Cantwell v. Criminal Injuries Compensation Board (Scotland)

LORDS DECISIONS

LORDS DECISIONS >>

LORDS

LORD BINGHAM OF CORNHILL LORD STEYN LORD HOPE OF CRAIGHEAD LORD HOBHOUSE OF WOOD-BOROUGH LORD SCOTT OF FOSCOTE

LORDS OF APPEAL FOR JUDGMENT

LORD BINGHAM OF CORNHILL

LORDS,

LORD HOPE OF CRAIGHEAD. I GRATEFULLY ADOPT, AND NEED NOT REPEAT, HIS MOST HELPFUL REVIEW OF THE FACTS AND ISSUES IN THIS APPEAL.

JUSTICE ACT 1982, WHICH LORD HOPE HAS QUOTED AND WHICH, IN THE COURT'S VIEW, NEEDED AMENDMENT.

LORD ORDINARY. SINCE PARRY V CLEAVER WAS TREATED AS AUTHORITATIVE IN ENGLAND AND WALES AND WAS, AS I UNDERSTAND, REGARDED IN SCOTLAND AS AN ACCURATE REFLECTION OF SCOTS LEGAL PRINCIPLES, THIS RULING WOULD APPEAR TO HAVE BEEN SOUND IN PRINCIPLE AND JUST IN ITS PRACTICAL OUTCOME.

LORD ORDINARY, THE FIRST DIVISION OR THE HOUSE. IT WAS PLAINLY BASED ON PARAGRAPH 20 OF THE SCHEME, WHICH LORD HOPE HAS QUOTED. THAT PARAGRAPH DID INDEED PROVIDE FOR THE DEDUCTION OF HALF OF ANY TAXABLE "PENSION ACCRUING AS A RESULT OF THE INJURY". THE PARTIES ARE AGREED THAT THIS DESCRIPTION COVERED MR CANTWELL'S ILL-HEALTH PENSION RECEIVED UP TO HIS NORMAL RETIREMENT DATE. IT MIGHT BE THOUGHT TO COVER MR CANTWELL'S ILL-HEALTH PENSION RECEIVED AFTER HIS DATE OF NORMAL RETIREMENT ALSO SINCE PARAGRAPH 20 DREW NO DISTINCTION BETWEEN PENSIONS RECEIVED BEFORE AND AFTER THE APPLICANT'S DATE OF NORMAL RETIREMENT. THE CONTENTION THAT PARAGRAPH 20 GOVERNED MR CANTWELL'S ENTITLEMENT AFTER AS WELL AS BEFORE HIS DATE OF NORMAL RETIREMENT WAS HOWEVER REJECTED BY A MAJORITY OF THE BOARD, THE LORD ORDINARY AND THE FIRST DIVISION, AND HAS NOT BEEN REPEATED IN THE HOUSE. IT IS ACCORDINGLY NOT OPEN TO REVIEW. BUT ONE CAN UNDERSTAND WHY A MINORITY OF THE BOARD SAW LOGICAL FORCE IN THIS CONTENTION.

LORD ORDINARY AGREED WITH THE SUBMISSION ON BEHALF OF THE BOARD THAT

LORD HOPE REFERS GIVES NO HINT OF AN INTENTION TO DEPART FROM PARRY V CLEAVER, BUT NOR DOES IT IDENTIFY ANY OMISSION OR ANOMALY WHICH SECTION 10(A) COULD HAVE BEEN INTENDED TO ADDRESS. IF SECTION 10(A) WAS ENACTED FOR THE AVOIDANCE OF DOUBT IT HAS NOT PROVED NOTABLY SUCCESSFUL.

LORD HOPE HAS GIVEN THAT IN THE PERIOD OF NEARLY TWENTY YEARS SINCE SECTION 10(A) WAS ENACTED IT HAS NOT BEEN UNDERSTOOD TO HAVE THE EFFECT WHICH THE FIRST DIVISION HAS GIVEN TO IT IN THIS CASE. YET MANY CLAIMS RELATING TO PENSION LOSS AFTER THE DATE OF NORMAL RETIREMENT MUST HAVE BEEN DISPOSED OF DURING THAT PERIOD, PRESUMABLY ACCORDING TO CONVENTIONAL PARRY V CLEAVER PRINCIPLES. LORD HOPE HAS SHOWN HOW SECTION 10(A) MAY BE READ CONFORMABLY WITH THOSE PRINCIPLES. SINCE THOSE PRINCIPLES, WHEN APPLIED TO THE POST-NORMAL RETIREMENT PERIOD, YIELD WHAT IS TO MY MIND A JUST RESULT, AND SINCE NO REASON HAS BEEN SHOWN WHY SECTION 10(A) SHOULD HAVE BEEN INTENDED TO YIELD A DIFFERENT RESULT IN A CASE SUCH AS THIS, I AM HAPPY TO CONCUR IN MAKING THE ORDER WHICH LORD HOPE PROPOSES.

LORD STEYN

LORDS,

LORD BINGHAM OF CORNHILL, LORD HOPE OF CRAIGHEAD AND LORD HOBHOUSE OF WOODBOROUGH. FOR THE REASONS THEY HAVE GIVEN I WOULD ALSO MAKE THE ORDER WHICH IS PROPOSED.

LORD HOPE OF CRAIGHEAD

LORDS,

LORDSHIPS ARE BEING ASKED TO TAKE WILL AFFECT THE CALCULATION OF DAMAGES FOR PERSONAL INJURY IN ALL CASES ON SIMILAR FACTS IN THE ORDINARY COURTS IN SCOTLAND.

LORDSHIPS WERE TOLD THAT IN ROUND FIGURES THE SUM WHICH THE RESPONDENT HAS RECEIVED SINCE HIS RETIREMENT DATE BY WAY OF ILL-HEALTH PENSION IS £13,700 PER ANNUM. IF HE HAD CONTINUED IN SERVICE TO HIS NORMAL RETIREMENT AGE HE WOULD HAVE RECEIVED A RETIREMENT PENSION OF £15,200. IT SHOULD BE NOTED THAT, ALTHOUGH THE TWO PENSIONS ARE DISTINGUISHED FROM EACH OTHER IN THE 1987 REGULATIONS BY MEANS OF A DIFFERENT ADJECTIVE, THEY ARE BOTH PENSIONS AND THEY ARE BOTH PRODUCTS OF THE SAME SCHEME.

LORD CARLISLE OF BUCKLOW QC. ON 17 JULY 1997 THE BOARD ISSUED A JUDGMENT IN WHICH THE DECISION OF THE SINGLE MEMBER WAS CONFIRMED.

LORD ORDINARY (LORD MILLIGAN) REFUSED THE PRAYER OF THE PETITION. ON 9 FEBRUARY THE FIRST DIVISION (THE LORD PRESIDENT (RODGER), LORD COULSFIELD AND LORD COWIE) ALLOWED THE RESPONDENT'S RECLAIMING MOTION, REDUCED THE DECISION OF THE BOARD AND REMITTED THE RESPONDENT'S APPLICATION TO THE BOARD FOR RECONSIDERATION: 2000 SC 407.

LORD ORDINARY SAID THAT IN HIS VIEW THERE WAS MUCH TO BE SAID FOR THE VIEW THAT, TAKING THE WORDS OF PARAGRAPH 20 OF THE SCHEME ACCORDING TO THEIR PLAIN AND ORDINARY MEANING, ANY DEDUCTION IN RESPECT OF THE RESPONDENT'S PENSION BENEFITS FOR THE PERIOD FOLLOWING NORMAL RETIREMENT AGE SHOULD BE IN RESPECT ONLY OF ONE HALF OF THE VALUE OF THOSE BENEFITS. BUT HE FOUND WHAT HE CONSIDERED TO BE SOUND REASONS FOR CONSTRUING THE RELEVANT SENTENCE OF THAT PARAGRAPH AS APPLYING ONLY WHERE THE COMMON LAW BASIS OF ASSESSMENT DID NOT ALREADY PROVIDE FOR DEDUCTION OF THOSE BENEFITS IN FULL. HE ALSO REJECTED AN ARGUMENT WHICH HAD NOT BEEN PUT TO THE BOARD THAT THE EFFECT OF SECTION 10(A) OF THE ADMINISTRATION OF JUSTICE ACT 1982 WAS THAT THE ILL-HEALTH PENSION SHOULD BE LEFT OUT OF ACCOUNT ALTOGETHER IN ASSESSING THE AMOUNT OF THE RESPONDENT'S CLAIM.

LORD COULSFIELD. HE DEALT FIRST WITH THE RELEVANT PROVISIONS OF THE SCHEME. HE SAID THAT THE COURT WERE OF THE OPINION THAT THE CORRECT VIEW WAS THAT THEY WERE DESIGNED TO REGULATE THE POSITION BEFORE NORMAL RETIREMENT, AND THAT THEY AGREED WITH THE BOARD AND THE LORD ORDINARY ON THIS POINT: P 717B-C. HE THEN PROCEEDED TO CONSIDER THE WORDING OF SECTION 10 OF THE ADMINISTRATION OF JUSTICE ACT 1982. HE NOTED WHAT WAS SAID IN PARRY V CLEAVER [1970] AC 1 ABOUT THE PROPER TREATMENT OF PENSIONS FOR THE PERIOD OF RETIREMENT IN ENGLISH LAW, AND THE ARGUMENT THAT A COMPARISON OF AN ILL-HEALTH PENSION WITH A RETIREMENT PENSION WAS A COMPARISON OF LIKE WITH LIKE WHICH SHOWED THAT A DEDUCTION COULD PROPERLY BE MADE IN ASSESSING POST-RETIREMENT LOSS. BUT HE CONCLUDED THAT SECTION 10(A) OF THE ACT EXCLUDES ANY DEDUCTION IN RESPECT OF A CONTRACTUAL BENEFIT SUCH AS THE BENEFIT IN ISSUE IN THIS CASE, WHETHER THAT BENEFIT RELATES TO A PERIOD BEFORE OR AFTER NORMAL RETIREMENT DATE: P 418A-B. HE SAID THAT THE COURT HAD CONSIDERED VERY CAREFULLY WHETHER ANY OTHER MEANING COULD PROPERLY BE GIVEN TO THE STATUTORY WORDS WHICH WOULD LEAD TO A DIFFERENT RESULT, BUT THAT IT HAD BEEN UNABLE TO DO SO: P 418C.

LORD COULSFIELD'S CONCLUDING REMARKS THAT THE COURT REACHED ITS DECISION WITH RELUCTANCE, AS IT WAS WELL AWARE THAT THE RESULT WAS IN CONFLICT WITH THE POSITION IN ENGLAND AND THAT IT WAS INEQUITABLE. THE ISSUE IN THIS APPEAL IS WHETHER THAT DECISION WAS INEVITABLE. IF ANOTHER SOLUTION TO THE PROBLEM OF INTERPRETATION CAN BE FOUND WHICH PRODUCES A RESULT WHICH IS EQUITABLE AND IN ACCORDANCE WITH PRINCIPLE, IT SHOULD OF COURSE BE ADOPTED. IT SHOULD BE NOTED HOWEVER THAT THE RESPONDENT DID NOT SEEK TO CHALLENGE THE COURT'S DECISION THAT THE PROVISIONS OF PARAGRAPH 20 OF THE SCHEME WERE DESIGNED TO REGULATE THE POSITION BEFORE THE RETIREMENT DATE AND THAT THEY DID NOT RELATE TO THE CALCULATION OF PENSION LOSS AFTER THAT DATE.

JUSTICE ACT 1982, AS AMENDED BY THE JOBSEEKERS ACT 1995 AND THE EMPLOYMENT RIGHTS ACT 1996, PROVIDES:

LORD BLACKBURN IN LIVINGSTONE V RAWYARDS COAL CO (1880) 7 R (HL) 1, 7. THE COMPENSATORY APPROACH REQUIRES LIKE TO BE COMPARED WITH LIKE. THE NATURE OF THE LOSS FOR WHICH THE INJURED PARTY SEEKS TO BE COMPENSATED MUST BE IDENTIFIED. IF IT CAN BE SHOWN THAT HE HAS RECEIVED, OR WILL RECEIVE, A BENEFIT WHICH IS OF SAME AS THAT WHICH HE HAS LOST, THAT BENEFIT MUST BE SET OFF AGAINST THE LOSS. IF THIS IS NOT DONE, THE INJURED PARTY WILL BE PLACED IN A BETTER POSITION FINANCIALLY THAN HE WAS BEFORE THE ACCIDENT. AS I SAID IN LONGDEN V BRITISH COAL CORPORATION [1998] AC 653, 665A THE ISSUE OF DEDUCTIBILITY WHERE THE CLAIM IS FOR LOSS OF PENSION CANNOT BE PROPERLY ANSWERED WITHOUT A CLEAR UNDERSTANDING OF THE NATURE OF THE LOSS CLAIMED.

LORD WILBERFORCE, IT WILL BE SUFFICIENT FOR THE DEFENDER SIMPLY TO CALL EVIDENCE WHICH CONTRADICTS THE CASE THE PURSUER SEEKS TO ESTABLISH. HE MAY BE ABLE TO SHOW, IN ANSWER TO A CLAIM FOR LOSS OF PENSION, THAT THE PURSUER HAS IN FACT A PENSION. OR HE MAY BE ABLE TO SHOW, IN ANSWER TO A CLAIM FOR MEDICAL EXPENSES, THAT HE RECEIVED THE MEDICAL TREATMENT IN QUESTION FREE OF CHARGE. IN OTHER CASES THE BENEFIT RECEIVED MAY BE SO CLOSELY RELATED IN KIND TO THAT WHICH IS LOST THAT THE SAME RESULT MUST FOLLOW IF THE INJURED PARTY IS NOT TO BE OVERCOMPENSATED. THE TYPICAL CASE IS THAT OF LOSS OF WAGES. A CLAIM THAT THE INJURED PARTY HAS LOST WAGES BECAUSE HIS EMPLOYMENT WAS TERMINATED AS A RESULT OF THE ACCIDENT MAY BE MET BY EVIDENCE THAT HE HAS RETURNED TO EMPLOYMENT ELSEWHERE FROM WHICH HE HAS IN FACT BEEN RECEIVING WAGES. IN EACH CASE, AS WINDEYER J SAID, THE FIRST CONSIDERATION IS THE NATURE OF THE LOSS OR DAMAGE THAT THE PURSUER SAYS HE HAS SUFFERED. ON THIS APPROACH IT WOULD SEEM TO BE CLEAR THAT, WHERE THE CLAIM IS FOR LOSS OF PENSION AND THAT IT RELATES TO A PERIOD DURING WHICH THAT LOST PENSION WOULD OTHERWISE HAVE BEEN PAYABLE, ACCOUNT SHOULD BE TAKEN OF A PENSION WHICH IS PAYABLE TO THE INJURED PARTY FOR THE SAME PERIOD.

LORD REID SAID AT P 13 THAT IT WAS NECESSARY TO BEGIN BY CONSIDERING GENERAL PRINCIPLES:

LORD REID EXPLAINED THE REASON FOR THIS DIFFERENCE OF TREATMENT AT P 20-21:

LORD REID'S ANSWERS TO THE TWO QUESTION WHICH HE HAD IDENTIFIED AT P 13 WOULD HAVE BEEN, FIRST, THAT WHAT THE PLAINTIFF LOST AS A RESULT OF THE ACCIDENT WAS THE DIMINUTION IN THE ULTIMATE PRODUCT OF THE INSURANCE SCHEME AND, SECONDLY, THAT THE QUESTION WHETHER HE HAD RECEIVED SOMETHING ELSE WHICH HE WOULD NOT HAVE RECEIVED IF THERE HAD BEEN NO ACCIDENT DID NOT ARISE. AS OLIVER LJ SAID IN AUTY V NATIONAL COAL BOARD [1985] 1 WLR 784, 807H, THE CONCLUSION WHICH IS TO BE DRAWN FROM THIS PASSAGE IN LORD REID'S SPEECH IS THAT, TO THE EXTENT OF THE ILL-HEALTH PENSION PAYABLE AFTER RETIREMENT AGE, THE PLAINTIFF HAD SUFFERED NO LOSS.

LORD PEARCE SAID AT P 33C-D:

LORD WILBERFORCE ALSO SAID AT P 42F-G THAT HE SAW NO INCONSISTENCY IN TREATING THESE TWO PERIODS DIFFERENTLY. HE SAID THAT THEY GAVE RISE TO TWO QUITE DIFFERENT EQUATIONS, AND THAT THE DIFFICULT LEGAL QUESTIONS WHICH RELATED TO THE EARLIER PERIOD DID NOT ARISE IN RELATION TO THE LATTER, WHERE ALL THAT WAS NEEDED WAS AN ARITHMETICAL CALCULATION OF PENSION LOSS.

LORDSHIPS WERE NOT REFERRED TO ANY SCOTTISH CASE PRIOR TO THE 1982 ACT IN WHICH CONSIDERATION HAD BEEN GIVEN TO THE QUESTION CREDIT HAD TO BE GIVEN, IN THE ASSESSMENT OF A PURSUER'S CLAIM FOR THE LOSS OF A RETIREMENT PENSION, FOR AN ILL-HEALTH OR DISABILITY PENSION TO WHICH THE PURSUER BECAME ENTITLED UNDER THE SAME SCHEME AS A RESULT OF THE ACCIDENT. BUT I DO NOT THINK THAT IT CAN BE DOUBTED THAT THE SAME RESULT WOULD HAVE BEEN REACHED AS THAT WHICH WAS ACHIEVED BY AGREEMENT IN PARRY V CLEAVER. THE OBSERVATIONS OF THEIR LORDSHIPS ON THAT PART OF THE PLAINTIFF'S CLAIM WERE, OF COURSE, OBITER. BUT THEY WOULD HAVE BEEN TREATED WITH GREAT RESPECT IN SCOTLAND, AS THE PRINCIPLES UPON WHICH THEY WERE BASED ARE ENTIRELY CONSISTENT WITH THE PRINCIPLE OF SCOTS LAW THAT DAMAGES ARE INTENDED TO BE COMPENSATORY. IN WILSON V NATIONAL COAL BOARD 1981 SC (HL) 9 THE SPEECHES IN PARRY V CLEAVER WERE REFERRED TO AS USEFUL GUIDES TO THE POSITION IN SCOTLAND: PER THE LORD PRESIDENT (EMSLIE) AT PP 14-15, LORD KEITH OF KINKEL AT P 21. THE POINT COULD HAVE BEEN MADE WITH EQUAL FORCE IN SCOTLAND THAT IN ESSENCE THE CLAIM WAS ONE FOR DIMINUTION OF PENSION AS BOTH THE RETIREMENT PENSION AND THE ILL-HEALTH PENSION WERE PRODUCTS OF THE SAME SCHEME, THAT THE CALCULATION TO ESTABLISH THE AMOUNT OF THE LOSS REQUIRED LIKE TO BE COMPARED WITH LIKE AND THAT IT WAS IN THE END SIMPLY A MATTER OF ARITHMETIC.

LORD COULSFIELD SAID AT P 417F-G OF HIS OPINION IN THE PRESENT CASE, THERE IS NOT A TRACE IN THE COMMISSION'S REPORT OF ANY REASONING WHICH MIGHT SUPPORT A DEPARTURE FROM LORD REID'S ARGUMENT IN PARRY V CLEAVER [1970] AC 1 THAT A COMPARISON OF AN ILL-HEALTH PENSION WITH A POST-RETIREMENT PENSION IS A COMPARISON OF LIKE WITH LIKE AND THEREFORE NO DEDUCTION CAN PROPERLY BE MADE IN ASSESSING POST-RETIREMENT LOSS. NOR IS THERE ANY ARGUMENT WHICH WOULD JUSTIFY A SITUATION IN WHICH A PURSUER COULD RECEIVE HIS ILL-HEALTH PENSION, POST-RETIREMENT IN FULL AND ALSO COMPENSATION FOR WHAT COULD ONLY BE REGARDED AS A NOTIONAL POST-RETIREMENT LOSS. ON THE CONTRARY, I WOULD ADD, THE REPORT CONTAINS CLEAR STATEMENTS IN THE PASSAGES IN PARAGRAPHS 5 AND 47 TO WHICH I HAVE ALREADY REFERRED THAT THE COMMISSION'S RECOMMENDATIONS PROCEED UPON A RECOGNITION OF THE GENERAL PRINCIPLE OF SCOTS LAW OF REPARATION THAT DAMAGES ARE INTENDED TO BE COMPENSATORY. IT IS CLEAR THAT THE COMMISSION DID NOT INTEND TO DEPART FROM THE PRINCIPLE THAT THE INJURED PARTY SHOULD NOT BE PLACED IN A BETTER POSITION FINANCIALLY THAN HE WAS BEFORE THE ACCIDENT.

LORD CLYDE ASSESSED THE AMOUNT TO BE PAID UNDER THIS HEAD OF CLAIM BY APPLYING A MULTIPLIER TO A MULTIPLICAND BASED ON THE CURRENT LEVEL OF THE PURSUER'S WAGE. AT P 291B HE SAID THAT ONE OF THE FACTORS WHICH HE TOOK INTO ACCOUNT WAS THE POSSIBILITY OF ANOTHER PENSION BEING FORTHCOMING. HE REFERRED IN THE COURSE OF HIS DISCUSSION OF THIS HEAD OF CLAIM TO THE TREATMENT OF CLAIMS FOR LOSS PENSION RIGHTS IN PARRY V CLEAVER [1970] AC 1 AND AUTY V NATIONAL COAL BOARD [1985 ] 1 WLR 784. THERE IS NO SUGGESTION IN HIS OPINION THAT THE TREATMENT OF CLAIMS OF THIS KIND IN ENGLAND WAS NOT A RELIABLE GUIDE TO HOW THEY SHOULD BE TREATED IN SCOTLAND. IN DAVIDSON V UPPER CLYDE SHIPBUILDERS, 1990 SLT 329, 334L, LORD MILLIGAN AGREED WITH COUNSEL FOR THE PURSUER'S ACCEPTANCE THAT THE PURSUER COULD MAKE NO CLAIM FOR LOSS OF PENSION RIGHTS FOR THE PERIOD AFTER WHICH SHE WOULD HAVE BECOME ENTITLED TO A WIDOW'S PENSION IN HER OWN RIGHT AFTER HER HUSBAND'S DEATH. HE SAID THAT THIS WAS CONSISTENT WITH THE DECISION IN AUTY'S CASE AND WITH THE REASONING IN LORD REID'S SPEECH IN PARRY'S CASE.

LORD ORDINARY, LORD MACFADYEN, WAS REFERRED TO LORD MILLIGAN'S OPINION IN THE PRESENT CASE BUT NOT TO THE DECISION OF THE FIRST DIVISION. THE PRESENT CASE WAS STILL AT AVIZANDUM WHEN THE CASE BEFORE HIM WAS BEING ARGUED. THE FIRST DIVISION DID NOT HAVE THE ADVANTAGE OF SEEING LORD MACFAYEN'S OPINION AS IT WAS NOT DELIVERED UNTIL AFTER THEIR DECISION IN THE PRESENT CASE HAD BEEN ISSUED.

LORD MACFADYEN SAID:

LORD MILLIGAN] IN CANTWELL AT P 11. THE ISSUE WHICH REQUIRES TO BE ADDRESSED IN THE PRESENT CASE IS THE EXTENT TO WHICH PENSION BENEFITS ACTUALLY RECEIVED OR TO BE RECEIVED OUGHT TO BE BROUGHT INTO ACCOUNT SO AS TO DIMINISH PENSION LOSS SUFFERED OR TO BE SUFFERED. IN MY OPINION THE PROPER APPROACH IS TO EXAMINE THE LOSS CLAIMED PERIOD BY PERIOD. IN RESPECT OF THE PERIOD UP TO NORMAL RETIREMENT AGE THE PURSUER MAY BE ABLE TO POINT TO A LOSS OF EARNINGS (ALTHOUGH THE PURSUER IN THE PRESENT CASE HAPPENS NOT TO HAVE ESTABLISHED SUCH A LOSS). IF HE DOES SO, ANY PENSION BENEFITS WHICH HE IS ENTITLED TO RECEIVE IN THAT PERIOD CANNOT BE BROUGHT INTO ACCOUNT SO AS TO DIMINISH THE LOSS OF EARNINGS. THAT IS THE EFFECT OF SECTION 10(A) (IN SCOTLAND) AND PARRY V CLEAVER (IN ENGLAND). ATTENTION CAN THEN BE TURNED TO THE PERIOD AFTER THE NORMAL RETIREMENT DATE. IN RESPECT OF THAT PERIOD THE LOSS IS OF PENSION BENEFIT. A LOSS OF PENSION BENEFIT CAN ONLY BE CALCULATED BY COMPARING THE PENSION BENEFIT TO WHICH THE PURSUER WOULD HAVE BEEN ENTITLED IF THE ACCIDENT HAD NOT HAPPENED WITH THE PENSION BENEFIT HE WILL ACTUALLY RECEIVE IN THE EVENTS WHICH HAVE HAPPENED. IT THEREFORE SEEMS TO ME TO BE INEVITABLE THAT THE ACTUAL PENSION RECEIVED DURING THAT PERIOD SHOULD BE BROUGHT INTO ACCOUNT IN THE COMPUTATION OF THE LOSS."

LORDSHIPS TO ENDORSE THE VIEW OF THE MINORITY. FOR COMPLETENESS HOWEVER I SHOULD ADD THAT I AGREE WITH THE JUDGES OF THE FIRST DIVISION THAT THE MAJORITY VIEW WAS THE CORRECT ONE. THE FIRST SENTENCE OF PARAGRAPH 20 SAYS THAT COMPENSATION WILL BE "REDUCED" TO TAKE ACCOUNT OF ANY PENSION ACCRUING AS A RESULT OF THE INJURY. ALTHOUGH IT DOES NOT SAY SO IN TERMS, IT SEEMS TO ME THAT THIS SENTENCE MUST BE DIRECTED TO THE PERIOD PRIOR TO THE RETIREMENT DATE WHEN THE CLAIM IS FOR LOSS OF EARNINGS. IT ASSUMES THAT THE NECESSARY ARITHMETIC HAS BEEN DONE TO CALCULATE THE AMOUNT OF THAT LOSS. IT THEN REQUIRES A REDUCTION TO BE MADE FROM THAT AMOUNT, WHICH IS LIMITED TO ONE-HALF OF THE PENSION WHERE IT IS TAXABLE. BUT AFTER THE RETIREMENT DATE THE CLAIM IS FOR LOSS OF PENSION. THE AMOUNT OF THE COMPENSATION FOR THE PENSION LOSS CANNOT BE CALCULATED WITHOUT BRINGING FULLY INTO ACCOUNT THE WHOLE OF ANY PENSION ACCRUING AS A RESULT OF THE INJURY. THAT CALCULATION MUST BE COMPLETED BEFORE ANY QUESTION CAN ARISE ABOUT REDUCING THE COMPENSATION. IN THE ABSENCE OF CLEAR LANGUAGE TO THE CONTRARY, PARAGRAPH 20 MUST BE READ AS HAVING NO APPLICATION TO THE QUESTION HOW A CLAIM FOR LOSS OF PENSION AFTER THE RETIREMENT DATE IS TO BE CALCULATED.

LORD ORDINARY WAS RIGHT TO REFUSE THE RESPONDENT'S APPLICATION FOR JUDICIAL REVIEW. I WOULD ALLOW THE APPEAL, RECALL THE INTERLOCUTOR OF THE FIRST DIVISION AND RESTORE THE INTERLOCUTOR OF THE LORD ORDINARY.

LORD HOBHOUSE OF WOODBOROUGH

LORDS,

JUSTICE ACT 1982, AS AMENDED. THIS PROVIDES AMONG OTHER THINGS THAT "IN ASSESSING THE DAMAGES PAYABLE TO THE INJURED PERSON IN RESPECT OF PERSONAL INJURIES THERE SHALL NOT BE TAKEN INTO ACCOUNT SO AS TO REDUCE THAT AMOUNT .... ANY CONTRACTUAL PENSION OR BENEFIT ....". AT THE TIME HE RECEIVED HIS INJURY, MR CANTWELL WAS A SERVING POLICE OFFICER COVERED BY THE STATUTORY POLICE PENSIONS SCHEME. IT IS AGREED THAT THIS SCHEME IS TO BE TREATED AS A "CONTRACTUAL" PENSION SCHEME EVEN THOUGH IT WAS THE CREATURE OF SECTION 1 OF THE POLICE PENSIONS ACT 1976 AND THE POLICE PENSION REGULATIONS MADE THEREUNDER. THE TERMS OF THE SCHEME ARE TO BE FOUND IN THE REGULATIONS AND IN PARTICULAR SCHEDULE B TO THE 1987 REGULATIONS (SI. 1987 NO.257) AS AMENDED. IT IS ESSENTIALLY A CONTRIBUTORY SCHEME WITH THE BENEFITS CALCULATED BY REFERENCE TO PERIODS OF SERVICE AND AVERAGE EARNINGS. FOLLOWING THE DRAFTING OF S.1 OF THE ACT AND PART B OF THE 1987 REGULATIONS, THE SCHEDULE DEALS WITH THE VARIOUS PERSONAL AWARDS WHICH MAY BE MADE UNDER THE SCHEME. THESE INCLUDE THE "POLICEMAN'S ORDINARY PENSION" PAYABLE TO A POLICEMAN WHO RETIRES AFTER AT LEAST 25 YEARS PENSIONABLE SERVICE (ARTICLE B1 AND PART I OF THE SCHEDULE) AND THE "POLICEMAN'S ILL-HEALTH PENSION" PAYABLE TO A POLICEMAN WHO RETIRES EARLY ON THE GROUNDS OF ILL-HEALTH (ARTICLE B3 AND PART III OF THE SCHEDULE ).

LORD ORDINARY UPHELD THE APPEAL BOARD BUT THE INNER HOUSE DISAGREED AND HELD THAT THE CLAIM SHOULD HAVE BEEN ALLOWED: [2000] SC 407.

LORD REID IN PARRY V CLEAVER [1970] AC 1 AT P.13:

LORD REID IS THUS POSING TWO QUESTIONS OF FACT AND A THIRD QUESTION OF LAW. MR CANTWELL WOULD ANSWER THEM (ON THE FIGURES WE ARE USING): £15,200; £13,500; NO. THE APPELLANTS WOULD ANSWER THE FIRST QUESTION £1,700 AND THE REMAINING QUESTIONS DO NOT ARISE; S. 10 DOES NOT APPLY BECAUSE THERE IS NO SUM WHICH IS BEING TAKEN INTO ACCOUNT IN REDUCTION OF THE AMOUNT OF MR CANTWELL'S LOSS.

LORD REID'S DICTUM AT [1970] AC PP.20-1 STRESSING THE NEED TO COMPARE LIKE WITH LIKE, FOLLOWED AND APPLIED BY OLIVER LJ IN AUTY V NCB [1985] 1 WLR 784 AT P.807.)

LORD HOPE OF CRAIGHEAD, I AGREE THAT THE APPEAL SHOULD BE ALLOWED AS HE HAS PROPOSED.

LORD SCOTT OF FOSCOTE

LORDS,

LORD BINGHAM OF CORNHILL, LORD HOPE OF CRAIGHEAD AND LORD HOBHOUSE OF WOODBOROUGH. FOR THE REASONS THEY HAVE GIVEN I, TOO, WOULD ALLOW THE APPEAL AND MAKE THE ORDER PROPOSED.