(1989)1989March28 (A.LOIZOU.P., DEMETRIADES.STYLIANIDES.JJ). MARIACHR. PHYLACTOU,ASADMINISTRATRIXOFTHE FSTATEOFTHEDECEASEDANDREASPHYLACTOU PANARETOULATEOFTSADA, Appellant-Plaintiff, v. CHRISTODOULOSTALIOT1S, Responden t-Defendant. (CivilAppeal No. 7108). Damages —Fatalaccident — The Administration of EstatesLaw, Cap. 189. section 34 —Loss of future earnings—The basis of calculation—Review of authorities— The difficulties when the deceased wasanadolescent about toembarkonearninghisliving— Insuch acase theprocess isratheraspeculation thancalculation — «Livingexpenses» should be deducted from the earnings— What expenses qualifyas«livingexpenses». 5 Damages —Fatal accident —Interference on appeal with the quantum —Principlesapplicable. Thedeceasedwasbomin1969.Hemethisdeathon26.4.83.The 10 action wasbroughtbyhismother, theadministratrix ofhisestate.On a full liability basis the Court awarded for loss of future earnings* £8,000 by using a multiplier of 16 and a multiplicant of £500 per year. Thecomplaintoftheappellantisthatthe£500peryearistoolow. 15 The Court should have taken into consideration that the deceased mightbecomeascientistandfindemploymentabroad.However, no * ThisItemof damagesb nolonger applicable Incasesofdeathsoccurringasfrom 1.1.86 (SeeLaw157/85). 188 1 C.L.R. Phylactou v.Taliolis evidence was adduced to that effect Indeed the evidence on the subject before thetnal Courtwas meagre Thisisnotsurprising Having reviewed thecase law onthepoint inissue,theCourt 5 10 Held,dismissing the appeal
(1)TheJudge inthiscasehadtodoa rather difficult task, toassess theloss of earningsfor the«lost years» on slender evidence ma speculative way TheJudge would have misdirected himself if hespeculatedorrather guessed, as suggested by appellant
(2)This Court has not been persuaded that there are reabons justifying interference withthequantum ofdamages Appeal dismissed Λ/ο order as tocosts Casesreferred to Skelton ν Collins
(1966)115 CLR 94, 15 Pickett ν Bntish RailEngineering Ltd [1979] 1All ΕR 774 <HL ) Kandalla ν Bntish Airways Board [1980] 1All ΕR 341, Gammell ν Wilson[1981] 1All ΕR 578, Chrysostomou ν Piovtdba
(1983)1CLR 596, Kassmou ν Efstathiou
(1984)1CLR 77, 20 Dawes and Another ν Powell Duffryn Associated Collienes Ltd [194231 All ΕR 657, Whiteandanotherv 410, London TransportExecutive [1982] 1All Ε R Hamsv Empress Motors Ltd [1983]3A11ER 561, 25 Constantinou ν Salachouns
(1969)1CLR 416, Chnstodouhdes ν Kypnanou
(1968)1CLR 130, Roumba ν Shiakalh etc &Another
(1969)1CLR 537, Karavallis ν Economides
(1970)1CLR 271 Appeal. 30 Appeal by plaintiff against the judgment of the District Court of Paphos (Chrysostomis, P.D.C.) dated the 16th December, 1985 (Action No. 825/83) whereby the defendant was adjudged to pay 189
(1989)Phjlailou ν laliotis to the plaintiff the sum of £4,800 - as damage due tothe death of Andreas Ph Panaretouwhen he was run over by motorbus TGL 985 driven bv,the defendant A Draco*, for the appellant l St Erotomtou (Mrs) for the respondent - Cur adv vult A LOIZOUΡ The Judgment of the Court willbe delivered by Mr Justice Stylianides STYUAN1DES J Andreab Phylactou Panaretou of Tsada village, student of the second form of the 3rd Gymnasium of 10 Paphos -born on 20th November 1%9 -met his death on 26th April 1983, when he was run over by motorbus TGL985 owned and driven by the respondent This action was brought by his mother, administratrix of his estate She claimed damages for dependency undersection58 of 15 theCivil Wrongs Law, Cap 148, anddamages undersection34of theAdministration of Estates Law, Cap 189 The trial Court found that the deceased and the respondent were equally toblame for the accident Hisfamily consisted oi the father, mother, asister andabrother 20 Atthe matenal i.me the father was a builder, employed by a local firm, the mother was a peasant housewife, the sister was a draughtswoman andthebrotherwas astudentofhighereducation abroad There was no dependency Under the Administration of Estates Law, Cap 189, section 34 25 the claim was For pain and suffering, loss of expectation of life, special damages including funeral expenses and loss of earnings for the«lostyears» The trial Judge assessed the quantum of damages on a full liability basis as follows (a)Nilfor pain and suffering as the deathwas almost instant (b)£1,000 -for loss of expectation of life (c) £600 -special damages and funeral expenses, and (d)£8,000 -for loss of futuie earnings 190 1C.L Κ. Phylactou v. lalioli- StyliamdesJ. Having regard totheresponsibility oftherespondent,judgment was given for theplaintiff andagainst the defendant for £4,800The plaintiff now appeals against the Judge's decision Her complaint relates only to the damages awarded tothe estate for 5 loss of future earnings Section 34
(2)(c)of theAdministrationof EstatesLaw,Cap 189. isaverbatim reproductionoftheprovisions ofsection 1
(2)(c) ofthe Law Reform (Miscellaneous Provisions) Act 1934 The Courtsin this country, following the construction placed on this statutory 10 provision by the English Courts, did not take intoconsideration the element of loss of earnings for the 'lost years' in assessing damages to the estate, as it was held that the Law excluded this element as an item for damages The High Court of Australia in Skelton ν Collins
(1966)115. 15 C L.R 94, departed from the English decisions and held that damages for loss of earningsare recoverable for thepenod during which the capacity to earn money might have been exercised, which was curtailed,because thetortcutshort theexpected span of life of a person 20 The English Courts in Pickett ν BritishRail Engineering Lid [1979] 1 All ΕR 774 (HL), Kandalla ν Bntish Airways Board [1980] 1 All ΕR 341 Gammell ν Wilson [1981] 1All ΕR 578 (H L ),held that,as damages for cuttingshortaman'sworking life. the «lost years», are in no sense «consequent on the death», the 25 damages recoverable for thebenefit of the estateincludedamages which thedeceased couldhave recovered itlivinginrespect ofthe «lostyears» TheCourtsof ourRepublic,since Independence,are notbound by decisions of any foreign Coun. Nevertheless,inviewof the fact 30 that branches of our system of Law are based on the English Common Law and pnnciples of Equity and statutory provisions are identical or similar to statutory provisions of England, reference to decisions of English Courts of Appeal and other Commonwealth countries, especially on the construction of a 35 statute, is useful, as these decisions have great persuasive authonty The decisions in the above English cases were followed and applied by A Loizou, J , as he then was, in Chrysostomou ν Phvidba
(1983)1 CLR 596, an admiralty action, and by the 191 MWiunides J. Phylactou v. Valiotis
(1989)Court of Appeal in Kassinou v. Efstathiou
(1984)1 C.L.R. 77, whereby the Judgment of the District Court of Nicosia was affirmed. This element of damages was disfavoured by the Courts, both here and in England. It was pointed out that it was an 5 unsatisfactory situation oranomalywhich could be cured onlyby legislation. In England itwas remedied by the Administration of Justice Act, 1982. In our country the Administration of Estates (Amendment) Law, 1985(LawNo.157/85)waspassed and came into force on 1stJanuary, 1986.Section 34
(2)(a)wasamended to 10 read:«(a)Shall not include - (i)exemplary damages; (ii) damages for loss of income in respect of any period after that person's death». The problem that arisesinthe present case willnot arise again, except in those cases where death has occurred before 1st January, 1986. in the present case the trial Judge, having regard to the age of the deceased, used amultiplierofsixteen years.Thisfigure didnot 20 come under any criticism bythe appellant. With regard to the multiplicand the trial Court referred to the principlesgoverning the assessment of future lossofearnings, the evidence before himand concluded:«In the light of all the afore-mentioned principles and 25 bearing in mind in this case that had the deceased not been killed,he would havebeen awage earner and alsobearingin mind the conditions prevailing in Cyprus as regard wage earnings, Ihave arrived at the conclusion that a multiplicand of£500perannumisreasonable underthecircumstancesand 30 very close to what was awarded in Gammell case which isa
(1980)case. Thus, the Plaintiff is entitled to an amount of £8,000.-on a full liabilitybasis». Learned counsel fortheappellantcontendedthattheamountof £500.- was indequate and manifestly low and not warranted by 35 192 ^ 1C.L.R. Phylactou v.Taliotis StylianidesJ. the evidence adduced as a whole. He argued that there was a reasonable expectation of pecuniary advantage bythe deceased becoming a scientist and employed with good prospects outside theRepublic,though noevidence wasadduced tothateffect. The 5 trialCourt misdirected itself by not considering thatthe deceased might have the prospect of employment abroad. He submitted that bearing in mind the deceased's prospects in life, education, abilities and employment, the award was an entirely erroneous estimate of damages. 10 Onwhatbasisshoulddamagesforthe«lostyears»beassessed?" The High Court of Australia in Skelton v. Collins (supra) held thatdamagesshouldbeassessedunderthishead,havingregardto the plaintiff's pre-accident expectancy.Anyassessment should,of course, take intoaccount the vicissitudesand uncertainties of life 15 and alsothe fact thatiftheplaintiff had survived forthefull period itwouldhavebeennecessaryforhimtomaintainhimself outofhis earningsand, nodoubt, hisexpenditure on hisown maintenance would have increased as his earnings increased. Taylor J., adopted the «savingsonly»solution and allothermembers of the 20 Court agreed with theJudgment ofTaylorJ. on thisaspect of the case. In Pickett v. BritishRailEngineering Ltd. (supra) the House of Lordsheldthataninjured plaintiff wasentitledtorecoverdamages for lossof earnings during the «yearslost»bythe reduction of his 25 expectation of life but that those damages should be computed after takingoutallhisprobablelivingexpensesduringthatperiod. With regard to the assessment of damages under the Fatal Accidents Act, Lord Wright said in Davies and Another v. Powell DuffrynAssociated CollieriesLtd. [1942]1AllE.R.657,atp.665:30 35 «The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employement. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance willgivea datum or basic figure which will generally beturnedintoalumpsumbvtakingacertainnumberofyears'. purchase.» InPickett (supra)LordWilberforce said atpp. 781-782:193 M\!IJIUC1L'N J Phvlactouv Taliotis
(1989)«My Lords, in the case of the adult wage earner with or withoui df pendantswhosues for damages duringhis lifetime", Iam convinced thata rule which enables the 'lost years' to be taken account of comes closer to the ordinary man's expectations thanonewhich limitshisinteresttohisshortened 5 span of lite The interestwhich such amanhas inthe earnings he might hope to make over a normal life, if notsaleable ina market has a value which can be assessed A man who receiver that assessed value would surely consider himself and be considered compensaied a mandenied itwould not JQ And I donotthink thattoact inthisway creates insoluble pro blems of assessment inothercases Inthatof a young child(cf Benham ν Gambling) neither present nor future earnings could enter into the matter, in the more difficult case of ado lescents just embarking on the process of earning {cfSkelton 15 ν Colhngs) thevalue of 'lost' earnings mightberealbut would probably be assessable as small There will remain some difficulties Incases, probably the normal where aman'sactualdependantscoincidewith those for whom he provides out of the damages he receives, 20 whatever they obtain by inheritance will simply be set off against theirown claim Ifon the otherhand thiscoincidence is lacking, there might be duplication of recovery To that extent injustice may be caused to the wrongdoer Butif there isa choice between taking aview of the'aw which mitigates a 25 clear and recognised injustice incases of normaloccurrence, at the cost of the possibility infewer cases of excess payments being made, or leaving the law as itis, I thinkthat our duty is clear and recognised injustice in cases of normaloccurrence, at the cost of the possibility infewer cases of excesspayments 30 being made,or leaving thelaw as it is, Ithinkthat ourduty is clear We should" carry The judical process of seeking a just pnnciple as far as we can, confident thata wise legislator will correct resultant anomalies. My Lords, I have reached the conclusion which I would recommend so far without reference to Skelton ν Collinsin 35 which the High Courtof Australia, refusing tofollow Oliverν Ashman, achieved thesame result Thevalue of thisauthonty is twofold first in recommending by reference to authonty (per Taylor J)and inpnnciple (perWindeyer J)the preferable solution, and, secondly, in demonstrating that this can 40 properly be reached by judicial process. The judgments, further, bnng out an important ingredient, which I would 194 1C.L.R. 5 Ptnlactou v.Taliotis StylianidesJ. accept, namely that theamount tobe recovered inrespectof earnings in the 'lost' years should be that amount after deduction of an estimated sum to represent the victim's probable livingexpensesduringthoseyears.!thinkthatthisis right because the basis, in principle, for recovery lies in the interest whichhehasinmakingprovision fordependantsand others, and thishe would do out of hissurplus». LordSalmon saidatp. 784:- 10 15 20 25 30 35 «Damages for the loss of earnings during the 'lost years' should be assessedjustlyand with moderation. There can be noquestion ofthesedamagesbeingfixed atany conventional figure because damages for pecuniaty loss, unlike damages for pain and suffering, can be naturally measured in money. The amount awarded will depend on the facts of each particular case.They may vary greatly from case to case.At one end of the scale, the claim may be made on behalf of a young child orhisestate. Insuch a case, the lost earnings are so unpredictable and speculative that only a minimal sum could properlybe awarded. Atthe othei end ofthe scale, the claim may be made bya man intheprime oflifeor, ifhedies, onbehalf ofhisestate;ifhehasbeen ingood employment for years with every prospect of continuing toearn agood living until he reaches the age of retirement, after all the relevant factors have been taken into account, the damages recoverable from the defendant are likely to be substantial. The amount will, of course, vary, sometimes greatly, according to the particular facts of the case under consideration. I think that in assessing those damages, there should be deducted the plaintiff's own living expenses which he would have expended during the 'lost years' because these clearly can never constitute anypart of hisestate.The assessmentof these living expenses may, no doubt, sometimes present difficulties, but certainly no difficulties which would be insuperable for the courts to resolve, as they always have done in assessing dependancy under the Fatal Accidents Acts». 195 StylianidesJ. Phylactouv.Taliotis
(1989)Lord Diplock in Gammell v. Wilson(supra)said at p. 583:«Here wasan obvious injustice which thisHouse remedied by overruling Oliver v. Ashman and holding that a living plaintiff could recoverdamagesfor lossofearningsduringthe lostyears,but thatinassessing the measure ofsuchdamages 5 there should be deducted from the total earningsthe amount that he would have spent out of those earnings on his own livingexpenses and pleasuressincethese would represent an expense that would besaved inconsequence ofhisdeath.In the case of a married man of middle age and of a settled i o pattern of life, which was the case of MrPickett, the effect of this deduction is to leave a net figure which represents the amount which he would havespent on providing for hiswife and any other dependants,togetherwithanysavingsthat he might have set aside out of his income. If one ignores the 15 savings element, which in most cases would be likely to be small, thisnet figure issubstantially the same asthe damages that would have been recoverable by the widow under the FatalAccidentsActs:itrepresentsthe dependency. So,in the particular case of Mr Pickett's widow the result was to do 20 substantial justice. MyLords,iftheonlyvictimsoffatalaccidentswere middleaged married men in steady employment living their lives according to a wellsettled pattern that would have been unlikely to change if they had lived on uninjured, the 25 assessment of damages for loss of earnings during the lost years may not involve what can only be matters of purest speculation. But, as the instant appeals demonstrate and so do other unreported cases which have been drawn to the attention ofthisHouse,incaseswherethereisnosuchsettled 30 partem (and this must be so in a high proportion of casesof fatalinjuries)thejudgeisfaced withataskthatissopurelyone ofguessworkthatitisnotsusceptible ofsolutionbythejudicial process.Guessesbydifferentjudgesarelikelytodiffer widely, yet no one can saythatone isrightand another wrong.» 35 The difficulty, however, ariseswhere the deceased isso young with no established earning capacity or settled pattern of life. Itis true,asLordFrasersaid intheGammell case(supra),that,incases inwhichthedeceased isayoung manwithnoestablished earning 196 I C.L.R. Phylactouv. Taliotis StylianidesJ. capacity or settled pattern of life, it ishardly possible to make a reasonable estimate of his probable earnings during the «lost years»anditisquiteimpossibletotakethefurther stepofmakinga reasonable estimate of the free balance that would have been 5 available above the cost of maintaining himself throughout the «lost years», and the amount of that free balance is the relevant figure for calculating damages.The processofassessing damages in such cases is so extremely uncertain that it can hardly be dignified with the name of calculation: it is little more than 10 speculation.Yetthatistheprocesswhich thecourtsareobliged to carryout at present. Lord Scarman inthesame case said at p.593:- · 15 20 25 30 35 «Thecorrectapproach inlawtotheassessment of damages in these cases presents, my Lords, no difficulty, though the assessment itself often will. The principle must be that the damages should be fair compensation forthelosssuffered by thedeceased inhislifetime.TheappellantsinGammells case were disposed to argue, byanalogy with damages for lossof expectation oflife, that, inthe absence of cogent evidenceof loss, the award should be a modest conventional sum. There . isnoroom fora 'conventional' award inacaseofalleged loss of earnings of the.lost years.The lossispecuniary. Assuch,it must be shown, on the facts found, to be at least capable of beingestimated. Ifsufficient factsareestablished toenablethe court to avoid the fancies of speculation, even though not •enabling it to reach mathematical certainty, the court must make thebestestimate itcan The problem inthesecases,which hastroubled thejudges sincethedecisioninPickett'scase,hasbeen thecalculationof the annual loss before applying the multiplier (i.e. the estimated number of lost working years accepted as reasonable in the case). My Lords, the principle has been settled bythespeechesinthisHouseinPickett'scase.Theloss to the estate iswhat the deceased would have been likely to have available to save, spend or distribute after meeting the cost of his living at a standard which his job and career prospects at time of death would suggest he was reasonably likely to achieve. Subtle mathematical calculations, based as ' theymustbe oneventsorcontingenciesofalifewhichhewill 197 StyfianidesJ. Phylactou v.Taliotis
(1989)not live, are out of place; the judge must make the best estimatebasedontheknownfactsandhisprospectsattimeof death. The principle was stated by Lord Wilberforce in Pickett's case [1979] i AllE.R. 774at 781-782....» In White and another v. London TransportExecutive (1982] 1 AllE.R. 410, Webster J. propounded the «surplusfunds» solution and said atp. 118:- 5 «TheHouse ofLordshavequiteclearlylaiddownthatliving expenses at the very least are to be deducted from the deceased's net earnings. At the same time they have laid 10 down that the award is not to be a conventional one. The court therefore has to measure inpecuniary termsthe lossof something which is less, and appreciably less, than the deceased's prospective net earnings. What is that thing, the lossofwhich istobemeasured? Ifitcanbepositivelydefined, 15 as distinct from being deduced from what is left after certain not very precisely defined deductions are made, itseems to methat the thing, the lossofwhich hastobe measured, isthe amenity of earning more than isneeded to live a reasonably satisfying and potentiallyenjoyable life,takingintoaccountin 20 each case the particular circumstances of life of the particular deceased person. Thus, for example, inthis day and age the ordinary working man's life would not be regarded byhimas reasonably satisfactory and potentially enjoyable if he could notafford a shortholiday,a modestamountofentertainment 25 and social activity and, depending on his particular circumstances, a car. And it seems to me, therefore, that the amenity which he is deemed to have lost is the difference between what would be the cost of maintaining himself and providing those facilities, and, his prospective net earnings; 30 and in the cost of maintaining himself Iinclude the cost of his housing, heating, food, clothing, necessary travelling and insurances and things of that kind, if relevant. Although it seemstomeinsomewaysartificial todoso,forreasonsIhave alreadygivenitappearsthatheistobetreatedforthispurpose 35 asaneternallysingleman,ontheprinciple,Isuppose,thatthe money he in fact spends on hisfamily, ifhehas one, or ifitis likely that he will have one, is money which would be available after making provision for all the matters I have referred to,tobespent inotherwaysifhesodesired, thatisto 40 sayifheweretoprefer tospend itinotherwaysratherthan to 198 1C.L.R. 5 10 Phylactou v.Taliotis StylianidesJ. have a family. If he isto be treated inthisway itmust follow that, although the House of Lords,asI have mentioned, said that the award of damages should be moderate, his notional surplus must be large enough to cover at least a not insubstantial pan of the cost of maintaining a family, for although inthecaseofamaninthedeceased's circumstances it can be regarded as probable in normal circumstances that his wife, ifhe were to marry, would do some paid work from timeto time,itcannot be supposed that shealone would pay forthe housingand maintenance ofthe children». In Harrisv. Empress MotorsLtd. [1983] 3 All E.R. 561 (C.A.), the Court of Appeal considered all previous Case-law on the matter and concluded thatthe future isspeculative and allowance hastobemade forthefactthataman maynevermarry,maynever 15 save a farthing. With regard to the deductions, the following principleswere formulated:
(1)The ingredientsthatgotomake up«livingexpenses»arethe same whether the victim be young or old, single or married, with orwithout dependants. 20
(2)Thesumtobe deducted aslivingexpenses isthe proportion of the victims's net earnings that he spends tomaintain himself at thestandard oflife appropriate tohiscase.
(3)Any sums expended to maintain or benefit others do not form part of the victim's living expenses and are not to be 25 deducted from the net earnings. Thebasisfor theassessment ofcompensation for the «lostyears» was adopted and applied by this Court in the cases of Chrisostomou v. Plovidha and Kassinou v. Efstathiou (supra).In these cases, however, both deceased were married adults, well 30 settled wage earners. Theevidencebefore thetrialCourtcamefrom the plainfiff's mother, the Headmaster of the Gymnasium and from Eleni Egglezaki, a medical practitioner. The Court referred to that evidence and took it into consideration. The evidence of the 35 mother is that her son.was a bright boy who intended to pursue highereducationandthatascholarshipmightbegiventohim.The Headmaster testified that the deceased was attending the second form of the Gymnasium and he was of excellent conduct and performance. Hesaidthatitwasnotdifficult forapersontoobtain 199 StylianidesJ. Phylactou v. Taliotis
(1989)abroad the qualifications of a teacher of secondary education though itwas a costly operation;he added thatagreat numberof qualified teachers of secondary education are for years on a waiting listforappointment EleniEgglezaki, amedicalpractitioneratPaphosHospital,gave - 5 evidence about the years required for the study of medicine and the prospects and conditions of employment in Government Service The evidence before the trial Judge was meagre This is not surpnsing 10 The pnnciples upon which this Court will interfere with the assessment of damages of this kind are well settled This Court would not be justified to interfere with the findings of the tnal Judge on the question of amount of damages, unless it is convinced, either that the tnal Court acted upon some wrong 15 principle of law, or that the amount awarded was so extremely high, or so very small as to make it,inthejudgment of thisCourt, an entirely erroneous estimate of the damages to which the plaintiff is entitled (See Loizos Constanhnou ν Georghios Salachouns
(1969)1 C LR 416, Kynakos Chnstodoulides v. 20 Matheos Kypnanou
(1968)1CLR 130; GeorghiosRoumba ν Neophytos Shtakalh etc & Another
(1969)1 C L R . 537, Elpidoros Karavalbs ν Andreas Ν Economiades
(1970)1 C LR 271) TheJudge inthiscase had todo a ratherdifficult task, toassess 25 the loss of earnings for the «lost years» on slender evidence in a speculative way TheJudge would have misdirected himself if he speculated or ratherguessed, as suggested by Mr.Dracos We can dispose of thisappeal,ontheshortgroundthatwe have not been persuaded that there are reasons which would justify 30 interference with the award of the tnal Court inthe instant case Itcannotbe said, eitherthattheJudge erred inpnnciple,orthat the figure of his assessment is so law that it must be wrong We think itwas a moderate and reasonable estimate, but, even if itis considered low, itis notso low as tojustify the intervention of this Court The appeal isdismissed, but inallthecircumstances of the case we make noorder as to costs 200 Appeal dismissed. Noorderastocosts. 40