LETTERS TO THE EDITOR
[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.]
THE LEGAL VALUE OF HUMAN LIFE
[To the Editor of THE SPECTATOR.]
Sta,—Mr. Alfred Fellows's letter to The Spectator of Decem- ber loth under title " The Value of a Child's Life " draws attention to the important change in English Law which has been effected by the recent decision of the House of Lords (Rose v. Ford), that loss of expectation of life is an element of damage to be assessed in a cause action which, pursuant to the Law Reform (Miscellaneous Provisions) Act, 1934, now survives for the benefit of the estate of a person who has died after suffering some actionable wrong and before obtaining judgement for such injury.
Until that decision, it was a principle of our law that causes of action for wrongs of a purely personal character lapsed with the death of the complainant ; and furthermore that " in a civil Court the death of a human being could not be complained of as an injury." Obviously the deceased himself could not bring any action, and the rule precluded any third party from doing so.
But the Fatal Accidents Acts, 1846 to 1908. gave to the near relatives of the deceased an independent right to recover from a tortious (e.g., negligent) defendant the strictly pecuniary loss which those relatives sustained as the result of the death of the injured person. In the calculation of the damages to be awarded under these Acts juries are properly directed not to allow anything for pain and suffering, or injury to the feelings of the relatives, though there is no reason to suppose that this direction is strictly obeyed.
Even if, in fact, the assessment be restricted to purely finan- cial loss the Court has every incentive to be liberal ; for it is common form in a Statement of Claim to allege that the deceased was " strong and healthy " ; and since the defendant is rarely, if ever, in a position to allege that the deceased had any bodily ailment which might have shortened his life quite apart from the accident, it follows that the assessment of damages in fatal accident cases almost always proceeds upon the somewhat doubtful footing that only the most robust citizens arc, for example, overtaken and destroyed by the careless motorist. The defendant is equally at the mercy of the plaintiffs in their evidence as to the scale upon which the deceased was accustomed to provide for the needs of his near relatives. It is therefore not unreasonable to suppose that in fatal accident cases the Fatal Accidents Acts compensate, even generously, all material loss sustained by the near and dependent relatives of the deceased. It may be doubted whether justice requires that a defendant should be compelled to make any greater payment in such cases ; but Rose v. Ford has in fact added greatly to the bill which he must settle.
It had previously been decided that a living person whose life had been shortened by an injury was entitled to have his loss of expectation of life taken into account in the assessment of his compensation from the wrongdoer. The above- mentioned Law Reform Act, 1934, provided that causes of action should survive for the benefit of the estate of a deceased person : and the House of Lords in Rose v. Ford has inter- preted the Act to mean not only that causes of action henceforth survive, but also that by implication all the elements of damage in a cause of action likewise survive ; and that loss of expecta- tion of life is to be the subject of compensation for the benefit of the estate of a person who has died before obtaining judge- ment in precisely the same way and to the same amount as it would have been for the injured person himself had he survived his injuries.
With deepest respect one may perhaps venture to doubt the soundness of that interpretation. And it seems incredible that the framers of the Law Reform Act, 1934, could have intended by so indirect a provision to annul so old a principle of our Common Law that in a civil Court the death of a human being could not be complained of as an injury. The wisdom of that old principle may be better appreciated when the results of its complete abrogation find practical expression. Apart altogether from the consideration whether loss of one's own expectation of life is in itself an element of damage which ought to be assessed for the benefit of anyone else, one may ask how the value, to a person who is dead, of the expectation of life which he would have had if he had not been injured, can be even approximately ascertained ? Who shall say whether to him life was a boon or a thorn, or whether fate or inclination would have made of him a bishop or a burglar, and whether his enjoyment of life would have been the same in either capacity ? And, having regard to the frequently fatal incidence of the dis- eases of childhood and childbirth, who has the greater and more valuable expectation of life, a boy aged 5, a woman aged 21, or a robust man of 4o ?
The attempts which so far have been made by the Courts to quantify compensation for loss of expectation of life have shown widely divergent results and do not suggest any princi- ples of assessment that will insure uniformity.
There is an obvious risk of duplication of compensation in cases where there is a claim by the widow and children under the Fatal Accidents Acts and a further claim on behalf of the deceased's estate under the Law Reform Act, 5934. But the House of Lords considered that such risk could be obviated by a suitable warning to the jury. That seems to raise practical difficulties. Could it be given in evidence that the deceased has left a Will bequeathing all his estate (including, of course, any sum which the Court may award for loss of expectation of life) to his mistress, in complete disregard of the natural claims of his wife and family ? And should a jury, though kept in ignorance of the contents of the deceased'i Will, be directed, when they are about to assess the compensation for the widow and children under the Fatal Accidents Acts, that they must be careful not to duplicate the compensation since they are also being asked to award compensation to the deceased's estate for loss of his expectation of life, pain and suffering, &c. ?
If, in addition to the Fatal Accidents Acts any further modifi- cation was required of the Common Law rule that compensation for loss of expectation of life could not be awarded in respect of a dead person, why not a simple provision that, in addition to their rights under the Fatal Accidents Acts, the widow and/or children of a deceased should be entitled to a reasonable compensation for the injury to their feelings caused by the death ?
I believe that Scottish Law has long contained some such provision and that Scottish Courts have experienced no diffi- culty in applying it with moderation and remarkable uniformity.
—I am, Sir, yours faithfully, WILFRID CLOTHIER.
i Paper Buildings, Temple, E.C. 4.
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