Collins v Tesco Stores Ltd

LORD JUSTICE PILL: This is an appeal against a decision of Mr Recorder O'Dwyer given on 22 November 2002 in which he awarded damages to Mrs Jan Collins, the claimant in a personal injury action, in the sum of £24,670.93. The Recorder found that the claimant's employers Tesco Stores Ltd were in breach of their duty of care to her. The points taken upon this appeal are in relation to the defence of limitation and, if the judgment is upheld, to one component of the damages awarded.

The claimant was employed by the defendant as an assistant in a petrol kiosk in its store in Hornchurch. In the course of her work she was required to re-stock the kiosk with goods which she had to collect from the main store which was 100 to 150 yards away. The method of work varied at different times. The claimant was provided with a metal cage to assist in moving the goods. The judge accepted that the process of moving the goods on the cage was heavy and awkward, particularly because of the weight of the cages, the distance the cages had to be moved across surfaces and the surfaces to be negotiated. He made a finding against the defendant at Common Law and under the Manual Handling Operations Regulations 1992. In consequence of the breach of duty the claimant sustained an injury to her right shoulder.

At the trial the case was put on the basis that the work had exacerbated, although not caused, tendonitis in her right shoulder. Putting it in summary form at this stage, she gave evidence that the symptoms first appeared in late 1996. The claimant continued at work with the defendant until 26 June 1998 and was then off work until 13 November 1999. She has worked only for short periods since that date. Proceedings were not issued until 26 January 2001. A defence of limitation having been raised, the claimant's case was that she did not have knowledge of the components of the claim until 26 June 1998 on which date she had a consultation with a physiotherapist and was told that she was suffering from a strain injury caused by heavy lifting. Firm advice was given to her at that stage, and she immediately ended her employment with the defendant.

Section 11 of the Limitation Act 1980 provides a limitation period of three years in an action for damages for negligence or breach of duty. Sub-section (4) provides, insofar as material, that -

The defendant contended that the claimant had knowledge within that definition at the latest by 14 January 1998, that is, more than three years before the proceedings were commenced. Evidence was given in considerable detail by the claimant before the Recorder who, subject to one point to which I will refer, accepted her evidence.

Two issues arise upon the limitation aspect of the appeal. The first is as to the date of knowledge that the injury was significant, and the second is as to the date of knowledge that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence. The judge found in favour of the claimant on both issues, and it was accepted on behalf of the defendant by Mr Wilkinson that both findings have to be reversed if the defendant is to succeed in this appeal.

On the first issue the judge's conclusion is expressed at paragraph 31 of his judgment:

On behalf of the defendant, Mr Wilkinson has referred the court in detail to the evidence of the claimant. He submits that, upon analysis of that evidence, the only finding which can properly be made is a finding that knowledge existed by 14 January 1998 that the injury was significant. He challenges the test adopted by the judge insofar as the judge appears to have placed reliance upon the claimant's stoicism, to adopt the word used by counsel. It is undoubtedly true that the claimant did, as the judge found, adopt a wait-and-see attitude to the symptoms which she was admittedly experiencing. It is submitted that the test does not enable a person - whether for reasons of self-delusion or eternal optimism, as Mr Wilkinson put it - not to take appropriate action.

It is necessary to refer in some detail to the evidence the claimant gave. Some of the passages refer to both limbs of the test. At page 15 of the bundle the claimant was asked about the pain in the shoulder, which Dr Hirschowitz had mentioned as having begun in March 1997:

In cross-examination at page 44 of the bundle:

The history is also recorded in the medical report to which reference was made, as I have indicated, in the cross-examination. That is a report from Dr Chakravarty, a consultant rheumatologist, of 26 January 1998 which followed a consultation with the claimant at his clinic on 14 January. It is headed:

Mr Wilkinson relies upon the claimant's own evidence and upon the history as recorded in the medical report in support of the submission that this was a significant injury within the meaning of that term in Section 14 (1) (a) of the Act. Mr Coughlan submits, by references to the pulled muscle and the fact that the claimant was prepared to continue with her activities, that the judge was entitled to hold that the injury was not significant in that sense. Plainly, this court is reluctant to reverse findings of fact made by a judge who has had the opportunity to consider the evidence and has made his findings upon it.

The test is not an easy one to apply. It is set out in Section 14 (2) of the Act:

In my judgment, an over-elaborate approach to the question is inappropriate. A possible elaboration is introduced with the "no-risk" litigation contemplated in the Section. That does not introduce into the test a consideration of the readiness with which particular injured persons may resort to litigation. Such elaboration is, in my judgment, inimical to the intention of the statute in this respect. The word "significant" has to be approached in a commonsense way, and a commonsense way based upon the evidence in the particular case. While in some circumstances the effect on a particular plaintiff might be a factor, the test appears to me to be an objective test as, in my judgment, Lord Justice Geoffrey Lane in effect recognised. If, by introducing the concept of wait-and-see, the judge was suggesting that a relevant consideration when considering the significance of an injury is the degree of robustness or stoicism which a claimant has, in my judgment, it is an elaboration which is not appropriate to the test and I would respectfully disagree with his approach. However sympathetic one would wish to be to a claimant who may be slow to resort to the courts and who is prepared to adopt a wait-and-see attitude as to whether an injury is significant, those factors cannot be crucial to whether an injury is significant, although in some circumstances they may throw light on whether or not it is.

Applying the test, I accept the submission of Mr Wilkinson that on the basis of the evidence before the court the only conclusion which could properly be brought reached was that by January 1998 there was knowledge of a significant injury. The symptoms described, the treatment given, the absence from work, are inconsistent with this injury being less than significant.

I turn to the second aspect of the test, that of attributability. Here, too, Mr Wilkinson has made a detailed analysis of the evidence for the consideration of the court. The judge's findings are expressed in paragraphs 32 and 33:

In relation to the judge's conclusions, Mr Wilkinson submits that the judge has confused the question of diagnosis of the injury with the true question, which is one of considering the symptoms and the causal connection with the work. As members of the court have stated in the course of argument, there is considerable difficulty in construing the last part of paragraph 32. For myself, I have to confess I am not clear, with respect, what point the judge was making in the last but one sentence of the paragraph. Plainly, the reference in the medical report to an arthritic injury is a relevant factor on this aspect of the claim. Mr Coughlan submits that if the doctors themselves were uncertain as to the causal link, how could the claimant be aware of it.

There is an issue of fact as to what passed between the rheumatologist and the claimant at the consultation on 14 January 1998. There is no reference in the notes or in the report to the claimant being told that it was an "overuse injury". The claimant's evidence was plain and firm that she was told that it was an overuse injury. If that is right, then, as Mr Coughlan accepts, it would not be open to her to argue that she was unaware on that date of a sufficient causal connection. The judge confronted that point and decided, as appears in paragraph 33, that in that respect, though not in others, the claimant was confused.

Mr Wilkinson has analysed the general evidence given by the claimant as to the history and as to what passed between her and the doctors at the various medical consultations. He submits that the judge, in the light of her evidence as a whole, was not entitled to conclude that she was confused on this point. Her evidence is so clear in relation to the consultations, he submits, on every other point that the route the judge chose upon this point was one he was entitled to take.

Mr Coughlan submits that the court should respect the conclusion of the judge on this point. The judge had every opportunity to assess the claimant's credibility, which the judge approved, and her reliability which, except in this respect, he approved. There was prolonged cross-examination and re-examination, and the judge's conclusion should be respected. In my judgment, that issue does not conclude the case and that is because of other evidence given by the claimant as to her knowledge of a sufficient causal link between the symptoms she was suffering and her work. Some of the references I have already mentioned because, understandably, the two were dealt with together in cross-examination in the evidence to which I have referred. It is necessary to refer somewhat more fully to that evidence. At page 46:

In my judgment, having regard to the claimant's evidence as a whole, the causal link necessary to establish knowledge for attributability purposes was present by January 1998. As with the question of the significance of the injury, that, in my judgment, is the only conclusion which the judge could properly reach upon the evidence. It is not necessary to decide for this purpose whether the judge has applied an incorrect test. The court has a duty, in my view, to look at the evidence itself and to decide whether the conclusion which the judge reached could properly be reached.

I have come to the conclusion that the judge could not reach the conclusion he did. It follows that, in my judgment, the appeal must be allowed. I have come to that conclusion with reluctance. The claimant was a candid witness who wished to carry on through the symptoms she was suffering, and it is difficult to criticise a claimant who adopts a wait-and-see policy as this claimant did. As I have indicated, the purpose of the limitation statute is to strike a balance as between claimants and defendants. Moreover, it is not the case that a closure occurred on 14 January 1998 when - on the conclusion I have reached - the claimant had the appropriate knowledge. She had three years from that date within which to bring a claim. For reasons which have not been investigated in this court no claim was brought until beyond that three-year period. We know that it was close to the three-year limit from January 1998 that the claimant first consulted solicitors.

Having reached that conclusion, the question of damages does not arise, but I deal with it briefly in deference to the submissions which have been addressed to the court by Mr Wilkinson. The item of damage which is challenged is that of special damage for loss of earnings. The judge found upon the medical evidence - and, in particular, that of Mr Hirschowitz - that upon a finding of liability the claimant was entitled to recover her full loss of earnings until August 1999 and a partial loss of earnings, amounting to one-half of her earnings, for a period of 147 weeks from August 1999 to 1 June 2002.

The first finding is not challenged. It is submitted that the partial award is flawed. It is submitted that the recorder has been logically inconsistent in taking one-half of the net earnings for the three-year period and then deducting from it the sum of about £3,500 for the claimant's actual earnings during that period. That is an illogical inconsistency in the defendant's favour. The main point made is that while the medical evidence was that a partial disability continued after August 1999 when the claimant had a clearance from the department - in that she passed the DSS test and was declared fit by them under what is known as the "all works" test - nevertheless there was medical evidence from a doctor that she continued to suffer a partial disability for a much more prolonged period. The judge referred to the evidence at paragraph 55 of his judgment:

Mr Wilkinson makes the point that the opinion of the doctor was, in the event, based on a fallacy in that the account given to him by the claimant was inconsistent with the account given in evidence. I do not propose to refer to the evidence in detail, but in some of her answers she did refer to having made a recovery. She also referred, and Mr Wilkinson relies on this, to the fact that she had made no efforts to obtain work since February 2001. Moreover she had employment on two short occasions with Marks and Spencer. It is clear that on one occasion she gave up that work, not because of any problems in doing it, but she wished to help her husband in his business.

Mr Wilkinson's submission is that the claimant was entitled to no damages for loss of earnings after August 1999. If she was entitled to any, it was only for a very short period measured in two or three months to give her an opportunity to obtain work, and work was open to her by reason of her recovery.

I am not able to accept the submission of Mr Wilkinson. The judge found as a fact that the claimant would have "continued to work for Tesco or equivalent employer notwithstanding her problem with her knees", that is, if the injury had not been done to her.

In my judgment, the judge was also entitled to have regard to the medical evidence. He heard the evidence of the claimant. It is right that it did depart from the history given to the doctor. In my judgment, it does not necessarily follow that the judge must ignore the medical evidence. The doctor was not called. We have not been told whether application to call him was made on behalf of the defendant and was refused. The judge was correct, in my judgment, in his view that he was entitled to accept the evidence of the doctor.

I have regard also to one of the answers given by the claimant; it is that at page 65 of the bundle when she was being cross-examined as to why she had not made further efforts to obtain work. It was suggested it was because of her husband's business:

In the light of that evidence the claimant would be disentitled to damages for loss of earnings on the basis awarded only if there was some wholly extraneous reason why she did not work following the injury. Not only is there the judge's finding that she would have continued to work for Tesco but, in my judgment, there is nothing from the other evidence that suggests an extraneous reason which would have broken the chain of causation between the breach of duty and the loss of earnings. In any event, the amount awarded is far from extravagant because the judge did deduct - and I give approximate figures - from the £13,500, which was the arithmetical calculation of the one-half lost, the sum of £3,500 which had been earned. That is, as Mr Wilkinson rightly says, logically inconsistent. But, in the result, the damages for that period were in the region of £10,000.

However one approaches the evidence and whether one considers the element - as one might, in my judgment - of loss of earning capacity during that period, the amount awarded is commensurate with the evidence, and had the claimant succeeded on liability, which she does not, I would have upheld the award of special damage.

For the reasons I have given, I would allow this appeal.

LORD JUSTICE LAWS: I agree that this appeal should be allowed for the reasons given by my Lord, Lord Justice Pill, whose account of the facts and history of the matter I gratefully adopt.

As the relevant legal principles have something of an elusive quality, I venture to add a view words of my own. First, as to significance, I would suggest a compendious question: is the injury bad enough, to the putative claimant's knowledge, for it to be reasonable for him or her at the point of time under consideration to start proceedings against a defendant who is able to pay the claim and will not dispute liability? Here I intend no inconsistency with the formulation set out by Lord Justice Geoffrey Lane in McCafferty at page 775 B to D. On the facts of this case as they have been explained in detail by my Lord, I am driven to an affirmative conclusion upon this question as at a date no later than 14 January 1998.

On attributability, I would respectfully recall what was said by Lord Justice Brooke in North Essex District Health Authority v Spargo [1997] 8 Med. LR 125, 131:

On the approach there set out the respondent/claimant, in my judgment, knew that her injury was attributable within the meaning of Section 14 (1) (b) at a date no later than 14 January 1998.

As to damages, had they arisen, I agree entirely with what my Lord has said.

SIR MARTIN NOURSE: I agree with both judgments.