Holt v Holroyd Meek Ltd

Permission to appeal should be granted where an argument has sufficient force that liability was determined on a materially different basis from the pleaded and evidential case, causing prejudice because the defendant could not focus its evidence on that basis. An associated challenge to contributory negligence may proceed. Permission may be refused on quantum where, despite some illogicality in the reasoning, the trial judge’s ultimate assessment of likely working capacity was open on the evidence. The relevant question is the claimant’s likely ability to continue working, rather than the age at which he would have wished to retire.

The claimant brought a personal injury claim against his employers, through an employment agency, after slipping on fuel pumps at the defendants’ premises. His case was pleaded and presented on the basis that diesel had made the pump island awash. The recorder rejected that description but found that rainwater combined with diesel and caused the accident, and entered judgment for the claimant on liability on 11 September 2001. On 18 September 2001 he assessed quantum, taking age 60 as the likely end of the claimant’s working life despite a pre-existing back condition. The defendant sought permission to appeal on liability, contributory negligence and quantum. The central issues were whether liability had been determined on a materially different basis causing prejudice, and whether the assessment of working capacity was open on the evidence.

Liability and contributory negligence

Lord Justice Latham granted permission to appeal on liability. The claim had been pleaded, and the evidence had been given, on the basis that the pump island was awash with diesel. The recorder considered that account extravagant, but found instead that rainwater combined with an unidentified amount of diesel on the surface to cause the slip. There was sufficient force in the defendant’s submission that this was a significantly different basis of liability and that the defendant had been prejudiced because it had been unable to centre its evidence on that issue.

Permission was also granted to challenge the recorder’s conclusion that the claimant was not contributorily negligent.

Quantum

Permission was refused on quantum. The recorder had acknowledged the claimant’s pre-existing back condition and its effect on his ability to work consistently. Although there was some illogicality in reasoning by reference to retirement ages, the judge was dealing with an obvious uncertainty and ultimately concluded that the claimant was likely to have been able to continue working until age 60. That conclusion was open to him on the evidence. The material question was how long the claimant was likely to have been able to work, rather than how long he would have wished to work.

Order

The application for permission to appeal was allowed on liability and contributory negligence, but refused on quantum.

• Court of Appeal (Civil Division): On 17 January 2002, permission to appeal was granted on liability and contributory negligence but refused on quantum: [2002] EWCA Civ 37.
• Manchester County Court: Mr Recorder Pratt gave judgment for the claimant on liability on 11 September 2001 and assessed quantum on 18 September 2001.