Armstrong and Others v British Coal Corporation
| Jurisdiction | England & Wales |
| Judge | Lord Justice Judge,Buxton LJ,Simon Brown LJ |
| Judgment Date | 31 July 1998 |
| Neutral Citation | [1998] EWCA Civ J0731-13 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | QBENF 97/1578/C |
| Date | 31 July 1998 |
[1998] EWCA Civ J0731-13
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE STEPHENSON (sitting as a Deputy High Court Judge)
Royal Courts of Justice
Strand
London W2A 21L
Lord Justice Simon Brown
Lord Justice Judge
Lord Justice Buxton
QBENF 97/1578/C
MR RONALD WALKER QC, MR RICHARD METHUEN QC and MISS CATHERINE FOSTER appeared on behalf of the Appellant.
MR JOHN HENDY QC, MR CHRISTOPHER CARLING and MR IAN SCOTT appeared on behalf of the Respondent.
( )
This is an appeal by the defendants from the decision of His Honour Judge Stephenson, sitting as a judge of the High Court, Queen's Bench Division, dated 30th September 1997 that they were liable to seven plaintiffs for personal injuries loss and damage suffered in the course of their employment. These plaintiffs were Cudlip, Stokoe, Martin, Lamb, Nullis, Carver and Wright. Claims by two other plaintiffs (Armstrong and Mushens) were rejected. Damages for each successful plaintiff were separately assessed. Some of these awards are also challenged.
Liability
The nine plaintiffs were lead cases, representative of some twenty five thousand similar claims, brought against the defendants by employees alleging that in consequence of the defendants' negligence they developed and suffered from the condition known as Vibratory White Finger (VWF). The critical symptoms of this condition, in particular loss and impairment of sensation and movement in the fingers, are now well known. The condition has two components, the first, vascular, and the second, more recently understood, sensorineural. The symptoms are often very minor indeed, limited to either intermittent tingling or intermittent numbness, and in the context of employees working in the mining industry, facing constant and major physical danger, trivial. In some cases however, the condition can become much more serious and involve permanent discomfort and disability in the digits of each hand. The condition can occur naturally or arise from constitutional causes (CWF) which it does for about 4-5% of the overall population. VWF is the manifestation of the condition brought about by work with powered hand tools through which forceful vibrations are transmitted to the hands and arms of the operator. The effect of exposure to such equipment is cumulative, the greater the exposure to vibration the greater the consequent risk, and the potential risks are correspondingly diminished by reducing the extent of exposure. Provided the condition is recognised in its early minor form it will normally be cured by removing the employee in question from work with vibrating tools. The judge accepted that
"It is an impossible task to assess exposure on an annual basis …… It is clear that the sooner action is taken to reduce or stop vibration exposure the more likely the onset of VWF will be avoided or the symptoms cease to progress or even regress."
The critical question in the present appeal is the assessment of the degree of exposure, if any, which may, subject to appropriate precautions for the continuing safety of the employees, reasonably be permitted.
In 1995 Judge Stephenson began the hearing of the lead cases by considering and deciding two preliminary issues. Incorporating the answers he provided to the questions posed to him, in a judgment dated 15 January 1996, he decided that
(a) by 1st January 1973 the defendants ought to have recognised that work with the tools complained of in the lead cases gave rise to a foreseeable risk of VWF;
(b) by 1st January 1975 the defendants ought to have recognised that effective precautions in the form of warnings, system and routine examination, could and should have been taken in respect of such work;
(c) by 1st January 1976 the defendants ought to have recognised that effective precautions in the form of job rotation could and should have been taken.
The defendants appealed against these conclusions. During the course of the hearing they conceded that they never appreciated and did nothing to minimise or prevent the risk which they should have recognised by January 1973, and that they had not taken the precautions found should have been taken by January 1975 and January 1976 respectively. They were nevertheless anxious to underline that the adverse findings were not conclusive on the issue of liability. Only one of the plaintiffs, Carver, had given evidence. Mr Richard Maxwell QC argued that he had failed to establish "prolonged and regular exposure to vibrating tools" which was thought at that time to be a "most significant feature in any relevant working history", and further emphasised that the defendants were not prepared to admit that any of the plaintiffs actually suffered from VWF. Mr John Hendy QC for the plaintiffs accepted that the decision in the preliminary issues did not constitute a finding binding for all purposes in the litigation that any individual plaintiff had indeed suffered from VWF. He conceded that no assumptions could be made about the claims made by any individual plaintiff other than those which had been expressly or by implication decided by the preliminary issues. The defendants were "entitled to advance any defence in each case where symptoms developed after January 1975, except ignorance of a foreseeable risk of VWF, and complete inaction."
In deference to the concerns expressed by Mr Maxwell in the course of the argument I thought it right to indicate a number of areas, which, subject to the consequences of the decisions in the preliminary issues, remained open. Accordingly at the end of my judgment in the Court of Appeal (with which Nourse and Waller LJJs agreed) I said
"The following questions remain open:
(a) whether he (each plaintiff) suffered excessive exposure to vibrating tools and equipment
(b) whether the defendants negligently failed to take effective precautions to prevent avoid or reduce such excessive exposure
(c) whether he suffered occupational white finger in consequence of the defendants' negligence.
In each such case all questions of causation, the quantum of damages (if any) and limitation remain open for decision."
At the subsequent hearing before Judge Stephenson (under consideration in the present appea1) there was a great debate about the effect of this passage. Although the refinement of argument to which these words—in reality the single word "excessive" in a forty-two page long judgment—gave rise may be a tribute to the ingenuity of counsel, the judge summarised their effect correctly when he said that he did not believe they meant "more than that it was for each plaintiff to prove his case", or as he observed later, that each plaintiff had to show a breach of duty by the defendants. At the same time nothing in those words could possibly be understood to undermine or reduce the crucial importance of the findings on the preliminary issues, nor was it appropriate to consider the issues left open without reflecting on the issues which had been conclusively decided. Therefore in deciding whether each plaintiff had proved his case the judge was required to abide by the conclusions and logical consequences of his findings in the preliminary issues, and to consider all the evidence bearing on the issue of liability called before him both at the first and the subsequent hearings.
Exposure Levels
Judge Stephenson summarised the rival contentions. Before him the plaintiffs "took up the position at the outset that the men were at risk and the defendants did not take steps ……. they should have done, so subject to proof of causation and limitation, they were entitled to succeed, whatever the vibration levels. The defendants ……. took up a defensive position behind the state of knowledge in 1973 and defied the plaintiff to prove that exposure was excessive, and said that there was no liability …….". He rejected the argument that the plaintiffs had to establish "excessive exposure", that is, exposure above an established safe limit. He suggested that the defendants were arguing that "they were under no legal liability to take these steps because no-one knew what the lower limit was …… They are saying it is up to the workforce, who did not know that there was a risk, to prove what it was, and until the plaintiffs do that, they are perfectly entitled to do nothing until further research, carried out without their assistance (although as the largest employer of users of vibrating tools they had been asked to help) established that they were at risk all the time." Although this summary did not quite accurately reflect the argument being advanced by the defendants the issues raised in the appeal are now too narrow for the point to require analysis.
By the time the appeal was opened by Mr Ronald Walker QC, who had taken over the conduct of the litigation from Mr Maxwell, the major issue on liability had been closely considered and reduced to sensible proportions. The defendants were prepared to accept that they had correctly been held liable to the seven individual plaintiffs who were found to have been suffering from VWF consequent on their employment with the defendants and exposure to vibrating tools after January 1973. The main issue which Mr Walker wished this Court to resolve was the basis of the judge's conclusion on exposure on which the outcome of many of the other claims depends. He conceded that in the light of their proved exposure to vibrating equipment after January 1973, arrangements should have been in place to rotate the jobs of all these seven plaintiffs, with the exception...
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...in failing to take reasonable steps to limit the exposure of employed miners to VWF from the excessive use of vibratory tools ( Armstrong v British Coal Corpn [1998] CLY 975). As a result, the Department for Trade and Industry (“DTI”), which had assumed responsibility for British Coal's rel......
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