ALLEN & ORS v BRITISH RAIL ENGINEERING LTD. & ANR. [2001] EWCA Civ 242

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HON. MRS. JUSTICE SMITH
[2001] EWCA Civ 242Case No Case No: B3/1999/1041Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Friday 23rd February 2001
Between
ALLEN & ORSAppellantBRITISH RAIL ENGINEERING LTD. & ANR.Respondent
Before
Lord Justice SchiemannLord Justice MayLord Justice LathamDavid STEMBRIDGE Q.C. & Paul BLEASDALE (instructed by Whittles Solicitors for the Appellant)William NORRIS Q.C. & James PALMER (instructed by Kennedys for the Respondent)Date 23 February 2001

LORD JUSTICE SCHIEMANN:

This

[1]is the judgment of the Court. Before the Court is an appeal on quantum by Mr Allen against a judgment delivered by Mrs Justice Smith after a 4 week trial of four cases of which Mr Allen's was one. They were chosen as lead or test cases for hundreds of cases involving similar points. Each of the Claimants suffers from Vibratory White Finger ("VWF") and was employed by the Defendants British Rail Engineering Ltd. ("BREL"). In each case the injury arose out of the relevant claimant's employment. Points which were common to all cases were the date by which BREL should have realised that the use of vibrating tools might involve some risk to their employees and what the nature of BREL's duties to their employees was after that date. BREL submitted before her that they were not liable at all. They lost. Her decision on those important points is not the subject of this appeal. There is however a cross appeal on a limitation issue to which we will turn later in this judgment.[2]We are concerned with two questions which arise out of the following findings by the Judge. The employee suffered injury as a result of carrying out his work with vibrating tools. The state of knowledge as to the dangers inherent in carrying out this work changed during the course of the employee's employment. The employer's negligence arose only after this change in knowledge and consisted in failing to warn the employee of, and do more to protect him from, the dangers inherent in carrying out the work. That negligence did not arise until after the employee's body had been damaged by carrying out the work. Even had the employer not been negligent the employee would still have carried on doing the work but would have done less of it and would have been less damaged. The two questions which face us are(i) Was the Judge right to rule that the employer was liable only for the excess damage attributable to its negligence or should she have ruled that the employer was liable for all the damage suffered by the employee during that period of employment as a result of doing work with vibrating tools?(ii) On the material before her, was the Judge entitled to conclude, as she did, that Mr Allen would have suffered some damage, even if the employers had not been negligent, and that this damage could be quantified as being half of the total damage suffered by Mr Allen from the use of vibrating tools after BREL were in breach of their duty of care to him?[3]The Judge found the following facts. Mr Allen started to work for BREL at their Doncaster works in the late 1950s. Mr Allen had suffered from VWF since 1968. BREL during the first half of 1973 could and should have carried out surveys in a few workshops, which would have included Doncaster, to assess the incidence of VWF amongst that part of their workforce which used percussive tools. Such surveys would have shown a significant incidence of VWF, such as would have required BREL, if acting as reasonably prudent employers, to embark upon incidence surveys in all workshops where vibrating tools were in regular use and a programme of prevention for groups of workers found to be at risk. BREL could thereafter have taken measures to reduce the rate at which VWF progressed. BREL had failed to take those measures at that time. Had BREL taken those measures at the appropriate time Mr Allen would have been offered medical examination and advice by mid 1974. He could have been moved to less exposed work within BREL by mid 1975. This work however would still have involved some use of vibrating tools. Had BREL not moved him by 1976, he would have sought and found another job which also would have involved some, but less, use of vibrating tools. In the event he left BREL's employment in 1987 for another job which involved vibrating tools and which did further damage to his body.[4]The Judge found £11,000 as being the appropriate compensation for the totality of the injury suffered by Mr Allen which had been caused by the use of vibrating tools. That finding is not challenged. However she only awarded him £4000. She reached this conclusion by deducting from the total three sums:(i) £1500 for the period prior to 1976(ii) £1500 for the period after 1987(iii) £4000 (being 50% of £8000) for the period between 1976 and 1987.[5]The correctness of the first two of these deductions is not in issue before us. What is in issue is the propriety of the deduction of £4000 in respect of the period 1976-1987.[6]The nature of the disease, in so far as it is understood, is described, uncontentiously, by the Judge in the following paragraphs of her Judgment. "8. It has been recognised since the early years of this century that some men who regularly use vibrating tools for long periods will develop the condition or syndrome now known as VWF. The condition is similar in some respects to the constitutional condition known as Raynaud's Phenomenon … The constitutional condition is found in … between 3% and 5% of males. The characteristic symptom is the occurrence of attacks of blanching of the fingers due to deprivation of blood during spasm of the blood vessels. The attacks may affect all or only part of one or more digits. They may last for a few minutes or for an hour or two. While they persist, the affected digits are cold and numb. When the attack is passing the fingers commonly turn red and tingle or are sometimes painful. When the attack is over, the fingers return to normal. Attacks are precipitated by cold, especially coldness of the whole body as opposed to the hands alone. Some patients experience attacks in the feet or nose as well as the hands. Very occasionally indeed, the condition is serious and can result in gangrene of the finger tips. Although some doctors recommend treatment with vaso-dilators, the general view appears to be that the condition is untreatable. By a strange coincidence, several of the witnesses called on the first defendants' behalf, all male, suffer from constitutional Raynaud's Phenomenon. None suffers very seriously and each said that he regarded the condition as no more than a minor inconvenience. 9. The occupational condition, VWF, is progressive. Many months or years of vibration exposure may pass before any symptoms are noticed. This latent period varies according to the personal susceptibility of the workman and the vibration dose to which he is exposed. Typically, the initial signs are of transitory tingling or numbness. With more exposure, there will be episodes of blanching of the tips of one or more fingers. These episodes are usually precipitated by cold and are similar in their course and effects to the attacks experienced in the constitutional condition. Continued exposure to vibration may result in an increase in the number of digits affected and the affected area may increase until the whole finger goes white and numb during an attack. It appears that once this quite severe stage has been reached, further deterioration does not occur. The condition reaches a plateau stage and really serious consequences such as gangrene are virtually never seen. The vibration-induced condition is untreatable. Sufferers often complain that their enjoyment of outdoor sports and swimming and pastimes such as fishing and gardening is affected even to the extent that they give up the sport or pastime. In some case, there are neurological effects in addition to the vascular effects just described. Damage to the small nerves in the finger tips results in tingling and numbness, transitory in the early stages but gradually increasing with further exposure so that there may be loss of fine dexterity in the fingers. Once these neurological changes have occurred, they never abate, even though exposure ceases. However, it is thought that some spontaneous improvement in the vascular symptoms may occur following cessation of exposure. The degree to which improvement occurs depends on the age of the patient, the severity of the condition and the length of time for which he has been suffering. In general, the younger the man, the less severe the condition and the shorter the time he has suffered, the better his chances of recovery."[7]In paragraph 10 she described the Taylor-Pelmear scale by which the severity of cases of VWF could be described and classified. For present purposes it suffices to note that at stage 0 (t) and 0 (n) all that the sufferer notices is intermittent tingling and numbness in his digits which does not interfere with his activities; at stage 1 he observes blanching which again does not interfere with his activities; at stage 2 he observes blanching of one or more fingers with numbness which interferes slightly with home and social activities and is usually confined to winter and at stage 3 there are frequent episodes both in summer and winter of extensive blanching resulting in definite interference at work, at home and with social activities:
"12. The development of VWF is a gradual process; its severity is dose-related. The doctors agree that the physical damage to the blood vessels and nerves is a function of the vibrating energy transmitted to the hands and the time over which this takes place. Personal susceptibility also plays an important part. An unpublished study of groups of workers carried out by Professor Welsh showed, as one might expect, that symptoms developed earlier and deteriorated more quickly in men exposed to large doses of vibration than in those exposed to moderate does. Both groups showed a plateau effect when the symptoms had reached stage 3 of the Taylor-Pelmear scale. The graph of symptoms against time followed an "
S" shaped curve for each group, but the curve was tighter and steeper for the more exposed group than for the less exposed. Although this work is unpublished, the first defendants do not doubt it validity. It is also agreed that once exposure to vibration has ceased, any further deterioration which is going to occur will show itself within a year of cessation or possibly two years at the most. It is not thought that there is any natural deterioration of symptoms with age. ... 19. Over the last 30 years, work has progressed on the assessment of the periods of time for which a worker may use a particular type of tool or tools without being exposed to an undue risk of developing VWF. This work has entailed the measurement of the magnitude of the vibration emitted by the tool, the estimation of the hours of use (which together establish the vibration dose) and the correlation of vibration dose to the incidence of the condition. When the initial technical difficulties in measuring vibration were overcome, there remained the problem of the correlation between doses and effect which has been difficult to establish by epidemiological study. Until such work was done, there could be no authoritative guidance to employers as to the amount of vibration to which an employee could be safely exposed." Causation and apportionment : The issue of principle[8]The issue of principle between the parties can be stated shortly. Mr David Stembridge Q.C., who appeared for Mr Allen, contended that, once it had been shown that the defendants' negligence made a material contribution to the injury suffered by the claimant, the defendants were liable to compensate him for the whole of his injury save in so far as it was shown or accepted that this had been aggravated by non-negligent exposure pre-1973 by BREL or by post 1987 exposure by Mr Allen's new employers. Mr William Norris Q.C., who appeared for BREL on the appeal (Mr Allen having been represented by Jonathan Playford Q.C. before the Judge), contended that in principle an employer was only liable to his employee for that part of the harm suffered by the employee which is attributable to the employer's negligence. It was this principle which led to the exclusion of liability for damage suffered prior to 1976 and after 1987. The same principle logically led to the exclusion of liability for damage which was caused by doing work which the employer was under no obligation to prevent. That submission succeeded before the Judge – hence the appeal.[9]The argument on either side referred to a number of cases. The most significant of these for present purposes are Bonnington Castings Ltd. v Wardlaw [1956] AC 613 H.L., Thompson v Smiths Ship Repairers (North Shields) Ltd. [1984] Q.B. 405 and Holtby v Brigham & Cowan (Hull) Ltd. [2000] 3 All ER 421 C.A.[10]The facts of Bonnington were as follows. The employment of a steel dresser exposed him to silica dust emanating from the pneumatic hammer at which he worked and also from swing grinders. No dust extraction plant was known or practicable for use with the hammer but, though the swing grinders were fitted with such equipment, they were not kept free from obstruction and in this respect the factory owners were in breach of their statutory duty under some regulations. The steel dresser, having contracted pneumoconiosis in the course of his employment, sued the employers for damages. He admitted that he could not complain insofar as his disease was caused by the dust from his own or any of the other pneumatic hammers. Nonetheless he recovered in full. The employers appealed on the basis that the claimant had failed to discharge the onus of proving that his contraction of the disease was caused by the employer's fault or breach of statutory duty or materially contributed to by them. He submitted that on the evidence the claimant had failed to connect causally his ailment with the employer's negligence. He submitted that the proper inference was that the source of the disability was the hammer and not the swing grinders. The question of apportionment was not ventilated at all.[11]It was in that context that Lord Reid said at page 622:
"I think that the position can be shortly stated in this way. It maybe that, of the pneumoconiosis dust in the general atmosphere at the shop, more came from the pneumatic hammers than from the swing grinders, but I think it is sufficient to prove that the dust the grinders made a substantial contribution."
[12]Lord Keith of Avonholm said at page 626:
"As there was no evidence to show the proportions of the dust emanating from the various sources in the dressing shop inhaled by the pursuer, his case, it was said, must fail. The pursuer has, however, in my opinion, proved enough to support the inference that the fault of the defenders has materially contributed to his illness.... It was the atmosphere inhaled by the pursuer that caused his illness and it is impossible, in my opinion, to resolve the components of that atmosphere into particles caused by the fault of the defenders and particles not caused by the fault of the defenders, as if they were separate and independent factors in this illness. Prima facie the particles inhaled are acting cumulatively, and I think the natural inference is that had it not been for the cumulative affect the pursuer would not have developed pneumoconiosis when he did and might not have developed it at all."
[13]Thompson v Smiths Ship Repairers (North Shields) Ltd. [1984] Q.B. 405 was a test action concerning plaintiffs who had been engaged in the ship repair industry where they had been exposed to excessive noise over extended periods of their employment which had resulted in deafness. The problem arose because all excessive noise had contributed to their disability, but the defendant employers were not guilty of negligence until 1963, by which time considerable damage had been done, though it was not necessarily recognisable. There was also the problem of successive employers.[14]Mustill J. said at page 437D:
"The starting point for any enquiry into the measure of damages is the principle that the Court should as far as possible endeavour to restore the plaintiff to the position in which he would have found himself but for the defendants wrongful act."
[15]At page 438F he said:
"Next, one must consider.... a case where either (a) there are two successive employers, of whom only the second is at fault, or (b) there is a single employer, who has been guilty of an actionable fault only from a date after the employment began.... Employer B has,..., 'inherited' a workman whose hearing is already damaged by events with which that employer has had no connection, or at least no connection which makes him liable in law. The fact that, so far as the worker is concerned, the prior events unfortunately give him no cause of action against anyone should not affect the principles on which he recovers from employer B. Justice looks to the interests of both parties, not to those of the plaintiff alone. This solution pre-supposes a division of responsibility between A and B, or (in the case of the second example) between non-blameworthy and blameworthy sources of noise. How precise must this division be, before it can found an apportionment in law? What happens if the apportionment is insufficiently precise? To the latter question, general principle supplies only a guarded answer. In strict logic, the plaintiff should fail for want of proof that the breach has caused the damage. Yet this seems too strict, for the plaintiff has proved some loss: perhaps it should all be attributed to the fault, simply as a matter of policy. The answer to the first question seems less difficult. The degree of accuracy demanded should be commensurate with the degree of accuracy possible, in the light of existing knowledge, and with the degree of accuracy involved in the remainder of the exercise which leads to the computation of damages. It is senseless to demand the utmost accuracy at one stage of a calculation, which involves the broadest assumption at another stage, and the application of conventional measures of recovery at yet another."
[16]At page 443D Mustill J said: "The defendants as well as the plaintiffs are entitled to a just result. If we know... that a substantial part of the impairment took place before the defendants were in breach, why in fairness should they be made to pay for it? The fact that precise quantification is impossible should not alter the position..... Thus, whatever the position might be if the Court were to find itself unable to make any findings at all on the issue of causation and was accordingly being faced with a choice between awarding for the defendants in full, or for the plaintiff in full, or on some wholly arbitrary basis such as an award of 50%, I see no reason why the present impossibility of making a precise apportionment of impairment and disability in terms of time, should in justice lead to the result that the defendants are adjudged liable to pay in full, when it is known that only part of the damage was their fault. What justice does demand, to my mind, is that the Court should make the best estimate which it can, in the light of the evidence, making the fullest allowance in favour of the plaintiffs for the uncertainties known to be involved in any apportionment. In the end, notwithstanding all the care lavished on it by the scientists and by counsel I believe that it has to be regarded as a jury question, and I propose to approach it as such".[17]In Holtby the claimant, H, was exposed to asbestos dust while working for several years as a marine fitter. For about half the period that he worked as a fitter, his employer was B Ltd. For the remainder, he was employed by other employers doing similar work in similar conditions; in some cases for periods of years, in others for periods measured in months. He developed asbestosis and brought an action for personal injury against B Ltd.. At trial, the Judge held that B Ltd. had been negligent and in breach of statutory duty, but that it was liable only for the damage which it had caused. He further found that H's condition would have been less severe if he had only sustained exposure to asbestos dust whilst working for B Ltd. Accordingly, he reduced the damages by 25% even though B Ltd. had not expressly pleaded that it was responsible for a portion of the disability. H appealed, contending that he was entitled to recover all his losses from B Ltd., notwithstanding that others might have contributed to his injury. Alternatively, he submitted that once a claimant had proved that the defendant's conduct had made a material contribution to his disease, the onus was on the defendant to plead and prove that others were responsible for a specific part of the injury. Finally, H contended that there was no evidence to justify the deduction made by the Judge. The appeal was dismissed.[18]Stuart-Smith L.J. approved of the approach of Mustill J in the passage cited and said this in relation to Bonnington :
"14 What the Lords did not consider in that case was the extent of the defendants' liability, because it was never argued that the defendants were only liable to the extent of the material contribution. But the case makes it quite clear that proof of causation is a matter for the claimant. 20..... as the passages cited from [ Bonnington at page 620, McGhee v National Coal Board [1973] 1 WLR 1 at 11 - 12, Wilsher v Essex Area Health Authority [1988] AC 1074 at 1090] show the onus of proving causation is on the claimant; it does not shift to the defendant. He will entitled to succeed if he can prove that the defendant's tortious conduct made a material contribution to his disability but strictly speaking the defendant is liable only to the extent of that contribution. However, if the point is never raised or argued by the defendant, the claimant will succeed in full as in the Bonnington case and McGhee's case...... Strictly speaking the defendant does not need to plead that others were responsible in part. But at the same time I certainly think it is desirable and preferable that this should be done. Certainly the matter must be raised and dealt with in evidence, otherwise the defendant is at risk that he will be held liable for everything. In reality I do not think that these cases should be determined on onus of proof. The question should be whether at the end of the day and on consideration of all the evidence the claimant has proved that the defendants are responsible for the whole or a quantifiable part of his disability. The question of quantification may be difficult and the Court only has to do the best it can using its common sense..... cases of this sort, where the disease manifests itself many years after the exposure, present great problems because much of the detail is inevitably lost.... But in my view the Court must do the best it can to achieve justice, not only to the claimant but the defendant, and among defendants. 23. It is said by Mr. May that there is no evidence to ... justify the deduction of 25%. I do not agree. Although it is only a question of nomenclature I think Mr. Goldstaub is right when he submits that it is not so much a question of apportionment between tortfeasors as one of proof of causation in respect of a quantifiable part of his disability by the claimant against the defendants; and further it was not so much a question of discounting the full liability figure, as counting the proportion attributable to the defendants."
[19]With that judgment Mummery L.J. agreed. Clarke L.J. did not entirely agree with parts of it. However he added by way of postscript in paragraph 37:
"....I entirely agree.... that in reality these cases should not be determined by the onus of proof. That seems to me to be so whatever the correct view of where the burden of proof lies. That is because, as Mustill J. put it in Thompson 's case, "
The fact that the precise quantification is impossible should not alter the position. The whole exercise of assessing damages is shot through with imprecision".... the assessments of questions of this kind are essentially jury questions which have to be determined on a broad basis..." Conclusion on the issue of principle[20]In our judgment the case law as it now stands establishes five propositions of which the first is concerned with liability and the others with quantifying damages.(i) The employee will establish liability if he can prove that the employer's tortious conduct made a material contribution to the employee's disability.(ii) There can be cases where the state of the evidence is such that it is just to recognise each of two separate tortfeasors as having caused the whole of the damage of which the claimant complains; for instance where a passenger is killed as the result of a head on collision between two cars each of which was negligently driven and in one of which he was sitting.(iii) However in principle the amount of the employer's liability will be limited to the extent of the contribution which his tortious conduct made to the employee's disability.(iv) The court must do the best it can on the evidence to make the apportionment and should not be astute to deny the claimant relief on the basis that he cannot establish with demonstrable accuracy precisely what proportion of his injury is attributable to the defendant's tortious conduct.(v) The amount of evidence which should be called to enable a judge to make a just apportionment must be proportionate to the amount at stake and the uncertainties which are inherent in making any award of damages for personal injury.[21]The application of those propositions should lead to a just and principled result. We mention by way of coda that this approach seems to accord with the view of the authors of the American Law Institute's Restatement of the Law (Second) Title "Torts" 2d. paragraph 433 [A]: "Apportionment may also be made where a part of the harm caused would clearly have resulted from the innocent conduct of the defendant himself, and the extent of the harm has been aggravated by his tortious conduct.".[22]The illustration given by the authors, number 7, reads:
"Smoke from A Railroad's Roundhouse interferes with B's use and enjoyment of his dwelling. There is evidence that a reasonable operation of the Roundhouse, for which A Company would not be liable, would have caused one-third of the smoke and interference, and that the remaining two-thirds results from A Company's failure to take proper precautions. On the basis of this evidence, A Company may be held liable for two-thirds of the damages to B."
Causation and apportionment : was the Judge entitled to conclude that 50% was an appropriate figure for Mr Allen?[23]A. Preliminary observations :-(i) Although these cases were test cases, this particular issue is a pure question of fact dependant upon each individual claimant. This issue is therefore not one of principle and the amounts at stake are so relatively small that this point would never have reached this court had it not been regarded as wrapped up in the issues of principle.(ii) The question of attribution of part of an injury to a particular defendant in a case such as the present is one on which a full and detailed inquiry would be expensive in time and money in a way totally out of proportion to the amount at stake. In those circumstances there is in principle much to be said for judges at first instance doing what Mrs Justice Smith did in the present case and adopting a broad brush approach.[24]B. The Judge's findings:- The Judge, as appears clearly from the judgment and from the extracts of the transcript which we have seen, understood the scientific and medical evidence. Her judgment is full and careful. Our citations inevitably are an incomplete summary.[25]The Judge found in paragraph 110 of her judgment that Mr Allen's total exposure after 1987 was about 10% of the life time exposure. This is not challenged. She also said:
"… I also estimate in very round figures, which is all that I can attempt, that about 40% of the plaintiff's exposure occurred before the onset of symptoms in 1968 and about 50% (that is a further 10%) occurred before the end of 1973. It follows that about 40% of his exposure occurred during the years of the first defendants' negligence."
Again this is not challenged.[26]Some of the difficulties which faced

the Judge appear from the following quotation from paragraph 111 of her judgment:

"Mr. Allen's description of the onset of symptoms in 1968 and the ensuing development of the condition was less than satisfactory but he is not a very articulate man and I accept that his difficulties of self-expression were not attributable to exaggeration or lack of frankness. He said that his first symptoms were of tingling only; then he noticed whitening of the fingers. He said that his symptoms became worse after he resumed maintenance work in 1973. They deteriorated gradually until by 1987, when he transferred to RFS, he had numbness in 4 fingers of each hand up to the second knuckle."
[27]Her crucial findings are in the following paragraphs:
"112 To what extent were the first defendants in breach of their duty of care to this plaintiff personally, over what period and with what effect? By 1973, when the first defendants should have discovered an incidence of VWF at the Doncaster works, this plaintiff had already begun to suffer symptoms. I am satisfied that if asked, he would have admitted to symptoms and he is one of those who should have been offered a medical examination and advice by the summer of 1974. He was only 30 years old at that time and although his symptoms were mild, I think the doctor would have advised him about his long term prospects. The first defendants would probably have wished to keep his services and should have looked for an opportunity to move him to work where there was as little exposure to vibration as possible. In my view it should have been possible to move him to less exposed work by about mid-1975. In the unlikely event that that proved impossible, I do not think Mr. Allen would have immediately been so concerned as to give up his job. He is a fairly stoical man. However, he was competent in the modern techniques of hydrogen and carbon dioxide welding. He said, and I accept, that there was less exposure to vibration in that type of work. In my view, if by about 1976 Mr. Allen had found that he was still exposed to vibration at work and thought that his symptoms were increasing, he would probably have sought another job. … In my view, if the first defendants had complied with their duty to him, Mr. Allen would probably have changed jobs within BREL by 1975 or would soon afterwards have moved to a job which entailed less use of vibrating tools. The likelihood is that, whether he moved within BREL or away from it, he would still have used his manual skills and would have used some vibrating tools. Doing the best I can, and bearing in mind that Mr. Allen's exposure during the last 11 years with BR was not in any event very high, I conclude that if the first defendants had complied with their duty of care towards him, he would, between 1976 and 1987, have been exposed to a reduced level of vibration, of the order of a half to two thirds of the level to which he was actually exposed. 113. When he first saw Mr. Allen in 1989, Professor Welsh was of the opinion that he had VWF to stage 3 on the Taylor-Pelmear Scale. ... In evidence Professor Welsh said that he thought that Mr. Allen would have been at stage O (t) or O (n) in 1973.... ......... 115.… I conclude that Mr. Allen's condition, which was caused by vibration exposure, deteriorated gradually between 1973 and 1987 as Professor Welsh described and that part of that deterioration was due to the first defendant's breach of duty."
[28]The Judge accepted the evidence of Professor Welsh who was called for Mr Allen. We draw attention to the following passages from his evidence and give the page reference in the transcript. He said at page 93 that vibration was cumulative and leading to progressive damage to the tissues and that when that damage reaches a certain point the individual then notices the symptoms; at page 95 that before the symptoms there would be likely to be tissue changes but they could not be assessed; and at page 103 that apportioning current symptoms to periods of past vibration exposure was extremely difficult and that the whole of the vibration exposure was responsible for the current symptoms.[29]In the course of considering the limitation issue which is the subject of the cross-appeal and in particular when Mr Allen's injuries became 'significant' (that is serious enough to justify the making of a claim) she said in paragraphs 121:
"I think Mr. Allen's symptoms were "significant" certainly by 1987 and probably for a few years before that."
[30]She found in paragraph 123 that Mr Allen was a stoical man who did not trouble his doctor. She concluded in paragraph 126:
"Mr Allen already had some symptoms in 1973 although they were not severe. I think they were probably at stage 1. By that time he had receive 50% of his total vibration dose. There would have been some inevitable increase in symptoms because, during the years 1973 to 1976, there would have been little or no abatement in exposure and even after 1976 the plaintiff would have been exposed to some vibration which would inevitably have increased his symptoms (although more gradually than in fact occurred). I have said that the 40% of his lifetime's dose could have been reduced by up to about half had the first defendants complied with their duty. In my view the result would have been that the plaintiff would not have progressed to stage 3 as he did. He would probably have progressed to somewhere within stage 2, probably nearer to stage 3 than to stage 1. .... I do not apportion damages on a straight line basis because damages should reflect the onset and progress of disability as well as actual damage. I give greater weight to the exposure after the symptoms have begun than to the early exposure. Doing the best I can to take these factors into account, I conclude that the appropriate figure for general damages is £4,000."
[31]C. Conclusion Mr Stembridge concentrated in his attack on the judgment on the question of principle which we have resolved against him. Part of that attack consisted in pointing out the difficulties inherent in doing the apportionment exercise which the Judge undertook. We accept that there are difficulties but it is important to recognise that the Judge was faced with a choice between awarding nothing to the claimant because he had not proved the precise amount of damage attributable to the negligence, doing her best to find out how much of the damage was attributable to the negligence while accepting that the exercise was not perfect and might err at the margins, or holding the defendant liable for the consequences of actions which were not negligent. The first and last of these courses certainly involved substantial injustice to one party or the other. The middle course which she took involved a risk to both parties of a minor injustice. We consider she was right to choose the middle course.[32]Mr Stembridge submitted that this was a case where it was implicit in the Judge's findings that it was not until a few years before 1987 that the injury became sufficiently serious to warrant the institution of proceedings, that by 1980 Mr Allen was still at stage 1. He submitted that the employers at that stage could and should have offered him non-vibratory work and, had they done so, he would have taken it and would never have been exposed to the further vibration which led to changes to his body which in turn interfered with work and social activities. There was however no evidence that non-vibratory work was available for which Mr Allen was suitable. The judge found that there was vibratory work involving lower doses of vibration and that if this had been offered Mr Allen would have taken it; if it had not been offered he would have found such work elsewhere.[33]Mr Stembridge submitted that there was no material before the Judge from which she could conclude that Mr Allen, once the dangers of carrying on using vibrating tools had been pointed out to him, would nevertheless have continued using them albeit at a lesser intensity. We reject that submission. Mr Allen was a stoical man. He had a good job. The severity of the problems which might be posed by a further development of the disease, itself not thought to be inevitable, was not enormous - as is shown by the ultimate and undisputed total of damages. It was open to the Judge to find that he would have compromised by continuing to use the tools but in a way that would involve less vibration for less time. The fact is that the country is full of people carrying out jobs which they know entail a risk of damage to the body.[34]Mr Stembridge did not and could not submit that this was a case where, but for the negligence, there would have been no actionable damage. The point can best be understood by assuming that negligence on the part of the employers had been present throughout Mr Allen's employment and he had sued in 1973. They could not have escaped liability for the totality of the damage, notwithstanding that the symptoms were at that stage fairly minor. Mr Allen could have claimed compensation not just for the tingling unpleasantness but for the additional vulnerability which he now had by reason of the damage to his tissues and the restriction on the level of choice on his employment and leisure activities that this imposed. Although the level of symptoms was low in 1973 much damage had already been done to the tissue.[35]Mr Stembridge finally submitted that the whole way the Judge had decided case, namely by carrying out an apportionment exercise was something that had not been canvassed in the evidence or speeches and therefore was not open to her. We accept that the issue of apportionment was not at the heart of the debate at trial. There the Plaintiff was arguing in principle he should be entitled to everything and the Defendants were saying he should be entitled to nothing. Neither chose to explore with the witnesses or in large parts of their submissions the issue of apportionment. However, we are not persuaded that the Judge acted in a manner which was procedurally improper or in a way which was in the event unfair to the plaintiff. We note that this point was not taken before the Judge herself in circumstances where she had sent the written judgment to the parties some days before she handed it down in their presence in court. We note that the point was not taken a month later when she heard submissions about costs; nor when, some months later, the parties applied to the Judge for leave to appeal. Nor is it taken expressly in the Notice of Appeal. All this argues against the claimant having any sense of unfairness at what had happened. So does the fact that the judge herself gives no sign that in her judgment that she thought she was going off in new directions which had never been considered. We have been taken through some of the transcripts and are satisfied that the point was ventilated and that there was material before the Judge upon which she was entitled to rely for the conclusions to which she came.[36]One must remember that she was considering whether to award the claimant £4000 more or less. She approached the question, as we have found, correctly. It would have been wholly disproportionate to reopen the trial for further evidence to be called and cross-examined on the point. It would be even more disproportionate were we to send the case back for a retrial even on this limited issue.[37]For all these reasons we dismiss this appeal. The respondents' cross appeal.[38]By their cross appeal, the respondents challenged the judge's conclusion that the claims of the appellant, and another plaintiff who received an award of damages, Mr Gardiner, were not statute barred. The judge concluded that although both claims were made outside the primary limitation period, she was prepared to exercise her discretion under s. 33 of the Limitation Act 1980 to direct that those provisions which would otherwise bar their claims, should not apply. She held that the appellant and Mr Gardiner both had the relevant knowledge for the purposes of s. 11 of the Act at some date in 1987. The appellant had issued his writ on the 25th February 1992 and Mr Gardiner had issued his writ on the 3rd March 1992. She considered that the prejudice to each claimant on the one hand and the respondents on the other, having regard to the matters set out in s. 33(3) were such that it would be equitable to allow the action to proceed. The respondents challenge her decision as to the date of knowledge, and her exercise of discretion, on the basis that she failed to take properly into account the matters set out in s. 33(1) and (3) of the Act.[39]As far as the appellant is concerned, we have already set out the salient facts. His case in relation to limitation was that although he had had the problems with his fingers which we have already described, he had not known about the connection between his condition, and his working conditions until a Mr Gardiner told him about VWF as something that could be so related sometime in 1987. By the end of 1988 and early 1989 he had become sufficiently concerned about his condition to feel that he should seek advice. He saw solicitors in March 1989, who put the respondents on notice of a possible claim in April 1989. He saw Professor Welsh in July 1989. The writ was issued in February 1992. His primary case was that he had no relevant knowledge until, at the earliest, the time that he first saw his solicitors.

The judge held as follows:

"121. I think Mr Allen's symptoms were "significant" certainly by 1987 and probably for a few years before that. However I do not think he had any idea, until he spoke to Mr Gardner, that his hand symptoms were attributable in whole or in part to the acts or omissions alleged in this action to have amounted to negligence, namely the first defendant's exposure of the plaintiff to harmful vibrations. I think he had a vague idea that his hand symptoms might have something to do with the cold conditions at work. It was not until he spoke to Mr Gardner that he learned anything about VWF. I think he then realised that his had troubles may be due to vibration. Objectively speaking, he should then have considered taking advice. In my view, time ran from a date following that occasion by which time, he ought, if acting reasonably, to have sought the necessary expert advice. I assess that date as 12 months after his conversation with Mr Gardiner. I think he could in that time have obtained the help of his union (who would have needed legal advice) and had a medical examination. However he did not do so and took no action until early 1989. I think it likely that when Mr Gardiner had attended the course in February 1989 and had learnt more about VWF, he disseminated this information to those for whom he was responsible. I think it likely that this further information confirmed Mr Allen in his view that he must have VWF. He put in a claim and, when seen by Professor Welsh, "ascribed" his symptoms VWF. At that date, July 1989, time had already been running against him for some time. 122. I cannot say when in 1987 the conversation between Mr Allen and Mr Gardiner took place. Even if I assume that it was December 1987 and that time began to run against Mr Allen in December 1988, his action would have been time barred by February 1992. However, I have no hesitation in exercising my discretion in the plaintiff's favour under s. 33. The plaintiff's delay is not of very long duration, somewhere between 2 and 14 months. The reasons for it are that he did not realise there was any real possibility of claiming damages. Although he was a member of a trade union and could have sought advice, it appears that even the Union were not well informed about the prospects of claiming damages. No claim was brought against PR until VWF was prescribed in 1985 and even then there was only a trickle in the first few years. Although I have held that, objectively, Allen ought reasonably to have sought advice before he did, I do not regard his failure to act as blameworthy. Moreover a delay of this order has absolutely no effect upon the cogency of the evidence called on either side. The evidential difficulty which is apparent to me was the 1st Defendants' inability to call Dr Sharp Grant who died in 1974 and Dr Jones, who I understand has been dead for some years. In any event these defendants could have fought a VWF action much sooner than they did. They settled the earliest cases. Once this action was begun, the plaintiff has pursued it with due expedition and the only delay in bringing this matter to trial was the 1st Defendant's decision, shortly before the trials were due to begin in the County Court, to have them transferred to the High Court and treated as test cases. I consider that in all the circumstances of the case, it is equitable to allow this case to proceed."
[41]The respondents submit that the judge's findings as to the progress of the appellant's disability was such that the appellant must, or should, have appreciated that his condition was significant perhaps by the mid 1970s, and certainly by the mid 1980s. He should, therefore, have sought medical advice which would, it is submitted, have resulted in his being advised that the condition in his fingers was the result of vibration which could only be ascribed to his working conditions. The culpable delay in bringing his claim was therefore, it is submitted, substantially greater than that found by the judge. It is further submitted that the judge failed properly to take account of the delay from the date of the issue of the writ, to assess the respective prejudice properly, wrongly introduced the concept of blameworthiness into her evaluation of the conduct of the appellant and failed to give proper weight to the fact that the appellant had not sought advice before 1989, even though he was a member of a Union to which he could have turned for advice.[42]When assessing the date of knowledge, the respondents accept that the relevant knowledge is that of the connection between his condition, and the use of vibrating machinery at work. It is not sufficient for him simply to have made a general connection between his condition and his work. It is important in our judgment therefore have regard to the nature of the condition when assessing the questions raised by both s. 14 and s. 33 of the Act. As we have already described, it is gradual in onset and progression, and is essentially a nuisance, although at its later stages it can in certain circumstances be disabling because of its numbing effect. It is also a condition which occurs in many people who have no contact with vibrating machinery at all. In these circumstances, it does not seem to us at all surprising that the judge came to the conclusion that the appellant, whom she described as stoical in her judgment, was not someone who could reasonably have been expected to have sought advice about his finger from his doctor before he eventually went to see the solicitor in March 1989. Further, the judge was, in our view, perfectly entitled to conclude, having heard the appellant, that the condition was not one which he either did, or should have, associated with the use of vibrating machinery, although it is clear that he did consider in some vague way it may have been connected with his work. Further, we do not consider that the judge can be criticised for allowing him a further 12 months from the date in 1987 on which he heard of the possible connection in which to seek advice. Accordingly, we reject the respondent's submissions that the judge should have concluded that the appellant's date of knowledge for the purpose of s.11 was significantly prior to 1987.[43]It is true that in exercising her discretion, the judge did not expressly refer to the overall delay when dealing with prejudice. But it is important to note that the only prejudice which she identified as arising out of the delay was the fact that the respondents were unable to call two doctors who had been dead for some years. When pressed by us to identify what prejudice had in fact been caused, Mr Norris on behalf of the respondents was unable to provide us with a convincing answer. Even, therefore, if there be merit in the submission that the judge focused too narrowly on the delay after date of knowledge, there is no substance to the criticism.[44]In so far as the respondents complain that the overall delay includes culpable delay after the issue of the writ it can be seen that the judge absolved the appellant of any blame. It is said that she was wrong to do so. It is submitted that there was delay in serving the writ, and delay in pursuing the claim. Leaving aside the fact that any blame after the issue of the writ must lie, if anywhere on the appellants side, at the door of the solicitors, it is, in any event an argument without merit in the context of this litigation. The appellant was one of many who made claims against the respondents. We were told, that there were over 300 claims still outstanding awaiting the result of this appeal. The appellants claim is therefore one which has to be looked at in the context of a large and complicated piece of litigation. In these circumstances, and in the absence of any clear and unambiguous evidence of culpable delay on the part of this appellant or his advisors (if their delay be relevant) the judge was fully entitled to come to the conclusion that she did.[45]It is correct that the judge, as can be seen from the passages in the judgment which we have already quoted, did not consider the appellant to have been blameworthy. Far from being an irrelevant consideration, it seems to us that this must be one of the matters to which the judge has to have regard under s. 33(3)(a) when considering the reasons for the delay which she had identified on the part of the appellant. This argument comes ill in any event from the respondents, who had full knowledge of the connection between VWF and vibrating machines for some years, but withheld that knowledge from employees such as the appellant. This would certainly have been a matter which the judge would have been entitled to take into account under s. 33(3)(c). In these circumstances, we see nothing which persuades us that the judge exercised her discretion wrongly in any way. Accordingly the cross-appeal so far as the appellant is concerned is dismissed.[46]Mr Gardiner is in a different factual position. He was a Union Safety Representative during the 1980s and had been a member of the Health and Safety Committee from 1987. He was also a person who, unlike the appellant, had regularly seen his doctor in relation to a number of complaints, including matters relating to work, which had resulted in his making claims for compensation. His case on limitation was that he first became aware of VWF as a work related condition in 1987, but did not appreciate that he himself was suffering from that condition until he first suspected it in 1989 when he learnt more about VWF on a Health and Safety Course, as a result of which he saw solicitors in August 1989 who intimated a claim on his behalf to the respondents in November 1989. He was seen by Professor Welsh in September 1990, which was when he first, according to him, knew that there was a connection between his condition and vibrating machinery. His writ was issued on the 3rd March 1992. His primary submission was also that he did not have the relevant knowledge until at the earliest, the meeting with the solicitors.

The judge held:

"134. In my view, Mr Gardiner had realised before he saw Professor Welsh that he probably had VWF. He must have known that from at least the time of the Health and Safety course in February 1989. He certainly had knowledge by then. However it is arguable that he may have had knowledge before that date. In my view, Mr Gardiner was probably suffering from a "significant" condition from very soon after his symptoms developed. If it be right, that he says that he had to give up golf in 1984, that must have been a matter of some importance. I accept that at that time he had no idea that the problems ware caused by vibrations. When he first learned of the existence of VWF at sometime in 1987, I find it surprising if he did not then make the connection in his mind that he might have VWF. If he did, he ought then to have made enquiries as to whether it was possible to claim damages. He was in a good position to do so as he was a Union Official. He was aware of his rights. However, he did not do so until he acquired greater knowledge about the condition in 1989. Once he had that knowledge he acted expeditiously. 135. My conclusion is that he had "knowledge" from about a year before he first knew about the existence of VWF in 1987. He ought to have sought expert advice within the following year. As I am not sure at what time in 1987 he first knew of VWF, I cannot say exactly by how long his claim was out of time. It may be as little as three months, it may be as much as fifteen months. In any event, I shall exercise my discretion to allow his claim to proceed not withstanding this delay. Although I have said his actions were not those of a reasonable man, I do not think his failure resulted from anything other than an understandable diffidence to embark upon an unknown course. I am quite satisfied that this modest delay had had no effect on the cogency of the evidence and I do not consider the first defendants have been prejudiced evidentially in the smallest degree. For the reasons I gave in the case of Allen I say that it is equitable that I shall allow this action to proceed."
[47]The respondents make the same criticisms in relation to Mr Gardiner as they have done in relation to the appellant. In addition, they submit that Mr Gardiner, who was a more frequent visitor to his doctor, could reasonably have been expected to have raised the issue of his fingers with his doctor significantly before 1987. Further, it was submitted that the judge was wrong to take into account when considering the exercise of her discretion, what she described as "an understandable diffidence to embark upon an unknown course" in the case of a Union official who had been prepared to take proceedings in the past.[48]As far as Mr Gardiner's date of knowledge is concerned, we consider that the judge, as with the appellant, was entitled to come to the conclusion that she did. The fact that Mr Gardiner, a man who was not averse to seeing his doctor, made no complaint about the state of his fingers underlines the fact that the onset of the condition is gradual if not insidious, and becomes a nuisance to be put up with rather than a condition felt to justify medical attention. It does not seem to us that any different issues arise out of the exercise of discretion in respect of Mr Gardiner from those that we have already dealt with in relation to the appellant. Accordingly, we dismiss the cross-appeal in respect of Mr Gardiner.

ORDER

(Order does not form part of approved Judgment)

Cited in 19 later judgments

and 10 more of the most senior