin coraparabls circumtancas wcr2 rzcovc-red in an action for loss of services. 16. At present the childrcn of illicit union can recovcr but not tlid otkr partner in thqt union. @ (v) Loss of scrviccs, companionship and parsntal care 62 .. Ye now COLIC to various types of loss vrhich arc not of a definite finmcial character. They includc, cn tke one haid, lossos rrhich nay at presmt bc? recoverable under thc action fcr loss of sarviccs md, on the other hand, losses which unGer thc present lav; mo pobably not mcoverable at all, The principzl illustration of the first typ of loss is where a wife is injurcd. In these circknst-mces, as YTS !iavc scen, the husband can at prcscnt r@covcr from the tortfcasor danagcs designed to compcnsatct him for the loss cf tlic xifz's sorvicos and compmionship (consortium). If ha engaagcs a housckcepsr to perfor: her dorilcstic dutias while shc is inczyacitated he vill hmc suffcrcd a definitc- financial loss vhich ail1 be rcccvzrabh, Mcrc probably, hwevcr, thc other members of the f,Wily nil1 rally rouni! and unclertakz thc doracstic Cutics fornc.rly perforncd by the aifc. In that cyent the husband, in an action for loss of services and cofisortiura, nil1 recovm only arbitrary conventional sum in VIE / ncighbourhood of i2200(17)., Illustrations of the sscond situztion, in Ylhich at prcscnt nothing is recoverablc, 8rc xhew the wife is killcd(18) , where a husband is injured, or is killed md the srife su€fars no dircct pecuniary loss thcreby"') , vhcrc young childrcn (not rcndcring scrviccs to their parents) are killed or or nhcro parcnts am killed or injurcd and the childrcn sllffer no pecuniary loss but 3re &cprived, tmporarily or pem&ently, of parental care. 63 Ls vc scc it, in all t.hcse cases thc husband, i-rifc, yarents or childrdi suffer a loss nhich is somthing norz tangible t'n,m grief alone. Yherc a nifo an6- mother is killed or injured it nay bc: that she will bc rcplacsd by a paid h ous ekee pe r (2'); but if therc is Q Laughter OKGilC;u,nl? ths probability is thrt she Trill pcrforn that mle and. that nc dirxt pecuniary loss vill bc sufforcd by thc family. Fcvr -;;illdeny that thac is a loss. Yc-t sxccpt in cases in ljlhich there is an action-for loss of scrviccs it scms thzt Eothing is at prcscnt recoverable in respcct of it. In one cas?? it is true, the court cxprcssed a willingness to zriard- clamages in rcspcct of such a loss. That case, - - 17. Cf. Cutts v. C!imlcy, supra. prca.46. 18. fin action for loss of scrviccs cmnot bc brought if thit immediate victir! is !tilled-: Bilriliralty ConnissionGrs v. S.S. iacrika L19171 A,C. 38, H.L. 19. Thc: zife czmiot SUC for loss cf the liusband's conscrtim (wV. Sanucl Fcx & CO. [I9521 A.C. 716, :I.E..) and claims under thc Fatal Accidents .Let arc linitcd to pxuniary loss: Fovcc v.. Brom (1964) 108 So1.J. 219. 20. In these circunstanccs tlicir parcnts nomally suffer no pccuniaiy loss an2 may (e.g. i€ the child is killcd) gain financially since thsy nc longer have to maintain the child, Preston v. Hunting Air Transport(22). arose out of an air accidentI- and turn~~on the interpretation of the word "damage" in the larsax Convention wnich is incorporated into our domestic lavr by (nov) the Carriage by Air Act 1961. R widowed mother of two children aged 3 and 4 years was killed in an air crash. Ormrod J. said (23) that the question was nhether the daqage to them: "should be calcclated purely on -hat may be estimated as the financial loss which tliese infants had sustained, OS whether it should be calcul- ated on the broader basis of the loss which they inevitably must have sustained beyond the actual finaxcial lcss by the fact that they lost their mother as young children aged some three or four years, who were at the time of her death already deprived or" a father". IIe concluded that: "I must take into account, in calculating any sm vhich should be auarded to them, something more than the purely fincmcial loss and award some sm - a sum extremely difficult to arrive at - for the loss they have sustained by reascm of the fact that they have lost the care,of their nother at an age when probably they needed it most". In the light of these remarks, it comes as something of E shock to observe thzt all that tlie h-fo of tkea vere auarded in resyxt of the non-ficaicial element in their loss vjas f400. In a sitbsequent case (24) under the Fatal Accidents Act the court has refused to follov Ormod J's decision and has ruled that only strict financial loss is recovcr~~3le. 64. Should such dm-iagcs be legally recoverable? One thing seems to be clear, chatever the rule, it should be thc? smx for fatal and,for ncn-fatal (25) injuries. The present situation, iil irhich non-pecuniary losses arc never recoverable in cases of fatal injuries, but nay be recoverable in other cases if, but only if, the relationshiy riith the ii.wediato victin is such that an action for loss of services is available, seem jndcfemible. 65 ks -;re see it, the case €or alloning non-pecuniary loss to be recovered is:- (i) The loss, though difficult to qumtifJ, is a real 2nd serious one, (ii) At present damages are recovcrable in sonc cases and it would be diffi- cult to justify a reform of the lair nhicli vrould result in thcir nc being recoverablc. 22. [I19561 I Q.S. 454. .I 23, At p.461. Pevec v. Brown (1964) 108 So1.J. 219. 24 - .. 25. Preston v. Ilunting Air Tramport, supra para.63, a decision to the con- ( trary niust br; regarded as of dubious authorit;. It is. ilot rsalljr possiblc .-- to argue that the y;ords of tile .aTsp>;i Convention and thc Etd Iiccidznts Act arc sufficiciitly 2-iffcrent to justify an award or" non-pecuniary 1 under the foimcr but not undcr the latter. 44. %e case against recovery is:- (a) The law should not take account of losses which are impossible to calculate. (b) Danages, if allowed, could only be assessed as arbitrary conventional sums - as indeed they are at present in the fen cases where they are recoverable (26) and conventional sunis are inconsistent with a con- pensatory theory of damages. (c) If non-pecuniary loss suffered by infant children nere recoverable, . insuperable practical diff iculties nould arise. The tortfeasor (or his insurers) nould never be safe in settling nith a victin vino had infant children. The latter might, and indeed generally would, have suffered some non-pecmiary loss and xithou% the approval of the court their claims could not be disposed of. Before further eqloring 'these pros and cons it -saeIils desira3le to mention .tl'~d final type of loss (grief) ahich raises sirailar problems. - ...... - . .I . .. Iv) Solatiun for grief 66. Obviously psople are likely to suffsr picf vlien their nearest and dearest are killed or iiljured. This, ho?-rever, is not a type or" loss -irhich Znglish law has ever opcnly recognised as reccverable. The position is diff2rei:t in the Civil Lau counJGrics9 including Scotland. In Scotland a distinction is dravm, in cases of delicts causing dcath, Isstwen patrimonial loss and'a solatim for grief and distress, and hus3mds and nives a16 ascendcmts and descendants can claim for both(27). South Australia has by statute adopted the Scottish concept and coupled it with a lcgislativs prescription of the sum -to ?E marded. By ss.23A, B and- C of tile ?Jrongs Act 1936, introduce& in 1940, in +A;: case of the deeth of z child the court may award the parents a sm not exceediri;; 2.500 and in ths casc of the dca-tli of a' spouse nay avard t'ne o&cr .a sum not excecding $700 by nay of solatim- for the suffcring caused by the death. KeamT (28) home this has rccently been- talcon up by ths Relmblic of Ireland. By s.47 of the Civil LiaSility Act 1961 (no.41) the court is entitled to award dependants mtitled to elaimsfoipcculriary loss in fatal accident cases reasonable comTmsation for nciitcl distress not zxcceding Z1,OOO in all. (29) This -;{as originally introcluccd on Lzn experincntal basis for three years 9 but since it vas thought to nor!; sstisfactorily, the time-li-nit- has nou-bccn 26. Approxinitcly S20O per head: g. Cutts v. C:iwnlcy Lm?l!Preston V, Huntin,.; Air Transport, supra. .. 27. See D.M. rialkcr: Tho Lw of Dclict in Scotland, pp.722-733. 28. Sce subs.(l)(a)(ii) and (5). 29. See ibid. su'os.l(d). 45 F renovccl (30) - - 30. By tha Civil Liability (ilncnfdicnt) Act 1964, s.6 an6 Sch. Scc on thcsc sxtions , IhiSht: Sofile dspscts of Dar.18.g~~under the Civil Liability dcts 1961 mcl 1964; (1966) 1 Irish Jurist (N.S.) 35 at 50-58. I. I.c. .;inc;l the LZJ kforrc (islisccll3iiocu.s Provisims) -Ict 1934 abolish22 ths rule thit pcrsonal actions do not surviv2. . [1952! A.C. 716, I3.L. at 728 an2 730. 46. mC in t'nc sme czuss bf acticn loss ox 2amige cndcr .my of these hezcls could properly 5e taken intc account, though often the main emphasis might bo on the value cf tlw scrviccs cr assistance nliicl? tlic husba2 .had lost. .... I can sce no sign of my diffcrclzcc. in qmlity betwecn his right to h2r assistmce 2nd his right to licr society, aid indeer? it would be diffi- cult to say ivherc in fact assistance ends ant! society begins, either today or in the LIid-Zle Ages.. MO dmbt hcr scrviccs ,ancl nssistxrco had an zdditional value becausc hcr cmfort and- socicty vent with thsn. I do not think that conscrtiuiil .i.ias m abstraction: it scms tc nc rethcr to be a iimc for what tlic husbznC enjcys by virtue Cjf a bundla of rights, soim ha$clly capablc: of Frccisz definition". Nany wou.lii t1iin.k that this view cf tiw lmr dis2lays sound common sensc and t:Lat far fron abolishing ths husband's right of rccovcry a similar right shmld be confsrred on the xife vhen she is mongfully dcprivcd of her liusbm2's assistancc md society, As husbands vho brinc hone the pay packet and hclF ;.rith the nashing-up Tie should be th~last tG Ccny that this enhanccs our value; bit BC should net lilcc to think that this roprcsGnts our only vahs. On thc Other had ado3tion of this soluticn r;ould certainly hzve ths noi5ts of sin;>licity, avoiding QS it aould the incvitablc coqlications vrhich vrould arise if my of Solutions 3-5 ncrc adopted. 69. Solution 2 Ths second possibility noulC' again bc to rcstrict recovery in both fatcl md non-fatal cases tc pscuniary loss but-to substitute for the personal rqrcscntativas' prcsont right in fatal C~SCS tc rccover d-anages for non-pecuniary loss, c2 rule that th:! tortfezsor shouX pay a fixed sun into thc cstatc of thc 6x~zscd. Tlfiis so1uti.m is brsctl on the suggestion o€ Lord Dcvliri (35) in thc recent casc cf Fqrlor V. Yorkshire Zlxtricitg Board . , There, spcS;iiis of the 6iificultics of asecssing Smagcs for loss c.C c2pictation of life, he said'(36) :- "TO arrive zt a figurz .... is a .mttar fGr cor,li)rcraiso and not for juAicia1 1 Cetzrmination ...a . It'vrould, I think, bc 3. gri.3-t iqxovcncn'c if tha h?zC; of clzmagc q.-mxabolishcc? m2 rcplaccd by L? shtrt Let of Parliancnt fixing a suitable sun which a v;ron$lccr whosd zct has cmscc? SLcath should pay int6 I ths cstate of the Scc~ased." L Thc cffcct of this aoul6 bc that those nho succm?~d-to thc dr,ceasd's Zststz VJOU~~ m bc ~pcnlyCcmpisatcC for %lie non-;:ccuni>iy loss which they suffsrd un~'-ir t heals (v) md (vi). 3y proviCing t'nat pzyment shoulC bs r?dc to thc cstatc inst2,ad of to indivicual ncr~~~rsOS thbz fmily (as un2cr sclutions 3, 4 an<- 5) tbc practical Cifficultics Gf sGttling acticns, aspxially vh>yz infants vcr3 involvd, nml6 bc avoided. Gn'thc. other hand thz Pixcd suz night not in fact enure fcr the bcncfit of those rxxbcrs of the fclliily t7ho had suffcrcd the not- pccuniaiy loss; tha c?.ccaasoduight have 1cft a -,?illvhich cut out his 7;;ife an?- children or, 03 intcstacy, 3-11nisht g~ to thc iiifo and no,tbing tc thc childrxi. Unless those disinhcrited resorted to prccccc3ngs under thc Inkcrit,mcc (Fmily 35. [I9671 2 'J.L.3. 1-1-14, H,L. 36. At p.1128. Still r2orc recently this lras supportcil by Donalclson J. in E Barkcr v. -,Jilloughby [I9681 2 7?L.B. 1138. 47. 37. 38. 39. 40 q\i Solution 4' The fourth possibility nould be to adapt solution 3 so that there vould be,no fixed statutory maxim to thc sun that could be amarcled to rslativos. In othcr nords a rxnber of the faxily who could prcvc +;hat he hcd .suffered non-pecunizry loss vhcther rider hcad (v) or (vi) bccause of teaporary or pazxment logs of thc compny m-d cmfort of tnc nifc, husband, chil6 or parcnt Gr bcccuse of grief, would- bc cntitled to recover whatever dwiagcs the court thought rcasonabl,?. This could be coupled with abclition of the personal raprcsentativcs' right to sue for non-pxuniary loss suffered by thc dcccased.. 72 Solut_lon_5 Tlie final solution nould be to aScpt soh-Lion 4 but to I c?isallovr, as at prcscnt, my soletiwin foi- gricf. In other words, c?arnages under I hoad (v) vroulcl ho rccovcrablc but not thcsc unhr head (vi). 73. At prosent 57c find ourselves unable to express firm or UEUI~~OUS preference for one or othcr of thcse solutions. As wc sec it, the csse for allowing non-pecuniery loss to be rccoverablc nould be a strong one mcrc it nct for objcction (c) in para,65, where thcro arc infant chil2rcn.' On the other hcmA9 those countries which allow claim for solatiun do not appear to have found that infznt claimcats causi3 insupcrablc ?S.fficultios. ?]or do tnoy 'in %&and whorc tlisy have pecuniary claims uncler the Fatal Accidents Act, cml! if, as suggestcl! I, 2 similar procedure nero abptcd in non-fatal cases it is arguable that t'nc difficulties nouli aot b~ unsui%icuntc?t;le. Wc. do not think that in fact thero v;ould be Liuch difficulty if non-pbcuniary loss could. bc talcon into ccnsideraticn vlxn t'nere is also clain for pcuniary loss. 7hat only .. . TJ~rcgard as a grmc: diff'iGdty is the l7ossibility of a claim for non-pecuniary less nlonc. In ovcry casc: wherc a. parcnt is killcc? or injured infant' chilclrei? mist suffer to son:: cxtcnt. Tlw vrrongdoor could never scttle the chin unless the court approvcc? thc scttlcnint on bchalf of the children. 74 8 Thmc am9 as vc see it, thrac Tossible aiisvrcrs to this particular 2roblem.. One is to aGopt sduticn 2 as a rcsult of which thcre mould be no iii2ividual claim but ncrely a paymnt to the estate in the went of death. It has zlrca2y been pcintcd out that this could prohce somewhat ,unfair results. HIoreov,?r it would gem that non-?ccuniary loss would- 52 recoverable in fatal 41. Paras.8O-84. 32, Sce paras.54, 57, GO an< 61. .L 49 is no need to prcscribe the class of relatives who can claim for pecmia,a: a prescription of a class couli! bc totally avoided. But it would give rise to 1 anomalous results, The faily couW suffcr substantial non-pecunia-qr loss rithout any pecunicry loss at all; 'ifhy should the formr loss not be rccovxcble? 4 In sonc cams th2 qucstion vrhathcr Tccuniary or non-pecunizry loss is suffsroc'L nay depmd soldy on nhctnm sozoone is eaployed to stanil in for the inmcdiatc victim or xhethcr the family rally roun?.. The thirl possiblc ansvcr is to prc- scribc a narrow class cf rclativcs cntitlcc! to clain for non-pccuniary loss ai5- to excludc chiUrcn, If that ncrc done clainants night eithcr bc limited to Tarents and sTouses or extcnded to granciparents- or won collaturals or other acult incabers of thc sane houschol6. If non-pxuniary losses arc to bc rccov able on their om the prescription of a class of relatives entitled to clain cannot easily be avoidcd. 75 Having regard to the above considerations mc shall welcome vims on suggest ion, 76 me arc all agreed that if rocovcry of non-pmuniary loss is pernittzcl in any fGrn the chin shoul2 be pcrsonal to the nenbcr of the family concornec? ml shoutd not be mforceablc by his personal reprcsmtatives on his death. Thc opposite result woulC be cven more objzctionable than the ;)resent survival of the victim's own claix for. non-pccuniary loss an2 coulc? result in unjus-tifiz,!> double recovery* (43) . Form of :',etion 77 0 Thcrc are four possible nethozs r:.hzreby recovery by tho faiiily coulC be obtained: (i) By allo7;,7in: the irAur,?<-iatcvictim, or his pcrsonal rexcsmtztivcs ~ to fc7nily conccrncd. f (ii) BY inc?.ivi?-ual claim by cach Incnb~r of thc faiil.y conccmcd; (iv) ~y F- represcntativc actim 5y one nealxr of thc fmily on behalf of hiins2lf ancl 211 cthzrs k-.ving claim. 73. In our vievr ncthcc': (i)is, as already ap2roisriate to rccovery of losscs arising from benefactions to the victim. though GvPn ht-l-c vji' 44. Para.50. 50 qhould fmour us2 by the court of 2- pcsicr to give dircctions or to obtain under- takings. But, in our viev1, this v~oulCnot b? a;JproTriatc in othcr cases. Thcr-. are obvious objcctions to allowing other people's clains, vrhich night be sub- stantial, to dcyni! sntircly on tho initiative of the imacdiate victin, or to leaving restoration of suns recovorocl xttizely to his scnsc cf aoral obligation. Moreover, in thc absence of a dcfinite 1?plobligatior? to hmd. cvcr danagcs rcccvcrcd, personal rzpr2scntetiv:s night be in an cnbarrassing position, ad t'nerc tirculd be a liability to cstata Cuty on the vholo of thz net daigagcs recover& if the in-.ied-iatc victh before handing over tho shares of othcrs. 79. Tlic obvious objzction to aethod (ii) is that thc tortfcasor would hmv. to deal ssparatcly viith cach nznber of thc fanily ;-rith m actud or potential clain and coulc! not bc surc that hc hacl achievoc!. a full and final scttlment unless hc ncgotiato? vrith evqy possiblc! claimant. If actions werc brought it would no 2ou'J-t; bc pcssible to povicle by rulos for the actions by the various clairnants to be consoli2atcG 3ut it would be difficult to precluCc cach partjr fro3 being seprately rcgrescntcd with incrcase6 costs. 80. We are therefore inclincc? to fm(xr a systen of claimlinkage. One nzy of achieving this mu1C lx mctliod (iii)based on thc present practice unaer the Fatal Accidents Act. Under this only one action cm be Sroudit,nornally in thz nme Gf the dcccasd l s personal rcprcscntativcs giving full particulars of the persons for vlicsa Scncfit the action is brcjught (45) (in practice this is ccupled with an acticn by the personal r2;xzsmtativcs to ri'c3vcr danages it0 vdiich the deceased mas Forscnslly entitled) .. If, lio-nvcr, tlicrs is no prsonal repx- . sentativc or if hs does not comznci' an action within six months, all 'or my of thc rclativos cntikld to thc bcnePit of thc Lct nay sue on lsohalf of all clainants (Ar6). If analogous provisions ap~licclin tho casc of non-fatal injury9 only ono action vJculcl be allomd on behalf of all thc 'relatives and nomally this woulc! be brought by the in-xdiatc victin an< bo ccui?lcG with his gcrsonal action. I If, hovever, he did not Sring Lm action on their bclialf vithin 2 reasonablc tin;. my relative ~muldbe entitluG to do so on behalf of hinsclf ,an2 thc others., Ve suggest, howarer, that six months is tzs short an2 that tmlve nonths night 'ua bcttcr. We shall vrclcorne vicvrs on this. 81 We C;o not think that to follar the pattcrn of thc Fatal kcbidsn'cs Acts wculc?. nah scttlcnents of clains unduly Sifficult; Initially tho tcrtfoasos would deal only with the in,cCiato victim and coulc! ?idcc hicl Lm dffcr of a lw?p ern to inclucle the pcrsonal clain of the victin CL tlic clains'of the rclativm. 45. Fatal LcciCcnts IE,ct 1~46~s.2. Ibici, s.3 as awndcc! by FJtal Lccidcnts Act 1864, s.1 and Law Ecfom "* mitation cf Actions, cttc.) Lct 1954, s.3. It would then be up to the victim to consult nith the relatives to deci2.e n@ her the lump SUQ shoulC be accqted and, if so, how it w~sto be ap2ortionc.d among the various claimnts. If infmts were involvecl it nould be necessary to secure the court S approval (47) but this swns unavcieablo if the intcrcsts of ' infants arc to bc properly i3rokcted. And nherd inf,mts vere concerned the court vrould keep control over the amount rccovsrcd until the infmts attaincd full age (48). But sincc the procdurs in this rc3dLTES sirqlified and cliea$cncc'L as 2. result of s.19 of thc ;Ldninistration of Justice Lct 7965 vie do not think that it can ba rcgar6M any longer as uichly cwdxrsone. If thc inxxliatc victin dclayxl in taking procmCings md these mrs institutod 3y another relative, the tortfcasor vroulC!. thcn have to deal with thc lattcr SO far as conccrns'thc relatives' chins, 3ut this is unlikcly to occur often. 82, The principal objection to this solution is that a systcnrrhich morlcs vhsn one already has fic?uci,arics (the ?axonal rcpresontativex) , night not work in non-fatal C~SCSwhere the imxcdiate victim, not previously in a fi?.uciary position, ~iou1Cfins himself conducting negotiations and actions on behalf of othms as nell as liixsclf. This night nct be acceptablc to him or to those others. The fact that the imiecliate victirr! night object prcsmts no insupcrablc Gifficulty, for as ne havc suzpstc?, hc should be unclcr no conpulsion to pursue the other's claim and if hc dict not another rclative should 5e entitled to do so, It may 5c objcctd that them might tlicn be disagreement on the choice of rclat ive ('I9).Homvcr no choice sr)c!-ns to be requisite. UndGr the Fatal ,':cci&nts Act IS64 on default 5y the pxsonal re2rcscntativcs the? action can bc t Srought "by or in the rime or naxs of all or any of the persons (if more thax mc for whose benefit such acticn woulcl havc Isem brought" if Brought by the personal rsprcsentativc. Hence all clairnmts could be joint plaintiffs if thoy wished, ,m?., as we unGerstanC it, if one started ?roccec?ings thc others could api3ly to be joined. ii similar rule could ap2ly whencver thc imcciiatc victin did not bring tlic xtion, and, pxhqs, should allply cvm if h2 did. 83. Finally, mcthoc? (iv) wou12 bc to troat the relativcs' claim as suita3lc for t?. rcimcsentativc sction unCm B.S.C. 0.15, r.12, This 2oes r.ot aTpear to have any obvious a2vantagecs over nethod (iii)and to dfor fron tha 47. R.S.C. 0.80, rr.11 &, 12. See 3ictz v. Lmnig Chemical Ltd., [1967]'3 V.L.R. 165, .H.L. 48. IbiC, ~13, 49. This'does not seex to hav? causcL any difficulty in cases unGer th2 Fatat iLccidca-ts Act, 5ut thcrc suit othomisc than by the personal. reprcsmtativos is a rare occurrence since the :iersonal rc>rcscntativcs are--cT&rly under 3 i"uty to yursue the clairn on bzhalf of. tho cstate an$, in pacticc, equally ragard thenselves as under an obligation to prsue the clains un6cr the Fatal ,kci 84 Accordingly, our inclination is to favour rnethod (iii) but we shall welcome views on this. Effect of contributory negligence 85 As in claims under the Fatal Accidents Act(50), if the immediate victim was guilty of contributory negligence the claims of the relations should be reduced proportionately. As already pointed the Law Reform Committee considered that this should apply throughout. Although we have suggested that a different view should be adopted where the sole question is how the damages recoverable by the immediate victim should be divided betwcen him and a bencfa~tor(~~',this does not apply in the present context since the damagss recoverable by the relatives incrcase the total damages recoverable from the tortfeasor. Clearly the same rule should apply whether or not the injury to the iramediate victim is fatal and it seems clear to us that tha rule laid down in the Fatal Accidents Act is right; part of the loss flows not from the tort but from tha victim's own negligence and the tortfeasor should not be required to pay for this. Provisional Conclusions %6. Accordingly OUT provisional proposals under these heads zre as follo~jIS~ (a) The husband's action for loss of the wife's socicty and services or of a child's service should be abolished. (b) In the inmediate victim's claim for damages against tlic tortfeasor, papents or other benefits recsivcd by him from relatives or other benefactors should be ignored(53), but the court should have power in appropriate cases to give directions or obtain undertakings rcmrding restoration to the benefactor (pzrzs .4-1 and 50). 50. La17 Refom (Contributory ITcgligence) Act 1745, s.l(4). 51. Para.25, supra. 52. See para. 35, supra. 53. This is probably the position under the present lwz see para.10 and, as regards clains under the Fatal Accidents Acts, Bzirlinson v. Babcock & 3ilcox [I9671 1 B.L.R. 481. 53 (c) .Other pecuniary losscs suffered by members of the family as a res of the injury to the victin should be recoverablc whether or not the injuries are fatal (paras.52-61). (d) Recovery should extend to the reasonable cost of such visits to the victimls hospital cr sick-bed as wre naturally to be expected in thc circunstances (paras. 52-54). (e) Claimants should not be rcstrictcd to a prescribed class of relatives and dependants; anyone who has suffersd pecuniary loss which flowed from or was a reasonable conszquencc of the wrongful injury or death should be entitled to recovcr (paras.53, 54, 57 and 60). (f) Tie hme, as yct, fomcd no concluded view on vihethcr non-pecuniary losses should be rccoverablc and, if so, to what extent and. on what basis (paras .69-75) -. (g) If non-pccuniary loss is to be recovcrablc it Trill be necessary to prescribe thc class of rclativcs 'md dqm-dants entitlcd to claim, unless eithzr (a) non-pccuniary losses arc restricted to fatal cases and arc cornpcnsated by a paynent of a fixed sum to the deceased's estatc or (b) claims arc limited to those who liavc also suffered pscmiary loss, If a class is prcscribcd it should probably cxclude infant children ( para ,74) . (h) If non-pecuniary losses of rolatives and dcperdants are to be reccvixabl on any basis, the iwcdiatc victiri's claim for non-pecuniary loss in fatal cases shculd not survive for the benefit of his estate (paras. 70-72). Nor should the claim of tlic ralative or dependant for non- pecuniary loss survive for the benefit of, his estate (para.76). (j) The best solution to the problem of reducing multiplicity of claims (paras.77-84) night be to apply to non-fzital cases a sMlar proeedure to that under the Fatal Accidents Act whcrcby only one action cm be brought on behalf of all those entitled to claim. This should nomally be brought by the.imcdiate victin but mhcre he delayed unreasonably any or all claimaxts should be entitlcd to institute one action on behalf cf all thosc entitled (paras. 80-82). (k) The inriediztc victim's contributory negligence should reduce the mount recoverable. (pars, 85) 87 T As will be sccn, these proposals retain the basic concepts of "roplenishnent of the family pool'! and ''claim linkage!' which we put fomard in our earlier and linitcd round of consultation, But they attempt to meet thc objections vhich werz ma&c to these proposals, and in particular the obJections that the rang2 of relatives to be protcctcd was t9o narrowly.defined and that it vras ynsatisfactory to deny then any lc-1 entitlement. We also thinls that 54. ' cdr nen sugzestions mould haw the dcsirable consqucnce of rmoving uiv~~r. .. the present arbitrary distinctions betc;can fatal and- non-fatal injurics. Tc would emThasize, howevcr, %hat our via;s c?rc rncrcly provisional md, in some cases unfomsd9 and that 'ocforo coning to a final conclusion YE invite viei-?s on thcl qucstions raiscd in thc forcgoing pnragx%phs vhich can be smnarised a:, follows (1) If a husband's right to dsiqagcs for loss of his *i?ifS's society and services or loss of a child's scrvico is to bo abolishcd, is it If sc:- acccptcd that.. a ncn rcnedy sust take its pl~zc??(paras.46-48). (2) Is it accepted that in so far as rclativzs have nade paymnts or con- ferred bcn,f its nhich mitigate the dmagc: of the ir-mediato victir-1, such payicnts or Scncfits sheuld cofitinue to be disrcgzrded in asscssing his d,magc?s and that the victim should not be undcr any legcl oblipption to rcstoro to thc ralativos unless the court cthcmise directs? (para. 50). (3} As regards othm losscs incurred by nembcrs of thg family is it accc-ptzd that pecuniary losses of the classes rcfcrrcd to in para,49( ii)-(iv) should be rccovcrable? (paras. 52-61). (4) As rcbwd.s these pecuniary losscs is it acczptcd that claimants (in cithcr fetal or non-fatil cases) shculd. not be restricted to a dcfinitcly przscribed class? (paras. 53, 54, 57, 60 and 61 1. (5) As regads non-pccunizry losscs vhich 01the ipossible solutions set out in paras.68-72 is the bost? (paras.73-75). (6) IS it accaptsd that if non-gccuniary fmily l~sseswere rccoverziblc in fatal cases, Vac d;c,xxccl'.s OVM claim for non-pecuniary loss should: not survive for thc bcncfit of his cstatc-? (parzs.70-72). , (7)' Is it accqted that, if non-pccuniary fmily losses mre rxovzrable, they should nct survivz for the benefit of tlis claimant's estate? ( para. 76) (8) As resrds procc&lrc, is it ecceptod that, of tlic four possible mcthods , set out in yara.77, ncthod (iii),a pncmlised procedure analogous to that at prcsent opcrating under ths Tatal Accidents Act is the best'? (paras.79-84). If so, should the othcr ncnbors of the family be entitled .to apply to be juincd as plaintiffs in an action by the. ixicdiate srictin (par2.82) and after vrhat period of delay by -the . imiediatc victim should they be cntitled to bring proceedings indcpendcntly of hin? ( para. 80) . (9) Should the moults rccovcrablc by the fmily bo reduced proportionatdy . to any ccntributory iic~ligcnccof the inqediatc victim? (para.85). 55 (4) SEDrrCTION 88, We havc no doubt thzt ti?e father's (or othcr master's) right to damages for thc seduction of his mmrri?d infw-t daughtm (cr othcr fcmle servant) should be abolishzd(54) and not rcplaccd by any other cause of action vcstcd in hin. This does not mcan that v~earc satisfied nith the present affiliation lavJ and yroccdure cnabling the umarricd :Jotha to recover mafntcnac from thc putativc fathcr. Cn th? contrary, BC. are convinced, as TJ~have already ir~dicqted(~~),that a thoroughgoing revian of this branch of the law is needed and sone steps in that dircction are alroaliy bcing taken. But the retention of any right of action by ths father or =other of the girl cppears to us to be indcfensiblc (56) . ) ZNTIC2:ENT OR HiUBOURIfiTG OF S3VXqTS 89 As alraedy pcintcd out (57) this ty2e of action is, for all prmtical yurposcs, extinct. In nodern tiixs its place has Secn takcii by the actions for inducing a breach of contract (58) or for conspiracy or intiniaation(59) and tlicsc adcquatcly' provide such rezcdy as is No one has suggested that thno is any valid reason why this zlspcct of thc action for loss of scrvices shouid not rcceive its quietus a.nG BC 5.3 recorru;md. 54. Already legal aid is clcnicd in t'nis typc of action: Legal Bit: and i'dvicc Act 1949, 1st. Sch. Part 11, I(c). 55. Sec 07.n Published '?orking Paycr tio.12 on Prool: of Paternity and our Second ihnual. Beport (Law Con. Bc.12) pra.80. 56. 3e are unable to shara thc opinion expressed by the Council of the La:;r Society that thcsc vicvrs "cut at ths vzry root of faaily stability and that it is necessary to rctain SOSO right of action in respect-of seduction in ordcr to express the ;Tublic disapprobation of such conduct. To rsnove all s~xlirights is to opcn tho door tG any man i7ho night othcrrrise be detcrrcd fror.1 innoral conduct 3y the Ifnowledge of the risk he might be running if such a right existed". The Council do not disputa that an action vested in tha father in the evcnt of his daughter's pregmxtlcjr has proved an ineffective sanction apiiist pc-marital intercourss. 58. 1.3. the rule in Lurilcg V. (1853) 2 E & E,.216. 59. Roolccs V. Buncrd [I7641 A.C. 1129, I-I.L.; StratforSi v. Lindley cl9651 L.C. 269, 3.L. and sce Track Disputes Act 1965. 60. They wmld not ncccssarily cover the harbouring of a sorvant lcnom~to have broken his contract, but such an action nil1 fail if the eriyloyec nould not in my event have .rcturncd to his employer: Jones Bros. (Hunstcmton) Ltd. v. Stcvsns cl9551 1 Q.B. 275. Hcnco this rosidual . aspect of thc action is velueless, for "it is hard to see how a plaintiff could- ever rcbut this, espscially in a state of full enploynent". Salnond: Torts (14th €23.) p.501n. ) EN’I’ICDABTT OF SPOUSE OR ITJFAI”T DAUGHTER 90 Bticenent of an infant daughter should obviously stand or fall vit’nin the analogous action for scduction md we hzvd no hcsitation in rccomending that it should fall. It harLly seem to have my independent life. However, enticencnt of a spousc has; though actions are infrcqucnt they do occur. 3s already pointod out (61) they are closely rclatcd to clains for damages for adultcry - the old action for crininal conversation nov superseded by a statutory rcne(ly(62). W’c dealt nith this, an6 incidontally with the action for enticamnt , in our Vor’:ing Paper on Financial Belief in Natrinonial Causes (63) where ne cxprcsscd a prcforoncc for 9-bolishing both actions (64) . 91 Comnents so far recciwd on our provisional poposals in that Working Paper suggest that public opinion rioulrl favour the abolition of the action for enticement and of any claim for da~iag~sfor adultary not coupled with a petiticr, for divorce or judicial separation, but that there would be objection to a total a3olition of clains for &,amages for adultery. Public opinion, it is said, mill dcamd that daraagcs be recovcsable in divorce procceclings fron th2 vicalthy sduccr of ;?, poor am’s wife. 92 Our prcferzncc is still for total abolition of both actions, but NC are awaiting furthcr views on thc proposed abolition of daaagzs for adultery. In the nemtine we h~vsno hesitation in proposing thc total abolition of thc action for enticement. 61. Sugra, para.7(6). 62. irovr Matrimonial Causes bt lS6!j9 s.41. 63. Published Vorlring Papcr No. 9, paras. 128-1 42. 64. bt para.442. 57