Fairley v John Thompson (Design and Contracting Division) Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 09 February 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J0209-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 February 1973 |
[1973] EWCA Civ J0209-1
The Master of the Rolls (Lord Denning),
Lord Justice Phillimore and
Lord Justice Scarman.
In The Supreme Court of Judicature
Court of Appeal
Appeal by defendants from judgment of Mr. Justice Tasker Watson at Birmingham on 27th July, 1972.
Mr. KENNETH MELLOR (instructed by Messrs. Waterhouse & Co., agents for Messrs. Buller Jeffries & Kenshole of Birmingham) appeared on behalf of the Appellant Defendants.
Mr. S. SHIELDS, Q. C., and Mr. J. BURKE (instructed by Messrs. W. H. Thompson) appeared on behalf of the Respondent Plaintiff.
Mr. James Fairley is now a man of 44. Ever since he left school he have done work in the Black Country and elsewhere. He was a fitter erector. He erected and fitted machinery on buildings. In 1969 he was employed by John Thompson (Design and Contracting Division) Ltd. His wages during that time averaged £30 a week net after deduction of tax. On 26th September of 1969 he was injured at work. A plank gave way. He fell and was injured. He had some injury to his skull, some ribs broken, a wrist, his hip and leg. But, although it sounds pretty serious, in truth he has made an excellent recovery from the injuries,. There was very little damage to his skull; he was got over that completely. He was able to return to work, or, rather light work, after 49 weeks. But the medical mer reported that he "will never be able to engage in climbing noworking at heights in the future"; and this "will restrict his capacity for work in the open labour market to some extent in the future." But; nevertheless, although there was a restriction on his activities, it does not seem in the least to have affected the actual earnings which he was able to achieve. He was employed on rush work at which the men earned very high wages. It is called a "Job and finish" work. The contractors had to finish the work by a stated time. So the men were able to extract very considerable rewards. Mr. Fairley received up to April 1971 an average rate of £46.56 a week.
It is a striking and interesting social phenomenon as to how he said he received these large sums. He used to do 8 hours work a day or less, but it was entered in the books as much more. He said "There were hours booked to me although I never worked that, because the men were on a bonus scheme; and, having got what we call in the trade a Job and finish, as soon as ever thatjob was finished, they would be booked all through the night by the management." At another point in his evidence he said: "Although I was booked the same time as the men, the engineer on the site booked me on the site although I was in my own bed that night," In short, he was being paid on the basis that he was working day and night whereas in truth he was only working in the day-time, and not at night. That accounted fop these very high earnings.
In due course the rush work came to an end. He was declared redundant. His employment terminated. He was out of work for 5 weeks from 21st April 1971 to 29th May 1971, till he got another job. He attributes those 5 weeks to his incapacity. He said that he was prepared to travel "provided they did not expect me to climb"; and he said that, as he could not climb, he was unable to get work during those 5 weeks. The Judge has found that this period, which lasted for 5 weeks, came about solely because he had earlier become injured in the defendants' employ; and 7. think that finding must be accepted. So he should get compensation for the loss of earnings during that time - those 5 weeks.
But before saying what the compensation should be, I turn to his next employment. After those 5 weeks he was employed as a fitter erector by Birmingham Maintenance and Transport Ltd. He got this of her work on 29th May, 1971. We have figures for the period till February of 1972. His pay averaged some £35.17 a week. That is the proper wage for a fitter erector. He was asked: "Is there any difference in the rate between the rate for a fitter and the rate for a fitter erector?" He answered: "There is no difference in the rate at all, no."A question arose as to his wages from February 1972 till the date of the trial, 27th June 1972; but those figures were not produced, I think it may fairly be assumed that they were certainly not less than the £35 which I have mentioned. So after the 5 weeks he was working as a fitter or fitter erector on what is clearly the proper rate for a man in his position -some £35 a week.
Now I come to the question of damages. The Judge awarded as general damages the sum of £2,250, As to that there is no appeal. The award for special damages is £1,440, included in which is the 5 weeks when be was out of work, taken on an average of £46 as week. In addition, the Judge for loss of future earnings awarded £1,750 on the basis of a loss of £5 a week or £250 a year from the middle of 1971.
First, there is an appeal from the Judge's award on the 5 weeks. I think the Judge was entitled to find that his loss of earning during those 5 weeks was due to his incapacity. But it seems to me that to take £46 a week for those 5...
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