Rugby Joinery UK Ltd v Whitfield

In assessing damages for vibration white finger where exposure was initially non-negligent and later negligent, the court should compare the claimant’s actual condition with the condition likely to have resulted from non-negligent exposure alone. The deduction must allow for deterioration that would probably have occurred after exposure ceased. A straight-line apportionment by years of exposure is not mandatory and may be plainly unsuitable, because the onset and progression of disease can give greater weight to later exposure. The court must make the best estimate possible from the evidence and common sense. An appellate court should uphold a trial assessment that can fairly be construed as legally correct and falls within the acceptable margin.

Rugby Joinery UK Ltd appealed against an award of £13,520 made by His Honour Judge Moore in the Sheffield County Court on 7 June 2004. Pamela Whitfield had worked with vibrating tools for many years and developed vibration white finger. Liability had been established in earlier proceedings, and the present appeal concerned the assessment of damages.

The employer argued that damages should be apportioned according to the proportion of negligent exposure years to total exposure years. The central issue was the proper method of assessing the deterioration attributable to negligent exposure after symptoms should have been detected, including deterioration that would have occurred even if exposure had ceased.

1. Appeal dismissed. Neuberger LJ gave the leading judgment, with Auld LJ and Judge LJ agreeing. The appellant was ordered to pay the costs of the appeal, subject to detailed assessment if not agreed.
2. The assessment had to distinguish the initial stage of VWF caused by non-negligent exposure from later deterioration caused by continued exposure after the employer should have detected the symptoms and given appropriate advice. The counterfactual condition had to allow for deterioration that would probably have occurred after exposure ceased.
3. Where exact apportionment was impossible, the court was required to make the best estimate it could from the evidence and common sense. This approach was consistent with Thompson v Smiths Ship Repairers (North Shields) Ltd [1984] QB 405 and Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421. The accepted medical material discussed in Allen v British Rail Engineering Limited [2001] EWCA Civ 242 supported the conclusion that VWF is progressive, but that further deterioration after exposure ceases will ordinarily occur within a limited period.
4. A straight-line apportionment based on years of exposure was not required. It could be grossly unfair because it would give equal weight to early exposure before symptoms and later exposure after symptoms had appeared. The reasoning in Allen, including the need to reflect onset and progression, supported giving greater weight to later exposure.
5. The judge’s £3,000 deduction from general damages, with the corresponding deduction from special damages, fell within the acceptable margin. His reasoning could fairly be construed as legally correct, so the Court of Appeal would not strain to interpret it otherwise.
6. For future VWF claims, expert evidence should address the likelihood and extent of deterioration after vibration exposure stops. Early settlement was also strongly encouraged because the sums at stake were relatively modest compared with likely litigation costs.

• Court of Appeal (Civil Division): The appeal against the quantum award was dismissed. The appellant was ordered to pay the appeal costs, subject to detailed assessment if not agreed.
• Sheffield County Court: His Honour Judge Moore awarded Pamela Whitfield £13,520 on 7 June 2004 for vibration white finger caused by negligent exposure.
• Earlier liability proceedings: Claims initially dismissed by Judge Moore were restored on an earlier appeal for four claimants, including Mrs Whitfield, and remitted for assessment of damages.