0370 270 6000

already registered?

Please sign in with your existing account details.

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

Rugby Joinery UK Ltd v Whitfield, Court of Appeal, 10 May 2005

20 May 2005
The issues

HAVS – vibration white finger – VWF – apportionment of damages between negligent and non- negligent exposure – the role of expert evidence in VWF cases.

The facts

The Claimant brought a claim against her employer for personal injuries resulting to her alleged negligent exposure to excessive vibration resulting in her suffering from vibration white finger. The Judge found for the Claimant awarding £13,520.00. The Defendant appealed.

The Defendant company operated a joinery and wood working business. In August 1970 the Claimant started work with the Defendant and stayed in their employment until December 1998. Her first job involved hammering nails into roof decks and sometimes drilling holes for bolts using an electric drill. After a year she moved to fitting hinges onto windows for which she used an airgun and an automatic screw gun. In 1975 she moved to manufacturing door frames also involving the use of an airgun. In 1979 her job changed to putting large hinges onto fire doors where she employed an old heavy airgun. In about 1990 she moved to the window line which involved beading and glazing requiring the use of a nail gun and a mastic gun. All the tools referred to vibrated while being used.

Between March 1993 and March 1994 she noticed she was suffering from outbreaks of coldness and numbness in the index finger of her left hand when she used the tools. Thereafter her symptoms became more significant. The Claimant’s claim along with several other claims had previously been tried before the Judge. The Judge had dismissed the Claimant’s claim. The Claimant had previously appealed to the court of Appeal which had reversed the Judge’s decision, entered judgement for the Claimant and remitted it for trial to the Judge. The Judge summarised the effect of the Court of Appeal’s decision in the following terms:-

“If any of the employees were in fact exposed to vibration after the beginning of 1992, the Defendant should reasonably have found that out, should reasonably have found that they were suffering from VWF, and should have prevented any further exposure.”

The Judge was then asked to deal with the interrelationship between non-negligent exposure and negligent exposure. It had been agreed between the parties that if she could attribute the whole of her symptoms to the Defendant the Claimant would be entitled to £15,000.00 general damages and £850.00 special damages. The Defendant argued that the damages awarded to the Claimant should be £15,850.00 multiplied by a fraction relating to the number of years the Claimant worked with tools after she had noticed the symptoms and the number of total years that she had worked with vibrating tools. The Judge rejected that approach on the basis that it was his job to look at he overall picture and to assess broadly speaking the amount by which the tortfeasor made the Claimant’s position worse. He concluded that the Claimant was entitled to 80% of £15,850.00. The Defendant appealed the decision.

The decision

There were three criticisms made of the judgement.

Firstly, had the Judge failed to take into account the possibility that the Claimant’s condition would have deteriorated if the Defendant had not been negligent? In other words had the Judge wrongly assumed that had the Claimant stopped working with tools in 1994 her condition would have neither improved nor deteriorated?

The Judge had not fallen into error on this point. Firstly he had had in mind that the reduction that he had made took into account not merely the first stage but something on account of the fact that deterioration beyond the first stage would well have occurred anyway. Secondly he had no evidence as to the likely extent of any further inevitable deterioration.

The Judge had been faced with what always was going to be a difficult problem. It would have been better if he had spelt out his reasoning more clearly.

Secondly, could it be said that the Judge had made too small a deduction on the basis of the Claimant’s own evidence? It had been suggested by the Defendant that the Claimant’s evidence should not have been accepted as to the time when she first noticed symptoms of what turned out to be VWF. Her evidence was consistent with what she told the doctor. It was unattractive for the Defendant to criticise the Claimant for not recalling the precise progression of the VWF bearing in mind that it was through their negligence that she was put in the position of having to recollect how the disease has progressed. The Defendant should have checked whether Mrs Whitfield and the other employees were suffering from VWF symptoms and warn them of the risks as soon as they were found to be suffering. The Judge could not be criticised on this ground.

Thirdly, should the Judge have used a different method of calculating the Claimant’s entitlement? Should the Judge have used the sort of time based apportionment that had been adopted in Allen -v- British Rail Engineering Limited?

The exercise in Allen was significantly more complicated than in this case. Had the Judge adopted an apportionment by reference to time he could not have been criticised. However, in light of the evidence before the Court in this particular case a straight line apportionment would have been unmaintainable as it would have resulted in a discount of about 80% and would have been unfair to the Claimant in that it would have wholly overlooked the fact that for a very substantial time the Claimant had worked without vibrationary tools without any apparent ill effect at all. It would be unrealistic to give to the early years of exposure the same weight as the later years. The Judge was entitled to adopt the approach he had done.

Appeal dismissed.

Comments

The Court gave brief guidance to practitioners with regard to the use of experts in VWF cases. When seeking expert medical advice and evidence in connection with such a claim experts should be alerted to the issue of deterioration in the employees condition after the symptoms manifest themselves even if the Claimant ceases to work with vibrationary tools. Practitioners should have regard to the Judgment of Smith J in Allen (paragraph 9) in which she noted that many months or years of vibration exposure might pass before any symptoms are noticed; that once the severe state of VWF had been reached further deterioration would not occur although some spontaneous improvement might occur following cessation of exposure. Practitioners should ask medical advisors to consider these issues specifically and identify them in their report with their best assessment of its likelihood and extent. Generally, bearing in mind that claims for VWF involve relatively small amounts of money, particularly compared with the likely level of costs, it was highly desirable that such claims should be settled rather than litigated and at an early stage.

focus on...

Legal updates

Contingent loss in negligence claims

Contingent loss is relevant to limitation; specifically, the date at which a claimant’s cause of action accrues for the purposes of a claim in the tort of negligence (as many claims against professional advisers are framed).

View

Legal updates

Legal and regulatory monthly update - September 2019

The latest update covering delegated authority, insurance product development, the senior insurance managers regime, data protection, operational control frameworks, Lloyds market, and horizon scanning.

View

Legal updates

Kuoni referred to the CJEU by Supreme Court for clarification - possible impact on breach of contract, vicarious liability and assumption of responsibility claims for sexual abuse and assault

We were hoping to be able to give you some interesting insights following the judgment of X v Kuoni Travel Ltd but that will have to wait for another day.

View

Legal updates

The disappearance of LIBOR

Companies should undertake a comprehensive review and audit to identify those products and legacy contracts that are LIBOR-linked and carry out an in-depth risk assessment of discontinuation. Where possible, companies should look at appointing an individual to oversee the programme.

View

The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

mailing list sign up



Select which mailings you would like to receive from us.

Sign up