England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
His Honour Judge Gosnell
90L03967

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/04/2015

Lord Justice Tomlinson:

1. Between 1986 and 2004 the Claimant/Respondent Mr Andrew Procter worked as a miner at various collieries in Yorkshire. As a result of using vibratory tools he developed Vibration White Finger ("VWF"), a form of Hand Arm Vibration Syndrome. In January 2000 he instructed the Defendant/Appellant firm Raleys, solicitors practising in Barnsley, to pursue on his behalf a claim for damages as a result of developing this condition.
2. As is well known, the Department for Trade and Industry ("DTI") in 1999 set up a compensation scheme ("the Scheme") to provide tariff-based compensation to miners who had been exposed to vibration and in consequence suffered from VWF. Mr Procter was entitled to claim under the Scheme.
3. The Scheme was administered for the DTI by IRISC Claims Management ("IRISC") in accordance with the terms of a Claims Handling Arrangement ("CHA") dated 22 January 1999 and amended from time to time. The CHA was an agreement between IRISC and firms of solicitors, including Raleys, who belonged to the VWF Litigation Solicitors Group ("VWFLSG"). Raleys held themselves out as possessing the necessary expertise to handle miners' claims for compensation and handled many thousands of such claims.
4. With Raleys' assistance Mr Procter pursued a claim for compensation against his former employers under the Scheme. His former employers were British Coal, successors in title to the National Coal Board, for which the DTI had assumed responsibility, and UK Coal Mining Limited, successor in title to RJB Mining Limited, both of whom participated in the Scheme. On 17 November 2003 Mr Procter agreed to settle his claim against both previous employers for the sum of £11,141 including interest. This sum was paid in settlement of his claims for general damages, conventionally pain, suffering and loss of amenity, and for handicap on the labour market. He made no claim for either loss of earnings or for what has been called "services", ie. assistance with domestic tasks rendered necessary as a consequence of his disability. This litigation is concerned with his entitlement to compensation under the rubric "services", and with the question whether Raleys properly advised him about that entitlement.
5. Mr Procter says that, if Raleys had properly advised him about the nature of the Scheme so far as it related to services, and about the claim which was in consequence open to him in the light of his circumstances, he would have made a claim under this head and could have recovered an additional £11,079.42. That is a very significant sum in context since it would have resulted in the doubling of his compensation. Mr Procter claimed it as damages arising from Raleys' negligence.
6. Raleys' case at trial was that Mr Procter was properly advised and that he failed to tell them that he had any need for such services as a result of his developing VWF. Raleys' case at trial was also that the reason Mr Procter failed to tell them that he needed such assistance with certain tasks was because he did not in fact need such assistance.
7. His Honour Judge Gosnell in the Leeds County Court upheld Mr Procter's claim. He awarded him damages for the loss of the opportunity to pursue a services claim. He awarded him £5,539.50 which is 50% of his potential recovery, which together with interest resulted in an award of £6,655.22.
8. Raleys have been permitted to appeal on one issue alone, which is broadly the question whether or not they were negligent in failing to conduct either a meeting or a telephone conversation with Mr Procter in order to satisfy themselves that he fully understood the advice which they had tendered in three letters.
9. The judge ordered a payment on account of Mr Procter's costs of the action in the sum of £50,000, and Mr Procter's claimed costs of the appeal are also in excess of £50,000. Raleys' costs must be of a similar order. I can only assume that it is the likely impact on other cases which has driven the bringing of this appeal, although we were told by Mr Michael Pooles QC for Raleys that the question how large volumes of claims of this nature can economically be handled is also of increasing importance.
10. Services claims were governed by Schedule 7(1) to the CHA, originally agreed on 9 May 2000. Only British Coal subscribed to this part of the agreement, not UK Coal Mining Limited. There is in my view some ambiguity in the documentation descriptive of the circumstances in which a claim may be made. Broadly speaking however compensation was payable to reflect the circumstance, if it was the case, that a miner suffering from VWF could no longer carry out, without assistance, certain "domestic" tasks which prior to his becoming symptomatic he had performed without assistance. The relevant tasks were listed at paragraph 3.3 of schedule 7(1) as:-

"(a) gardening work, including planting, heavier garden work, grass cutting, pruning etc, summer and winter;

(b) window cleaning, summer and winter;

(c) DIY, normal household repairs including changing fuses, plugs, etc;

(d) decorating, including paper hanging and painting inside and out;

(e) car washing summer and winter;

(f) car maintenance, the basis servicing, changing plugs, points, oil, anti-freeze and other similar tasks."

Although nowhere I think formally defined, the word "services" is I think in this context used to indicate that assistance in these areas is required as a consequence of the disability – the claimant is being compensated for the circumstance that in consequence of his disability he requires these services, ie. assistance with gardening, car washing or whatever it may be. A tariff based approach was used to calculate the value of each claim which was also dependent upon the severity of the condition as medically assessed and upon the claimant's age.

11. For the purposes of this appeal there are four key points to note about the Scheme:-

(i) The onus was initially on a claimant to establish, as a matter of fact, that prior to his injury he actually undertook the tasks in respect of which his claim was brought and that he no longer undertook those tasks, or no longer undertook them without assistance, as a result of his condition. A claimant did this by completing a standard form questionnaire, supported by those helpers who provided the services, who themselves completed a different standard form questionnaire.

(ii) The CHA included a medical assessment process, which included a medical examination. The medical report produced by this process became known as MAP1. That process was intended to ascertain whether the claimant was suffering from VWF and, if so, his "staging" on the Stockholm Workshop Scale, a tool devised to assess the severity of the disability. The scale had two components – a vascular assessment and a neurological or more accurately a sensorineural assessment. The Scheme prescribed that, if a claimant's condition reached a certain assessed level of severity, it should be presumed in his favour that he could no longer carry out certain tasks without assistance. IRSC was not bound to accept a claim made on this basis and did conduct telephone interviews with helpers to ensure that "services" were actually required and were being provided. The judge found that this was not a particularly taxing interview process. Generous allowance was made in relation to discrepancies in accounts concerning, for example, the date upon which the helper started to give assistance with the task claimed. Dubious claims could be referred to the Securities Investigation Department. A further medical examination known as MAP2 would be arranged, the sole purpose of which was for the examining doctor to consider whether there were any other conditions, VWF apart, which of themselves would have prevented the claimant from undertaking the task in question, thereby rebutting the presumption. Co-morbidity, as this was termed, could lead to either a reduction in the award or even in appropriate circumstances to rejection of the claim. The judge found that "the vast number of services claims were successful", by which he meant I think the vast majority. It was Raleys' own evidence that of all the claims for services made by their firm only 2.8% were wholly unsuccessful compared with 6% nationally.

(iii) Despite ambiguities in the language of the Scheme it is plain that a claimant did not have to show that his condition wholly disabled or prevented him from carrying out the relevant task. It was enough that he could no longer carry it out without assistance.

(iv) It was irrelevant to either the entitlement to claim or the size of the tariff-based award, whether the helpers who either assisted the claimant in the performance of these tasks or simply performed them for him were remunerated. A claimant who received gratuitous assistance from family or friends was in precisely the same position as a claimant who paid external contractors to perform the relevant tasks.

12. Mr Procter instructed Raleys and filled in one of their standard questionnaires on 12 January 2000. He related his employment history and his use of vibrating tools and completed a tick box description of his VWF symptoms. He failed to answer three important questions which were:-

"2. WHEN AND HOW DID YOU FIRST NOTICE PROBLEMS WITH YOUR HANDS AND FINGERS?

5. WHAT WAS THE DATE WHEN YOU FIRST THOUGHT THE SYMPTOMS IN YOUR HANDS MIGHT BE CAUSED BY USING VIBRATORY TOOLS AT WORK?

6. ON WHAT DATE AND HOW DID YOU LEARN YOU MIGHT BE ABLE TO CLAIM DAMAGES FROM YOUR EMPLOYERS FOR VIBRATION WHITE FINGER?"

On 23 February 2000 Raleys returned the form to Mr Procter with the unanswered questions highlighted and asked him to complete the questionnaire so that they could advise on the merits of his claim. There were no questions on the form directly relevant to the availability of a services claim or inviting information relevant to the extent to which the claimant required assistance with relevant tasks. The judge regarded Mr Procter's failure to answer three questions on the form as the first of a number of features which should have caused alarm bells to ring, thereby alerting Raleys to Mr Procter's possible lack of understanding of his entitlement to claim in respect of services. Mr Pooles suggested that Mr Procter's failure to answer the questions stemmed not from a lack of comprehension but from uncertainty as to how to answer. I do not think that this is the most important point in the case.

13. So far as concerns Mr Procter's entitlement to claim in respect of services, the judge made the following findings. Mr Procter had started work in the mines at sixteen. He had probably done little gardening before becoming symptomatic. The judge seems to have found that he had hitherto done some lawn mowing – see paragraphs 14, 16, 18, 30 and 31 of his judgment. The judge's finding that Mr Procter's garden was "flagged over" in 2004 is of course irrelevant to this question as it occurred too late to affect the settlement made in November 2003. The judge was satisfied that in consequence of VWF, Mr Procter required assistance with certain tasks which he had previously carried out without assistance. These tasks included car washing and car maintenance, including servicing, DIY such as putting up shelves and routine domestic tasks such as changing a plug. The majority of the tasks for which he would have claimed were being done by his wife and son free of charge. Mr Procter never told Raleys that he wished to make a claim for services. He thought that he could not claim for services because the assistance from his family was gratuitous. The judge made this finding notwithstanding that the claimant did pay when he visited a carwash and for car servicing. The judge accepted his explanation that, as "everyone pays for their carwash and car servicing", he did not consider that in this respect he was doing anything out of the ordinary.
14. Mr Procter's claim was in due course submitted to IRISC and accepted by them on 27 November 2000 as a Group 1 claim which was for workers who used vibratory tools regularly in their work.
15. On 30 March 2001 Mr Procter was examined by Dr Bernard Ryan who produced a MAP1 report of that date. He assessed his staging on the Stockholm Workshop Scale as 2V, the vascular component, and 2Sn. late, the sensorineural component, bilaterally, i.e. in both hands. This assessment meant that pursuant to Schedule 7 of the CHA it was to be presumed that he could not carry out any of the six listed tasks without assistance. In the body of the standard MAP1 Report Dr Ryan recorded Mr Procter's answer to the question "Does the white finger affect your job, hobbies or sports?" as "I FIND GARDENING A PROBLEM AS I CAN'T GRIP SPADE PROPERLY."
16. Consideration of the MAP1 report at Raleys generated a file note dated 3 September 2001. The file note suggests that it was "ETG" who considered the MAP1 report and prepared the note, although the judge attributed it to Mr Peter Kuleszka who he described, advisedly, as "the lawyer dealing with the Claimant's case." Mr Procter was told by letter of 28 April 2000 that his case would be handled by Mr Tim Mincher, "an Assistant Solicitor specialising in this type of case." Mr Mincher left Raleys at the end of May 2000. The judge heard no evidence from anyone at Raleys who had handled the claim. The only evidence about the personnel who handled Mr Procter's claim at Raleys came from a former partner, Mr Barber. He had never worked on Mr Procter's case and had never spoken about Mr Procter's case to anyone who had worked on it. It is unclear what was Mr Kuleszka's precise status between September 2001 and November 2003, which is the period of interest. He started with the firm as a paralegal. He had a law degree and had completed the then equivalent of the Solicitor's Legal Practice Course. At some point he was offered a training contract, Mr Barber did not know when. Mr Kuleszka left Raleys in about 2006 by which time he had qualified as a solicitor. Of Nicola Allerton, who also played a role, Mr Barber was able to say only that "she used to work with Peter [Kuleszka]" and that "at some point it looks like she had the actual conduct of the case."
17. The significance of the file note of 3 September 2001, which bears the reference PJK/ETG, is that it records:-

"There is a potential service claim."

18. It seems likely that the activity recorded in the file note was the precursor to the letter of 10 September 2001 sent to Mr Procter over the signature of "Peter Kuleszka, Raleys". I shall call this the first letter. The letter appears to be in standard form. It began:-

"Re: Your Vibration White Finger/Carpal Tunnel Syndrome Claim

I have now received your medical report following your medical examination at the VWF Assessment Centre. Please read the report carefully and let me have any comments including a note of any inaccuracies or any part of the report which you do not agree.

Our Assesment Of Your Report

The report confirms that you do suffer with Vibration White Finger. On the final page of the report the doctor concludes that you are graded at stage 2V on the Stockholm Workshop scale for the vascular component of vibration white finger. This relates to the severity of the blanching/whitening of your fingers. Further, you have been graded at stage 2Sn late for the sensori-neural component. This relates to your symptoms of tingling and numbness."

There was then a section referring to the fact that the examining doctor had failed to complete the section dealing with Carpal Tunnel Syndrome. Mr Procter was asked to and did complete a form of authority requesting the doctor to complete this section, for confirmation, notwithstanding that it appeared from other findings that Mr Procter did not suffer from Carpal Tunnel Syndrome. Nothing turns on this.

The letter continued:-

"Warning —Mitigation Advice

We note from the report that you have continued to use vibrating tools. Whilst the examining doctor has diagnosed vibration white finger he does not comment on whether it is safe for you to continue using vibrating tools at work.

If you continue to use vibrating tools this may result in your symptoms getting worse. You are under a duty to mitigate your losses i.e. take all reasonable steps to avoid further injury. The Defendants will not be liable for any additional injury if you fail to mitigate your loss.

Whilst the examining doctor does not comment on whether or not it is safe for you to continue using vibrating tools you need to consider what steps can be taken to avoid or minimise any future vibration exposure. Accordingly, we are advising all Claimants who are continuing to use vibrating tools to consult the colliery doctor. The colliery doctor will then take a view whether or not you are fit enough to continue using vibrating tools or whether you should be re-deployed on another job.

If you are unsure of the position please contact Peter Kuleszka.

Additional Investigations — Other Financial Losses

On reviewing your case further there may be further investigations that may need to be undertaken in order to assess the amount of damages you may be entitled to. I may need your further instructions. See attached form of authority.

Please Read The Following Carefully

The basic legal principle is that you are entitled to recover any expenses or other losses arising from having vibration white finger or carpal tunnel syndrome. I set out below some of the main losses we can consider but this is not an exhaustive list:

1. Claim for loss of earnings.

It may be possible to claim loss of earnings as a result of losing employment and/or demotion or where your employment has otherwise been affected provided the cause is due to vibration white finger/carpal tunnel syndrome. If there are other reasons which have resulted in you losing employment and/or demotion then it is most unlikely you will have a claim.

2. Handicap on the labour market.

In addition or as an alternative to claiming loss of earnings you may be entitled to an additional sum if it can be proven that your vibration white finger/carpal tunnel syndrome limits your employment opportunities. Under the terms of the DTI Handling Agreement no such award will be made in the following circumstances:

a) Where the injury gives rise to a minor disability. For instance in relation to vibration white finger where the claimant is assessed at Stage 1 or less.

b) The Claimant is 60 years old or older at the letter of claim.

c) At the date of the letter of claim the Claimant has been and continues to be in receipt of long term sickness or incapacity benefit for a condition other than VWF or

d) the Claimant cannot show he is either in work or receiving a relevant benefit if seeking work.

3. Service Claim.

The DTI have recently agreed to pay additional compensation for services. What this means is that if you are prevented from doing certain tasks such as decorating, DIY, gardening, car washing, window cleaning, car maintenance as a result of having VWF/carpal tunnel syndrome and as a result you now require assistance then you will be entitled to receive additional compensation.

Although agreement has been reached, so far no claims have been settled for services. There are still some outstanding issues particularly in relation to assessing how unrelated medical conditions may impact on this claim.

On the basis of the medical evidence I advise that you may qualify for such a claim.

Regrettably I have to advise that there are further forms that will need to be completed. In addition those carrying out assistance on your behalf are required to complete "witness questionnaires" verifying the truth of the assistance that is provided.

4. Care

In cases of severe vibration white finger/carpal tunnel syndrome it may be possible to claim where care and assistance is provided by a relative or others provided you can prove that it has been caused by vibration white finger/carpal tunnel syndrome. If you are not receiving care or assistance or alternatively in the event that you are receiving care and/or assistance as a result of some other medical condition then it is most unlikely you have a valid claim.

5. Other Financial Losses

There may be other financial losses eg cost of medical treatment, clothing (ie gloves) that you have sustained as a result of having vibration white finger/carpal tunnel syndrome.

If you think that you may have a further claim or you have sustained other financial losses as a result of having vibration white finger/carpal tunnel syndrome it is important that you let us know at this stage. So we know which claims you wish to pursue please could you complete the attached form of authority and return to me.

We will encourage and strongly recommend you to proceed with any further claim provided there is a reasonable prospect of succeeding and there is strong supporting evidence. It is a matter for you to decide whether or not you wish to pursue any further claim. We would advise against making any such claim if the claim is weak and there is little or no supporting evidence. The making of any further or additional claims may result in delay in concluding your claim. In addition, there is no guarantee that the pursuit of such a claim will result in higher compensation. However, it is important that good claims are pursued where appropriate.

It is now important for you to provide us with any further information you think you may have if you think you have an additional claim as outlined in this letter. If you are unsure of the position or require any further assistance please contact Peter Kuleszka."

19. With the letter there were enclosed two authorities to sign. The first concerned the medical report, which Mr Procter confirmed he had received and with which he confirmed his agreement, albeit, and entirely consistently, he also ticked the box indicating that he wished his solicitors to clarify the report. That related to the uncompleted Carpal Tunnel Syndrome section.

The second form of authority read:-

" FORM OF AUTHORITY

I, Andrew R Procter

of 3 Cardigan Terrace

East Ardsley

Wakefield

West Yorkshire

WF3 2BP

confirm I have read and understood my solicitors, Raleys' letter of advice sending this form to me and I confirm that I would like to pursue one or more of the following claims:-

{Please tick the appropriate boxes for the elements of claim you wish to pursue}

{ } Assistance in carrying out DIY/gardening (or any other services)

{ } Loss of opportunity on the labour market

{ } Loss of earnings

{ } A claim for care

{ } Other financial losses (In the event that you have sustained any financial losses please specify)

{ } I do not wish to claim for any additional elements. I wish to claim for general damages (pain and suffering) only.

SIGNED:……………… DATED:………………

{ } Please tick if you are currently pursuing a respiratory claim"

20. Mr Procter returned the second form of authority and dated it 12 September 2001. He ticked only the box "I do not wish to claim for any additional elements. I wish to claim for general damages (pain and suffering) only" although he did tick the box to confirm that he was currently pursuing a respiratory claim. Nothing turns on that. The judge observed, at paragraph 22 of his judgment:-

"Significantly, he not only left the box for services unticked but also the box for handicap on the labour market, even though he qualified for such a claim according to the clear terms of the letter he had received."

Although it may not matter, I do not agree with the judge that the terms of the letter were clear on the topic of entitlement to compensation for handicap on the labour market. Entitlement is defined negatively by reference to circumstances in which no award will be made, and it is not made clear how the relevant handicap would be proved.

21. Nicola Allerton telephoned Mr Procter on 8 November 2001 to discuss disclosure of his medical report to UK Coal Mining Limited. Mr Procter telephoned once or twice seeking news about the progress of his claim. On one of these occasions, possibly 16 December 2002, Mr Procter seems to have told Louise Akram of Raleys that he wished to pursue a claim for loss of opportunity on the labour market. It is unclear what prompted this change of heart. Accordingly on 30 December 2002 Mr Kuleszka wrote to him requesting a copy of a recent payslip. Mr Procter responded with a copy payslip on or about 8 January 2003.
22. The next significant letter sent by Raleys to Mr Procter is dated 27 January 2003 and with it was enclosed the first interim payment for £2,902.43. I shall call this the second letter. That part of the letter which begins with the rubric "Additional Investigations", and not on this occasion "Additional Investigations - Other Financial Losses", is in similar but not identical terms to the first letter. This time there were four sub-headings – Loss of Earnings, Handicap on the Labour Market, Services, as it was now put, previously "Service Claim", and Care. "Other financial losses" were dealt with in identical language but without a separate sub-heading. The wording of the "Services" paragraph was however significantly different from what had appeared in the first letter. Thus the second letter reads:-

"Services

In the event that your vibration white finger prevents you from undertaking certain tasks e.g. gardening, decorating, DIY, car washing, etc with the result that you now require assistance to undertake these tasks the DTI has recently agreed in principle to award further compensation for such loss.

However, I have to advise that where you suffer from unrelated medical conditions such as arthritis and gout such a claim may be extinguished or reduced to take into account the other unrelated medical conditions."

23. At paragraph 25 of his judgment the judge said:-

"The first two letters merely speak of "compensation" where assistance is required due to the inability to undertake certain tasks. I have to say on an objective reading it does not suggest that claims can only be made where there has been actual financial outlay."

24. There is no Respondent's Notice challenging this conclusion and I shall deal with the appeal on that footing. But I have to say that again I disagree with the judge on this point. In the first letter the paragraphs under the rubric "Service Claims" are introduced by the over-arching sub-heading "Additional Investigations - Other Financial Losses." The introductory paragraph talks of recovering "any expenses or other losses." Contrary to the submission of Mr Pooles, I do not regard the words "other losses" as naturally referring in this context to other non-pecuniary losses, such as loss of amenity. The fact that the last numbered sub-paragraph under this over-arching sub-heading is "Other Financial Losses" naturally leads to the conclusion that this section of the letter is dealing with loss measurable in expenditure or identifiable monetary loss. Mr Pooles suggested that the expression should be read as meaning other, financial, losses, ie. other losses which are financial in nature as compared to those non-financial losses which have hitherto been described. But this does not persuade me, as some of the losses which have hitherto been described are plainly financial losses such as loss of earnings. I accept that there may be pointers the other way, as in the "Care" paragraph. I also accept that the "Service Claim" paragraph read in isolation does not suggest that actual financial outlay is a pre-condition of recovery of compensation. But read in the context of the letter as a whole, the point is not clear.
25. In the second letter the "Services" paragraph is differently worded. It now speaks of "compensation for such loss." Read in the context of the letter as a whole, I think that this is more naturally a reference to actual financial outlay than an indication that this disadvantage will attract compensation, irrespective of whether it has occasioned financial loss.
26. I therefore consider that the judge was generous to Raleys in his appraisal at paragraph 25 which Mr Pooles characterised as a finding that the first two letters were not, on this point, misleading. In my view the first letter was at best unclear and the second letter positively misleading.
27. Although it is irrelevant to the outcome of the appeal, I also consider that both letters, and the third letter to which I next turn, are unclear on the question whether the claimant must by reason of his condition have become prevented from carrying out the relevant tasks, i.e. totally disabled from performing them, or whether it is sufficient that he can now perform them only with assistance. However Mr Procter did not suggest that it was any lack of clarity in that regard that lead to his failure to assert a claim.
28. With the second letter there was enclosed a further copy of the tick box form to notify Raleys of any additional claims to be made. On this occasion Mr Procter ticked the box for loss of opportunity on the labour market.
29. The third letter, sent by Raleys to Mr Procter on 23 October 2003, is different again. It was preceded by confirmation by IRISC that it was prepared to offer £11,141 in full and final settlement of all Mr Procter's claims arising out of his exposure to vibration during the course of his employment with "The British Coal Corporation." This included £3,801 in respect of the claim for handicap on the labour market. One of the letters apparently sent in copy to Raleys concerning this offer recorded:-

"At present we have received no indication that the claimant wishes to submit claims for other heads of damage, but will keep you informed of any developments."

Receipt by Raleys of this offer and associated correspondence prompted the preparation of a file note dated 6 October 2003. It is unclear who prepared it. Under the rubric "DIY/Services Claim?" the writer recorded:-

"but mentions problems with DIY/Gardening."

Given that the assessment of stage 2V and 2SN late entitled the Claimant to the benefit of the presumption to which I have already referred, the use of the word "but" is puzzling, let alone the fact that it is underlined. Importantly however the note demonstrates that someone at Raleys turned his or her mind to the circumstance that the client had mentioned circumstances which suggested, to put it no higher, that he might well have a valid claim for services.

30. The third letter read as follows:-

"RE: Your Vibration White Finger Claim

The Defendants have now made an offer in settlement of your claim for vibration white finger. The offer is £11,141.00 in full and final settlement of your claim against both British Coal and UK Coal Mining Limited.

You have already received an interim payment of £2902.43 (including interest).

Excluding interest, this amount equals the sum of £2757.53. On acceptance, you would therefore receive the balance of £8383.47.

This offer is in respect of damages for pain, suffering, loss of amenity and handicap on the labour market.

The offer is in accordance with the damages agreed between this firm and the Department of Trade and Industry under the handling agreement.

However, there may be other losses we may need to take into account in addition to damages for pain, suffering, loss of amenity and handicap on the labour market.

PLEASE READ CAREFULLY THE REST OF THIS LETTER

I would like to take the opportunity of discussing the position with you before your make a decision to accept the offer. In particular, I wish to draw your attention to the following:-

Mitigation/Loss of Earnings

We wrote to you on 10 September 2001 enclosing a copy of the MAP medical report. In the letter we advised you to either consult the colliery doctor or your general practitioner to find out whether or not you were fit enough to continue using vibratory tools or whether you should be re-deployed on another job.

We advised that you were under a duty to mitigate your losses by taking all reasonable steps to avoid or minimise further injury. If you were re-deployed to work on another job due to vibration white finger and this has resulted in a drop in earnings, you may be entitled to pursue a claim for loss of earnings.

I need to know from you whether you followed our advice by consulting the colliery doctor and what the outcome of that consultation has been.

If you wish to pursue a claim for loss of earnings, it must be pursued as part of this claim. If you accept this offer then the claim will settle on a full and final basis. It will not be possible for you to pursue a claim for loss of earnings or any other additional claim once the present claim has settled. This is because the claim will settle on a full and final basis.

Additional Investigations

On reviewing your case further there may be further investigations that may need to be undertaken in order to assess the amount of damages you may be entitled to.

Further Instructions

We note from your existing instructions and on the basis of the medical evidence that you may qualify for additional claims.

Please find set out below advice on the following:-

1. Advice on making a claim for loss of earnings

2. Advice on making a claim for services

3. Advice on making a claim for care

Advice

The basic legal principle is that you are entitled to recover any expenses or other losses arising from having vibration white finger or carpal tunnel syndrome. We have attached to this letter the main losses that can be considered. However, it is not an exhaustive list. There may be other losses which can be taken into account. For example:-

1. Claiming Loss of Earnings

It may be possible to claim loss of earnings as a result of losing employment and/or demotion or where your employment has otherwise been affected provided the cause is due to vibration white finger/carpal tunnel syndrome. If there are other reasons which have resulted in you losing employment and/or demotion then it is most unlikely that you will have a claim.

We note that you have previously indicated that you do not wish to pursue this additional claim.

2. Services

It is a well-established principle of law that anyone unable to carry out everyday tasks due to an injury should be able to recover the cost of any assistance to carry out those tasks. It may be possible to claim damages for past and future assistance in carrying out gardening, decorating and other tasks if your VWF results in a reduction in your ability to carry out these every day tasks.

We note that you have previously indicated that you do not wish to pursue this additional claim.

3. Care

In cases of severe vibration white finger/carpal tunnel syndrome it may be possible to claim an additional sum where care and assistance is provided by a relative or others provided you can prove that it has been caused by vibration white finger/carpal tunnel syndrome. If you are not receiving care or assistance or alternatively in the event you are receiving care and/or assistance as a result of some other medical condition then it is most unlikely you have a valid claim.

We note that you have previously indicated that you do not wish to pursue this additional claim.

There may be other financial losses eg cost of medical treatment, clothing (ie gloves) that you have sustained as a result of having vibration white finger/carpal tunnel syndrome. If you think that you may have a further claim or you have sustained other financial losses as a result of having vibration white finger/carpal tunnel syndrome it is important that you let us know at this stage. It would be helpful if you could write to us giving us as much information as possible so we can assess the merits of any such further claim.

We will encourage and strongly recommend you to proceed with any further claim provided there is a reasonable prospect of succeeding and there is strong supporting evidence. It is a matter for you to decide whether or not you wish to pursue any further claim. We would advise against making any such claim if the claim is weak and there is little or no supporting evidence. The making of any further or additional claims may result in delay in concluding your claim. In addition, there is no guarantee that the pursuit of such a claim will result in higher compensation. However, it is important that good claims are pursued where appropriate.

Summary of our Advice

PLEASE NOTE that it is NOT possible to ACCEPT the current offer IF you intend to pursue the potential additional elements to your claim You must indicate a rejection to this offer and confirm the additional elements you wish to pursue if you want us to continue to negotiate on your behalf.

Please find enclosed an authority to confirm whether you would wish to settle on the current offer.

Should you choose to reject the current offer, we will request an interim payment of 100% of the general damages from the Defendants, whilst we then pursue the other potential additional element to your claim.

It is now important for you to provide us with any further information, if you think you have an additional claim as outlined in this letter.

As stated above, I wish to take the opportunity of discussing the position with you. Please contact me by telephoning my secretary on 01226 603230."

In addition, there was at the foot of the third letter, as there had been at the foot of both the first and second letters, a box in which was typed in bold "If you have any queries regarding your claim please telephone Peter Kuleszka on 01226 603230."

31. The description in the third letter of the circumstances in which a "services" claim may be made is in one respect very much more clear than that which had gone before. It is made clear that a reduction in the ability to carry out such tasks is sufficient. But as did I think the judge, I consider that the new wording is naturally to be understood as indicating that a claim can only be made to recover an actual financial cost.
32. The judge observed, at paragraph 25 of his judgment that:-

"The first question I need to consider is whether the letters contained negligent advice or were misleading. I have to say the final letter does add some support to the Claimant's contention that he thought he could only make a claim if he had actually incurred some financial cost. The final letter speaks of "expenses or other losses" and the ability to recover the "cost of any assistance". I have to bear in mind however that he had already had two opportunities to make a services claim and it is likely that his decision that he was not entitled to make such a claim was made after having received the first letter and certainly by no later than the second letter."

33. On the strength of that latter observation, combined with the judge's acceptance, as Mr Pooles put it, that the first two letters were "not misleading", Mr Pooles submitted that it was not open to the judge to conclude that the solicitors should have done more to ensure that Mr Procter actually understood the advice he was receiving. I reject this submission, even on the hypothesis that the first two letters were not misleading. The fact that Mr Procter may have decided after receipt of the first and/or the second letter not to make a claim is beside the point. Assuming that Raleys were under a duty to ensure that their client understood the options open to him, that must extend to ensuring that such decisions as he may have made were made on a fully informed basis. Indeed, in fairness to Raleys, I think that they so recognised. In the third letter they expressly drew attention to the circumstance that Mr Procter had previously indicated that he did not (their underlining) wish to pursue "this additional claim." The only purpose of describing again the circumstances in which such a claim could be made was to give to the client an opportunity to reconsider before it was too late so to do. The problem is that the circumstances in which such a claim could be made were misdescribed in a manner which would have confirmed Mr Procter in his misunderstanding.
34. Enclosed with the third letter was a further form of authority. It read:-

" FORM OF AUTHORITY

I, Andrew R Procter

Of 3 Cardigan Terrace, East Ardsley, Wakefield, West Yorkshire, WF3 2BP

confirm I have read and understood my Solicitors', Raleys, letter of advice sending this form to me and confirm that I wish to *ACCEPT/REJECT the offer of £11,141.00 made by the Defendants in full and final settlement of my damages claim for vibration white finger against both British Coal and UK Coal Mining Limited.

I understand that the above amount is subject to the deduction of any benefits which I have received from the DSS as a result of my condition (shown on the CRU certificate of total benefit) and is also subject to deduction of any interim payments already paid to me.

Please tick the appropriate boxes below for the additional elements of claim you wish to pursue. Please note that you must reject the offer if you want to pursue any additional elements to your claim

{ } Assistance in carrying out DIY/gardening (or any other services)

{ } Loss of earnings

{ } A claim for care

{ } Other financial losses (In the event that you have sustained any financial losses please specify)

{ } I do not wish to claim for any additional elements. I wish to claim for general damages (pain and suffering) and handicap on the labour market only.

Signed………………………..

Dated…………………………

* Please delete as applicable

{ } Please tick if you are currently pursuing a respiratory claim"

35. On 27 October 2003 Mr Procter returned the form of authority. He ticked only the box "I do not wish to claim for any additional elements. I wish to claim for general damages (pain and suffering) and handicap on the labour market only." He did not tick the box "Assistance in carrying out DIY/gardening (or any other services)."
36. On 30 October 2003 Mr Kuleszka wrote to Mr Procter:-

"Re: Your Vibration White Finger Claim

Thank you for returning your form of authority indicating that you wish to accept the insurers offer of £11,141.00.

I would be obliged if you would contact my secretary on 01226 603230 to arrange a telephone appointment to discuss this matter further.

I look forward to hearing from you."

37. On 10 November 2003 Nicola Allerton spoke to Mr Procter on the telephone. I set out below the telephone note of that date which she prepared:-

" TELEPHONE NOTE

Ref: PJK/NA/CAJP1957/2

Date: 10 November 2003

Re: Andrew R Procter

Nicola Allerton contacted Mr Proctor on the 10 November 2003.

PJK had needed to clarify with Mr Proctor the mitigation/Loss of Earnings advice.

I asked Mr Proctor whether he uses any vibratory tools and he confirmed that he does not use any at all and the machine he uses his remote controlled.

He has been to see the colliery doctor and has been advised that stop using vibratory tools. He confirmed that he has not been redeployed as his job did not involve the use of tools in any event and even if tools were required someone else would do this anyway.

I reminded him that when claimants still use vibratory tools they have a duty to mitigate their losses. Basally, the DTI wont be responsible if he makes his symptoms worst by continuing to use tools.

I advised him that where a claimant does mitigate his losses, he sees the colliery doctor and he his told to stop losing the tools and he was subsequently redeployed in the future then he may have a potential loss of earnings claim in the future.

However, I advised Mr Proctor that any such Loss of Earnings claim has to be pursued as part of this claim.

Bearing in mind the fact that he had previously indicated that you would like to accept the offer and I advised him that if he was concerned about suffering a loss of earnings in the future he had the option to hold the offer in abeyance.

However, Mr Proctor advised me that he his not concerned about this and does not believe his job is affected. He confirmed that he will be finishing at the end of January eventually he would be applying to transfer.

Accordingly, Mr Proctor confirmed that he wishes to accept the offer in full and final settlement.

I reminded him that once he decides to accept the offer he will not be able to pursue any additional claim at a later date and he fully understood this."

38. Other than by implication in the reference to "pursu[ing] any additional claim", there is obviously no reference there to the possibility of a services claim. In the light of the two earlier file notes, I find that surprising.
39. On 14 November 2003 Mr Kuleszka wrote to Mr Procter. The letter reads:-

"RE: Your Vibration White Finger Claim

We write further to your telephone discussion with our Nicola Allerton on the 10 November 2003.

You may recall that in particular we discussed the additional claim of Loss of Earnings.

As you are aware it may be possible to claim Loss of Earnings as a result of losing employment and/or demotion or where your employment has otherwise been affected provided the cause is due to Vibration White Finger.

You may recall that we have previously advised you to consult the colliery doctor with a view to mitigating your loss. You informed me that you have seen the colliery doctor and you have been advised to stop using vibratory tools. However you confirmed to us that you have not been redeployed and in any event you do not use vibratory tools as you are not required to use vibratory tools in your job. You explained to us that you operate a machine by remote control and even if vibratory tools are required, another colleague would do this.

We also note that you are due to finish at the end of January and you also advise us that you are not applying to transfer.

However, you must be aware of the potential risk of redeployment in the future onto lower paid work which could result in potential claim for Loss of Earnings.

As we discussed, if you decide to accept this offer then the claim will settle on a full and final basis. It will not be possible for you to pursue a claim for Loss of Earnings or any other additional claim once the present claim is settled.

Notwithstanding the above advice you advise us that you do not wish to consider any potential claim for Loss of Earnings and you simply wish to accept the offer in full and final settlement.

Accordingly, in order to confirm you final instructions please sign and return the enclosed form of authority and return this to us as soon as possible.

Yours sincerely

Peter Kuleszka

Raleys

If you have any queries regarding your claim please telephone Peter Kuleszka on 01226 211111"

40. Enclosed with that letter was a further form of authority. That read:-

" FORM OF AUTHORITY

I, Andrew Procter

Of (address)

Confirm that I have read and understood my solicitors, Raleys' letter of advice dated 13 November 2013 and confirm that I do not wish to consider any potential claim for Loss of Earnings and I reaffirm my previous instructions to ACCEPT the defendants offer of £11,141.00 in full and final settlement of my claim for Vibration White Finger.

Signed……………………..

Dated………………………"

Mr Procter signed and returned this form of authority on 17 November 2003.

41. On 20 November 2003 an internal Raleys' "CHECKLIST FOR ACCEPTING/REJECTING OFFERS TO AON" was completed by Nicola Allerton. In relation to "Services?" she noted "advised – doesn't want." To the question "Previously wanted to pursue?" she replied, entirely accurately, No.
42. On 4 December 2003 Raleys communicated to IRISC Mr Procter's acceptance of the offer in full and final settlement of his claim against the DTI and UK Coal for Vibration White Finger.
43. The judge correctly directed himself that the standard of care required of Raleys was that of the reasonably competent solicitor. He referred to the well known observation of Oliver J in Midland Bank v Hett Stubbs and Kemp [1979] Ch. 384 that a solicitor should not be judged by the standard of a "particularly meticulous and conscientious practitioner… the test is what the reasonably competent practitioner would do having regard to the standards normally adopted by his profession" – see at page 403. The judge also observed that a solicitor should of course be judged by the standard of the reasonably competent practitioner specialising in whatever area of the law the solicitor holds himself out to be a specialist, as pointed out by Douglas Brown J in Green v Collyer Bristow [1999] Lloyds Rep P.N. 798. The judge noted that Raleys held themselves out to be specialists in industrial disease claims and were experienced in handling both claims for miners generally and claims under this particular scheme.
44. The judge set out his conclusions on this part of the case as follows:-

"26. The next issue is whether the sending of the three letters is sufficient to comply with the Defendants obligation to properly advise their client about his claim. What would a reasonably competent practitioner specialising in this type of work have done? Would he or she send out a series of long standardised letters to their client and expect him to tick the correct boxes on the tick box form to reflect his instructions or should they have a discussion with the client to try to ensure that he has not only read but understood the correspondence. On the facts of this case I have reached the conclusion that the Defendants should have done more to ensure that the Claimant actually understood the advice he was receiving. When a solicitor takes instructions from his client this is a three stage process. Firstly the solicitor must obtain information from the client about the nature of his claim and the facts which surround it. Once the solicitor has all the relevant information he can then give the client advice which is the second stage. The third stage is when the client tells the solicitor what action he would like him to take on the basis of the advice he has received. In this case the information was contained in the questionnaire, the advice was in the initial letters and the instructions were by tick box form. In my view it was reasonably foreseeable that a client such as this Claimant might not fully understand how the system operated and what claims he was actually entitled to make. Whether the particular mistake he claims to have made was foreseeable is not relevant if that mistake could have been avoided by the obtaining of full instructions which would include a meaningful discussion about what the Claimant could and could not do once he became symptomatic.

27. The Claimant had stated in evidence that his education was limited. Even if the Defendants were not aware of this they could have assumed that most miners were not highly educated. Despite what Mr Barber said in evidence it was clear from the documents which were put to him that the Defendants knew there were risks in accepting information from the clients at face value. The Claimant relies on the words of Donaldson L.J. in Carradine Properties v CJ Freeman Co [1999] Lloyds Rep PN 48 when he said "an inexperienced client will need and be entitled to expect the solicitor to take a much broader view of the scope of his retainer and of his duties than will be the case with an experienced client". There is some indication from the Defendants records that they were regularly experiencing clients who had not notified them of a potential service initially, but changing their minds at a later stage on receipt of further information. At a staff meeting on 3rd December 2003 at which Mr Barber was present the following was recorded:

"DB expressed concern at the rate we are converting offers into services. The procedure that seems to have developed is that where a Claimant changes his instructions at the offer stage we write to him to clarify those instructions. It was agreed that AWE would amend the existing standard letter to make it more robust.

It was agreed that we need to revise the offer procedure. AWE explained that he has a greater conversion rate having spoken to the client. The new procedure which we will introduce will ensure that when we get to the offer stage we will specifically request the client to make contact with the fee earner so proper advice can be given over the phone or in the office. We need to ensure that services are fully explained to the client."

The implication of this record is that firstly some clients were not initially notifying claims for services when they were entitled to make such claims and that secondly more clients made claims for services if they actually spoke to the lawyer directly about the issue either in person or on the telephone. The phrase "so proper advice can be given over the phone or in the office" is, in my view, telling.

28. There were also some aspects to the Claimant's case in particular which should have rung alarm bells. Firstly, when he completed the initial questionnaire he left three questions blank. Secondly, in his reply to the first letter he did not make a claim for handicap in the labour market even though he was factually entitled to do so. Thirdly, his staging at 2V 2Sn (late) was one which justified a medical presumption that there were certain tasks he would need assistance with. Fourthly, the Claimant mentioned difficulties with gardening in the MAP1 assessment. Fifthly this was noted and recognised by the lawyer concerned on receipt of the report. Sixthly, a file note on 6^th October 2003 appears to recognise a possible DIY/gardening claim. There is no evidence that these matters were taken into account either by amendment to the standard letters or by any attempt being made to specifically discuss the issue with the client. Faced with a client with that staging in my view it was incumbent on the solicitor to at least check whether the factual matrix applied, namely that the Claimant was carrying out certain tasks prior becoming symptomatic which he now needed assistance with. If that factual matrix did apply the solicitor could then give advice to the client that he may have a potential claim, he could outline was the process was, what the prospects of success were and a broad indication of the likely quantum of the claim.

29. I fully accept that it was not the Defendants' duty to attempt to create a claim where none existed, or to encourage a fraudulent claim. If the client replied to the enquiry by saying that he had never done the tasks concerned or was still doing them without need for assistance then I accept there would be no need to go any further. In my view however it was not too much to ask the solicitor to directly consult with the client to advise him in layman's terms what a services claim was and whether on the facts that applied to him he potentially qualified to claim. The system set up by the Defendants involving as it did, the extensive use of questionnaires and standardised letters with very little personal contact with the client enabled them to deal with a very high number of claims at limited cost. The disadvantage however of such a system is that it is heavily reliant on the client carefully reading all the correspondence and filling the questionnaires in accurately. It was foreseeable in my view that some clients (particularly these clients) would not fully understand the long and detailed letters and might misunderstand whether they had a right to claim or not with the consequence that potentially valuable claims might never be made when they could have been. The evidence suggests that a number of the Defendants' clients did not fully understand the right to make a services claim until they actually had a meeting or telephone discussion with a lawyer who would fully explain the subject. It follows from these conclusions that I find that the Defendants were in breach of duty."

45. I entirely agree with those conclusions, based as they are upon the premise that the first two letters were "not misleading." It is of course a mistake to assume that someone who has not had the benefit of formal education beyond the age of sixteen is necessarily lacking in powers of comprehension, but such a person who has thereafter worked as a miner is not likely to have a detailed understanding of the concepts relevant to the availability of compensation, whether at common law or pursuant to this scheme, which was in the relevant respect more generous than the common law. In my judgment the situation here cried out for a short discussion with the client, preferably face to face, but if necessary over the telephone, in order to ensure that the client understood the circumstances in which a claim for compensation, to reflect the inability to carry out, without assistance, routine domestic tasks, could be made. Those circumstances were not entirely straightforward; all the information which the solicitors had suggested that the client was entitled to make such a claim; and yet he had three times passed up the opportunity to pursue such a claim, pursuit of which in his case would have been assisted by the presumption to which I have referred. In fact the telephone conversation which Nicola Allerton had with Mr Procter on 10 November 2003 offered the ideal opportunity to pursue this point. There was a similar opportunity in the telephone call made to Mr Procter by Nicola Allerton on 8 November 2001, early on in the process and only two weeks after preparation of the file note indicating that "there is a potential service claim."
46. I would add that, on the assumption that the client was responsible for payment of the solicitors' fees, taking up the point in the course of these telephone conversations would have been likely to increase the cost to the client by only a trifling amount, if anything. At the hearing I was under the impression that Mr Procter had himself been responsible for Raleys' fixed fees, and that Raleys would receive a fee in respect of advice concerning a services claim only in the event of a successful claim under that head. Closer perusal of the documents subsequent to the hearing leads me to wonder whether Mr Procter in fact had any potential liability for Raleys' fees, as the documents seem to suggest that the relevant fees were paid to Raleys by IRISC. For the avoidance of doubt however I reject the notion that a solicitor should feel inhibited from ensuring that his client has understood advice given to him by the consideration that so ensuring might generate a further fee payable by the client. Obviously the question what in any given case a solicitor should do so as to ensure that his advice is understood is a question of fact and degree. There can plainly be no hard and fast rule that it is no part of a solicitor's duty to test the client's understanding. I have already pointed out, in fairness to Raleys, that I think that they recognised that point, albeit they did not in my view do sufficient to discharge their duty.
47. I also reject the submission, advanced by Mr Pooles, that in finding Raleys negligent the judge erred in relying on "generic" matters rather than making findings which were specific to the relationship between Raleys and their client Mr Procter. The judge's observations at paragraph 28 of his judgment are all specific to Mr Procter. I have already indicated that I do not regard the first point, the failure fully to complete the initial questionnaire, as of great weight, but the other five points are in my judgment particularly telling.
48. I agree with Mr Pooles that it can be said that the three letters were, in the language of the judge, checking or at any rate enquiring whether the factual matrix applied. The vice in the letters however was that the shape of the factual matrix itself was inadequately described or explained. Even if the first two letters did not suggest that claims could only be made where there had been actual financial outlay, they were far from clear in pointing out to the client that compensation could be claimed where there had been no financial outlay. In fact, as will be appreciated, I consider that the first two letters, particularly the second, were capable of being read as indicating that only financial loss could be compensated. The third letter compounded the problem. If Mr Procter had before receipt of this letter already reached the erroneous conclusion that he could only recover the cost of any relevant assistance, this letter confirmed him in his erroneous belief.
49. Mr Pooles drew to our attention the difficulties posed for solicitors in modern conditions, where financial constraints may require them to "commoditise" their advice to potential claimants. We know insufficient about the fee structure supporting this scheme to assess to what extent these considerations applied here. Such considerations do however throw into sharp focus the need for standard form letters of advice to be clear in their exposition. The circumstances in which a claim for services could be made were not complex but as I have already pointed out not entirely straightforward. These letters in my view signally failed to give a clear exposition either on the critical question whether gratuitous assistance would attract compensation or, until the third letter, on the fundamental question, not in the event relevant here, whether a reduction in the ability to carry out the tasks short of total inability would be a sufficient basis upon which to make a successful claim. Furthermore, whatever may be the practical and economic constraints in conducting face to face meetings or telephone discussions with clients in claims handling of this nature, it is apparent that in this case there were at least two opportunities to give, without significant additional cost, a straightforward exposition of the circumstances in which a claim could be made, and to follow up the implications of such relevant information as the client had given – difficulty with gardening etc, and the implications of his staging assessment. It is to the solicitors' credit that their system did generate internal reference to these very matters. To impose liability for the failure to follow up the issues flagged in this way does not, to my mind, involve the imposition of an unrealistic standard. The solicitors were dealing with a client who could fairly be regarded as unsophisticated in the relevant field. The written advice given to him was unclear, and there were clear indications that it may not have been understood. It is not asking much of a solicitor in such circumstances to make sure that his client understands the opportunity apparently being passed up.
50. It was for these reasons that, after hearing Mr Pooles' skilful and valiant submissions, I joined in the decision to dismiss the appeal.

Lord Justice Kitchin:

51. I agree.

Lady Justice Gloster:

52. I also agree.