B3/2001/2270 and B3/2001/2454 
Neutral Citation Number: [2002] EWCA Civ 37
IN THE SUPREME COURT OF JUDICATURE 
CIVIL DIVISION 
ON APPEAL FROM THE HIGH COURT 
MANCHESTER COUNTY COURT
(Mr Recorder Pratt)
The Royal Courts of Justice
The Strand
London

Thursday 17 January 2002 
Before:

LORD JUSTICE LATHAM 

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Between:
DOUGLAS HOLT
Claimant/Respondent 
and: 
HOLROYD MEEK LIMITED 
Defendant/Applicant 

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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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MISS FOSTER (instructed by Berrymans Lace Mawr, Manchester M3 2NU) appeared on behalf of the Applicant

The Respondent did not appear and was not represented 
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JUDGMENT
Thursday 17 January 2002 
1.	LORD JUSTICE LATHAM: This is an application for permission to appeal a decision of Mr Recorder Pratt given on 11 September 2001, in which he gave judgment for the claimant in a personal injury claim against his employers through an employment agency. The decision on that date was simply as to liability. The judge considered quantum a short time later and gave judgment on it on 18 September 2001. Miss Foster applies today on behalf of the defendants for permission to appeal both of those decisions.
2.	The claim had been brought in respect of an incident on 30 March 1996 when, the claimant said, he slipped on fuel pumps at the premises of the defendants. The cause of the slip was said in the re-amended particulars of claim to have been diesel oil on the pump island, which was “awash with diesel fuel”. That was the basis upon which the claim was pleaded, the basis upon which the evidence was given by the claimant and those on his behalf, and the basis upon which the defendants sought to answer that claim.
3.	The recorder in his judgment indicated that he considered the account that the area was “awash” with fuel to be extravagant. However, he concluded that there may well have been water on the area in question as a result of rain and that that, combined with an amount, which he did not identify, of diesel on the surface was the cause of the claimant's slip, and that the defendants had failed to prevent such an accumulation of water and diesel.
4.	It is submitted by Miss Foster that in so concluding he was essentially finding fault on the part of the defendants on a basis significantly different from that which formed the claimant's case, to an extent which caused prejudice to the defendants who had been unable to centre their evidence on that issue. It seems to me that there is sufficient force in that argument to justify my granting permission to appeal. The recorder also concluded that there was no contributory negligence on the part of the claimant. It seems to me that the defendant should be permitted to challenge that conclusion also.
5.	So far as quantum is concerned, the complaint is that the claimant suffered from a pre-existing back condition which had had an effect on his ability to work consistently, and that was acknowledged by the judge. When it came to concluding for how long the claimant would be likely to have continued to work, he dealt with the matter by indicating that he would not have continued to work up to the normal retirement age, and that was an acknowledgment of the fact that there was this pre-existing disability. He then went on to say that for most people the cut-off period from work was either 65 or 60 and that the claimant would have tried to carry on working at least up to one of those retirement ages. He concluded ultimately that the right age for him to take as the age at which the claimant would have stopped working was 60. It is said that that is illogical and he should have deducted some years from the age of 60, which was one of the two alternative retirement ages suggested.
6.	It seems to me, however, that the judge was simply dealing as best he could with an obvious uncertainty by taking 60 as being a fair middle age between the age that he might have been able to work to if his retirement age had been 60, and that if it was 65. There is an element of illogicality in that because the fact is that he was likely to go on working until he could no longer work, and that was unlikely to be affected by the retirement age. But ultimately the judge was concluding that this claimant was likely to have been able to continue to work until he was 60 years of age and it does not seem to me that that conclusion was one which was not open to him on the evidence. As I have indicated, the real problem was how long the claimant would have been able to work, not how long he would have wished to work.
7.	In those circumstances, I refuse permission to appeal in relation to quantum.
ORDER: Application for permission to appeal allowed on the issues of liability and contributory negligence but refused on quantum.
(Order not part of approved judgment)