Burke v. McCafferty & Ors [2005] ScotCS CSOH_155 (18 November 2005)

Burke v. McCafferty & Ors [2005] ScotCS CSOH_155 (18 November 2005)

The defenders were liable at common law and under statute for failing to take reasonable steps to minimise the risk of HAVS to the pursuers, who were exposed to excessive vibration from hand-held tools over many years. The defenders knew or ought to have known of the risks and failed to implement recognised precautions. The pursuers contracted HAVS as a result. Damages were awarded for solatium, services, and wage loss, but wage loss was limited to the difference between the pursuers' former earnings and what they could have earned in redeployment, as the pursuers acted unreasonably in failing to pursue redeployment options.

Citation
[2005] ScotCS CSOH_155
Parties
Pursuer: John Burke; Pursuer: William McCafferty; Pursuer: Bernard Gough; Defender: Glasgow City Council
Jurisdiction
Scotland
Judgment Date
18 November 2005
Procedural Posture
Personal Injury/negligence / Judgment After Proof (trial)
Outcome
Judgment for the pursuers with damages awarded
Legal Topics
Employer's Liability, Negligence, Statutory Duty, Hand Arm Vibration Syndrome (havs), Personal Injury, Workplace Safety, Damages Assessment
Tort Employment Law Occupational Health and Safety Employer's Liability Negligence Statutory Duty Hand Arm Vibration Syndrome (havs) Personal Injury +2 more

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Parties

John Burke

Pursuer

William McCafferty

Pursuer

Bernard Gough

Pursuer

Glasgow City Council

Defender

Procedural Posture

Personal Injury/negligence / Judgment After Proof (trial)

Legal Issues

  1. 1 Whether the defenders were liable at common law and under statute for the pursuers' development of HAVS due to exposure to vibrating tools at work
  2. 2 Whether the defenders failed to take reasonable steps to minimise risk of HAVS
  3. 3 Whether the pursuers' exposure exceeded recognised safe daily dose

Ratio Decidendi

The defenders were liable at common law and under statute for failing to take reasonable steps to minimise the risk of HAVS to the pursuers, who were exposed to excessive vibration from hand-held tools over many years. The defenders knew or ought to have known of the risks and failed to implement recognised precautions. The pursuers contracted HAVS as a result. Damages were awarded for solatium, services, and wage loss, but wage loss was limited to the difference between the pursuers' former earnings and what they could have earned in redeployment, as the pursuers acted unreasonably in failing to pursue redeployment options.

Court Disposition

Judgment for the pursuers with damages awarded

Orders

  • Award of £25,357.24 to John Burke for solatium, services, past and future wage loss
  • Award of £14,356.02 to William McCafferty for solatium and wage loss