PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were not to be reduced by deducting the full net value of the ill-health pension from the net value of the pension which the petitioner would otherwise have received during the period after his normal retirement date. Such a pension should not be deducted from loss of earnings prior to the normal retirement date, because a wrongdoer should not benefit from the fact that an individual had chosen to provide for his own misfortune or that he was receiving benefits from the public at large or benevolence from friends or relations. Gourley’s case had nothing to do with the question whether sums coming to the plaintiff as proceeds of insurance or by reason of benevolence should be deducted. ‘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 latter sums must be deducted from the former in assessing the damages.’
Lord Reid said: ‘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.’ and
‘As regards moneys coming to the plaintiff under a contract of insurance, I think that the real and substantial reason for disregarding them is that the plaintiff has bought them and that it would be unjust and unreasonable to hold that the money which he prudently spent on premiums and the benefit from it should ensure to the benefit of the tortfeasor . . why should it make any difference that he insured by arrangement with his employer rather than with an insurance company?’ and
‘It is generally recognised that pensionable employment is more valuable to a man than the mere amount of his weekly wage. It is more valuable because by reason of the terms of his employment money is being regularly set aside to swell his ultimate pension rights whether on retirement or on disablement. His earnings are greater than his weekly wage. His employer is willing to pay pounds 24 per week to obtain his services and it seems to me that he ought to be regarded as having earned that sum per week. The products of the sums paid into the pension fund are in fact delayed remuneration for his current work. That is why pensions are regarded as earned income.
But the man does not get back in the end the accumulated sums paid into the fund on his behalf. This is a form of insurance. Like every kind of insurance what he gets back depends on how things turn out. He may never be off duty and may die before retiring age leaving no dependants. Then he gets nothing back. Or he may by getting a retirement or disablement pension get much more back than has been paid in on his behalf. I can see no relevant difference between this and any other form of insurance. So, if insurance benefits are not deductible in assessing damages and remoteness is out of the way, why should his pension be deductible? . .
A pension is intrinsically of a different kind from wages. If one confines one’s attention to the period immediately after the disablement it is easy to say that but for the accident he would have got pounds x, now he gets pounds y, so his loss is pounds x -pounds y. But the true solution is that wages are a reward for contemporaneous work but that a pension is the fruit, through insurance, of all the money which was set aside in the past in respect of his past work. They are different in kind’.
Lord Wilberforce: ‘Lastly I see no inconsistency between (i) not bringing the police pension into account against the civilian wages (periods 2 and 3) and (ii) bringing the reduced police pension into account against the greater he would have received if he had not been injured (period 4). These are two quite different pension equations and the difficult legal questions which relate to the earlier period never arise in relation to period 4, where all that is needed is an arithmetical calculation of pension loss. On the two related grounds, each of which would separately justify the conclusion, namely, (a) that the police pension is payable in any event and is not dependent on loss of earning capacity and (b) that the pension is to be regarded as the reward or earning of pre-injury service and therefore not entering into the computation of lost post-injury wages, I would reach the conclusion that it should not be deducted against damages recoverable from a third person for approved loss of earning capacity.’
Lord Reid said: ‘It is said to make all the difference that both the future wages of which he has been deprived by the fault of the defendant, and the benefit which has accrued by reason of his disablement come from the same source or arise out of the same contract. This seems to be founded on an idea of remoteness which is, I think, misconceived. Remoteness from the defendant’s point of view is a familiar conception in connection with damages. He pays damages for loss of a kind which he might have foreseen but not for loss of a kind which was not foreseeable by him. But here we are not dealing with that kind of remoteness. No one has ever suggested that the defendant gets the benefit of receipts by the plaintiff after his accident if they are of a kind which he could have foreseen, but not if they are of a kind which he could not have foreseen, or vice versa That the plaintiff may, in consequence of the defendant’s fault, receive benefit from benevolence, or insurance is no more or no less foreseeable or remote than that he may get a benefit from a pension to be paid by his employer. If remoteness has any relevance here it is quite a different kind of remoteness-the connection or absence of connection between the source of the benefit and the source of the wages. But what has that got to do with the defendant? It is rational to make the extent of the defendant’s liability depend on remoteness from his point of view-on what he knew or could or should have foreseen. But it is, to my mind, an irrational technicality to make that depend on the remoteness or closeness of relationship between the plaintiff’s source of loss and source of gain. Surely the distinction between receipts which must be brought into account and those which must not must depend not on their source but on their intrinsic nature.’
and: ‘A pension is intrinsically of a different kind from wages. If one confines one’s attention to the period immediately after the disablement it is easy to say that but for the accident be would have got pounds X, now he gets pounds Y, so his loss is pounds X-Y. But the true situation is that wages are a reward for contemporaneous work, but that a pension is the fruit, through insurance of all the money which was set aside in the past in respect of his past work. They are different in kind.’
Lord Reid, Lord Wilberforce, Lord Moris of Borth-y-Gest and Lord Pearson dissenting
[1970] AC 1, [1969] UKHL 2, [1969] 2 WLR 821, [1969] 1 All ER 555, [1969] 1 Lloyd’s Rep 183
Bailii
England and Wales
Citing:
Explained – British Transport Commission v Gourley HL 1955
It is a universal rule that the plaintiff cannot recover more than he has lost and that realities must be considered rather than technicalities. The damages to be awarded for personal injury including loss of earnings should reflect the fact that . .
Approved – Redpath v Belfast and County Down Railway CANI 1947
The plaintiff sought damages for personal injury. The defendant company sought to bring into account sums received by the plaintiff from a distress fund to which members of the public had contributed. Plaintiff’s counsel were said to having . .
Cited – Payne v Railway Executive 1951
Disablement pensions, whether voluntary or not, are to be ignored in the assessment of damages. . .
Cited – Paff v Speed 6-Apr-1961
(High Court of Australia) ‘The first consideration is what is the nature of the loss or damage which the plaintiff says he has suffered.’
Damages – Personal injuries – Matters to be considered in reduction of damages – Plaintiff policeman at . .
Appeal from – Parry v Cleaver CA 9-May-1967
The plaintiff policeman was hit by a car whilst he was on traffic duty. When he claimed damages in negligence the defendant sought to have deducted from his award an amount received by way of additional pension payments received which had been . .
Approved – Bradburn v Great Western Rail Co CEC 1874
The plaintiff had received a sum of money from a private insurer to compensate him for lost income as a result of an accident caused by the negligence of the defendant.
Held: He was entitled to full damages as well as the payment from the . .
Disapprove – Browning v War Office CA 1962
The plaintiff had been a technical sergeant in the United States Air Force; his pay had been $450 per month and after his injuries caused by the negligence of the defendants’ driver he received only a ‘veteran’s benefit’ of $217 per month
Cited – Forgie v Henderson 1818
The pursuer was assaulted by the defender. During part of his resulting illness he received an allowance from a friendly society.
Held: In charging the jury, the Lord Chief said ‘I do not think that you can deduct the allowance from the . .
Cited – Dalby v The India and London Life Assurance Company HL 9-May-1851
An insurance company (Anchor) had taken out insurance with the defendant on the life of the Duke of Cambridge in the sum of pounds 1000 for which it paid a yearly premium during the life of the Duke. Anchor had itself granted policies of insurance . .
Cited – Livingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the . .
Cited – Jones v Gleeson 1965
(Australia) When a policeman who had retired retired through injury sought damages for that injury, the pension he received as a result of his retirement was to be ignored entirely: ‘In recent years, however, the relevance or otherwise to the issue . .
Cited – Eldridge v Videtta 1964
The court declined to take into account to reduce the damages, benefits received under the national assistance scheme. . .
Cited – British Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited HL 1912
The plaintiffs purchased eight steam turbines from the defendants. They later proved defective, and the plaintiffs sought damages. In the meantime they purchased replacements, more effective than the original specifications. In the result the . .
Cited – Foxley v Olton 1964
Unemployment benefits received by a plaintiff must be set off against a claim for damages. . .
Cited – Admiralty Commissioners v Steamship Amerika (Owners), The Amerika PC 13-Aug-1917
The Admiralty sought to recover as an item of loss the pensions payable to the widows of sailors killed in an accident to a submarine: . .
Cited – Elstob v Robinson 1964
The defendant sought to have taken into account when calculating the plaintiff’s damages a service pension he received. . .
Cited – Admiralty Commissioners v SS Volute (Owners), The Volute HL 1921
When assessing negligence the court must ask whether it was ‘so much mixed up with the state of things brought about’ by the defendant that ‘in the ordinary plain common sense of this business’ it must be regarded as having contributed to the . .
Cited – Admiralty Commissioners v Valeria (Owners) 1922
The court referred to the correct sum of damages as that pecuniary sum which will make good to the sufferer, so far as money can do, the loss which he has suffered as the natural result of the wrong done to him. . .
Cited – Carroll v Hooper 1964
The defendant asked the court to deduct from the plaintiff’s damages the service pension he received.
Held: It should be disregarded as discretionary. . .
Cited – Baker v Dalgleish Steam Shipping Co Ltd 1922
The court considered the deduction of a pension from an award of damages: ‘The fact that the continuance of the pensions is in the discretion of the Minister does not, in my opinion, exclude them from consideration. The reasonable expectation of . .
Cited – Smith v Canadian Pacific Railway Company 1963
(Canada – Saskatchan) A police officer had retired through injury and sought damages. The defendant sought to deduct his pension.
Held: His police pension was to be apportioned so that the portion attributable to his own contributions were to . .
Cited – Admiralty Commissioners v Chekiang (Owner), The Chekiang HL 1926
There had been a collision at sea in which the defendant’s vessel caused damage to HMS Cairo. The House was asked to assess damages after damage to the plaintiff’s vessel, and whether in the case of a warship the registrar had been entitled to award . .
Cited – Parsons v BNM Laboratories Ltd CA 1963
Unemployment benefit was deductible from damages for wrongful dismissal. The benefit was not ‘purely personal’, the employer had made a contribution, and the plaintif had a duty to mitigate his loss (Sellers LJ). The benefit was not ‘truly . .
Cited – Liesbosch Dredger (Owners of) v Owners of SS Edison, The Liesbosch HL 28-Feb-1933
The ship Edison fouled the moorings of the Liesbosch resulting in the total loss of the dredger when it sank. It had been engaged on work in the harbour under contract with the harbour board. All the owners’ liquid resources were engaged in the . .
Cited – Liffen v Watson 1940
After being injured in an accident a domestic servant was unable to continue in her employment in which she received pounds 1 a week wages and board and lodging. After the accident she went to live with her father to whom she made no payment for . .
Cited – Redpath v Belfast and County Down Railway CANI 1947
The plaintiff sought damages for personal injury. The defendant company sought to bring into account sums received by the plaintiff from a distress fund to which members of the public had contributed. Plaintiff’s counsel were said to having . .
Cited – Graham v Baker 1961
The court considered whether a pension received by a plaintiff should affect the damages to be awarded. . .
Cited – Shearman v Folland CA 1950
The injured plaintiff had lived before the accident in hotels to which she paid seven guineas a week for board and lodging. After the accident she spent just over a year in nursing homes at a cost of twelve guineas a week exclusive of medical . .
Cited – National Insurance Co of New Zealand Ltd The v Espagne 6-Apr-1961
(High Court of Australia) The court considered the relevance of a pension awarded to an injured person.
Damages – Action for personal injuries caused by negligence – Matters to be considered in reduction of damages – Invalid pension – Awarded . .
Cited – Payne v Railway Executive 2-Jan-1951
A Royal Navy sailor was disabled by a railway accident and was awarded a disability pension of pounds 2 16s. 3d. per week. At first instance J Sellers had held that Bradburn’s case applied so as to prevent deduction of the value of the pension. If . .
Cited – Judd v Board of Governors, Hammersmith, West London and St. Mark’s Hospitals 1960
The plaintiff, a local government officer had made compulsory contributions to his superannuation scheme.
Held: A contributory pension received early on an injury was to be ignored until the normal retiring age, but deducted for the later . .
Cited – Peacock v Amusement Equipment Co Ltd CA 1954
The deceased received fatal injuries riding a miniature railway. The plaintiff, her surving husband, sought damages under the Fatal Accidents Acts. Her estate included a grocery shop with a flat, in which she and the plaintiff resided. She left the . .
Cited – Watson v Ramsay 1960
(New South Wales) The right to have a pension or the chance of having a pension from his employer is part of what a servant earns by his labour. The distinction is not valid. . .
Cited – Monmouthshire County Council v Smith 1956
The court considered whether a police pension which became payable on early retirement through injury was deductible from damages awarded for the injury.
Held: Yes. . .
Cited – Metropolitan Police District Receiver v Croydon Corporation 1957
Where an employer is under a statutory obligation to pay wages whether the employee is fit for duty or not, the law is that the employee has suffered no loss and can recover no damages, and where the plaintiff continues to be paid these sums, they . .
Cited by:
Cited – Cantwell v Criminal Injuries Compensation Board IHCS 9-Feb-2000
The petitioner appealed a refusal of his claim for compensation. He was a serving police officer injured whilst arresting an offender. He had retired on medical grounds and received pensions, which the Board found deductible from any award reducing . .
Cited – Pirelli General Plc and others v Gaca CA 26-Mar-2004
The claimant was awarded damages from his employers, who claimed that the benefits received by the claimant from an insurance policy to which the defendants had contributed should be set off against the claim.
Held: McCamley was no longer good . .
Cited – Hussain v New Taplow Paper Mills Ltd HL 1988
The plaintiff was injured in an accident at work. His employer was partly responsible. For 13 weeks he received full sick pay in accordance with his contract. He then received half his pre-accident earnings under the permanent health insurance . .
Cited – Hunt v Severs HL 7-Sep-1994
The tortfeasor, a member of the claimant’s family provided her with voluntary nursing care after the injury. The equivalent cost of that care, was recoverable, but would be held on trust for the carer. The underlying rationale of English Law is to . .
Cited – Dimond v Lovell HL 12-May-2000
A claimant sought as part of her damages for the cost of hiring a care whilst her own was off the road after an accident caused by the defendant. She agreed with a hire company to hire a car, but payment was delayed until the claim was settled.
Cited – South West Trains Ltd v Wightman and Others ChD 14-Jan-1998
The trades’ union had agreed with the employer that what had been irregular and non-pensionable payments made to employees would, in future, be paid regularly, but that only certain parts of the payments become pensionable. The employer now sought . .
Cited – Cantwell v Criminal Injuries Compensation Board HL 5-Jul-2001
When calculating the losses suffered by a victim of crime, the allowance to be made for losses to a retirement pension through having to retire early should have set off against them, the benefits received by way of payments for his ill-health, . .
Explained – Auty v National Coal Board CA 1985
A widow received a widow’s pension under a Coal Board scheme on the death of her husband, which had been caused by the defendants’ negligence.
Held: She did not have to give credit for this pension when the value of her dependency on her . .
Approved – Wilson v National Coal Board HL 1981
A entire colliery closed down and all employees other than the pursuer were offered and accepted alternative employment, thus disqualifying them from receiving redundancy payments. The pursuer, who had been injured by the accident for which the . .
Cited – Cunningham v Harrison CA 17-May-1973
The plaintiff had been severely injured, and would need nursing care for the rest of his life. His wife nursed him until her death, but had given a statement that if not for her two full time nurses would be required. His employer continued to pay . .
Cited – Clenshaw v Tanner and others CA 27-Nov-2002
The claimant was a cyclist. He passed along inside a line of traffic, and collided with a lorry turning left into a petrol station ahead of him, suffering serious injuries. He appealed against a finding that the lorry driver had signalled and that . .
Cited – Royston Frederick Williams v BOC Gases Ltd CA 29-Mar-2000
The plaintiff claimed damages from his employer in respect of injuries suffered during the course of his employment. The defendant paid the claimant a sum to which he had no contractual entitlement, saying that it was to be treated as an advance . .
Cited – McMullen v Gibney and Gibney NIHC 13-Jan-1999
. .
Cited – Longden v British Coal Corporation HL 13-Mar-1997
The plaintiff was injured whilst at work in one of the defendant’s collieries. The House considered the deductibility from damages awarded for personal injury of a collateral benefit.
Held: The issue of deductibility where the claim is for . .
Cited – Larkham v Lynch 1974
The plaintiff had sustained serious injuries and sought damages. One item of special damages was a sum for loss of pension between the age of 60, when he would have retired, and the age of 65, which was the limit of his life expectancy as a result . .
Cited – Dews v National Coal Board HL 1988
The plaintiff miner sought damages for an injury suffered at work.
Held: An employee who had been injured at work could not recover unpaid pension contributions, which had no effect on his pension entitlement, as part of his loss of pay while . .
Cited – Longden v British Coal Corporation CA 1995
The plaintiff sought damages after being injured at work. The defendant sought to set off against the damages to be awarded sums received by way of a collateral benefit.
Held: Roch LJ said: if the plaintiff were not permitted to recover the . .
Cited – O’Brien and others v Independent Assessor HL 14-Mar-2007
The claimants had been wrongly imprisoned for a murder they did not commit. The assessor had deducted from their compensation a sum to represent the living costs they would have incurred if living freely. They also appealed differences from a . .
Cited – Knapton and others v ECC Card Clothing Ltd EAT 7-Mar-2006
EAT Unfair Dismissal: Compensation
Reversing the Employment Tribunal, in the assessment of compensation for unfair dismissal under Employment Rights Act 1996 section 123, an employee who took early receipt . .
Cited – Milner and Another v Carnival Plc (T/A Cunard) CA 20-Apr-2010
Damages for Disastrous Cruise
The claimants had gone on a cruise organised by the defendants. It was described by them as ‘the trip of a lifetime.’ It did not meet their expectations. There had been several complaints, including that the cabin was noisy as the floor flexed with . .
Cited – Cox v Ergo Versicherung Ag CA 25-Jun-2012
The deceased member of the armed forces had died in a road traffic accident in Germany. The parties didputed whether the principles governing the calculation of damages were those in the 1976 Act and UK law, or under German law.
Held: ‘There . .
Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Cited – Fulton Shipping Inc of Panama v Globalia Business Travel SAU (Formerly Travelplan SAU) of Spain ComC 21-May-2014
The former owners of the ‘New Flameno’ appealed from an arbitration award. A charter of the vessel had been repudiated with two years left to run. The owners chose to sell. They made a substantial profit over the price they would have received after . .
Cited – Fulton Shipping Inc of Panama v Globalia Business Travel Sau CA 21-Dec-2015
The charter of the ship ‘New Flameno’ was repudiated two years early. The owners sold it, making rather more profit than they would have if sold after the end of the term. The court was now asked how the profit should affect the loss claim on the . .
Cited – Globalia Business Travel Sau of Spain v Fulton Shipping Inc of Panama SC 28-Jun-2017
The court was asked how to assess damages arising out of the repudiation of a charterparty by charterers of a cruise ship, the ‘New Flameno’. The charter ending two years early, the owners chose to sell, and in the result got a much better price . .
Cited – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Cited – SS (Sri Lanka), Regina (on The Application of) v The Secretary of State for The Home Department CA 15-Jun-2018
The court was asked whether, in cases heard by the First-tier Tribunal (Immigration and Asylum Chamber) where the credibility of the appellant is in issue, there is a rule that a delay of more than three months between the hearing of oral evidence . .
Lists of cited by and citing cases may be incomplete.
Damages, Personal Injury
Leading Case
Updated: 22 January 2022; Ref: scu.181846