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 HIS HONOUR JUDGE TETLOW
(MANCHESTER COUNTY COURT)

		Royal Courts of Justice Strand London WC2 Tuesday, 3rd July 2001

1. LORD JUSTICE PILL: This is an appeal against decisions of His Honour Judge Tetlow given at the Manchester County Court on 20th October 1999 and 1st November 1999. The judge was hearing a claim for damages for personal injuries sustained by Mr Desmond Peter Wright. On the first of those dates, he refused the defendants, Wright & Beyer Limited, who are the claimant's employers, permission to rely on the medical evidence of its expert, Mr Doig. Following a hearing on the substance of the claim, the judge awarded damages to the claimant in the total sum of £70,157.60 (excluding interest). That comprised general damages for pain and suffering and loss of amenity of £14,000, future loss of earnings of £51,276 pounds, together with a Smith v Manchester award of £3,000, and a total sum of £1,881.60 for miscellaneous items which are not in dispute. The defendants appeal against that award. It will not be necessary to set out the facts in great detail because the legal points which arise do not depend upon a detailed scrutiny of medical or other evidence.
2. We deal with the appeal against the first order of the judge very briefly. In our judgment, the judge was entitled, in the circumstances and there having been a failure to comply with directions, to refuse permission to the defendants to call Mr Doig, their medical witness. The judge acted within the ambit of his discretion in making that decision.
3. At the time of trial the claimant was 53 years old and had been employed by the defendants since 1961, principally in their boilermaker shop. The defendants were in the ship repairing business. The claimant used over many years various tools, principally grinding tools, which caused vibrations. In the course of the employment, there were changes in the type of grinders used.
4. In the mid-1980s the claimant experienced blanching of the fingers, which by 1987 affected his sleep. It was only much later that he realised that the symptoms were attributable to his employment. He developed what is known as vibration white finger. The defendants admitted that they were liable to compensate at least for the injury caused since the time when they ought to have realised that there was such a condition and that steps should have been taken to avoid or reduce the risk of its developing, notably in persons using grinding tools. The claimant had never been warned about the risks of vibration white finger and no monitoring or other steps had been taken to ameliorate the claimant's exposure to vibration.
5. The judge heard evidence from the claimant and from medical witnesses about the severity of the condition and its effect upon the claimant's life. There is well established literature in this field which defines by stages the degree of severity. The judge concluded that the claimant "falls into the severe rather than moderate category". In addition, the judge found the claimant suffered from carpal tunnel syndrome in one hand. His ability to do many types of work and his ability to enjoy his pleasures to the full were substantially affected. The sum awarded by the judge for pain and suffering and loss of amenity is not challenged, save on the basis to which I will refer.
6. Evidence was called as to the date by which the defendants ought to have been aware of the risks to which they were subjecting the plaintiff by reason of his use of grinding tools which vibrated in his hands. The judge concluded (page 13) that:

"...the defendants would appear to have no excuse for ignorance of the conditions causing vibration induced white finger after about 1975.

Obviously, some time would elapse before effective steps could be devised and implemented to overcome the problem so far as possible and if I put that date at 1977 that would be I think generous to the defendants."

7. The central point in the appeal is the submission that, because a substantial amount of the relevant exposure was before 1977, the judge ought, in his approach to the issue of damages, to have made a discount to allow for what has been described as non-negligent exposure. The general problem is, of course, one which has frequently been considered in the courts. We have been referred to the judgment of Mustill J in Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405, recently cited in this court in Allen and others v British Rail Engineering Limited and another [2001] EWCA CIV242. Mustill J stated (page 443D):

"What justice does demand, to my mind, is that the Court should make the best estimate which it can, in the light of the evidence, making the fullest allowance in favour of the plaintiffs for the uncertainties known to be involved in any apportionment. In the end, notwithstanding all the care lavished on it by the scientists and by counsel I believe that it has to be regarded as a jury question, and I propose to approach it as such."

8. In Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421, Stuart-Smith LJ stated, in relation to a plaintiff:

"He will be entitled to succeed if he can prove that the defendant's tortious conduct made a material contribution to his disability. But strictly speaking the defendant is liable only to the extent of that contribution."

9. For the claimant, Mr Hunter QC submits that, upon the facts found by the judge, facts which the judge was entitled to find, no question of apportionment arose in this case. It is not, of course, a case where the possible responsibility of any other employer arises. The claimant had spent the whole of his working life with the defendants. Judge Tetlow put it in this way (page 15G):

"Further it is difficult to gauge what if anything is happening before symptoms appear. I say that because Professor Stanley says that if steps are taken when symptoms first appear to remove the victim from harmful exposure altogether or to a sufficient degree, one hopes the symptoms will disappear. One finds a balance which prevents onset or progress of the symptoms."

10. Later:

"Had the defendants, whether in 1977 or 1980, issued warnings, then, no doubt, the claimant in the early 1980s would have realised what was happening and then, no doubt, the defendants would have reorganised work patterns so that Mr Smith could work without enduring further symptoms. Alternatively, if that were not possible, they would have, no doubt, dismissed him. As it was, the claimant continued until and after his symptoms had reached a stage where damage was irreversible.

Further, the defendants in 1977 or 1980, had they done their duty, would have reorganised their working practice so as to reduce exposure to vibration and hence the claimant may not ever have reached a stage when he would have experienced symptoms.

Put shortly, the pain and suffering and loss of amenity which this claimant feels is entirely, in my judgment, due to the fault of these defendants and if I am wrong in not deducting something for symptomless damage occurring before the date of knowledge then, in my judgment, the deduction must be miniscule. In other words, hardly worth deducting."

11. I go on to refer to the judge's findings about the future employment position, though this is relevant to a separate point taken on behalf of the defendants rather than the central point to which I have referred. Shortly before the trial, at a time when the claimant was still employed by the defendants, they gave him a letter which announced layoffs and showed, in the view of the judge, the precariousness of the claimant's employment position. The defendants tried to retrieve the letter from him but it came to the attention of the judge. The judge concluded:

"Although the defendants have provided the claimant with suitable work taken from their sister company, Waddingtons, I can only infer that that is a cynical move to persuade the Court that they will keep the claimant on. On the evidence before me I am entitled to conclude that once this case is over, the claimant is likely to find himself unemployed for the first time in his life. Had I heard evidence from the defendants I might have been able to take a kindlier view of their actions. In the absence of such I am not able to do so and my conclusion then is that this claimant will almost immediately find himself on the open labour market."

12. It was on that basis that the judge awarded total loss of earnings for a period of one year following the trial, and then a partial continuing loss of £5,000 a year, to which, having made a discount, he applied a multiplier of seven.
13. On behalf of the defendants, Mr Owen QC submits that a significant discount was required from general damages by reason of the substantial exposure before 1977. He submits that the defendants cannot be responsible for the damage suffered before that date. He accepts that the judge was entitled to come to the conclusion that there will generally be no progression of VWF after cessation of exposure to vibration. Evidence to that effect was given by Professor Stanley. The judge reasoned the matter in this way (page 5G):

"The perceived wisdom is that the effects of vibration are cumulative. If you stop exposure before symptoms come on then there is no problem. Since it is only a minority of those people who are exposed to vibration who develop vibration white finger, there is an element of 'suck it and see' for employees and employers. If someone develops tingling in the fingers he should be monitored ideally every six months. By withdrawing him from exposure and rotating his job, it should be possible for employers, not necessarily all, to prevent the condition becoming established. In some cases an employer may not be able to re-deploy or rotate an affected person and the only option in that case would be to bring his employment to an end."

14. The employers did not take the course of bringing the employment to an end in this case, though it is a possible course to which the judge referred. If they continued to employ him, then it is common ground that principles arising in such cases as Withers v Perry Chain Co [1961] 1 WLR 1314 would arise. In this case the onset of symptoms postdated the date of guilty knowledge by several years. Plainly, there was ample time for the defendants to take precautions, such as those contemplated by the judge.
15. Mr Owen submits that, notwithstanding that possibility, the court cannot shut its eyes to the fact that the pre-1977 exposure played its part in the subsequent development of the condition. However, a person's constitution can put up with so much exposure to vibration. If, to use the expression which appears in the medical reports, "the reservoir becomes full", that is the reservoir of tolerance, then symptoms will, in the case of a significant number of people, emerge. If, on the other hand, exposure stops before the reservoir is full, then, notwithstanding a continuing vulnerability if further vibration occurs, there will be no symptoms which could give rise to an award of substantial damages, such as occurred in this case.
16. In the course of argument, Mr Owen considered the position in which the defendants found themselves in 1977. The reality, he submits, is that if the parties had known of the possible effects of continuing vibration, the claimant would have continued with his work. Mr Owen accepts that the defendants were under a duty in such circumstances to give proper advice and education to a claimant who, to their knowledge, had sustained very considerable exposure over a period of many years; and on the then state of knowledge, they ought to have known, to use the expression used by the doctors, that "the reservoir was substantially full" and that further exposure might well lead to the development of white fingers.
17. The judge was wrong, it is submitted, to find the facts as he did. He ought to have concluded on the evidence that vibration tools would still have been used by the claimant. The judge should have assumed that both sides would have carried on, the employee taking the risk to which, on this assumption, he knew he was subjected. An apportionment would then be necessary if liability was established at all. The judge did not pay sufficient regard to what an employee is likely to have done even had he known of the risks.
18. In my judgment, the judge was not obliged to follow that line of reasoning upon the evidence in this case. He was entitled to reach the conclusion that in 1977 it was open to the defendants, had they wished to discharge the duty on them as employers, to have "reorganised their working practice so as to reduce exposure to vibration and hence the claimant may not ever have reached the stage when he would have experienced symptoms". (Having regard to the following paragraph in the judgment already cited, it is clear that in using the word "may", the judge was holding that, on a balance of probabilities, the claimant would not have reached that stage).
19. I substantially accept the submissions of Mr Hunter on this issue. The judge was entitled to find that, in this particular case, had there been a proper discharge by the defendants of their duties as employers, white fingers would not have developed, notwithstanding the long earlier period of exposure. It was open to the judge to hold that, had the employers discharged their duties, there would have been no further significant exposure to the vibrating tools. As a matter of fact, on the evidence before him, the judge was entitled to reach that conclusion.
20. It was, of course, open to the defendants to call evidence that such precautions and such reorganisation of working practices could not, in practical terms, have been implemented. Mr Owen did make the submission that such changes may have been impracticable from the defendants' point of view as employers and it would have been unreasonable of them to dismiss the claimant had they been aware that his "reservoir" was full or almost full. There is no evidence of impracticability which, if to be shown in present circumstances, imposes, in my view, an evidential burden upon a defendant who seeks to avoid a finding such as the judge made. As to whether it was reasonable or unreasonable to dismiss, if the claimant, with knowledge of the risks, wished to go on, that would give rise to questions considered in cases such as Withers v Perry Chain Co, which do not arise in this case.
21. I regard the judge's conclusion as entirely in line with the approach followed in the cases to which I have referred. Neither counsel has been able to find a case in which the present point has arisen. The judge was entitled to hold that, on the particular facts, no question of apportionment arose, and I would dismiss the appeal on that ground.
22. The further point raised is a separate one and is that this court ought to have allowed the introduction of evidence that there have been supervening events, the first being that the judge's prediction that the claimant would lose his job almost immediately was not fulfilled in that the claimant has been employed by the defendants until very recently. The second is that in May of this year, the defendants went into liquidation, so that the claimant would have lost his job in any event. Indeed, it was that point which initially was put in the forefront of the argument.
23. In McCann v Sheppard [1973] 2 All ER 882, a claimant to whom very substantial future loss of earnings had been awarded died very shortly after the trial. Lord Denning MR stated (page 885G):

"But if notice of appeal has been entered in time - and pending the appeal, a supervening event occurs such as to falsify the previous assessment - then the court will be more ready to admit fresh evidence - because, until the appeal is heard and determined, the proceedings are still pending. Finality has not been reached. It is in every case a matter for the discretion of the court."

24. James LJ stated (page 889C):

"Where notice of appeal has been served within the time prescribed by the rules and an event has taken place at a time reasonably proximate to the date of the trial, which event falsifies the facts on which judgment proceeded, the court should not rehear the matter on the basis of the fiction that the event has not taken place."

25. There will be many cases in which, in assessing damages, predictions have to be made as to the future where, even by the time of the appeal, which may, as in this case, be a year or so later, the predictions made by the judge have not been realised. That is not sufficient in itself to justify the admission of fresh evidence.
26. Subject to one point which I will mention, I see no merit in the reliance upon the recent liquidation of the defendants in May 2001. It is not suggested that in fixing his multiplier for a partial continuing loss of earnings the judge did not have regard to the fact that, in seeking a new job, the claimant would not only have the disadvantage of his white fingers but also the general disadvantage which anyone of his age would have on the labour market in the area where he lived. That difficulty is the same whether it arises, as the judge thought it would, very soon after the trial or whether it arises in May of this year.
27. As for the fact that the claimant remained in the employment of the defendants until May of this year, in my judgment the finding that he would be dismissed very soon after the trial was entirely justified on the basis of the letter which had been sent to the claimant and was sought to be recovered from him. Events in a complex case will rarely take exactly the course which a judge has predicted. I have in mind, for example, the assessments which have to be made in relation to future care, as well as to future loss of earnings. I do not regard the fact that the judge's prediction was not in the event fulfilled to be a sufficient reason for allowing in evidence the fact that the claimant remained in the defendant's employment until May of this year. The event was not, in the circumstances, that of the kind contemplated in McCann v Sheppard, and its effect is a great deal less dramatic than the effect of the event on the award in that case.
28. I would accept that the change of circumstances does mean that the exercise to be performed when assessing future loss of earnings, if this court had been prepared to perform it afresh, puts the claimant at a greater age than he was when judge made his assessment at the trial, and that, as well as the fact that the claimant has remained in the employment of the defendants, would affect the appropriate quantum of damage. But I am unpersuaded that on the facts of this case the court ought to admit the fresh evidence.
29. It is not suggested that the issue as to the taking into account or not of the redundancy payment remains alive.
30. For the reasons I have given, I would dismiss this appeal.
31. MR JUSTICE TUCKEY: I agree that this appeal should be dismissed for the reasons given by Pill LJ. I would like to add a word about the circumstances in which this court should exercise its discretion to admit evidence of things which have happened after the trial in a case such as this.
32. The principle, I think, is that this court should not blind itself to a subsequent event so as to uphold a judgment when this would be an affront to common sense or justice in the light of that event, or, put another way, if the event falsifies the whole basis of the judgment. Otherwise, I think the principle of finality should prevail. In other words, damages are to be assessed once and for all at the time of the trial unless the court awards provisional damages in the limited circumstances in which the court has jurisdiction to make such an award.
33. The subsequent events in this case which Pill LJ has described fall very definitely on that side of the line which require this court to ignore them.
Order: Appeal dismissed with costs.