Moeliker v A. Reyrolle & Company Ltd

CourtCourt of Appeal
JudgeLORD JUSTICE BROWNE, LORD JUSTICE SHAW, LORD JUSTICE STEPHENSON
Judgment Date30 Jan 1976
JurisdictionEngland & Wales
Neutral Citation[1976] EWCA Civ J0130-5

[1976] EWCA Civ J0130-5

In The Supreme Court of Judicature

Court of Appeal

(Appeal of Plaintiff from judgment of Mr. Justice Boreham, London, March 4, 1975.)

Before:

Lord Justice Stephenson,

Lord Justice Browne and

Lord Justice Shaw

Moeliker
(Appellant-Plaintiff)
and
A. Reyrolle & Co. Ltd.
Respondents-Defendants)

MR L.D. LAWTON. Q.C. and MR R. TURNER, (instructed by Messrs. W.H. Thompson) appeared on behalf of the Appellant (Plaintiff).

MR A.C. LAURISTON. Q.C. and MR J.B. DEBY. (instructed by Messrs. Tilley Swangren of Sunderland) appeared on behalf of the Respondents (Defendants).

LORD JUSTICE BROWNE
1

This Is an appeal from a judgment and order of Mr. Justice Boreham at Newcastle-upon-Tyne on the 24th March, 1975, by which he awarded the plaintiff a total of £3,000 damages for personal Injuries. The total of £3,000 was made up of two items, £2,250 for pain and suffering and loss of amenity, and £750 for loss of earning capacity. He also recovered £245.03 interest. There were no special damages, which were extinguished by the State benefits The plaintiff appeals, saying that the damages awarded under each of these heads, and, therefore, the total, are much too low.

2

Both this case and the next case after it In our list, Nicholls -v- National Coal Board, raise the same very important and difficult question as to the principles on which damages for loss of earning capacity should be assessed. We therefore reserved our judgment in this case so that we could also hear the argument in the Nicholls case, In which we also reserved judgment. But each case also raised another point, which was different In the two cases. We are giving separate judgments in the two cases, but we shall deal in this judgment with the general principles which, in our view, are applicable to damages for less of earning capacity, and apply our conclusions In this case to the Nicholls case without repeating them; In our judgments in the present case we have taken into consideration the arguments in both cases, for which we are greatly indebted.

3

Mr. Moeliker was, and is, employed by A. Reynolls & Co. Ltd. His claim arose out of an accident at work on the 27th April, 1973. Liability was denied on the pleadings, but was admitted before the trial, and it is therefore not necessary to set out in detail the facts about the accident. It is enoughto say that the plaintiff was working on a horizontal boring machine; for some reason, the table top moved and the plaintiff's left hand was trapped, with the result that he suffered a partial amputation of his left thumb and left index finger. The judge had before him four agreed medical reports, which were also before us, and he summarised the injuries as follows: "The injuries he sustained are set out in four agreed medical reports which are before me and which I have read. He sustained, first of all, a traumatic amputation of his left thumb through the base of the terminal phalanx, so that he now has but one phalanx to his left thumb. Secondly, a traumatic amputation of the left index finger through the base of the middle phalanx, so that he has, so far as his index finger is concerned, the knuckle joint and the net succeeding joint left." The plaintiff lost about ½' of his left thumb and about 1½' of his left Index finger

4

The plaintiff was aged 45 at the time of the trial, and he is a bachelor. He is right handed. He left school at the age 14 and was apprenticed to the defendants as a centre lathe turner. He has worked for them ever since, which is more than thirty years. At the time of the accident and, I understand, for a long time before that he was working as a horizontal borer. It is clear from the evidence of Mr. Legg, the defendants production director, that the plaintiff is a skilled man and a valued employee. The defendants employ about 14 or 15 borers, some horizontal borers and some vertical.

5

After the accident the plaintiff was in hospital for five days and off work for about 15 weeks. He went back to work for the defendants in August, 1973, in his pre-accident work as ahorizontal borer, and was still doing that work at the time of the trial. He has sustained no loss of wages. He earns about £1,500 a year. He said in evidence that In the early months after he got back to work his hand felt "Tender. Every time I knocked the finger or the thumb it hurt really hard." (see p. 36 A/B of the transcript). At the time of Mr. D'Nettos first report, dated 13th October, 1973 (about six months after the accident), the plaintiff was complaining of tingling and tenderness over the stumps of his thumb and finger, which were diminishing in severity with the passage of time, (see p. 17.) At the time of Mr. Duettos second report, dated 9th March, 1974, he was still suffering from this tingling and tenderness, though they had diminished in severity since the first report; he also complained of severe pain in the stumps when the weather was cold, (see p. 22.)

6

At the time of Mr. D'Nettos third report, dated 17th January, 1975, the tingling, tenderness and pain in cold weather had not altered since his report of March, 1974. (see p. 27.)

7

The plaintiff's disabilities and difficulties at the time of the trial were as follows: (a) The physical situation. I borrow with gratitude the judge's description, which seems to me to sum up admirably the plaintiff's-evidence and the agreed medical reports. "Over the period that has ensued since, the accident he" – that Is, the plaintiff – "has by his own efforts increased the mobility and the use of what is left of the thumb and forefinger of his left hand. The progress is, as I have indicated, set out in the medical reports and I shall serve no useful purpose by extending this judgment by going through the details of it. It will suffice, and I trust do justice to theplaintiff, if I refer in a little more detail to the present situation as he describes it and as the two doctors confirm it.

8

I have heard Mr. Moeliker in the witness box. I accept his evidence, and he tells me this, that there is nowpractically full movement at the joint at the base of the thumb. There is really no movement at the next succeeding joint. There is tenderness at the top of the stump of the thumb. Mr. Moeliker seems to think that there is still a little bit of nail which is causing that tenderness. I venture to doubt that, In view of his own doctor's medical report. It seems more likely there is something equivalent to a tiny spur of bone underneath the end of the stump which has produced that particular symptom, but no matter, I do not doubt the symptom.

9

He has similarly pretty good movement in the knuckle joint of the index finger, but practically none in the only remaining joint left in that finger. The tip of that stump is tender, and he says, and I accept, they become particularly tender and painful in cold weather when they go numb and it is very difficult to get the feeling back. Of course, as he says, they are particularly tender if he happens to knock either one or both of those extremities of those two fingers. He gets a certain amount of tingling over the stumps of both of those fingers, and I accept from the medical reports that that will not disappear completely. So far as the tender spots are concerned, I accept that those will probably continue, and I accept from the doctors that the aggravation of his symptoms in cold weather will also continue as a permanent feature?.

10

As a result of the tenderness and the lack of movement cf the first joint of both thumb and forefinger, there is reallyvery little pinch grip between what is left of the thumb and forefinger. Mr. Moellker demonstrated by trying to pick up a pen. He finds that very difficult indeed, with what is left of his thumb and forefinger. On the other hand, as he accepts, it is comparatively easy for him to do that sort of thing by using his thumb and middle finger. Otherwise the grip of the hand Is still good." The plaintiff said in evidence that if he knocked or bumped the tender spot on the end of his thumb, "(I) just jump up & height. It hurts. Really hurts if you knock it." (see p. 37G.)

11

(b) At work. Again, I borrow with gratitude from the judgment: "So far as work is concerned, I think the position is best summarised In his own words. He said that he can still do the work in the sense of producing the result that he would wish to produce, and which no doubt his employers would expect of him, but he finds It rather more difficult to achieve. There are particular difficulties. There is the difficulty of grinding small tools, and the difficulty of using a micrometer on holes under 2½ inches in diameter and he says when that occurs, and again I accept his evidence, he has to abandon the use of his left hand, go round to the other side of the machine and use his dominant right hand. I have heard from both sides, employer and employee, and there Is no doubt that he still does his job to the entire satisfaction of the defendants, as he always has done."

12

(c) At home. The thumb and index finger are the most important part of the hand in Its use for all sorts of purposes, and although the plaintiff Is right-handed, I accept that this injury causes him some difficulty in doing up buttons, tying his tie and all sorts of everyday operations. He new wears zips ontrousers instead of buttons, and a clip-on tie.

13

(d) Recreation. So far as his evidence goes, the plaintiff's only leisure activity is sea fishing, on which he is very keen. He has his own boat at South Shields, and before the accident he used to go fishing every week-end and in his holidays all the year round. Since the accident he has not been able to go fishing In the winter because of the effect of the cold on his injured hand, though he still fishes in the summer. He said in evidence: have not been fishing since last October. I tried going, but the cold, as I say, hits...

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