England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY COURT
His Honour Judge Moore
DN005534

		Royal Courts of Justice Strand, London, WC2A 2LL
		10 May 2005

Lord Justice Neuberger:

Introduction

1. This is an appeal against an award of damages for personal injury made by His Honour Judge Moore in the Sheffield County Court. On 7th June 2004, he ordered the defendant, Rugby Joinery (UK) Limited, to pay the sum of £13,520 to the claimant, Mrs. Pamela Whitfield. This sum represented his assessment of the appropriate level of damages attributable to the defendant having negligently caused Mrs Whitfield, as its employee, to be exposed to excessive vibration, resulting in her contracting a condition known as vibration white finger ("VWF").
2. The appeal is brought by the defendant, who contends that the reasoning of the Judge is defective, and that the award of damages is too high. Viewed in the context of the costs of this particular case, the sum involved is not large. However, it presumably represents a significant amount of money to Mrs Whitfield, and the proceedings have been regarded as something of a test case, in that there are a significant number of similar claims brought by other former employees of the defendant. It was, at least in part, for this latter reason that Rix LJ granted the defendant permission to appeal.

The factual and procedural history

3. The defendant (a company previously known as John Carr Limited) operated a substantial joinery and woodworking business in various places in the north of England, including Doncaster. In August 1970, Mrs Whitfield started work at the defendant's Doncaster factory, and continued working there until December 1998. Her first job involved hammering nails into roof decks, and sometimes drilling holes for reception of bolts; this latter activity involved the use of an electric drill. After a year, she moved to fitting hinges onto windows, which required her to use an airgun and an automatic screw gun. In 1975, she moved to manufacturing door frames which also involved use of an airgun. In 1979 her job changed to putting large hinges on to fire doors, where she employed an old heavy airgun. Around 1990 she moved to the window line which involved beading and glazing, which activities required respectively the use of a nail gun and a mastic gun. That work, which she was carrying out until she left the defendant's employment, also put pressure on her fingers, in that she had to push rubber seals around the windows and shape the rubber with her fingers. All the tools to which I have referred vibrated while being used.
4. According to her witness statement made on 11th May 1999, a further statement she made on 2nd February 2002, and what she told the two medical experts instructed in the case (Mr. D. J. A. Scott MD FRCSEd FRCS on her behalf and Mr. R. Lindsay Doig ChM FRCS on behalf of the defendant), sometime between March 1993 and March 1994, Mrs. Whitfield noticed that she was suffering from outbreaks of coldness and numbness in the index finger of her left hand while using tools in the course of her employment.
5. Her symptoms became more marked thereafter, although the evidence before the Judge as to the progression of her condition was not very clear. However, at least according to what she told Mr. Doig, having initially been aware of coldness and numbness in the one finger, she subsequently noticed that finger also becoming white, and the coldness extending to the proximal interphalangeal joint crease, and similar symptoms, albeit less intense whiteness, in the middle and ring fingers of the same hand. She also subsequently noticed similar symptoms in the three equivalent fingers of the right hand, albeit less marked than on the left hand. Mr. Doig also recorded that Mrs Whitfield told him that the symptoms had improved somewhat since she ceased work in December 1998. Before Judge Moore, her evidence on the progress of her condition from the moment she noticed it was, although fairly brief, to much the same effect.
6. Those symptoms of intermittent episodes of pallor, tingling and numbness, which, in general, were precipitated in particular by the cold, had and continue to have practical consequences. Thus, according to Mrs Whitfield's evidence, it is difficult to sew, handle small coins, fasten buttons, put on jewellery, peel vegetables, and carry out other relatively intricate activities with her hands, and other activities, such as painting and decorating, or holding a relatively heavy book, have become uncomfortable or impractical.
7. The nature and progress of Mrs Whitfield's condition as so described appear to be classically characteristic of VWF, which was succinctly described by Wilson J in Doherty –v- Rugby Joinery (UK) Limited [2004] EWCA Civ 147 at paragraph 2, as being a "progressive disease which first manifests itself in episodic tingling or numbness of the fingers and can lead to painful and disabling vascular and sensorineural injury to the hands and arms". In more technical terms, Mrs Whitfield's condition was identified by Mr. Doig as being "Stage 2 on the Taylor-Pelmear Scale and 2R(3)/2L(3) vascular and 2SN neurological on the Stockholm Scale occasionally reaching 3SN if her fingers are cold".
8. Wilson J's description of VWF was in a judgment in the Court of Appeal, with which Auld and Hale LJJ agreed. It was on an appeal from an earlier decision of Judge Moore given 30 January 2003, following a hearing spread over 12 days. By that decision, Judge Moore dismissed claims brought by eight claimants, including Mrs. Whitfield, against the defendant, for damages for having contracted VWF in the course of their respective employments. The Court of Appeal reversed that decision in the case of four of the eight claimants ("the four claimants"), including, of course, Mrs. Whitfield.
9. As is clear from paragraph 34 of Wilson J's judgment, Judge Moore had dismissed the four claimants' claims on the basis that, in light of the research information and guidance which was available from about late 1991, and in particular a British Standard Guide published 30 October 1987, "Measurement and Evaluation of Human Exposure to Vibrations Transmitted to the Hand" (No.BS6842:1987), the defendant had so arranged things that each of the four claimants had not "worked with vibratory tools… for longer than the maximum period recommended by the Guide".
10. In paragraphs 35 and 36 of his judgment, Wilson J accepted the submission made on behalf of the four claimants that, in this connection, Judge Moore had approached the matter on too narrow a basis. In particular, in paragraph 36 Wilson J said this:

"[A]ll the [defendant's] employees should have been checked, i.e. asked questions designed to illicit the suffering of any symptoms of VMF, in the course of medical examinations conducted both in 1991/92 and periodically thereafter. But the duty to monitor does not end there. In that the duty is a matter of law, it is proper in this regard to reach for decided authority and in particular for the decision of this court in Armstrong –v- British Coal Corporation (No. 2), 31 July 1998, unreported. It was there held that… there was a duty to warn employees in the coal mining industry about the risk of developing VWF from vibratory tools, quite apart from the duty to check periodically upon any development of symptoms in the course of individual medical examinations."

11. In paragraphs 37 to 41 of his judgment, Wilson J went on to consider what would have happened if the defendant had complied with its duty to subject each of the four claimants to periodic medical examinations for symptoms of VWF, and to proffer them appropriate advice in connection with the risk after 1991/92. This was a difficult exercise because of the somewhat exiguous evidence on the topic. At paragraph 41, Wilson J said this:

"It seems to be inherently unlikely that the four [claimants] would have been so careless of their own health as to have failed to respond to warnings and enquiries, whatever their record in failing to volunteer details of their developing condition. These are not realms of fact, to be established by proof, because no such warning or enquiry was ever given or made. Because of the [defendant's] omissions in that respect, we are banished to the realms of speculation, informed of course by a careful analysis of the relevant past. In the absence of specific evidence justifying the conclusion that they would not have responded to warnings or enquiries, I think that the likelihood of the common sense reaction should be attributed to the four [claimants]. That approach is fortified by a study of the oral evidence given by the [defendant's] Health and Safety manager… Having explained that each employee was subject to an annual medical assessment, at which it would have been easy for the nurse to ask about symptoms of VWF, he agreed that the existence of VWF among the employees would thereby have very quickly come to light. Indeed, when the judge asked him whether an admission of symptoms of VWF might lead to an employee to be told that there was no appropriate work for her…, the manager replied that, at least by the 1990's there was work for employees which did not involve the use of vibratory tools and that no one would fear losing her job by virtue of such an admission."

12. In this connection, it is to be noted that all but one of the four claimants first noticed any symptoms of VWF before 1994 (see paragraph 33 of Wilson J's judgment).
13. Accordingly, the four claimants' claims, including that of Mrs Whitfield, were reinstated, and, indeed, judgment was given for each of the four claimants on liability, and their cases were sent back to Judge Moore to assess the quantum. It was pursuant to that decision of the Court of Appeal that the instant hearing before Judge Moore took place.

The judgment below

14. The hearing and the judgment of 7th June 2004 were concerned not only with the assessment of Mrs. Whitfield's damages, but also with that of another of the four claimants, a Mrs. Lister. The Judge summarised the effect of the Court of Appeal's decision in the following terms in paragraph 7 of his judgment:

"[I]f any of the employees were in fact exposed to vibration after the beginning of 1992, the defendant should reasonably have found that out, should reasonably have found that they were suffering from VWF, and should have prevented any further exposure."

15. He immediately went on to say this:

"It, of course, is a fact that once somebody's susceptibility to VWF has been triggered, it does not take a lot to make it worse."

16. In paragraph 9 of his judgment the Judge observed:

"[O]ne may have to make allowances for the fact that initial deterioration, for example, during 1992, might not necessarily mean that there was further exposure in 1992. It could be as a result of non-negligent exposure before the date of knowledge; in 1990 or 1991."

He reverted to that point at paragraph 20, where he referred to the fact that:

"established cases show … that the impact of non-negligent exposure does not switch off like a tap. The impact of the non-negligent exposure is a continuing thing, albeit continuing at a lower level."

17. The Judge then dealt with Mrs. Lister's case. At paragraph 18, he referred to her condition in so far as it was "caused by the non-negligent exposure", and described it as falling "within what the Judicial Studies Board calls the 'minor' category of VWF suffering". He then explained that it was agreed between the parties that, if she could attribute the whole of her VWF to the defendant, Mrs Lister would be entitled to £15,000 general damages and £850 special damages.
18. Mr. Limb, who appeared for the defendant, as he does before us, contended that the proportion of damages to be awarded to her should be £15,850 multiplied by a fraction, the numerator of which should be the number of years Mrs. Lister worked with vibratory tools after she had first noticed the symptoms of VMF, and the denominator of which should be the total number of years she had worked with vibratory tools. This was based on the proposition that, in the absence of any clear evidence to the contrary, it would be logical, or at least appropriate, to assume that each year of working with vibratory tools had contributed equally, or was just as likely to have contributed, to Mrs. Lister's condition, and that it was therefore appropriate to take as the numerator of the fraction the period of exposure during which the defendant was liable in light of the reasoning of the Court of Appeal.
19. The Judge rejected that approach in paragraph 23 of is judgment on the grounds that it was not "fair", and that it was "not reasonable, and it seems to me that it is not the way one should do it." He went on to say in paragraph 24 that:

"The proper way to do it is [that] … one looks at the picture, doing the best one can, as it would have been if there had only been the non-negligent exposure, and deduct that from the overall damages, the full liability damages. To put it another way, one is doing one's best to assess the amount by which the breach of duty made worse the existing condition, bearing in mind that some deterioration, some overlay, would follow through from the non-negligent exposure."

20. Judge Moore explained his view in different words in paragraph 27, on the basis that he was:

"To look at the overall picture and to assess, broadly speaking, the amount by which the tortfeasor has made the claimant's position worse."

21. In paragraph 28, he then concluded that "one-fifth… of [Mrs. Lister's] condition is referable to the non-tortious exposure" and that, accordingly, she was entitled to 80% of the £15,850. He went on to carry out what he called a "cross-check" of that figure in paragraph 30, where having pointed out that, ignoring the special damages, he had effectively reduced the £15,000 by £3000, he said this:

"If one looks at the bracket suggested by the Judicial Studies Board for minor VWF, it is £1,500 to £4,500. And so, in fact, my one-fifth reduction puts the valuation of the non-tortious exposure exactly in the middle of the Judicial Studies Board guidelines. I am therefore satisfied, with that cross check, that my assessment in her case is right."

22. The Judge then turned to Mrs. Whitfield's claim, and said that "she seemed a very genuine person" and that he accepted her evidence, the nature of which I have described. In paragraph 35, he then said this:

"Accordingly, two things follow. The first is that her condition got worse after the date of knowledge. The second thing is that they got better after she ceased work. Therefore, it seems to me that one can safely deduce- and I do find as a fact – that her employment after the date of knowledge was in breach of duty, in that she was exposed to some vibration which caused some worsening of her symptoms."

23. The same arguments of principle were advanced in relation to Mrs. Whitfield's cases as in relation to that of Mrs. Lister, and, at paragraph 36, the Judge went on to say that:

"All the matters I said of a general nature when summarising Mrs. Lister's claim are as appropriate for Mrs. Whitfield's claim."

24. In paragraph 37 he referred to the fact that, in Mrs. Whitfield's case, the general damages were also agreed at £15,000, but there was a slightly higher figure in relation to special damages, namely £1900. He considered that the same deduction was appropriate to that he had accorded in Mrs. Lister's case, and accordingly arrived at a figure of £13,520.

The approach of the Judge

25. I turn, then, to analyse the logical basis of the reasoning in the judgment below. In so doing, I will follow the Judge's approach in confining himself to the general damages, for which the agreed starting, or undiscounted, figure was £15,000, and ignoring the special damages, for which the agreed undiscounted figure was £1,900.
26. In light of the reasoning of the Court of Appeal in its earlier decision in these proceedings, as explained in the judgment of Wilson J, the first point to be considered is when the defendant should first have discovered symptoms of VWF, and should accordingly have warned Mrs. Whitfield of her condition, and the likely consequence of her continuing to work with vibrating tools. Given her evidence that she first noticed her symptoms between March 1993 and March 1994, it would seem to follow that the defendant would have discovered those symptoms, and given her the appropriate advice, sometime in 1994 at the latest.
27. The second point to be considered must be the identification of how far her VWF had progressed by the time that the defendant should have discovered it, and should accordingly have given her the appropriate advice. The symptoms of VWF at that stage (which I shall call "the first stage") could not be laid at the door of the defendant, because, in light of the reasoning of Wilson J, it was only after the onset of the first stage that the defendant should have done that which it did not do, namely to diagnose the VWF and to give Mrs. Whitfield appropriate advice. Accordingly, subject to one possible argument, the defendant cannot be liable for damages for the first stage, because, although it was suffered as a result of Mrs. Whitfield working with vibratory tools in the course of her employment with the defendant, the defendant was not negligent in relation thereto. In other words, the first stage was due to what the Judge characterised as "non-negligent exposure".
28. The third point which would, at any rate at first sight, seem to follow is that the deterioration in her condition suffered by Mrs. Whitfield beyond the first stage ("the second stage") was so suffered because she continued to work with the vibratory tools, when she would not have done so had the defendant discovered her VWF, and advised her not to continue working with vibratory tools, sometime in 1994. On the basis that she would have followed that advice (which the Court of Appeal was prepared to assume in its earlier decision, and which Judge Moore appears to have thought likely) it would follow (subject to the fourth point) that all the deterioration in Mrs. Whitfield's symptoms after 1994 should properly be the liability of the defendant. In other words (again subject to the fourth point), her damages should be assessed by deducting from the £15,000 the damages which would have been appropriate to compensate her for the first stage.
29. However, there is a fourth point which must also be taken into account. That is the possibility that Mrs Whitfield's condition would have deteriorated beyond the first stage, even if she had ceased working with vibratory tools in 1994, as, on the balance of probabilities, she would have done had the defendant not been negligent.
30. The fact that Mrs. Whitfield's condition could or would have deteriorated beyond the first stage, even if she had ceased working with vibratory tools in 1994 was not the subject of any specific evidence. The reports of Mr. Scott and Mr. Doig, following their respective interviews and examinations of Mrs. Whitfield, contained nothing about the likely progress of her condition beyond the first stage, if she had ceased to work with vibratory tools in 1994. Accordingly, it might be said that, in the absence of any relevant evidence in connection therewith, the Judge was entitled to proceed on the assumption that Mrs. Whitfield's condition would not have progressed beyond the first stage if she had ceased working with vibratory tools in 1994.
31. However, in the light of the documents and arguments before the Judge, I do not think that is a fair way of characterising the basis upon which the hearing of 7th June 2004 proceeded. No evidence was called, as the medical reports were apparently substantially agreed, and Mrs. Whitfield had given evidence, of which the Judge had a transcript, at the earlier hearing which led to the first Court of Appeal decision. The Judge was also referred to a number of earlier decisions concerned with claims against employers, by employees who had contracted VWF through working with vibratory tools in the course of their employment. Not unreasonably, but perhaps not entirely satisfactorily, the parties, and indeed the Judge, appear to have proceeded on the basis that findings in previous cases as to the nature and progress of VWF could be relied on in the present case.
32. Of particular importance in this connection is the judgment of Smith J in Allen –v- British Rail Engineering Limited, which was considered and upheld by the Court of Appeal at [2001] EWCA Civ 242. In paragraphs 6 and 7 of the judgment of the Court of Appeal, delivered by Schiemann LJ, a number of paragraphs of judgment of Smith J were quoted. As I understand it what she said in those paragraphs was largely agreed between the parties in that case, and, indeed, remains generally accepted as accurate today. In paragraph 9 of her judgment, having described VWF as "progressive", she explained that:

"Many months or years of vibration exposure may pass before any symptoms are noticed. This latent period varies according to the personal susceptibility of the workman and the vibration dose to which he is exposed. Typically, the initial signs are of transitory tingling or numbness. With more exposure, there will be episodes of blanching of the tips of one or more fingers….continued exposure to vibration may result in an increase in the number of digits affected and the affected area may increase until the whole finger goes white and numb during an attack. It appears that once this quite severe state has been reached, further deterioration does not occur. …Once these neurological changes have occurred, they never abate, even though exposure ceases. However, it is thought that some spontaneous improvement in the vascular symptoms may occur following cessation of exposure."

33. In paragraph 12 of her judgment, Smith J recorded that:

"It is also agreed that once exposure to vibration has ceased, any further deterioration which is going to occur will show itself within a year of cessation or possibly two years at the most."

The same point was touched on by His Honour Judge Stephenson in his judgment in Armstrong –v- British Coal Corporation (unreported, 30th September 1997), when he was dealing with one of the many claims before him, that of a Mr. Wright. He said this:

"His present physical condition is such that [I would assess] it in potential damage terms at £14,000, but I have to deduct a reasonable amount to represent the non-negligent damage, that is of the fact that he was at least on scale one in 1975 [the date when the employer in that case started to be negligent] and that the discomfort was likely to worsen at least somewhat due to earlier exposure."

34. Both Allen and Armstrong were cited on the behalf of the defendant in the present case to Judge Moore: indeed, in Mr Limb's relatively brief skeleton argument prepared for the hearing of 7th June 2004, passages were quoted from the judgments of both Smith J and Judge Stephenson. Furthermore, it appears clear from observations in his judgment, that Judge Moore accepted that he should not assess damages simply by taking the first stage as his unadjusted base, as it were. I have in mind the passages quoted above from paragraphs 9, 20 and 24 of the judgment.

The criticisms of the judgment

35. In this case, as in almost any case where only part of the claimant's medical condition can be attributed to the defendant's negligence, questions of causation and apportionment are difficult. The topic, albeit not in connection with VWF, was discussed by Mustill J in Thompson –v- Smiths Ship Repairers ( North Shields) Ltd [1984] QB 405 at 437-448, where he said this at 438D:

"The defendants as well as the plaintiffs are entitled to a just result. If we know… that a substantial part of the impairment took place before the defendants were in breach, why in fairness should they be made to pay for it? The fact that precise quantification is impossible should not alter the position… what justice does demand, to my mind, is that the courts should make the best estimate which it can, in the light of the evidence, making the fullest allowance in favour of the plaintiffs of the uncertainties known to be involved in any apportionment. In the end, notwithstanding all the care lavished on it by the scientists and by counsel I believe that it has to be regarded as a jury question, and I propose to approach it as such."

36. In Holtby –v- Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421, Stuart-Smith LJ approved the approach of Mustill J, and said this in paragraph 20:

"In reality I do not think that these cases should be determined on onus of proof. The question should be whether at the end of the day and on consideration of all the evidence the claimant has proved that the defendants are responsible for the whole or a quantifiable part of his disability. The question of quantification may be difficult and the court only has to do the best it can using its common sense…"

This approach was followed by Smith J, and approved by the Court of Appeal, in Allen.

37. There are, in effect, three criticisms which have been made of the judgment below, although the second may be said to have two components. The first two criticisms involve accepting the Judge's general approach to the assessment he was carrying out, but raise the contention that he did not, on analysis, conduct that approach properly. The third criticism involves a more radical attack on the Judge's approach.
38. The first criticism is that the Judge failed to take into account the possibility of any deterioration in Mrs. Whitfield's condition beyond the first stage if the defendant had not been negligent. In other words, the criticism is that the Judge overlooked what I have characterised as the fourth point, so that, in making the deduction of £3,000, the Judge assumed that, had the defendant not been negligent and Mrs. Whitfield had consequently ceased working with vibratory tools in 1994, her condition would neither have improved nor deteriorated.
39. Initially, I thought that the Judge had failed to take the fourth point into account. That was because the justification, expressed to be by way of "cross-check" in paragraph 30 of his judgment, for the deduction of £3,000 seemed to be referable to the first stage only. The Judge's reference to "minor VWF" in paragraph 30 seemed to me to tie in with his description and assessment of the first stage as he described it in paragraph 18 (and, although those passages were concerned with Mrs Lister, they seem to be equally applicable to Mrs Whitfield). (In this connection, I should add that, although the Judge referred to his approach in paragraph 30 as a "cross-check", it was, in fact, the only justification which he advanced for arriving at a reduction of £3,000, as opposed to some other figure, from the agreed figure of £15,000.) If that analysis was correct, the Judge's deduction of £3,000 would have been insufficient because it would have failed to take into account the deterioration which would have occurred in Mrs Whitfield's condition even if she had ceased working with vibratory tools.
40. However, I have reached the conclusion that the Judge did not, in fact, make this error, and that he did take into account the fourth point as I have called it. I arrive at that conclusion as a result of three factors, which to some extent inter-relate. First, the Judge clearly had well in mind the fact that the reduction of the £15,000 should take into account not merely the first stage, but also something on account of the fact that deterioration beyond the first stage could well have occurred anyway – see the passages in paragraphs 9, 20 and 24 of the judgment. While it is obviously possible for the Judge to have overlooked this point when assessing the reduction in paragraphs 28 to 30, he is inherently unlikely to have done so.
41. Secondly, he had no evidence, expert or otherwise, as to the likely extent of any such further inevitable deterioration. Therefore, the absence of any analysis in the judgment of the impact of this aspect on the quantum of damages, if it was taken into account, is not remarkable. Even in cases where there is expert evidence on this issue, the Judge's task is difficult enough, as is clear from the judicial observations cited above. The exercise of arriving at the appropriate deduction involved two steps. The first was to assess the first stage, i.e. the state to which the VWF had actually progressed when it should have been discovered by the defendant, as to which there was evidence. The second step was to assess the likely degree of inevitable deterioration from that stage, where the Judge had to rely on what little could be gleaned from the authorities and his own impression.
42. Thirdly, the fact that the word "minor" was used to describe the first stage, in paragraph 18 does not necessarily mean that the use of the same word in paragraph 30 was intended to describe precisely the same stage of VWF. That point is reinforced by the relatively broad band of damages for minor VWF referred to in that latter paragraph, namely £1,500 to £4,500. The judgment can fairly be interpreted as saying, for instance, that the first stage was, as it were, at around the £1,500 (or £2,000) level, and the inevitable deterioration was taken into account in the balance of £1,500 (or £1,000), thereby justifying the Judge's overall deduction of £3,0000.
43. I appreciate that the Judge was faced with what was always going to be a difficult problem, which was rendered harder owing to the way in which the claims had proceeded and the paucity (indeed, absence) of evidence on the topic of inevitable deterioration. Nonetheless, it would have been much better if the Judge had spelt out his reasoning more clearly to explain how he arrived at the £3,000 deduction. However, given that his judgment can fairly be read as having the effect I have just described, it should, in my opinion, be interpreted in that way. Where a judgment can fairly be construed as being right in law, then it seems to me that one should not strain to interpret it in some other way.
44. The second criticism advanced of the Judge's deduction of £3,000 is that it was too small a deduction on the basis of Mrs Whitfield's evidence, and anyway the Judge ought not to have accepted her case as to the time when she first noticed symptoms of what turned out to be VWF, and as to the state and progress of her symptoms from about 1992. The Judge's conclusions on these issues cannot, in my judgment, be faulted.
45. So far as the acceptance of Mrs. Whitfield's evidence is concerned, she said that she had first noticed the symptoms on the index finger of her left hand between March 1992 and March 1993, and the Judge found her to be an honest witness. Further, her evidence was entirely consistent with what she was recorded as having told Mr. Doig, according to his report.
46. Although Mr. Limb is right to say that Mrs. Whitfield's evidence as to the precise progression of the disease from its inception was pretty unspecific, I do not consider that this can fairly give rise to a criticism of the Judge's approach or conclusion. It is scarcely surprising that Mrs. Whitfield could not recall the precise progression of the VWF from its onset. Indeed, it is rather unattractive for the defendant to criticise her for that, bearing in mind that it was through their negligence that she was put in the position of having to recollect how the disease had progressed. The defendant should have been vigilant to check whether Mrs. Whitfield and other employees were suffering from any VWF symptoms, and to warn them of the risks as soon as they were found to be so suffering. Accordingly, particularly in light of his acceptance of her evidence, it appears to me that the Judge was entitled to proceed on the basis that the first stage did indeed involve symptoms affecting no more than one of Mrs. Whitfield's fingers.
47. As to the contention that £3,000 was too small a deduction, I accept that other Judges might have made a greater deduction, but I do not see any real basis for contending that the reduction of £3,000 was outside the acceptable margin. The Judge was entitled to conclude that the first stage was relatively mild; indeed, he was virtually bound to do so having accepted Mrs Whitfield's evidence. He was also entitled to conclude, especially in the absence of any expert evidence whatever on the subject, that the subsequent inevitable deterioration would have been relatively slight. Further, he was plainly entitled to have regard to the valuable guidance given by the Judicial Studies Board. As I have already suggested, in the light of those factors, the deduction of £3,000 cannot be criticised, although it is regrettable that the Judge did not spell out more clearly how he arrived at that figure.
48. Finally, the defendant fundamentally challenges the approach adopted by the Judge. Mr. Limb argues for the same method of assessment as he advanced below, and was described in paragraph 21 of the judgment. His contention, therefore, is that the Judge should have multiplied the £15,000 by a fraction of which the numerator is the number of years Mrs Whitfield was negligently exposed to vibration, and the denominator the total number of years she was so exposed.
49. It is true that this sort of time-based apportionment was adopted in Allen. However, there is often more than one way to assess damages: different approaches may be appropriate in different cases, and in many cases more than one approach may be appropriate.
50. Further, the exercise which had to be carried out in Allen was significantly more complex than that in this case. It did not simply involve, as in this case, a period of non-negligent exposure followed by a period of negligent exposure. While he suffered an initial period of non-negligent exposure, the plaintiff in Allen would, according to Smith J, have been exposed to a significant (albeit lesser) degree of vibration during the negligent period even if the employer had not been negligent. Furthermore, Smith J did not, in any event, think a straight line apportionment, as suggested on behalf of the defendant here, was appropriate. In paragraph 61 of her judgment, she said this:

"I do not apportion damages on a straight line basis because damages should reflect the onset and progress of disability as well as actual damage. I give greater weight to the exposure after symptoms had begun than to the early exposure."

51. In assessing the damages to award Mr. Wright in Armstrong, it seems to me clear that Judge Stephenson did not apportion on a time basis. He approached the matter substantially in the same way as Judge Moore in this case, albeit that he made it rather clearer that he was making an allowance (although he did not quantify it) for the deterioration, which would have been suffered by Mr Wright in any event, from what I have called the first stage.
52. In the present case, I do not think Judge Moore could have been criticised if he had adopted an apportionment of the £15,000 by reference to the time basis. However, at least in the light of the argument, evidence and cases put before us, I am firmly of the opinion that a straight line apportionment, as contended for by Mr. Limb would have been plainly unmaintainable. It would have been grossly unfair on Mrs. Whitfield. It would have resulted in a discount of about 80%, as opposed to the 20% the Judge deducted. Such a very large deduction would appear to me wholly to overlook the fact that, for a very substantial time, Mrs Whitfield had worked with vibratory tools without any apparent ill effect at all. It appears clear from the observations of Smith J in Allen that the longest period of delay in the appearance of symptoms of VWF is two years. Accordingly, on the evidence in this case, it seems impossible to argue against the proposition that, if Mrs. Whitfield had ceased working with vibratory tools by the end of 1990, she would not have suffered any VWF, because her symptoms only started appearing, at the earliest, in March 1993.
53. I accept, of course, that it can fairly be said that the effect of working with vibratory tools since 1970 finally caught up with Mrs. Whitfield around 1993, and that all her previous 23 years work with vibratory tools contributed to the VWF of which symptoms first appeared in that year. However, I do not think that that is by any means a complete answer to the point. For the reasons I have given, and for those given by Smith J in paragraph 61 of her judgment in Allen, it appears to me that it would be quite unrealistic if the earlier years were given the same weight as the later years, and in particular if they were given the same weight as the years between 1993 and 1998.
54. However, that is all academic, as the Judge was, in my clear opinion, entitled to adopt the approach which he took, rather than making a time-based apportionment as argued for by Mr Limb. His approach did have the disadvantage in the present case that it involved making little more than a guess about the likely degree of inevitable deterioration beyond the first stage. However, Mr Limb's approach would have involved assessments which would have been equally hard to make in light of the paucity of expert evidence, such as how to "weight" the effect of later years as against that of earlier years.

Conclusion

55. In these circumstances, it follows that the appeal must, in my judgment, be dismissed. However, particularly as these proceedings have been regarded as something of a test case, it seems to me right to add one or two comments with regard to the future conduct of claims against employers for damages in respect of VWF suffered by their employees.
56. In relation to such cases, it seems to me that those advising and acting for the parties on each side should be alive to the issue which has, to my mind, caused the principal difficulty in the present case. That difficulty arises from the fact that, once the symptoms of VWF manifest themselves, there will very probably be a deterioration in the employee's condition, even if he or she ceases working with vibratory tools. Accordingly, those advising should, when seeking expert medical advice and evidence in connection with a claim, alert their medical experts to the point, so as to give them the opportunity, without incurring undue expense, to consider the probabilities by reference to the phenomenon identified by Smith J in Allen as referred to in paragraph 32 above.
57. If one or other of the medical advisors considers that the phenomenon would or may apply, then it should be identified in their report, with their best assessment of its likelihood and extent. Otherwise, if the matter proceeds to a hearing, then there is a substantial risk of misunderstanding or error, with the inevitable concomitant implications of cost and delay, if this course is not taken.
58. Quite apart from this, particularly bearing in mind that VWF involve relatively small amounts of money (when compared with the likely level of costs involved) it is highly desirable that claims such as these be settled rather than litigated, and, indeed, settled at an early stage.

Lord Justice Judge

59. I agree.

Lord Justice Auld

60. I also agree.

ORDER: Appeal dismissed. The costs of the appeal be paid by the Appellant, such costs to be subject to detailed assessment if not agreed.

(Order does not form part of approved judgment)