The Gazette 1982

g a z e t t e

a p r i l 1982

recovered theoretically provision is thereby made in the award to a Plaintiff for his future dependants, that provision may prove valueless if the moneys awarded to him are either dissipated by the Plaintiff himself during his lifetime or (subject to such limitations as may be imposed by the Succession Act, 1965) left by him under his Will or even passed by virtue of his intestacy to persons other than the dependants for whom it was notionally intended. Finally, if the law is to be amended, consideration might in addition perhaps be given to the possibility, instead of awarding a lump sum to cover future loss of earnings (whether including "lost years" or not), of directing satisfaction of that portion of the award to dependants by an appropriate annuity to be suitably adjusted from time to time, which would terminate on the dependants' death. A defendant's liability under Part IV of the Civil Liability Act 1961 might similarly be satisfied, at least in part. Whether the practical and financial problems that such proposals will undoubtedly raise are capable of a satisfactory solution is for those interested and qualified to do so to judge for themselves. •

permit a Plaintiff (whether he be the injured party or his personal representative) to recover damages for loss of earnings during the "lost years", the situation calls for urgent consideration and an appropriate amendment of the law by the legislature. If the law is suitably amended, no injustice need be done to the eventual dependants of a living Plaintiff or the dependants of a person who has died as the result of the negligence of another. It is suggested that the consideration of justice for Defendants far outweights the loss to a deceased's estate of what has been described as "a windfall" and what is in some instances in fact "double recovery" at the expense of a Defendant. This might be done by the enactment of statutory provisions similar in form to Section 2(3) of the Damages (Scotland) Act 1976 which effectively precludes any claim for damages by way of compensation for partimonial loss attributable to any period after the deceased's death. In the course of the Judgments in the House of Lords in the Gammell and Furness cases it was indeed suggested that English Law should be amended in precisely this fashion. The legislature might indeed go further and enact legislation which would provide that a Plaintiff who recovers judgment for damages in his own lifetime for injuries which have resulted in a diminution of his expecta- tion of working life should recover damages for future loss of earnings on the basis of his reduced life expectancy only and not for the period for which in the ordinary way he might have been expected to continue working. In lieu of a right to damages for loss of earnings in the "lost years" the legislature might provide that, in addition, at the actual date of his death his then dependants would become entitled, within a limited period (say two years), to claim damages against the original Defendant for the loss of dependency they would henceforth experience, in a similar manner as they could have done had the Plaintiff been killed instantly, under Part IV of the Civil Liability Act, 1961. In cases where the Defendant is insured such a law should not present any problem for a Plaintiff. In the case of an uninsured defendant, he might be required to take out a policy providing the appropriate indemnity on payment of a single premium. Subject to the dependants establishing that the cause of death was the injury complained of in the earlier proceedings, this new claim would be solely an assessment of the damages to which those dependants were entitled, the determination of liability in the earlier proceedings (including any apportionment of responsibility that might have been made in the earlier case) binding the parties in the new proceedings. If the eventual death resulted from the negligent act of a third party unrelated to the earlier proceedings, the position of the dependants could still be protected by giving them a claim against the new tortfeasor in lieu of that which otherwise they would have had against the first one. If the death occurred in circumstances unrelated to the original injury and for which no other person could be held responsible, and, as a result the dependants had no claim, no injustice would have been done to these dependants in those circumstances. Such legislation would in fact provide better protection for the eventual dependants of persons whose expectation of working life has been diminished by the negligent act of another than they have under our present law. While if damages for loss of earnings during the "lost years" are

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