Date: Thu, 27 Nov 2003 19:21:58

From: Andrew Tettenborn

Subject: Rees v Darlington, cont

Jason was no doubt providing the devil with some of the best advocacy around when he suggested that the insurance bill for all of us might go up if we allowed contractual claimants in respect of failed sterilisations to include the cost of raising the unwanted progeny (though I doubt it).

But Lord Scott's view in Darlington, which Jason commends, deserves a second look because it raises an important can of worms in the damages area. Scott said, in effect, that the joy of a child was an unmeasurable but positive thing, and that for that reason it was unfair to let the unsterilised parent claim the cost without taking account of the (intangible) pleasures.

Two issues:

(1) Do we deduct intangible gains from damages for financial loss in other cases? Not normally, as far as I know (though admittedly authority is pretty thin on the ground). Suppose my agent, in breach of his duty to me, causes £500 of my money to be spent on a makeover of my garden which I greatly appreciate, but which I wouldn't have otherwise bought because I couldn't afford it. Do we dock my recovery of £500 to reflect my pleasure at the beauty of the new gladioli? I doubt it: I surely get £500 in full.

(2) More importantly, Rees puts one in mind of some important unexplored issues as to deduction of benefits in damages litigation: namely, the mutual deductibility of tangibles and intangibles in damages generally, whether there is (or ought to be) a 'like for like' limitation operating here, and if yes, on what basis. My small child is killed: in my action under the wrongful death law for solatium, do we deduct the saved costs of raising the infant? If I am disabled from working, but by a quirk of the social security system now receive more then I got for working, does this excess fall to be deducted from my pain and suffering recovery? And so on. Instinctively we say No to deduction in cases like this. But why we do this is, it seems to me, devilishly awkward.

Andrew

Andrew Tettenborn
Bracton Professor of Law, University of Exeter, England

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