England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DEWSBURY COUNTY COURT
(SITTING AT LEEDS)
(His Honour Judge Barry)

		Royal Courts of Justice Strand London WC2 Friday, 2nd November 2001

1. LORD JUSTICE PILL: This is a renewed application for permission to appeal. I refused permission on paper on 23rd August 2001. Mr. Alan Lambert suffers from a hernia. His claim is that the hernia was caused because of the manual work that he was required to do by his employers, Ashtead Plant Hire Company Limited. The pleadings sufficiently, in my view, make that allegation, and included are allegations under the Manual Handling Operations Regulations 1992.
2. There was an incident in June 1997 when the applicant suffered a groin strain. Counsel, Mr. Nazir, on his behalf, puts that as a rather minor injury but says it is merely background. I agree with that approach. The substantial issue in the case is the causation of the hernia from which he undoubtedly suffers and which is a significant condition. The judge found that the hernia was not caused by any breach of statutory duty or negligence by the employers.
3. Mr. Nazir first refers to a letter from the claimant's doctor, Dr. White, dated 27th March 2000:

"It is my opinion that the groin strain was caused by the accident at work with a water bowser but that the hernia was not a consequence of the accident. The hernia was probably the result of the heavy physical work carried out by Mr Lambert in various employments prior to its development. Direct inguinal hernias, the type sustained by Mr Lambert are a consequence of prolonged straining and are not due to a constitutional weakness.

For a number of years prior to joining the Ashtead Plant Hire Company, Mr Lambert's occupations involved physical exertion and heavy lifting. These occupations combined with his heavy work at Ashtead Plant Hire will have caused his hernia to develop."

4. It emerges from that that the hernia has been caused over a period of years. The applicant's employment with the defendants began only in November 1996. So that on Dr. White's view it was, at best or at worst, the responsibility of the defendants.
5. The claimant cannot, however, rely upon the doctor as determining conclusively what work the applicant was doing. Mr. Nazir says that that is what the doctor was told by the applicant and I do not doubt that. The function of deciding the work the applicant was doing was that of the judge.
6. The judge's findings were as follows. He rejected Mr. Lambert's evidence that he was "frequently required to move manually very heavy machinery." He referred to evidence of other witnesses, accepted that they worked in a "somewhat different department" to Mr. Lambert, but went on to say:

"But they are working at the same place and they work frequently - the evidence was that they are frequently crossing and re-crossing the yard in which Mr Lambert worked. And they have said quite distinctly on oath that there is always an abundance of machinery available to move any machine that could not move under its own power...."

7. The judge rejected a suggestion that one comment of a witness, Mr. Singh, in relation to the claimant pushing a particular item, determined the case in the claimant's favour. The judge stated in relation to that item of machinery:

"It is something that could no doubt easily be done with the help of other members of staff, who I am satisfied on the evidence were available, so that the appropriate machinery could be attached."

8. The judge continued, and this is clearly determinative in the judge's mind of the claim:

"It was never necessary, it seems to me, for Mr. Lambert unaided to move machinery about manually. And in any event, if he chose, as a matter of a short cut, to do so himself, that was in the light of an abundance of experience in the trade over the years which ought to have told him to know better.

I take the view that there is no evidence at all to show that his employer or this business caused his hernia, which is the principal reason he cannot work at heavy labouring, heavy industry hereafter."

9. Accordingly, judgment was given for the defendants.
10. Mr. Nazir first referred to the medical report on which I have commented. Mr Nazir then turns to what I regard as his more substantial point, which is that the judge was not entitled to reject the evidence of the applicant, having regard to the evidence as a whole. Mr. Nazir submits that upon the evidence the judge could not reasonably hold that the applicant was not required to do the heavy work which he claimed to be doing. The judge had of course an opportunity to assess the credibility and reliability of the applicant in his evidence and he did hear two other witnesses at least. The court has no transcript of the evidence. It does not have the notes of counsel or solicitors of what the other witnesses said. The judge plainly relied on those other witnesses. Mr. Nazir has taken me to their witness statements. I have seen nothing in them which renders the judge's reliance on them as relevant witnesses to be perverse or unreasonable.
11. In my judgment, it is not arguable that the judge was not entitled to reach the conclusion which he did and which I have read. He had to assess the evidence as to the work the applicant was doing, and I see no reason why he was not entitled, upon the material drawn to my attention, to reach the conclusion he did. The groin strain cannot itself sustain an action. I accept the judge's approach to that, and Mr. Nazir referring to it as merely background does not seek to erect an appeal on the incident in June 1997 alone. In my judgment, no case can be erected upon the material available. It is not arguable that this court would reverse the decision of the judge. The application is refused.
Order: Application refused.