Rushton v National Coal Board
|England & Wales
|LORD JUSTICE SINGLETON,LORD JUSTICE BIRKETT,LORD JUSTICE ROMER
|13 January 1953
|Judgment citation (vLex)
| EWCA Civ J0113-1
|Court of Appeal
|1950 R. No. 1794
|13 January 1953
 EWCA Civ J0113-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Singleton
Lord Justice Birkett, and
Lord Justice Romer
Counsel for the Appellants: MR GERALD GARDINER, Q. C., and MR H.S.L. RIGG, instructed by Mr R.S.S. Allen, Agent for Mr C.R. Hodgson, Manchester.
Counsel for the Respondent: MR E. WOOLL, Q.C., and MR A.D. PAPPWORTH, instructed by Messrs Mawby, Barrie & Letts, Agents for Messrs Silverman & Livermore, Liverpool.
The Plaintiff, John Rushton, was employed by the National Coal Board at one of their collieries in the neighbourhood of St. Helens when he met with an accident of a very serious character. He had been working in the mine for some 2½ years when, on the 18th April, 1950, he tripped and fell and his arm came into touch with the moving part of the machinery, some part of a conveyor belt, with the result that his right arm was orn away from him and a part of the scapula was torn away with it along with muscles. In the result the Plaintiff became a one-armed man, and his injury was such that it was impossible to fix upon him anything in the nature of an artificial arm. It was a grievous injury indeed.
He brought an action against the National Coal Board claiming damages for negligence and for breach of statutory duty, and on the 27th June, 1952, Mr Justice Byrne at the Assizes at Liverpool gave judgment in his favor holding that the Defendants were in breach of the statutory duty which they owd to him, and he assessed the damages to which the Plaintiff was entitled at the sum of £10,000.
The Defendants, the National Coal Board, appeal to this Court, and their appeal is directed only to the amount of damages awarded to the Plaintiff; thus for the purposes of this Court it is not disputed that the National Coal Board must pay damages; the only question is how much those damages should be.
The submission made yesterday on behalf of the National Coal Board by Mr Gerald Gardiner was that the amount awarded by Mr Justice Byrne was very much higher than was justified by the circumstances of this case, and that this Court ought to reduce the amount ofdamages to be awarded to the Plaintiff.
First let me describe the injuries as they were set out in a report from the County Hospital, Whiston, near Presot, of the 7th December, 1950: "James Rushton was admitted to this hospital on the 18th of April 1950. His right arm had been vulsed and he was suffering from shock. After appropriate treatment of the latter an operation was carried out the same day under a general naesthetic and a blood transfusion was given. The whole arm, including the scapula and its muscles had been torn off, leaving the lavicle intact. Hemohage was controlled and the raw area adequately covered with the skin available. This wound healed very well. The following day his chest was troublesome, and subsequently it was found that he also had fractures of the second, third and fourth ribs on the right side. This injury had caused a pneumoorax, i.e. the entry of air into the chest avity from laceration of the lung and this, in conjunction with the severe damage to the chest wall so limited movements of his chest that he developed a collapse of the base of the right lung with infection amounting to a pneumonia' which was undoubtedly a direct result of the accident. He was discharged on the 11th of May, 1950. It was found later that the projecting lateral end of his clavicle was tending to cause ulcration of the skin and one inch of this bone was removed on the 28th June, 1950, under a general anaesthetic. He was discharged again on the 1st of July 1950. He was seen again in September, 1950, when he complained of pain in his "phantom' limb, i.e. as if the limb were still actually present, a well recognised symptom of such injuries. I have not seen him since and do notknow how far he suffers from this complaint now."
That report from the hospital was an agreed report which was used before the learned Judge, and there gave evidence before Mr Justice Byrne two doctors, or one doctor and a surgeon on behalf of the Plaintiff, and a doctor on behalf of the Defendants. They amplified that report; they did not differ seriously from it; everyone agreed that the injury which the Plaintiff had suffered was a dreadful injury of its kind. There was some question as to the condition of the chest. There had been X-ray examinations of that, and there was nothing shown in the way of disease of the chest, but undoubtedly after the damage which was done by a broken rib or ribs pneumonia had developed and the Plaintiff was left with a cough, and, according to one doctor, there was hroni bronchitis.
After the accident Mr Rushton remained in hospital for about three weeks. It strikes one as somewhat amazing that this man, who was then approaching 36 years of age, was out of hospital so soon after an injury of this kind. He must have been a fit and strong man beforehand. When about 11 weeks had gone the Defendants offered him work as a clerk at the same colliery, and he took that work. He had been earning, when he was a labourer in the mine, £6. 2s. 6d a week; his earnings as a clerk were almost the same. The rate of wage which he would have been earning at the date of the trial, had he still been a labourer in the pit, would have seem some £7. 5s. d. There had been on increase of wages. After he had worked 14 months as a clerk with the Defendas he left that work at which he might have remained, and at which hemight have been still had he so wished. He gave up his employment and commenced to work on his own account in duplicating, and at that work we were told he made some £2 or £3 a week profit. He had thought at one time of taking to commercial art, and it had been his idea to make commercial art his main occupation in life. He had been some six years in the Fors, part of which time was spent in the Middle East, and on his return from the Forces he had some domestic trouble which caused him to think he had better earn money, and he decided to work as a labourer in a coal mine. Dradful though this man's injuries were, the loss of earnings which followed is probably lower than in almost any case of this kind which comes before the Court when the person injured has been earning money. It is true, as Mr Wooll puts it, that a man who is injured is not bound to take every offer of work made to him; but this man after the accident had accepted work as a clerk, and as a clerk did earn, and could have continued to earn as a clerk, wages almost as high as he was earning at the date of the accident; so that the loss of earnings is only a small part of the loss in this case. The out-of-pocket loss at the date of the trial was only some £83, and that was included in the general award of £10,000 damages.
We have been reminded that when damages have to be assessed in a case of this kind there are many elements for consideration: The pain and suffering undergone and which may occur in the future; the loss of some of the amenities of life; the fact that a man with an injury of this kind will always require some measure of help, even though he may be able to earn considerable money. Those are some of the matterswhich have to be taken into consideration, and another is that which I have mentioned already, the fact that his earnings will probably be less than they were before.
Mr Gerald Gardiner directed our attention to a number of cases which have been decided in the Courts recently, and he submitted that however you look at this case, the award of £10,000 by way of damages was too high and was completely out of line with the decisions of this Court and of Judges of the Queen's Bench Division recently.
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Walker (Marjorie), Michael Costa and Kenneth Neysmith, executors of the estate of Neville Walker (Deceased) v Victor Lobban
...or unreasonably low. 61 In making an award, the procedure to be adopted by the trial judges was outlined by Birkett, L.J. in Rushton v National Coal Board  1 ALL ER 314 at 317 when he said: "The courts have been compelled by the logic of circumstances to decree that their only possib......
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