SANSONT, J.—Thavathurai v. Rochai
1959Present: Sansonl, J., and T. S. Fernando, J.A. THAVATHURAI, Appellant, and T. S. ROCHAI, Respondent
8. C. 199—D. O. Mannar, 11,024
Collision—Damages—Insurance policy held by plaintiff—Effect of it on assessment ofdamages.
Plaintiff sued the defendant for damages resulting from a collision betweenthe defendant’s station wagon and the plaintiff’s motor car. Plaintiff hadalready been indemnified by his insurers.
Held, that the defendant was not entitled to diminish the damages by showingthat the plaintiff had obtained compensation for the injury under a policy ofinsurance held by the plaintiff.
xaPPEAL from a judgment of the District Court, Mannar.
6f. D. C. Weerasinghe, with N. R. M. Dahiualte, for the Plaintiff-Appellant.
S. Sharvawmda, for the Defendant-Respondent.
Cur. adv. vvli.
May 8, 1959. Sansoni, J.—
This action was brought by the plaintiff to recover a sum of Rs. 4,266 • 87from the defendant as damages resulting from a collision between thedefendant’s station wagon and the plaintiff’s motor car.
The only matters in dispute were (1) whether the plaintiff has provedthe damage actually sustained by his motor car from the collision, and(2) whether the plaintiff was entitled to recover any damages at all fromthe defendant, seeing that he had been indemnified by his insurers.
The learned District Judge held that as the plaintiff had received asum of Rs. 2,081/33 from his insurers he was entitled to recover a sumof only Rs. 600 from the defendant, to cover further damages which hehad suffered but had not received from the insurers.
The repairers’ bills for the repairs effected, totalling Rs. 2,081 *33,were settled by the plaintiff’s insurers and the learned Judge was satisfiedthat these repairs were necessary. The defendant-appellant’s counselurged that there was insufficient evidence to prove the actual damagesuffered by the plaintiff’s motor car as a result of this accident, but wedo not think that there is any reason to doubt that these repairs wererendered necessary by this accident. As the plaintiff was deprived ofthe use of his motor car for three months and incurred other expensesowing to the accident, which the learned Judge has assessed at Rs. 600,
SANSOHI, J.—Thavathurai v. Rochai
this sum must be added to the sum of Bs. 2,081 33, and the plaintiff istherefore entitled to recover the total sum of Bs. 2,681‘33, unless thedefence succeeds on the question of law.
Now the law has always been that a defendant cannot diminish thedamages by showing that the plaintiff has obtained compensation for theinjury under a policy of insurance—see 23 Halsbury (2nd edition) page726. This rule has stood for nearly 200 years and has never been doubted.But it is submitted that a different view should now be taken in view of thedecision of the House of Lords in British Transport Commission v. Oourley1.
It was decided there that in assessing damages, in an action for personalinjuries, for the loss of actual or prospective earnings, the Court musttake account of the plaintiff’s net earnings after deduction of tax, andnot his gross earnings. The principle applied was that the plaintiff insuch a case should be awarded such a sum of money as will put him in thesame position as he would have been if he had not sustained the injuries,and it would therefore be wrong to award the plaintiff a sum withoutregard to the amount of tax for which he would be liable.
The case had nothing to do with the other principle that I referred to,that the defendant cannot claim any benefit from the circumstance thata plaintiff has been insured. There seems to be some uncertainty asto the true basis upon which that principle rests. Pigott B. in Bradburn■v. Great Western Railway 8 said : “ There is no reason or justice in settingoff what the plaintiff has entitled himself to under a contract with thirdpersons, by which he has bargained for the payment of a sum of moneyin the event of an accident happening to him. He does not receive thatsum of money because of the accident, but because he has made a contractproviding for this contingency ; an accident must occur to entitle him toit, but it is not the accident but his contract which is the cause of hisreceiving it
Another view is that a wrongdoer should not get the benefit of thefortuitous circumstance that the plaintiff was insured, and appropriate tohimself the benefit of the premiums paid by the plaintiff to cover accidentrisks. An editorial note in the Law Quarterly Review, Vol. 72, page154 says: “ The rule concerning insurance is a peculiar one, based onconsiderations of public policy ”, and this is also the view of Mr. MeHerron in his book The Law of Delict (5th edition) page 107 where he rays :
“ The result of the decisions is that the plaintiff may sometimes receivedouble compensation. They are therefore anomalous in that they involvea departure from the rule that damages in the Aquilian action are essen-tially compensatory. The truth would appear to be that it is impossibleto justify the anomaly on purely logical grounds, and that it must beregarded as based on considerations of social policy. The interests ofsociety are sometimes better served by allowing the injured party torecover damages beyond the compensatory measure than by allowingthe wrongdoer to benefit by the fact that some other person has dischargedhis liability. Moreover, the effect of refusing to allow recovery in fullwould be to deprive the third party of any right he might have to claimreimbursement from the injured party by subrogation or cession of
1 (1956) A. G. 185.
• (1874) L. R. 10 Ex. 1.
BASNAYAKE, C.J.—Nanaydklcara v. Pablis Silva
This comment and the note in the Law Quarterly Review were writtenafter the decision in British Transport Commission v. Gourley1 andthey support the view that the decision in that case does not affect theprinciple I have referred to.
I would therefore set aside the judgment under appeal and give theplaintiff-appellant judgment in a sum of Rs. 2,681 • 33 and his costs inboth Courts.
T. S. Fernando, J.—I agree.
A. THAVATHURAI, Appellant, and T. S. ROCHAI, Respondent