Court of Appeal VWF cases should settle but not fight
In a VWF case the defendants appealed against an award of damages of £13,520, where the claimant had been employed by the defendants between 1970 and 1998 using vibrating tools. The court found that the employers had been in breach of their duty of care after the knowledge of her condition in 1994, because she continued to be exposed to vibration which caused worsening of her condition. General damages were assessed at £15,000 plus £1,900 special damages reduced by one-fifth to take into account a period of non-negligent exposure. The defendant’s appeal was based on:
The judge had failed to take into account the possibility of any deterioration beyond the first stage if the employers had not been negligent
The deduction of one-fifth was too small.
The judge should have multiplied the £15,000 by a fraction based on the number of years of negligent exposure divided by the total number of years of exposure.
The Court of Appeal rejected the defendant’s arguments, saying the apportionment could not be criticised; straight-line apportionment would have been grossly unfair to the claimant as it would overlook the fact that for a very substantial time the claimant had worked with vibratory tools without any apparent ill effect.
The court went on to say that in respect of the future conduct of claims for VWF, advisors should be aware that, once symptoms of VWF manifest themselves, it is very probable that there will be a deterioration in the condition, even if work with vibratory tools stops. Therefore medical experts should be alerted to that point and given the opportunity to consider the probabilities as detailed in the case of Allen -v- British Engineering Limited (2001), of the progressive nature of the condition. The court then said that, given that VWF cases involve relatively small amounts of money, when compared with the likely legal cost involved, it was highly desirable that claims were settled at an early stage rather than litigate them.
Rugby Joinery Uk Limited -v- Whitfield, Court of Appeal 10 May 2005.