Nicholls v National Coal Board

JurisdictionEngland & Wales
CourtCourt of Appeal
Judgment Date30 Jan 1976
Judgment citation (vLex)[1976] EWCA Civ J0130-6

[1976] EWCA Civ J0130-6

In The Supreme Court of Judicature

Court of Appeal

(Appeal of Defendants from judgment of Mr. Justice Swanwick, Chesterfield, dated May 5, 1975.)


Lord Justice Stephenson,

Lord Justice Browne and

Lord Justice Shaw.

(Respondent - Plaintiff)
National Coal Board
(Appellants - Defendants)

MRS M. O. BICKFORD-SMITH for MR F. KENNEDY, Q. C. and MR. P. JOHNSON. (instructed by Mr. J. G. Tyrrell, National Coal Board) appeared on behalf of the Appellants (Defendants).

MR W. WOODWARD for MR R. C. ROUGIER, Q. C. and MR RAYMOND WALKER, (instructed by Messrs. Hopkin & Sons of Mansfield, Notts.) appeared on behalf of the Respondent (Plaintiff).


I will ask Lord Justice Browne to read the first judgment.


LORD JUSTICE BROWNE This Is an appeal from a judgment and order of Mr. Justice Swanwick at Nottingham on the 5th May, 1975, by which he awarded the plaintiff a total of £12, 307 as damages for personal injuries and £207 interest. On liability, the parties had reached a compromise agreement that the plaintiff should receive 95 per cent of his total damages. The defendants appeal, saying that the damages under two of the heads making up the total of £12,307 are excessive; one relates to the multiplier to be applied in assessing part of the damages for loss of future earnings and the other to the loss of earning capacity.


The plaintiff was and is employed by the defendants; he has been a pitman ever since he left school, and has lived in the same Nottinghamshire village all his life. The accident happened on the 9th September, 1973. The plaintiff was then aged 47, nearly 48; at the date of the trial he was about 49½ and is now 50. He was working for the defendants at their Sutton Colliery as a stable hole charge hand; he had done this job for about eight years, This was, of course, underground work in the stable holes at each end of the coal face. He was in charge of a team of four men, including himself, for whose safety he was responsible. It was hand work, not machine work, and he was actually doing the work himself as well as being in charge. He said it was important and interesting work, though very hard. He had worked on a coal-cutter In the past, but not for about three years before the accident, and holds a qualification on coal-cutters.


In view of the agreement as to liability, I need not describe the accident in detail. What happened was that as the plaintiff was going to his place of work underground he stumbled and hurt his hack. He immediately felt pain, but managed to get on to the coal face. However, he was unable to work, because of the pain and because his back locked. He rode out on the conveyor belt, was taken home by ambulance, and seen by his own doctor, who recommended rest in bed, on boards. His back did not get better; he developed pain and tingling down his right leg, and on the 2nd January, 1974, he was seen by an orthopedic surgeon, Mr. Hopkins. We have before us two agreed reports of Mr. Hopkins, dated 16th May and 22nd November, 1974. On the 2nd January, 1974, Mr. Hopkins thought 'that the plaintiff was recovering from a mild disc prolapse and advised a back support. This was a canvas corset with a steel back, extending from just above the navel down to the level of the groin. X-rays of the lumbar spine and pelvis taken on that day showed some degenerative changes, but these had been virtually symptomless before the accident.


The plaintiff went back to work on the 27th March, 1974, 28 weeks after the accident. He could not do his pre-accident work. He was tried on three other Jobs, for one shift each, but physically could not manage any of them. He was then found a job as a main trunk belt patroller, and also taking readings of the level of methane which is pumped out of the pit. This involved a loss of earnings to which I shall refer later.


Mr. Hopkins report of the 16th May, 1974 (that Is about eight months after the accident), says that, although the plaintiffs symptoms were then very much better than they were,he still had some discomfort and weakness in his hack he was complaining that he still got pain in his back, but had lost the leg pain. In his report of the 22nd November, 1974, Mr, Hopkins says that, "the findings noted are essentially the same as in the previous report", except that mobility of the lumbar spine seemed to be very slightly freer, but that straight leg raising on the right had diminished from 90 degrees to 70 degrees. He says that the plaintiff "still seems to have persistent symptoms of backache and right thigh pain… which) have never really settled down." As to the pre-existing degeneration, he says: "Undoubtedly the patient's spine was affected, to quite an extent, by degenerative changes before he suffered the accident in question. Nevertheless, It was at that time entirely symptom free." As to the future, his opinion was that: "It is difficult, of course, to give a prognosis, but one would epact some gradual improvement in the next year or so, though there may be periods of exacerbation. One would not expect any serious deterioration in the future."


Although there is now no appeal against the judge's award of general damages for pain and suffering and loss of amenity, I think that the plaintiff's medical history and his present physical condition are relevant to the damages for loss of earning capacity. At the time of the trial he was still doing the same work as when he went back to work after the accident. The Judge found that, "He can do his present Job and as far as anyone knows he will be able to continue to do it for the rest of his working life." (p. 15 B/C) He still wears the corset, except when he is in bed. He gets pain in his back if he walks more than about a mile or if he leaves off the corset, andoccasionally while he Is wearing the corset. He has had periods off work as a result of his back about which admissions were made to which is will refer in the next paragraph of this judgment is earnings in his present job are £40 a week, that is to say, about £2,000 a year, but because of the periods he has to be off work he cannot earn as much as that in a year.


The parties made a number of agreements as to various figures and factors relevant to the damages which are set out in the judgment at page 15C and page 16A: "Now the parties very sensibly and helpfully have come to certain agreements of which I have been informed and which assist me in coming to and calculating the damages which should be awarded. First of all, it has been agreed, as I have already said, that the defendants are liable to the extent of 95 per cent. of the plaintiff's total damages. Secondly, it has been agreed that the special damages to date are £1,100. Thirdly, it has been agreed that the difference between the wages of the plaintiff's pre-accident job and his present job is £900 per annum net. Next it has been agreed that the plaintiff's future absences from today (up to which special damages have been agreed) will be six weeks per annum, on the basis that from today his disabilities are to be regarded as being 60 per cent, attributable to the accident and 40 per cent. attributable to the pre-existing degenerative-changes and causes to which I have referred. Finally, it is agreed that but for the accident the...

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9 cases
  • Ebanks (Andrew) v Jephther McClymont
    • Jamaica
    • Supreme Court
    • 8 March 2007
    ...income that might occur in the future when the financial consequences of the impaired earning capacity might be felt. 52 42. In Nicholls v National Coal Board [1976] I.C.R. 266, the claimant was 49 ½ years old at the time of trial. He was injured and could no longer continue his job as a p......
  • Moeliker v A. Reyrolle & Company Ltd
    • United Kingdom
    • Court of Appeal
    • 30 January 1976
    ...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 b......
  • Osbourne (Icilda) v George Barned, Metropolitan Management Transport Holdings Ltd and Owen Clarke
    • Jamaica
    • Supreme Court
    • 17 February 2006
    ...Browne L.J. gave reserved judgments: Moeliker v. A. Revrotle & Co. Ltd. [1976] I.C.R. 253 and Nicholls v. National Coat Board [1976] I.C.R. 266. In Moeliker's case Browne L.J. said, at p. 262: "Where a plaintiff is in work at the date of the trial," - and this case is compara......
  • Powell (Morris) v Bell's Trucking and Heavy Duty Equipment Ltd and Sorn Hill Aggregate Ltd
    • Jamaica
    • Supreme Court
    • 16 February 2006
    ...the time of the trial and this led him into the error to which he later confessed ( Moeliker, Smith and Nicholls v. National Coal Board [1976] I.C.R. 266). The error in logic was obvious. If the person's competitiveness on the open labour market has in actuality been reduced, what differenc......
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