Domsalla v Barr
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EDMUND DAVIES,LORD JUSTICE WIDGERY,MR JUSTICE BRANDON |
| Judgment Date | 06 March 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0306-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 March 1969 |
[1969] EWCA Civ J0306-3
Lord Justice Edmund Davies
Lord Justice Widgery and
Mr Justice Brandon
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(From: Mr. Justice Paull - London)
Mr. JOHN WILMERS, Q.C. and Mr. JOHN E. WILLIAMS (instructed by Messrs. William A. Crump & Son) appeared on behalf of the Appellants (Second and Third Defendants).
Mr. RODNEY BAX, Q.C. and Mr. DESMOND PERRETT (instructed by Mr. V. H. Thompson) appeared on behalf of the Respondent (First Plaintiff).
On the 30th October, 1963, the plaintiff, Mr. Domsalla, who was then 23 years of age, was involved in a quite dreadful accident. He was a married man with a family employed by the first defendant as a steel erector. We are not concerned with the first defendant but simply with the second and third defendants, who admitted their liability to Mr. Domsalla. The learned judge observed that that admission was not surprising, because whilst the plaintiff, Mr. Domsalla, and his colleague, a Mr. Donoghue (with whose claim we are not concerned) were engaged in erecting a building, working about 30 feet from the ground, there was a sudden collapse, the building started to way, and both men were not only thrown to the ground but were cast right into the middle of the collapsing structure. The learned trial Judge rightly described that as a "most terrifying sort of accident", and he expressed himself as satisfied that Mr. Domsalla had as a result suffered mental and psychiatric effects. All that happened nearly five years before the trial by Mr. Justice Paull on the 12th July, 1968. That lapse of time, regrettable though it was, had this advantage from the plaintiff's point of view, one would have thought - that it enabled him not only to plead but to prove many matters which, had the trial followed more closely upon the accident, would have been matters of speculation rather than of proof.
That in any claim for damages for personal injuries it is for the plaintiff to establish his case goes without saying; but, lest we overlooked that matter, we have been reminded by Mr. Wilmers that in Bonham-Carter v. Hyde Park Hotel Ltd. (1948) 64 Times Law Reports, Lord Goddard said (at page 178): "Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying 'This is what I have lost: I ask you to give me these damages'. They have to prove it".
On the evidence called before the learned judge, he arrivedat an award totalling £9,000, made up as to £2,500 of special damages and the balance, of £6,300, in relation to general damages. The second and third defendants now appeal to this Court, complaining that in respect of both items were awarded excessive amounts. The plaintiff, on the other hand, cross-appeals, also in relation to both items of damage. He concedes that (for reasons which will presently emerge) the learned Judge went wrong in the arithmetic whereby he arrived at the sun of £2,500, but, nevertheless, says that upon the evidence not only £2,500 but indeed a larger sum should have been awarded, and he asks for an increase from that amount. He likewise cross-appeals to this Court asking that the general damages be increased.
It is to be said of the injured workman, and said with complete clarity, that he was obviously an extremely good type, a hard worker, and ambitious. Despite the fact that he was a married man, he was doing evening studies and had obtained a diploma in the theory of steel-erecting. He was a hard worker: that emerges from the fact — which is not unimportant, for more reasons than one — that despite this accident he went back to work after only 11 weeks, on the 11th January, 1964, and he has not lost a day's work since that time. Me was a man who did not exaggerate his symptoms at all. He left hospital only four days after the accident, despite the fact that he sustained a skull fracture. As I have just said, on the 11th January of the following year he resumed light work, at a lower wage. But it emerged that he had already contracted to go to Nigeria as a steel erector, his title being that of "erection supervisor", and it being part of his duties to supervise local labour working under him. The contract was in the first place to be for one year, at a basic wage of£28 a week for a 40-hour week. The rate of overtime was fixed at £1 an hour. He was to have£7 a month for expenses, and free subsistence and clothing.
113 weeks after he began work he got a job as a crane driver, at a wage which was more than he would have got in Nigeria, and certainly not less than he would have earned at home as a steelerector. He is taking home (as he told the learned judge) between £30 and £40 a week. It was agreed between the parties that for the calculation of the special damages up to the time of trial the period of 113 weeks was to be taken. Controversy raged, however, as to what was to be the multiple. For the appellants it is said that it was sufficient, at most, to take the£28 basic Nigerian rate of weekly wages, making £3,164.
When the learned judge came to do the arithmetic he fell into error. In this respect he is not without companions, certainly in this Court, for I have myself been guilty of the most remarkable errors in arithmetic. But that is by the way. The learned Judge said of Mr. Domsalla that he had this contract to go abroad and under that contract he would have earned basically, during the period during which that contract went on,£3,264 a year. Pausing there, the learned judge should have said, not£3,264, but£3,164; and not for a year, but for the whole period of 113 weeks, 52 weeks at£28 being merely£1,456.
Then the learned judge went on to consider the matter of overtime. He said: "If one takes into consideration the£1 an hour for overtime, I do not think it unfair to say that he would have been earning£3,500 per annum". The mistake there again made is manifest. He continued: "He has earned, over the 113 weeks,£1,485". That is an agreed figure. He then continued: "That leaves special damages for him of£3,015, subject to this: that that employment may not have gone on, or something may have occurred; and, taking those chances into consideration, I therefore think that a fair figure to give him for his special damages during that 113 weeks is£2,500".
All matters considered, I accept the invitation of learned counsel that we should begin by doing the sum once again for ourselves, bearing in mind that, as far as contingencies are concerned, by the time of the trial it was known that the contract had continued for a period of, I think, three years after the accident.
The appellants say that certain deductions have to be made from the calculation of£3,164. They say that, on the plaintiff'sown showing, at the end of his first year he planned to come home and then, if he liked the place, take his wife and his children out to Nigeria. Mr, Wilmers has conjectured (for that is the proper word) that the visit home would probably take a period of six weeks; and he says that at£28 a week one should take£168 off for that item. Then, since he had actually earned, during the 113 weeks,£1,485 and a deduction has to he made for the statutory benefits in the sum of£285, that makes£1,938 to be subtracted from the total figure of£3,164. That leaves a balance of£1,226. Mr. Wilmers says that this£1,226 is at most the amount that should have been awarded to Mr. Domsalla by way of special damages. He adds that even that ignores any income tax considerations; and it also ignores the last three weeks of the 113 weeks, when it might be expected that Mr. Domsalla would take a holiday.
Now, as against that, Mr. Bax for the respondent says that the£1,226 ignores all overtime, and he submits that the appellants in ignoring that are doing something which is not warranted. Speaking for myself, I find the utmost difficulty in relation to this matter of overtime, because the firm employing the plaintiff in Nigeria was an English firm: by the time the trial came on, five years after the accident, the plaintiff was surely, one would have thought, in a position to say what overtime had in fact been earned, if any; yet no evidence was led about that matter at all. Mr. Wilmers has accordingly urged upon this Court that no sum, no matter how small, should be allowed in respect of that item. I have come to the conclusion, though not without some hesitation, that to apply so rigorous an approach to that item would not be entirely right. We have here a good type of workman, a man who was clearly anxious to better himself, for his own and his family's sakes; and while it is highly regrettable that the matter was left in the unsatisfactory way in which it was, I think that some consideration, to a distinctly moderate degree, must be extended to the matter of overtime: and in arriving at the figure which I think should have been allowed forspecial damages I have allocated a modest sum for this item.
Mr. Bax says also that Mr. Wilmers' calculation of£1,226 has ignored the subsistence and clothing items, these being "all found" under the terms of the contract. The Statement of Claim alleged that the plaintiff was entitled to free accommodation plus£7 a month for expenses. When all those matters are taken into consideration the question remains as to what the proper sum should be for special damages.
( )
In contrasting the figure of£1,226 or thereabouts (which Mr. Wilmers submitted was the maximum amount of special damages which should have been recovered by Mr. Domsalla) with the figure of£2,500 awarded by the learned trial...
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