Receiver for the Metropolitan Police District v Croydon Corporation ; Monmouthshire County Council v Smith
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,LORD JUSTICE MORRIS |
| Judgment Date | 04 December 1956 |
| Judgment citation (vLex) | [1956] EWCA Civ J1204-2 |
| Date | 04 December 1956 |
| Court | Court of Appeal |
[1956] EWCA Civ J1204-2
The Lord Chief Justice of England
(Lord Goddard)
Lord Justice Morris, and
Mr. Justice Vaisey
In The Supreme Court of Judicature
Court of Appeal
MR. GILBERT PAULL, Q.C., MR. MONTAGUE BERRYMAN, Q.C. and MR. HUNGREY EDMUNDS (instructed by Messrs. Herbert Smith & Co.) appeared as Counsel on behalf of the Appellants, The Mayor Alderman and Burgesses of the County borough of Croydon, and Jesse William Holloway.
Mr. GERALD GARDINER. Q.C., and Mr. PATRICK O'CONNOR (instructed by Messrs. Ponsford & Devenish, Tivendale & Munday) appeared as Counsel on behalf of the Respondent, The Receiver for the Metropolitan Police District.
Mr. GERALD GARDINER Q.C. and MR. R.C. HUNTON (instructed by Messrs. Torr & Co., Agents for Mr. Vernon Lawrence, Newport, Monmouthshire) appeared as Counsel on behalf of the Appellant, Monmouthshire County Council.
MR. R.G. MICKLETHWAIT, Q.C. and Mr. C. PITCHFORD (instructed by Messrs. Rhys Roberts & Co., Agents for Messrs. Myer Cohen & Co., Cardiff) appeared as Counsel on behalf of the Respondent Eric George Smith.
These are two appeals which rise exactly the same point. The first case is an action by the Receiver of Metropolitan Police against the Croydon Corporation and a servant of the Croydon Corporation, in which the Receiver is claiming the amount of a policeman's wages during a time when he was off duty on account of an accident which he received in the course of his duty by being injured by a lorry, the property of the Corporation, driven by their servant. In the second case the Monmouthshire County Council are suing for money which was paid to a police constable in the Monmouthshire force under exactly the same circumstances, though the Defendant in that case was, of course, different; he was a man named Eric George Smith.
In the first case Mr. Justice Slade held that the Receiver was entitled to maintain his action. In the Monmouthshire case Mr. Justice Lynskey came to the contrary decision, and in the opinion of this Court, Mr. Justice Lynskey was right; we do not agree with Mr. Justice Slade's decision.
It is necessary to refer briefly to the position in regard to pay, allowances and so forth of police constables, and for the present purposes there is really no difference between the two cases. In London, the Metropolitan Police are under the direct control of the Home Secretary, but their wages are paid by the Receiver of Metropolitan Police, who, by the Metropolitan Police Act, is the person put in charge of the fund, which is derived from various sources, such as the rates, an Exchequer grant, and so on, out of which it is his duty to pay the wages of the Police.
He claims in this action, as I understand it, that he being the guardian of this fund, it is his duty to claim if he can any sum which is properly payable to the find. He contends in this case that as the police constable in question was off duty for 7 months, he is entitled to require the Defendants to pay the wages he had to pay the man during that period of incapacity.
The Monmouthshire County Council come into the matter in this way. In the counties, of course, the police forces are underthe control of the Standing Joint Committee, and the Standing Joint Committee sees to the payment of their wages by means of requiring the County Council to provide funds. The County has to provide funds I think I am right in saying this; we have not gone into all the Statutes which the Standing Joint Committee require. They are basing their claim on exactly the same ground as the Receiver of Metropolitan Police.
The first thing to remember in this case is that by the Statutes under which the police forces, both in the Metropolis and in the counties are governed, and the Statutory Regulations that were made there under, there is no question, it is accepted in this case, that the police authority are obliged to pay a constable his full wages and allowances, though he may be off duty by reason of an injury received in the course of his service. The time may come when the police officer has to retire because his injuries may have unfitted him to remain in the police force. In that case, he will receive a pension, but so long as he is in the police force, he is paid whether he is fit for duty or not, so long as the unfitness for duty is caused by an accident arising out of his duties as a policeman.
In the Croydon case, as in the Monmouthshire case, the police officer was injured while he was regulating traffic, and he received this injury, which kept him off his duties for something like 7 months. He was paid full wages during that time, and received all the other emoluments to which he was entitled. He brought an action, as did the Monmouthshire police constable, and in those actions they made no claim for loss of wages as part of the damage which they had sustained, because they had not sustained a loss of wages. Their wages had been paid to them during incapacity, and therefore the damages which they recovered against the respective Defendants were not so large as they would have been if they had been entitled to claim wages.
Therefore, it is said in this case (and this is the foundation of Mr. Gardiner's argument) the Defendants have received a benefit by reason of the fact that the Receiver in theone case, and the County Council in the other, have paid the wages during the period of incapacity, and therefore they have not had to pay as great damages as they would have done in the case of an ordinary person who was in receipt of a weekly wage, who was injured, because in that case the Defendant whose negligence had caused the injury to the workman would have to pay the wages which he lost as part of the special damage,
Mr. Justice Slade has treated this case as one which depends upon the doctrine of unjust enrichment, and has held that inasmuch as the Defendant escaped paying these wages because of the payments made by the Receiver, that he must pay the Receiver the amount of wages which he would have had to pay to the injured man if the injured man had not received his emoluments from the Receiver in the way that I have mentioned.
The first thing that I would say about that is that that seems to me to be a misconception, because I cannot see that by that means the Defendant is in any way enriched. Indeed, the matter was dealt with quite shortly by Lord Jowitt in his Speech in the case of British Transport Commission v. Gourley reported in 1956 Appeal Cases, page 185, at page 202:" it is, I think, if I may say so with the utmost respect, fallacious to consider the problem as though a benefit were being conferred upon a wrongdoer by allowing him to abate the damages for which he would otherwise be liable". It will be remembered that in Gourley's case the question was whether, in compensating a man for loss of earnings, you were to take his gross earnings or the amount which would have come to his hands after tax; the latter was held to be the right measure. "The problem is rather for what damages is he liable and if we apply the dominant rule, we should answer: 'He is liable for such damages as, by reason of his wrongdoing, the plaintiff has sustained '".
In both these cases, the Plaintiffs sustained certain damages for which they have been compensated. That damage, as I say, does not include the wages, because they had already been paid their wages. What is the result of that? The Receiver inthe one case, and the County Council in the other case, have not been called upon to pay anything which they would not otherwise have had to pay. Their obligation is to pay the police officers during the time that they are off duty through disablement, provided that the cause of the disablement is due to their service. They have to pay that, no matter what the reason is which has caused the officer be off duty. Therefore I confess, for myself, I cannot see that the Receiver, or the police authorities in this car-, arc any worse off than they would have boon if this accident had never taken place at all. it is their duty to pay the policeman so long as he is in their service.
Once that point is realized it follows, does it not, that the only loss which the police authorities have sustained is that they have had to pay the officers, although they have got no service from them. That loss is exactly the loss which was recoverable, and in certain limited oases is still recoverable in an action which is generally called a per good servitium amisit action. Their damage consists in the fact that they have been deprived of the services of the police officers. In point of fact it was never suggested here that they even had to pay another officer to do this man's duty. The old action of per quod was an action given to a master because he was deprived of the service of his servant.
Since the case of the Attorney-General for New South Wales v. Perpetual Trustees, (1955 Appeal Cases, page 457) it has been held by the Judicial Committee that in the case of a police officer, that action will not lie because the officer is not a servant of the police authority; he is a servant of the Crown, he may have to act independently of the police authority, and that case has decided that the per quod action is not maintainable in the case of a police constable.
This Court, in the case of The Inland Revenue Commissioner v. Hambrook. 1956 3 Weekly Law Reports, page 643, applied thatjudgment, so far as an injury to a Civil Servant was concerned, and this Court also, in the Hambrook case, expressed the view that the per quod action must nowadays be confined simply to the case of what are generally known as manual...
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