Hull v Sanderson (Admin of Estate of Mr Sanderson - Deceased)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Smith,Lord Justice Scott Baker,Lord Justice Tuckey |
| Judgment Date | 05 November 2008 |
| Neutral Citation | [2008] EWCA Civ 1211 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2008/0666 |
| Date | 05 November 2008 |
[2008] EWCA Civ 1211
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRESTON COUNTY COURT
MR RECORDER HALLIWELL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Tuckey
Lord Justice Scott Baker and
Lady Justice Smith
Case No: B3/2008/0666
6PR01342
Mr Simon Butler & Ms Abi McHugh de Clare (instructed by Birchall Blackburn LLP) for the Appellant
Mr Stephen Douglas (instructed by Messrs A D Varley & Co) for the Respondent
Hearing date : 22 October 2008
Introduction
This is an appeal from the order of Mr Recorder Halliwell, sitting in the Preston County Court on 11 March 2008. The claimant, Ms Donna Marie Hull, had alleged that she had been infected by the campylobacter bacterium as the result of her employers' breach of duty during the course of her employment as a turkey plucker. The recorder gave judgment for Ms Hull for £16,237.49. The employers now appeal against that order.
The factual background and the trial
At the material time in 2003, Mr and Mrs Sanderson ran a farm at Hutton near Preston. Mr Sanderson has since died. Each year before Christmas they took on extra labour to prepare turkeys for sale. On 15 December 2003, Ms Hull began work as a plucker. On 20 December she became ill and was soon diagnosed as suffering from campylobacter enteritis. She believed this to have resulted from her employment and, in March 2006, she commenced an action for damages. The particulars of claim alleged a number of statutory and common law breaches of duty, as a result of which she alleged she had been exposed to the bacteria and had developed the disease. The employers denied breach of duty and causation.
The claimant also alleged that the turkeys had been infected with the campylobacter bacterium as the result of eating contaminated food. However, during the hearing, that allegation was abandoned and the action proceeded on the basis that the employers had failed to protect Ms Hull from the risks of infection which were inherent in handling dead poultry.
The action came on for hearing on 6 December 2007. The recorder heard lay evidence about the working conditions and the health and safety arrangements. It emerged that Mr and Mrs Sanderson had been unaware of the risk of campylobacter infection and had not warned Ms Hull about it. They provided gloves and aprons. Ms Hull found that the gloves were too big for her very small hands. She noticed that Mr Sanderson and some other employees plucked turkeys without gloves. She spoke to Mr Sanderson about this and he told her that she could work without gloves if she preferred to. So from the third day, she worked without gloves.
The employers' case on liability was that the only effective means of reducing the risk of infection was regular and thorough hand washing. They had provided suitable facilities. Although they had not warned Ms Hull about the risks of the campylobacter bacterium, it was contended that all she needed to know was that she should obey the ordinary common sense rules of hygiene. She had worked in the catering industry in the past and was or should have been aware of such rules. Ms Hull said that she washed her hands at each break before eating or having a cigarette.
The recorder also heard expert witnesses: Mr M.R.Zeiderman, a Consultant Gastroenterologist and General Surgeon for Ms Hull and Mr David Joyce, a microbiologist, for the employers. There was a measure of agreement between them. They agreed that campylobacter bacteria are very commonly found in poultry but are also common in other circumstances, including animal excrement. The risks had been known of for some years and advice was available as to the precautions which should be taken. The experts also agreed that the only route by which the bacteria could have entered Ms Hull's body was by her mouth; it could not have entered through a cut or abrasion to the skin.
Ms Hull's case on that issue was that she should have been warned of the risk of infection if she were to touch her mouth while her hand might be contaminated. Mrs Sanderson agreed that no such warning had been given but her case was that it was common sense that one would not touch one's face while working with dead turkeys; Ms Hull should have known that.
The experts were asked to consider whether it was probable that Ms Hull had picked up the infection at work as opposed to elsewhere. Mr Zeiderman was of the view that she had probably picked it up at work. The incubation period was between 1 to 3 days; the respondent had worked from 15 to 20 December and became ill on 20 December. It would be a remarkable coincidence if she had picked up the infection elsewhere. Notwithstanding that element of coincidence, Mr Joyce felt unable to agree.
The first draft judgment
At the end of a commendably expeditious hearing, the recorder reserved his judgment. On 19 December 2007, he sent a draft judgment to the parties. In it he held that the employers had been negligent and had breached several statutory duties. These included a failure to provide suitable gloves and to tell Ms Hull to change them frequently and also a failure to warn Ms Hull of the risks of exposure to campylobacter bacteria from the turkeys and to advise her as to the precautions she should take to minimize the risk of infection. This should have included advice about not touching her face or mouth while her hands were contaminated. The recorder rejected the suggestion that Ms Hull had been contributorily negligent.
As to causation, the recorder first considered whether Ms Hull had contracted the infection at work or elsewhere. He held that, on the balance of probabilities, she had picked it up at work. He added that the most likely explanation for the infection was that, having handled parts of the turkey carrying the bacterium or touched contaminated items or materials with her hands, one of her hands came into contact with her mouth and she ingested the bacterium.
The recorder then turned to consider whether, but for the employers' negligence, Ms Hull would probably not have contracted the infection. He noted that the burden of proof lay on Ms Hull.
The recorder reviewed his findings of breach of duty, including the employers' failure to give proper advice. He asked himself whether that advice would have been effective. At paragraph 45, he noted that Ms Hull had not been asked hypothetically whether she would have heeded such advice. He considered that evidence on that issue was likely to be self-serving and of limited value. He continued:
“Had she been given such advice, no doubt she would have been more circumspect than she was. She would have been less willing to discard her gloves. Had she continued to wear gloves, she would have changed her gloves each day. Had she made a decision to discard the gloves, she might have been more circumspect in touching her face by hand. It is quite possible that she would also have been more circumspect generally in relation to the use of her hands, particularly after they had come into contact with contaminated items.”
The recorder then observed that these thought processes 'involved a considerable amount of speculation'. He turned to consider all the ways in which Ms Hull might have come into contact with the bacteria. He thought it possible that she could have picked it up from a door handle or table or the draining board of the sink unit. He did not say whether such contact would have resulted from negligence or have been unavoidable. He thought that some risk would have arisen however circumspect Ms Hull had been. He observed that if she inadvertently touched her mouth with her hand while plucking a turkey, she would be exposed to a similar level of risk, whether her hand was gloved or not. In the end, he said that there was a real possibility that the respondent had become infected owing to the employers' breach of duty but he could not say on the balance of probabilities that she had been. He found in favour of the employers.
Submissions on receipt of the first draft judgment
Immediately on receipt of the draft judgment, Mr Douglas, counsel for Ms Hull, contacted the recorder and asked him to reconsider his holding on causation. He submitted that it was not possible for Ms Hull to satisfy the 'but for' test of causation. It should be sufficient for her to show that the employers' breach of duty had materially increased the risk of her contracting the infection. He apologised for his omission to address the point in his closing submission. He asked for the opportunity for both parties to put in detailed submissions.
The recorder's response was to suggest to both counsel that they should prepare further written submissions. A timetable was quickly agreed.
Mr Douglas submitted that the case fell within the principle expounded by the House of Lords in Fairchild v Glenhaven Funeral Services [2003] 1 AC 32, where the House of Lords had held that, in a case of mesothelioma, where it was impossible for a claimant to prove which of several employers who had all exposed him to asbestos dust had actually caused the disease, it was sufficient for the claimant to show that the employer's breach of duty had materially increased the risk of injury. He also cited McGhee v National Coal Board [1973] 1 WLR 1 where, he said, the House had held that, where difficulties of proof arose in a dermatitis case, it was sufficient for the claimant to prove that the defendant's breach of duty had...
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