Damages—Personal Injuries—Loss of earning capacity—Loss of expectation of life—Loss of amenities during reduced life span—Pain and suffering—Plaintiff rendered permanently unconscious by injuries—Basis of assessment. Precedent—Decisions of House of Lords—Applicability—High Court—Other Australian courts.
Decisions
1966, March 7. The following written judgments were delivered:- KITTO J. I have had the advantage of reading the judgment prepared by my brother Taylor. The facts of the case are there sufficiently stated, and I may say at once that I share his Honour's reasons for thinking that the judgment of the Supreme Court should be varied in regard to the amount allowed for the plaintiff's economic loss. What I have to say will relate to the challenge that has been made to the trial Judge's allowance of 1,500 pounds under the head of general damages. He allowed nothing for pain and suffering, either physical or mental; and in this he was plaintly right, for the plaintiff was rendered unconscious by the collision, had remained unconscious ever since, and, as his Honour found, would never regain consciousness. (at p96)
2. There are only two forms of loss for which the 1,500 pounds could have been intended as compensation, namely those which are often described, conveniently if not very happily, as a loss of expectation of life and a loss of amenity during the reduced life span. Each is a matter properly to be taken into account in assessing damages, but judicial opinion as to the way in which the task of allowing for them should be approached has not been unanimous. Obviously each may have a subjective as well as an objective aspect: the plaintiff may not only have sustained the loss itself but may also have to bear a sense of his loss. But the differences of opinion which are to be found in the judgments, in England at least, are not as to whether the objective aspect is to be concentrated upon to the exclusion of the subjective; it is simply as to the manner in which each is to be separately allowed for. Indeed in Flint v. Lovell (1935) 1 KB 354 the question which the Court of Appeal had to decide was whether the loss of expectation of life, considered objectively, might properly be allowed for at all, no one doubting that allowance had to be made for the suffering caused by the knowledge that death had been brought closer. The Court decided that loss of expectation of life, as an objective fact, was a proper head of damages, and assessing tribunals were then faced with a problem that was different in kind from the ordinary run: it is hard enough to fix compensation in money for injuries complained of by living persons; hard enough, for example, to fix an appropriate amount for pain and suffering, including the distress that arises from the knowledge that life has been shortened; but…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Skelton v Collins [1966] HCA 14
Case
[1966] HCA 14
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal in *Skelton v Collins*. The case concerned a claim for damages for personal injuries sustained by the plaintiff, Mr. Skelton, who was a passenger in a motor vehicle driven by the defendant, Mr. Collins. Mr. Skelton suffered a fractured skull and a fractured femur in the accident. The central dispute revolved around the plaintiff's entitlement to recover damages for the loss of earning capacity, specifically in relation to his future inability to perform certain types of work due to his injuries.
The primary legal issue before the High Court was whether the plaintiff was entitled to recover damages for the loss of his *earning capacity* as distinct from the loss of *actual earnings*. The court was required to determine the correct approach to assessing damages for future economic loss, particularly where the plaintiff's injuries might prevent him from engaging in certain types of employment, even if he could still earn income in other capacities. This involved considering the nature of earning capacity and how it should be valued in monetary terms.
The High Court, in a majority decision, held that damages for loss of earning capacity are not awarded for the loss of the *opportunity* to earn money, but rather for the loss of the *capacity* to earn money. The court reasoned that earning capacity is a capital asset, and its loss should be compensated by a capital sum. This capital sum is to be calculated by assessing the difference between the plaintiff's earning capacity before the injury and his earning capacity after the injury, and then discounting that difference to its present value. The court clarified that the plaintiff's ability to earn income in alternative employment, even if at a lower rate, is a factor to be considered in assessing the extent of the loss of earning capacity, rather than a complete bar to recovery. The court affirmed that the assessment should focus on the plaintiff's ability to perform work generally, not just specific jobs.