England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM YEOVIL COUNTY COURT

		Royal Courts of Justice Strand, London, WC2A 2LL Friday 9th March 2001

MR JUSTICE COLMAN:

1. This is an appeal from the judgment of HHJ Raymond Jack QC, as he then was, sitting in the Yeovil County Court.
2. By that judgment he awarded the claimant general damages in the sum of £5000 and special damages in the sum of £80 in respect of injury sustained by the claimant in the course of his employment by the defendants as a delivery driver working at a drinks depot in Martock in Somerset.
3. The injury in respect of which this claim was brought was gastro-oesophageal reflux ("GO Reflux"). It is a condition which involves acids from the stomach area passing through the oesophageal sphincter and then entering the oesophagus and causing pain, commonly referred to as heartburn. It was common ground that the claimant suffered from this condition and that it is continuing. He claims that this condition was caused by working practices imposed or permitted by the defendant company which involved his manually lifting heavy kegs and gas cylinders on to and from his vehicle without manual or mechanical assistance. The judge described the injury as unusual.
4. The salient findings of fact by the judge can be summarised as follows.
5. The Claimant had been employed as a delivery driver by the defendants between 1989 when he was 26 and February 1997 when he was 35. He began to suffer from GO Reflux in 1991 or perhaps a little earlier. He first mentioned this condition to his doctor in April of that year, in the course of consultation about another matter.
6. He was prescribed anti-acid medication.
7. In June 1992 the defendant company was taken over by Freetrade Ltd. At that point the claimant was required to undertake more work and heavier work than previously. This included the manual movement of heavy kegs of beer and gas cylinders.
8. About 18 months after the take-over (at about the beginning of 1994) the pain got worse, but it was only in November 1994 that it got seriously worse and he then consulted his doctor again.
9. The judge found that the claimant continued to suffer from GO Reflux continuously from 1991 to 1994.
10. During the period from November 1994 until he left the defendant's employment in 1997 the claimant consulted his doctor 12 times about his condition and in spite of the use of newly developed drugs designed to control the production of gastric acid, the claimant has continued to suffer quite severely from GO Reflux, as well as from other stomach problems.
11. On the basis of the expert evidence given by the gastro-enterologists, Dr Sterling Pugh (on behalf of the claimant) and Dr Paul Smith (on behalf of the defendant), the judge concluded that the likelihood of GO Reflux was increased by abdominal straining. This was because it increased the pressure within the stomach and that increase might cause leakage through a sphincter that was weak. Straining might be caused by something quite mild, such as a cough. The effect of the lifting of weights did not appear to have been the subject of medical research, but on the evidence of the two experts the probability was that "the excessive weights" which the claimant had to handle increased the frequency and severity of reflux from which he suffered during his employment. It was well established that those who suffered from GO Reflux should avoid bending and lifting.
12. The judge found that the claimant's work as a delivery driver would have caused him substantial reflux problems whether or not it included lifting "excessive weights". He accepted Dr Pugh's evidence that once the GO Reflux disease had become established, it might continue little abated once the cause or risk factor was removed. Some people might recover, depending in part on the degree of weakness of the sphincter. Others might not. The claimant would not.
13. The judge further found that the defendant's fault in causing the claimant to handle heavy kegs by himself caused him more occurrences of GO Reflux than would otherwise have occurred and that the episodes so caused were likely to have been more severe than other episodes. Bending to lift lighter kegs and to lift ordinary creates of bottles would also be likely to cause a reflux.
14. On that evidential basis the judge concluded that:

(1) once the GO Reflux had first started in 1991 the claimant became unsuited to heavy delivery work: he had a weak gastro-oesophageal sphincter.

(2) Even if he had received help with the heavier kegs he would have suffered "quite severely" from reflux, although not as severely as he did.

(3) With the increase in his workload there was going to be an increase in his reflux problems whether or not it included heavy kegs of beer.

(4) By reason of his reflux he should now avoid heavy delivery work.

(5) This inability was not caused by the defendant's breaches of duty. This "would have occurred because he had a constitutional weakness and he was doing a heavy delivery job...... If his employers had not been in breach of their duty, he would still have been doing a lot of bending and heavy lifting - crates of bottles, lighter kegs and heavy kegs with assistance. He would still have been working long hours and under stress."

15. On these findings the judge rejected the claim for lost earnings and he reduced by two-thirds the claim for special damages in respect of travel and treatment expenses. He awarded £5000 for general damages to cover the worsening of the GO Reflux condition from 1994 to 1997 "caused by too heavy lifting" and the worsening of that condition so caused from the end of his employment and into the future. The judge made no Smith v. Manchester award in respect of lost opportunity of employment.
16. It is submitted on behalf of the claimant that, on the evidence before him and in view of certain admissions made by the defendants before the trial, the judge ought to have concluded that the working requirements of the defendants from 1992 onwards, including the increased weights to be lifted because of the loading and unloading of kegs and the increased frequency of lifting and bending, had permanently injured the claimant by weakening the sphincter so as to worsen the claimant's GO Reflux condition to the extent that he could no longer carry on doing heavy delivery work. Once it was admitted that the defendants were at fault in requiring the claimant to lift heavy kegs, there was no basis for investigating, as the judge had apparently done, the difference between the claimant's actual position and his position if his duties had been confined to lifting crates of bottles or kegs which were not the heaviest kegs or to lifting the heaviest kegs with manual assistance. The trial had been conducted on the basis that the key issue was whether the claimant's condition was caused by lifting kegs of beer. The weight of the expert evidence established that it was. There had been no investigation of whether the claimant could have continued in his employment if he had not been required to handle kegs manually or if his lifting had been confined to lighter kegs. The distinction drawn by the judge between the consequences of lifting lighter kegs and heavier kegs had been his own and had not been explored in the evidence.
17. The judge therefore ought to have made an award of general damages which fairly reflected the effect on the claimant of the breaches of duty which were admitted and ought to have awarded as special damages compensation for loss of earnings by reason of being rendered unfit for work as a delivery driver.
18. The Structure of the Issues at the Trial

Before considering the evidence it is necessary to consider the structure of the issues which had to be determined at the trial.

19. By paragraphs 4 and 5 of the particulars of claim it was pleaded as follows:

4. "While acting in the course of employment and from 1992 onwards the Plaintiff was required to manually lift various heavy kegs of beer and/or gas cylinders up onto and off of the rear of his delivery truck, a height of about 4 feet from the ground. On or by 18th July 1996, and while doing so, the Plaintiff experienced indigestion and regurgitation at frequent intervals. Further, on or by the same date the Plaintiff suffered a hiatus hernia.

5. The said symptoms and injury were caused by the negligence and/or breach of statutory duty of the Defendants, its servants or agents."

20. There are then set out particulars of negligence and/or breach of duty:

(a) "failing to avoid the need for the Plaintiff to undertake the handling of such kegs manually, when the same was a task which involved a risk to the Plaintiff being injured contrary to Regulation 4(1)(a) of the 1992 Regulations or at all;

(b) failing to make a suitable and sufficient assessment of the manual handling operations to be undertaken by the Plaintiff or to take appropriate steps to reduce the risk of injury arising out of the said operation to the lowest reasonably practicable level contrary to Regulation 4(1)(b) of the 1992 Regulations or at all;

(c) employing the Plaintiff to load and unload kegs and/or cylinders so heavy as to be likely to cause him an injury;

(d) failing to provide any or any adequate manual or mechanical assistance for the purpose of loading and unloading such kegs and/or cylinders;

(e) failing adequately or at all to ensure that the Plaintiff used manual or mechanical assistance;

(f) failing to advise or instruct the Plaintiff properly, or at all, in the correct manner of lifting such kegs and/or cylinders;

(g) causing or permitting the Plaintiff to work unaided in the loading and unloading of such kegs and/or cylinders when it was unsafe to do so;

(h) failing to warn the Plaintiff of the dangers of working as aforesaid;

(i) in the premises failing to provide or maintain a safe and proper system of working or to instruct the Plaintiff to follow that system and/or failing to take proper care for the safety of the Plaintiff."

21. At the case management conference which took place on 14th February 2000, some four months before the start of the trial the following order was made by the district judge:

"The case proceeds on the basis that the Defendant admits the allegations of fault in paragraph 5 of the Particulars of Claim but denies that the Claimant has sustained any injury or loss as a result."

22. It is to be observed that the admitted fault was defined in paragraph 5 by reference to the manual lifting of "various heavy kegs of beer and/or gas cylinders". The particulars of negligence did not further define the weight of the relevant kegs or contain anything to suggest that the allegation of breach of duty was in respect of kegs above a certain size or weight.
23. However, in the claimant's first witness statement, which had been served well before the date of the admission, the claimant stated that in 1992 his employers began to stock kegs of beer and cider and crates of soft drinks. He did not know how heavy these were but the kegs of beer generally carried 9, 11, 18 or 22 gallons and he had to lift them manually on to and from his low Mazda van which was "not too difficult". Following June 1992 he was required to drive a 7 1/2 tonne truck and to load it manually if, as was often the case, a fork lift truck was unavailable. That involved a lift of about four feet which was higher than he had previously lifted. In paragraphs 12 and 13 of that statement there appears the following:

12. "If we were loading 9s or 11s, then we were expected to do so manually. If however 18s or 22s were required for delivery, then we either waited for a fork lift or sought help from another person in the warehouse. After approximately six months, the company did hire two more fork lifts but again these were generally in use in unloading other vehicles and were often not available when loading our lorries. We had no lifting training and were not provided with driver's mates to assist with the lifting involved.

13. In addition to the problems with loading at the depot, if we delivered faulty goods to customers in error or if incorrect goods were despatched due to telesales/warehouse errors, then we were required to manually lift these goods from the customer's storage areas back on to the lorry. Often, we received no assistance with this task."

24. The expert reports of Dr Pugh, on behalf of the claimant, based on an interview with the claimant about two months before he signed that witness statement, conclude that the claimant's GO Reflux problem was brought about by the change of work practice and other problems in his employment from 1992 to 1997. Dr Pugh records that at the interview the claimant informed him of the following:

"Following that acquisition his work pattern changed and he was required to work in the Beer Department loading a lorry with barrels and kegs of beer which he then took to retail outlets where he unloaded the barrels often without assistance. He tells me that he was given no training or special equipment for the movement of heavy barrels and was required to lift on to a lorry on his own 9 and 11 gallon kegs of beer (he could not tell me the weight of such kegs but from simple calculation an 11 gallon keg of beer will weigh in excess of 120lb). He tells me that he was given no written procedures or instructions on how to lift these heavy weights. He noticed over the following six months that he was developing symptoms which came on after he had been lifting the heavier kegs of beer. He told me of symptoms of a burning retrosternal pain which was related to a dryness in the throat and hot flushes. The pains were made worse by bending and stooping and later on they also disturbed his sleep when they because severe on lying flat.

25. There is nothing in the expert report of Dr Smith, on behalf of the defendants, or in the joint experts' statement to suggest that any distinction was drawn in their consideration between the consequences of lifting heavier kegs and lifting lighter kegs. Indeed, the expert report of Dr Pugh makes it very clear that he considered the effect of lifting 9 and 11 gallon kegs and nothing heavier.
26. Accordingly, there can, in my judgment, be no doubt, against this background, that the scope of the admission which provided the basis of the structure of the issues and the issues at the trial, extended to the requirement to lift manually all sizes of kegs containing beer, including in particular the 9 and 11 gallon kegs described by the claimant. It follows that the issue with which the trial ought to have been concerned was whether the claimant's injuries and loss had been caused by the defendants' fault in requiring the manual lifting of kegs of beer of any of the sizes which he had described and/or gas cylinders, about which there appears to be no evidence.
27. In these circumstances it is not surprising that, as we were very frankly informed by Mr Patrick Blakesley, who appeared both here and at the trial on behalf of the defendant, no distinction was drawn at the trial by either party between the consequences of handling lighter kegs and heavier kegs. Although that distinction is somewhat indistinctly suggested in certain questions put by the judge to Dr Smith in the course of the trial (Transcript 66E and 67D-E) it is only in the judgment that the distinction is explicitly developed.

The Issue on this Appeal

It follows that the primary question on this appeal is whether it was open to the judge to conclude, as he did, that the claimant's continuing GO Reflux condition would have occurred in any event, due to the effect on his constitutional weakness of those incidents of his work which did not involve any breach of duty by the defendants, or, putting it the other way round, that those incidents of his work which did involve a breach of duty did not create a continuing condition which he would in any event have suffered.

28. In approaching this question it is, however, necessary to keep in mind that the scope of the relevant admitted breaches of duty extends to the requirement to lift beer kegs of all sizes and is not limited to those above a certain weight.
29. Dr Pugh concluded in his expert report that the claimant's GO Reflux condition had been initiated and exacerbated by being required to lift very heavy weights single handedly at work from 1992 onwards. The weights to which he referred clearly were the kegs of 9 and 11 gallons of beer described to him by the claimant. The pain was made worse by bending and stooping. The report makes no mention of the requirement to load crates of soft drinks.
30. Dr Smith's second report identified the commencement of symptoms as in 1991 and, while conceding that those symptoms might have been "minimally aggravated" by heavy lifting, concluded that there was no research evidence to show that lifting was anything more than a trivial factor in promoting reflux. There was no evidence that the claimant's symptoms had been initiated by being required to lift very heavy weights. The fact that his symptoms began before he lifted heavy kegs and continued when he left his job suggested that lifting had little to do with the symptomatology.
31. The claimant said in evidence that the pain in his chest mainly happened around mid afternoon when he was lifting lots of heavy barrels up and down customers' cellars and on and off the bed of the lorry. He also said in evidence first that he had pain from 1992 onwards, but it got much more severe in early 1994. Later in his evidence he said that he had problems from 1991. The pain would come while he was bending or stooping or lifting and putting pressure on his stomach. Although in 1991 he told his doctor about indigestion problems when on a visit for another ailment, he had "no problems in that department" up to 1994. Up to that time he controlled the problem by taking Rennies.
32. Before the takeover by Freetraders in June 1992 he had no heavy work beyond lifting one or two cases of wines and spirits either on to fork lift trucks or manhandling them into a customer's premises. It was only after the takeover that he personally started handling kegs of beer. In answer to the judge he said that he would feel a lot of "burning sensation" just loading one keg into a cellar, but sometimes he would have to load 5 or 6.
33. Dr Pugh in his evidence was firmly of the view that the change in working practices in 1992 had caused the exacerbation of what was previously a "mild and controlled reflux". Because of that exacerbation the claimant should be advised to avoid lifting, bending and stooping. If the claimant had gone on carrying out his pre-1992 activities, Dr Pugh felt that the pattern of symptoms would have stayed the same. Simply being busier would not have caused the more severe symptoms. Although bending down and picking up a crate of 12 beer bottles could cause an episode of reflux by reason of straining, picking up a heavy keg of beer would require a much higher intra-abdominal pressure and therefore, in his opinion, although no one had researched the point, that would be more likely to cause GO Reflux.
34. Dr Smith's basic position, as confirmed in his evidence, was that the intermittent periods of heavy lifting would temporarily raise pressure in the stomach and might temporarily cause acid leakage into the oesophagus through a weak sphincter but that would be unlikely to produce severe damage to the oesophagus, so that if heavy lifting ceased there would be a return to normal of the oesophageal function. Therefore, once the claimant stopped heavy lifting, his condition would return to its 1991 state.
35. In cross-examination Dr Smith accepted that lifting a beer keg might make another episode of reflux more likely than if he had been lifting merely a crate of bottles. The lifting of kegs would make the pre-existing condition worse. For someone predisposed to that condition it would be exacerbated. Although it was possible that a chronic condition was caused by this heavier lifting it was unlikely clinically. There was, however, no other explanation than heavy lifting for the more severe symptoms between 1994 and 1997. Some sufferers from GO Reflux continued to experience their symptoms after ceasing of the risk factors, but many got better. The question was put to him in cross-examination:

"Well, isn't the reality of it that Mr Welsh is one of those who didn't get better. Isn't that just the long and the short of it? He was a susceptible individual, whose reflux is exacerbated, and he is one of those people who isn't going to get better. You are nodding. Does that mean that you agree with what I am suggesting?"

36. To this he replied:

"The only qualifications I would make, as has been pointed out before, that quite a few of his symptoms after he gave up work were not those of reflux."

37. But for the excessive lifting his symptoms would have stayed at the 1991 level, which did not interfere with his well-being or livelihood.
38. In answer to questions by the judge, Dr Smith said that, although there was no scientific answer to the question whether there would be a greater risk of GO Reflux from lifting an excessively heavy barrel than a crate of bottles, aggravation of the condition would tend to increase with increasing pressure.
39. While it was possible that some people might remain affected by serious symptoms after the risk factor represented by lifting heavy barrels had been removed, occupational studies had not been performed on people carrying out such activities.
40. It is submitted by Mr Blakesley on behalf of the defendant that the working practices required from the claimant after 1992 had other features in addition to the lifting of heavy kegs which on the evidence would be likely to have led to GO Reflux. These may be summarised as follows:

(i) the stocking by the defendant of crates of soft drinks in and after 1992;

(ii) the longer working hours and significantly increased workload;

(iii) numerous references in the evidence to bending and stooping having brought on reflux;

(iv) delivering not only beer, but also spirits, presumably in bottles.

41. Against that background, it was submitted, the judge's conclusion that "with the increase in workload there was going to be an increase in his reflux problems whether or not it included heavy kegs of beer" was entirely justified.

The Judgment

The judge's conclusion that (even if there had been no breach of duty, the claimant would still have been carrying out activities which would have caused him to suffer GO Reflux because his constitutional weakness was such that he was incapable of carrying out those duties without incurring quite severe reflux episodes) was clearly predicated on his assumption that the defendants' admission as to breach of duty extended only to the heavier beer kegs but not to the lighter ones and that accordingly there would be no breach of duty in requiring him to lift lighter beer kegs. In this assumption, he was clearly mistaken. As I have already indicated, the admission extended to all kegs.

42. Accordingly, the judge embarked upon a comparative exercise which was not relevant. What he ought to have investigated was whether the consequences of requiring the claimant to lift all kinds of beer kegs were:

(i) more severe and more frequent GO Reflux than he would have suffered if he had been required to carry out all the other activities except lifting such kegs; and

(ii) that he developed a continuing condition of increased vulnerability to GO Reflux which he would not otherwise have developed and which prevented him from working as a delivery driver doing work which did not involve such heavy lifting.

43. It was clearly open to the judge to conclude on the expert evidence that the requirement that the claimant should lift the heavier kegs of beer would have caused him more occurrences of reflux than would otherwise have occurred and of a greater severity. However, since it can be inferred that the lighter kegs were heavier than anything else that the claimant could properly be required to lift, including the crates of soft drinks, it can safely be concluded that the requirement to carry all kinds of kegs would have yet further increased the prevalence and severity of the reflux episodes over and above what he would have suffered if he had merely been required to carry out his other delivery activities. However, if one assumes a greater general work-load than he had sustained before 1992 and therefore an increased requirement for bending and lighter lifting, it is probable that he would have suffered a level of reflux episodes somewhat more frequent than before 1992. It is unlikely, however, on the expert evidence, that they could not have been sufficiently controlled and alleviated by ordinary off-the-shelf medication to enable him to carry on as a delivery driver.
44. Did the requirement to lift kegs of all kinds give rise to a continuing impairment of his ability to work as a delivery driver?
45. There are, in my judgment, strong grounds for inferring that the lifting of beer kegs, being that activity which imposed the greater pressure on the stomach muscles and therefore on the sphincter, was at the lowest a major factor in creating a continuing weakness in that area. Indeed, Dr Pugh and eventually Dr Smith were of the view that, but for the heavy keg lifting the claimant would have been in no worse condition than in 1991. It is therefore reasonable to infer that, given that as both expert witnesses accepted, the claimant was one of those people who do not improve after a period of exacerbation of GO Reflux, it was the additional activity of keg lifting which was the cause of the continuity of the symptoms and not the underlying increased frequency of less strenuous activity.

Conclusion

Accordingly, the weight of the evidence supports the claimant's case that the defendants' admitted breaches of duty caused him significantly more severe and more prevalent symptoms while employed by them and that those breaches of duty further caused permanent impairment of his ability to work as a delivery driver.

46. The claimant is therefore entitled to compensation in damages which reflects that conclusion.
47. Although in some cases it might have been appropriate to remit the question of damages to the trial judge, in this case, having regard to the additional cost of that course and to the measure of agreement between the parties, it is fair and sensible that this court should assess the damages as best it can on the available evidence.
48. The judge awarded general damages by reference to the pain and suffering attributable only to the requirement that the claimant should lift the heavier kegs. On that basis, only the "top slice" of the symptoms caused by carrying all kinds of kegs fell to be considered. That being the wrong basis of valuation, I would substitute for the judge's figure of £5,000, a figure of £8,500 for pain and suffering. This figure is slightly less than the claimant would have recovered but for his pre-existing gastric problems.
49. On behalf of the claimant, it is submitted that there should be a Smith v. Manchester award to compensate him for loss of future earning capacity caused by his continuing symptoms.
50. It is also submitted in relation to special damages:

(i) that the judge ought to have made an award for loss of past earnings and

(ii) that the judge should not have reduced the travel and expenses claim from £240 to £80.

(iii) that the judge should have made an award for loss of future earnings.

51. It is submitted on behalf of the defendants that the claimant is not entitled to any award for loss of future earning capacity or loss of earnings, past or future, because the exacerbation of his reflux symptoms did not cause him to lose his job or to fail to find a job paying an equivalent wage. What prevented him from finding an equivalent job was his lack of qualification. The defendants rely in particular on the evidence which he gave in cross-examination to the effect that his efforts to find jobs as well paid as his job with the defendants were unsuccessful due to his lack of qualifications and experience and not to his medical condition.
52. The claimant was wrongfully dismissed by the defendants in circumstances entirely unconnected with his medical condition. He then obtained various temporary jobs until he found his present job with timber merchants called Yandles. The jobs on offer both at job centres and elsewhere involved either qualifications or experience or both, which he did not have. His choice was limited by his inability to take on anything involving bending, stooping or lifting heavy weights. So the position in which he found himself following dismissal was that the range of work for which he could apply had been reduced by comparison with the range that he could have applied for prior to the permanent exacerbation of his symptoms. But the reduction was not due to his lack of qualifications or experience, which had always been a factor, but to his continuing medical condition which more seriously restricted the work he could do than the mildly symptomatic condition which he would have had but for the defendants' breaches of duty.
53. The following consequences result:

(i) The claimant is entitled to a Smith v. Manchester award as part of his general damages;

(ii) he is entitled to special damages for loss of past earnings and future earnings;

(iii) he is entitled to the full amount of his travel and medical expenses.

54. The appropriate quantification is as follows:

(1) Smith v. Manchester: £4,000, equivalent to 4 months wages.

(2) Special damages expenses: £240

(3) Special damages: loss of past earnings taking into account what he has earned from substitute employment and from his additional work for the Fire Service, in which he has been able to continue following his dismissal by the defendants. The quantification of the difference in wages to the date of the trial hearing having been agreed at £8,170, by extrapolation, the quantification to the present day is £9,730. However, recovery of the full amount of the difference would assume that, but for the relevant injury, he could have done work equivalent in all respects to that required by the defendants and as well paid, even though he had a mildly symptomatic GO Reflux condition. That assumption cannot be correct. Had he undertaken such a job in the condition that he would have been in by 1997, but for the defendants' breaches of duty, he would not have been able to hold it without seriously and permanently damaging his health. Accordingly, it is necessary to make some reduction in the differential to reflect that limitation on his earning capacity. There is a complete lack of evidence on this point, but as a matter of common sense and to assist the parties by avoiding remission of the issue to the judge, I would reduce the differential by one-third as representing a very broad estimate of the effect on his earning capacity of his consitutional condition. In the result the figure for loss of past earnings is £6,487.

(3) Special damages: loss of future earnings. The claimant is now 40. Assuming that he works until aged 65, the Ogden Tables multiplier discounted at 3% would be 17.67. The multiplicand is agreed to be quantified at £1,560. Having regard to the considerations already explained with regard to the need further to discount the loss of earnings by one third, I would quantify loss of future earnings at £18,378.

55. In summary, the claimant should be entitled to an award of damages comprised of:

General damages:

Pain and suffering £ 8,500

Smith v. Manchester £ 4,000 £12,500

Special damages:

Expenses £240

Loss of past earnings £ 6,487

Loss of future earnings £18,378 £25,105

Total £37,605

56. An appropriate sum for statutory interest should be agreed between the parties prior to the judgment hearing.
ORDER: 1. Appeal allowed. Order of His Honour Judge Jack QC dated 30 June 2000 set aside. 2. Judgment for the Claimant in the sum of £39.080 (inclusive of interest) 3. The Defendant do pay the Claimant's costs of the action (including the costs of the appeal) to be assessed in detail if not agreed. 4. There be a Legal Services Commission public funding assessment of the Claimant's costs. (Order does not form part of the approved Judgment)