10 DECEMBER 1937, Page 18


[Correspondents are requested to keep their letters as brief as is reasonably possible. The most suitable length is that of one of our "News of the Week "paragraphs. Signed letters are given a preference over those bearing a pseudonym, and the latter must be accompanied by the name and address of the author, which will be treated as confidential.—Ed. THE SPECTATOR.]


[To the Editor of THE SPECTATOR.] SIR,—How vast a change has been made in a particular law by a short Act passed three years ago may be realised by contrasting two cases in which a father recovered damages for the death of his child, one before the Act and the other after it. In each case a little girl of eight was killed in a road accident. By the ancient law of England, a person injured by carelessness or negligence could have an action for damages, but if the offender killed his victim no damages were payable, though possibly in certain circumstances a prosecution for manslaughter might lie. The injustice of this distinction was partially rectified by the Fatal Accidents Act, 1846 (known to lawyers as "Lord Campbell's Act ") giving damages to wife, husband, parent, or child of the person killed by negligence according to their actual loss as computed by judge or jury. This has, of course, been an especially valuable measure when the breadwinner of a family has been killed, enabling due provision to be made for his dependants. In the case of a child, however, judge and jury in assessing damages under this Act have to set aside sentiment and consider loss in terms of money. Thus in such case the loss so computed may actually be found as a minus quantity, i.e., the parents are the richer, in that they save the expense of maintenance and education, and, although grown-up children do occasionally support aged parents, they have no legal lia- bility to do so, except when necessary for the small allowance under the poor law. Accordingly, in the first case now consid- ered, brought in 1929, counsel observed with some truth "As the law is framed today, it may be cheaper for the motorist to knock down and kill a child than a cow, because a child .does not happen to have the value of a cow in such an event." As the result of the case, the father was awarded Lis damages— more than he would have got for the loss of an ordinary cow if she were elderly, but considerably less than the compen- sation he would have received for a prize animal. In accordance with precedent, probably there would have been no damages at all, unless the father could have shown that the child was already making herself useful about the house, and tending younger children, &c.

The Act of 1934 practically reversed the old common law as to the survival of the right of action of a person killed by negligence. Very soon afterwards, under the ordinary law as to negligence between living persons, it was held by the Court of Appeal that the probable shortening of life by an accident might be taken into consideration in awarding damages. In that case, a gentleman of seventy years of age was awarded the very substantial sum of £4,000 on this head. The evidence was that he was a hale and hearty old man before the accident, but a wreck after, so that, instead of the chance of eight or nine more years of healthy life, he had the expectation of about a year's suffering as an invalid.

If this had been under the old law, and he had died before bringing action, his executor could not have recovered damages. Under the new law, however, it has been held that not only may an executor continue an action commenced by the deceased (except for breach of promise, which is barred by the statute itself) but may originate an action - based on the deceased's rights before his or her death. Accordingly, in the second of the above cases the father, as his child's administrator, has recovered, not Lis, but £1,soo for the loss of his little girl. Why the forty or fifty years' expectation of the child's life was deemed so much less valuanle than the man's few years of old age is not explained, though one judge made it clear that he considered the £4,000 awarded in the latter case as inordinate.

The contrast having been made, the result may be con- sidered. Probably the later law may be deemed the better, though conceivably if upheld (there is an appeal) insurance premiums for motorists may be increased. Even so, however, the anomaly that a careless motorist who half killed his victim might have to pay more than if he completed the work was indefensible.

The new law nevertheless has its dangers. It is not to be supposed in the above case that the parents would prefer the £1,500 to the company of their bright little girl: The fact remains, however, that all parents are not good parents, and, if a child dies as the result of a motor accident, liability for future maintenance and education may vanish and hard cash in four figures take its place. Thus in the case of bad parents there will be the temptation "not to strive officiously to keep alive." The suggestion may be made, not that the motorist or his insurance society should pay less, but that the judge should have power to award some of the damages to the parents, and the rest to the King for the loss of a potential good citizen or citizeness. There would also still appear to be a doubt under the Act whether, if the victim is killed instantly, any damages can be recovered under it. This point should be remembered if there is to be any amending legislation.—! am, Sir, &c.,

c New Square, Lincoln's Inn, W.C.2. ALFRED FELLOWS.