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 HIGH COURT
PRESTON COUNTY COURT
(HIS HONOUR JUDGE APPLETON)

		Royal Courts of Justice Strand London, WC2 Thursday, 14 November 2002

Thursday, 14 November 2002

1. THE PRESIDENT: Lord Justice Scott Baker will give the first judgment.
2. LORD JUSTICE SCOTT BAKER: This is an appeal by Ronald Gardener, against a damages award by Judge Appleton in the Preston County Court on 31 May 2002. On 20 November 1997 the appellant suffered an accident when employed by the respondents at their slaughter house in Coopers Blackpool. His right shoulder was injured when he tried to get out of the way of a bull that was awaiting slaughter.
3. The judge made a total award of £15,939.08, inclusive of interest, which comprises £6,500 general damages for pain, suffering and loss of amenities, and various items of special damage. No complaint is made about that. The sole issue on the appeal is whether any award should have been made for future loss of earnings occasioned by acceleration of retirement, or, putting it slightly differently, by being at a disadvantage on the labour market.
4. Potter LJ, in granting permission to appeal said:

"The grant of leave depends upon the proper interpretation of the agreed medical evidence. I see force in the appellant's submissions, but they appear unduly optimistic on quantum."

5. The facts of the case shortly are these. The appellant was aged 54 at the time of the accident. He had spent more or less the whole of his working life in the meat industry, and was a foreman in the slaughter house where the accident happened.
6. Two orthopaedic surgeons produced reports. Mr Burton, for the appellant, and Mr Shaw, for the respondent. The medical evidence was agreed and indeed there was a joint report and a supplementary joint report from the doctors, to which I shall come in due course.
7. Following the accident the appellant thought little of it at first, but through the afternoon he experienced increasing pain and stiffness in his right shoulder. He attended the Accident and Emergency Department of the local hospital and rested for a period of some two weeks. Increasing pain caused him to go and see his general practitioner. He had injections into his right shoulder, and these and physiotherapy gave him but temporary benefit. He underwent MRI scans. His shoulder was eventually operated on, but not until January 2000, that is over two years after the accident. The surgeon discovered a tear in the rotator cuff that had been causing the symptoms over the previous two years. This was repaired. Also a decompression was carried out. A decompression had incidentally been performed on the left shoulder some years before and that was quite independently of any accident.
8. After the operation the appellant was off work and had to keep his arm in a sling. There were problems which were unfortunate and these included having to be readmitted to hospital with an infection. He later underwent a manipulation under anaesthetic. The surgeon warned him that he might not be able to return to his pre-accident job. The appellant was determined to do so and indeed paid privately for psychotherapy in order to help recover his strength. The costs of that psychotherapy is one of the items of special damage.
9. In the result, four and a half months after the operation at the end of May 2000 he went back to work, but he was unable to perform any functions at work with his arm above waist level. He managed to cope but only because he was the foreman. He continued to work from the end of May 2000 until 27 July 2001, when he was made redundant. 27 July 2001, it should be noted, was some three years and eight months after the accident. But the redundancy had nothing to do with the accident or indeed anything to do with the appellant's physical condition; it was because of the recession in the meat industry following the foot and mouth outbreak. His employer, the respondent, had gone into receivership.
10. The appellant looked for another job. But he was 57, rising 58, and his lifetime experience was in the meat industry. Finding a job was not easy especially as his lack of upper body strength in the right arm and shoulder area meant that he could not perform all the ordinary duties of a slaughterman.
11. He applied for a job as a slaughterman with Valley Fresh Products Limited, but unfortunately failed the physical test because his right shoulder was not strong enough. Interestingly, in his statement of evidence just two weeks before he was made redundant, he said this:

"I am only able to continue working for R P Winder as, in my position as foreman I am able to delegate duties. I would be unable to undertake the job of slaughterman at another abattoir as I would be incapable of carrying out all the duties required due to the lack of strength in my right shoulder and arm."

12. He did, however, obtain a temporary job with DEFRA from October until December 2001, which involved blood testing sheep.
13. In a further witness statement made in March 2002 he said:

"I was extremely disheartened by the fact that I was unable to cope with slaughtering in a more modern environment. I realise that I will now have to look in other directions for permanent employment. My prospects within the employment market are going to be severely limited as I cannot lift properly and cannot use my arm to work above shoulder height. I also find driving difficult where longer distances are involved."

14. At the trial the appellant told the judge that he was still looking for work, hopeful that he might find something appropriate in the slaughter industry; but to this day he has been unable to find any further employment, whether in the slaughter industry or elsewhere.
15. The appellant's case was and is that the injury to his right shoulder has caused him financial loss in (1) forcing him into early retirement; and (2) making it more difficult to find employment in the meat industry. The judge rejected this aspect of his claim on the ground that he already had a vulnerable right shoulder and his accident was responsible for no more than accelerating the inevitable by 27 months.
16. It is necessary to look at the medical evidence which, as I have said, was agreed, and to see chronologically how the agreement came about. The two experts, having been required to discuss their differences helpfully produce a number of points of agreement. Neither gave oral evidence at the trial.
17. Mr Shaw, on behalf of the respondents, reported on 21 September 1999, which was some two years after the accident but before the appellant's operation, that he could not see why the appellant could not continue his present occupation until normal retirement age. Two months later, on 10 November 1999, Mr Shaw reported that the appellant would have developed similar symptoms anyway within 18 months of the injury if the injury had not occurred. The operation was in January 2000 and he went back to work in May 2000.
18. On 4 January 2001 his orthopaedic expert, Mr Burton, reported: (1) that the appellant would have had problems by November 2000 in work when working above shoulder height, that is within three years of the accident; (2) that he would have been at a disadvantage on the labour market by the year 2000 in the absence of the accident; (3) that provided he avoided work above shoulder height he could go on working until he was 60; and (4) that retiring from work as a slaughterman had probably been brought forward by three years.
19. Further information was provided to Mr Shaw and he reported again on 22 May 2001 and 6 June 2001 that he had no reason to change his previous opinion.
20. The next event was the appellant's redundancy, on 27 July. It was four days later, on 31 July, that Mr Burton and Mr Shaw produced their eight heads of agreement. It seems pretty clear from all the material that they were unaware at that time that the appellant had been made redundant and continued to be unaware of that fact for some time thereafter. The areas of agreement are described as follows:

"1. We both agree that Mr Gardner sustained a soft tissue injury to the right shoulder in an accident at work as a slaughterman in Blackpool on 20th November 1997.

2. We both agree that the injury consisted of a contusion of the right shoulder with a tear of the rotator cuff muscles.

3. We both agree that, despite Mr Gardner's assertion to the contrary, Mr Gardner has had significant problems with his right shoulder which pre-date the accident.

4. We both agree, taking into account the nature of this gentleman's occupation, and his pre-existing constitutional problem with the shoulder, that Mr Gardner would have gone on to develop such symptoms as he describes after the accident, in the absence of any injury.

5. We both agree that the accident has brought forward symptoms, which he would undoubtedly have suffered from.

6. We both agree that the period of acceleration is in the order of 18 to 36 months following the date of the accident.

7. We both agree that the accident has disadvantaged Mr Gardner on the open labour market for this timescale and that this disadvantage would have inevitably have developed in the absence of an accident, by the end of this timescale.

8. We both agree that, as a result of the accident, it was reasonable for him to take time off work and that this time off work would have been inevitable, within the timescale outlined above, in the absence of an accident."

- and then underneath.

"Areas of Disagreement.

There are no significant areas of disagreement between us."

21. Mr Burton reported again on 19 September. That was in response to a letter from the appellant's solicitors of 10 September, in which they had asked for clarification of his opinion and the joint report. They said this:

"We note from the joint report that you and Mr Shaw agreed that the period of acceleration is in the order of 18 to 36 months following the date of the accident. As you were aware the accident took place on 20 November 1997 when our client was aged 54. His intention was to retire at age 65. We further note from your report, dated 4th January 2001 at page 7, that you were of the opinion that on the balance of probabilities his retirement from work as a slaughterman has been brought forward by three years. Please explain what you mean by this, as it appears to be inconsistent from the joint report with Mr Shaw."

22. Mr Burton's reply in his letter of 19 September can be summarised in the following terms. Constitutional degeneration within the rotator cuff at the right shoulder has been accelerated by three years; secondly, if he could avoid overhead work he could stay at work until 60; thirdly natural progression of degenerative change would have constrained his ability to work apart from accident; 4. Absent the accident he could have stayed at work until the age of 63, but because of the accident he has to retire three years earlier at 60. He concluded with these words:

"In the joint report, we agree there has been an element of acceleration of pre-existing constitutional problems. I favour three years of acceleration, Mr Shaw eighteen months, our joint view remains that Mr Gardner would have encountered increasing problems with the right shoulder by November 2000 or May [1999] without the accident.

We appreciate the progressive nature of degeneration and, in the timescale, on the balance of probabilities his enforced retirement has been brought forward."

23. On 9th October 2001 there was a supplementary joint report from the two doctors. It said this:

"Mr Burton and Mr Shaw are agreed that on the balance of probabilities, Mr Gardner will be required to retire from his work because of symptoms at the right shoulder. His [retirement] will be brought forward by between 18 and 36 months due to the shoulder injury."

24. In order to complete the picture I refer to Mr Shaw's response to the respondent's solicitors on 26 April 2002, when he said he had revisited his file and his memory of the discussion that he had with Mr Burton, and he said:

"As I understood it, it was our opinion that the claimant's retirement would be brought forward by between 18 and 36 months due to the shoulder injury.

By this we mean retirement from work as a slaughterman. He is fit to perform work of a lighter nature."

25. It is not clear there when, if ever, the doctors were told that the appellant had in fact been made redundant for reasons quite independent of his injury or degenerative condition.
26. It should be noted that on the face of it it is curious that the doctors are saying two quite separate things. One, that the accident had accelerated the degenerative condition by between 18 and 36 months. Both counsel and the judge took the mid-point of 27 months. So the agreed position was that after 27 months his condition was no different as a result of the accident from what it would have been in if he had never had the accident. The experts also say that they have the same disagreement of between 18 and 36 months in relation to the bringing forward of the claimant's retirement. That suggests to me either that this was a remarkable coincidence or that there has been some confused thought on the part of the doctors as a result of the appellant's solicitors pursuing further questions following the original agreed eight points.
27. If the effect of the accident had run its course, as the agreed evidence suggests within a specific time (27 months) after the accident, it is difficult to see how it could have any bearing on his projected retirement date.
28. In summary, the position therefore seems to me to be this. Prior to the accident the appellant had a vulnerable right shoulder that had been symptom-free for some time. Unfortunately, however, the accident lit up the pre-existing problem. The doctors both say that it was only a matter of time before the appellant had similar problems with his right shoulder, in the absence of the accident. Mr Shaw says 18 months: Mr Burton says three years. As I have mentioned the judge, with counsels' concurrence, sensibly split the difference and took the figure of 27 months.
29. The accident was only relevant, therefore, for the first 27 months after it had occurred. From then on the appellant's physical condition would have been just the same even if he never had the altercation with the bull. 27 months after November 1997 is February 2000. The appellant's loss of employment occurred quite independently of the accident and quite independently of his physical condition; and it occurred well over three years after the accident.
30. The doctors' view about the appellant's retirement was clearly, in my judgment, expressed in the context that the appellant was continuing to work as a slaughterman, something that he could only do if he was able to avoid overhead work. The necessity to avoid overhead work was occasioned not by the accident, but by his underlying condition. The effect of the accident was that on the findings of the experts it had shot its bolt 27 months after it had occurred.
31. It is difficult, as I have said, to see how Mr Burton's conclusion that if he could avoid overhead work he could continue to the age of 60, but that in the absence of the accident he would have worked until 63, lies with the joint conclusion that the symptoms he would undoubtedly have suffered have been accelerated by 18 months to three years. In my judgment the most likely explanation for this inconsistency between the experts' original eight points, and in particular point 7, and their supplementary view about retirement, is that they were misled by the additional request from the appellant's solicitors and did not think the matter through sufficiently carefully.
32. Be that as it may, it was a matter for the judge to interpret the agreed medical evidence and the early retirement point is only relevant, in my judgment, in the context that the appellant is either continuing to work as a slaughterman, avoiding overhead work, or is able to get other work as a slaughterman of an identical nature. What happened here was that the appellant was made redundant by a, presumably, previously sympathetic employer who had kept him on in his foreman capacity, and it really looks that there is no realistic possibility of the appellant finding a similar job in which he can avoid overhead work.
33. Nevertheless, Mr Lemmy, on his behalf, submits that this case should be approached on the basis that there is a chance that he will find similar work, however small, and that on the literal interpretation of what the doctors said in their supplementary report, if he finds work of the appropriate kind he will be required to retire early, due to the accident, as opposed to the degenerative condition, and that that should be assessed in damages.
34. The judge referred to the well-known case of Smith v Manchester Corporation, pointing out that those who are at a disadvantage on the labour market can be compensated. Those who, as a result of their injuries are at risk of losing their employment and being unable to obtain comparable employment are entitled to compensation, as are those who, for some reason, are not working at the time of the accident but because of it are disadvantaged in the type of work open to them.
35. But this case, in my judgment, falls into neither category. The appellant's fundamental difficulty is that the effect of the accident as set out in the agreed evidence, the original eight points, had run its course after 27 months (that figure the compromise between 18 months and three years).
36. The appellant's subsequent difficulties cannot, in the light of those eight points of agreement be attributed to the accident - only to the pre-existing condition. On the evidence, if the appellant had never had the accident he would still be in exactly the same position today that he is in having had the accident. The learned judge looked carefully at the medical evidence. In my judgment he put his finger on the point when he referred to point 7 of the joint report, which I have read. I repeat it:

"We both agree that the accident has disadvantaged Mr Gardner on the open labour market for this timescale"

- that is 18 months to three years equals 27 months -

"and that this disadvantage would have inevitably have developed in the absence of an accident, by the end of this timescale."

That paragraph has of course to be read in the context of the three previous paragraphs.

37. Thus it is plain that the appellant would in any event have gone on to develop the same symptoms he described and that the position would have been no different from 27 months following the accident onwards.
38. Mr Lemmy submits that there is, however, no inconsistency between the original eight points and the supplementary agreement that his retirement will be brought forward by between 18 and 36 months due to the shoulder injury. I cannot accept this submission.
39. In the first place there is absolutely no explanation by the doctors as to why this at least apparent inconsistency with the earlier eight points is justified in medical terms. I am satisfied that there was here material that left the judge to make what he would of it, and in my judgment the judge was perfectly entitled to base his judgment on the original eight points of agreement and to discount the subsequent joint report of 9 October which, on the face of it, was completely inconsistent with what the doctors had already said.
40. Of course, one way in which the matter might have been resolved would have been for the judge to have adjourned the case and required the doctors to attend; but in my judgment that would have been a disproportionately costly exercise to have undertaken where, on the face of it, the doctors had produced a clear agreement as to how they saw the case.
41. One cannot but feel sympathy for the appellant. Becoming redundant in the meat industry during the foot and mouth crisis at the age of 57 inevitably presented him with grave difficulties; but unfortunately for him his resulting financial loss cannot, in my judgment, in any way be attributed to the accident that he suffered through the respondent's negligence in November 1997.
42. I would accordingly, therefore, dismiss the appeal.
43. THE PRESIDENT: I agree that the appeal should be dismissed and with the judgment of my Lord.
(Appeal dismissed; cost of appeal to be paid by the appellant).