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COURT OF APPEAL
[1934. F. 353.]
1934 Nov. 6, 23.
CWLR (1934) 1
CHILDREN AND WOMEN LAW: Women and Highway Accidents – Woman driver – Accident arising from negligent driving occasioning injury to aged party – How treated
BEFORE THEIR LORDSHIPS:
GREER, SLESSER and ROCHE L.JJ.
RICHARD O’SULLIVAN K.C. and GERALD GARDINER for the respondent.
MAURICE HEALY K.C. and N. R. FOX-ANDREWS for the appellants.
Solicitors for appellants: JOYNSON-HICKS AND Co.
Solicitors for respondent: WILEY AND POWLES
TORT AND PERSONAL INJURIES: – Negligence – Motor vehicle occasioning Personal injuries – Damages – Expectation of life – Whether shortening of expectation can be considered in the assessment of damages.
ELDERS LAW: – Aged person of 70 years in good health and good condition meeting with a terrible accident caused by negligence of driver – Assessment of damages for shortening of length and quality of life – Advanced age as a factor in assessment of damages – how treated
MOTOR TRAFFIC AND TRANSPORT LAW: – Motor vehicle related accident – Establishment of negligence against driver – relevant considerations
HISTORY AND SUMMARY OF FACTS
A plaintiff met with an accident through the negligence of the defendant and sustained serious personal injuries whereby the expectation of his life was materially shortened. The plaintiff brought an action to recover damages for the injuries he had sustained:-
Held (by Greer and Slesser L.JJ., Roche L.J. dubitante), that in assessing the damages the judge was entitled to take into consideration as one of the elements of damage the fact that the plaintiff’s normal expectation of life had been materially shortened.
APPEAL from a decision of Acton J.
The plaintiff brought an action against Mr. and Mrs. Lovell to recover damages for personal injuries caused by the negligence of the female defendant in driving a motor-car so as to bring it into collision with the plaintiff’s car, with the result that he suffered serious personal injuries.
There was no dispute as to the liability of the defendants to pay damages, and the amount of 400l. was agreed as the amount of the special damage which the plaintiff was entitled to recover.
ACTON J. in delivering judgment said:
In this case a gentleman of 70 years of age, who, according to the evidence, which I accept, was a man in good health and good condition for a man of his years, who was living an exceptionally active and energetic life and was able to do so without the slightest inconvenience, met with this terrible accident, as a result of which, as I find, his life will be very materially shortened, and he is now unhappily, according to the unanimous testimony of the doctors whom I have heard in this case, not expected to live very long – probably something under a year.
It is a most difficult thing to estimate damages in those circumstances, and I agree with Mr. O’Sullivan that all one can do is to endeavour to approach it as a special jury might be expected to approach it. There is no doubt that he suffered terribly as the result of this accident; there is no doubt that he will go on suffering from the effects – although of course the acute pain is now over – until the time arrives when he dies as a result of the accident. There is no doubt that he has lost the prospect of an enjoyable, vigorous and happy old age which I am satisfied on the medical testimony might have gone on for a number of years if this unhappy accident had not occurred.
The special damages are agreed at a sum of 400l. I award the plaintiff the sum of 4400l. and for that I give judgment with costs.
The defendants appealed.
The appeal was heard on November 6, 1934.
Maurice Healy K.C. and N. R. Fox-Andrews for the appellants.
The amount of the damages which the judge awarded is so large that the judge must have given damages for the shortening of the plaintiff’s life. That element cannot be taken into account in the assessment of damages for personal injuries. It was laid down in Baker v. Bolton (1) and reaffirmed by the House of Lords in Admiralty Commissioners v. Owners of S.S. Amerika (2) that in a civil court the death of a human being cannot be complained of as an injury. If the death of a human being cannot, apart from statute, give a right of action it is difficult to see how the shortening of life can give such a right of action or constitute an independent head of damage. Further, if such a sum as has been given as damages in the present case can be given for the shortening of the life of a man aged 70, a young man or a man of middle life would have to be given damages on a much larger scale for the shortening of their lives. The shortening of a man’s life cannot be taken into account at all as an independent head of damages; it can only be taken into account in assessing damages by reason of the increased suffering caused to the man by his knowledge of his impending death.
Richard O’Sullivan K.C. and Gerald Gardiner for the respondent.
The Court is entitled to take into account the shortening of the plaintiff’s life in assessing the damages to which he is entitled for his personal injuries due to the female defendant’s negligence. It was held in Fair v. London AND North Western Railway Co. (3) that a jury in assessing compensation for personal injuries occasioned by negligence should take into consideration (inter alia) the injury the plaintiff has sustained in his physical capacity of enjoying life. Field J. in directing the jury in Phillips v. London AND South Western Railway Co. (4) said: “An active, energetic, healthy man is not to be struck down almost in the prime of life, and reduced to a powerless helplessness with every enjoyment of life destroyed and with the prospect of a speedy death, without the jury being entitled to take that into
(1) (1808) 1 Camp. 493.
(2)  A. C. 38.
(3) (1869) 21 L. T. 326.
(4) (1879) 5 Q. B. D. 78, 80, 86.
account.” That direction was not disapproved by the Court of Appeal. The principle laid down by Lord Ellenborough in Baker v. Bolton (1) that “in a civil court, the death of a human being could not be complained of as an injury,” which was followed in Osborn v. Gillett (2) and in Admiralty Commissioners v. Owners of S.S. Amerika (3) does not arise in the present case, because in those cases death had supervened whereas in the present case the plaintiff has not died. A living person is complaining of the damage that he suffers by reason of the shortening of his life.
GREER L.J. This is an appeal from the judgment of Acton J. whereby he awarded to the plaintiff the sum of 4400l. as damages for personal injuries caused by the negligence of the female defendant in driving her motor-car so as to bring it into collision with the plaintiff’s car, with the result that he suffered grave personal injuries. There was no dispute as to the liability of the defendants to pay damages, and the amount of 400l. was agreed as the amount of the special damage which the plaintiff was entitled to recover.
The learned judge came to the conclusion on the facts given in evidence, that before the accident the plaintiff was a man in good health and in good condition for a man of his years. There was some evidence that he had before the accident had heart trouble, but that was contradicted by the evidence of the plaintiff’s witnesses, which the learned judge accepted, and I think we must deal with this case as the case of a man who for his age, which at the time of the accident was 69 and at the time of the trial 70, a man of ordinary health who might in the ordinary course be expected to live for at least eight or nine years, subject of course to the average risks of human life. In giving judgment the learned judge said that he found that the plaintiff’s life would be very materially shortened, and that at the date of the trial he was unhappily, according to the
(1) 1 Camp. 493.
(2) (1873) L. R. 8 Ex. 88.
(3)  A. C. 38.
testimony of the doctors, not expected to live for long, probably something under a year. In the conclusion of his short judgment the learned judge said: “There is no doubt that he has lost the prospect of an enjoyable, vigorous and happy old age which I am satisfied on the medical testimony might have gone on for a number of years if this unhappy accident had not occurred.” He then awarded the plaintiff 4000l. in addition to the agreed amount of special damages.
It is unnecessary to state in any detail the evidence as to the results of the accident upon the plaintiff. I think we ought to accept the judge’s finding that by reason of the accident the plaintiff’s future was reduced to pain and suffering for a year with, a certainty of additional medical and nursing expenses, and the high probability that by reason of the injuries caused by the defendant’s negligence he would be dead within a year. If it was open to the judge to take into account the probability of early death, though this is a border line case, I do not think it can be said that the damages which he awarded, though somewhat on the generous side, are such that the Court of Appeal ought to interfere with his decision and reduce the damages.
The question that arose for consideration during the argument, on a suggestion that came from the Court, was whether, having regard to the decision in the case of Admiralty Commissioners v. Owners of S.S. Amerika (1) it was permissible in law for the plaintiff to claim damages in respect of a reasonable certainty that his life had been substantially shortened by the wrongful act of the defendant. It is clear from that decision that any person who suffers damage by reason of the death of another occasioned by the wrongful act of a third party in respect of which the law would otherwise give him a cause of action, cannot rely on the death either for the purpose of proving a cause of action, or for the purpose of recovering damages for a cause of action which he proves independently of the death. It is plain that the decision of the Court in that case, which is based on two old cases: Higgins v. Butcher (2) and Baker v. Bolton (3), extends not merely to
(1)  A. C. 38.
(2) (1606) Noy, 18; Yelv. 89.
(3) 1 Camp. 493.
prevent the death of another being treated as a cause of action in the English Courts, but also to prevent the recovery of any damages in respect of the death of another person even where the cause of action is complete without any proof of the death. In referring to claims for damages for the loss of the services of a servant or daughter occasioned by the wrongful act of another person Lord Parker of Waddington says (1): “If the writ alleged only an injury per quod servitium or consortium amisit, the writ would be unobjectionable, but if death ensued, damage could be obtained up to the date of the death only.” Lord Sumner’s judgment is to the same effect. Both of these judgments contain interesting accounts of how the rule arose out of the old law in which the killing of any subject of the Crown could only be put in suit by a prosecution for felony by the Crown, the only remedy for the relatives of the deceased being an appeal under which the killer, if he did not arrange the matter with the relatives, could be subjected to certain cruel tests. Having regard to the peculiar origin of the rule, I have come to the conclusion that it has no application to a case in which a plaintiff still living at the date of the trial is asking for damages on the ground that he has not only suffered severe pains of body and mental disquietude through the prospect of an early death, but also claims that what might have been an eight to ten years pleasant life in which he could have carried on his normal activities has been converted into a precarious tenure not likely to exceed twelve months, during which he will continue to suffer severely as the result of the wrong of which he complains. It is my considered judgment that under the rules as to measure of damage laid down in Hadley v. Baxendale (2) the plaintiff’s claim to damages on the ground that his life would be shortened was one on which he is entitled to succeed.
I should like to add a few words about the jurisdiction of this Court in appeals where the only contention, or one of the contentions, is that the damages awarded by a judge hearing a case without a jury are excessive. It is not possible to say
(1)  A. C. 46.
(2) (1854) 9 Ex. 341.
that the tests which have been laid down in cases like Phillips v. London AND South Western Railway Co. (1) apply to an appeal from a judge trying a case without a jury, because an appeal is a rehearing by the Court with regard to all the questions involved in the action, including the question what damages ought to be awarded, but though the established rules with regard to the decisions of juries do not apply to appeals from the decision of judges trying cases without the assistance of a jury, I think it right to say that this Court will be disinclined to reverse the finding of a trial judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a lesser sum. In order to justify reversing the trial judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.
The result is that the appeal will be dismissed with costs.
SLESSER L.J. This is an appeal from a judgment of Acton J. awarding to a gentleman, who was very seriously injured in a collision between motor-cars, the sum of 4400l., 400l. of which were special damage. The sole question for our decision in this appeal is whether the damages were excessive. Were it not for certain grounds on which the learned judge bases his determination of damages, I should feel less difficulty about this appeal.
The plaintiff is a more or less wealthy man of 70 years of age. He had, before the accident, enjoyed a vigorous life, devoting himself to sport and recreation which he carried on notwithstanding his age, and the damages, though considerable, are not in themselves so excessive as to merit disturbance.
The difficult question of law arises thus: the learned judge finds, among other matters, that as a consequence of the accident the plaintiff has lost the prospect of an enjoyable, vigorous and happy old age, and that he has suffered terribly
as a result of the accident, and that there is no doubt that he will go on suffering from the effects. On this finding, I think that the learned judge would have been justified in awarding to the plaintiff very substantial damages as compensation for the wreck of his physical life, though not a sum so large as 4000l., but Acton J. has gone on to assign the reasons why he has assessed damages at the figure which is impeached, and this most difficult question of law arises, whether one of the grounds which he has so selected is a ground which supports a claim for damages at all. If it does not, I think that it is impossible to say that the sum awarded is not too great. If, on the other hand, the reason to which I shall shortly refer is a valid reason for giving or increasing damages, I do not think that the total sum is such that this Court is called upon to interfere with it.
I therefore approach the problem which the judge has raised by his judgment which is as follows: I have no doubt that he has included as one of the elements of damage the fact that the plaintiff’s life has been very materially shortened and that he is not expected to live very long, probably something under a year. Whereas, had the accident not occurred, the learned judge says that he is satisfied on the medical testimony that the plaintiff might have gone on living for a number of years. It was attempted in argument to say that this finding was no more than a finding that the mental pain and suffering of the plaintiff had been increased by the prospect of his early death. In my view, this interpretation is not possible. The learned judge clearly severs the question of the plaintiff’s suffering from the consideration of the loss of his prospect of life, for the learned judge states in addition to the physical disabilities and the suffering, the further ground for giving damages that the plaintiff’s life has been shortened.
Now, were there no principle to the contrary, it is clear to my mind that the general rule that a plaintiff may claim such damages as arise naturally and directly from the tort, would entitle him to say that the shortening of his life might properly be taken into consideration; for it is certainly on the judge’s finding the natural and direct result of the accident. But it is said that so to hold would be in effect to award the plaintiff damages in respect of death and that the authorities show that such damages cannot be allowed.
As a general proposition of law, if the claim be indeed in respect of death, this argument cannot be disputed. In the case of the Admiralty Commissioners v. Owners of S.S. Amerika (1)the House of Lords in terms so decided, upholding the principle laid down in Baker v. Bolton (2) that in a civil court the death of a human being cannot be complained of as an injury. Thus Lord Loreburn, in the Amerika case says (3): “It is far too late for this House to disturb the rule expressed by Lord Ellenborough in Baker v. Bolton” (2), and Lord Parker says(4): “I may point out that the correctness of the ruling in Baker v. Bolton (2) has been accepted, not only by all Courts in this country, but by the Supreme Court of the United States, nor can anything be found in the earlier authorities inconsistent with it.” And again, Lord Sumner adds (5) that the rule that “in a civil court the death of a human being cannot be complained of as an injury” is “a rule which has long been treated as universally applicable at common law,” and goes on to say that the rule has received statutory recognition in Lord Campbell’s Act.
Faced with this indisputable doctrine, Mr. Richard O’Sullivan for the plaintiff seeks to distinguish it in the present case on the following grounds: he says, as I understand him, that so much of the damage here as was attributable to the shortening of the plaintiff’s life was not given in respect of his death but in respect of the destruction of the prospect of future amenities of life which he might otherwise have enjoyed, and, to determine this point, I have found it necessary, once again, notwithstanding the exhaustive historical researches of Lord Parker of Waddington and Lord Sumner in the Amerika case (1) to consider, so far as is necessary for the present case, certain aspects of the rule in Baker v. Bolton. (2) In particular, I would emphasize this passage from the speech of
(1)  A. C. 38.
(2) 1 Camp. 493.
(3)  A. C. 41.
(4) Ibid. 42.
(5) Ibid. 50.
Lord Parker in the Amerika case where he says (1): “It is almost a commonplace that apparent anomalies in our law can generally be explained if we consider the conditions of its historical growth.”
A person upon whom the law imposes a duty and who grossly neglects to perform it or performs it with gross negligence may be guilty of manslaughter, a felony: Rex v. Tessymond (2), per Bayley J. According to Sir William Holdsworth (History of English Law, vol. 3, p. 331), “The rule that if a tort amounts to a felony the injured party’s right of action is barred does not seem to be expressly stated in the Year Books.” According to the same learned author, the general application of the rule is due to the fact that “in the great majority of cases in which death ensues as a result of a tort felony has been committed” (Ibid., p. 334).
The case of Higgins v. Butcher (3), decided in 1606, appears to be one of the earliest express statements of the rule that if a tort amount to a felony the injured party’s right of action is barred. Tanfield J. there says: “If a man beats the servant of J. S. so that he dies of that battery, the master shall not have an action against the other for the battery and loss of the service, because the servant dying of the extremity of the battery, it is now become an offence to the Crown, being converted into felony, and that drowns the particular offence, and private wrong offered to the master before, and his action is thereby lost.” (Fenner and Yelverton JJ. concurring.)
This is now too wide, and to give effect to the later authorities the rule must be construed in a more strict and limited sense. Thus, Lord Parker points out in the Amerika case (4), the generality of this rule was modified some years later in the case of Markham v. Cob (5) and in Dawkes v. Coveneigh (6), which, says Lord Parker, are authorities that in such felonies as burglary or larceny, “the trespass is not drowned in the felony, so as to preclude an action for the trespass, provided the requirements of public policy are first satisfied.” These
(1)  A. C. 44.
(2) (1828) 1 Lewin C. C. 169.
(3) Noy, 18; Yelv. 89.
(4)  A. C. 38, 48.
(5) (1625) Latch, 144; Noy, 82.
(6) (1652) Sty. 346.
cases, he continues, were quoted with approval by Sir Matthew Hale (1 Hale’s Pleas of the Crown, p. 546) and by Lord Ellenborough in Crosby v. Leng (1) and, says Lord Parker, “it cannot be disputed that they are good law.”
It is true that in Ex parte Ball (2) Baggallay L.J. said that “notwithstanding the existence of the cause of action, the policy of the law will not allow the person injured to seek civil redress if he has failed in his duty of bringing or endeavouring to bring the felon to justice.” But, as Lord Parker points out in the Amerika case (3), the Lord Justice says “a felonious act may (not that it must) give rise to a civil action.” Lord Parker proceeds: “Most felonies involve a wrong less than a felony, and for such a wrong civil proceedings will lie when once the demands of public policy have been satisfied. But there may be felonies where the only wrong is the felony itself, and it may well be that the felony cannot be made the subject of complaint in civil proceedings.” The problem raised by mayhem, an injury amounting to the deprivation of a limb useful for the purpose of fighting, is possibly soluble on the ground that mayhem never became an indictable felony although prosecuted by appeal of felony, and Britton actually recommends complainants in such cases to bring the action of trespass rather than the appeal as being under the degree of felony. Britton 49 (in trans. by Nichols (1865), vol. 1, p. 123): see Armstrong v. Lisle. (4)
In any event, whatever the modern extent of the rule that where the act complained of is a felony the civil action is lost, the whole principle depends upon the fact that the act itself is not only tortious but also felonious. As Sir Frederick Pollock writes (Law of Torts, 13th ed., p. 65): “Homicide is presumably felonious. Hence no civil action could be allowed for causing the death of a human being. The affinity of the rule, if any, is with the principle, long recognized but never properly defined till our own time, of trespass being ‘merged in felony.'”
(1) (1810) 12 East, 409.
(2) (1879) 10 Ch. D. 667, 674.
(3)  A. C. 49.
(4) (1696) Kely. Cr. Cas. 93; Salk. 60.
With these historical considerations in mind, I approach the present case. It is obvious that in so far as the plaintiff is still living, the doctrine actio personalis moritur cum persona, can have no application; and I have not paused to consider it. But equally, upon the Baker v. Bolton (1) principle, it is impossible to say that the tort, in so far as it shortened the plaintiff’s life, could in any circumstances merge in the felony, for the defendants, fortunately, did not kill the plaintiff and, if mayhem or wrongs analogous be excluded from consideration, have committed no felony at all. At most, criminally, the defendants’ wrong-doing might have amounted to a misdemeanour on which, alternatively, trespass could always properly be brought.
The final result is to point to a highly artificial rule limited to certain defined subject matter. There is, in my judgment, no scope in the present case for the application of the principle which I have discussed, which may apply where a felony has been committed, and no reason why, among other matters, the shortening of the plaintiff’s life should not be taken into account in the assessment of damages. I would quote in conclusion in this connection a passage from Blackstone’s Commentaries (vol. 3, p. 122), where, dealing with injuries, the learned author writes: “Injuries, affecting a man’s health, are where by any unwholesome practices of another a man sustains any apparent damage in his vigour or constitution.”
The view I here take does not appear to be inconsistent with the general principles laid down in Phillips v. London AND South Western Railway Co. (2), and particularly with the doctrine of Cockburn C.J. in that case (3), where he mentions, as matters for consideration for a jury, not only the bodily injuries sustained and the pain undergone, but also “the effect on the health of the sufferer, according to its degree and its probable duration as likely to be temporary or permanent.” And his dictum that, “as a general rule, where injury is caused to one person by the wrongful or negligent act of another, the compensation should be commensurate to the injury sustained.”
(1) 1 Camp. 493.
(2) 5 Q. B. D. 78.
(3) (1879) 4 Q. B. D. 406, 407.
In my opinion, for the reasons here stated, I think that the learned judge was entitled to take into consideration all the matters which he has mentioned in his judgment, and I see no reason to disturb the damages which he has found as a result of those considerations.
ROCHE L.J. I regret that I am unable to concur in the judgment of the Lords Justices. I am of opinion that the amount awarded to the plaintiff by the judgment under appeal was excessive and ought to be reduced. I agree with the view expressed by Greer L.J. that, notwithstanding the powers this Court undoubtedly possesses to review any decision of a judge, it ought not lightly to interfere with the conclusion reached by a trial judge as to the quantum of compensation to be awarded to a plaintiff, and I should certainly not favour such interference merely because I should myself have awarded somewhat more or less than the trial judge.
But in the present case, I am satisfied that the figure awarded by the learned judge was very much in excess of the proper figure, and to adopt the test laid down by Greer L.J. was an entirely erroneous estimate of the amount of the damage. My reasons for this opinion are as follows: the evidence showed that the plaintiff was for a man of 70 fairly healthy and likely to live some years if the accident had not happened, and that by reason of the accident this anticipation of life was reduced to not more than a year from the date of hearing. I do not doubt that this evidence was relevant, and had a very material bearing on the amount of damages to be awarded. I so think for two reasons: firstly, because the fact of such a reduction was a very strong piece of evidence upon the seriousness of the injuries unrepaired by medical treatment, and of the loss of vigour which is mentioned in the case cited by Slesser L.J., and such lasting injuries are properly an element, and not seldom the principal element, to be considered in assessing damages in a case of this kind; secondly, because impending death and the weakness preceding it and the knowledge of these conditions naturally produce or increase the pain and suffering which constitutes another element be considered in the assessment of damages in a case of personal injuries. The reasons given by the learned judge for his decision are not very full, and I make no criticism of that; but I infer from his language that he did consider and take into account the shortening of the plaintiff’s life in both the above connections.
But I also infer that the learned judge went further and included in the damages a sum, and I doubt not a substantial sum, for the actual or prospective shortening of the plaintiff’s life regarded as a further and independent head of damage. This is, I think, open to the objection that it has, in my opinion, tended to and resulted in compensation being given for the same matter more than once.
With regard to the interesting point as to the applicability to the present circumstances of the rule of law recognized and reapproved by the House of Lords in the case of Admiralty Commissioners v. Owners of S.S. “Amerika” (1), I entertain considerable doubts but I am not prepared to dissent from the conclusions of the Lords Justices who have given judgment. My doubts arise from these considerations: Firstly, on the theoretical side, though it is no doubt true that the law of England is not in all respects logical, it would seem to go to an extreme in lack of logic if, while the death of a human being does not, apart from statute, give a right of action, and does not, where a cause of action exists, found or constitute an independent right or head of damage, yet the shortening of life can give such right of action, and can found or constitute an independent right or head of damage. There would thus, as it seems to me, be allowed to the shortening of life an efficacy which is denied to its extinction, and to death in the future an efficacy which is denied to death on the instant.
Secondly, from the practical point of view, I think that the admission of this head of damage as a separate and independent head is novel and difficult of application. In the hearing of very many cases of personal injuries I do not remember this head of damage being so treated. The difficulty of application arises out of the question of age differences. If the case of this plaintiff merits the sum awarded, I do not see how or by what sum a similar shortening of the life of a young man or middle aged man could be adequately met.
A further difficulty of application is this, that it seems to me extremely hard to avoid the danger of giving a plaintiff compensation for the same thing more than once under various heads of damage. With great respect to the learned judge, I cannot help thinking that this is what has happened in the present case.
Finally, this head of damage seems to me to involve inquiries and speculations inappropriate to and difficult for a court of law, as for example the disposition and outlook on life as well as the material circumstances of a plaintiff.
But in spite of the doubts thus expressed, I adopt for the purpose of my judgment the principle that this factor ought to be allowed for as an independent head of damage, and that full compensation ought to be made for the shortening of the plaintiff’s life, so far as it can be made in money. Nevertheless, I am of opinion that the amount awarded by the trial judge is so excessive that this Court should interfere. It is perhaps right that I should express in figures my view of what the circumstances of the case warrant, and I do so by saying that the utmost figure which in my judgment is warranted is the sum of 3000l., to include the agreed item of 400l. for special damage.
Holding the view that so substantial a reduction in the amount of the judgment would be proper on any view of the law, I should allow the appeal, but having regard to the contrary opinions of Greer L.J. and Slesser L.J. it will, of course, be dismissed.