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

102 The Weaknesses of the Pragmatic Tradition
case of an accident victim who was actually killed in the
accident, this rule did not cause any real problem, because
damages for the victim's earnings losses could be recovered
by the dependents in an action under the Fatal Accidents
Acts. But in the Pickett case the plaintiff was not killed in an
accident, but had contracted lung cancer through the negligence
of the defendants, and he had himself died shortly
after the trial leaving a widow and two children. Because he
had himself sued for damages for his injuries, no action lay
under the Fatal Accidents Acts on behalf of his dependents,
and the limitation of the damages for lost earnings after his
death to the arbitrary sum of £1,500 left them with a much
depleted claim compared with what they could have
recovered under the Fatal Accidents Acts if the action had
not been commenced until after the plaintiffs death. So the
result seemed very unfair, and the House of Lords overruled
Oliver v. Ashman and allowed damages for the losses of
earnings.
But this decision had a disastrous effect on other situations
where the rule in Oliver v. Ashman had worked perfectly
well, and shortly after the Pickett case, a whole stream
of new cases started to come before the courts in which nondependent
relatives of children claimed damages for losses
of earnings as a result of accidental deaths. In Gammell v.
Wilson 20 two of these cases reached the House of Lords who
now threw up their hands in despair at the mess which they
had made of the law, and insisted that the legislature step in
to clear it up. The legislature responded to this appeal with
some speed by incorporating some amendments into the
Administration of Justice Act 1982, but the story as a whole
illustrates some of the weaknesses of the pragmatic tradition
20 [1982] A.C. 27.