Judgments - O'Brien and others (FC) (Appellants) v. Independent Assessor (Respondent)

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    15.  I am not aware of any decided case in which the present issue has been contested. It might have been in the unusual case of Meah v McCreamer [1985] 1 All ER 367, but it appears to have been accepted in that case (see p 383) that the plaintiff had suffered no financial loss as a result of going to prison, since the money he had been saved as a result of being boarded in prison was regarded as exceeding any sum he might have earned. So, in choosing between these conflicting submissions, the House must be guided by principle and analogy. Both parties referred to authority on the calculation of claims for special damages made by plaintiffs suing for damages for personal injuries. In Shearman v Folland [1950] 2 KB 43 the injured plaintiff had lived before the accident in hotels to which she paid seven guineas a week for board and lodging. After the accident she spent just over a year in nursing homes at a cost of twelve guineas a week exclusive of medical expenses. The judge, in awarding damages, deducted the smaller figure from the larger, treating the difference as her loss. The Court of Appeal held this deduction to be excessive, but accepted the principle that a deduction should be made for the cost of food and lodging which would have had to be incurred even if the plaintiff had not been injured.

    16.  The important case of British Transport Commission v Gourlay [1956] AC 185, established the principle that a plaintiff cannot recover more than he has lost, that the law must have regard to realities rather than technicalities and that where a claim lay for the loss of income which, if earned, would have been taxed, what the plaintiff really lost was what would have remained to him after payment of tax: see Parry v Cleaver [1970] AC 1, 13. It was this latter case which identified justice, reasonableness and public policy as the guiding principle of the common law in this area.

    17.  In Daish v Wauton [1972] 2 QB 262 a young child was very seriously injured and the trial judge, in calculating his loss of future earnings, made a substantial reduction to reflect the cost of maintaining himself which the child would have incurred if uninjured but which, in the event, he would not incur because he would be supported in a state institution free of cost. The Court of Appeal disapproved of that approach, holding that benefits received under the National Health Service should be ignored. But the effect of the Court of Appeal's decision was reversed by section 5 of the Administration of Justice Act 1982, which provided:

    "In an action under the law of England and Wales or the law of Northern Ireland for damages for personal injuries (including any such action arising out of a contract) any saving to the injured person which is attributable to his maintenance wholly or partly at public expense in a hospital, nursing home or other institution shall be set off against any income lost by him as a result of his injuries."

This is the only explicit, non-judicial, expression of public policy in this field. Its meaning is clear. In assessing the compensation due to an injured person for loss of earnings caused by his injuries allowance must be made for savings attributable to his maintenance at public expense. Such allowance was plainly seen as necessary if the injured person was not to be over-compensated.

    18.  After the Court of Appeal decision in Daish v Wauton, but before the enactment of section 5, the House made two important decisions. The first of these was Pickett v British Rail Engineering Ltd [1980] AC 136, in which the problem was to assess the earnings of a plaintiff during years lost to him (and his estate) as a result of the injury of which he complained. Should allowance be made for the living costs he would have incurred had he lived? The House held that it should. Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174 concerned a catastrophically injured plaintiff whose expectation of life was not significantly reduced. She had large claims for loss of earnings and the cost of future care. The House held that deductions must be made from the damages awarded to reflect the cost of earning the lost future income and also the basic living expenses which the injured party would have incurred in any event.

    19.  Brief mention may be made of two decisions of the House since the enactment of section 5, neither of which concerned the permissibility of deducting living expenses from claims for loss of earnings. Dews v National Coal Board [1988] AC 1 concerned a claim by an injured miner to recover pension contributions which he would have made if uninjured but had not made because of his injury. The non-payment did not affect his pension rights. The House acknowledged (p 12) the "fundamental principle of English law that damages for personal injury are compensatory, and intended so far as money can to put the plaintiff in the same financial position as if the accident had never happened". The object (p 14) is to determine "what the plaintiff has really lost" and so,

    "When a plaintiff is injured and as a result is paid no wages his immediate real loss is that part of his net earnings that were available for current expenditure."

In Hussain v New Taplow Paper Mills Ltd [1988] 1 AC 514 the issue was whether, in calculating the injured plaintiff's claim for loss of earnings, credit should be given for sums he had received under his employers' insurance scheme. The rule was held to be (p 527)

    "that prima facie the only recoverable loss is the net loss. Financial gains accruing to the plaintiff which he would not have received but for the event which constitutes the plaintiff's cause of action are prima facie to be taken into account in mitigation of losses which that event occasions to him. In many, perhaps most cases, both losses and gains will come into the calculation."

    20.  In Toneguzzo-Norvell v Burnaby Hospital [1994] 1 SCR 114 the Supreme Court of Canada considered the case of a catastrophically injured plaintiff who claimed for loss of earnings both during the period she would live (as in Lim Poh Choo) and during the period in which, as result of the injury complained of, she would not live. The court held it to be "established that a deduction for personal living expenses must be made from the award for lost earning capacity for the years she will actually live" and continued:

    "A number of considerations suggest that a deduction for personal living expenses should be made from the award for lost earning capacity during the 'lost years'. The first is the fact that the projected earnings could not have been earned except on the supposition that the plaintiff would have been alive to earn them. There can be no capacity to earn without a life. The maintenance of that life requires expenditure for personal living expenses. Hence the earnings which the award represents are conditional on personal living expenses having been incurred. It follows that such expenses may appropriately be deducted from the award. Against this, it is argued that if Jessica had been born a millionaire, her personal living expenses during the 'lost years' would have been met from other sources. But this does not negate the fact that in order to earn income one must live and incur the attendant expenses.

    It can be argued that not to make a deduction for personal living expenses is to introduce into the award for lost earning capacity for the 'lost years' a measure of overcompensation akin to the duplication which the law avoids in the case of an award for lost earnings during the plaintiff's actual lifespan. This deduction has been justified for the years before the plaintiff's actual projected death, on the ground that it avoids duplication between the award for cost of care and the award for lost earning capacity. But in fact, the 'lived years' and the 'lost years' cannot be so easily distinguished. The same reasoning applies to both: had the plaintiff been in a position to earn the monies represented by the award for lost earning capacity, she would have had to spend a portion of them for living expenses. Not to recognize this is to introduce an element of duplication and to put the plaintiff in a better position than she would have been in had she actually earned the monies in question."

    21.  The assessor held, at para 13 of both assessments, that saved living expenses should be taken into account in computing the appellants' loss of earnings claims for a number of reasons, of which the first was:

    "Common law principles require that there should be no double compensation. Past and future loss of earnings compensation embraces living expenses that will be paid for out of such earnings. In fact, because he was imprisoned, the applicant did not incur such living expenses. That provides a financial benefit for which credit must be given. The principle accords with the common law approach. See for example Hodgson v Trapp [1989] AC 807 in which, before the later statutory change, the court felt that past and future benefits must be deducted so as to avoid double compensation."

The assessor went on to refer to Meah v McCreamer [1985] 1 All ER 367, and section 5 of the 1982 Act. When his assessment was challenged the assessor in para 25(c) of the addendum to his assessment, adhered to his earlier approach:

    "The true analysis is that by reason of a miscarriage of justice, he has suffered a loss of earnings. Had he not been the victim of a miscarriage of justice, part of those earnings would have been spent on his own living expenses. 25%, as deducted here, probably represents a modest sum for such living expenses. Having dealt with the question of what he has lost by reason of his imprisonment, there is a requirement to consider any set-off against that loss for any expense which has not been occasioned by reason of his being in prison. It is in that context that the deduction from loss of earnings arises in relation to saved living expenses."

    22.  In quashing the assessor's decision on this issue the judge held that he had misunderstood the relevant common law principle and misunderstood or placed undue weight on certain authorities he had relied on. The judge mentioned section 5 of the 1982 Act, to which he said he would return, but he does not appear to have done so. In the Court of Appeal, Auld LJ reviewed this issue in paras 87-104 of his comprehensive judgment, substantially endorsing the assessor's approach. Longmore LJ agreed (paras 126-135), basing his judgment primarily on the "lost years" approach upheld in Pickett v. British Rail Engineering Ltd [1980] AC 136. Gage J agreed.

    23.  It is in my opinion inapt and understandably offensive to the appellants to regard or treat their imprisonment as a benefit conferred on them by the state. A Prison Service Instruction (09/1999) on which they relied forbids deductions for board and lodging from the wages of prisoners working on enhanced wages schemes in prison or on pre-release schemes outside prison, accepting that prisoners cannot be required to pay for their own imprisonment and cannot consent to do so. I have no doubt that this is a salutary principle. But recognition of that principle does not in my opinion resolve the issue in this appeal. The assessor's task, in relation to the appellants' loss of earnings claim, was to assess what they had really lost. That, and that only, was the loss for which they were to be compensated. The assessment has necessarily to be hypothetical, but must be as realistic as possible. If the appellants were awarded the full sum of their notional lost earnings with no deduction save tax, they would in reality be better off than if they had earned the money as free men since as free men they would have had to spend the minimum necessary to keep themselves alive. The deduction puts the appellants in the position in which they would in reality have been had they earned the money as free men and so compensates them for their actual loss. In my opinion, the assessor and the Court of Appeal reached the correct conclusion, and I would reject this ground of appeal.

The second question: the deduction under section 133(4A)(c)

    24.  The thrust of the appellants' argument is summarised in para 3 above, from which its restricted focus is apparent. The appellants were younger men and had much less serious criminal records than Mr Robinson, and therefore one would have expected any deduction made under section 133(4A)(c) in their cases to have been smaller, or at any rate not greater, than that made in the case of Mr Robinson. But, as already noted, the deductions of 25% and 20% made by the assessor in their cases substantially exceeded the 10% deduction made by Sir David Calcutt QC in the case of Mr Robinson. That (it is argued) was a departure from the principle that like cases should be treated alike and unlike cases differently, a departure which called for justification, which has not been given. Mr Engelman relies by analogy on authorities relating to disparity in sentencing and contends that the appellants have a justified sense of grievance such that the House should interfere.

    25.  Mr Burnett QC, for the assessor, replies that his decision on this point can be disturbed only if it is shown to be unlawful on one of the recognised public law grounds. In this case it must be shown to be irrational or, perhaps, vitiated by lack of reasoning. It is neither. The authorities on disparity in sentencing do not assist.

    26.  It is convenient to touch first on this disparity argument. In some cases (of which R v Fawcett (1983) 5 Cr App R(S) 158 is an example) an appeal against sentence has succeeded because right-thinking members of the public, learning of a lenient sentence imposed on a co-defendant, would think something had gone wrong with the administration of justice on also learning of a disproportionately severe sentence passed on the appellant. In some of the cases such an appellant is said to have a justified sense of grievance. If the matter is viewed through his eyes alone, that may sometimes be so. But the appellate courts of all three United Kingdom jurisdictions have shown themselves to be, in varying degrees, resistant to disparity arguments of this kind, and the reason is not hard to discern. For while the perception of the sentenced defendant is important, a criminal sentence is imposed in the interests of the public and for its protection. The "right" sentence in a given case is that shown by statute, authority and other guidance to be best fitted to serve those ends. Thus a court will, and generally should, be very slow to impose what it regards as anything other than the right sentence simply because it or another court has imposed a "wrong" sentence on a co-defendant. The more usual approach is that very recently articulated by the Court of Appeal (Criminal Division) in R v Tate [2006] EWCA Crim 2373, para 20:

    "The fact that the co-defendant Sheppard appears to have been extremely fortunate is not in our judgment a good reason for imposing a sentence on the appellant that would in our judgment be less than the facts of the case merit."

    27.  In the case of Vincent Hickey the assessor, in his assessment, reviewed his criminal activities and said (para 5):

    "Having regard to the seriousness of these matters and in particular the robbery at Chapel Hill Farm, I firmly conclude that the non-pecuniary loss award should be subject to a deduction of 25%. This I regard as the very least deduction that can reasonably be made, having regard to his criminal behaviour."

In Michael Hickey's case also the assessor summarised his criminal activity and said, at para 6:

    "There is no responsible basis upon which such serious convictions can be ignored in the assessment of non-pecuniary loss. In the circumstances, I make a reduction of 20% in respect of such matters from the total award of non-pecuniary compensation. This is slightly less than Vincent Hickey because of age and different record."

When his assessment was challenged, the assessor did not agree that the 10% reduction in Mr Robinson's case could not be exceeded because of a supposed need for or expectation of consistency, and declined to alter his assessment.

    28.  On the appellants' application for judicial review the judge accepted (para 44) that if the same assessor had determined all three cases he would not have made such different deductions in the appellants' cases and Mr Robinson's. But he also held that when considered individually and by reference to each other, but without reference to Mr Robinson, the deductions made in the appellants' cases could not be said to be irrational or otherwise susceptible to challenge. This conclusion is not challenged. The judge said (para 48):

    "[The assessor] simply disagreed with the 10% reduction which Sir David Calcutt had made in Robinson. Was he to make what he believed (and, in my judgment, permissibly believed) to be the correct deduction or was he bound to allow himself to be influenced by an award with which he disagreed? In my judgment it was neither irrational nor otherwise unlawful for Lord Brennan to apply deductions of 20-25% which were in all other respects unobjectionable."

Any sense of grievance which the appellants had would not in the judge's opinion be justified, and accordingly the decision could not be quashed as Wednesbury unreasonable (Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223).

    29.  Auld LJ addressed this issue in paras 114-124 of his judgment, with which the other members of the court agreed. He held that the assessor's reasons for departing from his predecessor's percentage were reasonable and adequately explained.

    30.  It is generally desirable that decision-makers, whether administrative or judicial, should act in a broadly consistent manner. If they do, reasonable hopes will not be disappointed. But the assessor's task in this case was to assess fair compensation for each of the appellants. He was not entitled to award more or less than, in his considered judgment, they deserved. He was not bound, and in my opinion was not entitled, to follow a previous decision which he considered erroneous and which would yield what he judged to be an excessive award. While he did not, in his initial assessments, refer to Sir David's 10% deduction, he made plain that he regarded the deductions he did make as the permissible minimum. In his addendum his disagreement with Sir David was express. Since the appropriate deduction is a highly judgmental matter and the assessor's deductions are not in themselves impugned, I would reject the appeal on this ground also.

    31.  I have, and may perhaps express, some reservations about the operation of section 133(4A)(c), although these do not bear on the disposal of either issue in this appeal. Auld LJ, in para 113 of his judgment, well described the purpose of the provision:

    "The mischief at which the provision is directed - the reason for enabling a deduction to be made for criminality from the entirety of the non-pecuniary suffering (save for personal injury) caused by the miscarriage of justice - is, in my view, two-fold. First, it enables account to be taken of the concurrent effect of any punishment for criminal offences of which the claimant has been rightly convicted and sentenced. Second, it allows an Independent Assessor to reflect the fact that an undoubted or hardened criminal may not suffer so greatly as a person of previous good character from many of the incidents of wrongful conviction and loss of liberty, in particular as to harm to reputation, injury to feelings, inconvenience, separation from family and other unpleasant aspects of incarceration …"

The factors referred to are all, in my opinion, likely to be very relevant. But they are, as it seems to me, factors which can and should be inherent in any assessment of the non-pecuniary loss suffered by any wrongly-imprisoned claimant: it is of the highest relevance that a claimant would have been in prison in any event or had a very bad criminal reputation independently of the offence of which he was unjustly convicted. Thus I would expect account to be taken of these matters at the first stage of the assessment rather than to base that assessment on assumed and fictional facts. But if account is taken of such matters at the first stage of the assessment, I am unclear what justification there can be for making a percentage deduction at a later stage. This matter, not raised by counsel in argument, perhaps merits consideration.

    32.  For the reasons I have given I would dismiss this appeal and invite written submissions on costs within 14 days.


My Lords,

    33.  I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill and gratefully adopt his description of the facts that have given rise to this appeal and the issues for your Lordships' decision.

    34.  The appellants, Mr Vincent Hickey and Mr Michael Hickey, have raised in this appeal two issues regarding the compensation awards in their favour made by the Independent Assessor. First, each of them contends that, in assessing the compensation that should be paid to him on account of his wrongful imprisonment in 1979 for the murder of Carl Bridgewater, the Independent Assessor, having arrived at the sum calculated to represent what he would have earned had he not suffered the wrongful imprisonment, erred in deducting a sum estimated to represent the cost of the bare necessities of life that the appellant would have had to incur had he remained at liberty. Secondly, each appellant challenges the deduction, made on account of his past criminality, from the compensation for non-pecuniary loss that he would otherwise have been awarded.

    35.  I am in complete agreement with the reasons given by Lord Bingham for his conclusion that on the "living expenses" issue the appeal should be dismissed. I wish to emphasise, in particular, my agreement that the deduction from a claimant's notional earnings for the period he has suffered wrongful imprisonment of a sum calculated to represent the cost of the bare necessities of life that he would, if at liberty, have had to incur cannot be justified, and has not been sought to be justified, as representing the value of a so-called benefit to the claimant of having been maintained at public expense during that period. I agree with my noble and learned friend Lord Brown of Eaton-under-Heywood that wrongful imprisonment cannot sensibly be characterised in any way as conferring a benefit (para 92 of his opinion). The justification for the deduction is, to my mind, that compensation is intended, so far as lost earnings are concerned, to provide the claimant with the sum that, had he been at liberty he would have had at his disposal to expend or save as he chose. Expenditure on the bare necessities of life is an essential, not a choice. So the deduction is necessary to achieve the object of the lost earnings element of a compensation award.

    36.  On the second issue, the deduction for past criminality, the only point argued before your Lordships has been based on the comparison between the 10% deduction for past criminality made by Sir David Calcutt QC in assessing the non-pecuniary loss element of the compensation awarded to Mr Robinson, a victim of the same miscarriage of justice as the Hickeys, and the 25% and 20% deductions made by Lord Brennan QC in assessing the non-pecuniary loss element of the compensation awarded to Mr Vincent Hickey and Mr Michael Hickey. It is accepted that Mr Robinson's criminal record was significantly worse than that of either of the Hickeys and the comparison undermines, it is submitted, the fairness, the propriety and, consequently, the legality of the greater deductions made in their respective cases. They seek an order remitting to Lord Brennan for reconsideration the amount of the criminality deductions proper to be made.

    37.  I must return to the comparative unfairness point, which, as I have said, was the only point regarding the criminality deductions argued before the House. In my opinion, however, that is not the only point regarding these deductions that arises in this appeal. There has throughout been another point taken on behalf of the Hickeys that, in my opinion, deserves your Lordships' attention. The point relates to the manner in which Lord Brennan and, before him, Sir David Calcutt have applied the requirement spelled out in subsection (4A) of section 133 of the 1988 Act (added by amendment by section 28 of the 1995 Act: see para 9 of Lord Bingham's opinion) that in assessing compensation "attributable to suffering, harm to reputation or similar damage" the assessor must have regard to, among other things "any other convictions of the person and any punishment resulting from them" (para (c) of subsection (4A)). It appears that the practice of Sir David Calcutt was and of Lord Brennan is to calculate a non-pecuniary loss figure attributable to "suffering, harm to reputation or similar damage", taking into account "the seriousness of the offence of which the person was convicted and the severity of the punishment resulting from that conviction" (para (a) of subsection (4A) and "the conduct of the investigation and prosecution of the offence" (para (b) of the subsection"), and then to deduct from that figure a percentage attributable to the person's previous criminal record. The deduction is said to be justified, or perhaps to be required, by para (c) of the subsection.

    38.  Thus, in para 5 of his Assessment of the compensation to be paid to Mr Vincent Hickey Lord Brennan set out the three paragraphs of subsection (4A), expatiated on the seriousness of the claimant's previous convictions and concluded by saying -

    "Having regard to the seriousness of these matters … I firmly conclude that the non-pecuniary loss award should be subject to a deduction of 25%. This I regard as the very least deduction that can reasonably be made, having regard to his criminal behaviour."

Lord Brennan then considered the amount of the award for non-pecuniary loss that would be appropriate, arrived at the figure of £190,000 and reduced that sum by applying the 25% deduction (para 10 of the Assessment). The £190,000 included £50,000 for psychiatric injury to Mr Hickey attributable to his wrongful imprisonment and also included whatever sum Lord Brennan had decided was appropriate in respect of "the conduct of the investigation and prosecution of the offence" (para (b) of section 4(A)).

    39.  The Assessment of the compensation to be awarded to Mr Michael Hickey followed much the same lines save that a sum in respect of aggravated damages was added to the non-pecuniary award. £140,000 was awarded for "all factors other than psychiatric illness", £35,000 for the "aggravating features of the case" and £75,000 for psychiatric illness, giving a total of £250,000. The £250,000 was then subjected to the 20% deduction for past criminality (see para 10 of the Assessment).

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