Pragmatism and Theory in English Law - College of Social Sciences ...

The Weaknesses of the Pragmatic Tradition 101
approach to conceptual theoretical issues is that even
judges sometimes feel the need to base their decisions on
some sort of theoretical analysis, and if the theory of the law
is weak judges may sometimes abandon the pragmatic traditions
of the law, and get themselves embroiled in the most
dreadful conceptual morass. One striking example of this
sort of morass is provided by the series of Court of Appeal
judgments which preceded the House of Lords decision in
Johnson v. Agnew 17 which mercifully cleared up the mess.
Unfortunately this kind of "logical" refinement (I would
rather say "pseudo-logical refinement"), is by no means
uncommon, and it does not always get put right. The story
of damages for lost expectation of life is a messy and indeed
lamentable illustration of what can go wrong when the common
law's step by step pragmatism comes into collision
with the need for an overall view of an area of law, built on a
sound theoretical basis. In Pickett v. British Rail i8 in 1980 the
House of Lords was faced with an apparently very hard
example of the workings of the rule in Oliver v. Ashman. 19 In
the later case, the Court of Appeal had held that a claim by
a living plaintiff for damages for personal injury which had
shortened his expectation of life exhausted his claims for
lost earnings during the so-called "lost years," that is, the
period when the plaintiff might have been expected to be
alive and earning if it had not been for his injuries. The
problem with this ruling, of course, was that damages for
lost expectation of life were limited by previous decisions to
a nominal and arbitrary amount, of about £1,500, which
could be very much less than the lost earnings after the
plaintiffs expected and premature death. In the ordinary
17 [1980] A.C. 367.
18 [1980] A.C. 136.
19 [1962] 2 Q.B. 210.