Williams v BOC Gases Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROOKE,LORD JUSTICE THORPE |
| Judgment Date | 29 March 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0329-9 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CCRTF 99/0477/2 |
| Date | 29 March 2000 |
[2000] EWCA Civ J0329-9
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWANSEA COUNTY COURT
(HH Judge Diehl QC)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Thorpe and
Lord Justice Brooke
Case No: CCRTF 99/0477/2
Barry P Cotter (instructed by Palser Grossman Swansea for the Appellants)
David Harris (instructed by Leo Abse & Cohen Cardiff for the Respondent)
Ms R Tuck (instructed by both parties) attended to revise th judgment
This is an appeal by the defendants BOC Gases Ltd against a judgment of Judge Diehl QC at Swansea County Court on 19th April 1999 at the trial of a personal injuries action when he held that a sum of £11,889.10, which was paid by the defendants to the claimant Royston Frederick Williams on the termination of his employment, should not be set off so as to extinguish any liability on their part to compensate him for his personal injuries. Liability had been conceded and the damages had been agreed at £3,000, inclusive of interest, subject to the resolution of the issue relating to the set off. Judgment was therefore entered for the claimant for £3,000.
The claimant was employed by the defendants between about 1988 and 30th April 1996 as a goods vehicle driver. On 25th March 1996 they wrote to him in these terms:
"Further to recent discussions we now write to confirm that the group medical adviser has informed us that you are unfit to carry out your duties of LGV driver, and as there is no suitable alternative work available your employment will be terminated on 30th April 1996 on medical grounds.
We are intending to make you a payment of £15,132.25, which under existing legislation may be paid tax-free. Included in this figure is an amount of £3,243.15, which represents nine weeks pay in lieu of notice. The balance of £11,889.10 is an amount to which there is no contractual entitlement and as such is to be treated as an advance against damages that may be awarded to you in respect of any claim you may have against the company."
The judge was told that this payment of £11,889.10 came from the defendant's own fund, and not from any third party or from any insurance scheme. It was a matter for the employers' discretion whether such a payment was made to an employee leaving their employment. There was no contractual obligation to pay. The sum was calculated in some way by reference to the length of his employment and no doubt also by reference to his level of earnings.
The claimant's unfitness for his duties had been determined on the basis of a range of symptoms from which he was then suffering. These included a bad back and a congenital condition of his hip, which he regarded as the most serious of his complaints. At the time the letter of 25th March 1996 was written he had not made, or indeed intimated that he would be making, the claim against the defendants which he made in these proceedings.
The summons in this action was issued on 12th June 1997. The claimant claimed damages, limited to £5,000, on the grounds that the working practices of which he made complaint significantly aggravated his pre-existing back condition. He had to manhandle heavy cylinders onto pallets and also to manoeuvre them manually when delivering them to customers from his lorry, and he relied on a number of allegations of negligence and breach of statutory duty in support of his claim.
Before I set out the judge's reasons for his ruling in favour of the claimant, I will say something about the background principles of law against which this case fell to be decided.
In Parry v Cleaver [1970] AC 1 Lord Reid identified at p 13 the two classes of cases in which the law disregards sums which a plaintiff has received as a result of an accident but which he would not have received if there had been no accident. He referred to the proceeds of insurance and to sums coming to the plaintiff by reason of benevolence. He said that the common law had treated the matter as one depending on justice, reasonableness and public policy.
Of the first of these two exceptions, Lord Reid said at p 14A-D that he knew of no better statement of the reason why benevolent payments should not be taken into account than that of Andrews CJ who said in Redpath v Belfast and County Down Railway [1947] NI 167, 170, that it would be startling to the subscribers to a distress fund if they were to be told that their contributions were really made for the benefit of the negligent railway company. Andrews CJ added a comment to the effect that if this was the law, the inevitable consequence in the case of future disasters of a similar character would be that the springs of private charity would be found to be largely, if not entirely, dried up. Lord Reid commented:
"It would be revolting to the ordinary man's sense of justice, and therefore contrary to public policy, that the sufferer should have his damages reduced so that he would gain nothing from the benevolence of his friends or relations or the public at large, and that the only gainer would be the wrongdoer. We do not have to decide in this case whether these considerations also apply to public benevolence in the shape of various uncovenanted benefits from the welfare state, but it may be thought that Parliament did not intend them to be for the benefit of the wrongdoer."
There appear to be two principles underlying Lord Reid's approach:
(1) That it is just, reasonable and in accordance with public policy to ignore gifts to the insured plaintiff resulting from the benevolence of others because it is wrong that the wrongdoer should be the beneficiary of such benevolence and because the deduction of such gifts from plaintiff's compensation from the wrongdoer would discourage benevolent donors in future;
(2) That the intention of the donors in making their gifts was to benefit the injured plaintiff and not to relieve the wrongdoer.
What Lord Reid said in Parry v Cleaver echoed the approach of Windeyer J in the High Court of Australia in National Insurance Co of New Zealand Ltd v Espagne CLR 569 at pp 599–600:
"In assessing damages for personal injuries, benefits that a plaintiff has received or is to receive from any source other than the defendant are not to be regarded as mitigating his loss if …(b) they were given or promised to him by way of bounty, to the intent that he should enjoy them in addition to and not in diminution of any claim for damages … The second description covers a variety of public charitable aid and some forms of relief given by the state as well as the produce of private benevolence. In both cases the decisive question is, not whether the benefit was received in consequence of, or as a result of the injury, but what was its character; and that is determined in the one case by what under his contract the plaintiff had paid for, and in the other by the intent of the person conferring the benefit. The test is by purpose rather than by cause."
In Hussain v New Taplow Paper Mills Ltd [1987] 1 WLR 336, CA, a case which reached the House of Lords in relation to the deductibility of payments made by employers to an injured workman which the employers were able to recover from insurers, the Court of Appeal was also invited by the defendants to consider an alternative ground for deductibility which was based on public policy grounds. Lloyd LJ, with whom Ralph Gibson LJ agreed, said of this alternative argument at p 350B-G:
"Arguments based on public policy tend to be somewhat imprecise, even, at time, emotive. The present case was no exception. Why, said [counsel for the plaintiff[, should third party tortfeasors reap the benefit of a scheme which was intended, not for their benefit, but for the benefit of the employee? Why should a wrongdoer pay less than he would otherwise pay, or even nothing at all, when it is his victim who has earned the benefit by his labour? I do not find such arguments on either side of much assistance. But there is one consideration of public policy which is worth mentioning, If an employee is injured in the course of his employment, and his employers make him an immediate ex gratia payment, as any good employer might, I see no reason why such a payment should not be take into account in reduction of any damages for which the employer may ultimately be held liable. Employers should be encouraged to make ex gratia payments in such circumstances. If so, then public policy would seem to require that such payments be brought into account.
It could, of course, be said that an ex gratia payment is like a sum coming to the plaintiff by way of benevolence, and should therefore be disregarded. This is so, where it is a third party who is ultimately held liable: see Cunningham v Harrison [1973] QB 942. But there must surely be an exception to that general rule where the ex gratia payment comes from the tortfeasor himself. So, if it is right that an ex gratia payment by the employer should be brought into account where the employer is the tortfeasor, why should it make any difference that the payment is one which he has contracted to make in advance? So if [counsel for the defendants] is wrong in his main argument, that payments under the scheme are in the nature of wages, and should be brought into account on that score, there would be much to be said for his alternative argument that such payments should in any event be brought into account on the grounds of 'justice, reasonableness and public policy'. But it is unnecessary to decide the case on that ground, since, on the facts of the present case, [counsel] is...
To continue reading
Request your trial
-
Gaca v Pirelli General Plc
...makes good the loss either voluntarily or contractually, thereby mitigates his liability in damages pro tanto." 27 Finally, Williams v BOC Gases Ltd [2000] ICR 1181. In that case, the plaintiff claimed damages from his employer in respect of injuries suffered during the course of his employ......