Parry v Cleaver
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WINN,THE MASTER OF THE ROLLS |
| Judgment Date | 09 May 1967 |
| Judgment citation (vLex) | [1967] EWCA Civ J0509-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 May 1967 |
[1967] EWCA Civ J0509-1
The Master of The Rolls
(Lord Denning)
Lord Justice Salmon and
Lord Justice Winn
In The Supreme Court of Judicature
Court of Appeal
Civil Division
From Mr Justice John Stephenson
MR E. W. EVELBIGH, Q.C. and MR E. S. TEHPIE (instructed "by Mr H. Smith) appeared as Counsel for the Appellant.
MR GEOFFREY HOWE, Q.C. and MR M. UNDERHILL (instructed by Messrs Russell Jones & Walker) appeared as Counsel for the Respondent.
THE MASTER OF THE ROLLS; Reginald Parry was born on the 25th October, 1927. He joined the Cheshire Police Force on the 14th December, 1950, when he was 23. Twelve years later on the 4th January, 1963, he was on point-duty directing traffic. Ha was knocked down by a motor car and severely injured. He sustained a fracture of the base of the skull and his left leg was broken in several places. It was due to the negligence of the driver of the car, Anthony Cleaver. Liability is admitted. The only question is what is the proper compensation. So far as pain and suffering and loss of amenities are concerned, the Judge has awarded £3,500. There is no appeal on that point. The contest is as to the compensation for financial loss, especially having regard to the Police Pensions Regulations. The Regulations of 1962 (made under the Police Pension Act 1948) provide for compulsory contributions to a pension fund: out of which the man is entitled as of right to a pension on being discharged for disablement. The question is whether in assessing his compensation this contributory pension is to be taken into account.
In order to assess the compensation, the dominant rule of law is that the injured party should receive such a sum of money as will put him in the same position as he would have been in if he had not received the injuries, see British Transport Commission v. Gourlay, 1956 Appeal Cases at page 197 by Lord Jowitt, Lord Chancellor. I turn, therefore, to consider what his position would have been if he had not been injured. It was as follows: His salary as a police officer at the time of the accident came to £2l. 18s.3d. a week. Out of this sum he contributed £1. 3s.1d. to the Police Pension Fund. The Police Authorities contributed notionally £3. 0s.0d. a week. If he had not been injured he would have served in the Police Force until he had done twenty-five years' service: and he would have retired at the age of 48. He would then have received a retiring pension of £10 a week for the rest of his days. On retirement at age 48 he wouldhave obtained work as a clerk in civilian employment. He would have continued in it until age 65, when he would have retired with a civilian pension as well as a police pension.
Now I will, state how his position has changed owing to the accident: He remained on full pay from the date of the accident, 4th January, 1963, until the 30th June, 1964. when he was discharged owing to his incapacity. He was then age 36. On his discharge he was entitled as of right (and not of discretion) to a police pension of £3. 18s.4d. a week for the rest of his days. Two months later, on the 6th October, 1964, he obtained work as a clerk in civilian employment at £13. 16s.0d. a week. Out of this sum he contributed 14s.8d. a week to his employers' pension scheme. His employers contributed.5s. a week. He was in this employment at the date of the trial on the 19th July, 1966, and is likely to continue in it until the age of 65. He will then retire and receive a civilian pension of £5. 13s.6d. a week for the rest of his days.
Those are, of course, only rough forecasts. There are many unknown contingencies to be reckoned with. He might die at an early age owing to extraneous causes altogether. He might get other employment. And so forth. I will make allowances later for those contingencies. Meanwhile the task is to assess the financial loss on the forecasts I have given. It falls into four periods.
PERIOD 1:
This is the period from the date of the accident (4th January, 1963) to the date of trial (19th July, 1966). During this period he received his full salary and allowances up to the 30th July, 1964, when he was discharged. So he suffered no financial loss in that period. Then from the 30th July, 1964, to the trial on the 19th July, 1966, he suffered loss owing to the lower pay he received in civilian employment. As against his police pay of £2l. 18s.3d. a week, he only received civilianpay of £13. 16s.0d. a week. But, in addition to his civilian pay, he received his police pension of £3. 18s.4d. a week (which he would not have received if he had stayed in the police). If you take the police pension into account, his loss for this period comes to £1,080. 15s.6d. But if you ignore it, his loss comes to £1,080. 15s.2d.
PERIOD 2:
This is the period from the date of trial (19th July, 1966) to the time when he would have retired from the Police Force at the age of 48 after twenty-five years' service (December 1975). He suffers loss during this period owing to the lower pay which he receives in civilian employment. As against his police pay of £21. 18s. 3d. a week, he only receives civilian pay of £13. 16s.0d. a week, but he receives his police pension of £3. 18s.4d. a week. If you take the police pension into account, his loss for this period comes to £2,131. But if you ignore it, his loss comes to £4,059.
PERIOD 3
This is the period from age 48 (when he would have retired from the Police Force) till his retirement from civilian employment at age 65. He suffers no loss of wages during this period because he would have earned the same, being in the same civilian employment in any case: and the same amount (13. 16s.0d. a week) as he would have done even if he had suffered no accident. His loss is, therefore, the difference between what his police pension would have been at age 48 ii he had not been injured (10 a week) and the police pension which he in fact receives on earlier discharge at age 36 (3. 18s.4d. a week). If you take into account this pension of £3. 18s.4d. a week, his loss for this period cones to £5,252. But if you ignore it, his loss comes to £8,170.
PERIOD 4:
This is the period on retirement at age 65 from civilianemployment till the assumed age of 75. His loss is the difference between the police pension if he had not been injured (10 a week) and the combined police and civilian pensions he in fact receives (3. 18s.4d. a week police pension and £5. 13s.6d. a week civilian pension). It is conceded that the civilian pension must be taken into account. The question is whether the police pension of £3. 18s.4d. is also to be taken into account. If it is taken into account, this loss comes to £170. If it is ignored, his loss comes to £2,200.
In each of those periods the question arises: Is the police pension of £3. 18s.4d. a week to be taken into account or is it to be ignored or is it to be apportioned so that you ignore the portion attributable to his own contributions and deduct the portion attributable to his employers' contributions? There are cases in support of each view.
According to Judd's case, 1960, 1 Weekly Law Reports, page 328, the police pension is to be ignored for Periods 1 and 2 (when he would have still been serving in the police), but it is to be taken into account for Periods 3 and 4 (when he would have retired). This was the view adopted by Mr Justice John Stephenson in the present case.
According to Monmouthshire County Council v. Smith, 1956, 1 Weekly Law Reports at page 1132 and 1957 2 Queen's Bench at page 154, and the unreported case of ( Harvey v. Shannon 28th February, 1964) the police pension is to be taken into account in all Periods 1, 2, 3 and 4.
(iii) According to the Saskatchewan case of Smith v. Canadian Pacific Railway Co. (1963) 41 Dominion Law Reports (2nd) page 249, the police pension is to be apportioned so that the portion attributable to the man's own contributions is to be ignored in all four periods, whereas the portion attributable to his employers' contributions is to be taken into account.
We had occasion to consider the principled relating to thissubject in Browning v. The War Office, 1963, 1 Queen's Bench, page 750. The general rule is that the injured party should give credit for all sums which he receives in diminution of his loss; save that there are exceptional cases (such as insurance benefits) for which he need not give credit.
The plaintiff says that a contributory pension stands on the same footing as insurance benefits. Ever since Bradburn's case (1874) Law Reports, 10 Exchequer, page 1, insurance benefits have been ignored. The reason is sometimes said to be because the man has paid for them himself out of his own money: and that it is unfair that he should have to bring into account that which he has bought himself. If this be the true reason underlying Bradburn's case, I would agree that it applies equally to a contributory pension. The pension has been paid for, in part by his own contributions, and in part by the employer's contributions. In so far as it is paid for by his own contributions, it is a direct payment by the man. In so far as it is paid for by the employer's contributions, it is an indirect payment by the man: because it is paid by the employer on his behalf and is an indirect addition to his wages.
I am afraid I cannot accept this as the reason for Bradburn's case. If it were correct, it would mean that unemployment benefit would have to be ignored also; because that is paid for in part by a man's own contributions and in part by his employer's contributions. But it has been held that unemployment benefit must be deducted, see Parsons v. B. N. M. Laboratories, 1964, 1 Queen's Bench, page 95, at pages 122, 130, 131, 143 and 144; Foxley v. Olton. 1965, 2 Queen's Bench, page 306. It...
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