Damages for Wrongful Death: Has Lord Campbell's Act Outlived its Usefulness?

DAMAGES FOR WRONGFUL DEATH: HAS LORD CAMPBELL’S ACT OUTLIVED ITS

USEFULNESS?

A SERIES of recent English cases has raised, in an acute form, the problem of the, relationship of the two theories underlying liability for wrongful death: loss to the survivors, and loss to the estate. It has generally been assumed that loss to the survivors is the preferable theory. The object of this paper is to explore the alternative theory. It will be suggested that there are substantial advantages to the rkgime where only the estate can recover for wrongful death, and survivors’ claims are against the estate, not against the wrongdoer.

This suggestion is not original. It was made in 1846 during the Parliamentary debate’ on Lord Campbell’s Act by Sir Frederick Thesiger, later Baron Chelmsford L.C. The suggestion was again put forward, though without enthusiasm, in 1981, in Gammell v. Wilson,* discussed below.

Before 1846 a tortfeasor could not be made to pay damages for wrongfully causing a death. Two separate rules supported this result. The first was that personal actions (with some exceptions) did not survive to a deceased plaintiff‘s estate. The second rule (the rule in Baker v. Bolton3) was that a living plaintiff could not sue a living defendant for the death of a third person even where the death caused financial loss.

The origins and logical foundation of the rule in Baker v. Bolton are obscure. The case itself was a Nisi Prim decision involving a husband’s claim for his wife’s death in a coach accident. Lord Ellenborough is reported as saying simply:

“In a civil court, the death of a human being could not be complained of as an injury; and in this case the damages as to the plaintiffs wife must stop with the period of her existence.”

No reasoning supports the assertion. Lord Ellenborough evidently assumes that it was settled law.

In 1846 Parliament modified the rule in Baker v. Bolton by enacting a statute for the compensation of families of persons wrongfully killed. This is Lord Campbell’s Act, or the Fatal Acci- dents Its effect was to inhibit the development of any common law right to damages for wrongful death.

In the first case to discuss the rule in Baker v. Bolton, Osborne v. Gilleft.’ a father’s action for the death of his daughter. Bramwell B.

I (1846 87 H.C.Deb.. col. 1365. [l%2j A.C. 27 (H.L.) (1808) 1 Camp. 493. See W. S. Malone, “The Genesis of Wrongful Death” (1965) 17

Stan.L.R. 1043. ‘ 9 & 10 Vict. c.93, “An Act for compensating the Families of Persons Killed by Accidents.” See also Fatal Accidents Act 1976, amended by Administration of Justice Act 1982.

(1873) L.R. 8 Ex. 88. 437

438 THE MODERN LAW REVIEW [Vol. 47

put forward very powerful arguments in favour of an action at common law. But his views were rejected by the majority largely on the ground that the preamble to Lord Campbell’s Act stated firmly that “no action is now maintainable against a person who by his wrongful act, neglect or default may have caused the death of another person.” It seems probable too that the statutory list of persons entitled to claim and the statutory procedures and limitation period inhibited the court from developing a common law action that would presumably differ from the statute in those matters. The House of Lords confirmed in 1916 that there was no action for wrongful death apart from Lord Campbell’s Act.6

The rule that personal actions did not survive to a deceased plaintiff‘s estate, though subjected to almost universal criticism, lasted, in England, until 1934, when the Law Reform (Miscellaneous Provisions) Act provided that (with certain exceptions) all actions survived to the estate, adding that the rights given by the Act were “in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Fatal Accidents Acts.”’ The courts thus had to deal after 1934 with two separate actions against a wrongdoer for the death of a person, one by the statutory claimants under Lord Campbell’s Act, the other by the deceased person’s estate under the 1934 Act. Often the claimants under Lord Camp- bell’s Act were identical with the beneficiaries of the estate, and in those cases double recovery was avoided by the rule that in calculating a claimant’s loss under Lord Campbell’s Act credit had to be given for benefits received from the estate.8 Where the claimants and beneficiaries were different, no serious problem of overlap arose . because it was held by the Court of Appeal in 1961 in Oliver v. Ashman’ that an injured plaintiff suing on his own behalf, whose life was shortened by the defendant’s tort, could not recover income lost during the period of the shortening of his life. Thus if a person’s working life were reduced from 40 years to two years, he could not recover lost income in respect of the 38 “lost years.” It followed that if he were killed instantly (i.e. his life expectancy were reduced to nil) no action for lost earnings would survive to the estate. The only action was assumed to be under Lord Campbell’s Act if there were eligible claimants.

The rule in Oliver v. Ashman has a certain logical attraction. Many would say instinctively that a person cannot be said to suffer a financial loss during a period when he will not be alive to enjoy the use of any compensation that might be awarded for lost earnings. However. this view would lead also to the denial of recovery in the

~~

Admiralty Commissioners v. S. S. Amerika [I9171 A.C. 38. 24 & 25 Geo. 5, c.41, ss.l(l), l(5). Ontario had acted as early as 1886. See Statute

Amendment Act 49 Vic. c.16, s.23, amending the Trustees and Executors Act R.S.O. 1877, c.107, ss.8, 9.

* Davies v. Powell Duffryn Associared Collieries Ltd. [1942] A.C. 601. See now Admin- istration of Justice Act, 1982, s.3(1). amending s.4 of the Fatal Accidents Act 1Y76.

(19621 2 Q.B. 210.

July 19841 DAMAGES FOR WRONGFUL DEATH 439

case of a plaintiff rendered permanently unconscious for of him also it can be said that he will not be able to enjoy the use of compensation." A more serious difficulty with Oliver v. Ashman is that it gives rise to a potential injustice when an injured person's life is shortened so that he lives just long enough to recover judgment or to settle in his own right. The plaintiff with a 40-year life expectancy tortiously reduced to two years will recover nothing in respect of the 38 lost years' earning capacity. Assuming the prediction of post- accident life expectancy is accurate, and he dies two years after the accident, he will leave his estate without any money representing the lost earning capacity. If he has dependants they will receive nothing in this respect either from the estate or under Lord Camp- bell's Act, because the action under that Act is precluded by satisfaction of the deceased's claim in his'lifetime. This seems very harsh and highly anomalous. The dependants would have been much better off if the deceased had been killed instantly, in which case they would have benefitted from an action under Lord Campbell's Act.

One possible approach to this problem might be to permit an action by the dependants for lost earning capacity despite settlement or judgment in the deceased's lifetime. This would raise difficult procedural problems and in Pickett v. British Railway Engineering Limited" the House of Lords assumed that this route was unavail- able. Consequently the House took the alternative route, overruling Oliver v. Ashman and allowing an award of damages for lost future earning capacity. The injured person had actually died by the time the case reached the House of Lords, so the result of the decision was to increase very considerably the size of the estate that Mr. Pickett's widow inherited. The legal reason for the result was that an injured plaintiff whose earning capacity is reduced by shortening of life suffers a present immediate capital loss that he is entitled to recover in his own right.I2 The real social and policy reason for the result was very plainly the sense of injustice at the prospect of Mr. Pickett's widow receiving no compensation under either statute for her husband's lost earning capacity.

The law was thus established that a person whose life was tortiously shortened was entitled to recover for lost earning capacity on the basis of his pre-accident life expectancy. It was only a matter of time-as it turned out a very short time-before the question arose whether the injured person's estate succeeded to the benefit of this claim if the person died before judgment, or before instituting action, or if he were killed instantly. The House of Lords in Pickett was aware of some of the probable difficulties ahead, but so plainly

I" This view was favoured by Lord Denning M.R. in Lirn Poh Choo v. Carnden and Islington Area Heolth Authority [I9791 Q.B. 196, but rejected by the House of Lords [I9801 A.C. 174.

I' (19801 A.C. 136. '* See per Lord Wilberforcc at p.149. The same view had been earlier adopted in Canada. See H. v. Jennings I19661 S.C.R. 532.


did justice seem to require some way of securing compensation for Mr. Pickett’s widow that the House of Lords stated almost in so many words that it was willing to face any difficulties that should arise.”

Cases of immediate death were not long in arising. In Kandalla v. Brifish European Airways14 it was held that a claim for lost earning capacity survived to the estate of persons killed in an aircraft crash. In Gammell v. Wilson” the case arose of the immediate death of a 22-year old man, unmarried, without dependants, with good earning prospects. The House of Lords consolidated the case with another similar case to consider the relationship between the two statutes. It was held that an action for lost future earning capacity vested in the deceased at the instant of his death, and that under the 1934 Act the benefit of the action passed to the estate. This decision had several far-reaching consequences. First, where (as is usual) the same persons are the beneficiaries of the estate and entitled to claim under Lord Campbell’s Act, recovery under the Act was effectively superseded, for the estate’s recovery of the lost earning capacity will always equal or exceed the value of the lost dependency. A second consequence is that a tortfeasor who caused the death of an unmarried wage earner had to pay much larger damages than was formerly thought to be exigible, for the value of the lost earning capacity was recoverable by the estate. Thirdly, if it should happen that the estate beneficiaries and the Lord Campbell’s Act claimants were different persons there arose a real prospect of the defendant being made to pay twice over for the loss of the deceased’s earning capacity.

Lord Scarman made the following comments on these features of the law:

“M Lords, there is some disquiet expressed by judges and un cy erstandably felt by insurers about two aspects of the law- the ‘double recovery’ now possible in some cases, and the very great discrepancy which can arise, as happened in [one of the cases in issue], between the damages recoverable by the estate for the lost years and the damages recoverable by the de en-

may be a mischief certainly a law which allows the discrepancy to arise, wears the appearance of anomaly and is unlikely to be understood or acceptable.

The logical, but social1 unattractive way of reforming the law

actio personalis moritur cum persona has itself belately perished. This would leave recovery to the estate; and..the dependants would look, as in a family where the breadwinner is not tortiously killed, to him (or her) for their support durin life

Inheritance (Family Provision) Act 1975. But the protection of the Fatal Accidents legislation has been with us for so long, that

dants under the Fatal Accidents Act. Each of these possibi P ities

would be to repeal the 8 atal Accidents Act, now that the rule

and on death. They would have the final safeguard o f the

l3 See per Lord Wilberforce at p.150; Lord Scarman at pp.170-171. I‘ (19811 Q.B. 158. I5 Supra, note 2.


I doubt whether its repeal would be welcomed. If, therefore, the law is anomalous (and it certainly bears hardly on insurers and ultimately the premium paying public), the way forward would appear to be that adopted by Parliament for Scotland. The Dama es (Scotland) Act 1976 a pears to work well: and

Personal Injury 1978 . . . recommends its adoption in English law. The denial of damages to the estate, but not to a living plaintiff, is’the denial of a right vested in the estate: but social and financial circumstances, as well as the legal situation of which the Fatal Accidents Act is now an integral part, sygEests that, though illogical, this is the reform which is needed.

These remarks are a little puzzling. The comments in the first paragraph reflect a fear that recovery by the estate may lead to overcompensation. Yet the phrases “socially unattractive” and “protection that has been with us for so long” seem to reflect a fear of under compensation. It will be suggested in the following discussion that neither objection is conclusive.

The principal effect of repealing Lord Campbell’s Act would be that the courts would have to deal only with one kind of action for wrongful death and only one kind of action for lost earning capacity. The principles applicable and the damages payable would be the same whether the injured person was disabled or killed outright, and whether or not he had dependants. Some force would be removed from the old taunt that tort law makes it cheaper to kill than to maim. Destruction of a person’s earning capacity would always lead to damages calculated according to a single scheme.

Some might argue that this is not a desirable result. It is cheaper to kill than to maim, it may be argued, for the good reason that the two kinds of injuries cause different losses to different persons. There is no justification, it might be added, for enriching an estate where the beneficiaries are not dependant on the deceased. Lord Scarman indeed suggests as much, when he points to the discrepancy between damages recoverable by the estate and by the dependants. The implication is that the estate gathers a windfall. But, in reply, it can be said that this kind of windfall is an inevitable consequence of the 1934 legislation. Once the old rule is abandoned and it is accepted that a personal action survives it inevitably follows that a deceased’s estate will receive what some might describe as a windfall. Indeed the real cause of the enrichment is not even the 1934 Act, but the very concept of inheritance of wealth. Suppose that a living plaintiff whose life is shortened to one year lives to recover judgment or to settle his claim, and is paid in full for his lost earning capacity; it can hardly be doubted that on his death his estate inherits the whole of his wealth even if there are no dependants eligible to claim under Lord Campbell’s Act. If the injured person dies before recovering judgment, or before instituting the action, the 1934 Act simply provides that the benefit of the claim survives to the estate.

the Royal E ommission on Civil Liabi P ity and Compensation for

l6 Id. at pp.267-268.


The enrichment of the estate is due to the personal entitlement in the deceased before death to recover damages together with the statutory rule of survival. The point has no necessary connection with shortening of life or wrongful death. The same enrichment enures to the estate if an injured person, totally disabled, his life not being shortened by the defendant’s tort, recovers judgment in full for his lost earning capacity, and is then killed by an extraneous cause. l7 The compensation for the lost earning capacity will enrich the estate, some might say unjustly if the beneficiaries are not dependants. But if this result is to be challenged it must be on the ground of objection to the lump sum system of accident compensation or to the general principle of inheritance of wealth.

Where it is provided by legislation, as it is in some jurisdictions,I8 including, now, England,Ig that the claim of an injured person for lost earning capacity shall not survive to his estate, new anomalies are created. An injured person who lives just long enough to recover a judgment will leave a substantial sum to his estate; if he dies just before judgment, the estate will recover nothing for lost earning capacity. Some might say that it is the lump sum system of accident compensation that leads to the undesirable result of enriching survivors where an injured person recovers damages and then unexpectedly dies; perhaps (they will say) we have to live with that anomaly, but why tolerate its extension to the case where the injured person dies before judgment?

This is the sort of dilemma that very commonly faces courts, commentators and legislators considering the desirability of changes in the law. Is it better to extend an anomaly to its logical limits, or to restrict the anomaly, even at the expense of logic? The answer depends on the preferences of the observer. If he sees the anomaly as intolerable he will favour its restriction at all costs, for he would rather accept illogical distinctions than see the anomaly extended. If on the other hand the observer is fairly tolerant of the anomaly, as I am of the lump sum system of compensation and of inheritance of wealth, he will tend to regard the sacrifice of logic as a greater evil than the extension of the anomaly. So I would prefer the conclusion that the estate of an injured person who then dies should have the same rights whether death occurs just before or just after judgment.

The opposite objection to repealing Lord Campbell’s Act is that it may undercompensate the dependants. One can suppose three situations: the injured person dies intestate; he leaves his property away from his dependants by will; he dies insolvent and creditors

The same point could be made in relation to death from an extraneous cause before judgment, if the extraneous cause were one for which a third person could be made liable. An extraneous cause (such as death from natural causes) for which no one was responsible would lead to an elimination of damages for the lost future earning capacity because this would be seen not to have been caused by the defendant’s wrong. See Baker v. Willoughby [1970] A.C. 467, Jobling v. Associared Dairies Lfd. [1982] A.C. 794 (H.L.).

I* Damages (Scotland) Act 1976 (c.13), s.2(3)(b), Estate Administration Act R.S.B.C. 1979 (c.114), s.66(2)(c).

l9 Administration of Justice Act 1982, s.4.


claim the assets of the estate. Also there might be estate tax problems.

In the case of intestacy, legislation provides for the division of the assets of the estate among relatives. The relatives named in the legislation governing intestate succession may not be identical to those entitled to claim under Lord Campbell’s Act, but both lists always include the spouse, children and parents. The result of claims against the estate will often be similar to claims under Lord Camp- bell’s Act, though not always indentical. A spouse’s share of assets under intestate succession legislation might be more or less than the pecuniary 105s that would be established in an action under Lord Campbell’s Act. The question, however, is not whether the results would be identical under the legislation now current in any particular jurisdiction, but whether there is any good reason in principle for making a distinction between shares of a deceased’s assets on intestacy and shares in a claim for lost earning capacity caused by wrongful death. It is difficult to see a reason for a distinction. In both cases the legislature directs its mind to the proper treatment of dependants from whom an expected source of continuing support ha5 been removed. In both cases a fixed sum has to be divided among the claimants. It may be argued that Lord Campbell’s Act has the advantage over succession legislation of greater flexibility- each claimant in theory recovers his own actual loss. But if there is a good case for flexibility in that context, the logical conclusion would seem to be to introduce flexibility into the process of intestate succession so as to permit claimants to demonstrate their actual pecuniary loss.2o Thus there is in English law a greater flexibility in claims against an estate than in claims under Lord Campbell’s Act, because the dependants entitled to claim on intestacy are not limited to immediate relatives as under Lord Campbell’s Act.” In short, there seems to be no reason why the law of intestate succession should not accommodate the interests of dependants just as well as separate fatal accidents legislation.

Secondly, there is the case of the deceased leaving his property away from his dependants by will. This case also can be met by the use of dependant’s relief legislation such as, in England, the Inheri- tance (Family Provisions) Act 1975 .22 Such legislation would not assist in every case where claimants might succeed under the existing Fatal Accidents Act. For example, a claimant who has independent wealth might fail in an attempt to set aside a will, while being entitled to succeed under Lord Campbell’s Act, pecuniary loss, not “dependency” being the requirement for success under the latter Act. This will be a rate result because if the deceased were so ill disposed towards his relatives as to omit them from his will, they will be unlikely to succeed in showing a pecuniary loss caused by the

See Ontario Succession Law Reform Act S.O. 1977 (c.40), s.65(1). Inheritance (Provisions for Family and Dependants) Act 1975 (c.63), s.l(l)(e). Ibid. s.2(1).


death. A case can be supposed, however, where the deceased has made adequate provision for his dependants by inter vivos settle- ments. In such a case there might be no ground for attacking the will, but still a loss caused by the death. However, the desirable solution in such a case is not obvious. If the deceased has left his money away from his relatives by a will that is immune from attack under dependants’ relief legislation, public policy presumably per- mits the deceased so to dispose of his property. It does not seem obvious that it is desirable to permit the (lawfully) disinherited relatives to secure the value of the deceased’s lost earning capacity by an action under Lord Campbell’s Act.

The third case is that of insolvency of the deceased’s estate. A prominent characteristic of a Lord Campbell’s Act action is that the claimants are not affected by the claims of the deceased’s creditors. There is a natural tendency to suppose that dependants are always more deserving than creditors, but one can easily construct cases that throw doubt on the supposition as, for example, where the Lord Campbell’s Act claimants have themselves induced the advance of credit to the deceased and benefitted directly from it. It is possible too that the creditors might include a needy former spouse. Under the present law claimants under Lord Campbell’s Act may be financially benefitted by the deceased’s death. His future earning capacity against which he had obtained credit, is in effect capitalised and made over to the claimants free of the creditor’s claims. One approach might be, therefore, to conclude that dependants do not deserve a priority over creditors. Against this argument it must be recognised that in the case of a living debtor some protection is available to dependants through exemption from seizure of assets and income and through the possibility of discharge of debts by bankruptcy. In answer to this it might be said that the dependants could not have expected more than subsistence support from an insolvent earner and that in the modern welfare state there is no hardship in leaving the dependants to claim against the state, the creditors having a prior claim to the assets of the deceased. But the basic question is not whether dependants are too generously treated at present vis-2-vis creditors, but rather whether the appropriate balance between these potentially worthy and competing claims could not be established under a rkgime where the estate only could recover for lost earning capacity. If there is a case for preferring dependants to creditors of an estate could not the case by made where there is no Lord Campbell’s Act claim at all? Let us suppose that an injured person who is totally disabled by the defendant’s tort recovers full compensation before his death for loss of life-time earning capacity. He then dies insolvent. Under present law the creditors will come in ahead of dependants however needy and deserving the claims of the latter. The same result ensues if the deceased is totally disabled by the defendant and then killed by


another person.= No action under Lord Campbell’s Act is available in such circumstances against the defendant. In other words, if there is a case for giving dependants a preference over creditors of an estate the preference should apply more widely than in cases where a Lord Campbell’s Act action happens to be available. The preferred position that current law gives to Lord Campbell’s Act claimants may be defensible but not its current restricted scope. If Lord Campbell’s Act were repealed, therefore, general legislation could be introduced, if thought to be in the public interest, to provide that where an estate included assets representing compensation for lost earning capacity of the deceased, the class of persons named in the dependants’ relief legislation should be entitled to priority over the creditors to the extent of those assets.

Another possible disadvantage to claimants is that, if claims were made against the estate, a capital transfer tax or other estate tax might become payable. The desirable solution to this problem depends on debatable questions of tax policy, but the general question ought not to be determined by particular tax provisions. If the only objection to the proposals made here were on the ground of inheritance tax, the taxing statute could be amended to provide an exemption for inheritance representing lost earning capacity.

These preliminary objections, it is suggested, are not conclusive against the desirability of the disappearance of Lord Campbell’s Act. Simplification of the law has been already suggested as one benefit of such disappearance. There would be one principal action and one kind of calculation only necessary to determine tortious liability for lost earning capacity.

I turn now to the incidental benefits that would accompany the repeal of Lord Campbell’s Act. The first of these relates to the awkward problem now faced by the courts of double recovery, or more strictly, of the defendant’s having to pay twice over for the loss of earning capacity. Where, as is usual, the claimants under Lord Campbell’s Act are also beneficiaries under the estate, benefits received or expected from the estate went to reduce the claim.24 This had after Gammell v. Wilson the effect of eliminating the Lord Campbell’s Act claim in most cases. But if the estate were insolvent or if the deceased had a will that left his property away from his relatives and was immune from attack under dependants’ relief legislation, there arose a real possibility of the defendant being compelled to ay twice. Several approaches have been suggested to

It is very difficult to avoid the duplication by ordinary principles of statutory construction. One solution, favoured by Lord Scarman, and implemented in some is to provide by express legislation that damages for lost future earning capacity should not

this overlap. 2 P

See note 17, supra. l4 See note 8, supra. 2( See Fleming, Law of Torts (5th ed., 1977). p.661. 26 See notes 18 and 19 supra.


ciirninish a wrongdoer’s liability; everything Is made t s bum on whether death occurs before or after judgment. Moreover legislation in that simple form leaves dependants witlamt any compensation from any source where a person is disabled by one wrongdoer and then killed by another. The first wrongdoer would not be liable under Lord Campbell’s Act, for he would not have caused the death. The second wrongdoer would not be liable either, for he would not have caused the 105s of earning capacity.” The only possible source of compensation is, in this case, through the estate.

A troublesome problem in calculating damages urider Lord Camp- bell’s Act concerns the possibility of the c!almant’s forming future relationships of dependency. The typical cbs3 is remarriage of a widow. The courts have held that remarriage, if i t occurs before adjudication of the claim, is relevant to iedvce or potentially to extinguish the claim,28 and that the prospects af future remarriage are also re le~ant . ’~ This view of the law inviteJ investigation by the defendant and cross-examination by his cowisel to show the proba- biiity of renxxriage and required the judge lo assess the claimant’s marriage prospects. So distasteful was this procedure thought to be that the United Kingdom Parliament eilacted in 1971 th2t neither the actual remarriage nor the prospects of remarriage of a widow shouid be relevant to reduce her claim.30 But the position is still thought by many to be unsatisfactory, first because i t discriminates between widows and widowers and secsnci2y beczus: it appears to demand compensation of a loss that is known to h :e ceased. The Law Commission went so far as to describe the position as leading to “gross ~vercompensation”~’--strong lanpage for the usually moderate Commissioners-but felt unable to Eecomrriend repeal of the 1971 Act on the ground that the matter had recently been debased and the result presumably represented Parliament’s current view of desirable policy. The Pearson Cornmission described the result of the 1971 Act as a “manifest absurdity” but found itself “almost equally divided” on what should be done.32 The Law Commission was actually driven to recommending the extension of the Act to widowrs; althcugh this involved an increase in “gross overcompensatioz” it removed the discriminatory aspect of the legislation. !I seems probable, however, that with or without such legislation, amended or not, our problems h this field have only begun. With the tsndency in many jurisdictkx to extend the scope of Lord Campbe!?’s Act to de fact0 spousa! relationships, investiga-

27 See note 17. supra. Ciirwm v Jomes 119631 1 W.L.R. 748. ,-- - - 1 ~

- .. . . . . . . . . .

See Keizer v. Hannn (1978) 82 D.L.R. (3d) 449.460. Law Reform (Miscellaneous Provisions) Act 1971. s.4(1). Fatsi Accidents Act 1976.

s.3(2). coniinued by Administration of Justice Act 1983. s.3(:). Report on Personal Injury Litigation-Assessment of Damages. Law.Com. No. 56

(1973). para. 261. j2 Royal Commission on Civil Liability and Compensz:i:n for Personal Injury, Cmnd.

7054-1 (1978). para. 414. The question was complicated b:, the majority recommendation of a scheme of periodic payments in wrongful death cases.


tion will be required into the probability of the claimant’s forming a similar relationship.” With family law generally moving in the direction of giving support rights and property sharing rights to de fucto or common law spouses formation of such relationships presumably ought in theory to reduce a Fatal Accidents Act claim and it would be hard, in that case, to exclude evidence designed to show that the claimant was likely to form such a relationship in the future. Indeed the 1971 English legislation, though excluding evidence of remarriage, would not seem to exclude evidence of a de facto relationship with similar financial consequence^.^^ It would be ironic if a claimant’s remarriage could not be proved but a claimant’s extra-marital affairs could be fully investigated to show the formation of or possible future formation of de fucto relationships.

A related matter, not made easier by the 1971 Act, is the significance of a widow’s remarriage to the claims of dependant children. In a claim by a widow and children for the wrongful death of their husband and father, the 1971 Act precludes the court from taking into account the remarriage of the widow in calculating the amount recoverable by her. But it does not preclude the taking into account of that possibility for the purpose of calculating the proper amount to be recovered by the children.35 Thus proof that the children have acquired or are likely to acquire a wealthy stepfather remains relevant, and invites the same kind of invcstigation and cross-examination that the 1971 Act was designed to avoid.36

If claims were made against the estate, these problems would disappear. The loss of earning capacity would entitle the estate to recover, and, assuming the sunliving spouse (or de fucto spouse) were the beneficiary of the estate, he would recover in full. His future intentions as to remarriage or his actual remarriage would be quite irrelevant.

This, I suggest, is a very desirable solution. It is because Lord Campbell’s Act depends theoretically on proof of the claimant’s own loss that these intractable problems of remarriage arise. The change of theoretical basis to recovery by the estate removes these problems, because the extent of the beneficiaries’ loss becomes irrelevant. The actual result of the 1971 Act, that is ignoring remarriage, can thus be justified despite the criticisms. It may be suggested that behind

In Wild v. Eves (1970) 92 W.N.(N.S.W.) 347, the N.S.W. Court of Appeal held that cohabitation was not relevant to reduce damages, but the relevant statute (Compensation to Relatives Act) did not extend to de facto spouses as claimants, and the majority of the court distinguished marriage as involving “the legal obligation to the wife in relation to maintenance,” and “in a class by itself.” Recent developments in family law cast doubt on the distinction.

But see Bennerr v. Liddy (1979) 25 A.L.R. 340 (S.C.N.T.) where it was held, under a statute permitting de facto spouses to claim, that formation of future de facro relationships fell within the w o d “kmarriage.”

Mead v. Clarke Chapman & Co. Ltd. (19561 1 W.L.R. 76. Thompson v. Price 119731 L . - 1

Q.B. 838. ’

36 See per Buckley L.J. in Hay v. Hughes I19751 Q.B. 790,81617. The Law Commission had earlier recommended a change in the law to exclude considerations of a parent’s remarriage. Law Com. No. 51 (supra), paras. 252, 262.


the feeling of distaste that prompted the legislation lay an instinctive appreciation that recovery ought not to depend on the claimant’s future matrimonial prospects; this view is compatible only with a theory of recovery by the deceased’s estate.

A hardly less problematic or distateful inquiry required by current principles of damage assessment under Lord Campbell’s Act concerns the stability of the claimant’s marriage with the deceased. It has been held that it is relevant to reduce damages to show that the claimant was separated from the de~eased,~’ and therefore it .must be relevant also to show that future separation was pr~bable .~’ The line of investigation and cross-examination opened up to the defendant by this prospect and the difficulties presented to the court in making a judgment on the matter suggests that there is merit in an approach that will avoid the inquiry, if one can be devised. This inquiry would not necessarily be eliminated in a claim by the estate, however, because the same questions might be relevant to determin- ing the probable future living expenses of the deceased (a single person having greater personal living expenses) and therefore might affect the calculation of the amount to he recovered by the estate. The variation due to this factor would, however, in most cases be comparatively small, and so would not often warrant an investigation by the defendant into the stability of a marriage.

Another problem is the definition of the statutory class of claimants. With the changing social view of family relationships there is constant pressure to enlarge the class of claimants. Amendments in most jurisdictions have included illegitimate and adopted children”; some have included foster childrenm and de fucto spouses.41 But there is no persuasive reason to stop at that point. It is foreseeable that with the declining significance of the marriage relationship as such, pressure groups will lobby for extension of the statutory benefits to homosexual relationships and to non-sexual household arrangements. Quite a strong case can then theoretically be made for including remote dependant relatives nnd unrelated dependant persons especially if they are elderly or bandicapped. Similar ptob- lems may of course arise In dealing with claims against estates, but if the estate only coiild recover for the death of a person Fhese problems could be dea!t with in a single framework. No sound principle appears to justify different treatrnmt of such claims in the two contexts.

It m-ight be said that there is no great biffrcri!ty in amending the Fatal Accidents Act from t ine to time tn G.eep pace with changing social ideas. But amendment to statutes of this sort is not always - ,---I

’’ Davies v. Taylor (19743 A.C. 207. yI See Julirrn v. Northern & Central Gas Corp. Lid. (1Y78) 5 C.C.L.T. 148 (0nt.H.C.).

3y See for example s.l(4)(b) of the (U.K.) Fatal Accidcnts Act 1976. Administration of Jus:ice Act 1982, s.3(1); Compensation to Relatives Act (N.S.W.);

‘I See Administration of Justice Act 1Y82, s.3(1); Family Law Reform Act (Ont.),

affd. 118 D.L.R. (3d) 458.

s.7( 1).

S.60(1).


promptly secured, and this route seems to lead to two separate lists of beneficiaries, one in the intestate succession legislation and one in the Fatal Accidents Act, the second list never quite catching up with the first. There is a more fundamental difficulty. The Fatal Accidents Act requires one action only to be brought; it is the responsibility of the plaintiff to join all persons entitled to claim. This is easy when the statutory claimants are limited to immediate relatives, but if the list is extended, difficult procedural problems will appear. First, it will be difficult to discover all the potential claimants; secondly, there will often be a severe conflict of interest between the various claimants that will make the conduct and settlement of a single action difficult. One only needs to think of a spouse, a former spouse, a defucto spouse and the children of each, to see that these are claimants, adverse in interest, seeking shares in a limited pot-the precise situation to which the procedures for distribution of an estate are well adapted, and a single claim under the Fatal Accidents Act is not. Again, the underlying assumptions of 1846 become apparent. It was then assumed that the family would have, in substance, a single interest. As the definition of family for this purpose becomes looser, the scheme of a single action becomes less convenient.

All these considerations raise a broader issue, that is whether the concept of dependency is really useful or appropriate ir. the context of modern family relationships. In fact, Lord Campbell’s Act did not use the word “dependant,” though it was introduced, curiously, in the 1976 English consolidation; dependency has never been a strict requirement for recovery, and, presumably, the use of the word in the 1976 statute does not alter the position. Financial loss caused by the death is the test and from the earliest cases it has been held that an earner can recover for the loss of his spouse’s household services. Yet it cannot be doubted that in the social context of 1846 the Act was seen as designed to benefit widows and children, and courts and writers have always used the words “dependants” and “dependency” in discussing the Act and calculating the amount recoverable. In modern times however it is often not obvious that one spouse is dependant upon the other, and the decline of the concept of dependency calls into question the soundness of the concept of enabling.one spouse to collect damages for the death of the other. In 1846 there was a general consensus that a wife suffered a financial loss on the death of her husband. Today, the Fatal Accidents Act requires the court in calculating damages for the loss of a spouse to venture into territory where social consensus is conspicuous by its absence. The difficulties are illustrated not only by the matters already discussed, but by the most basic calculation of all-the annual value of the dependency. This is usually calculated by deducting from the net income of the deceased money which he would have spent on himself, and savings. But where the claimant also has earnings it is not clear whether the claimant’s own mainten-


ance is deemed to come first from his own earnings, enhancing the deceased’s savings, or whether the claimant caw claim support as a first charge on the deceased’s income allocating his own earnings to his own savings. It seems very artificial for the result to turn on the particular manner in which the claimant and the decased during their life together chose to allocate their income to current expenses. There is also the difficult problem of how to treat the claimant’s future earning capacity.” The courts will find themselves caught in an invidious dilemma. If it is assumed that claimants will support themselves, the courts will be accused of forcing widows on to the factory floor (the majority of claimants will probably continue to be women for some time to come); if the contrary is assumed this will be taken as a sign of the courts’ old fashioned view that only men can be earners. In short, the assumption that the loss of earning power of one spouse automatically affects the future wealth of the other is not always justified where both are earners and is likely to be less often justified in the future. A claim under Lord Campbell’s Act may require assertion of a dependency that the claimant might vigorously have repudiated during the deceased’s lifetime. Many recent family law cases have preferred the analogy of partnership to that of dependency. Yet there is a decision specifically rejecting a claim under Lord Campbell’s Act for loss of business income to a husband and wife pa r tne r~h ip .~~ These problems will not disappear on the repeal of Lord Campbell’s Act, for the extent of the estate’s recovery will vary in response to some of the questions. But a claim against the deceased’s estate by a survivor, not requiring the assertion or proof of dependency will, it is suggested, ease the task of the courts and fit better into modern family Icw.

Where the person killed was resident in the home, the problem arises of valuation of household services. Arguments can be adduced to support valuation by the actual cost of seplachg the lost services, by the loss of housekeeping capacity, or by the loss of foregone earning capacity.@ These problems are tmw arising in personal claims by injured h ~ u ~ e k e e p e r s . ~ ~ The sohntisn is not obvious but, it is suggested, there is merit in a single rsnk that will lead to the same valuation, whether the P~ousekecper is perrnaiaently disabled or killed outright. This would Rave the advantage of simplicity, would avoid the difficult question of whether Boss to the housekeeper is the same as loss to the spouse, and also VgOuid put the problem in the wider context of valuation of lost working capacity sf non- earners.

42 See Shiels v. Cruikshank [1953] 1 All E.R. 847; Howiff v. Heads [1973] Q.B. 64; Davies v. Whiteways Cyder Co. 119751 Q.B. 262, 272; Dodo3 v. Dodds [1978] 0 . B . 543; Cookton v. Knowles [1977] Q.B. 913,922, per Lord Deming M.R. ‘’ Burgess v. Florence Nightingale Hospitd for Gent l ewmm [195S] 1 Q.B. 349.

See Komesar, “Towards a general theory of perscinsl injury loss” (1974) 3 J.Leg. Studies 457.

45 See Daly v. General Stzam Navigation Co. (19811 1 W.L.W. 120 (C.A.); Pottick, “Tort damages for the injured homemaker: opportunity cost replacement cost?” (1978) 50 U.Co1.L.W. 59. Abolished by s.2 of the Administration of Errstice Act 1982.

July 19841 DAMAGES FOR WRONGFUL DEATH 45 1

This approach is in keeping with the modern view that an injured person’s loss is his own loss, not anyone else’s. Thus the old actions by a husband for loss‘ of his wife’s services& are everywhere now regarded as obsolete. Most people would say that the loss to an injured housewife is her own loss, not her husband’s. It follows naturally that, if she dies from her injuries, the loss is her estate’s loss, and still not her husband’s. Again the assumptions of 1846 are apparent. It was then taken for granted that a husband had a right to his wife’s services, and that a wife had a right to her husband’s support. Like the action for loss of services, these assumptions are based on a pattern of family relationships that can no longer be taken for granted.

A number of other benefits would flow from amalgamating the claims. The special statutory provisions requiring the exclusion of insurance benefits and pension benefits4’ and the problems of their interpretation4* would disappear. The need to evaluate the benefits received by a Fatal Accidents claimant from the deceased’s estate (often a complex and contentious.procedure) would be eliminated.49 The procedural rules designed to avoid a multiplicity of suits by the various claimants would be unnecessary and the problem of division of the proceeds among them would also disappear. This last question raises another thorny issue, that is, the division between adult claimants (usually a widow) and dependent children. Do the children recover in their own right for their full expected benefits or is it assumed that their dependency is transferred to their mother, who should herself recover the damages representing the children’s support? The one view may imply a distrust of the reliability of the adult claimant; the other may do an injustice to the children.’”

From the beginning, Lord Campbell’s Act, while creating an independent right in the statutory claimants, has included important elements that can only be explained by a theory that the claim is derived from the deceased’s own rights. Thus, the action depended on the deceased’s having been entitled himself to sue, and if the deceased settled or secured a judgment in his lifetime the claimant’s action was defeated, as also if the deceased lost an action or allowed it to become time-barred. The action had to be a single action only, brought in the name of the deceased’s contributory negligence. All these factors are incpnsistent with the notion of an entirely independent action vested in the claimants personally.

The considerations discussed here suggest that the interests of dependants can, even when they are not beneficiaries of the estate, be protected by giving them claims against the estate, and that the

Fleming, The Law of Torts (1983), pp.61M21; but see now Administration of Justice Act 1982, s.2(a). ” S.4 of the Fatal Accidents Act 1976.

See Canadian Pacific Lrd. v. Gill [1973] S.C.R. 654. 49 See Clement v. Leslie’s Sforage Lrd. (1979) 97 D.L.R. (3d) 667. (Man.C.A.); Daniels

See Goodburn v. Thomas Corron Lrd. I19681 1 Q.B. 845 (C.A.), per Willmer L.J. at v. Jones [1961] 1 W.L.R. 1103 (C.A.).

pp.852-853.


preservation of Lord Campbell’s Act is likely to involve the courts and the legislature in a continuing series of tendentious and incon- clusive debates on highly controversial questions. Of course, where individual or social justice requires it, neither judge nor legislator should hesitate to grapple with controversial issues. But where another route, lies open that promises equal justice with greater simplicity, comprehensibility and public acceptance, it can make a strong claim to the greater social attractiveness.

A critic may say: I admit these advantages, but they can only be purchased at a cost, namely allowing a windfall to the estate where there are no dependants, and the cost is too high. Admittedly defendants would have, in some cases, to pay more than formerly. But it is clear from Garnrnell v. Wilson that the sums involved are modest. In Garnrnell v. Wilson it was held that the entire estimated future living expenses of the deceased must be deducted in calculating the net annual loss. In the case of a person with no dependants, the expenses are to be estimated on the basis of a single person living alone. That is to say, oniy the anticipated savings out of income form the basis of the award. This approach ensures that awards for children and young single persons would be moderate, while permitting an increase in the award for the benefit of dependants or other person eligible to claim from the estate. The larger of the two awards considered in Garnmell v. Wilson was based on a sum of f 19,000 for a lifetime’s lost earnings, a figure reached on the assumption of savings on one-quarter of net income. Future awards would be likely to be lower, for several of the Law Lords commented that the award was high, and savings of one-quarter of net income would be higher than average. The estates of younger children will receive lower awards, discounted for contingencies and advance payment.51 An award to the estate of a young person of, say, f10,000 does not seem astonishingly high. It would be unlikely to seem so to the ordinary person, who, it was.said by the Pearson Commission, is more apt to be shocked by the absence of liability for the wrongful death of children. Nor would it trouble the insurance industry, being a moderate and readily predictable figure.

Suggestions of introducing an award for grief, or loss of society, ensuing on wrongful death, which have always accompanied recent proposals5‘ to reverse Garnrnell v. Wilson show that there is public support for increased, rather that diminished, recovery for survivors. An open-ended award for loss of society would be very difficult to assess or to predict. A small fixed conventional sum, seems arbitrary and might even be considered insulting. Indeed the whole concept of money for loss of society seems more distasteful than the idea of survival of an action for the deceased ~MSQXI’S own loss. Garnrnell

s1 See Connolly v. Camden and Islington Area Health Aurhority [1981] 3 All E.R. 250, where Comyn J. held that damages were available to a young child in respect of the lost years, but assessed them, on the material before him in that case, at nil..

J2 See government proposals in 131 Mew L.J. 228. And see Administration of Justice Act 1982, s.3(1).


v. Wilson did not of course set out to solve this problem. Nevertheless its effect was that, in the ordinary case of the wrongful death of a child, the parents succeeded to a moderate sum of money. This seems, as it happens, as good a solution as is likely to be found to the problem of compensation for grief or loss of society.

Gammell v. Wilson was subjected to a barrage of criticism, commencing with the apologetic speeches of the Law Lords themselves, and continuing in the learned journals and even in daily press. The government’s decision to introduce legislation reversing its effect was announced almost immediately. But, it is suggested, Gammell v. Wilson points in a direction that deserves further exploration.

S. M. WADDAMS* * Professor of Law, University of Toronto. This article is based on a lecture given at

Queen Mary College, London, before the enactment of the Administration of Justice Act 1982.

Documents

Damages for Wrongful Death: Has Lord Campbell's Act Outlived its Usefulness?