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the damage done) has been disturbed, it is the damage done that is the wrong; and the expression “special damage,” when used of this damage, denotes the actual and temporal loss, which has, in fact, occurred. Such damage is called variously in old authorities — “express loss,” “particular damage,” “damage in fact," "special or particular cause of loss.” [See Ratcliffe v. Evans (1892] (2 Q.B. 524).]
The real question, therefore, is, could the injured passenger himself maintain two actions, in one of which his claim for damages would be confined to the purely personal injury and inconvenience, and, in the other, to the actual outlay and loss of income?
Are the medical expenses and pecuniary loss part of the ordinary damage, which the law implies as being a natural and reasonable result of the defendants' negligence, or are they special damage in the sense necessary to support an action by the executor-i.e. the substantial and primary cause of action ? To answer this question it is only necessary to see whether they are included in the general damages recoverable in actions of negligence involving personal injuries; because, if so, they are at once taken out of the category of special damage. The universal practice has been for the judge to direct the jury to take into account, in assessing the general damages, the expense which the plaintiff has been put to, and the pecuniary loss which he has incurred in consequence of his injuries; and this practice has received the assent and approbation of the Court of Appeal in the case of Phillips v. London and South Western Railway Company (L.R. 4 Q.B.D. 407 ; 5 Q.B.D. 78; L.R. 5 C.P.D. 281), in which a new trial was demanded on account of the inadequacy of the damages given by the jury. In the Queen's Bench Division, Cockburn, C.J., delivering the judginent of the Court, said: “But we think that a jury cannot be said to take a reasonable view of the case unless they consider and take into account all the heads of damage
in respect of which a plaintiff complaining of a personal injury is entitled to compensation. These are the bodily injury sustained, the pain undergone, the effect on the health of the sufferer according to its degree and its probable duration as likely to be temporary or permanent, the expenses incidental to attempts to effect a cire or to lessen the amount of injury, the pecuniary loss sustained through inability to attend to a profession or business.”
On appeal this judgment was affirmed, and James, L.J., adopted as part of his judgment the following passage from the summing up of Field, J., to the jury : “The damages to which a man is entitled are the consequences of the wrongful act by which he suffers. The consequences of the wrongful act here are undoubtedly that Dr. Phillips has been, and is, prevented from earning such a sum of money as you think he would have been likely to earn if this accident had not happened."
The case went to a second trial, and again was taken to he Court of Appeal, differently constituted, when the same principle of compensation was affirmed. Bramwell, L.J., says (see 5 C.P.D., p. 287): “I have tried, as judge, more than a hundred actions of this kind, and the direction which I, in common with other judges, have been accustomed to give the jury has been to the following effect : 'You must give the plaintiff a compensation for his pecuniary loss, you must give him compensation for his pain and bodily suffering; of course it is almost impossible for you to give to an injured man what can be strictly called a compensation ; but you must consider under all the circumstances what is a fair amount to be awarded to him.' I have never known a direction in that form to be questioned.” [See also Potter v. Metropolitan Railway Company (28 L.T. N.S. 735).]
Universal practice, sanctioned by authority, therefore shows that medical expenses and pecuniary loss arising from illness and inability to attend to business are not special damage, but
on the contrary, form part of the general damage implied by law in such cases. And, to quote from Lord Bramwell's speech in Darley Main Colliery Company v. Mitchell (11 App. Cas. 127): “It is a rule that when a thing directly wrongful in itself is done to a man, in itself a cause of action, he must, if he sues in respect of it, do so once and for all. As, if he is beaten or wounded, if he sues he must sue for all his damage, past, present, and future, certain and contingent. He cannot maintain an action for a broken arm, and subsequently for a broken rib, though he did not know of it when he commenced his first action. But if he sustained two injuries from a blow, one to his person, another to his property, as, for instance, damage to a watch, there is no doubt that he could maintain two actions in respect of the one blow. I may apply the test I mentioned in the argument. If he became bankrupt, the right in respect of the watch would vest in his trustee. That for damage to his person would remain in him. I have put the case of a trespass. The same would be true of an action for consequential damages.”
It follows, therefore, that since no fresh cause of action arises by reason of the death of the injured person, the mere fact of the action being brought in the name of the executor can make neither the substance of the action nor the nature of the damages any different from what they would have been if the testator had himself been the plaintiff.
The principle, already adverted to, upon which depends the right of an executor to maintain an action for a wrong suffered by his testator, namely, that the cause of action itself must be one which affects property, is well illustrated by the case of Wetherell v. Julius (10 C.B. 267), decided under the Bankruptcy Acts; for the assignees in bankruptcy stand in much the same relation to the bankrupt in this respect as does the executor to his testator. It was there held, that the negligence of the plaintiff's attorneys, in consequence of which judgment was given against the plaintiff for a large sum, and he was
imprisoned in execution for the damages and costs, and put to expense in endeavouring to procure his release, was not a cause of action which would pass to his assignees in insolvency. But, on the other hand, where the same plaintiff, being a beneficed clergyman, through the negligence of his attorneys in permitting a writ of sequestration to remain in force longer than was necessary, lost the profits of his living, it was held that this cause of action did pass to the assignees, because pecuniary loss was there the substantial and primary cause of action.
In Rogers v. Spence (13 M. & W. 571; S.C. 12 Cl. & F. 700), which was an action for trespass and seizing and selling the plaintiff's chattels, the defence being a plea of bankruptcy, it was held on demurrer that the primary personal injury to the bankrupt being the principal and essential cause of action, it did not pass to his assignees.
In Beckham v. Drake (11 M. & W. 315), the plaintiff had entered into an agreement with the firm to serve the firm for seven years, and the firm agreed to pay him so long as he should serve faithfully. The plaintiff was, breach of the agreement, dismissed ; and it was held that the right of action for breach of the agreement passed to the plaintiff's assignees in bankruptcy as being part of his personal estate whereof a profit might be made. An appeal was taken to the House of Lords (see 2 Cl. H. L. Cas. N.S. 579), and the judges having been called in to assist at the hearing, Erle, J., says (see p. 604): “Thus it has been laid down that the assignees cannot sue for ... injury to the person by negligence, as by not carrying safely.” And again (p. 605): “Thus, in respect of promise, the assignees of a patient, if bankrupt, could not sue a surgeon for a breach of his promise to use due care in treating a wound, because the damages are assessed by reference to bodily annoyance; but the assignees of the same surgeon, if bankrupt, might sue the patient on his promise to pay
remuneration for attendance because the promise relates to property.” And Cresswell, J., says (see p. 613): “On the one hand, therefore, we have it established, that by the bankrupt laws it was intended that every right vested in the bankrupt, of which profit could be made, including rights of action, should pass to the assignees, and on the other, that the right to recover a satisfaction in damages for a personal injury is to be excepted out of that general rule.” And Wightman, J. (see p. 617): “In cases where the personal estate is only affected through some wrong or injury to the person or the feelings of the bankrupt, and the loss or gain to the personal estate would be greater or less according to the compensation given for such injury, whether by breach of contract or otherwise, the right of action would not pass to the assignees.” And Maule, J. (see p. 621): “There is no doubt that the right to bring an action for an injury to the person, character, or feelings of a bankrupt, does not pass to the assignees.” And Parke, B., says (see p. 625) : “ The executor cannot sue upon contracts, the breach of which is a mere personal wrong.” And again (see p. 626): “Actions for assault, for example, and for defamation, actions on the case for misfeasance, doing damage to the person . . . are not transferred to the assignees, even though some of these causes of action may be followed by a consequential diminution of the personal estate, as where by reason of a personal injury a man has been put to expense." The view of the majority of the judges thus called in to advise, was in accordance with these expressions of opinion, and was confirmed by the House of Lords.
As against these authorities the case of Potter v. Metropolitan Railway Company (30 L.T. N.S. 765; 32 L.T. N.S. 36) is put forward as an authority for the survival of such an action as we are treating of. But, on examination, this case will be found to rest upon an entirely different footing, depending, as it does, upon the relationship between husband and wife, and the peculiar rights which that relationship gives rise to. The