Victoria Melia v Fleetwood Health Centre Limited

Permission to appeal should be refused where the proposed grounds cannot identify an arguable error with a real or realistic prospect of success. A trial judge may rely on clear joint expert evidence to identify a factual threshold relevant to breach and causation, and then decide whether the evidence crosses that threshold. A risk-assessment breach does not reverse the evidential burden where the claimant can give direct evidence of the working practices said to cause injury. The approach in Keefe v Isle of Man Steam Packet Company Ltd is engaged only where the defendant’s breach makes relevant facts difficult or impossible for the claimant to prove.

The appellant, a pharmacy dispensing assistant, claimed that work for her employer aggravated an elbow condition originally caused by a hotel accident. The hotel claim settled, but the claim against the employer proceeded to trial and was dismissed by HHJ Evans.

The appellant sought permission to appeal on grounds including failure to address a reactive aspect of the claim, misuse of ergonomic evidence, inadequate treatment of her factual evidence, exclusion of medical evidence, and failure to apply Keefe v Isle of Man Steam Packet Company Ltd. Permission was refused on the papers by Robin Knowles J. The present hearing was an oral reconsideration of that refusal.

1. Permission refused. The appellant identified no arguable ground of appeal having a real or realistic prospect of success. There was no order as to costs.
2. The trial judge was entitled to treat the joint ergonomist’s report as identifying a clear factual dividing line. Continuous deblistering for two or more hours without adequate interruption could give rise to a foreseeable upper-limb-disorder risk. Reasonably short bouts interspersed with other activities would adequately manage that risk.
3. The judge was entitled to apply that expert framework to the facts. She found that deblistering periods did not exceed one hour, were often shorter, and were usually shared with another member of staff. Those findings meant that the work did not give rise to a foreseeable risk of injury. The same reasoning answered both the proactive claim based on foreseeable risk and the reactive claim based on reported pain or vulnerability.
4. The admitted failure to conduct a risk assessment had no causative effect. The claimant could give direct evidence about the duration and nature of the work. The breach therefore did not make the relevant facts difficult or impossible to prove. The approach in Keefe v Isle of Man Steam Packet Company Ltd [2010] EWCA Civ 683, which concerned the inability to prove unmeasured noise levels caused by the breach, was properly distinguished.
5. The trial judge was entitled to assess the appellant’s evidence, find inconsistencies, prefer the conclusions reached from the ergonomic evidence, and exclude medical material relating to the separate hotel claim where its underlying report and material were unavailable and its author could not be cross-examined. No individual or cumulative criticism justified disturbing the judgment.

• High Court (Queen’s Bench Division): Robin Knowles J refused permission to appeal on the papers on 30 April 2021.
• High Court (Queen’s Bench Division): On oral reconsideration, Mr Justice Fordham refused permission to appeal and made no order as to costs.