Murphy v Stone-Wallwork (Charlton) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord Pearce,Lord Upjohn,Lord Donovan,Lord Pearson |
| Judgment Date | 18 June 1969 |
| Judgment citation (vLex) | [1969] UKHL J0618-2 |
| Date | 18 June 1969 |
| Court | House of Lords |
[1969] UKHL J0618-2
Lord Reid
Lord Pearce
Lord Upjohn
Lord Donovan
Lord Pearson
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Murphy against Stone Wallwork (Charlton) Limited, that the Committee had heard Counsel, as well on Monday the 21st as on Tuesday the 22d, days of April last, upon the Petition and Appeal of Thomas Murphy, of la Cranley Parade, Mottingham, in the County of London, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 21st of March 1968, so far as regards the words "the sum of One thousand eight hundred and thirty-three pounds seven shillings and elevenpence (£1,833 7s. 11d.) as damages," might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, and that the Petitioner might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Stone Wallwork (Charlton) Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 21st day of March 1968, in part complained of in the said Appeal, be, and the same is hereby, Set Aside: And it is further Ordered, That, by agreement between the parties, the Respondents do pay, or cause to be paid, to the said Appellant the sum of Two thousand, eight hundred and thirty-three pounds, seven shillings and elevenpence (£2,833 7s. 11d.) by way of damages: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs incurred by him in the Court of Appeal, and also the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
I agree with your Lordships that this appeal should be allowed.
My Lords,
The Appellant had worked at the Respondents' foundry for nearly twelve years and was 54 years of age when an accident occurred, in March, 1965, which strained and injured his back. This awakened a previously silent condition of degenerative arthritis in the spine and made it painful. As a result he was away from work for three months. Thereafter he had to have lighter work at the foundry, and the fact that he had had this strain meant that in future less would be needed to incapacitate him than if he had not suffered it. In 1966 he was off work for three months and in 1967 for three weeks owing to a recurrence of the trouble.
The case came on for trial in October, 1967, two and a half years after the accident. The judge held that the Respondents were liable for breach of statutory duty. The special damage, which included various losses of wages, was agreed. There was conflict of evidence and argument as to how much overtime the Appellant would lose owing to his having been moved to a different class of workers by reason of his post-accident inability to do the heavier kind of work. The learned judge assessed the general damages at £750.
It is clear from reading the evidence that nobody was addressing his mind to the question of the Appellant being dismissed by his employers owing to his disability and of his resulting loss in the open market owing to his disability. The remaining ten years or so of his working life were viewed as being spent with his employers. Hence the dispute as to what overtime he would lose in their foundry by his being changed over to a different group of their workers where the heaviest work would not fall to his lot. It is likewise apparent that the learned judge in his careful judgment was assuming that the employers would not dismiss him.
In 1968 the Court of Appeal increased the amount of general damage. But that Court also was going on the assumption that he would continue to work for his employers unless incapacitated from work. And it is admitted that both counsel argued the case on that assumption. Danckwerts L.J. in giving the judgment with which his breathren agreed said:
"One of the consequences of that accident was—though I am not quite sure why—that he was removed from the foundry and worked in another department, with the result that he was not so favourably placed in regard to overtime work. The men in the foundry apparently had preference for that kind of Sunday work, of which the average time appears to have been five hours on two Sundays a month. There was a loss of earnings in that way, and there were various other possibilities; he might, at any time, possibly suffer further results, with the chance that he might not be able to continue with his employment. On the other hand, there was evidence that if all had gone well he might be able to continue in his work until the usual time of retirement, which I understood was sixty-five."
Within a fortnight of that judgment the Respondents dismissed the Appellant from their employment on the ground that his physical condition made him too big a risk. Thereupon the Appellant moved the same Court of Appeal for leave to appeal to your Lordships' House. It is clear from the transcript that the Court felt that it had acted on an erroneous assumption. Diplock L.J. said:
"I took into account the possibility that this man would not be able to continue at work until he was 65. But I assumed that his employers would continue to employ him as long as he was physically fit". Cairns J. said (inter alia) "I took into account the possibility that this man might not be able to work for the full ten years…. What we had in mind was a considerable probability that he would continue in his pre-accident work at his pre-accident wages except for loss of overtime".
The Court of Appeal therefore gave leave to appeal to your Lordships' House.
It is clear, of course, that, at the hearing in the Court of Appeal, the Respondents' counsel had no idea that they might dismiss the Appellant as they did. His view rightly is that, had he known, he would have felt it his duty to inform the Court.
It is also clear that had the Respondents had the intention to dismiss in their minds during the hearing of the case, and failed to inform the Court, the matter could be reopened in the light of the subsequent dismissal. Finality is important. But good faith is even more important. It would be wrong to allow a litigant to retain the benefit of a judgment obtained by deliberately concealing something which will falsify the assumptions on which he knows that the Court is acting.
In the present case, however, the Respondents have put forward affidavits asserting that the intention to dismiss was formed after the judgment and as a result of what was said at the hearing in the Court of Appeal. In fact, nothing fresh came out of that hearing since it was simply concerned with the evidence previously given at the trial. But humans do on occasions suddenly see a situation in a different light from that in which they had previously seen it, even though nothing material has occurred to change it. And thus belatedly they make a decision which should have been made previously. I am content to accept the Respondents' assurance that they did not form the intention to dismiss until after the judgments in the Court of Appeal, and to decide the case on that basis.
The Appellant's counsel not unnaturally inclined to a less tolerant view of the Respondents' conduct. But he was content to accept the Respondents' assertions for the purpose of his first line of argument, and to reserve his rights to be more critical of those assertions if that argument should fail. On that basis he contends that your Lordships should allow the appeal and reconsider the general damages for the following reasons:
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1. The dismissal is a fact that must influence the amount of general damages.
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2. Admittedly it was not considered by the Court as a probability since the Court was assuming the probability of the Respondents continuing to employ the Appellant.
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3. The conduct of the case by both sides, both at the trial and in the Court of Appeal, led to this assumption. So, too, did the evidence given by the Defendants' witnesses at the trial.
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4. This assumption was falsified within a fortnight of the judgment by a deliberate act of the Respondents within their sphere of action.
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5. It is not equitable that the Respondents should hold a judgment so obtained.
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6. Further, the Respondents' delay in coming to the decision to dismiss led to the mistaken assumption. It would be wrong, therefore, that they should be allowed to profit by their omission.
Our Courts have adopted the principle that damages are assessed at the trial once for all. If later the plaintiff suffers greater loss from an accident than was anticipated at the trial he cannot come back for more. Nor can the defendant come back if the loss is less than was anticipated. Thus, the assessment of damages for the future is necessarily compounded of prophecy and calculation. The Court must do the best it can to reach what seems to be the right figure on a reasonable balance of the probabilities, avoiding undue optimism and undue pessimism. Although periodic payments and a right of recourse whenever circumstances change might seem an attractive solution of the difficulty, yet...
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