Jaw. 28, 1966 THE WEEKLY LAW REPORTS [1966] 1 WLR. differences, but nevertheless I do find guidance in the judgment of Black LJ. in Greer’s case ' as to the correct manner of approaching not merely the Royal Warrant but also the civilian scheme. I adopt as applicable to the present scheme the words of Black LJ.*: “The question whether the evidence raising this doubt was reliable was of course really a matter for the tribunal to decide.” ‘The decision as to what conclusion they should come to upon this material was a matter for the tribunal. All T desire to say here is that there was material placed before the tribunal in the present case and that I cannot see any grounds for saying that the tribunal were not entitled to regard that as being reliable evidence. I cannot say, further, that there was no ground ‘upon which the tribunal could properly say that the evidence as a whole did not create in their minds a reasonable doubt as to ‘whether disablement was caused by the relevant qualifying injuries. In short, think the tribunal was right in law in saying that in cases such as the present there is no onus of proof on the Ministry at all. ‘That being the sole point of law upon which Mr. Ripman founds this application for leave to appeal against the tribunal's decision, it follows that in my judgment the application must be refused, Application refused. Solicitors: Arthur Howson, Whitstable; Solicitor, Ministry of Pensions and National Insurance. + [1958] 2 WPA. 957. * Thid. 968, [neprorn assizes} * CONDOR v. THE BARRON KNIGHTS LTD. [No. 1965 C. No. 33] Contract—Frustration—Personal services—Physical_ firness—Contract 10 perform as drummer—Basis of contract availability to perform seven nights a week if required—Ability to perform on four nights 4@ week only—Possibility of breakdown in health if performances ‘on seven nights a week continued —Whether drummer wrongfully dismissed, Master and Servant — Wrongful dismissal —Ill-health of servant — Drummer employed by band—Whether contract frustrated— Whether drummer wrongfully dismissed. On December 8, 1962, the plaintif, then aged 16, entered into an agreement with the defendants whereby they agreed 10 ‘employ him and he to serve them as a drummer in their band, and to devote the whole of his time and attention to their business [Reported by F. GRAHAM GLover, ES@., Barrister-at-Law]) 87 1965 Cudney Miniier of Eomunn Daves 1965 oni Towson88 1965 Condor Baron Reales ti °) (1966) 1 WLR, THE WEEKLY LAW REPORTS Jan. 28, 1966 for a term of five years, subject to the engagement being terminated by either party giving six months’ notice in writing ‘The contract provided that the plaintiff might be summarily dis- ‘missed without notice in the event of his committing any breach ff his obligations thereunder. The basis of the agreement, as the plaintif knew, was that he should be available to perform fon seven nights a’ week and sometimes more than once a night, if the group had engagements. The work in fact involved appear ing on seven nights a week, sometimes twice nightly, and the plaintiff had to live away from home, and travel from place 10 place. The group was not merely a musical band but gave acting performances, the drummer being a key figure in the timing. In January, 1963, the plaintiff collapsed and was admitted to a ‘mental hospital, where he was detained for a few days. The doctor attending him informed the defendants that continuance fof such conditions of work would render the plaintiff liable to a more serious breakdown than that which had occurred and that he should not perform on more than four nights a week. The defendants considered that owing to the difficulty of obtaining substitutes for the plaintiff with sufficient reputation, and to the rehearsing difficulties with their synchronised act, it would not be possible to employ the plaintiff for four nights a week only, and they dismissed him, In an action by the plaintiff, who considered that he was fit to perform oni seven nights a week, for damages for wrongful dismissal: — ‘Held, that fitness o perform such a contract required the ability ‘not only to carry out the work in accordance with its terms but with the continuity contemplated by the contract; and that, since there was a likelihood that the plaintiff would suffer damage to his health or another breakdown within a short time if he continued to work for the defendants for seven nights a week, it was in a business sense impossible for him to continue to perform or for the defendants to have him perform the terms of the contract, and there was no wrongful dismissal. Acrion. The plaintiff, Edward Lottian Condor, an infant, who was born fon March 29, 1946, was a talented drummer. In 1962, when he wwas aged 16, he began to work for the defendants, Barron Knights Ltd., a company controlling the Barron Knights group of per- formers. Subsequently, on December 8, 1962, he entered into a written contract with the defendants whereby, by clause 1, they agreed to employ him and he agreed to serve them for a term of five years as a drummer in the trade or business of variety artistes at Leighton Buzzard or such other place as the defendants might from time to time direct and to devote the whole of his time and attention to serving them during that term, at the same weekly ‘wage as was paid to the other members of the group, which, in fact, was £10 a week, varied for a petiod when the group was not doing well to £7 10s. a week. The contract provided that the plaintiff was also to comply with all special requirements of the defendants in relation to their trade or business and to obey readily all special ‘orders and instructions of the defendants. Clause 6 provided that afer the expiration of the first six months, the employment should bbe determinable by either side on six months’ written notice, andJon. 28, 1966 THE WEEKLY LAW REPORTS [1966] 1 W.LR, by clause 7, in the event of the plaintft committing any breach of his obligations thereunder or miscohducting himself, the principal might summarily dismiss him without notice. ‘The engagement as’a drummer to the Barron Knights necessi- tated the plaintiff leaving his home at Darlington, where he lived ‘with his mother, and going to Leighton Buzzard, the headquarters of the group. The group was engaged in“ one-night stands,” perform- ing in one place one night, travelling later in a bus to the next place where they were to perform, with one member of the group taking his turn at driving and the others taking the chance to sleep when they could, and performing the following night, and, in the mean- time, getting in as much rehearsal as they could. The plaintift was required to be more than a mere instrumentalist, for the group was not merely a band but did comic performances and acting,-and the drummer was a key figure in the timing of the various acting performances. By December 8, 1962, when the contract of employ- ‘ment was entered into, the members of the group and the defend ants knew what the plaintiff was capable of and how good he was and the plaintiff knew what the life with the group was like. During the severe weather of December, 1962, to January, 1963, the plaintiff lived on his own in a caravan. He was not having proper food and had been working in that strenuous way when, on January 16, 1963, when the group was performing at a ballroom in Hitchin, although not in the actual course of a performance, he collapsed and was taken by a member of the group to a local hospital. From there he was taken to the Three Counties or Fairfield General Hospital, a mental hospital, where he was detained for three days. While he was in that hospital the manager of the group, Tony Avern, went to sce him, and before seeing him was told by the doctor treating him, in effect, that it was inbuman that a young lad of 16, living away from his home, should have been empioyed on the basis of seven nights a week in that ‘way, with sometimes a double engagement in a night, and that he needed a rest and, after that, when he returned to work, he should not be employed for more than three to four nights a week; other- wise he would be liable to have another, and worse, breakdown. In his records the doctor entered that the plaintiff might well develop schizophrenic symptoms if under strain again ‘The group was a co-operative group in that the decisions were taken by each member expressing at a mecting, either formally or informally held, his views as to what course they should take. After Tony Avern had seen the doctor and the plaintiff, the group met to discuss the plaintiff's case. Tony Avern informed them of ‘what the doctor had said and the terms on which the plaintiff could sensibly and fairly be re-employed; being satisfied that he was a first-class drummer, the group regarded it as something of a calamity, but the issue before them was whether they were prepared to accept that he was fit to be employed on the basis of seven days a week, as the plaintiff had expressly or impliedly professed, or 8990 (1966) 1 W.LR. THE WEEKLY LAW REPORTS Jan. 28, 1966 1965 for three or four nights a week, with deputies filling in for him the “Gondor engagements on the other nights. The group concluded that the aiion latter course would not be possible. AE's, When the plaintif left hospital he went with his mother to 9 married daughter of hers at Nottingham and did not return to Leighton Buzzard for about 10 days. After he had returned, he considered that he was fit fo continue his work as before, but on February 1, 1963, his engagement was orally terminated by Tony Avern ‘The plaintiff, suing through his mother and next friend, Mrs. Lillian Condor, claimed damages for breach of the contract of employment. The defendants denied breach of contract, contend- ing that on account of the fact that the plaintiff was unable to perform his obligations under clause 1 of the contract they had summarily dismissed him {rom his employment and that pursuant to clause 7 his inability to perform his part of the contract constituted a breach of his obligations under it and frustrated the object of his engagement. Tan Rich for the plaintiff. JF. Kingham for the defendants The following case was cited in argument: Storey v. Fulham Steel Works Co." ‘Tuompson J. stated the facts and continued: The issue before the group meeting was whether the group was prepared, in the light fof what the doctor had said, to consider and accept that the plaintiff was fit to be employed on a basis of availability to perform seven days a week, as he expressly or impliedly was professing, or whether the group, as a group doing the kind of work they did, could survive as a group having the plaintiff as a drummer for three oor four nights a week and filling in other engagements extending. beyond the three or four nights by one or more deputies standing in for him. They came to the conclusion so far as the second suggestion was concerned that the group on that basis was not viable at all. First, there was the difficulty of having someone on tap on the nights when the plaintiff would not be working for them and there would be the problem of getting engagements with not ‘one drummer with a built-up reputation to offer but one or other of ‘two or more drummers. There would be in their rehearsing the eased difficulty that there would be in their performance of their synchronised act the problem of someone who was imported as a substitute getting to know how they di ‘when he came in or when he instructed them to come in with such business as they did. ‘The group did not, and I think reasonably did not, regard that variation of the contractual position as being reasonable or sensible, + (1907) 26 TLR. 89, CA,JaN. 28, 1966 THE WEEKLY LAW REPORTS [1966] 1 W.L.R. ‘That it would have been a variation is not denied or controverted by Mr. Rich, who accepts that the engagement of the plaintiff, both by the express words of the agreement and by the clear basis on which he and the defendants knew that the group was working, was an availability by the plaintiff to perform on seven nights a week if there were engagements on seven nights a week and more than once con such of them as they were offered and were able to accept double engagements. Therefore, in my judgment, it was quite a reasonable and proper conclusion for the group to take that it was, not from their poit of view a business proposition to employ the plaintiff on the only basis on which the doctor had said he might reasonably and safely be employed That brings one accordingly to the question whether at that date the plaintiff was capable of and available to work as the con- tract contemplated, that is to say, not merely to play drums, but to play drums on seven nights a week, if need be travelling from one one-night stand to another. The plaintiff thought he was and the plaintiff said that ata later date in the year he did, but I am satisfied that at the time when the defendants had to consider the situation, not merely was it a reasonable view for them o take that he was not then fit, but that he was not in fact fit, that is to say, fit to work, as the contract contemplated, seven days a week. In my judgment for this purpose fitness involves not merely being able to do the work, though with the virtual certainty that at the end of a week or avery short period such as a month there will be a breakdown of 1a worse kind, but it does involve the ability to do it without the likelihood of such damage to health and so as, within the contract. to continue with the continuity which the contract contemplated. T am satisfied that at the date when Tony Avern saw him, which ‘was February 1, and said what I accept Tony Avern said, because I do not accept what the plaintiff told me he had said (namely, that the plaintiff had become too expensive), in my judgment on February 1, 1963, the situation was that the plaintiff was not fit to perform his part of the contract and at that date there was no reasonable likelihood that he would in the near future become so able. ‘Accordingly in my judgment. by reason of the impact upon his health and well-being of this life, far too strenuous and exhausting for a boy of 16, talented though he was and ambitious though he ‘was, the impact was such in my judgment that that had in a busi- ness sense made it impossible for him to continue to perform or for the defendants have him perform the terms of the contract as a ‘member of their group. It follows that in my judgment there was no wrongful dismissal in this case and the defence so far as that is concerned prevails, [Hlis Lordship then referred to a further claim by the plaintiff 1165 Condor tid: they cea, 165, Nowe Tom, Panta C., "ASH Won ‘snd woe J. (1966) 1 W.LR. THE WEEKLY LAW REPORTS Jax. 28, 1966 for £85 in respect of drums, which was admitted, and gave judg- ‘ment for the plaintiff for that amount only.] Judgment accordingly. Austin & Carnley, Solicitors: E. T. Ray & Co., Bedjord; Leighton Buzzard [COURT OF CRIMINAL APPEAL] *REGINA v. LYNCH Commonwealth Immigrant—Deportation order—Appeal jrom—Order ‘made by quarter sessions on committal for sentence—Right of appeal only where a right of appeal against sentence—Common- wealth Immigrants Act, 1962 (10 & 11 Eliz, 2, c. 21), s. 8 (4)2 Crime—Court of Criminal Appeal—Iurisdiction—Deportation order— ‘Order made by quarter sessions on committal for sentence—Right (of appeal from quarter sessions only where right of appeal against * sentence "Commonwealth Immigrants Act, 1962, s.8 (4). ‘The applicant, an Irishman, pleaded guilty at a magistrates’ ‘court to charges of attempted larceny, larceny and being in possession of an offensive weapon and was committed to quarter sessions for sentence. Quarter sessions imposed concurrent sen- {ences of three months’ imprisonment and made a recommendation for deportation. On application for leave to appeal against that recommenda- Held, that a recommendation for deportation being, by section 8 (4) of the Commonwealth Immigrants Act, 1962, a “sentence,” When there had been a committal to quarter sessions for sentence, there was a right of appeal to the Court of Criminal Appeal only. in cases where the committal was made under section 28 or section 29 of the Magistrates’ Courts Act, 1952, and, this not being such a case, the application was misconecived. Application for leave to appeal against sentence. ‘The applicant, Joseph Francis Lynch, whose home was in Ireland, pleaded guilty at West London Magistrates’ Court on September 16, 1965, to attempted larceny, two charges of larceny, and to having an offensive weapon in a public place. He was ‘committed to Inner London Sessions for sentence and was sentenced by the chairman to concurrent terms of three months" imprisonment {Reported by Cuantes Lewis, Eso, Barrister-at-Law) 3 Commonwealth Immigrants Act, and the validity of such a recom- 190, 2 Be ‘mendation’ shall ‘not be ealled. in obany {question except on an appeal against in oni the recommendation or against. the for deportation shall be treated as conviction upon which it fe made." an order made on conviction