Smith v Wright & Beyer Limited

An employer may be liable for the whole of a cumulative injury despite substantial non-negligent exposure before its duty arose. Apportionment is unnecessary where, on the balance of probabilities, proper precautions after that date would have prevented the symptoms and resulting disability.

Evidence of a subsequent event should be admitted on appeal only where the event falsifies the basis of the judgment, so that ignoring it would affront common sense or justice. A prediction which merely proves inaccurate does not suffice. The principle of finality otherwise requires damages to be assessed once and for all at trial, subject to the limited jurisdiction to award provisional damages.

The claimant developed vibration white finger after working for the defendant employer with vibrating tools over many years. The employer accepted liability from the date by which it ought to have appreciated the risk. His Honour Judge Tetlow found that proper warnings and changes to working practices would probably have prevented symptomatic and irreversible injury. He awarded £70,157.60 in damages without deducting anything for exposure before the employer's relevant knowledge.

The employer appealed from the Manchester County Court. It challenged the refusal of permission to call its medical expert, the absence of an apportionment for non-negligent exposure, and the future loss of earnings award. On the last issue it sought to introduce evidence that the claimant had remained employed longer than predicted and that the employer had subsequently entered liquidation.

1. Appeal dismissed. Pill LJ delivered the leading judgment, with which Tuckey J agreed. The county court judge had acted within the ambit of his discretion when, following non-compliance with directions, he refused the employer permission to rely upon its medical expert.

2. The principle that a defendant is liable only to the extent of its material contribution to a divisible injury did not require an apportionment on the facts found. The judge was entitled to find that, had the employer properly discharged its duties after acquiring the relevant knowledge, it would have reorganised its working practices and prevented further significant exposure. On the balance of probabilities, the claimant would not then have developed symptomatic vibration white finger. The pain, suffering and disability were therefore attributable entirely to the employer's fault, notwithstanding the long earlier period of non-negligent exposure.

3. An employer seeking to contend that precautions or reorganisation were impracticable bore an evidential burden on that issue. No such evidence had been called. Questions concerning an informed employee who nevertheless wished to continue hazardous work did not arise on the findings.

4. The later events did not justify the admission of fresh evidence. A trial judge's prediction about future employment does not become revisable merely because events take a different course. The claimant's continued employment and the employer's later liquidation did not falsify the basis of the future-loss award.

5. Tuckey J added that an appellate court should take account of a subsequent event where upholding the judgment would affront common sense or justice because the event falsifies its whole basis. Otherwise finality prevails. Damages are assessed once and for all at trial, except where the court exercises its limited jurisdiction to award provisional damages.

The appeal was dismissed with costs.

1. Court of Appeal (Civil Division): The employer's appeal was dismissed with costs: [2001] EWCA Civ 1069.
2. Manchester County Court: His Honour Judge Tetlow refused the employer permission to rely upon its medical expert and subsequently awarded the claimant £70,157.60 in damages.