KING v ZURICH INSURANCE COMPANY and Others [2002] EWCA Civ 598

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM ORDER OF MR RECORDER MARRON QC

(Leeds County Court)

[2002] EWCA Civ 598

Case No No B3/2001/1446

Venue Royal Courts of Justice, Strand, London WC2, Wednesday, 10th April 2002

Between

KINGRespondent

ZURICH INSURANCE COMPANY and OthersAppellants

Before

Lord Justice Brooke

Lord Justice Laws

Lord Justice Keene

MR CHARLES KENNEDY (Instructed by Praxis Partners of Leeds) appeared on behalf of the Appellant

MR CHRISTOPHER CARLING (Instructed by Rayworths of Harrogate, North Yorkshire)

appeared on behalf of the Respondent

Date 10 April 2002

LORD JUSTICE KEENE:

This

[1]is an appeal from a decision of Mr Recorder Marron QC, sitting at Leeds County Court, dated 15th June 2001. By that decision the judge dismissed a personal injury claim by Mr King, who is now the respondent, against the first defendant but gave judgment in his favour against the second defendant for £7,000 damages for pain, suffering and loss of amenity, and damages for two years' loss of income, the total damages being subsequently agreed at £34,355.57. Mr King was also awarded costs against the second defendant, the judge dismissing applications for costs by both defendants. The defendants now appeal and there is a cross-appeal by Mr King.

[2]The basic facts are that Mr King worked for the first defendant ("Samsung") from August 1995 until April 1998 when he was made redundant. He was subsequently employed by the second defendant, Thrall Europa, on 17th August 1998 and within a few days began to exhibit certain symptoms in his arms and hands. His employment by Thrall Europa ceased on 16th September 1998. In all, he seems to have worked for Thrall Europa for about 22 working days. During the course of both employments Mr King was required to use hand held power tools. While employed by Samsung on testing hydraulic excavators he used air-powered tools such as nut runners, drills and grinders. The recorder found as a fact that Mr King was given no advice by that employer as to the use of such tools or as to any associated risks.

[3]However the tools were used for limited periods of time. Mr King's own evidence was that drills and grinders would be used by him for not more than five minutes in a day, which Professor Griffin, an engineering expert instructed on the claimant's behalf, thought unlikely to have caused his condition. A nut runner was used by Mr King for about 15 minutes in the course of a day spread over three periods of 40 minutes each. A joint engineers' statement, produced by Professor Griffin and an engineering expert instructed on behalf of both defendants, recorded that it was unlikely that Mr King had, while employed by Samsung, "any significant vibration exposure which would have been likely to breach the guidelines applicable".

[4]That appears to have been a reference to the relevant British Standard.

[5]The judge found that no symptoms as subsequently experienced by Mr King occurred while in Samsung's employ.

[6]In the course of his work with Thrall Europa Mr King used principally grinders and rivet machines. This was in the course of building covers for freight wagons. There was some dispute about the extent to which he used such machines in his work there, but the judge preferred the evidence of Mr King which amounted to an 8-hour equivalent exposure to vibration of some 4.1 metres per second squared, that being a measure of frequency-related acceleration. The joint engineers' statement recorded that on that factual assumption there would have been "excursions into unacceptable levels of vibration".

[7]The judge concluded that the claimant was exposed to unacceptable levels of vibration exposure while with Thrall Europa. He also found that Thrall Europa gave the claimant no instructions or advice concerning the use of this machinery or the associated potential hazards.

[8]The claim was brought in negligence and/or for breach of statutory duty. It was alleged that as a result the claimant had developed the condition known as hand/arm vibration syndrome (HAVS).

[9]There was served with the particulars of claim a medical report by Professor Kester, a consultant vascular surgeon. That report concluded that Mr King was suffering from vibration white finger (VWF) which "forms part of the hand/arm vibration syndrome". The report spelt out the reasons why Professor Kester took the view that Mr King's symptoms were referable to VWF.

[10]A report by another consultant surgeon - Professor Welsh - was obtained by the defendants. Professor Welsh concluded that Mr King was suffering from mild carpal tunnel syndrome. It was said that this was not a consequence of vibration exposure but was constitutional in origin. Professor Welsh concluded that Mr King was not suffering from HAVS principally because of the rapid onset of symptoms and because there had been an increase in the severity of symptoms in the two years since Mr King had ceased being exposed to vibration. However there was some degree of ambiguity in the terminology used by Professor Welsh since his report also stated:

"Hand/arm vibration syndrome (HAVS) is a collective name for injuries to blood vessels, nerves and muscles caused by hand-transmitted vibration which results in vascular, neurological and muscular/skeletal symptoms. Carpal tunnel syndrome (CTS) is now recognised as part of the HAVS when occurring in the vibration exposed population and, as such, is a prescribed industrial disease."

[11]It seems that Professor Welsh may have been using the term HAVS elsewhere in his report as a synonym for the particular form of that syndrome known as VWF. He subsequently stated that - "the 22 days employment at Thrall Europa could not cause vibration white finger hand/arm vibration syndrome."

[12]In cross-examination he agreed that carpal tunnel syndrome could be caused by vibration exposure.

[13]Professor Kester, in a letter dated 23rd January 2001, concluded that Mr King - "has vascular and neurological symptoms which comprise the Hand/Arm Vibration Syndrome or Vibration White Finger Syndrome. In addition he has Carpal Tunnel Syndrome, where it is accepted that exposure to hazardous vibration can induce such a lesion. Objective studies confirm that he has vascular and neurological damage, where the neurological damage comprises damage to the median nerves of both arms at the carpal tunnel, together with damage to the tactile sensory organs of the finger tips."

[14]Professor Kester, in a joint report with Professor Welsh, also stated that carpal tunnel syndrome could be caused by hazardous vibration and it therefore formed part of the HAVS. Therefore both medical experts regarded carpal tunnel syndrome as capable of falling within HAVS when vibration induced.

[15]The judge found that Mr King was suffering from carpal tunnel syndrome but not, as he put it, from HAVS. It seems clear from the context that the judge was there adopting Professor Welsh's terminology and choosing to equate HAVS, for this purpose, with VWF. His reasoning was that the degree of exposure to vibration would not typically have caused that condition and that the claimant did not present with the symptoms typical of it, there being in particular an absence of cold induced whiteness spreading from the tip of the finger downwards and circumferential in effect. In his judgment the judge found that carpal tunnel syndrome could be caused by vibration, as both medical experts had confirmed. He concluded that, in the light of the evidence about vibration levels, Samsung was not liable for this condition suffered by the claimant.

[16]The judge then turned to the position of Thrall Europa. He noted that Professor Welsh had said that it was 60/40 against this particular carpal tunnel syndrome being caused by vibration. Professor Kester had taken the view that it was so caused. The judge then went on to say:

"In addition to that I cannot overlook the coincidence that this particular claimant for more than two years was subjected to tolerable and acceptable levels of vibration and manifested no symptoms at all and the very moment that he is exposed to what I have found as unacceptable levels immediately symptoms occur, symptoms which are subsequently confirmed as carpal tunnel syndrome. Accordingly, I find as facts (1) the claimant was exposed to unacceptable levels of vibration for a transient period. (2) He was not advised of the potential dangers. (3) He was not removed from such work immediately after suffering and reporting the symptoms. (4) Thereby he came to suffer CTS and upon that basis there is liability established against the second defendants."

[17]CTS there is a reference to carpal tunnel syndrome.

The judge then went on to deal with the issue of quantum which is not an issue in this appeal.

[19]A number of points are taken by the defendants in their appeal to this court. First, it is contended that the claimant should not have been allowed to pursue his claim on the basis that he had CTS induced by vibration. It is said that it was only in the case summary served a few days before the trial began that the claimant indicated that he was pursuing such a claim in the alternative. This is not really a pleading point since the particulars of claim do not limit the claim to one of VWF but refer instead to HAVS, a syndrome which both medical experts recognised could potentially include carpal tunnel syndrome.

[20]Mr Kennedy submits that his clients were nonetheless prejudiced by the course which the trial took. He concedes that there was no application made to adjourn at the start of the trial or during it on this basis. He made a submission in his closing speech to the judge that the claimant should not be able to pursue a CTS claim. It is argued by Mr Kennedy before this court that it would not have been proportionate to adjourn the case given the modest value of the claim. Moreover it is said that the lateness of the raising of the issue by the claimant was not curable by adjournment because the defendants had by then made common cause to resist a specific allegation. It is contended that they could not have done so if carpal tunnel syndrome had been raised as an issue because the second defendant would have had to investigate alternative causes of carpal tunnel syndrome. Consequently, it is said the judge went wrong in allowing a claim on that alternative basis to be pursued.

[21]I do not find these arguments persuasive. Before the trial began it was clear that a claim based on carpal tunnel syndrome was being pursued as an alternative to that based, in essence, on vibration white finger. No application for any adjournment was made on behalf of the defendants. That was clearly a tactical decision. The defendants chose to take the risk of an award against them based on that alternative of carpal tunnel syndrome; they were in no sense obliged to. It was the defendants' medical expert who had been asserting for the previous six months that the claimant was suffering from carpal tunnel syndrome, and his view was that such a condition could be caused by vibration exposure. It was always open to the defendants to explore alternative causes of such a condition. Professor Welsh's opinion - not accepted by the judge -was that it was indeed constitutionally caused. So those advising the defendants had to some extent applied their minds to what, other than vibration exposure, might have caused Mr King's carpal tunnel syndrome.

[22]As I have emphasised already, had they been prejudiced an adjournment could always have been sought. It seems to me that having made the tactical decision not to seek an adjournment at the outset of the trial it was far too late to object in the course of a closing speech, as counsel for the defendants chose to do. By that stage an adjournment clearly was impractical because all the costs would have already been incurred of the trial which had taken place.

[23]For these reasons I cannot see that the judge went wrong in the way alleged, nor that there is any force in this first point raised in this appeal.

[24]The main challenge to the judge's finding that Thrall Europa were liable relates to the evidence, or the alleged lack of it, it being said that there was no evidence on which he could properly find that it was the exposure to vibration while employed by Thrall Europa which resulted in Mr Kings' carpal tunnel syndrome. The defendants accept that exposure to vibration is capable of causing carpal tunnel syndrome. But Mr Kennedy contends that neither Professor Kester nor Professor Welsh gave evidence that exposure to vibration with the second defendant, Thrall Europa, alone could have caused Mr King's carpal tunnel syndrome. It is said that Professor Welsh's view was that, on the balance of probability, the exposure which took place during both periods of employment was insufficient to have caused this incident of carpal tunnel syndrome. The defendants say that both the medical experts regarded exposure with Thrall Europa as too short to cause vibration injury. Even Professor Kester was very tentative in dealing with the effect of the exposure while Mr King was in the employ of Thrall Europa. His view was that exposure would need to be longer than occurred with that company alone. Mr Kennedy contends that there has to be some expert evidence that that exposure was significant in terms of causation and yet such expert evidence did not exist in this case.

[25]The evidence before the judge from Professor Welsh was that on the balance of probability Mr King's carpal tunnel syndrome was not caused by vibration. But Professor Welsh was far from saying that the odds were heavily against this. He put it at 60/40 against. The judge of course had to take into account all the evidence before him, including Professor Welsh's opinion that the syndrome was caused by some constitutional factor rather than by vibration exposure. Yet it is not without significance that there was no evidence of any constitutional cause of Mr King's symptoms. There were a number of blood tests which were carried out, and the consequences of those were recorded in a joint report of the two medical consultants which stated:

"The above results indicate that Mr King does not suffer from any of the auto-immune nor connective tissue disorders which may cause upper limb symptoms."

[26]That was not exhaustive but it goes to illustrate the absence of any evidential support for the view adopted by Professor Welsh that there was a constitutional origin for the condition suffered by the claimant.

[27]In addition, the judge in making his assessment of what, on the balance of probability, was the cause of Mr King's condition was entitled to have regard, as he did, to the coincidence in time between the unacceptable levels of exposure to vibration while Mr King was employed by Thrall Europa and the onset of the symptoms.

[28]Since both sides agree that carpal tunnel syndrome could be caused by vibration exposure, the judge, in my view, was entitled to take account of all this evidence and to conclude that in fact in this particular case Mr King's carpal tunnel syndrome had been caused by vibration. It is right that both Professor Kester and Professor Welsh took the view that all the vibration at work to which Mr King had been subjected would have contributed to his injury, that is to say, both that which he experienced while employed by Samsung and also that which he experienced while employed by Thrall Europa. It follows that his employment by Thrall Europa and his exposure to vibration during that period of time was not the sole cause of his condition. But liability in cases such as this does not depend upon it being established that a defendant's breach of duty was the sole or even the main cause of the injury suffered so long as the breach made a material contribution to that injury. It must be a material cause of the injury, but that will suffice. (See Bonnington Castings Ltd v Wardlaw

[1956] AC 613

and Quinn v Cameron & Roberton Ltd

[1958] AC 9

[29]In the present case the judge clearly concluded that the breaches of duty by Thrall Europa were such a material cause and, given the evidence to which I have already referred, he was entitled to arrive at such a conclusion. That is sufficient for liability. I would add that the principles spelt out in Bonnington Castings and other cases remains a sound one, in appropriate cases, despite the recent decision of this court in Fairchild v Glenhaven Funeral Services Ltd

[2001] EWCA civ. 1881

. That latter case was not dealing with the situation where a personal injury is the result of an accumulation of effects on a claimant but with a situation where there is a single indivisible disease, not a cumulative one. It was very important to the court's judgment in that case that the tumour developed from a single malignant cell and that it could not be shown that an individual's disease was caused cumulatively by exposure to asbestos dust in more than one employment. (See paragraphs 21 to 26.) That is very different from the present appeal where the condition suffered by Mr King was dose-related, as the defendants concede, and could, on the evidence, properly be regarded as materially contributed to by Thrall Europa's breaches of duty even if those breaches were not the sole cause.

[30]I therefore can see no merit in the second ground advanced on behalf of the defendants in this appeal.

[31]Finally the order made by the judge as to costs is challenged. By that order the claimant was awarded costs against Thrall Europa. An application by Samsung for costs against the claimant was refused, as was one by Thrall Europa for its costs on what was described as the HAVS issue. On behalf of Samsung today, it is emphasised the claim against that company was dismissed and so it is said that the general rule, set out in the Civil Procedure Rules 44.3 (2) (a), should have applied unless there was some good reason for departing from it. That general rule is that the unsuccessful party will be ordered to pay the costs of the successful party. It is submitted the judge gave no reasons for his decision in this respect.

[32]Mr Kennedy accepts that there is no transcript available of the judge's comments and that his "reasons" argument gets nowhere in isolation from the merits of the costs decision. He contends that it was not just for the judge to have made no order as to Samsung's costs when they had successfully defended the claim. On the other hand, he does not suggest that any order should be made against Thrall Europa to pay Samsung's costs.

[33]It is trite law that a judge's decision on costs is a matter of discretion. As such, this court will only interfere if it can be shown that the judge erred in principle in his approach or left out of account some relevant factor or took into account an irrelevant factor or if the decision is plainly wrong. (See AEI Ltd v Phonographic Performance Ltd

[1999] 1 WLR 1507

, 1523 C.) The judge had to deal here with a not uncommon situation where a claimant was unsure which of the defendants would be held liable for his injury and where - in the event - he succeeded against one but failed against the other. In the days before the Civil Procedure Rules came into effect this situation would often be met by a Bullock order. (See Bullock v The London General Omnibus Company

[1907] 1 KB 264

) ordering the plaintiff to pay the successful defendant's costs but ordering the unsuccessful defendant to pay those costs over to the plaintiff. In cases where a plaintiff was legally aided the order would often be a Sanderson order (see Sanderson v Blyth Theatre Company

[1903] 1 KB 533

) whereby the unsuccessful defendant was ordered to pay the costs of the successful defendant directly. These decisions reflected the approach of the courts, namely that where a plaintiff had behaved reasonably in suing both defendants he should not normally end up paying costs to either party even though he succeeded only against one of the defendants.

[34]In the present case the judge seemed to have reflected that approach by making no order as to the costs incurred by Samsung. He could have ordered them to be paid directly or indirectly by Thrall Europa, but it must have been clear to him from the fact that both defendants were represented by the same counsel and had presented, in effect, a common case that there would have been little point in so ordering. Certainly it seems that no application to that effect was made on behalf of Samsung. The end result of the judge's order as to costs seems to have been a justifiable one and not in any way an abuse of his discretion or clearly wrong. It remains the case under the CPR that the court has to take into account, on costs, whether a party has behaved reasonably. (See Rule 44 (3) (iv) and Rule 44 (3) (v)). On the facts of this case it could not be contended that the claimant had behaved unreasonably in suing both these defendants, the employers who had been responsible for him using vibrating power tools, particularly in light of the report which the claimant had from Professor Kester.

[35]The other argument advanced on behalf of both defendants is that the claimant should have paid their costs of the HAVS issue. In the absence of the relevant transcript it is impossible to see how such an application was formulated or how it was dealt with by the judge. But Mr Kennedy emphasises that the defendants were successful on that issue and so he says they should have their costs on it.

[36]It is open under the CPR for a judge to make an order on costs which does distinguish between the different issues which have arisen during the trial. He is not required to make separate costs orders on the various issues. His is a broad discretion. In this case there had been an offer by the claimant to accept a sum not much larger than he eventually recovered. Although there can be no certainty on this, it seems likely that that offer was drawn to the judge's attention when costs were being debated since that would have been the essential reason for that offer being made in the first place.

[37]In my view the judge's discretion in this case entitled him to order that the losing defendant, Thrall Europa, pay the claimant's costs in their entirety. So far as Samsung's costs are concerned, the point now being raised adds nothing to the earlier argument about Samsung's costs and I propose to say nothing more about it.

[38]I would not hold that the judge erred in his exercise of discretion as to costs in this case. It follows that I would dismiss this appeal. In those circumstances it has been acknowledged on behalf of the respondent that the cross-appeal is not pursued and, as a matter of form, in my view, that too should be dismissed.

LORD JUSTICE LAWS: I agree in the result proposed by my Lord for the reasons he has given.

LORD JUSTICE BROOKE: I also agree.

Order

Appeal dismissed with the costs