B3/2002/0658 
Neutral Citation Number: [2002] EWCA Civ 1067
IN THE SUPREME COURT OF JUDICATURE 
CIVIL DIVISION 
ON APPEAL FROM THE HIGH COURT 
BIRKENHEAD COUNTY COURT
(Mr Recorder Michael Black QC)
The Royal Courts of Justice
The Strand
London

Monday 15 July 2002 
Before:

LORD JUSTICE SIMON BROWN
Vice President of the Court of Appeal, Civil Division 

LORD JUSTICE LATHAM 

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Between: 
ANTHONY CHARLES FORBES
Claimant/Respondent 
and: 
MERSEYSIDE FIRE AND CIVIL DEFENCE AUTHORITY 
1st Defendant
DONNA MARIE CAMPBELL 
2nd Defendant/Applicant
FAIRFIELD HOSPITAL 
3rd Defendant

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Transcript prepared from the Steno Notes
of Smith Bernal Reporting Limited
190 Fleet Street  London EC4A 2HD
Tel:  0207 404 1400
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MR P GREGORY (instructed by Hill Dickinson, Pearl Assurance House, 2 Derby Square, Liverpool) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
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JUDGMENT
Monday 15 July 2002 
1.	LORD JUSTICE LATHAM: The claimant in these proceedings was a divisional commander of the Merseyside Fire and Civil Defence Authority, who decided that all their serving firemen should take regular tests in order to ensure that they were fit to carry out the strenuous duties of a fireman. They accordingly arranged for such tests to take place with the second and third defendants, the second defendant being the person who ultimately in fact carried out the tests.
2.	One of the tests involved the claimant being required to exert force on a machine which would test his lifting strength. Whilst he was carrying out that test under the supervision of the second defendant, the machine tipped and he strained, as it transpired, his groin and suffered from a hernia. The consequence was that he was ultimately retired by the fire authority and he accordingly claimed damages both for the injury itself and for the consequential financial loss as a result of his retirement. After a five-day hearing before Mr Recording Michael Black QC, his claim for damages succeeded and those damages were divided as between the second and third defendants as to 50 per cent. The second defendant applies for permission to appeal against the conclusions and judgment of the recorder.
3.	The first ground upon which it is submitted that the recorder went wrong is that it is said that his conclusion as to the negligence of the second defendant was not supported by the evidence, in particular the evidence of the claimant. The claimant had alleged that the second defendant had failed to instruct him properly as to where to put his feet, and that was the main factual complaint made by him in his evidence. The judge came to the conclusion that that complaint by the claimant was not made out on the evidence before him. He concluded that the accident had not occurred because of the placement of the claimant's feet.
4.	The problem, as he saw it, was that the second and third defendants had failed to make a proper risk assessment of the exercise which, if carried out properly, would have identified the fact that somebody could lose their balance while pulling upwards because they might also pull backwards, thereby destabilising the machine and the platform on which the person using the machine was standing. He concluded that this was a risk which was foreseeable and it was precisely that which had in fact caused the accident on the day in question. That was pleaded in the particulars of claim at paragraph 5(xiv) as:
“failed to undertake any or any adequate risk assessment and/or to take necessary and appropriate steps consequent thereupon negligently”.
5.	Mr Gregory, who has assiduously put all the arguments which could be put in this respect on behalf of the second defendant, submits that that was not a finding that was open to the judge, because the only complaint made by the claimant was in relation to the placing of the feet. But it will have been seen from what I have already said that there was evidence before the judge, which he accepted, in relation to the lack of a risk assessment, which was part of the pleadings; and accordingly the judge was entitled to come to the conclusions that he did. There was no dispute but that the claimant had not been warned that he should not pull backwards as well as upwards, which was the relevant instruction which the judge concluded should have been given as a result of a proper risk assessment. It seems to me that there is no substance in the argument put forward by Mr Gregory that the judge was not entitled to come to the conclusion that he did as to negligence.
6.	The second argument which Mr Gregory pursues before us today is that the judge failed to conclude that the only damages for which the second defendant should be liable were such damages as were the result of the injury itself, as far as personal injury was concerned, and that the financial claim based upon the early retirement of the claimant was not a matter for which the second defendant should have been held responsible. The reason, it is submitted, is that, on the evidence, the decision by the fire authority to retire the claimant was taken by the fire authority on the advice of its occupational health doctor, Dr Jones, prematurely on 17 October 1996, which was only some four months after the incident, and that by that stage it was not possible to come to any appropriate conclusion about the likelihood of his being able to continue to work. It is said that subsequently the experts, whose reports were agreed, concluded that there was no sufficient disability ultimately to have justified the conclusion to retire him.
7.	The judge, dealing with that issue, said that he thought that Dr Jones was an impressive and thoughtful member of the medical profession. He recorded that Dr Jones had accepted without reservation that the decision to retire the claimant was taken prematurely, but he said:
“There is no credible suggestion in this case that his opinion was unreasonable, let alone negligent.”
8.	At a later stage in his judgment, he said as follows:
“The first defendant and Dr Jones, on behalf of Fairfield, acted together in an entirely foreseeable manner following the accident. Dr Jones may have been wrong, but that is irrelevant given that I find his opinion was bona fide and has not been shown to me, by any cogent evidence, ultimately to have been unreasonable.”
9.	Mr Gregory's argument in relation to this aspect of the case falls into two parts. First, he submits that the opinion given by Dr Jones and its consequences, namely the claimant's retirement, amount to a break in the chain of causation (the principle of novus actus interveniens) in the sense that the second defendant should not be held responsible for the consequences of Dr Jones' premature advice and that, accordingly, the judge was wrong so to conclude.
10.	It seems to me that the findings of the judge made it abundantly clear that in his view the advice given by Dr Jones and the action of the fire authority was an entirely foreseeable consequence of the negligence he had found against the second defendant; that the advice given by Dr Jones was given in good faith and not unreasonable; and implicit in his conclusions was that the fire authority were entitled to accept Dr Jones’ advice. 
11.	It seems to me that nothing in the facts as I have related them, and as the judge found them, could sensibly support an argument that it would be unjust to fix the second defendant with the consequences of the advice given by Dr Jones. It seems to me that what eventuated was exactly the type of event which fell within the risk area which the second defendant was under a duty to obviate. I therefore do not consider that this is a case in which the principle of novus actus interveniens can come to the aid of the second defendant. 
12.	The second way it is put by Mr Gregory is that the fire authority were themselves at fault in accepting the advice of Dr Jones and that accordingly any apportionment of the damages, as between the the fire authority and the second defendant, should have taken account of that so as to fix the fire authority with the greater share of responsibility to reflect the fact that the financial consequences of retirement were essentially their responsibility.
13.	That was not an issue which was pleaded before trial or explored at trial. Whatever might have been the conclusions of the judge had the issue been before him and the subject of proper evidence and argument, we will never know. It certainly cannot be raised at this stage in support of an application for permission to appeal.
14.	The final matter is that it is submitted that the claimant has failed to mitigate his loss. The point made on behalf of the second defendant is that the claimant was claiming substantial damages on the basis that he had not been able to make any significant financial success of his property business, which is the business that he went into after he was retired, and failed to give any credit to the defendants for the fact that he undoubtedly retained an earning capacity. The judge on the facts concluded that there was nothing unreasonable about the claimant having decided that he would seek to earn his living in the property business and, if it had been successful, that would have redounded to the defendant's benefit. In the circumstances he was not, therefore, prepared to conclude that the claimant had failed to mitigate his loss. He accepted Mr Forbes' evidence as to the appropriateness of his having at least attempted to run his own property business in the way that I have described. In my judgment, the judge was perfectly entitled to take that view, dependent upon his assessment of the claimant and the evidence the claimant put forward in support of that claim. It does not seem to me that there is anything to suggest that the judge was wrong in the conclusions he reached. 
15.	I accordingly would therefore refuse permission to appeal.
16.	LORD JUSTICE SIMON BROWN: I agree. 
ORDER: Application refused