King v Zurich Insurance Company & Ors

An employer’s breach need not be the sole or main cause of personal injury. Liability arises where the breach makes a material contribution to a cumulative, dose-related condition.

This principle differs from cases involving a single, indivisible disease which cannot be shown to result cumulatively from successive exposures. A trial judge may determine causation from the whole of the evidence, including expert opinion, the absence of evidence supporting an alternative cause and the temporal relationship between exposure and symptoms.

An appellate court will interfere with a costs discretion only for an error of principle, failure to consider a relevant factor, reliance on an irrelevant factor, or a plainly wrong decision.

The claimant used vibrating power tools during successive employments with Samsung and Thrall Europa. His earlier exposure was within acceptable levels and produced no symptoms. During his short employment with Thrall Europa, he experienced unacceptable vibration exposure and developed symptoms diagnosed as carpal tunnel syndrome.

The Recorder dismissed the claim against Samsung but awarded the claimant £34,355.57 against Thrall Europa. He also awarded the claimant his costs against Thrall Europa and made no order for Samsung’s costs. The defendants appealed, challenging the alternative basis of the claim, causation and costs. The claimant brought a cross-appeal.

The central issues were whether the Recorder could determine the claim on the basis of vibration-induced carpal tunnel syndrome, whether Thrall Europa’s breaches materially contributed to that condition, and whether the costs orders fell within the Recorder’s discretion.

1. Appeal and cross-appeal dismissed unanimously. Keene LJ delivered the leading judgment. Laws LJ and Brooke LJ agreed with his reasons and proposed result.

2. The Recorder was entitled to consider vibration-induced carpal tunnel syndrome. The particulars alleged hand-arm vibration syndrome, which both medical experts accepted could include carpal tunnel syndrome when induced by vibration. The defendants knew before trial that the alternative case was advanced and made a tactical decision not to seek an adjournment. An objection first made during closing submissions came too late.

3. The Recorder was entitled to find causation from the evidence as a whole. Both sides accepted that vibration could cause carpal tunnel syndrome. There was no evidential support for the suggested constitutional cause. The Recorder could also consider the close temporal relationship between the claimant’s first unacceptable exposure and the onset of symptoms.

4. A defendant’s breach need not be the sole or main cause of injury. It is sufficient that the breach made a material contribution. The claimant’s injury resulted from cumulative exposure during both employments, but Thrall Europa’s unacceptable exposure materially contributed to it. The principle in Bonnington Castings Ltd v Wardlaw [1956] AC 613 and Quinn v Cameron & Roberton Ltd [1958] AC 9 therefore established liability.

5. Fairchild v Glenhaven Funeral Services Ltd [2001] EWCA civ. 1881 was distinguishable. It concerned a single, indivisible disease originating in one malignant cell, where cumulative causation from successive employments could not be shown. The present condition was dose-related and cumulative.

6. The costs orders disclosed no appealable error. A costs decision is discretionary and may be disturbed only for an error of principle, omission of a relevant factor, consideration of an irrelevant factor, or a plainly wrong result. The claimant had acted reasonably in suing both employers. The Recorder could make no order for Samsung’s costs and could order Thrall Europa to pay all the claimant’s costs without separating the issues.

1. Court of Appeal (Civil Division): The defendants’ appeal and the claimant’s cross-appeal were dismissed unanimously. The appellants were ordered to pay the costs of the appeal: [2002] EWCA Civ 598.

2. Leeds County Court: Mr Recorder Marron QC dismissed the personal injury claim against Samsung, gave judgment against Thrall Europa for agreed damages of £34,355.57, awarded the claimant costs against Thrall Europa, and refused the defendants’ costs applications.