Welsh v Mathew Clark Wholesale Limited

Where an employer admits breach of duty in requiring manual handling of a defined class of loads, causation must be assessed against the full scope of that admission. The court must compare the claimant’s actual condition with the condition that would have resulted from work excluding the admitted breach, rather than isolate only the most severe incidents.

Liability may extend to continuing impairment where the breach materially increases the frequency and severity of symptoms and causes a permanent vulnerability that would not otherwise have developed. A pre-existing constitutional weakness does not prevent recovery, although damages must reflect the extent of the condition that would have existed without the breach.

The claimant was employed as a delivery driver by the defendant. He developed gastro-oesophageal reflux and alleged that the condition was worsened by manually lifting beer kegs and gas cylinders.

At trial, the defendant admitted the allegations of fault pleaded in respect of manually lifting various heavy kegs and gas cylinders, but denied that the claimant had suffered injury or loss as a result. The county court awarded £5,000 general damages and limited special damages, but rejected claims for loss of earnings and loss of earning capacity.

The appeal concerned the scope of the admission, the proper causation comparison, and the claimant’s entitlement to compensation for continuing symptoms and reduced work capacity.

1. Appeal allowed. The county court judge had wrongly treated the admission as limited to the heaviest beer kegs. It extended to the manual lifting of beer kegs of all sizes, including the 9- and 11-gallon kegs described in the evidence.
2. The relevant causation inquiry was whether requiring the claimant to lift all kinds of beer kegs caused more frequent and severe reflux than would have resulted from his other delivery activities, and whether it caused a continuing impairment of his ability to work as a delivery driver. The judge’s comparison with lighter keg lifting was therefore irrelevant.
3. The evidence supported the conclusion that keg lifting materially increased the prevalence and severity of the claimant’s symptoms. It also supported the inference that keg lifting caused the continuing impairment, because the claimant was one of those whose symptoms did not improve after the aggravating factor ceased. His constitutional weakness reduced the damages but did not defeat the claim.
4. The claimant was entitled to damages for pain and suffering, a Smith v Manchester award for reduced future earning capacity, past and future loss of earnings, and the full amount of his travel and medical expenses. The court assessed damages itself to avoid the cost of remission.
5. The award was substituted with damages of £37,605 before interest, resulting in judgment for £39,080 inclusive of interest. The defendant was ordered to pay the costs of the action and appeal.

• Court of Appeal (Civil Division): Appeal from the judgment of HHJ Raymond Jack QC in the Yeovil County Court. The county court’s order dated 30 June 2000 was set aside and judgment was entered for the claimant in the sum of £39,080 inclusive of interest.