Wood v British Coal Corporation
| Jurisdiction | England & Wales |
| Judgment Date | 09 October 1990 |
| Date | 09 October 1990 |
| Court | Queen's Bench Division |
Damages - Earnings, loss of - Sickness and injury pensions - Fireman injured in course of employment - Firemen's compulsory pension scheme - Pensions payable as result of injury - Whether pension payments deductible from special damages for loss of earnings
The plaintiff, a fireman employed by the defendant, was injured in an accident at work. On his claim for damages for negligence, the judge found in his favour on the issue of liability and gave judgment for damages to be assessed. On the issue of damages the judge made an award in respect of general and special damages, but granted a stay of execution pending determination of an issue as to the deductibility of the plaintiff's pension from the amount of the special damages.
On the question whether, in assessing special damages for loss of earnings from the date of the accident until the date at which the judge found that he would have retired but for the accident, the plaintiff's ill health and injury pensions payable under the relevant compulsory firemens pension scheme should be deducted: —
Held, giving judgment for the plaintiff, that a pension was deferred remuneration for service already given, and payments under ill-health and injury pensions were not in the nature of compensation and were not, therefore, deductible from any claim for damages for loss of earnings, even where the torfeasor was the plaintiff's employer and the provider of the pension scheme; and that, accordingly, payments made under the plaintiff's pensions and increases in subsequent payments were not deductible from the award of special damages (post, pp. 440C–D, G–H, 442H–443A).
The following cases are referred to in the judgment:
Blacker v. West Yorkshire Metropolitan County Council (unreported), 25 July 1984, Judge Herrod
Bradburn v. Great Western Railway Co. (
British Transport Commission v. Gourley [
Browning v. War Office [
Dews v. National Coal Board [
Edwards v. B.P. Chemicals International Ltd. (unreported), 8 May 1987, Eastham J.
Flowers v. George Wimpey & Co. Ltd. [
Graham v. Baker (
Hodgson v. Trapp [
Hussain v. New Taplow Paper Mills Ltd. [
Jones v. Gleeson (
Liesbosch, The [
Lincoln v. Hayman [
McCanley v. Cammell Laird Shipbuilders Ltd. [
Metropolitan Police District Receiver v. Croydon Corporation [
Nabi v. British Leyland (U.K.) Ltd. [
National Insurance Co. of New Zealand Ltd. v. Espagne (
Orme v. Walmsleys (Bury) Ltd. (unreported), 5 October 1973, Finer J.
Paff v. Speed (
Palfrey v. Greater London Council [
Parry v. Cleaver [
Parsons v. B.N.M. Laboratories Ltd. [
Payne v. Railway Executive [
Plummer v. P. W. Wilkins & Sons Ltd. [
Redding v. Lee (
Redpath v. Belfast & County Down Railway [
Rodriguez v. Rodriguez, The Times, 6 April 1988; Court of Appeal (Civil Division) Transcript No. 302 of 1988,
Stott v. Sir William Arrol & Co. Ltd. [
Taylor v. Chief Constable of Essex (unreported), 3 July 1986, Alliott J.
Westwood v. Secretary of State for Employment [
Yasin, The [
The following additional cases were cited in argument:
Berriello v. Felixstowe Dock & Railway Co. [
Chan v. Butcher [
Judd v. Board of Governors of the Hammersmith West London and St. Marks Hospitals [
Pidduck v. Eastern Scottish Omnibuses Ltd. [
Smith v. Canadian Pacific Railway Co. (
ACTION
By a writ dated 20 October 1986 and a statement of claim served on 25 November 1986 the plaintiff, Alexander Frank Smoker, claimed damages for personal injuries suffered as a result of the negligence of his employer, London Fire and Civil Defence Authority. On 2 February 1988, pursuant to an agreement under
The relevant facts are stated in the judgment.
Richard Clegg Q.C., Allan Gore and Martin Seaward for the plaintiff.
Michael Wright Q.C. and Kerstin Boyd for the defendant authority.
12 January 1990. AULD J. read the following judgment. On 3 February 1989 Owen J., on a trial on liability only, gave judgment for the plaintiff, Alexander Frank Smoker, in a sum of damages to be assessed, on his claim for damages in negligence and for breach of statutory duty against the London Fire and Civil Defence Authority, arising out of an injury suffered by the plaintiff on 7 February 1985 in the course of his work as a fireman employed by the authority.
On 9 May 1989 French J., on the trial of the issue of damages, gave judgment for £18,634, made up of general damages of £1,750 for injury, pain and suffering, special damages of £13,551, and interest of £3,333.
£13,525 of the special damages figure of £13,551 consisted of the plaintiff's loss of earnings as a fireman from the date of the accident to 15 December 1987, the date on which French J. found that, by reason of his pre-existing medical condition, he would have retired as a fireman but for the accident. In fact he was forced by his injury to retire two years earlier, on 15 December 1985. There was an unresolved issue about the deductibility from the special damages figure of two pensions under the Firemen's Pension Scheme paid to the plaintiff in the two years between his actual retirement because of the injury and the date on which he would otherwise have retired. French J. dealt with that by ordering a stay of execution of the judgment pending the determination by the court of that issue.
I am now asked to decide two questions on the issue of the deductibility of the plaintiff's pension rights: (1) whether the authority is entitled to deduct from the special damages figure of £13,551, consisting principally of the loss of earnings from the date of the accident to 15 December 1987, the date when he would have retired but for the injury, his receipts of £9,926.89 in ill-health and injury awards under the Firemen's Pensions Scheme from 15 December 1985 to 15 December 1987, so as to reduce his loss of earnings to £3,624.11; and (2) whether the authority is entitled to make a further deduction from the plaintiff's special damages of the higher pension benefits that he has received and will receive as a result of his injury than otherwise would have been the case, namely a net annual gain of £996, producing an agreed capitalized sum of £11,454, and which, if deductible, would extinguish the special damages.
The answers to these questions turn on whether the rule established by the House of Lords in Parry v. Cleaver [
I have also been asked by Mr. Wright to take into account when I set out the facts of the matter that Lord Reid, and possibly Lord Pearce, in Parry v. Cleaver may have proceeded upon an incorrect factual basis in their consideration of the Police Pension Scheme there under consideration. He says that that is of importance because that scheme is the same in its essentials as the Firemen's Pension Scheme. He argues that if their Lordships had proceeded upon the correct factual basis, the decision might have been different.
It is not for me to embark upon an examination of the correctness or otherwise of the facts upon which the House relied in giving judgment in Parry v. Cleaver. Certainly, whatever view on the matter I express could not be determinative. It is for their Lordships, if they consider it appropriate, not for me, to express a view about the...
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Wood v British Coal Corporation
...one ninetieth of his retiring pay for each year of service and a lump sum equal to three years' pension. 9 In Smoker's case Auld J. [1991] 2 W.L.R. 422 decided that he was bound by a decision of this House not to allow deduction of the ill-health pension, injury gratuity and injury pension......
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Smoker et al. v. London, (1991) 139 N.R. 380 (HL)
...one ninetieth of his retiring pay for each year of service and a lump sum equal to three years' pension. [9] In Smoker's case Auld, J. [1991] 2 W.L.R. 422, decided that he was bound by a decision of this House not to allow deduction of the ill-health pension, injury gratuity and injury pens......
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