Winwood v Adtranz-Abb Daimler-Benz Transportation (UK & Ireland) Ltd

A Smith v Manchester award is not automatic merely because an injured claimant has a handicap in the labour market and many years of employment remain. The claimant must establish, on the balance of probabilities, a real, though potentially slight, risk of losing the present job before the end of the working life. The risk must be supported by evidence relating to the particular employment. General assumptions about modern employment patterns are insufficient.

The claimant, a skilled fitter employed by the defendant or its predecessors for about 20 years, suffered occupational dermatitis. Liability was admitted, and the County Court assessed damages. The recorder refused a Smith v Manchester award, finding no real risk that the claimant would lose his job at the Crewe site.

The claimant renewed an application for permission to appeal, arguing that the recorder had applied too demanding a test and that the evidence required an award. The Court of Appeal considered the proper meaning of a real risk and whether the recorder’s factual conclusion was arguably perverse.

1. Application dismissed. Permission to appeal was refused.
2. The governing question was whether there was a real, rather than speculative or fanciful, risk that the claimant would lose his present employment before the end of his working life. The risk could be slight. The claimant did not have to show that loss of employment was likely, but he bore the burden of establishing the real risk on the balance of probabilities.
3. The recorder had not imposed a requirement that the claimant prove he would probably lose his job. His insistence on evidence directly demonstrating a real risk in the particular case was correct. A general assertion that there is no such thing as a job for life could not suffice.
4. A Smith v Manchester award would not therefore arise automatically whenever an injured claimant had a labour-market handicap, might eventually lose the job, and had several years of working life remaining.
5. The recorder had considered the evidence, including the claimant’s high standing among skilled fitters, the absence of compulsory redundancies since 1993, the availability of overtime and temporary labour, and the lack of evidence that any possible reorganisation would affect him. There was adequate evidence for the conclusion that no real risk existed. It was not arguable that the decision was perverse or one which no reasonable judge could reach.

• Court of Appeal (Civil Division): On 25 June 2001, the renewed application for permission to appeal from the Stafford County Court decision was refused: [2001] EWCA Civ 1038.
• Stafford County Court: Mr Recorder Higham QC refused a Smith v Manchester award on 20 February 2001.