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 MANCHESTER COUNTY COURT
(Mr Recorder Howells)

		Royal Courts of Justice Strand London WC2A 2LL Wednesday, 21st November 2001

Wednesday, 21st November 2001

1. LORD JUSTICE KAY: This is an application for permission to appeal from a decision of Mr Recorder Howells QC following trial of the claimant's personal injury action on 27th April 2001. The Learned Recorder reserved judgment, and in due course it was handed down on 21st June 2001.
2. The action arose out of personal injuries alleged to have been suffered by the claimant in the course of his employment with the defendant. He was then working as a plant operator at the defendant's quarry near Sheffield. Overnight on the night of 18th/19th November 1996 there was an unexpected heavy snowfall. By morning there were approximately six inches of snow lying on the ground, and the blizzard conditions were continuing. At approximately 9.30 a.m. the claimant slipped and fell. There was a factual dispute as to exactly where it was that he had fallen. His case was that the accident had happened whilst he was walking down a car-park ramp. The defendant's case was that the accident had happened on a nearby bank which the claimant was using as a short-cut.
3. The first proposed ground of appeal arises out of the Recorder's finding of fact as to where the accident happened. I can deal with it shortly because Mr Grimshaw, having had an opportunity to see the conclusion of Mantell LJ on the papers, has not thought it right to argue the matter further before me. Quite simply, what was being said was that there was evidence called on behalf of the defendant in support of their contention that the accident was on the bank which the judge had not dealt adequately with in his judgment.
4. Mantell LJ said:

"The learned Recorder reached a finding of fact as to where the accident occurred which depended upon his assessment of the evidence and in particular that of the claimant. There is no real prospect of the Court of Appeal interfering with that finding."

5. Having examined the matter carefully myself, I am satisfied that not only did the Recorder reach his finding having accepted the evidence of the claimant, but that he dealt in sufficient detail with the evidence that was being put forward on behalf of the defendant. The most cogent part of that evidence was evidence from a senior employee that the claimant had pointed out the position on the bank. The Recorder quite simply rejected that piece of the evidence. He found the claimant convincing. In those circumstances, I share the view expressed by Mantell LJ that there is no prospect that the Court of Appeal would interfere with that finding of fact.
6. The second and third grounds are intertwined. It was the case for the claimant that the condition of the slope on which he fell was such that he should not have been required to walk upon it. The case was pleaded both as a breach of statutory duty under the Workplace (Health, Safety and Welfare) Regulations 1992 and alternatively in negligence. The learned Recorder found that some of the allegations of negligence were made out. He did not find it necessary to go on and consider the allegations of breach of statutory duty.
7. Counsel submitted in relation to that issue that the conclusion that the defendant was negligent was not reasonable in the circumstances and, more particularly, that even if it was right to hold that the defendant's failure to act in an appropriate way to deal with the slope could amount to negligence, the judge failed to go on and consider the important contention being made by the defendant that causation had not been established.
8. Dealing with the negligence matter, Mantell LJ's conclusions were as follows:

"The learned Recorder found that notwithstanding the weather conditions the ramp could and should have been treated with a heavy application of rock salt, and further that the failure to do so was in breach of the defendant's common law duty of care."

9. That is also a finding with which the Court of Appeal is most unlikely to interfere. Having looked and been taken by Mr Grimshaw to the relevant evidence, I am satisfied, as Mantell LJ was, that there was evidence before the court that entitled the court to reach that conclusion.
10. There was a joint report from a consulting engineer, Mr Jones, which dealt with these aspects of the matter. At paragraph 8.25 of that report, to which I have been referred, it says:

"8.25In situations where there is heavy and prolonged snowfall, then the service application of salt may not be sufficient to keep a surface free of snow. The Claimant describes how there were "blizzard conditions" thus it cannot be discounted that this could have been one such occasion. However, as Mr Moyle tells us, it was the practice to leave fresh snow on the ground, with no attempt being made to clear it by any means."

11. In his conclusions Mr Jones said:

"10.8In my opinion persons wearing boots having a good tread pattern would achieve a reasonable foothold when walking across fresh snow lying on level, or near level surfaces. However, once know becomes compacted the surface becomes slippery and unsatisfactory.

10.9.I believe that when negotiating a snow covered incline or slope, such as that seen, that there would be a risk of a person slipping.

10.10. I agree that it would not have been practical to clear snow from the car park using the site loading shovels. However, I consider that the spreading of salt on critical areas would have assisted. In my opinion practicable measures could have been put in place."

12. In those circumstances, it seems to me that the conclusion of the engineer that the spreading of salt on critical areas would have assisted meant that, since that evidence was accepted by the Recorder, he was entitled to come to the conclusion that the defendants were indeed negligent in not taking a measure that was required of them which, on his findings, would have assisted.
13. So far as causation is concerned Mantell LJ said:

"It is true that the learned Recorder did not deal in terms with the causation. However it is clearly implicit in the judgment that he found that the failure to treat the ramp with salt was a cause of the accident. I also note the omission to deal with causation, if such it was, was not remarked upon at the time when judgment was handed down. In my view this ground has no real prospect of succeeding."

14. It has since been pointed out that in fact the transcript finishes before the conclusion of the proceedings on that day. There was an application for permission to appeal made to the judge which he rejected. It may very well be that in the course of dealing with that the apparent omission to deal with causation was pointed out. I therefore discount that consideration. On the other hand, Mantell LJ's primary conclusion was that it was clearly implicit in the judgment that the Recorder had found that the failure to treat the ramp with salt was a cause of the accident. That I am entirely satisfied, having read the judgment again, is the proper way of approaching what he said. The evidence to which I have already referred makes it clear that the consultant engineer had come to the conclusion that there were practical measures that could have been put in place. On that evidence the judge, accepting as he clearly did from his judgment the evidence of Mr Jones, was entitled to reach a conclusion that the failure to take the steps that were required of the employer did contribute to the happening of the accident. That being so, he was entitled to decide that causation was established. I, therefore, am not in any way persuaded that there is any prospect that this court would in any way interfere with the conclusions of the Recorder even if it could properly be said that he might have dealt with that aspect a little more fully.
15. The fourth and final ground relates to the quantum of damages. In issue, amongst other matters, was the extent to which the claimant had been prevented from working by the consequences of the accident. The medical evidence was in the form of two reports from a consultant orthopaedic surgeon. Those reports were in like terms. In the course of the reports it was made clear by the consultant that he considered that the claimant was genuine in the complaints that he was making. He went on to say:

"I think it is important to note there was no pre-accident history of neck troubles. The MRI scan shows quite extensive disc degeneration.

I believe his progress since then is compatible with this concept, he does not present to me as anything but a genuine individual.

This really is like a so called whiplash injury that he sustained. One might accept up to two years discomfiture. He belongs to a group of patients where symptoms can persist longer, that is even if he had been asymptomatic the fact is he has multi level disc degeneration, so I think one might accept some two or three years further on, but that really would be more of nuisance value than causing an inhibition of functional independence."

16. It is submitted on those conclusions, disregarding what the claimant himself said about his condition, that the judge ought to have concluded that the maximum period during which he could have been said to have been disabled as a result of his accident was the period referred to by the doctor. However, the doctor went on at other passages, and most clearly in his second report at page 97 in the bundle, paragraph 6, to say:

"I believe that but for the accident he would have developed similar symptoms by his mid to late fifties, progressing over a two year period from the onset to the extent of having to give up work. I still remain of that opinion."

17. The Recorder's approach to that evidence was to conclude that the doctor was saying that the combination of this man's injuries and the acceleration of his condition were such that he had been prevented from working in consequence of the accident until two years from his mid to late fifties, which the Recorder concluded was the age of 57. It is submitted that that was not justified on the evidence and that, as a result, the award of damages for loss of earnings was far too high.
18. Mantell LJ said of that passage:

"As I read the transcript the learned Recorder was looking not to the nature, quality or duration of the symptoms but the period by which they had been brought forward. If so I can see nothing amiss in the approach taken."

19. My reading of the judgment and of the medical report coincides exactly with that of Mantell LJ. This doctor was, first of all, accepting that this man was genuine, he was not in any way a malingerer and he was coming to a conclusion that, but for the accident, he would not have been in a position where he had to give up work until, as he put it, a two-year period following the onset of similar symptoms in his mid to late fifties. Thus, if he was to be put back as a result of his claim into the same position in which he would have been but for the accident, it seems to me inevitable that one comes to the same conclusion as the Recorder.
20. Again, I can see no prospect of an appeal succeeding in that regard and, for the reasons that I have given, I refuse the application for permission to appeal.
Order: Application dismissed.