Smith v Tesco Plc & Ors, Court of Appeal - Queen's Bench Division, December 16, 2016, [2016] EWHC 3252 (QB)

Resolution Date:December 16, 2016
Issuing Organization:Queen's Bench Division
Actores:Smith v Tesco Plc & Ors

Case No: HQ14X00802

Neutral Citation Number: [2016] EWHC 3252 (QB)



Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 16 December 2016

Before :


(Sitting as a Deputy High Court Judge)

- - - - - - - - - - - - - - - - - - - - -

Between :

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

Giles Mooney (instructed by Slater & Gordon) for the Claimant

Adam Clemens (instructed by Hill Dikinson) for the Defendant

Hearing date: 9 November 2016

- - - - - - - - - - - - - - - - - - - - -

JudgmentDavid Pittaway QC :


  1. The action arises out of an accident which Mr Smith is alleged to have sustained on 22nd March 2011 whilst working at Tesco plc's Welham Green Distribution Centre, Hatfield, where he was employed as a shunter, moving trailers around the yard. Mr Smith maintains that during the course of a nightshift he collected a trailer from a bay and drove over a sunken fire hydrant situated on the concourse, causing a severe jolt to his back, rupturing a disc. He states that he developed a searing pain in his back when the spring loaded seat on which he was sitting bottomed out on the chassis of the vehicle. Subsequently Mr Smith was taken to hospital, initially to the Luton and Dunstable Hospital, and then the Royal Free Hospital, London, where he was diagnosed with cauda equine syndrome and underwent surgery. He now suffers from double incontinence, persisting numbness and weakness and residual neurological symptoms affecting his left leg.

  2. The claim has been brought against the Mr Smith's employers, Tesco plc, and also the Royal Free Hospital. I am asked to try two preliminary issues in the claim against his employers, Tesco plc. First, whether the Mr Smith sustained the accident in the circumstances alleged, and if I find he did, breach of duty is admitted. Tesco plc initially accepted that the Mr Smith had sustained an accident at work on 22nd March 2011 but now put the Mr Smith to proof as to whether the accident occurred as alleged. Second, whether the alleged accident caused or materially contributed to the development of his cauda equine syndrome. I am not concerned with the claim against the Royal Free Hospital.

  3. There are some unusual features of the factual evidence, namely the absence of a contemporaneous accident report form and references to the circumstances of the accident in the medical records. The expert evidence is also in a less than satisfactory state as it appears that the issue on causation did not arise immediately and, therefore, the first two expert reports prepared by Mr Sakka, consultant orthopaedic and spinal surgeon, on behalf of Mr Smith, do not address causation at all. The matter was only considered by Mr Sakka in subsequent correspondence and, after the joint discussion, in a helpful third report, which set out an explanation as to the circumstances in which the cauda equine syndrome arises. Mr Porter, consultant neurosurgeon, on behalf of Tesco plc, then prepared a further report, served shortly before trial, raising a new argument on causation, which arguably is the province of urological not neurosurgical evidence. No urology evidence has been obtained on this issue.

    Factual evidence

  4. The background to this claim is that Mr Smith had worked for Tesco plc as a driver or shunter for 17 years. A shunter is a driver who drives a tug, which is a specialised vehicle used to move trailers around the yard. Mr Smith had been suffering from back pain for several days before the alleged accident at the yard on 22nd March 2011. He did not see the need to attend his General Practitioner or the local hospital or to mention it to his employer. He began to experience numbness in the front part of his left leg on 17th March 2011. He noticed the sensation in his leg at work on 18th and 19th March 2011, on the latter date one of the canteen staff observed that he was walking funnily. He went to work on 20th March 2011 when he noticed more discomfort which was intermittent but it did not stop him working. He took ibuprofen.

  5. His shift started at 0600 on 21st March 2011 and it was not until about 0330 that he says he experienced a sharp pain in his back after he drove a tug and trailer out of bay 40 or 41, which are shown on the photographs. His recollection is that he drove over a sunken fire hydrant, causing the tug to rise up and down violently. His seat bottomed out on the chassis of the vehicle. Through the assistance of photographs, and videos which I subsequently saw, it was explained that whilst driving the trailer out of the particular bays it was not possible to avoid the fire hydrant which was sunk into the concourse, without...

To continue reading