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Brazier v Wolverhampton City Council, Court of Appeal

8 February 2008
The issues

Loss of sick pay entitlement – causation – loss of “future sick pay”.

The facts

The Claimant, 46 at the time of the accident, had worked for the Council since 1986. After the accident, which occurred when she aggravated a pre-existing degenerative condition in her lumbar spine whilst helping to move a resident at a care home, at which she worked as a carer, she was off work for 3 months. She returned to a temporary sedentary job as a seamstress, ending in April 2004, and after that was off work until January 2005 when she was retired due to ill health. Between the date of her accident and her retirement, the Claimant had been paid a total of £19,452.00 by way of sick pay, to which she was entitled under her contract of employment. In the claim she gave credit for this amount against her claim for loss of earnings as a carer. On the 22nd November 2004, after she had received notice of ill health retirement, she had a road traffic accident, further aggravating her pre-existing back condition.

his gave rise to another claim for personal injuries against the driver, which claim had not yet been concluded at the time of the appeal. The agreed medical evidence was to the effect that, but for the accident, the Claimant would have been able to continue working as a carer for 4 or 5 years; that the first accident had made her incapable of working as a carer and had resulted in her retirement, but that she would have had a residual capacity for work but which did not involve excessive bending and lifting; and that the second accident had much the same effect but had caused the loss of the Claimant’s residual earning capacity. On this evidence the Judge accepted the Council’s submission that, but for the second accident, the Claimant, acting reasonably to mitigate her loss, would have been able to obtain alternative employment of a sort appropriate to her reduced physical abilities in February 2005, from which she would have earned no less than she would have earned working for the Council as a carer.

The Judge rejected her claim for loss of earnings from February 2005 to July 2007, i.e. to the end of the period of 4 ½ years after the accident. The loss for this period had therefore been caused by the second accident alone. The Claimant, having given credit for the £19,452.00 advanced claimed it back on the basis that, if the accident had not occurred the Claimant would have received sick pay and pay from the temporary sedentary post in any event, but at a date approximately 4 ½ years later. Since credit had been given for sick pay from the sedentary post received immediately following the accident, this later non-receipt of sick pay / wages from the sedentary post was a loss stemming directly from the accident. The Judge made an award expressed as “loss of future sick pay”.

The Defendant appealed.

The decision

On the morning of the Appeal the Claimant’s Counsel conceded that the ground on which the Appeal had been resisted was misconceived. The Claimant’s Counsel had accepted the Defendant’s argument that looking to July 2007 when, but for the accidents, the Claimant would have had to stop working as a carer, the question that had to be posed was had she suffered a loss as a result of the first accident, to which the answer was ‘no’. She had not suffered a loss because the Judge had found that she would be working and earning as much as she would have been earning as a carer.

The Claimant’s Counsel embarked upon a salvage operation submitting that the Claimant should be allowed to recover a year’s sick pay because she had lost her contractual entitlement to this benefit as a result of the first accident. But for that accident, from the time of the second accident on the 22nd November 2004, she would have been entitled to a year’s sick pay. This was not a claim for loss of earnings. The entitlement was lost because the first accident had exhausted it.

This argument was rejected. A claim for damages was about money. What money had the Claimant lost as a result of the first accident? The answer was that, between 21st November 2004 and the end of February 2005, she had lost no money because she had been compensated for what she would have earned as a carer, less what she actually received by way of sick pay, which she was bound to get credit for. For the remainder of the year argued for she had lost nothing as a result of the first accident because the Judge had found that she would have been earning as much as a carer during that period.

Appeal allowed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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