Cookson v Knowles

Die Mercurii 24° Maii 1978

Parliamentary Archives,
HL/PO/JU/4/3/1325

HOUSE OF LORDS

COOKSON (WIDOW)

(Original Appellant and Cross Respondent)

v.

KNOWLES

(Original Respondent and Cross Appellant)
et & contra

Lord Diplock
Viscount Dilhorn
Lord Salmon
Lord Fraser of Tullybelton
Lord Scarman

Lord Diplock

my lords,

In the instant case the Court of Appeal, speaking through Lord
Denning M.R., has laid down guide lines for the assistance of judges upon
whom there falls the task of assessing damages in cases brought under the
Fatal Accidents Act 1976. These complement some earlier guide lines
for the assessment of damages in personal injury cases which had been laid
down by the Court of Appeal in Jefford v. Gee [1970] 2 QB 130. The trial
in Jefford v. Gee had taken place at a time when the relevant statutory
provision empowering courts to award interest on damages was section 3 of
the Law Reform (Miscellaneous Provisions) Act 1934. By the time the
appeal was heard that section had been amended by section 22 of the
Administration of Justice Act 1969.

As was correctly stated by Lord Denning M.R. in Jefford v. Gee, the
effect of the amendment was not to alter the principles which the court should
apply when awarding interest on damages in cases where it decided to do so.
What the amendment did was to oblige the court to award interest in all
actions for personal injuries or fatal accidents unless it was satisfied that there
were special reasons why no interest should be given.

The section as amended gives to the judge several options as to the way
in which he may assess the interest element to be included in the sum awarded
by the judgment. He may include interest on the whole of the damages or
on a part of them only as he thinks appropriate. He may award it for the
whole or any part of the period between the date when the cause of action
arose and the date of judgment and he may award it at different rates for
different parts of the period chosen.

The section gives no guidance as to the way in which the judge should
exercise his choice between the various options open to him. This is
all left to his discretion; but like all discretions vested in judges by statute
or at common law, it must be exercised judicially or, in the Scots phrase
used by Lord Emslie in Smith v. Middleton 1972 S.C. 30, in a selective and
discriminating manner, not arbitrarily or idiosyncratically—for otherwise
the rights of parties to litigation would become dependent upon judicial
whim.

It is therefore appropriate for an appellate court to lay down guide lines
as to what matters it is proper for the judge to take into account in deciding
how to exercise the discretion confided to him by the statute. In exercising
this appellate function, the court is not expounding a rule of law from
which a judge is precluded from departing where special…