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 THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Collins)

		Royal Courts of Justice Strand London WC2A 2LL Friday, 6th September 2002

Friday, 6th September 2002

1. LORD JUSTICE TUCKEY: This is an application by the claimant in these proceedings, Wayne Evans, for permission to appeal from a judgment of His Honour Judge Collins given in the Central London County Court in this personal injury claim. The applicant was employed by the defendant as a kitchen porter at the Selfridges Hotel between May 1990 and February 1998. His job involved carrying crockery to and from dishwashers. He alleged that he had been required to carry excessive weights, because of the number of plates being used in the hotel, as a result of which his back had been injured and he had not been able to work since leaving the defendant's employment. The judge found that the claimant was an unreliable witness because he had exaggerated the number of plates he had to carry. Nevertheless, he found that the defendants were in breach of their statutory duty under the Manual Handling Operations Regulations 1992. His reasons for this conclusion were:

"... first of all, in not examining the risk attached to what was being done; secondly, to take account of the possibility that somebody in Mr. Evans' position might fail to take common sense steps to protect themselves by limiting what they carried and warning Mr. Evans of the dangers of carrying too much crockery at a time and providing some kind of instruction or system for dealing with the crockery which would have made it easier to manage: either a sorting system or some simple manual aids."

2. The judge, however, went on to find the applicant 60% to blame. He had been told on a number of occasions not to carry so many plates. The judge said:

"... I can see no reason why the claimant, who is far from an unintelligent person, was not able to say, `It's too much for me to carry this load of plates. I will divide it into two and do two trips.'"

3. There was a substantial issue about whether the back problem, which the claimant had suffered since 1996, had been caused by the breach which the judge found. The claimant, who is 36 and 5 feet 11 inches tall, weighs 17 stone and stands with a poor posture. After considering the agreed medical evidence, the judge concluded that the applicant had a vulnerable back where symptoms were very likely to occur sooner or later in any event. However, he concluded that the symptoms which he suffered had been precipitated by lifting and carrying plates, so causation was established.
4. He awarded £7,500 as general damages for pain and suffering and loss of earnings, on the basis that the applicant was fit to return to light work in September 1999. The applicant had not taken any steps to obtain work, contending that the doctors were wrong to say that he was fit for such work, but the judge accepted what the doctors said. If the applicant had taken light work there was no evidence that he would have suffered any loss.
5. The applicant's complaint in his notice of appeal is that the trial, at which he represented himself although at an earlier stage he had solicitors and counsel, was unfair. In support of this assertion he says that a number of witnesses lied and that the judge, although apparently sympathetic to him, had in the end made an award of damages which was far too little.
6. In my judgment there is nothing in the complaint of unfairness. The fact that the applicant lost the case does not mean that the trial was unfair. His real complaint is that he lost the case.
7. In the notice of appeal and in his submissions to me this morning the applicant says, first, that the judge should not have found him 60% to blame, because if the defendants had provided him with a trolley in the kitchen he would not have suffered any injury at all. The judge was wrong, therefore, to find him so much to blame for what happened. That is obviously a matter which was considered by the judge. The judge took account of the fact that the defendants could and should have provided the applicant with what he describes as manual aids, by which I assume he means a trolley or something like that. But nevertheless, he said, it ought to have been obvious to the applicant, if it was the case, that he was imposing unnecessary strain on his back, and he could have regulated the way he did his work by not carrying so much at a time. That sort of question is pre-eminently a question for the trial judge to consider when he looks at and evaluates all the evidence he has heard. It is not a question which this court will consider on appeal because we are not in as good a position as the judge. I can see no basis upon which this court could interfere with the judge's decision that the applicant was 60% to blame for his injury.
8. On the question of the amount of damages, the applicant simply asserts that, whilst he may be fit for light work, there is no light work available for him because he is uneducated and the only job he knows is the job he was doing for the defendants. That was not light work and he would not be fit to return to it. The judge should not therefore have limited the award of damages in the way that he did. Again, I am afraid that is slap bang in the province of the fact-finding tribunal -- in this case the judge -- and his finding that the applicant was fit for light work and that had he chosen (and apparently he has not) to look for such work it would have been available and, had he taken it, he would not have suffered any loss is a conclusion again with which this court cannot interfere.
9. I feel sorry for the applicant because he obviously feels that as a result of his work for many years for the defendants he has been left in a position where, as he says, he cannot survive. He has six children to support and no job from which to provide that support. But, I am afraid, sympathetic though I am, I can see absolutely no basis for an appeal from the judge's decision. I must therefore refuse the applicant permission to appeal.
Order: Application refused.