Jersey Unreported Judgments

[2005]JRC046

royal court

(Samedi Division)

 

15^th April 2005 

 

 

 

 

 

Appeal, under Rule 15(2) of the Royal Court Rules 1992, as amended, from a decision of the Master of 19^th October, 2004 on damages, claimed by the Respondent for injuries sustained at his place of work.

 

Advocate P.M. Livingstone and Advocate J. Lawrence for the Appellant .

Advocate A.J.D. Winchester for the Respondent.

 

 

 

judgment

 

the COMMISSIONER:

1.        On the 16^th November, 2004, the Master of the Royal Court gave a judgment on the assessment of damages claimed by the Plaintiff who had suffered injury at his place of work.  The accident which led to the injury occurred on the 15^th May 1997.  The plaintiff, Mr John Martin Torr, was a shuttering joiner with a life-time of experience.  He was at the bottom of a shaft being constructed on the site of an engineering project in Gas Place, St Helier.  As a shuttering joiner, he was involved in the installation of heavy steel shutters at the base of the shaft.  It was a deep shaft - some 200 feet deep.

2.        A crane was lowering individual shutters (each weighing about three-quarters of a ton) into the shaft when a shutter fell on to the plaintiff (through no fault of his) and he sustained serious and permanent injuries.  He was then 51 years old.

3.        The Master gave detailed reasons for his decision.  The Master had before him a detailed bundle of documents including medical reports.  All those documents were, of course, before us.  The Master heard oral evidence from Mr Torr and from two experts: Mr Allan Elsegood who runs a personnel management consultancy.  He appeared for the Company, Balfour Beatty Civil Engineering Limited and Mr Andrew Nicoll an employment consultant who appeared for Mr Torr.  Both experts have very long and distinguished careers.  Both Mr Torr and the Company were represented by the same advocates who appeared in this appeal before us.

4.        By agreement with Counsel the Master had to decide three questions.  Many matters had already been agreed by the parties by the time that the matter came before the Master.  The amount for past loss of earnings had been set at £175,132.27, general damages had been set at £9,250, damages under the heading of loss of congenial employment had been set at £3,000 and there had already been interim payments made to the plaintiff of £49,000.  The three questions that the Master had to decide were these:

(i)        Following the plaintiff's accident, did he take too long to obtain alternative employment?

(ii)       Did the plaintiff act reasonably in taking the job which he currently holds with DMM Engineering Limited or should he have taken further steps to obtain more lucrative employment? And

(iii)      What form of employment was it likely that the plaintiff would have continued after the age of 60 but for the accident?

5.        On each of these questions the Master found in favour of the plaintiff.   He heard the witnesses, he considered the documents in an agreed bundle and his decision is unequivocal.  What he said is this (in the final part of his carefully reasoned argument):

"Question (a) - did the plaintiff take too long to find a job?

In answering that question there are a number of factors which I have taken into account which were covered by the evidence which I heard.  There is the question of the plaintiff's age and the disability he suffered as a result of his accident.  His job as a shuttering joiner was specialised.  His own evidence was that he did not have other joinery skills.  It was also accepted that he was not very good at paperwork (being dependent on his wife for assistance in this area) and he had no computer or other administrative skills.  Taking into account his age I think it fair to say that retraining was not a realistic option.  Regard must also be had to the area of North Wales where Mr. Torr lives.  Immediately following his accident, levels of unemployment in that whole area were high.  Mr. Nicoll, in his evidence, was of the opinion that Mr. Torr's position in the job market was low and he had very little to offer.  Also, even with the help of a Disability Employment Adviser from the unemployment office no job was found for Mr. Torr.  The job which he eventually found and still holds he found on his own initiative.  No evidence was adduced to suggest that Mr. Torr had on any occasion turned down any job which had been offered to him.  Taking all these factors into account and weighing all the evidence which was put before me I am satisfied that the plaintiff did not take too long to obtain alternative employment and acted to the best of his ability and reasonably in the steps which he took in trying to secure employment after his accident.

Question (b) - Did the plaintiff act reasonably in taking the job which he currently holds or should he have taken further steps to obtain more lucrative employment?

The factors which I have mentioned in answering the previous question are also largely material in considering this matter.  Although levels of unemployment in North Wales are not as high as immediately following Mr. Torr's accident they remain at a significant level.  More importantly, the disadvantages in the labour market which Mr. Torr suffers remain applicable.  He is now in a steady job which he has held that for over 4 years.  Although he does not have great prospects of advancement there is a possibility of more hours and perhaps additional functions which he may be able to perform.  In the course of the evidence I was referred to the type of jobs available in the area which might have been suitable for Mr. Torr.  It is noteworthy that the majority of jobs in question were low paid.  Some might well have necessitated his buying and meeting the running costs of a car and at the end of the day he might not have been better off in any significant way.  Although the defendant suggested that he might obtain joinery work of a less arduous nature, no evidence was put before me indicating availability of such work or that had it been offered to or refused by Mr. Torr.  In any event, his own evidence makes it abundantly clear that this was not an area in which he considered himself to have any expertise.  Taking into account all the evidence which I have heard I consider that the plaintiff did act reasonably in taking the job which he currently holds with DMM Engineering Limited and there was no need for him to have taken further steps to obtain more lucrative employment.

 

Question (c) - What form of employment is it likely that the plaintiff would have continued after the age of 60 but for the accident?

In essence, the issue between the parties was whether Mr. Torr would have carried on as a shuttering joiner up to the retirement age of 65 but for the accident.  Shuttering joinery had been Mr. Torr's occupation for the vast majority of his working life until the accident.  It is reasonable to consider that he was well thought of in that occupation and this is indicated, in my view, by the fact that he was almost continually in work.  His C.V. shows that he had carried out supervisory functions such as a charge hand or foreman on various jobs.  I think he had also built up a wealth of knowledge, experience and expertise which he could have used in the future.  I also accept his description of how work responsibilities and functions would be shared out in a gang which would have enabled him to carry on his employment.  Mr. Torr gives the impression of being a reasonably fit man (apart from the unfortunate disability suffered because of his accident) and his enthusiasm for the job which he has spent most of his working life doing was evident and, I believe, totally genuine.  In my view he could easily have come within that minority who would have continued in the job of shuttering joiner to the age of 65.  On a balance of probabilities I think it likely that he would have done so.  I therefore find that he would have continued in that employment to the age of 65.

6.        We had before us the affidavit of Mr Paul Roche the assistant manager of the insurers of the defendant who said that he had been advised that he had ten days under the Rules to file a notice of appeal.  (That is, of course, under Rule 20/2 of the Royal Court Rules 1992).  Mr Roche very candidly states in his affidavit that he consulted with Advocate Livingstone over the days following the Master's decision and eventually decided (and gave Advocate Livingstone instructions on the matter) to appeal only on the third point (question c) and accordingly a Notice of Appeal was filed on the 26^th November.  There did not appear to be a question of lack of time to consider the matter for no extension of time was then contemplated.

7.        The next paragraphs of the affidavit are telling.

"4.       On 30^th November, at a further hearing before the Master, it was agreed that the appropriate level of damages, given the Master's findings, was £277,454.54.  I was notified of this on 3^rd December at which time I was also informed that the appeal had been fixed for a hearing on 4^th April, 2005.  I was told that a transcript of the evidence given before the Master would be available at about the end of February.

5.        I then started to consider the matter in more details.....".

8.        By the 14^th March having read (again) the medical reports and having received the transcript of proceedings on the 14^th March, Mr Roche instructed Advocate Livingstone to appeal on all three points decided by the Master.

9.        The first point that we have to decide, is whether or not we should exercise our discretion under the rules and allow an extension of time so that questions (a) and (b) not appealed against within the time limit imposed by the Rules (ten days) could be taken with question (c) which was appealed against within the time limit and which is before us today.

10.      It must be recalled that notice of intention to appeal on the additional two grounds was given by letter on the 15^th February, 2005; that is almost three months after the time limit for filing an appeal had expired. 

11.      In fact the revised Notice of Appeal was filed only on the 11^th March, 2005.

12.      Advocate Livingstone relied heavily on cases where there had been an application for extension of time under the Court of Appeal (Civil) Jersey Rules 1964 because he argues that the arrival of the transcript in this case was crucial.  The transcript came into Mr Roche's hands on 14^th March, 2005.  Before that time a decision had also been made to appeal the second point.  Mr Roche said that "my view was based in particular upon the report of the employment expert engaged for Balfour Beatty, Alan Elsegood".  That report of course was put to the Master at the hearing.  Advocate Winchester had, apparently, been informed of the decision to appeal at point (b) of the 8^th February and the revised appeal on that point was filed on the 11^th March.

13.      There had been a decision by the defendant to breach an earlier agreement that £66,717.84 was to be held in a joint account pending the outcome of the appeal on the third ground.  For that breach, the defendant was ordered to pay indemnity costs to Mr Torr.  We have to say at once that the conduct of the defendant in that particular matter has not affected our decision one way or the other.  We only make the point because Counsel raised it before us.

14.      We can happily adopt the reasoning of the Court of Appeal in Barker -v- Barclays Bank plc (5^th April, 1989) Jersey Unreported; [1989/57]; [1989 JLR N.2] where the Court said that in exercising its discretion to allow the enlargement of time for appeal to take into account factors such as the extent of the delay, any explanation for it, the prospects of the success of the appeal and the prejudice to other parties to the proceedings.

15.      In Snell - v- Beadle (22^nd April, 1999) Jersey Unreported; [1999/68]; [1999JLR N.1] which was an application for a further month from the time of three months set by the Court of Appeal in its judgment.  In the course of his judgment, the learned Bailiff, Sir Philip Bailhache, said:

"So far as the merits of the application are concerned time is pressing and I cannot do justice to the arguments which have been addressed to me by both counsel.  I shall therefore refer to only one authority drawn to my attention by counsel for the appellant and that is an extract from the judgment of Ackner LJ in Palata Investments Ltd & Ors -v- Burt & Sinfield Ltd & Ors [1985] 1 WLR 942 CofA.  In that judgment Ackner LJ said:

"....we expressed the opinion that in cases where the delay was very short and there was an acceptable excuse for the delay, as a general rule the appellant should not be deprived of his right of appeal and so no question of the merits of the appeal will arise.  We wish to emphasise that the discretion which fell to be exercised is unfettered, and should be exercised flexibly with regard to the facts of the particular case.  No doubt in some cases it may be material to have regard to the merits of the appeal; because it may be wrong, and indeed an unkindness to the appellant himself, to extend his time for appealing, after he has allowed the time to elapse, to enable him to pursue a hopeless appeal."

It was conceded in this case that there had been no undue delay in making this application which was indeed lodged before the three month period set by the Court of Appeal had expired."

16.      Advocate Livingstone made two points on this.  He argued that this court has a much wider discretion because it is an appeal 'de novo' and in such a case as this one there is more likelihood of success than on an appeal from the Royal Court to the Court of Appeal.  We do not entirely agree with this argument because we must always have careful regard to the reasoning of the Master who has seen witnesses and had an opportunity to asses the value of their evidence in a way that the transcript (which was before us) cannot.  We have, of course, read the transcript very carefully in reaching our decision.

17.      Mr Torr swore a detailed affidavit on the 31^st March, 2005.  There was some criticism directed at this.  For example, Advocate Livingstone pointed out one paragraph in particular:

"9.       That I have purchased a motor home in the sum of £28,580.  In addition I have used the sum of £6,363 in the purchase of materials towards the construction of the property which I have mentioned above.  There is now produced and shown to me marked "JMT3" a bundle of invoices from a number of suppliers who have been involved in assisting me with the construction of the house".

18.      We were concerned as there are no dates shown for the purchase of the motor home.  We called for the invoice.  It shows that the deposit was paid on 28^th November, 2004.  In regard to the house Mr Torr clearly explained that (as was agreed by counsel) the sum of £66,717.84 was in issue on that part of the Appeal - (c) - that had been lodged on time.  Mr Torr was anticipating receiving an approximate sum of £59,000 which "would have represented the balance due in any event to me notwithstanding the outstanding appeal against part of the judgment of the Master of the Royal Court.  This being before any consideration of the matter of costs".  It is clear to us - and it is clear beyond peradventure - that Mr Torr has taken financial decisions in the expectation that any appeal would be taken only on the third ground.  He made a number of financial decisions.  We cannot say that the affidavit of Mr Roche (who no doubt had other pressing matters to deal with) gives us any reasonable excuse for the delay.

19.      In his reasons the Master said:

"The plaintiff was first to give evidence before me.  In the course of his reports, the Consultant Orthopaedic Surgeon Mr. W. Jones referred to the plaintiff, Mr. Torr, as a good and straightforward witness who did not appear to be exaggerating his symptoms.  I also found Mr. Torr to be a straightforward witness who gave his evidence openly, honestly and to the best of his ability."

20.      It is perhaps unfortunate that the insurers did not have a representative at the hearing but we have no doubt that Advocate Livingstone who conducted the case before us skilfully and assiduously would have reported back with some care.

21.      We have found it impossible to fault the Master's reasoning on points (a) and (b).  Of course, the Court can adopt the Master's reasoning as its own but it has a duty to interfere if it comes to the inevitable conclusion that it must do so in order to give justice to both parties.  As was said by Crill, Commissioner in Murphy -v- Collins [2000 JLR 276] at 283:

"This court in my view - and the Royal Court has always taken this view in a long line of cases - will not have its discretion fettered unless there is clear reason for doing so".

22.      In our view, and despite the carefully reasoned arguments of Advocate Livingstone we cannot fault the decisions of the Master on grounds (a) and (b).  We cannot see that a good reason for the delay has been set out by the defendant but that, of course, is not the principal reason for our refusing the application.  The defendant has failed to satisfy us that we should exercise our discretion in its favour.  It is idle to say that Mr Torr "only" stands in jeopardy of losing £66,000.  He has clearly acted in good faith and paid out substantial funds in the anticipation that he only faced one ground of appeal.  The most telling ground however must be that we can see no prospect of success were the appeal on (a) and (b) to be allowed to proceed.  Accordingly, we refuse to allow the extension of time.

23.      I then sat alone to hear a further argument from Advocate Livingstone that two letters were marked "without prejudice" which passed from Advocate Winchester to Advocate Livingstone dated the 27^th July 2001 and the 21^st August, 2002 should be included in the argument on ground (c).  There was some correspondence passing between Dr Herbert and Advocate Livingstone which was not objected to but especially the decision covers the two letters mentioned above.

24.      The nub of the argument is expressed in the lines of the detailed letter of the 27^th July, 2001.    They say:

"Accordingly it is intended to claim for Mr Torr's loss of earnings, for the six year period which remains until his 60^th birthday."

25.      The calculations on that point in both letters work on the basis that Mr Torr would have retired at 60.

26.      That is possibly due to a report from Dr Herbert, an occupational physician and one of the experts retained by the plaintiff.  The point is clarified in letters from Advocate Livingstone in March 2005.  I cite the relevant passages.  Firstly the letter to Dr Herbert of the 14^th March:

"At page 9 of your report you stated "In my opinion, had it not been for the accident on the 15^th May, 1997, Mr Torr would have continued in the same occupation following short term contracts until the normal retirement age of 60 years when he would have sought light domestic joinery".

27.      Dr. Herbert replied on the 22^nd March, and it is useful to set out his letter in its entirety:

"  I acknowledge your detailed letter of the 14^th March 2005 which I confirm I have carefully read.

In my Report dated 12 November 1999 I did state that it was my opinion that Mr Torr was unlikely to continue as a shuttering joiner beyond the age of 60 years.  The reason for expressing this opinion is that shuttering joinery is heavy physical work undertaken frequently at heights.  He had worked on chimneys, underground, on water treatment works and bridges.  In addition to this he had worked long hours 7 -12 hour shifts, for most of his working life.  It is not uncommon for people doing such heavy work to reduce their work load at the age of 60 years and take lighter duties.

Also as detailed in the same Report Mr Torr was very well connected as a shuttering joiner and gave examples of future work, possibly at Balfour Beatty, Langs, Gleesons and Bywaters.

I also note that he had done some supervisory work.

In short, depending on Mr Torr's motivation he could well have continued as a shuttering joiner until the age of 65 years."

28.      The argument that is put forward is that the case subsequently adopted by the plaintiff cannot have been his true case.  Is that so?  The letter from Dr Herbert (as Advocate Livingstone readily admitted) was helpful to the plaintiff. 

29.      The Order of Justice is dated the 25^th April 2000.  Particulars were filed on the 7^th November 2003.  Under the heading "Future loss of earnings" are these words:

"It is the Plaintiff's case that he would have been able to continue in his employment as a shuttering joiner foreman until retirement at 65".

30.      It was that proposition that was before the Master and it is on that decision of the Master that the final ground of appeal is based.

31.      Advocate Livingstone cited to us the case of South Shropshire District Council -v- Amos (1987) 1 All ER 340 at 342.   That case reiterated the fact that a document which is headed "without prejudice" does not conclusively or automatically render it privileged from admission in evidence in subsequent proceedings.  If the document (or in this case the letters) is challenged then the Court will look to see the true nature of the document.  I cannot see, on a careful examination that the letters in their entirety were anything other, at that early stage, but an attempt to compromise the action before the particulars were filed in 2003.  Common sense bears no other interpretation.  As was said in "Documentary Evidence" by Style and Hollander (citing South Shropshire District Council -v- Amos):

"The test is whether the communications formed part of a genuine attempt at settlement of an existing dispute.  If so all documents forming part of the negotiations will fall within the privilege including the document initiating the negotiations, whether or not they are themselves offers".

32.      The letters are privileged on that basis but Advocate Livingstone goes further.  He states that he needs to produce the letters to show "unambiguous impropriety".  It appears that the phrase was first coined by Hoffman LJ (once a distinguished judge of the Jersey Court of Appeal) in the unreported decision of Forster -v Friedland (1992) CA Transcript 1052.

33.      The argument is well illustrated in Savings and Investment Bank Ltd -v- Fincken (2004) 1 All ER 1125 at 1140 where Rex L.J. said:

"(57)   In my judgment that philosophy is antagonistic to treating an admission in without prejudice negotiations as tantamount to an impropriety unless the privilege is itself abused.  That, it seems to me, is what Robert Walker LJ meant in the Unilever case when he repeatedly spoke in terms of the abuse of a privileged occasion, or of the abuse of the protection of the rule of privilege (see [2001] 1 All ER 783 at 792, 795 and 796, [2000] 1 WLR 2436 at 2444, 2448 and 2449).  That is why Hoffmann LJ in Forster's case emphasised that it was the use of the privileged occasion to make a threat in the nature of blackmail that was, if unequivocally proved, unacceptable under the label of an unambiguous impropriety.  And that is why Peter Gibson LJ in Berry Trade suggested, without having to decide, that talk of 'a cloak for perjury' was itself intended to refer to a blackmailing threat of perjury, as in Greenwood's case, rather than to an admission in itself.  It is not the mere inconsistency between an admission and a pleaded case or a stated position, with the mere possibility that such a case or position, if persisted in, may lead to perjury, that loses the admitting party the protection of the privilege (see the first holding in Fazil-Alizadeh -v- Nikbin [1993] CA Transcript 205, (1993) Times, 19^th March, described in [47] above).  It is the fact that the privilege is itself abused that does so.  It is not an abuse of the privilege to tell the truth, even where the truth is contrary to one's case.  That, after all, is what the without prejudice rule is all about, to encourage parties to speak frankly to one another in aid of reaching a settlement: and the public interest in that rule is very great and not to be sacrificed save in truly exceptional and needy circumstances."

34.      I can see nothing in the correspondence that leads me to a conclusion that the "without prejudice" rule in this case should be waived and for that reason the letters will not be produced in aid of the appellant's argument.

35.      We now move to the original ground of appeal.  The question that the Master was asked to consider was "(c) What form of employment is it likely that the plaintiff would have continued after the age of 60 but for the accident?"

36.      What the Master said in his conclusion was this:

"39.    Question (c) - What form of employment is it likely that the plaintiff would have continued after the age of 60 but for the accident?

In essence, the issue between the parties was whether Mr. Torr would have carried on as a shuttering joiner up to the retirement age of 65 but for the accident.  Shuttering joinery had been Mr. Torr's occupation for the vast majority of his working life until the accident.  It is reasonable to consider that he was well thought of in that occupation and this is indicated, in my view, by the fact that he was almost continually in work.  His C.V. shows that he had carried out supervisory functions such as a charge hand or foreman on various jobs.  I think he had also built up a wealth of knowledge, experience and expertise which he could have used in the future.  I also accept his description of how work responsibilities and functions would be shared out in a gang which would have enabled him to carry on his employment.  Mr.Torr gives the impression of being a reasonably fit man (apart from the unfortunate disability suffered because of his accident) and his enthusiasm for the job which he has spent most of his working life doing was evident and, I believe, totally genuine.  In my view he could easily have come within that minority who would have continued in the job of shuttering joiner to the age of 65.  On a balance of probabilities I think it likely that he would have done so.  I therefore find that he would have continued in that employment to the age of 65."

37.      We have to recall that we are not dealing with a salaried employee who, perhaps under a statutory duty is bound to retire at the age of 65.  Let us see what Mr Torr said on answering questions on this point.  (We refer to the transcript).

38.      At page 24 there is this (Mr Torr is giving evidence).

"ADVOCATE WINCHESTER:   Do you think you would still be working?

WITNESS:   I think so yes.

ADVOCATE WINCHESTER:   Doing that type of work?...

WITNESS:   Definitely...

ADVOCATE WINCHESTER:   the heavy manual ...

WITNESS:   I really enjoyed my work, I did.

ADVOCATE WINCHESTER:   Why did you enjoy it so much Mr Torr?

WITNESS:   It was interesting doing (sic) from different places and seeing different people and different sort of work as well you know, every job was different.  I really enjoyed my work.

ADVOCATE WINCHESTER:   Do you think that you would still be able to manage the heavy manual nature of the work?

WITNESS:   I think so yes.  You get maybe you get like a charge hand job or the foreman's job or you know, but you've still got to muck in the same but not as you... well they don't expect you to, you know the young lads will do the work for you if you've got good lads, like, they will do the heavy work for you then they would probably put you making the shutters and things, like, that on the floor, like, you know and they would be doing the heavy work putting them up and things like that."

And at page 55:

"ADVOCATE LIVINGSTONE:   Okay there is a list of requirements and then underneath that it said 'Mr Torr would have expected to remain as a shuttering joiner until the age of 60 when he would have sought lighter work', and then if we go over the page to page 192, after listing a few firms with which you had an excellent reputation, Balfour Beatty, Laings, Gleeson and Bywaters, Mr Herbert gives his opinion that had it not been for the accident you would have continued in the same occupation following short term contracts until the normal retirement age of 60 when he would have sought light domestic joinery.

WITNESS:   Yeah.

ADVOCATE LIVINGSTONE:   Okay, so why do you think he formed that impression?

WITNESS:   I don't know why he formed that impression because, well, he was a doctor he wouldn't know about shuttering and things like that but, uhm, I don't know.

ADVOCATE LIVINGSTONE:   So what you're saying here today is that in 1999 when you were seeing Mr Herbert, just as now, your intention was to do shuttering joinery until nineteen ... until the age of 65?

WITNESS:   I should imagine ... well, like I say, you never know do you?

ADVOCATE LIVINGSTONE:   No but your intention - never mind whether you could have done it - your intention both in 1999 and now was to do that?

WITNESS:   I should imagine so yeah, yeah."

39.      Earlier in the transcript Mr Torr said this in his examination in chief:

"ADVOCATE WINCHESTER:   Has it been your experience personally that men in their late fifties ....?

WITNESS:   Yeah, yeah, usually, they make the shutters and things they get lighter work out of it, in a way.  It's still heavy work but not, you're not hanging on a scaffold with a lot of weight on your limbs, they do the work on the floor, you see, and then when you're lifting the shutters into place and things that's where the heavy work is, or you have to move girders and things like that.

ADVOCATE WINCHESTER:   Just so that I can understand this, and perhaps the Court as well, your experience is that men in their late fifties would be involved in the same work...

WITNESS:   Yes, yes.

ADVOCATE WINCHESTER:    but would not do quite so much of the heavy manual work?

WITNESS:   Yeah, that's what usually they do.  The shutters are mostly made on the ground and then the crane lifts them up but when you get them hanging on the crane there is a lot of pulling on ropes and getting them into the steel and then you have to go in between the steel to take the bolts and things through the walls and things that's where the heavy work is up and down the steel inside but the shutters have got to be made on the floor before they go up to the wherever they're going on the walls like and that's where the heavy work is...

ADVOCATE WINCHESTER:   Right.

WITNESS:   ... going in between all the steel work and things like that.

ADVOCATE WINCHESTER:   Would it have been your intention to continue in that employment?

WITNESS:   Yes, I would have liked to, yeah."

40.      There was eventually prepared a joint statement of issues agreed and disagreed between the two employment consultants, Mr Andrew Nicoll for the Plaintiff and Mr Alan Elsegood for the defendant company.  It says at one stage:

"4.       There was partial agreement between the consultants in relation to the duration of Mr Torr's working life as a shuttering carpenter.  What separates the consultants is the information given to Mr Nicoll at interview by Mr Torr in respect of his intentions.  Both consultants agree that ultimately it must be matter for the Judge to accept or not Mr Torr's assertion that he would have worked in the physically demanding role to 65.  On the positive side both consultants agree that if a man stays fit and is motivated that work to 65 is possible.  Both consultants acknowledge however that working on much beyond 60 years of age would be unusual, with only a minority of men choosing, or managing, that schedule.  There is a gradual withdrawal from the trade from 50 onwards which accelerates steeply beyond 60.

41.      In his report Mr Nicoll said this:

"He stated his intentions were to work to 65.  While he acknowledged the work was heavy he was nevertheless a fit man, and made conscious effort to maintain his fitness and look after his health, as he does now.  Apart from the obvious financial benefit of employment he enjoyed the camaraderie and variety of work in the construction and civil engineering sector.  Accordingly he saw working to 65 as much more likely than not.  He says now he will work at DMM to 65.  I clarified at interview with Mr Torr if Dr Herbert or any other person interviewing him for the purpose of this case had enquired into his intentions in relation to his retirement date.  He said not.

11.      Unfortunately not having interviewed Mr Torr or enquired into the matter I see that Mr Elsegood has repeated the content of Dr Herbert's report at 4.10.6 to the effect 'the Claimant would relinquish by age 60 [March 2006] in favour of "light domestic joinery"'.  I am afraid that is not the position of the Claimant, nor ever was, as he explained his intentions to me.  At the top of page 9 of his report Dr Herbert refers to Mr Torr working 'until the normal retirement age of 60 years'.  Placing those two contradictory statements from Dr Herbert together it is I accept difficult to follow his reasoning.  However I do not think that either Mr Elsegood or myself view 60 as the 'normal retirement age'.

12.      For reasons discussed in my report I acknowledge that individuals do decide to quit occupations prior to 65, just the same as in other jobs a person will choose to work on past 65.  I am sure Mr Elsegood and I would agree that in the construction trades there is no formal retirement age.  Contractors will continue to engage tradesmen as long as they can do the job, without interest in age.  The decision to stay or quit if a person is in a trade where there is abundant opportunity, as in the construction trades, depends on their choice and their determination to continue.  As recorded in my report it may be that as he got older Mr Torr would have looked for work closer to home, or less physically demanding activity than his shuttering trade.  I think however while we might raise these issues Mr Torr was able to clearly indicate his choice to me on what is, in terms of quantum, a relevant issue".

42.      Advocate Livingstone underlined that on the 29^th June, 1999 a Functional Capacity Evaluator and a highly experienced osteopath saw Mr Torr for two and half hours.  This was Mr Newman.

43.      Mr Newman expressed what he described as "an area of concern".  He recorded it as follows:

"Areas of Concern

10.5    A review of Mr Torr's GP and hospital records revealed the following:

(a)        Of particular concern is a consultation with a temporary doctor in September 1992 where a diagnosis of a torn left pectoralis major muscle was made.

(b)        Mr Torr has a history of right shoulder symptoms starting in September 1991 where he was off work.  He consulted his GP and the records state that he was to return to work in January 1992.  It is unclear whether or not he did so.  However, in January 1993 it states that "he is starting work, however he is complaining of back and shoulder pain".  Furthermore, it appears that Mr Torr has a history of back symptoms.

10.6      I am not in receipt of Mr Torr's physiotherapy records and therefore I am unable to comment on the nature and success of this treatment.

44.      Mr Torr was examined on this point and gave his answers fairly and, we think, truthfully.  Mr Elsegood was asked to comment on Mr Torr's assertion that he would have worked until the age of 65.

45.      The exchange, as recorded in the transcript, is as follows:

"ADVOCATE LIVINGSTONE:    Mr Elsegood, we were given some evidence this morning by Mr Torr about the practice of people in the shuttering joinery industry, as they got older, of finding assistance from younger people within the gang, so that the older person might do the groundwork, which would nonetheless be pretty physically demanding, but they wouldn't do the work up top.  In your experience, is that a realistic assessment of the position?

WITNESS:    Not on a long-term basis.  These people are strongly financially motivated.  They move around from contract to contract chasing the money.  That was what Mr Torr used to do.  They take no prisoners, they carry no passengers.  I agree with Andrew Nicoll's statement, that an older man, based on his experience, might well be able to find a more supervisory position.  Mr Torr says he has worked as a charge-hand and he's worked as a foreman.  Now, that's quite conceivable.  You move away in the terms which we do use, that is 'off the tools', and you give up the physical work if you have the opportunity and you have the skills and you take on something which is lighter ways (sic).  It would be remarkable and surprising and quite contrary to my experience of this industry to find that younger men were prepared to carry an older man as a passenger and to receive no extra payment for so doing.  You have to remember, and Mr Torr's wage slips make it clear, that most of these civil engineering contracts are done against deadlines and there is usually a completion bonus.  You can't carry somebody in that sort of job and I'm surprised at Mr Torr's assertion that one can."

46.      We examined, as the Master did, the statistics supplied which showed that there were men - not many - who worked as shuttering joiners until 65.

47.      The Master had all the information that was before us.  He studied the statistics.  He heard the witnesses.

48.      We have considered the matter very closely.  Both experts indicated that the question was ultimately one for the Court.  Despite the forceful arguments of Advocate Livingstone we cannot find that the Master's decision was either perverse or unreasonable.  The balance was clearly a fine one but we will not interfere and we order accordingly.

Authorities

Barker -v- Barclays Bank (5^th April, 1989) Jersey Unreported; [1989/57]; [1989 JLR N.2].

Snell -v- Beadle (22^nd April, 1999) Jersey Unreported; [1999/68]; [1999JLR N.1].

Murphy -v- Collins [2000 JLR 276].

South Shropshire District Council - v - Amos [1987] 1 All ER 340.

Forster - v - Friedland (1992) Unreported Judgment of the Court of Appeal of England: Transcript 1052.

Geest -v- Lansiquot [2003] 1 All ER 383; [2002] UKPC 48.

Pickersgill & Le Cornu -v- Riley [2002 JLR 459].

Butterworths Personal Injury Litigations Service (Goldrein and De Haas): paras 81-5.

McGregor on Damages (17^th Ed'n):pp. 223-4.

Phipson on Evidence (15^th Ed'n): pp 56 - 8.

Gallaher -v- Dauny (24^th May, 2001) Jersey Unreported; [2001/121].

Haas -v- Duquemin (27^th June, 2002) Jersey Unreported; [2002/122].

R.S.C. (1999): 03; r 5: 3 - 12.

Scott-Warren -v- Gray (22^nd March, 2000) Jersey Unreported; [2000/51].

Ratnam - Cumarasamy [1964] 3 All ER 933.

Hickman (née Norton) - v - Hickman [1987-88 JLR 602].

Taunton -v- Planning and Environment Committee, Jersey Unreported (18^th April, 2000) Jersey Unreported; [2000/72].

Broadland Estates Limited -v- Lapidus and Another (17^th November, 1989) Jersey Unreported; [1989/192A].

Buckinghamshire County Council -v- Moran [1989] 2 All ER 225.

Unilever plc -v- Procter & Gamble Co. [2001] 1 All ER 783.

Savings and Investment Bank Ltd -v- Fincken [2003] 3 All ER 1091.

Savings and Investment Bank Ltd -v- Fincken [2004] 1 All ER 1125.

Court of Appeal (Civil) Jersey Rules 1964