Pidduck v Eastern Scottish Omnibuses Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE GLIDEWELL,SIR ROGER ORMROD |
| Judgment Date | 07 December 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J1207-6 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 89/1208 |
| Date | 07 December 1989 |
[1989] EWCA Civ J1207-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
SHEEN J.
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Glidewell
and
Sir Roger Ormrod
89/1208
MR. A. TEMPLE Q.C., and MR. D. HARRIS (instructed by Messrs Davis Campbell) appeared on behalf of the Appellants (Defendants).
MR. TICCIATI (instructed by Messrs Hughes Hooker & Co.) appeared on behalf of the Respondent (Plaintiff).
This is an appeal by the defendants, Eastern Scottish Omnibuses Limited, from a judgment of Sheen J. given on 27th October 1988 awarding damages pursuant to an interlocutory judgment entered in favour of the plaintiff on 7th October 1987 in a claim brought under the Fatal Accidents Act 1976 (as amended) ("the Act"). The appeal raises a short but important point relating to the new sections 3 and 4 of the Act, as introduced by section 3(1) of the Administration of Justice Act 1982.
The circumstances under which the claim arose are not in dispute and may be shortly stated. The plaintiff is the widow and executrix of the estate of John Walter Furnivall Pidduck ("the deceased") who was killed on 21st October 1985 as a result of a collision involving a coach owned and operated by the defendants in which he was a passenger. At the time of his death the deceased was 61.1/2 years of age. He had been employed by the Bank of England but had retired in 1984. The terms of his employment with the bank incorporated the provisions of the Bank of England Pensions Fund ("the Scheme"). It is necessary to refer to the scheme in outline only. Subject to one separate fund to which I must subsequently refer, the scheme was non-contributory. Broadly speaking, for the purposes of this appeal, the scheme provided pensions and lump sum payments which varied according to the individual's circumstances as follows:-
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1. On retirement (under clause B1 et. seq. of the scheme) a pension payable to the ex-employee part of which was commutable for a tax free lump sum ("the retirement pension").
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2. On death during service, the payment, inter alia, to the widow of a widow's allowance as calculated within clause El(a) of the scheme ("the El(a) pension").
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3. In the event of the death of the employee after retirement a widow's allowance in accordance with clause E2(a) of the scheme. This included, inter alia, elements calculated under E2(a)(i)(l) and (2) which were calculated by reference to the "base pension" as defined in the scheme and payable upon death ("the base-pension element").
In addition to the above, if the employee had contributed towards an ancillary fund known as "Widows Annuity Fund", which was voluntary, then further payments to the widow would be made which were known as "WAF payments" under E2(a)(i)(3). The amount of these payments was related to the contributions made by the employee whilst in employment.
Between his retirement and his death the deceased received the retirement pension under clause B. For the purposes of the widow's claim it was accepted that this was the sole source of income available to the deceased for the purposes of calculating dependency at the date of death. The widow's dependency was agreed on the basis of two-thirds of the retirement pension. The deceased had made qualifying contributions to the Widows Annuity Fund as a result of which the widow has been receiving WAF payments. The effect of these payments is not in issue in the appeal. They do, however, form part of the "Widows Allowance" payable under clause E2(a). The issues relate solely to the base-pension element. The defendants submitted that these payments, which became payable to the widow on the death of the pensioner, were to be deducted when assessing the damages since they did not accrue to the widow as a result of the death but in reality consisted of a continuation, in part, of the retirement pension paid under the scheme to the deceased between the date of his retirement and the date of his death. Sheen J. rejected this contention and declined to make any deductions from the damages in respect of this element of the widow's allowance and it is against this decision that the appeal is brought.
The relevant statutory provisions are to be found in sections 1–4 of the Act. Section 1(1) provides for a right of action for damages to be brought for the benefit of the dependants of the deceased in respect of the wrongful act causing the death. Section 1A is not in issue on this appeal. It enables a claim to be made for bereavement. Section 2 provides that only one action shall lie and that that action shall be brought by and in the name of the executor or administrator of the deceased's estate. Section 3 provides that the damages shall be related to the injury suffered:-
"3(1) In the action such damages, other than damages for bereavement, may be awarded as are proportioned to the injury resulting from the death to the dependants respectively.
(2)…any amount received…shall be divided among the dependants…"
The "injury" referred to in section 3(1) is calculated as loss of dependency which in turn is related to the financial support enjoyed prior to the death by the relevant dependants as a class and reasonably to have been expected to continue in the years ensuing after the death had the death not occurred. Section 3(2) of the Act provides for the distribution of the amount recovered under section 3(1).
Section 4 is the successor to a number of provisions in earlier Fatal Accidents Acts which provided for special rules to be applied in assessing the damages to be awarded under section 3:-
"4. In assessing damages in respect of a person's death in an action under this Act, benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded".
In the 1976 Act, as amended, "benefit" receives no definition. Before the amendment it was defined to mean "benefit under the enactments relating to social security etc". In the Act as now amended the meaning to be given to the word "benefit" is at large. The defendants have accepted that both the WAF payments and the base-pension element payments fall within the definition of "benefits" in section 4. But they deny that the base-pension element accrued "as a result of the death".
Notwithstanding the able and attractive submissions of Mr. Temple, I have come to the conclusion that this problem is susceptible of a reasonably simple solution. The payments made to the deceased under the scheme on his retirement are to be found in clause B (Payment of Members' pensions on retirement). It is not necessary to relate the details save to say that the amount of the pension was calculated in relation to the length, etc. of the member's service with the bank. The annual loss of dependency was taken as two-thirds of the benefit received under the scheme by the deceased after his retirement but before his death. This would be the basis for calculating the damages under section 3(1) of the Act subject only to deductions, if any, to be made to allow for any benefits which accrued to the deceased's estate as a result of the death and which were not excepted by section 4 of the Act. It so happens that in the present case the only source of income to be taken into account in calculating loss of dependency is the retirement pension; but there might well have been other sources of income to be taken into account. Similarly, it also so happens that the only benefits accruing to the widow as a result of the death are the two payments forming the Widow's Allowance under clause E2(a)(ii)of the scheme; but again, subject to section 4, there might well have been other sources of wealth accruing to the widow which ought to be considered in assessing the damages under section 3.
There is no dispute that the payment under E2(a)(i)(1) only came into existence as a right to be enjoyed under the scheme by the widow upon the death of the deceased. The fact that a different payment, i.e. under clause B of the scheme, was paid from the same pension fund and formed part of the pre-accident funds upon which the dependants based their dependency claim in my judgment does not affect the fact that the actual payments under the scheme forming part of the widow's allowance were not payable before the death. On this ground I am unable to follow Mr. Temple's submissions in support of this appeal. I propose, however, in recognition of those submissions to deal shortly with them. Mr. Temple took as the starting point the well-known passage from the speech of Lord Reid in Parry v. Cleaver [1970] A.C.1 at page 13B:-
"…The plaintiff was in pensionable employment. By the negligent driving of the defendant he was disabled from continuing in that employment. So he received a disablement pension. How are damages for his financial loss to be assessed? In particular, how is the disablement pension to be dealt with? The authorities are not consistent with each other, so I find it necessary to begin by considering general principles.
Two questions can arise. First, what did the plaintiff lose as a result of the accident? What are the sums which he would have received but for the accident but which by reason of the accident he can no longer get? And secondly, what are the sums which he did in fact receive as a result of the accident but which he would not have received if there had been no accident? And then the question arises whether the...
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