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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> King v Carron Phoenix Ltd [1999] ScotCS 34 (26 January 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/34.html Cite as: [1999] ScotCS 34

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In this action the pursuer claims damages from the defenders, his employers, in respect of lateral epicondylitis (tennis elbow) said to have been sustained as a result of work with, and caused by the fault of, the defenders. Proof before answer was heard over four days.

It was accepted before me that since late 1994 the pursuer had suffered from right lateral epicondylitis. This condition was described in evidence by the pursuer's general practitioner Dr Gordon Muircroft as inflammation of the epicondyles, being bony prominences at the lower end of the humerus just above the elbow joint at a point where there were attached to the humerus a number of muscles extending into the forearm. Although the pursuer in evidence thought he had first begun to suffer from the problem in early 1995 the medical records suggested that he had first attended his GP in connection with this matter on or about 24 November 1994, and the pursuer's evidence was that shortly before he consulted his general practitioner he

had consulted his work's doctor and that prior thereto he thought he had had trouble for perhaps two months.

Direct evidence of the pursuer's employment history and the work he required to do was given by him and by a supporting witness Mr Cluckie and, in the event, evidence as to the basic underlying factual situation was not, it seemed to me, seriously in dispute. Since 1972 the pursuer had worked as a mechanical maintenance engineer at the defenders' premises in Carron, Falkirk. At these premises sinks and basins are manufactured. Initially the company had been known as Carron Company, but in or about 1982 after financial problems, and a management buy-out, it became known as Carron Stainless Products. In 1989 or 1990, the company changed its name to its present name when it became part of a larger Swiss group.

It was part of the pursuer's job to change tool settings on production machinery. The settings were each fixed to the production machinery by eight bolts. To replace the tool settings involved the removal and replacement of the bolts. This was done by the use of a hand-held spanner of a size appropriate to fit the nuts which required to be removed and replaced. Spanners were about one foot long. Latterly the work was organised into three eight hour shifts. One maintenance engineer was on duty per shift, although the pursuer explained that at times there could be two working together if the company asked another maintenance engineer to work overtime to help another engineer on the next shift on a particular job. There were, and had been since the time when the company became part of the Swiss group, essentially four maintenance engineers employed by the defenders and recently one other person had been taken on as a tool setter being trained. Prior to 1982 there had been twenty five to twenty seven maintenance engineers employed by the current company, and thereafter until 1989 or 1990 there had been a gradual reduction in numbers to the present levels. A substantial proportion of a maintenance engineer's time on shift was spent in changing tool settings. The pursuer conservatively thought it was 75%. Mr Cluckie estimated it at 70-80%, and on the odd occasions it could 100%. There were some smaller machines and tools (the pursuer thought about a dozen) and some larger ones (again the pursuer thought about a dozen). The overall time taken to change any one tool setting (including removal of the tool and the bringing of the new tool - apparently by means of forklift truck) varied from between 30 minutes to 21/2 hours. The work involved sometimes pulling the spanner towards the engineer, at other times pushing it away. Although the pursuer gave evidence that he required to use as much force as he physically could using both arms (evidence essentially repeated by Mr Cluckie), both in the event appeared to accept that a lesser degree of force was required for the smaller tools and machines. It was also apparently accepted that in so far as force required to be applied it was essentially at the beginning of the unscrewing of any nut and at the end of the tightening of a nut. It was the evidence of both the pursuer and Mr Cluckie that from the time the company became part of the Swiss group, the amount of work had increased, production runs had become shorter and there was then a substantial increase in the amount of time that maintenance engineers spent in changing tool settings during any shift (compared with what had been the case before).

The pursuer claims that his condition was caused by the defenders both by their negligence at common law and in respect of their failure, after 1 January 1993, to comply with Regulation 4 of the Manual Handling Operations Regulations 1992. At common law the pursuer claims on record that

and that the defenders failed in these duties. At the end of the proof counsel for the pursuer submitted that it had been established that the defenders had failed in their duty to assess the nature of the work carried out by the pursuer; that they had failed in their duty to give appropriate advice to the pursuer and in particular advice both that his job involved a risk of injury and that he should inform the defenders when any problems appeared; that they had negligently failed to provide suitable power tools and further that they had negligently failed to reduce the amount of time that the pursuer was required to spend removing and replacing bolts either by rotating the duties that the pursuer was required to perform or by employing at least two maintenance engineers on each shift from 1989 or 1990 onwards. The case made by the pursuer under the Regulations was that the use of the spanner to loosen and tighten the bolts was a manual handling operation within the meaning of the Regulations which involved a risk of the defenders' employees being injured and which the defenders had not avoided the need for the pursuer to undertake (Regulation 4(1)(a)). The defenders had not pled any case that it was not reasonably practicable to have avoided that need.

It is plainly an essential part of the pursuer's case against the defenders to establish that his condition was indeed caused by the work which he undertook and, in particular, by the removing and replacing of the bolts. I have come to the view on the basis of the evidence which was led that this has not been established. The main detailed evidence given on this matter came from Dr Richard Graveling, since 1988 Head of Human Sciences (formerly called head of Ergonomics) at the Institute of Occupational Medicine. Prior to the proof, and following the provision of information essentially from the pursuer and certain other sources, he conducted a detailed assessment for the pursuer considering the likelihood of the pursuer's work having caused the disorder or injury in question. He reported his findings in a report which formed No.6/2 of process, to which report he essentially spoke in evidence. He described in detail how in 1992 the Industrial Injuries Advisory Council had concluded, as they had in 1983, that there was insufficient evidence for lateral epicondylitis to become a prescribed disease, that is that it could not be said it was a condition which was usually caused by occupational factors. He accepted in his evidence that the evidence was that in a great many cases it was a condition which was idiopathic. In certain cases, however, depending on a detailed assessment of the nature of the work involved, it was accepted, and it was his evidence, that lateral epicondylitis could be caused by work. A number of papers were referred to which tended to emphasise a link where there were forceful and highly repetitive tasks. For the pursuer's work there were certain factors which at least suggested to him that the pursuer's condition could be caused by his occupation. Firstly on the basis that maximum levels of force were routinely applied, he referred to the substantial levels of force were applied. Although he described this as "an excessive level of force", he was careful to indicate that this meant a level above that for which it would be prudent to design and not that it was necessarily on its own unsafe. Secondly he referred to the fact that when the spanner was being pulled that action implicated the lateral epicondyle. He accepted however that pushing the spanner would not implicate the lateral epicondyle and that so far as the third relevant element was concerned, namely the frequency with which the force had to be applied, "even with a cycle time of 30 minutes eight force applications in a presumably fairly short time of the onset and end of the cycle would not normally be regarded as repetitive". The job was one which was repeated but not necessarily repetitive. It was therefore in his view necessary to look further than the mere description of what the pursuer did to attempt to establish any probable link.

It is worth quoting in detail the specific matters he then examined and the specific nature of his conclusion as these were expressed in the report and confirmed in evidence:

He therefore concluded, having considered the work performed by Mr King as a maintenance engineer, together with the changes in production and manning levels prior to the development of his symptoms, that it was more likely than not that his injury was caused by his work.

It will be seen from the above that the essential basis of his opinion was that although the pursuer had managed for many years without problems, production and manning changes within a year (or so) of the onset of Mr King's problems, in which machine tools were replaced more frequently by fewer engineers, provided a reasonable association. This assumption was, as indicated above, simply not made out on the evidence. I cannot speculate as to what Dr Graveling's evidence would have been on the basis of the history as described by the pursuer and Mr Cluckie in evidence, although in circumstances where it would seem that the pursuer had worked on following production changes and reduction in manpower for a period of about five years without problem, he plainly would have had substantial difficulty, having regard to the whole of his evidence, in ascribing the onset of symptoms to the pursuer's occupation.

Mr Ritchie, consultant orthopaedic surgeon, also gave evidence on commission. He was the surgeon who had been the pursuer's treating surgeon and who had made two reports for the purposes of the litigation. Although his conclusion was that the pursuer's condition was caused by his work, his evidence did not, it seemed to me, add anything to that of Dr Graveling whose report he had seen prior to his own final assessment. The opinion he expressed in his final report of December 1998 was expressed thus:

Asked at one point in the course of his evidence whether he agreed with an apparent conclusion drawn by Dr Graveling, Mr Ritchie said: "Without knowing much more about Mr King's occupation, I would have to agree with that", clearly indicating that he recognised that Dr Graveling had apparently made a much more detailed assessment of the pursuer's work than he had been able to and that in essence his views were simply supportive of Dr Graveling's conclusions. Later in his evidence he appeared to indicate that the pursuer had told him of the same change in working pattern and reduction in staffing as had been described to Dr Graveling, which he agreed had coincided with the onset of his symptoms (p.54 of the transcript). There was no obvious reasons therefore, it seems to me, to suppose that the earlier opinion which he expressed in his report of December 1996 (to the effect that from Mr King's description of his work he had little doubt that his work had been a contributory factor in the development and persistence of his symptoms) was based on any other different information. In the body of that report he describes very shortly that most of the pursuer's work seemed to involve changing tools on the steel presses; that in the process of this activity he had to undo a lot of heavy bolts which required some force to tighten and loosen. If the conclusions he then reached as to causation were, contrary to the indications above, based on that limited information, then it is not a conclusion which I could find persuasive in the light of Dr Graveling's impressive evidence that it was a matter of assessing in some detail the nature, type and frequency of operations and the date of onset of problems. I should add that although the pursuer's GP gave evidence that he had at least made a note in February 1995 to the effect that the pursuer's job was probably responsible, he accepted that he had not heard any detail and that he would defer to others as to any expression of opinion on this a matter on which he was not expert. Counsel for the pursuer did not to any extent found upon his evidence in this connection. Nor, rightly in my view was it suggested that this was a matter on which I could, unguided by expert testimony, properly reach a view. In all these circumstances, although I do not conclude that the pursuer's condition was not caused by his work, I cannot on the evidence be satisfied that it has been proved that it was.

Although that is enough for determination of the case, I would not on the evidence have found it proved that the pursuer's condition was caused by the defenders' negligence or fault. I would have been prepared to accept (albeit not without some hesitation), on the basis of Dr Graveling's evidence, that a reasonable employer would have been alerted from 1990 by the document published by the Health & Safety Executive called "Work Related Upper Limb Disorders" (No.6.6 of process) at least to the need to assess the tasks carried out by the pursuer for any potential risk of upper limb disorders. (My hesitation stemming from Dr Graveling's acceptance that the pursuer's tasks did not on the face of it involve prolonged tissue loading or the performance of very frequent exertions described in one part of the report as being harmful). Equally, although again not without hesitation I would have inferred from Dr Graveling's report and evidence that it was his view that such an assessment would have revealed a foreseeable risk of injury of the type the pursuer suffered, albeit one that was apparently small. It seems to me to be a fair inference from Dr Graveling's report that he is describing some risk evident from the fact that the operation involved pulling on a spanner with the use of substantial force on a repeated basis, albeit not a risk as obvious or as high in operations with forceful and highly repetitive tasks. It is true that at one point, as above indicated, he said "If the work itself was inherently harmful, the signs of injury would have been anticipated at an earlier date", but it seems to me that he was there, in the context of causation only, expressing a view that the work itself had not on the face of it for a substantial period actually harmed the pursuer. Counsel for the pursuer, however, rightly accepted that it would not be enough for her to prove that the defenders should have carried out an assessment without also proving what, if anything, they should thereafter have done to prevent the pursuer's injuries. Although there was no evidence as to any training or advice having been given, there was no evidence that any advice to the pursuer that there was a risk would have made any difference to the way he carried out the operation, and it seems that he needed no advice to tell his employers when his condition appeared. The evidence of the pursuer and Mr Cluckie was not in favour of the suggestion that suitable power tools should have been provided. The pursuer instead gave evidence that it had been found after tests that their use was impracticable, evidence confirmed by Mr Cluckie who said that they would not have made the job easier. Dr Graveling, when asked about this, expressed the view that it was entirely believable that such tools were not suited. He had not made any specific assessment, and although he thought that suitable power tools could possibly be effective for some tools and machines, but not others, this matter was not explored and was indeed only a view tentatively given. As to possible rotation the pursuer's evidence was that there was no one else qualified on any shift who could do the work he and other maintenance engineers did, so that rotation was "not feasible". Dr Graveling, when asked about this, said that he did not know whether this could be done. Although it was suggested in submission that the defenders could and should have employed at least two maintenance engineers per shift from 1990, this was not a suggestion which was explored in any detail in the evidence and was not expressly mentioned on record. Rather, it seemed to me to be a suggestion borne of the apparent difficulties facing the pursuer so far as his other cases were concerned. I was invited by the defenders to find that the pursuer could not succeed on this basis given that he had no record (in particular it was argued on the basis of the observations of Lord Pres

The Manual Handling Operations Regulations 1992, Regulation 4(1)(a) require that each employer shall "so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured". In Regulation 2 "manual handling operations" is said to mean "any transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof (by hand or by bodily force)". "Load" is said to "include any person and any animal". It was the pursuer's contention, although not in the event strongly pressed, that the operation which the pursuer undertook with a spanner involved the supporting of a load in so far as it involved pulling on the nuts. Counsel for the defenders invited me to reject that submission. Even although some pushing and pulling was involved, it could not as a matter of language be said that the operation in question involved either transporting or supporting a load. I was referred to an unreported decision of Lord Cameron of Lochbroom dated 31 July 1997, in which it was held that when regard was had to the scope of the regulations, including the factors set out in Schedule 1 to the Regulations, a rotary mower which was being pushed was not to be regarded as a load which was being transported or supported. Schedule 1 to the Regulations provides inter alia that having regard to loads, the questions an employer must consider are "are they heavy? bulky or unwieldy? difficult to grasp? unstable or with contents likely to shift? sharp, hot or otherwise potentially damaging?" I was also referred to the Health & Safety Executive Guidance on the Regulations which indicates inter alia

It was accepted, however, that notwithstanding the terms of this document Lord Cameron of Lochbroom in Divit v British Telecommunications plc 20 February 1997, in a case where a man was injured when pushing a spring-loaded maintenance flap, rejected a contention that for the purposes of the regulations a load was only something which was free to move without any attachment and could not comprehend something which was secured by a hinge to another thing. Reference was also made to the case of Cullen v North Lanarkshire Council 1998 S.C. 451 in which the Regulations and the underlying directive 90/269/EEC had been discussed in the Second Division, although it was accepted that the question for that court was not one directly relevant to the present case. In my view, as a matter of ordinary language and in the context of the Regulations, although the pursuer was no doubt involved in pushing and pulling when working with the spanner, it could not be said that he was involved in the transporting or supporting of a load.

Turning to damages, on the basis of the evidence of the pursuer, Dr Muircroft and Mr Ritchie, I find that about two months prior to 24 November 1994 the pursuer had been troubled by a degree of pain in his right elbow. He consulted the work's doctor and thereafter his general practitioner. Tennis elbow was diagnosed. A course of steroids and local anaesthetic injections had little effect. He was referred to the orthopaedic clinic at Falkirk & District Royal Infirmary. A further course of steroid and local anaesthetic injection produced some temporary benefit, but in time his symptoms returned. On 23 October 1995 a decision was made to proceed to surgery. He had a right extensor origin release carried out as a day-case on 18 April 1996. Unfortunately the operation did not provide the hoped for benefit to the pursuer. Instead of a sharp pain localised at the elbow, the pursuer's pain became and remains more diffuse in the forearm and wrist. He is now 42. He also developed at some stage prior to the end of 1996 - although the date of onset was left uncertain - a similar condition in his left elbow, although the pain and difficulty that that has given him has never been as much as from the right side. The pain is present all the time, although the pursuer is able to obtain relief by use of pain killers. Apart from a short period off work after the operation the pursuer has not lost any work and has impressed his GP, Mr Ritchie, and indeed impressed me with his determination to carry on. Depending on the job he is doing the pain can increase while he is at work. He does not take strong pain killers until after he is finished work with machinery. Prior to developing this condition the pursuer used to service his car himself and, when necessary, to do a substantial amount of do-it-yourself work about the house. His ability to do these things has been interfered with.

At the end of the proof the real issue was the prognosis both for the development of the condition and for the pursuer's employment. On the basis of the evidence of the pursuer, his wife and Mr Ritchie, I find that the likelihood is that the pursuer will continue so long as he possibly can to work in order to provide for his family; that in these circumstances his tennis elbow is not likely to improve, although the possibility remains that it will; that at some stage, although not in the immediate future, there exists a real prospect that as the pursuer gets older he will not be able to continue to manage his job and that he would then be fit only for physical work involving use of his arms if it was extremely light. Although it was suggested that the pursuer had perhaps to a degree exaggerated the extent of his pain when he gave evidence, particularly having regard to the fact that he has continued to do a substantial amount of overtime, I did not get the impression that the pursuer was exaggerating and I accepted his evidence that he felt under a degree of pressure, as part of keeping his job, to do the overtime that he did.

Counsel for the pursuer submitted that solatium should be £10,000. I was referred to the Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injury cases, where the range for epicondylitis with "continuing bilateral disability with surgery and loss and employment" was £9,750 to £10,250. Reference was also made to the decision of Temporary Judge T.G. Coutts, Q.C., in Hunter v Clyde Shore plc 1995 S.L.T. 474 in which a 44 year old man who had suffered from tennis elbow in both arms for three years, but who was likely to achieve full recovery in five years, was awarded £8,000 (which would now be £8,800 or thereby). Counsel for the defenders suggested a figure of £6,500 if I took the view that the pursuer had exaggerated his condition; if not a figure of £8,000. Reference was made to Tennent v John Walker & Sons Limited 1989 S.L.T 143 where solatium of £3,500 (which would now be £5,400) was awarded in respect of an injury to a 30 year old man's elbow which had left him, after an unsuccessful operation, with pain and a limited ability to work, and to the unreported decision of Lord Cameron of Lochbroom in Mitchell v Inverclyde District Council where £8,000 was awarded in respect of shoulder and arm problems which would produce not inconsiderable pain and disability for the rest of a 46 year old pursuer's life, albeit the court found that to a degree the pursuer had exaggerated the effects of his injury and the pain was variable. In all the circumstances, in particular having regard to the likelihood of continuing pain while the pursuer is, commendably, continuing to work, I consider that the figure of £10,000 suggested by the pursuer would have been a reasonable figure for solatium, of which half would have been attributable to the past with interest thereon at 4% from 24 November 1994 (as agreed).

No claim for loss of earnings is made. As regards loss of employability or disadvantage on the labour market, it is plain that there is substantial uncertainty as to what will happen. There would require to be a substantial discount from any award to reflect its immediate payment, and it seemed to me that counsel for the defender was probably right to judge the pursuer as somebody who would not be likely to give up work unless he had taken steps, if he could, to try to arrange some kind of alternative. On the other hand there is, as I have found, a real prospect that he will require to give up work at some stage and that he will be faced with substantial difficulty in obtaining alternative employment. In all the circumstances I think reasonable compensation for that risk would have been an award representing one year's net loss of income, being on the evidence £19,000 or thereby. It seemed to me that the pursuer's contention for four times that figure was plainly too high and the defenders' submission for a figure of £4,000 or £5,000 was plainly too low. The defenders' submission was based on the cases of Kenny v Lightways (Contractors) Limited 1994 S.L.T. 306 and Walledge v Brown 1996 S.L.T. 95, cases in which awards of £7,500 and £4,000 were made to reflect what appeared to me to have been lesser risks and in circumstances where the pursuers' earnings were different.

In the event the claim for past costs associated with the pursuer's disability was restricted to a sum of £250 which the pursuer had recently paid for the servicing of his car, which car was relatively new, being only four years old and having been purchased in June 1997. The pursuer and his wife had also four years ago purchased a new house which had required hitherto little or no maintenance. The evidence suggested that if internal work, such as wallpapering, was required, the pursuer's wife would do that, but if any more major work was required internally and externally (such as painting) this would require to be paid for. It seemed from the pursuer's evidence that one of the reasons for purchasing the new house was a wish not to continue at least as much the do-it-yourself works which he had previously done. As to the future, counsel for the pursuer suggested that a figure in respect of costs which would be likely to be needed in respect of car maintenance and DIY would be a sum of £9,600 (being £600 annually multiplied by a multiplier of 16). Although I did not agree with counsel for the defenders' submission that any award should simply be a nominal one of around £500, I think, taking a broad view of matters, that an award of £5,000 would have been a reasonable one to reflect the sort of future costs which the pursuer is likely to have to incur over a substantial period and which otherwise he would not have incurred.

In these circumstances, had I been making an award of damages, it would have been in the sum of £34,000, with interest on £5,000 at 4% from 24 November 1994 onwards.

In the event, however, I shall sustain the defenders' second and third pleas-in-law, repel the pursuer's first plea-in-law and pronounce decree of absolvitor.