Bhuiyan v Sainsburys Plc [2015] EWCA Civ 859

Case No B3/2014/2984[2015] EWCA Civ 859
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT
SITTING AT CENTRAL LONDON
(HIS HONOUR JUDGE MITCHELL)
Venue Royal Courts of JusticeDate Wednesday, 24 June 2015
Between
BHUIYANClaimant
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE TOMLINSON
v
Between
SAINSBURYS PLCRespondentDAR Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)Ms N O'Brian (instructed by TV Edwards LLP) appeared for Claimant for The Respondent was not present and was not representedJ U D G M E N T

LORD JUSTICE TOMLINSON:

[1]This is a renewed application for permission to appeal in a personal injury action.[2]The action was tried before His Honour Judge Mitchell in the Central London County Court. In his judgment of 22 August 2014 the judge dismissed the claim, which was a claim based upon the Manual Handling Operations Regulations 1992, in particular regulation 4, in the light of which the Claimant, who is or was then 29 years of age, suggested that his employers' failure properly to comply with their obligations pursuant to that regulation had given rise to the onset or to the exacerbation of a back problem which caused him to have acute lower back pain.[3]The judge dismissed the claim, preferring the evidence of the consultant orthopaedic surgeon who gave evidence on behalf of the Defendant to that of the consultant orthopaedic surgeon who gave evidence on behalf of the Claimant, concluding that the problem or the condition from which the Claimant suffered was a degenerative condition of the spine unassociated with any particular activity at work.[4]In any event, the judge went on to hold that there had been no breach by the employers of their duty and that they had made suitable and sufficient assessments of the manual handling operations to be undertaken by the Claimant, having regard to the practice specified in the scheduled regulations.[5]I should have said that the Claimant was at the relevant time employed by the well-known supermarket operators Messrs Sainsbury's PLC and he was employed as a shelf stacker or, as I see it is sometimes put, a replenishment colleague.[6]The application has been renewed by Ms O'Brian on the Claimant's behalf both orally this morning and by means of a very full and helpful advocate's statement dated 19 June which I have read with care.[7]Ms O'Brian has put forward the central submission this morning to the effect that the judge had insufficient reason or generally expressed an insufficient reason for preferring the evidence of Mr Franklin to that of Mr Gadelrab, the two consultant orthopaedic surgeons, and furthermore, that the judge was not entitled to place reliance on what he perceived as a failure by the Claimant at the relevant time to complain that his work was contributing to his back pain. Despite the great deal of charm with which Ms O'Brian has deployed the application, it is in my mind simply hopeless.[8]The proper approach to the regulation has been considered very recently by this court in West Sussex County Council v Kim Fuller [2015] EWCA Civ 189 in which the court attempted to explain and reconcile certain passages in earlier judgments of the court which were said by some to be inconsistent or difficult to understand.[9]The principal point, as Ms O'Brian rightly says, which the court was concerned to underline, is that a successful claim under the regulations requires proof by the Claimant of a causal link between the work which he is required to undertake and the injury that he has sustained. The principal problem which the proposed appeal here faces is that, on the findings of the judge, no causal link has been established.[10]The judge preferred the evidence of Mr Franklin to that of Mr Gadelrab. Although in her advocate's statement Ms O'Brian suggests that the judge gave only one reason for that preference, that is not really quite the right way to approach it, as I suspect Ms O'Brian recognised in that she did not put it quite that way this morning. The judge in paragraph 36 simply says:
"I prefer his [that is Mr Franklin's] evidence to that of Mr Gadelrab. I was concerned about Mr Gadelrab saying that 15 kilogrammes was heavy lifting. I can see that there is room for a difference of opinion but the constitutional and genetic matters rather than the mechanical ones are seen by both doctors as the main cause of back degeneration and disc prolapse. Of course, Mr Gadelrab, while expressing reservations about the claimant's history, was of the view that it was caused or contributed to by working as a shelf stacker at Sainsbury's. Mr Franklin would only go so far as saying it might have been a factor. There are also the factors that the claimant himself gave no positive evidence about his problems being work-related and certainly never indicated it to his treaters or even to his employers at that time."
[11]In my judgment, the judge was entitled to be concerned about the insistence in characterising the lifting as heavy in the context of these regulations in that heaviness is, of course, a relative concept. In the context of the sorts of manual handling with which the regulations are principally concerned, it cannot be said that boxes of yoghurts and boxes of cheese such as the Claimant was obliged to carry or to handle at Sainsbury's were at the higher end of the spectrum.[12]Be that as it may, this is obviously a case in which the judge had the opportunity to see and hear two expert witnesses give their evidence. As Lord Hoffmann emphasised in Biogen v Medeva [1997] RPC 1, a judge's appreciation of the evidence which he has heard and the manner in which he assesses it is surrounded by a penumbra of considerations, not all of which will find their way into the manner in which the judge expresses himself in his judgment.[13]I do not have even the benefit of a transcript of the evidence given by these two doctors so that I am not invited to study their evidence and to form a view different or provisionally different from that of the judge. But in any event, it seems to me that any attempt to persuade this court to depart from the judge's preference is doomed to failure for all the reasons that are usually applicable where such an attempt is made.[14]It is also right to say that there is a notable paucity of what might be called contemporary complaint pursuant to which the Claimant, as it were, tied in his back pain with his work. Ms O'Brian points to his letter of 23 November 2009 where he does indeed recite that he has been suffering from back pain. He does in the last paragraph ask whether his employers would consider his application to transfer to weekend work where it is suggested heavy lifting was not involved.[15]One problem with the letter is that it is principally concerned with a request that he be permitted to change his shift from night to day because unsurprisingly he was encountering serious difficulty in pursuing his college studies during the day when he had worked a full night shift the night before.[16]The second serious obstacle which lies in the way of any successful appeal is summed up in the observation made by the Defendants in their defence to the effect that this Claimant was employed as a shelf stacker and in principle either he was fit to carry out the work or he was not. It is inherent in the job of a shelf stacker that he will be required to lift boxes of produce. The job cannot be carried out in any other way.[17]The duty of an employer under regulation 4 is, so far as reasonably practicable, to avoid the need for employees to undertake any manual handling operations at work which involve the risk of their being injured or, where it is not reasonably practicable to avoid the need for the employees to undertake manual handling operations at work which involve that risk, to make suitable and sufficient assessment of all such manual handling operations to be undertaken by them having regard to the factors specified in column 1 of Schedule 1 to the regulations.[18]The judge was taken to the evidence concerning the risk assessment. He records at paragraph 38 that Ms O'Brian had poured a degree of scorn upon the evidence submitted and in particular the suggestion or the evidence given by a Mrs Young that the assessments were updated every year and the old ones discarded. But whilst the judge went along with that criticism to a certain extent, he says in terms:
"I cannot find on the evidence that I have heard that these are not appropriate risk assessments as updated."
[19]The judge also made a positive finding in paragraph 39 to the effect that there had been no complaint from the Claimant concerning training and indeed he apparently was unable to remember undergoing the training which it is plain he had been given in the classroom context.[20]In those circumstances, as it seems to me, any appeal would face the additional burden that even if causation could be established, which in my judgment it cannot, it seems very difficult to understand how the Claimant will be able, on the basis of the evidence which was deployed before the judge, to make out a case of breach of duty by the employer.[21]I should mention that Ms O'Brian has an alternative case which she deployed before the judge to the effect that the manual handling which the Claimant was obliged to undertake can be regarded as having exacerbated the degenerative condition from which he suffered or as having accelerated its onset.[22]The judge, however, accepted the evidence of Mr Franklin to the effect that no scientific methodology underpinned that theory at any rate so far as concerned the particular spinal problem from which this Claimant suffered, from which it follows again that the Claimant has simply failed to prove a causal link between the manual handling which he was required to undertake and the exacerbation or the accelerated onset of his condition.[23]For all those reasons, therefore, I refuse permission to appeal.