England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM STAFFORD COUNTY COURT
(Mr Recorder Higham QC)

		Royal Courts of Justice Strand London WC2 Monday 25th June, 2001

1. LORD JUSTICE KEENE: This is a renewed application for permission to appeal against a decision of Mr Recorder Higham QC made on 20th February 2001 at Stafford County Court. The applicant seeks to appeal solely against that part of the decision by which the Recorder refused to make a Smith v Manchester award in favour of the applicant who was the claimant in these proceedings.
2. The applicant had, at the time of trial in February 2001, worked for the defendant company or its predecessors for about 20 years. He was a skilled fitter working in the bogie department of the defendant's premises at Crewe, which were concerned with the manufacturer, repair and servicing of railway equipment. While testing springs there, the applicant contracted dermatitis to his hands from coming into contact with liquid paraffin and other forms of oil and grease. The defendant company admitted negligence and breach of statutory duty causing his condition, with the result that the issues at trial were as to the quantum of damages, including whether a Smith v Manchester award should be made for his handicap in the labour market.
3. The Recorder referred (at page 7 of his judgment) to the words of Browne LJ in Moeliker v A Reyroller & Co Ltd [1976] ICR 253, at 262, where it was said:

"If the Court comes to the conclusion that there is no substantial or real risk of the plaintiff losing his present job in the rest of his working life, no damages will be recoverable under this head."

4. Consequently the Recorder posed the test which he had to apply as follows:

"The first question which arises is whether there is a real risk, as opposed to a speculative or fanciful risk, that the claimant may, before the end of his working life, lose his present job and be thrown onto the labour market."

5. He heard evidence from a number of witnesses and eventually he concluded that there was no real risk to the claimant of losing his job at the Crewe site.
6. That decision is now challenged by Miss Wedderspoon on behalf of the applicant.
7. In a succinct but attractive submission, she contends that the Recorder failed to apply the correct legal test. Reference is made to the judgment of Neill LJ in Robson v Liverpool City Council [1993] PIQR 78, where consideration was given to the statement by Lord Scarman in Moeliker that there had to be a substantial or real risk, as opposed to a fanciful risk, of the claimant losing his job in the future. Neill LJ indicated that "substantial" did not mean that the claimant has to show that, on the balance of probabilities, he is likely to lose his job. So the risk can be a slight, albeit a real, one.
8. In her skeleton argument Miss Wedderspoon drew attention to a passage in the Recorder's judgment in the present case, where he said:

"Before me, Miss Wedderspoon, who appeared on behalf of the claimant, submitted that as there was, as she put it, `no such thing as a job for life', the real risk to which Browne LJ had referred was satisfied in this case. I emphatically reject that submission.

It seems to me, from what Browne LJ was saying, and from a number of other cases in which the Smith v Manchester type award has been considered, many of them decided when employment conditions were much less favourable than they are today, that what is required in any particular case is that there should be evidence directly demonstrating that in that case there was a real risk, on a balance of probabilities, that the claimant might lose his present employment. That, in my judgment, is a matter that has to be determined by reference to the evidence in the particular case, and not by reference to generalised assumptions as to changing work patterns in present times."

9. I have to say that on that aspect of the matter I do not read the passage which I have quoted as saying that the claimant must show that he is likely, on the balance of probabilities, to lose his job, or that he will lose his job. All that the Recorder was saying was that the claimant must show that there is a real risk of him losing his job at some date in the future, that the onus for establishing that risk is on the claimant (as it is), and that the standard of proof is the usual civil one, i.e. he must establish the risk on the balance of probabilities. The Recorder by this stage in his judgment had already quoted Browne LJ verbatim from the Moeliker case, and he subsequently expressed his conclusion in clear terms, to the effect that there was no real risk of the claimant losing his present job at the Crewe site – see page 15E of the judgment. I am quite satisfied that what the Recorder was seeking to do in that passage was to emphasise the need for some evidence to show that there was a real risk, in contrast to asserting merely that these days there is no such thing as a job for life. He was right in his approach. Were that assertion correct, a Smith v Manchester award would be made automatically in every case where the claimant would suffer from a handicap in the labour market, were he at some time to lose his job and where he had more than a year or two to go before retirement. That is simply not the law.
10. I cannot see that it is arguable that the Recorder went wrong in the legal approach which he adopted.
11. The argument as set out in the skeleton argument is that no reasonable judge could have concluded that the applicant was not entitled to a Smith v Manchester award, on the facts of this case. This morning Miss Wedderspoon emphasises that the applicant was aged 36 at the date of trial, so that he had many years of working life ahead of him, some 29 years. She draws attention to the fact that on the evidence the respondent's business had diminished from one with 4,500 employees in 1986 to just 1,000 employees in 2001. There was also a possible takeover by another company. Consequently, it is said, one needs to look at the wider picture, and if one does that there was here a real risk of the applicant losing his job, even if it was a slight risk.
12. Of course I have to bear in mind that it is not for me to arrive at a fresh conclusion on the evidence which the Recorder heard. He heard a lot of evidence about the applicant's prospects of keeping his present job, and seems to have given the evidence careful consideration. Amongst the evidence was the following.
13. First, many people had been employed throughout their working lives at the Crewe plant, and the applicant liked to think, as he said, that he would do so too.
14. Secondly, although the workforce at the site had halved over the previous 11 years - and indeed had diminished even more than that if one goes back some 15 years – the last compulsory redundancies had been in 1993.
15. Thirdly, at the time of trial, high levels of overtime were being achieved and agency and temporary workers had been taken on. These two sources of labour would be the first to be reduced in any diminution of work. Then voluntary redundancies would next be sought.
16. Fourthly, if there was ever a need for compulsory redundancies, the evidence was that the company would operate a policy for identifying the sequence in which employees would be chosen for such redundancy. This policy involved a number of factors to each of which points were allocated. Overall the applicant scored well, and the judge concluded that he was very highly regarded and would score very highly. He was likely in fact to come out in the top 10% of the skilled fitters employed within the entire workforce at the site.
17. Those particular facts that I have just referred to under that fourth heading and the Recorder's finding in relation to them seem to me to be of very great importance when one looks to the longer term.
18. Fifth, while there was always the possibility of some reorganisation, especially if there was a company takeover, the Recorder noted that there was no evidence that any such reorganisation would be so severe as to affect a skilled fitter in the top 10% of the workforce.
19. Bearing all those matters in mind, it seems to me that there was adequate evidence for the conclusion which the Recorder reached. I cannot see that it is arguable that his conclusion was perverse or one which no reasonable judge could properly have arrived at on the evidence.
20. In those circumstances, there is no real prospect of successfully appealing against that judgment of the Recorder and it follows that this renewed application must be dismissed.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)