Browning v War Office
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DONOVAN,LORD JUSTICE DIPLOCK |
| Judgment Date | 20 November 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J1120-3 |
| Date | 20 November 1962 |
| Court | Court of Appeal |
[1962] EWCA Civ J1120-3
In The Supreme Court of Judicature
Court of Appeal
From Mr Justice Lawton
The Master of The Rolls (Lord Denning)
Lord Justice Donovan and
Lord Justice Diplock
MR PATRICK O'CONNOR, .C., The Hon, J. R. CUMMING-BRUCK and MR R. A. BARR (instructed by the Treasury Solicitor) appeared as Counsel for the Appellants.
MR GERALD GARDINER, Q. C. and MR LAW PERCIVAL (instructed by Messrs Sharpe, Pritchard & Co.) apeared as Counsel for the Respondent.
On 5th August, 1958, Sergeant Browning, who was a technical sergeant in the United States Mr Force, was severely injured in a Motor accident. His right arm had to be arnputatod. His law was smashed and had to be re-made artificially. He was so disabled that on 10th June, 1959. The United States Air Force decided that he was unfit for further service and he was discharged as disabled. The motor accident was due to the negligence of two drivers, one of whom, named Perham, was employed by the British War Office and the other, named Ranee, was employed by the United States Air Force Sergeant Browning now claims damages against the War Office and Ranee. Liability is admitted. Damages only are in issue. The Judge has awarded Sergeant Browning: £7,000 for pain and suffering and loss of anenities of life. That figure is not disputed. But he has in addition awarded him £25,111 for loss of earnings. That figure is hotly disputed. The defendants say it £18,000 too much and it should be only £7,111.
From the date of the accident (5th August, 1958) to the date of his discharge from the service (10th June, 1959) Sergeant Browning received from the Onitod States Government his full pay of £450 a month or there abouts. He claims nothing for loss of earnings during that period. Since the date of his dischargo (10th June, 1959) Sergeant Browning has receivod from the United States Government Veteran's Benefit of £217 a month. In short, he is receiving nearly half pay. But he says that these receipts are not to be taken into account in assessing his compensation. He is entitled, he says, to be compensated for his loss of full pay (£50 a month) without deducting anything for his Veteran's Benefit. Since his discharge from the service he has run a grocery store in his home town in Texas from which he makes a net profit of £140 a month. He is ready to give credit for these earnings. So he claims £310 a month, being £450 which he would have received in the Air Force less £140 which he now makesfrom his store. Translated into sterling this cones to 11,329 a year; whereas if he gives credit for the Veteran's Benefit, his loss is only £365 a year. The Veteran's Benefit is worth nearly 11,000 a year to him. Has he to give credit for it or not?
Before I go further I must say a word about Veteran's Benefit. This is a benefit to which any disabled United States serviceman is ontitled by law (under Title 38 of United States Code) for disability resulting from personal injury suffered in line of duty. It amounts, in Sergeant Browning's case, to £217 a month. As his children grow up it may go down to £198 a month, but no further. Sergeant Browning can, at his option, instead of Veteran's Benefit, choose to receive disability retired pay of £98.20 a month: but this again is a payment to which he is entitled by law (under Title 10 of United States Code). The United States Government are bound to pay wither Veteran's Benefit or disability retired pay and cannot withhold or reduce it in any circumstances. The great question is this: Is it be taken into account in assessing compensation for loss of earnings?
The general principle undoubtedly is that the plaintiff should be compensated, so far as money can do it, for the pecuniary loss or loss of earnings (or of earning capacity, I care not how it is put) which he nas suffered or will suffer by reason of the injury. He should recover for h:-.s loss, but for no more than his loss. If he can earn money elsewhere, he should do so. The award of damages is made to compensate him, not to punish the wrong. That is now settled by urley's case, 1956 Appeal Cases, p. 1851. He should, therefore, give credit for all sums which he receives in diminution of his loss, save in so far as it would not be fair or just to require him to do so.
The difficulty is to say when it is or is not fair and just to take the receipts into account. The cases give some guidance on the point. It would obviously not be fair to reduce his damages by reason of charitable gifts made to him, Rodpath v. Belfast Corporation, 1947 N. I., 167 approved by this court in Peacock v. Amusemont Company, 1954, 2. C. B., 347: or by reason of insurance benfits which he has bought with his own money, see Bradburn v. Great Northern Railway, L. R., 10 Ex., 1: or by reason of sums advanced to him which he is under an obligation to reapy: Inland Revenue Commissioners v. Hambrook, 1956, 2 Q. B. at pp. 656-7: or by reasons of sums, provided by third persons to hep him, which he hs undertaken to reapy, see Dennis v. London Passenger Transport Board, (1948) 64 T. L. R., 269, Schneidor v. Eisovohs, 1960, 2 W. L. R., 169.
Apart from such exceptional cases, however, the injured person must, I think, give credit for any sums which he rceives as of right in consequence of his injury. Take wages, for instance, that his employer pays him during his incpaacity, being undewr an obligation to do so. The typical case is the policeman who is entitled to his full wages whilst disabled. He gets them form his employer and he cannot claim the self-same wages again from the wr ongoes. He cannot be allowed to get them twice over. He must give crdit for the wages he has receive and is entitled to receive. This was treated us obvious by Mr Justice Lynskey in Monmouth County Coun cil v. Smith, 1956, 1 W. L. R., at p. 1138, and by Lord Goddard, Chief Justice, in Commissioners of NEtropolitan police v. Cryodojn Corporation, 1957, 2 Q. B. atg p. 163. It was not disputed before us that this is the correct way to treat wges: and it appears to have been accepted in Payne v. Railway Executive, 1952, 1 Q. B., 26, where the sailor did not claim for loss of wages before he was invalided out of the Navy: and in the present case Sergeant Browning did not claim for loss of earning before he was discharged from the Forces.
Take next sick pay or half pay that a serviceman receives whilst he is disabled but still in the servie. I see no difference between payment or wages and payment of sick pay or half pay. If half his loss has bee recouped to him by this employer, he must give credit for it, just as he has to give redit when his full loos has been recouped.
Finally, take the disability ocasion that he receive after he is invlided out of the service. If it is a pension which the employer is bound to pay. I see no difference between it and sick pay or half pay. The mor fact that he is no longer in the service does not alter the nature of thepayment for this purpose. It goes in reduction of damages, just as does his wages or his sick pay. This was treated as obvious by Mr Justice Lynskey in Wonnouthshire County Council v. Smith, 1956, 1 W. L. R., at pp. 1151-2 and accepted as correct in the Court of Appeal, 1957, 2 A. B. at p. 164. And it curves this case.
I can well see that there is a difference when the employer is under no obligation to pay the pension but can withhold or reduce it at his discretion. The pension is then more like a charitable gift. It would not be fair to take it ito account, seeing that, as soon as the componsation is awarded by the court, the employer may cut off or cut down the pension. That is the ground an which Lord Justice Singleton preferred to put the decision in Payne v. Railway Executive, 1952, 1 S. B., 26: and it is, I think, open to this court to accept that ground as of binding force and discard theother. I adhere in this respect to what I said in Betty's Library v. Phillips Furnishers, 1959 A. C. at p. 53.
It is easy for each side to point to analogies. On F the one hand, it can be said on behalf of the plaintiff that when an injured person becomes entitled to a contributory pension (which he has paid for by his own contributions), it is clearly not to be taken into account in reduction of damages, any morethan insurance moneys are taken into account. ujad no distinction can be drawn, so it is said, between a pension to which he hecones entitled by virtue of Ms past services and a pension to vrhicn he becomes entitled by his past contributions. That is A the argument which appealod to I. Ir Justice Sellers in Payne's case and I see the force of it. But, on the other hand, it can be said on behalf of the defendants that taagos and sick pay are taken into account in reduction of damage-a. iind no distinction can be drawn between wages and sick pay (which he draws during his service) and a pension which he draws after he is discharged. I prefer therefore to discard these analogies and ask myself the simple question: la it fair and just that, in assessing compensation, regard should be had to the fact that Sergeant Browning is already, as of right, in receipt of nearly half his pay? And ay answer is, Yes. He ought not to receive compensation twice over. If he had remained in the Air Force, he would not have received both his pay and his pension. jtfor should he do so now. I am glad to find that ilr Justice Lawton would have held the same, if he had felt himself bound by Payne's case.
I do not find any help is to be gained by looking at the policy adopted by the legislature in other connections: as, for instance, in assessing damages under the Fatal Accidents Acts, pensiona re now by the 1959 Act expressly not to be taken into account: and in assossing damages for personal...
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