Court awards damages for parents' death but rejects dependency claims for adult sons.

[*287] 1977 September 9

(STYLIANIDES, P.D.C. 4 MICHAELIDES, D.J.)

IN THE DISTRICT COURT OF NICOSIA

Phaedra Sophocleous, as administratrix of

the estate of Korallia and Loizos Sofocleous,

Plaintiff,

and

Theochari Kosti Eleftlieriou and Another,

Defendants.

(Action Nos. 5255/73 and 5192/73).

Damages - Fatal accident - Death of both parents - Pecuriary loss - Actual or prospective - Section 58(1) (b) and (c) of the Civil wrongs Law, Cap. 148 - Dependency - Grown up, well remunerated children - Whether claimants for dependency - Losses on which claims for damages under this category can be found - Damages can be recovered for loss of services if they can be valued in terms of money - Benefit which dependants have secured in consequence of death may be taken in abatement of the gross loss.

Damages - Causation - Remoteness - Foreseeability - Fatal accident - Estate Duty - Amendment of Estate Duty Law after death - Less estate duty would have been paid had death not occurred before amendment - Unpredictable and unforeseeable that Estate Duty Law would have been amended - Claim for damages by dependants under this head prevented from succeeding by the factors of remoteness and causation.

N. Zomenis for L. Papaphilippou, for the Plaintiff.

K. Chrysostomides, for the Defendants.

JUDGMENT

The judgment of the Court was delivered by:-

STYLIANIDES, P.D.C.:- Loizos Sophocleous, born [*288] on 18.9.1907, was a teacher by profession. He married Korallia L. Sophocleous a female teacher. Due to the marriage, in accordance with the Laws governing Elementary Education in this country, during: the Colonial Administration, Korallia ceased to be a teacher and became simply a housewife.

By their marriage they had three children, namely Sophoclis L. Sophocleous, born in 1944, Phaedra L. Sophocleous, born in October 1945, and Varanavas L. Sophocleous born in 1947. In 1963 the husband Loizos retired.

Ten years later, on 17.7.73, the couple was involved in a motorcar accident and both met their death as a result thereof.

On 25.7.73, Phaedra L. Sophocleous was granted letters of administration of the estate of her parents. She Instituted

these actions against two persons, the driver and the owner of the car involved in the fatal accident of her parents.

By these actions she claims as administratrix

damages under the Administration of Estates Law, Cap. 189, and under section 58 of the Civil wrongs Law, Cap. 148. As

both actions arose out of the same accident and they involve common questions of fact and law, though no formal consolidation was made, they were taken by the Court together, in order to save public time and expenses. The advocates of the parties consented to this procedure.

When these cases were mentioned to the Court, the defendants admitted liability. The funeral expenses were agreed at £150 for each deceased, and the damages for the loss [*289] of expectation of life for each one of the persons killed, at £450. The damage to the car of the deceased husband, plaintiff in action 5192/73 was agreed at £250. Actually this claim has already, as stated by Mr. Chrysostomides, been satisfied by payment.

Besides the aforesaid, the plaintiff claims in each action damages for dependency under section 58 of the Civil wrongs Law and recovery of amounts equal to the Estate Duty payable by the two estates. we shall deal with these two claims separately.

Dependency.

In the Statement of Claim, the original and the amended, in action number 5192/73 which refers to the deceased Loizos Sophocleous, paragraph 3, reads:

"The following persons were enjoying and depended for their maintenance on the deceased's income"

(a) Phaedra Sophocleous, 27 years old, single, daughter.

(b) Varnavas Sophocleous, 25 years old, single, son".

Paragraph 3, of the original Statement of Claim in action 5255/73 which refers to the death of the wife Korallia

L. Sophocleous, reads:

"The following persons were enjoying the depended fully on the services of the deceased. "

"(a) Phaedra Sophocleous, 27 years old, single, daughter. [*290]

(b) Varnavas Sophocleous, 25 years old, single son".

In the Statement of Claim amended pursuant to order of the Court dated 15.24.76, the name of Sophoclis Sophocleous 28 years old, single son was inserted. We regret to notice that this was done without any order for amendment, as both the amendments sought in the application of the plaintiff and the facts set out in the affidavit in support of the application, make no reference at all to Sophoclis Sophocleous or amendment of paragraph 3.

The son Sophoclis, graduated the Pancyprian Gymnasium and he attended for a couple of years the Faculty of Philosophy of the University of Athens. In 1969 he was appointed at the District Lands Office and at the time of the death of his parents he was a permanent Civil Servant drawing £70 - £75 per month. Daughter Phaedra, the plaintiff, was called to the bar in 1970. She was enrolled as an advocate in this country in 1971 and in 1972 she was posted as the Supreme Court. At the time of the death of her parents she was holding a permanent post and was drawing $120 net per month. Varnavas in 1971 Obtained a B.Sc. degree in Mechanical Engineering from the Queen's Mary College. In 1972 he received M.Sc. in King's College. In December 1972 he returned home and on 16.7.73, the day just prior to the fatal accident, he took up employment with a certain Mavrommatis at 25 about £100 net per month.

Father Loizos was drawing pension at the rate of £60 per month. He owned immovables at Mousson street, Nicosia, [*291] and fields and trees at Orounda. Korallia owned shops and houses at Mousson street and building sites at St. Andrews quarter of Nicosia.

The parents and the three children lived in a three bedroom house at Mousson street belonging to the mother.

The only evidence about the claimed dependency comes from the plaintiff herself. She stated that from the buildings of her parents, rents in the order of £280 per month were received. £70 from the father’s and the balance from the mother's. The parents paid for the maintenance of the whole family. The father was managing all the property. He collected the rents and looked after the properties. Though the plaintiff was not certain as to the amount spent for the maintenance of the five members of the family, judging from her own present family expenses, she stated that an amount round £200 including £120 - £150 for food must have been the monthly family expenses. About 2/5 of the whole must have been spent for the parents and the balance for the children.

The deceased Loizos on his death left £5,717 deposited at the bank, whereas no cash was left by the wife. From this we can safely and reasonably draw the conclusion that Loizos was only spending the amount he drew from the pension and no more from his income. Had the couple lived separately from their children, the pension of Loizos, the husband on the evidence of the plaintiff herself would not suffice for the maintenance of the two parents. The 2/5 of £200, to use the arithmetic of the plaintiff, amounts to £80. [*292]

The plaintiff stated that her father was collecting the rents and was looking after the buildings, that is he was employing, whenever necessary, labourers for the repairs. Now she, as administratrix, collects the rents without incurring any expenses, hut she paid to her father-in-law £50 to find 5 labourers etc., and supervise the change of the water installation, as it was an old one. She further claims that she incurs £100 expenses in Orounda for cultivation etc., of the almond and olive groves of her late father. This work was done by her father. She gave us the impression that she does not know 10 well the Orounda properties She is a young advocate, she does not know if her father did all the cultivation etc., himself without paying labourers.

Section 58(1)(b) of the Civil Wrongs Law provides:

“The compensation to be recovered in any such action shall be awarded in respect of the pecuniary loss actual or prospective, suffered by the persons on whose behalf the action is brought by the death of the deceased person”.

The pecjuniary loss to the persons for whose benefit the action is brought is the only damage recoverable, and the pecuniary loss recoverable is limited to the loss of benefit in money or money’s worth, which, if the deceased had survived would have accrued to a person within the defined relations to the deceased and would have arisen from that relationship and not otherwise. (Per Diplock L.J. in Malyon v. Plummer (1963) 2 All E.R. 344 at p, 352).Lord Wright in Davies and another v. Powell Duffryn Associated Collieries._Ltd. (1942) 1 All E.R. 657 at p. 662 said: [*293]

"The general nature of the remedy under the Fatal Accidents Acts has often been explained. These Acts'provided a new cause of action and did not merely regulate or enlarge an old one’ It is not a claim which the deceased could have pursued in his own lifetime, because it is for damages not suffered by himself, but by his family after his death. Section 2 of the 1846 Act provides that the action is to be for the benefit of the wife, or other member of the family, and the jury (or judge) are to give such damages as may be thought proportioned to the injury resulting to such parties from the death. The damages are to be based on the reasonable expectation of pecuniary benefit or benefit reducible to money value. In assessing the damages all circumstances which may be legitimately pleaded in diminution of the damages must be considered. The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing on the one hand the loss to him of the future pecuniary benefit, and on the other any pecuniary advantage which from whatever source comes to him by reason of the death".

It has not been proved that the children of the deceased on whose behalf this claim was raised suffered any loss, actual or prospective, by the death of their deceased father. The payment of £50 to the father-in-law of the plaintiff in the circumstances aforesaid described and the payment to a relative from Orounda £100 annually for the cultivation etc., [*294] of the properties at Orounda is not a loss arising from the death. It is a payment in connection with the property inherited. It is a consequence of the ownership vested in the payer and not of the death. The act of the vesting of the property intervened and there is no causation. Furthermore it has not been established that the children for whom the claim was raised received any benefit from the deceased father which they lost because of the death. On the contrary the evidence is to the effect that they inherited properties from their deceased father and, though harsh to say,they benefited directly from this death.

Dependency from the mother.

The parents and the three grown up children were living together as one family in a three bedroom house owned by the mother. The mother was doing all the household. After the death of the parents the three children lived in the same house until December, 1974, when the plaintiff daughter married. She and her husband occupied that house and the two brothers moved to the other side of the road in a house belonging to the estate of the father. A few days after the death the children employed a maid to whom £40 per month were paid. She was doing the household the mother was doing prior to her death.

After the marriage of the plaintiff daughter the two sons employed for two days a week a domestic servant. This cost them £5 per week. The plaintiff testified that had the mother not been killed she would, until the marriage of the daughter, do the household for the whole family and thereafter the household of the new house in which the other members of the family except the daughter would occupy. [*295]

In June 1976, the plaintiff daughter, gave birth to a child. As she was employed, she engaged a girl to look after the child at the monthly salary of £45. She alleged that had the mother not been killed she would have looked after the child and, therefore, due to the wrongful death of her mother she suffered this damage also.

The plaintiff claimed further that she lost the services of her mother who was sewing her dresses and knitting most of the woollen of the family. She could not give but a rough estimate of these services, £100 per year. The further item of the dependency claimed is the amount spent for the maintenance of the children to which we have referred earlier, in dealing with the dependency claimed for the death of the father.

Mr. Chrysostomides, contended that the three children are not dependants. He referred the Court to the definition of dependant in the English Workmen's Compensation Iegislation. In the Workmen's Compensation Law, Cap. 188, of the 1959 edition of the Laws of Cyprus, dependants are defined in section 2(1). Dependants under this Law were those members of the family of a workman who were wholly or in part dependant upon the earnings at the time of his death. Provided that a person was not deemed to be a partial dependant of another person, unless he was dependant partially on contributions from that other person for the provision of the ordinary necessaries of life suitable for persons in his class and position.

Thus under the Workmen's Compensation Legislation, which was abolished by the Social Insurance Law, the three [*296] children of the deceased would not have been deemed dependants. They were grown persons. They received university, education. They were holders of posts carrying remuneration sufficient for them to live on. The word "dependant" nowhere appears either in the English Fatal Accidents Acts or in s. 58 of our Civil Wrongs Law. It is not a word of art. It was used from the early days of the application of the English Fatal Accidents Act of 1846. We went through a considerable number of decisions on this subject, but nowhere we found in any judgment any definition or even indication as to the limitation of the dependency in this respect. We could not trace any Case, in which grown up, well remunerated children, were claimants for dependency. The children of this deceased could support themselves even without any help in the form of monetary contribution or services by their parents. Had the word "dependant" occurred in section 58 we would rule that the children for whom this claim was raised do not qualify for dependency.

We have, however, to look and examine the wording of the relevant statutory provision. "Child" is defined as follows: "child" includes any grandchild, stepchild, illegi timate child, a child adopted In a matter recognized by Law and a child en ventre sa mere". This definition is not helpful for the resolution of the question posed.

The material part, however, of the relevant statutory provision, is section 58(1)(b) reads as follows:

"The compensation to be recovered in any such action shall be awarded in respect of the pecuniary loss actual or prospective suffered by the [*297] persons on whose behalf the action is brought by the death of the deceased, and shall be apportioned, after the deduction of any cost not recovered from the defendant, by the Judge at the trial among such persons; provided that in assessing such compensation –

(i)………………………………………………………………………………………….

(ii)………………………………………………………………………………………….

(c) In any such action particulars shall be given of the persons on whose behalf such action is brought and of the pecuniary loss suffered by such persons respectively owing to the death of the deceased person".

The provisions of this section do not exclude from the class of persons entitled to the remedy provided by the law any person who is not in actual financial need or financial contribution or services of the deceased. It is sufficient if he is within the defined relationship and has suffered pecuniary loss, actual or prospective, by the death of the deceased. Therefore, though strange it may appear, the three children are entitled to what has conventionally been termed "dependency".

In the Statement of Claim para. 8, it is contended that these three persons suffered loss and damage by reason of the

death of the deceased "that is to say, they lost the deceased’s services, such as cooking, cleaning, laundry etc.". This paragraph is

pleaded in compliance with the provisions of section 58(1)(c) to which we have referred. [*298]

The cases are decided by the Court on the pleadings. A Court of Law has to confine itself to the issues as appearing at the close of the pleadings or properly added to at the date of the hearing and not take up at the trial other issues which the evidence of a particular witness might suggest (Iordanou v. Aniftos, 24 C.L.R. 97 at p. 106; Loucaides v. C.D. Hay & Sons (1971) 1 C.L.R. p .134).

We have, therefore, to disregard any evidence in respect of alleged pecuniary loss, actual or prospective, which is not pleaded. The monetary contribution for the maintenance of the children will be disregarded. But even if this item was pleaded, according to the evidence, the mother was not earning any amounts. Her income was derived from the rents of her buildings, which by her death devolved to the three children, heirs ab intestato. The income which these premises yielded has, by operation of law, come to the three children in equal shares. This benefit by far counterbalances the amount allegedly contributed by the mother for the maintenance of the children.

With regard to the maid engaged by the daughter in June, 1976, to look after her newly born child, we are of the view that this item is not also included in the pleadings. Even if it were, we are of the view and so hold that this claim is very remote and is beyond the foreseeability of any person in the circumstances of this case.

It has long been established that only injuries capable of evaluation in monetary terms can found claims for damages of this category (Franklin v. South Eastern [*299] Railways Co., 3 H. & N. 211), but the loss need not be a monetary Poss; a loss of services capable of being valued in pecuniary terms will suffice (Berry v. Humm & Co., (1915) 1 K.B. 627), also will the reasonable expectation at the time of death of future financial benefits from the deceased (Taff Vale Railways Co. , v. Jenkins (1913) A.C.1), or the reasonable expectation of services in the future capable of evaluation in monetary terms.

Damages cannot be recovered for the loss of the mother's love. They can, however, be recovered for the loss of those services capable of being valued in terms of money which she would have rendered to them as their mother had she survived. The value of such services is the children's gross loss. Its ascertainment is not the end of the matter, for it is common ground that, where a dependant of a deceased person has suffered a gross loss of this nature as a result of the deceased's death by a fatal accident, any benefit which the dependant has secured in consequence of the same death, may, if it can be valued in money terms, have to be taken in abatement of the gross loss. If the dependants inherit property from the deceased, this is a benefit so directly resulting from the death of the deceased that it should be taken into account (Hay v. Hughes (1975) 2 W.L.R. 24 at p. 51).

The children were actually receiving the services of their mother and they had the prospect to continue to have those services at least until each one of them married and created his own family.

All three of them were of marriage age. Actually Phaedra married about 18 months [*300] after the death of her mother, hut the sons have not

yet. We assess the gross dependency as follows:-

£40.- per month for 18 months.

£20.- per month for the sons after the marriage of phaedra.

With regard to the multiplier, we have to take into consideration the age of the deceased, she was 58. She was of personal good health. The expectancy of life and the multiplier is not a question of simple arithmetic. Arithmetic is a good servant hut a very had master. The evidence of Dr. Spyridakis cannot he taken on its face value as an adequate guide to the selection of the multiplier. Expert evidence is rightly discouraged (Taylor v. O'Conor (1970) 1 All E.R. 365, per Lord Reid at p. 367). In the circumstances of this case and making the necessary allowance we fix the multiplier at 51/2 years. The sons, therefore, are entitled to four years dependency over and above the dependency to which they are entitled along with their. sister. Thus the total dependency is £720.- for the first 18 months, and £960.- for the sons for the remaining four years.

As, however, the benefits received from the deceased’s estate should be deducted, we have to deduct first the amount of £450.- agreed damages for loss of expectation of her life to which the three children are equally entitled. They inherited properties from their mother. These properties yield income - rent, £200.- per month. There is almost a certainty that the children would have received the accumulated assets of these rents on the death [*301] of their deceased mother. The benefit is, therefore, to be measured by the value of the acceleration of the children's receipt of the assets with some allowance for the certainty of the receipt, as opposed to its prior contingency.

We have to look to the overall picture. We have to assess as bests as we can in the light of the facts before us. A small amount of this rent would have been spent by the deceased herself during her lifetime. She might get ill and resort to doctors. Misfortunes might befall on her. We assess this deduction at £100.- per year, that is £550.- in all. As the net amount must be apportioned to each of the three persons entitled, we have made the necessary calculations and we arrived at the following figures:

(a) The daughter Phaedra is entitled to no dependency at all.

(b) Each of the two sons is entitled to £387.-

The arithmetic calculation is as follows:-

Phaedra - 1/3 of the value of the services of the mother for 18 months £240.-

Plus, sewing dresses and knitting work which we assess at £75.- in all £ 75.- £315.-

Less, her share for the loss of expectation of life £150.-

Benefit derived from the estate by the accelerated receipt of the buildings and the rents £183.- £333.- [*302]

Each of the two sons - dependency for the 18 months £240.-

Dependency for the remaining 4 years £480.- £720.-

Less the amount of £333.- (See Phaedra’s calculation) £333.- Net £387.-

We shall give judgment for these amounts hut the judgment for this item for the son Sofoclis not to be drawn up, unless and until a proper amendment of the statement of claim is made for the insertion under the Rules of his name in para. 3 of the Statement of Claim.

Claim for estate duty.

In the amended statements of claim filed on 22.4.76 it is alleged that the deceased instructed their advocate and that they were in the process to form together an estate company to which they would transfer all their immovable property in consideration for the issuing to their children of all the shares in the company. By the unexpected death, however, and the shortening of their lives the completion of the above was not materialised and the respective estates are liable to pay estate duty. The amount which will he found payable as estate duty in the recourses pending against the assessments of the Commissioner of Estate Duty, are claimed as damages. [*303]

The plaintiff further content's that by the death of her deceased parents and the shortening of their lives, their respective estates became liable to pay estate duty whereas if the death of each of the parents did not occur as a result of the accident, under the Estate Duty Amendment Law No. 3/76 the estate duty payable would have been much less.

The plaintiff, Loukis Papaphilippou and Phanos Ionides, a retired Commissioner of Estate Duty, who for the last 11 years is dealing with tax cases in private practice testified on this issue.

Operation of Law 3/76.

Under the Estate Duty Law 1962 No. 67/62 in the case of every person dying on or after December 1942 there shall be levied and paid upon the value of his estate, a duty called estate duty;

Provided that no estate duty shall be payable where the value of the estate of any such person does not exceed £3,000.- (S.4 of Law 67/62).

The amount of the estate duty payable on the estate of any deceased person, shall be computed at the rate or rates shown in the schedule of the Law to be the rate or rates applicable where the value of the estate of that person calls within the limits of any class or classes set out in the said schedule.

Estate duty is levied on "property passing on death" which includes property taken under a disposition made by him purporting to operate as an immediate gift inter [*304] vivos, whether by way of transfer, delivery, declaration of trust or otherwise which has not been bona fide made three years before his death or taken under any gift whenever made, of which bona fide possession and enjoyment has not been assumed by the donee immediately upon the gift and as forward retained to the entire exclusion of the donor or of any benefit to him by contract or otherwise.

The Estate Duty (Amendment) Law, 1976 (No. 3/76) amended section 5 of the Law which provides for the determination of the value of the estate by the addition of a long proviso. By this proviso the value of the estate is reduced by £1 ,500 in respect of each surviving child, who completed the 21st year of his age at the time of the death of the deceased person. Furthermore the schedule under section 6 of the scale of rates of estate duty payable was repealed and substituted by a scale of percentages on every pound in excess of £15,000.-, as no duty is as from the coming into operation of this Law payable where the value of the estate of any perso does not exceed £15,000.-

The net value of the estate of Loizos Sophoclecus as shown in Exhibits (1) and (5) is £22,431.-. Under Law 67/62 the Estate Duty Payable is £3,254.130 mils. Under the new Law which came into operation on 30.1 .76, had Loizos Sophocleous died after this day, leaving estate of equal value the estate duty would have been £707.750 mils, that is £2,546.380 mils less than the duty assessed by the Commissioner of Estate Duty. In the case of the mother, Korallia, the value of the estate is

given in Exhibits (2) and (6) as £32,500.-. Under the old Law the duty payable [*305] is £5,645.-, whereas under the new taw, if she died after 30.1.76, the duty payable would have been £2,350.-, i.e. £3,295- less. These figures,

however, are based on the assessments of the estate duty found in the notices sent to the plaintiff administratrix by the Commissioner of Estate Duty which were challenged by pending recourses before the Supreme Court.

In Bourhill v. Young (1943) A.C. 92 at p. 101 Lord Russel of Killowen said that "in considering whether a person owes to another a duty, a breach of which will render him liable to that other in damages for negligence, it is material to consider what the defendant ought to have contemplated as a reasonable man. This consideration may play a double role. It is relevant in cases of admitted negligence (where the duty and breach are admitted) to the question of remoteness of damage, i.e. to the question of compensation or to culpability.

As a result of a Privy Council’s judgment in the Wagon Mound (No.1) (1961) A. C. 388 and the Wagon Mound (No. 2) (1967) 1 A.C. 617 it must now be accepted that foresight is the test to be applied both when considering remoteness as regards the duty to take care and remoteness as regards damage where it does not matter that the precise chain of events leading up to that damage was not foreseeable.

In Wagon Mound (No. 1) (1961) A.C.

388 Viscount Simonds said:-

"It does not seem consonant with current ideas or morality that for an act of negligence, however [*306] slight or venial the actor should be liable for ail consequences, however unforseeable and however grave, so long as they can be said ’direct’. It is a principle of civil liability subject to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule, to demand less is to ignore that civilized order requires the observance of a minimum standard of behaviour".

Further down, at page 425 he said:

"There can be no liability until the damage has been done. It is not the act but the consequences on which tortious liability is founded. Just as (as it had been said) there is no such thing as negligence in the air, so there is no such thing as liability In the air. Suppose an action brought by 'A’ for damage caused by the carelessness (a neutral word) of ’B’ for example, a fire caused by careless spillage of oil. It may, of course, become relevant to know what duty he owed to ’A’ but the only liability that is the question is the liability for damage by fire. It is vain to isolate the liability from its context and to say that 'B’ is or is not liable, and then to ask for what damage he is liable. For his liability is in respect of that damage and ho other as admittedly [*307] it is, ’B’ s’ liability (culpability) depends on the reasonable foreseeability of the consequent damage, how is that to be determined, except by the foreseeability of the damage which in fact happened - the damage in suit? and, if that damage is unforeseeable so as to displace liability at large, how can the liability be restored so as to make compensation payable?"

In McGregor on Damages, 13th edition, at page 101 we read:

"It is submitted that the general position, as it has developed over the decade since the wagon Mound was decided, is that, where the improbable, abnormal and unforeseeable factor in the situation, be it act, event or state of affairs, has already occurred at the time of the wrongful act, the Law will not hold the defendant liable for damage which though caused by him, is of a type which he could not reasonably have foreseen, but may nevertheless hold him liable, in the absence of subsequent factors, for damage occurring to an unforeseeable extent or arising in an unforeseeable manner, provided it is of a type which it could reasonably have foreseen".

In Charlesworth on Negligence, 5th edition, the learned Editor at page 72 para. 111 under the heading "Under the Fatal Acts claim" wrote: - [*308]

"Since the right of action is given to certain specified dependents of a deceased person for the pecuniary loss they have suffered from the death of that person caused by the wrongful act, neglect or default of the defendant, once that causal nexus has been established then the extent of their actual and prospective losses even if unforseeable, are recoverable. This is because such losses are the kind of harm which the Statutory Law gives compensation".

In the present case the death which resulted from the negligence was foreseeable. That damage would be caused by the death again was foreseeable. But according to the existing state of affairs it was unpredictable and unforeseeable that the Estate Duty Law would have been amended. This damage appears to have been caused by the amendment of the Estate Duty Law. It did not flow from the state of affairs as existed, but its obvious cause is the act of the legislature, the enactment of the amending Law. The principle of novus actus interveniens cannot be restricted in cases where the damage is Increased by the act of a third party, but it has application, as in this case, where the act of a third person, the State in its legislative power changed the state of affairs that existed at the time of the death. It would be great injustice to the wrongdoer, the payer, to cast on him liability for damages unpredicted and in essence created by the change of the Law in favour of the tax payer. The learned editor’s of Charlesworth on Negligence opinion to which we have referred must be limited and [*309] qualified to take cognizance of the act of a third party as in the circumstances of the present case.

In our view the plaintiff is prevented by the factors of remoteness and causation from succeeding in this part of the claim.

Consonant to modern practice we have to say what would have been the damages that would have been awarded for this claim had we went wrong, on the question we have already resolved.

The children inherited the property to which we have just referred. From the amounts of £2,546.380 mils and £3.295.- we would have made a small deduction for the chance that the parents might not have survived the amendment of the Law. Having regard to the age of the deceased and the amounts of difference of the estate duty we would reduce the figure by £300.- in each case. Furthermore the estate was inherited by the children. A part of this benefit derived from the death must be deducted. Having regard to what Holroyd Pearce L.J. said in Daniels v. Jones

(1961) 3 All E.R. 24 at p. 28; and the judgment of O’Connor J. in Davis v. White ways Cyder Co., Ltd., (1974) 3 All E.R. 168 (see particularly pages

175 and 176) as well as we have stated earlier in this judgment about this inheritance we would have allowed to the plaintiff had she been successful £1,500.- for the death of Loizos and £2,000.- for the death of Korallia under this item.

B. Intention and process of forming a company and transfer of property prevented by the accelerated death. [*310]

The plaintiff and her advocate Loukis papaphilippou testified on this issue. They are both advocates. Papaphilippou is an advocate with wide and extensive practice. In their evidence there are a number of discrepancies. They gave different versions as to the time the father or the parents started considering the matter. papaphilippou stated that this happened in 1970 or at the time that Phaedra was doing pupilage in his office which according to the evidence is 1970-1971 . Phaedra gave as time the end of 1972, after the return of her brother from abroad. They disagree as to the number of meetings and the persons who were present at the meetings. They disagree as to the property allegedly purported to be transferred to the company that would have been formed. Papaphilippou repeatedly stated in his evidence that the object of Loizos, the father who was the domineering mind in the family was to avoid or evade payment of income-tax, and it cannot lightly be said that he was committing a lapsus lingue. He knows well the difference between income-tax and estate duty. We were very particular in taking meticulous record of his evidence in the languages he was testifying, partly in English and partly in Greek. The reasoning behind this story of the formation of an estate company by the parents and the transfer of the property and the allotment of shares to the children and the life directorship of the father etc, is unconvincing. The plaintiff in the original statement of claim alleged that the parents simply had the intention to transfer the property to the children. After, however, she read, as she stated the decision in Davis v. Whiteways Cyder Company Ltd., [*311] she resorted to her advocate and asked for the amendment to bring her case within this

decision. In the affidavit in support of the application for amendment, sworn by her, it is written in para. 2 "further it came to my knowledge that my father, the said deceased was in the process to form a company to which he would transfer all his immovable property in consideration for the issue to his children of the shares in the said company". This is inconsistent with her evidence in Court and the explanation given on her behalf by Papaphilippou in his evidence is not satisfactory. She is not the ordinary client. We were left with the impression that she was handling the case outside the Court room.

Papaphilippou stated that the Mousson street immovables would be transferred to the company. The Mousson properties are those which yielded rent, - income. Phaedra stated that an agreement was made, with whom and by whom, it was not revealed. Papaphilippou produced a small piece of paper with printed heading "Papaphilippou and Co., " on which there are some writing in pencil in his hand-writing. A common dilapidated file with no writing on it whatsoever and a typed document were also produced. He alleged that this document must have been prepared at his office and the original of it was given to the deceased Loizos very few days prior to his death. The plaintiff was appointed administratrix only eight days after the death and the actions were filed 43 days from the date of the death. Mysteriously, however, these documents were lost by misplacing and a search for them, such important documents, started

after the lapse of very long time. It was natural for Phaedra to inquire [*312] what happened during her absence, and then

for Papaphilippou and his office to find the documents during the summer of 1973. Her prompt action in obtaining letters of administration and instituting, these actions do not reasonably leave room for the explanation that she was overstricken by grief. Papaphilippou is indeed a very busy advocate. But the fate of these documents, their finding and their production in Court borders mystery.

We watched very carefully the witnesses giving their evidence. We gave anxious consideration to the evidence on this issue and as we accept it, we find that the deceased Loizos was interested in avoiding payment of income tax. He did not envisage death. For this purpose, he was consulting his advocate and probably his accountant. His object was to find a device to pay less income tax or no income tax if possible and not to transfer the property in the name of his children. Even the typed documents; memorandum ,of association and article of association, divorced from the oral evidence support this view we take. At any rate we have not been satisfied that the two deceased had the intention or were in the process of forming an estate company for which to transfer their immovables at Mousson and then to allot almost all the shares equally to their children. The plaintiff failed to discharge the onus of proof cast on her and therefore we need not embark on the legal aspect of this issue.

In the result we give judgment for the plaintiff against the defendants as follows:[*313]

Action No. 5192/73

Judgment for the plaintiff against both defendants jointly and severally for £600. (£150.- funeral expenses and £450.- for loss of expectation of life).

Action No. 5255/73

Judgment for the plaintiff against both defendants jointly and severally for £1,374.- (£150.- funeral expenses, £450.- loss of expectation of life and £387.- dependency for each one of the two sons.

The question of costs caused us some concern. We have come to the conclusion to allow plaintiff’s costs in action number 5192/73 until the date of the commencement of the hearing and all plaintiff’s costs in action number 5255/73. Such costs to be assessed by the Registrar in the scale of the amounts recovered.

Judgment for plaintiff for

£1,974.-. Order for costs

as above.