Forbes v Merseyside Fire and Civil Defence Authority & Ors

A trial judge may find negligence on a pleaded failure to conduct an adequate risk assessment where the evidence supports that allegation, even if the claimant’s main factual complaint is rejected. An intervening medical opinion and resulting retirement do not break causation where the response was foreseeable, given in good faith, not shown to be unreasonable, and fell within the risk created by the original negligence. An unpleaded apportionment allegation cannot be raised for the first time on appeal. A claimant does not fail to mitigate merely because residual earning capacity remains; pursuing a new business may be reasonable on the facts.

The claimant, a divisional commander employed by the Merseyside Fire and Civil Defence Authority, was injured while undertaking an occupational fitness test arranged with the second and third defendants. A machine tipped during a lifting exercise, causing a groin injury and hernia. The claimant was later retired and claimed damages for the injury and consequential financial loss.

After a five-day hearing, Mr Recorder Michael Black QC found the claim established and apportioned the damages between the second and third defendants at 50 per cent. The second defendant sought permission to appeal, challenging the negligence finding, causation of the retirement loss, apportionment, and the conclusion that the claimant had mitigated his loss.

Lord Justice Latham gave the judgment, with which Lord Justice Simon Brown agreed. The application for permission to appeal was refused.

1. Negligence. The recorder was entitled to find that the exercise had not been subject to an adequate risk assessment. The allegation was pleaded, evidence supported it, and the accepted risk was that a person pulling upwards might also pull backwards, destabilising the machine and platform. The claimant’s separate complaint about the positioning of his feet did not prevent the recorder from relying on the pleaded and proved failure to identify and address that risk. A warning not to pull backwards should have been given.
2. Causation and intervening medical advice. The recorder’s findings showed that Dr Jones’s advice and the fire authority’s consequent decision to retire the claimant were foreseeable consequences of the negligence. Although the advice was premature and might ultimately have been wrong, it was given in good faith, had not been shown to be unreasonable, and the authority was entitled to accept it. The retirement therefore fell within the risk which the second defendant’s duty required it to obviate. The principle of novus actus interveniens did not break the chain of causation.
3. Apportionment. The argument that the fire authority should bear a greater share because it had accepted Dr Jones’s advice had not been pleaded or explored at trial. It could not be raised at the permission stage.
4. Mitigation. The recorder was entitled to conclude that the claimant acted reasonably in attempting to earn his living through a property business. The fact that the business was unsuccessful, or that the claimant retained earning capacity, did not itself establish a failure to mitigate. If the business had succeeded, that benefit would have reduced the defendants’ liability.

• Court of Appeal (Civil Division): On 15 July 2002, the court refused the second defendant’s application for permission to appeal. Lord Justice Latham gave the judgment and Lord Justice Simon Brown agreed. The decision is reported at [2002] EWCA Civ 1067.
• Birkenhead County Court: After a five-day hearing, Mr Recorder Michael Black QC found the claim succeeded and apportioned damages between the second and third defendants at 50 per cent.