Frank Perry (Appellant/Claimant) v Raleys Solicitors (Respondents/Defendants)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Gloster,Lord Justice McFarlane,Sir Stephen Tomlinson |
| Judgment Date | 28 April 2017 |
| Neutral Citation | [2017] EWCA Civ 314 |
| Docket Number | Case No: B2/2015/1436 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 April 2017 |
[2017] EWCA Civ 314
Lady Justice Gloster
Vice President of the Court of Appeal, Civil Division
Lord Justice McFarlane
and
Sir Stephen Tomlinson
Case No: B2/2015/1436
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT LEEDS
His Honour Judge Saffman
9OL00362
Royal Courts of Justice
Strand, London, WC2A 2LL
Jonathan Watt-Pringle Esq QC and John Greenbourne Esq (instructed by Mellor Hargreaves Solicitors) for Mr Perry
Ben Quiney Esq QC (instructed by Berrymans Lace Mawer LLP) for Raleys Solicitors
Hearing dates: 24 November 2016
Approved Judgment
Introduction
This is an appeal by the appellant/claimant, Mr Frank Perry ("Mr Perry") against the judgment ("the judgment") of His Honour Judge Saffman ("the judge") sitting in the County Court at Leeds dated 15 April 2015. By his order of the same date the judge dismissed Mr Perry's claim for damages against his former solicitors, the respondents/defendants, Raleys ("Raleys"), on the grounds that Mr Perry had not established that their admitted negligence in the conduct of Mr Perry's claim for compensation for Vibration White Finger ("VWF") against his employer had in fact caused Mr Perry to settle his claim at an undervalue.
Mr Jonathan Watt-Pringle QC and Mr John Greenbourne appeared on behalf of Mr Perry. Mr Ben Quiney QC appeared on behalf of Raleys.
Factual background
Mr Perry was born on 8 October 1950. According to the judge's findings, he was unsophisticated and uneducated 1. He left school and became a miner in 1966, as an employee first of the National Coal Board, and then of its successor, the British Coal Corporation. As a result of using vibratory tools he developed VWF, a form of Hand Arm Vibration Syndrome ("HAVS"). He continued to work in the industry until he took redundancy in 1994 and has not worked since. In 1996 he instructed Raleys, to pursue on his behalf a claim for damages as a result of developing this condition.
As is well known, the Department for Trade and Industry ("DTI"), which had assumed responsibility for the liabilities of the National Coal Board/British Coal Corporation liability, set up a compensation scheme ("the Scheme") in 1999 to provide tariff-based compensation to miners who had been exposed to vibration and in consequence suffered from VWF. Mr Perry was entitled to claim under the Scheme.
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.
So far as relevant to this case, the Scheme operated as follows:
i) When making a claim, a claimant had to submit a completed questionnaire concerning his work history. IRISC would then allocate him to a particular occupational group, depending on his likely exposure to vibration. Thereafter he would undergo a medical examination in accordance with a defined Medical Assessment Process ("MAP") by doctors appointed under the Scheme. The examination and the resulting MAP1 report followed a standard
format CHA Schedule 4(2) medical report form. The purpose of the examination was to determine whether the claimant suffered from VWF and, if so, to define the severity of the condition by reference to the stagings of a scale referred to as the Stockholm Workshop Scale. A claimant could challenge the findings of the MAP1 report, but there was no provision for IRISC to do so.ii) Within 56 days of receipt of the MAP1 report, IRISC was obliged to make an offer of compensation or to reject the claim with reasons. The Scheme provided for compensation to be paid for pain, suffering and loss of amenity ("General Damages"), handicap on the labour market, and other financial losses ("Special Damages") including past and/or future loss of earnings.
The Scheme was supplemented by a Services Agreement of 9 May 2000, which came to be incorporated in the CHA as Schedule 7(1). It recorded the agreed approach to compensation for services. The respective medical experts of the parties to the Scheme rejected the idea that there should be an individual assessment of each claimant's ability to carry out particular household tasks. Instead, in the interests of consistency and efficiency, they agreed "that once the condition had reached a certain level(s) causation should be presumed and that a man could no longer carry out certain tasks without assistance". There were for this purpose 6 tasks, identified at paragraph 3.3 of Schedule 7(1) as follows:
"(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."
The procedure for making a services claim under the Services Agreement was as follows:
i) The experts produced a matrix identifying in respect of each staging of 2V and 2Sn late, or higher, which tasks a claimant would be presumed to require assistance with.
ii) Once he had a staging of at least 2V or 2Sn late, a claimant was entitled to a services award if he had previously performed one of the identified tasks, but now required assistance to do so as a result of his VWF. 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: see per Tomlinson LJ in Procter v Raleys [2015] EWCA Civ 400; [2015] PNLR 24 at paragraph 11 (iii).
iii) Factual evidence concerning the services claim would be presented by means of a simple questionnaire. Since it would be impracticable to investigate individual claims in any detail, the Scheme provided that:
"broad assumptions will be made about the average assistance that would be required for the particular task by the individual at the relevant stage".
iv) In addition to the claimant, his current or most recent helper(s) would also complete questionnaires.
v) A claimant would then be sent for a further medical examination ("MAP2"), which was solely concerned to consider whether there were any other conditions which, of themselves, would have prevented the claimant from undertaking the task in question
vi) A claimant was not usually contacted by IRISC concerning his claim, but the helpers would be. This normally consisted of a telephone interview, which might last 15 minutes, during which the helper would be asked whether he/she had assisted with the tasks claimed and, if so, when they started to do so. Even where the helper was out by a few years on dates, the information in the questionnaire would still be accepted.
vii) On receipt of the questionnaires, IRISC would consider each claim on its merits, adopting a pragmatic approach. If IRISC did not accept the claim entirely, it had to set out in detail the reasons for rejecting the claim in whole or part.
viii) The compensation was calculated by application of a multiplier/multiplicand approach, and an index-linked tariff was set in respect of each task according to the particular staging.
ix) IRISC could reject a claim for services in whole or in part if a claimant's work history after leaving the mining industry was such as to indicate that his ability to carry out the relevant tasks was not impaired. However, in order to be entitled to rebut the presumption that a man with a particular claimant's stagings could not carry out the relevant task without assistance, IRISC had to discharge the burden of establishing that the work actually carried out by the claimant was such as to demonstrate that he could not reasonably be expected to carry out all aspects of the task without assistance.
x) Pending resolution of the services claim, the claimant was entitled to receive an interim payment in respect of his claim for general damages and handicap on the labour market. By February 2001 the size of the interim payment had increased to 92.5% and by 20 November 2002 an agreement had been reached that it would be 100% of the claim.
Unlike ordinary civil litigation, claims under the Scheme were not subject to a particularly robust process of assessment: see paragraph 148 of the judgment.
With Raleys' assistance, Mr Perry pursued a claim for compensation against his former employers. Initially the claim started as a normal personal injury claim with legal aid. Raleys obtained a medical report from a Professor Kester dated 6 October 1997 in which he concluded that Mr Perry was suffering from VWF with stagings of 3V and 3Sn bilaterally. After the CHA came into effect on 22 January 1999, Mr Perry's claim continued under the Scheme. He did not undergo a MAP 1 as Professor Kester's report was accepted by IRISC. On 5 November 1999 the DTI made an offer to settle his claim for £11,660. This sum was for general damages only; there was no element to compensate for any inability to carry out services. On 25 November 1999, on the basis of Professor Kester's report, Mr Perry agreed to settle his claim for compensation for VWF by accepting the offer of £11,660. If he had proceeded with a claim for a services award, Professor Kester's conclusions that he was suffering from VWF with stagings of 3V and 3Sn bilaterally would have resulted in an assumption being made that he...
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