Belize Airways Ltd v Tatum

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: Inniss, J.A.
• Judgment Date: 01 November 1979
• Neutral Citation: BZ 1979 CA 19
• Docket Number: Civil Appeal No. 4 of 1978
• Date: 01 November 1979

Court of Appeal

Blair-Kerr, P.; Duffus, J.A.; Inniss, J.A.

Civil Appeal No. 4 of 1978

Belize Airways Limited

and

Tatum

Practice and Procedure - Appeal

Facts: Issue of damages for repudiation of contract not raised or canvassed at trial — Point not expressed in Note of Appeal — Whether Court of Appeal competent to entertain argument on point

Held: The issue of whether the award of damages made is amenable to income tax is not an issue which can be decided simply as a point of law. Evidence would be needed and there was none adduced at the hearing. In the absence of such evidence, the court is not in a position to give due consideration to the point.

Inniss, J.A.

1 The subject of this appeal is the quantum of damages awarded to the plaintiff against the defendant company in the court below for repudiation by the company of its contract with her. The appellant; which was defendant in the court below, contends in effect that the damages awarded by the Chief Justice namely U.S. $4,000.00, were too high, submitting that he was wrong in holding that the Plaintiff—

• (1) was assured of a job as a flight attendant on completion of the training and probationary periods, and

• (2) was entitled in damages to the remuneration, she would have received during the training and probationary periods and to two months salary as a permanent flight attendant.

2 In a cross appeal, the respondent, who was plaintiff in the court below, complains in effect that the damages awarded were too low: that the Chief Justice was wrong in law in holding that the case of Edwards v. Society of Graphical and Allied Trades (1970) 1 W.L.R. 379 was inapplicable, and should have awarded substantial damages for “the fact that, on the evidence, there seemed no likelihood of the respondent obtaining, in the foreseeable future, employment of an acceptable nature, having regard to her standing, her experience and her personal history”.

3 The facts areas stated in the Judgment of Blair-Kerr P., which I have had the privilege of perusing.

4 With regard to the cross appeal, I entirely agree with the view of the Chief Justice that the case of Edwards v. Society of Graphical and Allied Trades, which, incidentally, went on appeal (see (1970) 3 All E.R. 689) is not “on all four” with the instant case. In the Edwards case the action was brought against a union which controlled the employment of persons with printing skills at all the four main printing firms in the Manchester area. The plaintiff's case was that, in breach of their contract under the rules, the union had wrongfully asserted that the plaintiff had ceased to be a member of the union and that, as a direct consequence of that breach of contract, the plaintiff had lost his Grade I employment with Hugh Stevensons (one of the main printing firms) and had ever since been unable ‘to obtain comparable employment. In other words, as l understand the case, the plaintiff's allegation was that the union, by wrongfully and in breach of contract expelling him from membership of it, had not only caused him to lose his employment with Stevenson but had prevented him from obtaining other comparable employment. There was evidence, inter alia, that there was a scarcity of jobs for persons skilled in the printing trade, and the union itself found great difficulty, for lack of vacancies, in placing its own tradesmen when out of work. In the “non-union shops” vacancies were also in short supply, but even if obtainable, were not as well paid, and not as secure, as jobs which were held by members of the union.

5 In the instant case, the evidence certainly did not show what the breach of contract by the defendant company had cause the plaintiff to lose her job with Shell Belize Limited. It clearly appeared that she had left that job of her own accord in order to take up employment with Belize Airways Limited under the contract with them. The breach of that contract by Belize Airways Limited occurred subsequently. Nor did the evidence indicate that it was the breach of the contract, by the defendant company which had prevented the plaintiff from obtaining any other employment. Indeed, in my view, it did not even go the length of showing that she could not obtain other employment in Belize City comparable to that which she had held at Shell Belize Limited; for it left open the possibility of her obtaining such a job at one of the leading commercial houses or a bank.

6 In my opinion, the Edwards case does not assist with the assessment of damages in the instant case, and I would dismiss the cross appeal.

7 With regard to the appeal, in my opinion the Chief Justice did not err in his interpretation of the effect of the contract between the parties as set out in the letter dated December 20, 1977, from the defendant company to the plaintiff on examination of the terms of that letter I am of opinion that the contract was essentially one for employment of the plaintiff as a flight attendant, with the provisions relating to training and probation merely incidental. I think that that view is supported by the fact that the letter does not even mention the length of either the training or the probationary period. Indeed, “training” is only mentioned in paragraph 2 for the purpose of settling questions of accommodation, salary and transportation during the training period: and in paragraph 3 and 4, training and probation are only mentioned for the purpose of providing for the Plaintiff's residence, accommodation, transportation, salary and “other perquisites after the completion of her training and probationary period.

8 Incidentally, I also agree with the Chief Justice that in paragraph 3 of the letter (and I would add, paragraph 2) the intention appears to have been to regard the probationary period as included in the training. Otherwise, the letter does not fix any salary or perquisites for the probationary period.

9 Mr. Musa referred to McGregor on Damages (13 ^th Edn.) paragraph 886, and submitted that in a case such the instant one, the normal measure of damages depended on the time at which the employer could lawfully terminate the contract. He further submitted that the defendant company could lawfully have terminated the contract at any time during the training and probationary periods, or at latest at the end of the probationary period.

10 By that I understood him to mean that the company could have terminated the contract without just cause and that their act in doing so would have been lawful. If so, I am unable to accept his contention, I find nothing in the letter which confers on the company a power arbitrarily to dismiss the plaintiff during time training or the probationary period or at the end of the probationary period; and I agree with the opinion of the Chief...