Deans v. George Newberrys Coachbuilders [2005] ScotSC 82 (13 September 2005)

judgment , paragraph 9). Mr Conway also referred me to paragraph 10 of the Smith judgment, again quoting from the judgment:- "Put shortly, the pain and suffering and loss of amenity which this claimant feels is entirely, in my judgment, due to the fault of the defendant and if I am wrong in not deducting something for symptomless damage occurring before the date of knowledge then, in my judgment, the deduction must be minuscule. In other words hardly worth deducting." In applying the ratio of the Smith case to the present case Mr Conway's argument was, as I understood it, that since the defenders' duty of care towards the pursuer (in respect of HAVS) arose as at 01 January 1986 (the date of knowledge) they should have, at that stage, taken precautions to guard against HAVS (ie., by issuing warnings, putting in place medical surveillance and the like). As at 1986 the pursuer was showing no symptoms of HAVS, consequently had the defenders performed their duty, the symptoms might never have appeared or if they had, they could have been effectively and quickly dealt with to prevent progression. Accordingly, any pre-onset damage was minimal when one assessed the overall damages. In the present case Mr Conway suggested that if there was to be any discount by way of apportionment it should be minimal and no more than 10%. THE DEFENDERS' SUBMISSIONS RE: DAMAGES General Mr Marney's position on behalf of the defenders was that the court should not find that the pursuer had established that he had HAVS. His esto position was that even if the pursuer had contracted HAVS, a major contribution to that condition was his use of motor cycles. For the reasons already given I have rejected both these propositions. In recognising that the court's decision may be such Mr Marney made certain submissions anent damages. Mr Marney considered the medical evidence and argued that there was no reliable basis from which the court could assess the grading of the pursuer's condition. He suggested that the evidence that the pursuer was suffering at 2v as opposed to 1v on the Stockholm vascular scale was of poor quality and that I should therefore prefer the 1v diagnosis. Clearly the grading of the condition would have a bearing on the solatium to be awarded. Solatium As far as the subject of solatium was concerned Mr Marney referred me to the same cases in the same section of Kemp & Kemp referred to by Mr Conway and also to the judicial studies guidelines. He submitted that each case turned on its own facts and circumstances but on a fair assessment of the present case, taking the relatively low grading suggested by him and looking at the evidence, in particular, that of the pursuer and the medical assessment, a reasonable figure to be awarded by way of solatium would be £5,000. Mr Marney argued that this would fairly reflect the pursuer's actual disability. Loss of Employability Mr Marney's submission regarding this head of claim was that the facts of the case did not support any award at all. His argument was that the pursuer had not required any time off work in the past or present due to his condition and there was no evidence that he was likely to be required to be absent from work in the future because of his condition. The pursuer had moved from the defenders' employment to his present employment to improve his position, in that he had a more senior role and was better paid. His leaving the defenders' employment had nothing to do with his condition. He was still using power tools. Mr Marney further submitted that there was no suggestion from any doctor that the pursuer couldn't continue with his present employment and that the balance of medical evidence was that he could continue to use power tools. Mr Marney also argued that on the evidence there was a strong demand for the work that the pursuer was presently doing and there was no reason to doubt that this strong demand would not continue. Counsel further submitted that there was no need for a report from an employment specialist because on the facts there was nothing that would support the loss of employability award in the present case. Mr Marney referred me to the case of Cudlip ( see Armstrong Litigation and Kemp & Kemp supra) where, in very similar circumstances to those in the present case, the Court of Appeal set aside the award for the loss of employability, describing it as speculative. Mr Marney then went on to question the basis and conclusion of Mr Carter's report/evidence, particularly the rather restricted market place in which the pursuer may be employed which Mr Carter had considered. Finally, Mr Marney considered the cases referred to by Mr Conway in respect of the loss of employability and sought to distinguish each one thus coming to the conclusion (which seemed to be accepted by both parties) that each case depended on its own facts and circumstances. Consequently, said Mr Marney, when one looked at the facts and circumstances of the present case and looked at the facts and circumstances applying to the pursuer there was no sound basis for the court to make an award under this head of claim. If there was it should be a nominal one. Apportionment On the subject of apportionment, one of Mr Marney's lines of argument was that the pursuer's use of motor cycles should be a factor in the apportionment process. For the reasons already given, I reject that proposition. Mr Marney referred me to the case of Allan v British Rail Engineering Limited (see citation supra, also see 2001 ICR Reports). This case incorporates passages from the Thompson v Smith Ship Repairers case (in particular see paragraph 16):- "The defendants as well as the plaintiffs are entitled to a just result. If we know ... that a substantial part of the impairment took place before the defendants were in breach, why in fairness should they be made to pay for it? The fact that precise quantification is impossible should not alter the position ... Thus, whatever the position might be if the court were to find itself unable to make any findings at all on the issue of causation and was accordingly being faced with a choice between awarding for the defendants in full, or the plaintiffs in full or on some wholly arbitrary basis such as award of 50%, I see no reason why the present impossibility of making a precise apportionment of impairment and disability in terms of time, should in justice lead to the result that the defendants are adjudged liable to pay in full, when it is known only part of the damage was their fault. What justice does demand to my mind is that the court should make the best estimate which it can in the light of the evidence, making the fullest allowances in favour of the plaintiffs for the uncertainties known to be involved in any apportionment. In the end, notwithstanding all the care lavished on it by the scientists and by counsel I believe that this has to be regarded as a jury question, and I propose to approach it as such." (This is the full quotation from the judgment of Mustill J as referred to by Mr Conway, supra). Mr Marney also referred me to paragraph 20 of the same judgment which paragraph is in the following terms:- "In our judgment the case was as it now stands established five propositions of which the first is concerned with liability and the others with quantifying damage. i the employee will establish liability if he can prove that the employers tortious conduct made a material contribution to the employee's disability. ii there can be cases where the state of evidence is such that it is just to recognise each of two separate tortfeasors as having caused the whole of the damage of which the claimant complains for instance where a passenger is killed as a result of a head-on collision between two cars each of which was negligently driven and in one of which he was sitting. iii however in principle the amount of the employer's liability will be limited to the extent of the contribution which his tortious conduct made to the employee's disability. iv the court must do the best it can on the evidence to make the apportionment and should not be astute to deny the claimant relief on the basis that he cannot establish with demonstrable accuracy precisely what proportion of his injury is attributable to the defenders' tortious conduct. v the amount of evidence which should be called to enable a judge to make a just apportionment must be proportionate to the amount at stake and the uncertainties which are inherent in making any award of damages for personal injury." In his analysis of the evidence in the present case and using the ratio as he took it from the Allan case Mr Marney argued that from 1981 until 1988 the pursuer had worked for employers other than the defenders and in those employments he had used vibrating tools. From 2002 (when he left the defenders) until the present day he continued to use vibrating tools, therefore out of his twenty-four year working career he spent ten years using vibrating tools outwith the defenders' employment, consequently, there should be a substantial apportionment in damages. Mr Marney suggested the defenders were entitled to a 50% discount but were prepared to accept 33%. (Note: Mr Marney when arguing this point was factoring in motor cycle use). DECISION ON QUANTUM OF DAMAGES General From the submissions made by both parties I understood their position to be that, what level of solatium was to be awarded, whether there should be an award of loss of employability and whether there should be any apportionment of damages were all matters to be decided on a case to case basis. In other words each case really turns on its own facts and circumstances. It was not suggested by either party that any of the many cases to which I was referred was directly analogous to the present one. I make no criticism of either Mr Conway or Mr Marney, both had completed a monumental task by trawling through the relevant case law in an effort not only to support their respective cases but also to assist the court. The fact remains that in this complicated area of reparation law there are so many variables to be taken into account that it would be remarkable if any prior case gave a template onto which the present case would fit. Accordingly, I am of the view that in order to determine the level of damages appropriate in this case I have to look closely at the medical evidence, the evidence given by Mr Carter and particularly I have to revisit the evidence of the pursuer. Solatium The pursuer's evidence As I indicated earlier, the pursuer was not perhaps the best witness on his own behalf. Whether this was because he didn't understand some of the questions he was being asked or didn't listen properly to them is impossible to tell but the vagueness and inconsistency in his evidence makes it very difficult indeed to assess exactly how badly he has been affected by HAVS and therefore how much should be awarded to him in solatium . What did come through from the pursuer's evidence was that he didn't seem unduly concerned about his condition. I raised this point with Mr Conway during his final submissions and he urged me "to look at matters from a certain Olympian detachment and say: What are the symptoms?." Mr Conway's point was of course that just because a particular pursuer was a person who just got on with the job in a "grin and bear it" type of way that didn't mean that that pursuer's award of damages should be reduced. I accept that proposition but I still require to understand what the pursuer's symptoms are and how badly or otherwise the pursuer is affected by them. Whereas a pursuer may be cavalier in the face of severe adversity and express this by giving the appearance that he is not all that concerned about any real pain and suffering, it may also be that a pursuer is not at all concerned about his symptoms because they don't affect him very much and don't cause him any real pain and suffering. In this case, for the reasons already given, I have accepted that the pursuer has contracted HAVS but I still have to assess how badly he is affected by that condition in order that I can decide on appropriate damages. The pursuer's evidence in this case makes that assessment very difficult indeed. I accept that he first noticed or became aware of his condition in 1995/96 and he seemed clear that the first sign was a tingling sensation at the tips of his fingers coupled with a blanching effect. These attacks would appear to have been infrequent at this early stage. How many fingers were affected at this early stage is also unclear. In examination in chief the pursuer was asked about how many fingers were affected at the initial stage. The question was put:- Q - Did it (initial tingling/numbness) start in one finger, did it start in four fingers, did it start in eight fingers? A - No, it just started like maybe in one you just noticed, you didn't pull your hand out your glove and see your fingers it was just the actual discolouration you started with (see transcript of evidence, page 11, lines 5 - 10). This vagueness maybe explained by the fact that in 1995/96 the pursuer paid little attention to his symptoms. It does seem clear however that irrespective of how many fingers were initially affected, as the years went by all four fingers in both hands were affected and by the time he consulted his doctor in September 1999 he was experiencing "aches and pains" as a result of the condition. At least that is what he complained to his doctor about and I have no reason to doubt that that was the case. The pursuer did not elaborate upon how much pain he was suffering. The pursuer's evidence regarding this visit to his GP again was very vague. The pursuer's recollection was that the doctor simply said "You've got Vibration White Finger" and that was that. With respect to the pursuer "That was not that." It appears from the medical notes that his General Practitioner queried whether the pursuer may be suffering from osteoarthritis or repetitive strain syndrome and referred the pursuer to Law hospital for a blood test and X-rays regarding same. The pursuer does not recall that visit to the hospital nor did he seek any further medical advice and other than mentioning the condition to his father he told no one else. Particularly he made no mention of it to the defenders. Whilst this omission in no way exonerates the defenders from their breach of duty it does not seem a particularly sensible course of action on the part of the pursuer. The defenders were after all owned by his uncle. What it does perhaps indicate is that the pursuer was again not particularly concerned about the condition and that may be because the condition was not particularly painful nor was it particularly debilitating. What is clear from the pursuer's evidence (see transcript of evidence volume 1, page 13, lines 13 - 18) is that since the visit to the doctors in 1999 his condition has remained static (ie., it has not worsened). Accordingly, in properly assessing the quantum of damages to be awarded the court must look at not only how the pursuer was affected in the past, but also how affected the pursuer was as at the date of proof. Mr Conway, in his examination in chief, attempted to illicit from the pursuer what his symptoms were and what his condition was, presumably in order that the court can make this crucial assessment. Mr Conway begins this process at page 13 of the transcript of evidence and continues until page 19. As far as solatium is concerned, there is a very significant aspect of this passage of evidence. The pursuer explained that as his condition steadily worsened from 1995/96 to 1999 when he saw his general practitioner, his hands were on occasions "sore." He complained to his doctor of "aches and pains." However, in the passages of evidence to which I have referred, there is no mention of pain whatsoever. He is specifically asked if running his hands under hot water to alleviate an attack causes any pain - (see volume 1 of transcript of evidence, page 16, lines 19 - 21). Q - Does that involve any pain, running your hands under the hot tap? A - It's just tingling. Neither does the pursuer make any complaint of pain during his attacks to the two medical experts, Mr Drury and Mr Pollock (see respective reports - pursuer's first inventory of production, item no 5/1 of process - Mr Drury's and defenders' second inventory of production, item no 6/1 of process - Mr Pollock's). The pursuer described the attacks to both doctors as consisting of tingling, numbness and discolouration but does not indicate that he suffers pain. Mr Pollock comments in his report (see supra ) that: " he (the pursuer) does not describe classical rewarming in that he does not get pain or burning but does get a sensation of numbness ." This omission is, in my view, extraordinary. I can only conclude that although when he went to see his general practitioner in 1999 complaining of pain in his fingers that pain is no longer present. This, in my opinion, must make a difference to the quantum of solatium . Clearly a sensation of tingling and numbness and loss of manual dexterity must amount to suffering but if regular pain is taken out of the equation then there must accordingly be a reduction in the amount of damages to be awarded. Also, in determining damages the court has to have some picture as to the severity and regularity of the attacks. Basically the court needs to know or at least have some idea of the problems experienced by the pursuer due to his condition. Mr Conway asked the pursuer directly what problems the pursuer now had with his fingers (see Transcript page 13 line 22 to page 14 line 3):- Q - And if I can ask you now just tell me how they are, so to speak, what are the problems that you have with your fingers? A - "Basically, as I said, it's when it's cold, the difference in temperature that's I say, I could just be walking down the street taking my hands out of my pocket just going shopping with the wife or whatever and they would just go white, just as I say with the different temperatures and that's it." I pause here to emphasise that I am not seeking to be over critical of the pursuer because I appreciate from experience that members of the public have considerable difficulty in the witness box especially if they have not given evidence before. They are often nervous and that nervousness often results in them not listening to the questions properly and at times giving a less than articulate reply. If a witness was too articulate and precise in relating events that would cause me to be suspicious and, as already indicated, I have no doubt in this case that the pursuer was doing his best to present matters as truthfully and reliably as he could. That said however, the pursuer has an onus to prove his case and in this case that includes evidence of the damage he has suffered and is suffering and I have to understand the effect upon him of the HAVS condition and, whilst I can make allowances for the pursuer in certain respects, in fairness to the defenders, I have to scrutinise the pursuer's evidence with great care. In the answer quoted above to a direct question as to what his problems were I am told only that the pursuer's fingers go white when it is cold. In fairness, later in his evidence, when pressed a little more by Mr Conway, the pursuer does say that because of his condition, fiddly operations like putting a nut on a bolt and doing up buttons during an attack will take longer. Consequently I am left with the impression from the pursuer's evidence that the problems he suffers because of his condition are sensitivity to cold, which causes numbness and tingling, (but not pain), and which results in him having difficulty with certain fiddly tasks. Not that he can't cope with such tasks it's just that they take a little longer. These are the problems which the pursuer says he has. Another important factor in quantum assessment is how badly the pursuer's fingers are affected during an attack. Certainly he seems to be clear that initially (1995/96) only the tips of his fingers, and not all fingers were affected. As the condition progressed all his fingers were affected. Mr Conway sought to take from the pursuer how far down his fingers the blanching went and presumably the accompanying numbness and tingling although this was not made entirely clear. (See transcript of evidence page 14, line 4 et seq ). Mr Conway asked the pursuer:- Q - And when you say they go white, what parts of your fingers go white? A - "Just, usually just around as I said before." The pursuer was asked to show the court on his fingers the extent and he pointed to the top phalange and in an effort to clarify his evidence I asked him if he was referring just to the top phalange and he replied in the affirmative but added:- "... Well just aye, half way down". Mr Conway sought to pin matters down further and as far as I can gather, although it was not completely clear, the pursuer was indicating that certainly the top phalange was affected and possibly a bit of the middle phalange. The pursuer agreed with the proposition that his fingers were affected down to the middle phalange. Mr Conway also sought to confirm that all four fingers on each hand were affected but again the pursuer's answer was a little confusing:- Q - Is that all four fingers of each hand? A - "Well as I say that one is starting to go. I mean my hands are always like cold." (See transcript of evidence, volume 1, page 14, lines 12 - 17). (Mr Conway pressed the question and it seemed to be the pursuer's position that all four fingers on both hands were affected. His final position seemed to be that the affect reached to the second phalange). The pursuer told Mr Drury at his medical examination that blanching went down the end of the second phalange and signed a diagram at the end of Mr Drury's report to this effect but that did not appear to be his position in evidence. According to Mr Pollock the pursuer told him that all four fingers on both hands were affected over all three phalanges down to the hand. The pursuer in evidence denied that he ever said this to Mr Pollock although I accept that he probably did. In my view, the pursuer was genuinely confused about how far down the blanching went and I don't believe he entirely understood the word "phalange." In my view, this confusion and inconsistency of description, results from the fact that the pursuer has probably never watched an attack from start to finish and also the possibility that not all attacks take exactly the same form. On the evidence I am prepared to accept, on the balance of probability that the pursuer suffered blanching on all four fingers of each hand and that probably the blanching took affect into the second phalange but did not completely cover it. In other words the attacks went halfway down his fingers. As well as the problems experienced by the pursuer because of the attacks and the extent to which his fingers were affected during these attacks another relevant factor in assessing quantum is the frequency of the attacks. Again, in this aspect of his evidence, the pursuer had difficulty answering what where direct and concise questions from his solicitor. (See transcript of evidence, volume 1, page 15, lines 5 - 11). Q - How often do you get these attacks? A - "It depends on, I mean, where I am or what I am doing. I can say that if I'm outside every day it could happen every day but it is something I cannot really pinpoint. As I say, it just comes on with the change of temperature." Again I am not seeking to overly criticise the pursuer because it would have been the easiest thing in the world for him to say to his solicitor when asked how often he had his attacks to say "Every day, two or three times a day", but the pursuer was trying as best he could to indicate that it might be every day it might not. Clearly he had never applied his mind to the frequency of his attacks. That could be because he was adopting the "grin and bear it" philosophy as contended by Mr Conway, in that the pursuer was the type of person who accepted his condition as part of the job and just got on with it or it could be the attacks were not particularly frequent nor particularly severe. The fourth factor affecting the quantum of damages has to be the length or duration of the attacks. The pursuer, I suspect for the reasons already given, didn't know how long a typical attack would last. The above analysis of the pursuer's evidence highlights the weaknesses in that evidence. It was these weaknesses, which Mr Marney argued, should lead me to hold that the pursuer had not established he did have HAVS. For the reasons already given I have rejected that submission. However these weaknesses have lead me to the conclusion on the evidence that the pursuer's condition is at the lower end of the scale for damages purposes. Medical Evidence I have discussed the medical evidence in this case when I considered whether or not it had been established that the pursuer had contracted HAVS and it is not my intention to rehearse that evidence. However, in judging how badly or otherwise the pursuer has been affected, I am of the view that it must be revisited to some extent. In doing so I am conscious that whereas both Mr Drury and, at least in his report, Mr Pollock diagnosed the pursuer as suffering from HAVS using a mixture of what the pursuer told them and a series of exclusion tests (ie., they did tests which excluded other causes of his symptoms), both doctors made their grading of the pursuer's condition basically on what the pursuer told them. Mr Drury graded the pursuer using the scales already referred (ie., the Taylor Pelmear (TP) and Stockholm ) as at stage 2 (late) on the TP scale, 2v on the Stockholm vascular scale (v) and 1sn on the Stockholm sensorineural (sn), that is Mr Drury assessed the pursuer as having blanching in all four fingers of each hand with numbness which could give slight interference with home and social activity, with no interference at work. This is the definition attributed to stage two on the TP scale. This equates with 2V on the Stockholm Scale to a "moderate" grade evidenced by occasional attacks affecting distal and middle (rarely also proximal) phalanges of one or more fingers and 1SN which has intermittent numbness with or without tingling. Mr Pollock in his report agrees with Mr Drury that the pursuer has reached stage two on the TP scale (although he does not add the appendix "late") but on the vascular component of the Stockholm scale he assesses the pursuer as between 1v and 2v. (1v being graded as mild with attacks affecting only the tips of one or more fingers.) Mr Pollock agrees with Mr Drury on a 1sn grading on the sensorineural component of the Stockholm scale. Mr Pollock appeared to depart completely from his diagnosis at one point during his evidence alleging effectively that the pursuer was making up his symptoms. For the detailed reasons given earlier I reject that assertion. The question I have to ask myself is, how useful are the gradings attributed to the pursuer's condition by the doctors in their reports and at least adhered to by Mr Drury in his evidence? They must be viewed, in my opinion as only, a ready reckoner and a fairly rough and ready reckoner at that. They have been and are used in almost all white finger cases on both sides of the border but they are not and could never be precise in their definitions. This must be used as a rough guideline only. The TP scale although still referred to, has been eclipsed by the Stockholm scale because the latter breaks the assessment down into individual components of the condition, ie., vascular and sensorineural. The roughness of the TP scale is well illustrated in the present case since the stage two assessment made by Mr Drury includes the assertion in the definition that there is "no interference at work." That clearly was not the case with the present pursuer and Mr Drury knew that; therefore he was choosing a grade, which was nearest the pursuer's situation, but one, which did not fit it exactly. According to the Judicial Studies Board Guidelines on Vibration White Finger the Stockholm scale is now the preferred table for grading the severity of the condition, because of the division of the components. Also unlike the TP scale any interference with work or social life is ignored thus it is purely descriptive of the frequency of attacks (v) what part of the finger is affected by the attacks (v), and what the affect on the fingers is (sn). I must also add at this point that although the Stockholm scale is now the preferred one for measurement of the condition the TP scale cannot be discounted completely. That is so because the TP scale does attempt to define the interference with a person's social and working life and may therefore be a basis upon which compensation or damages can be assessed. Further, since in the past the TP scale has been used as the calculating scale on which judicial awards have been made, there is consequently a body of case law where the amount of damages has been calculated using that scale and the guidance of that case law cannot be completely ignored. (It is interesting to note that in neither the TP scale nor the Stockholm scale is "pain" a consideration). For present purposes, that is assessing the grading of the pursuer's condition, it is convenient to concentrate on Mr Drury's report and his evidence. This is because in his report Mr Pollock gives the pursuer a lower scoring on the TP scale and on the Stockholm vascular component. Although in his evidence he doubts if the pursuer has HAVS at all. Also as I have already indicated I have some reservations about Mr Pollock's evidence in general. Mr Drury scores the pursuer at 2 (late) on the TP scale and at 2v and at 1sn on the Stockholm scale. In examination in chief he seemed to suggest that his assessment on the Stockholm vascular scale as based on his one examination of the pursuer, could be more accurately described as between 2v and 3v to reflect his "late" description on the TP scale. In cross-examination however Mr Drury did concede that his grading was, as I indicated earlier, predicated on the accuracy of the pursuer's account to him. He further conceded that if the pursuer's fingers were not affected to the extent described to him by the pursuer he might be looking at a lower classification of 1v on the Stockholm scale (see transcript of evidence, volume 5, page 588). This line of evidence may be more relevant to the pursuer's claim for loss of employability and I shall return to it when I consider that head of claim but it still has a bearing on solatium in that if Mr Drury's grading was to be lower, then the pursuer would not be as badly affected as Mr Drury, acting on the pursuer's history as given by him, originally diagnosed. The difficulty for the pursuer here is that what he did tell Mr Drury does differ from his evidence in court. He told Mr Drury that the blanching affect on his fingers extended to the end of the proximal phalange and signed a diagram to that effect. That wasn't his position in court. His position in court was initially that the first phalange only was affected and finally that it went down to the middle phalange but it didn't go down to the end of the distal phalange towards the proximal phalange. He also seems to have told Mr Drury that a typical attack lasted twenty minutes. I don't know if this timescale is significant or not in Mr Drury's assessment but what is significant is that the pursuer was, as I have already indicated, unable in court to tell us how long a typical attack lasted. The pursuer also appears to have told Mr Drury that he noticed that he was losing his grip strength. When asked by Mr Conway about the problems he faced because of his condition he made no mention of this. Again I don't know how significant this could be in Mr Drury's assessment of grade but as a matter of common sense, at least on the TP scale, it must have been of some significance. It would not be proper for me to substitute a new diagnosis for that given by Mr Drury but because of the discrepancies between what the pursuer told Mr Drury and what he told the court I am entitled to have some doubts about the grading given. For the reasons given I have such a doubt and that in all probability the pursuer's condition is no more that 2v and possibly less. It would be convenient for me to rely on Mr Pollock's gradation in this respect to support this conclusion but that I cannot do. Mr Pollock also proceeds on what he has been told by the pursuer and what he says he was told, regarding blanching, was that all three phalanges were affected down to the hands. This would, on my reading of the Stockholm scale, give a reading of definitely 2v and possibly 3v. Despite this Mr Pollock grades the pursuer at between 1v and 2v. For all the reasons given with reference to the Judicial Studies Board Guidelines and the authorities cited and the submissions of parties I have come to the conclusion that in this case the award of damages to the pursuer should be in the low to moderate range and I assess solatium at £8,000. DECISION ON LOSS OF EMPLOYABILITY In a difficult and complicated case this head of claim is perhaps the most difficult of issues. It is difficult because the pursuer in this case, unlike the majority of pursuers and plaintiffs in the many cases to which I was referred, has not lost his employment nor has he had to move to a less lucrative line of work. The pursuer in the present case has in fact moved to an employment which is arguably less arduous, certainly in a manual sense, and where he is better remunerated. Another difficulty is the fact that the pursuer left his employment not because he was concerned that using vibrating tools was damaging his health but because he was upset that the business had been sold and he hadn't really been consulted about that sale. Mr Conway, in arguing this head of claim, cited a line of Scottish authorities beginning with Robertson v British Bakeries 1991 SLT 434 (Outer House Decision per Lord Osborne) through Bonar v Trafalgar House 1996 REPLR page 19 (Outer House per Lord Gill), King v Carron Phoenix Limited and reported 26 January 1999 (Outer House per Lord Kingarth), McDyer v The Celtic Football and Athletic Club Limited unreported 26 February 2001 (Outer House per Lord McCluskey), Delaney v McGregor Construction (Highland) Limited I (2003 REPLR 56) (Outer House per Lady Paton) and ending with McKenna v British Railways Board & Another unreported, 15 August 2003. (Outer House per Lady Smith). On the basis of these cases Mr Conway sought to persuade me that I should make an award to the pursuer for loss of future employability due to his HAVS condition and that that award, following the reasoning in the cases quoted, should be in the order of one to two years of the pursuer's present wages. Mr Conway recognised, although I don't believe he said so in terms, that because the pursuer was seeking a payment for this possible future loss now, a substantial discount would require to be made (see the reasoning of Lord Kingarth in the King v Carron Phoenix Limited case, page 7 of the judgment, last paragraph and that of Lord McCluskey following the approach of Lord Kingarth in the McDyer v Celtic Football Club case, see paragraph 6 - loss of employability). I have already narrated Mr Conway's submissions and those of Mr Marney on behalf of the defenders and I do not intend to repeat them now. Suffice to say I am not persuaded that any award should be made in respect of this head of claim. The cases referred to above, with one notable exception, to which I shall return are markedly different from the present case. In Robertson v British Bakeries the pursuer suffered a broken ankle in a road traffic accident involving a fellow employee, Lord Osborne held that it was " likely that, within a very short period of time, the pursuer will begin to suffer from post traumatic osteoarthritis which it is " likely" will mean he cannot continue with his existing employment." (See page 13 of the judgment, last paragraph). In Bonar v Trafalgar House, which was a case where the pursuer had contracted industrial asthma due to working with a particular combination of paints and whereas the pursuer no longer worked specifically with that combination and wore various masks, he was still with the same employer and was still in an environment which put him at severe risk, Lord Gill held that there was " a material risk " that the pursuer's condition would deteriorate if he continued to be exposed to certain substances. He was continuing to be so exposed. In King v Carron Phoenix which was a case where the pursuer had contracted fairly severe tennis elbow due to his work process, Lord Kingarth held that there was " a real prospect " that the pursuer at some stage in the future would have to give up work due to his condition. In Delaney v McGregor Construction the pursuer had been injured while working as a ganger/labourer and was now working in alternative employment. Lady Paton came to the conclusion, in awarding damages for loss of employability that there was " a real risk " of the pursuer losing his alternative employment. (I understood that his present employer gave evidence that he was seriously thinking of selling the business thus putting the pursuer back on the labour market with a disadvantage due to his injuries). In McKenna v British Railways Board , because of his injuries, the pursuer had already been medically retired. Accordingly, in the cases referred above, their Lord and Ladyships in making awards for loss of employability were persuaded that matters are "likely to happen" or that there is "a material risk of" or a "real prospect" of or a "real risk" that events may take a certain turn. I cannot come to that sort of conclusion in the present case. The evidence is that the pursuer's job is not under threat because of his HAVS condition. His condition has remained static for five years and on the medical evidence there is no suggestion that he cannot continue with his present employment until the end of his working life and in that employment his pay is better than it was when he worked for the defenders. The high water mark for the pursuer's case under this head comes perhaps in the judgment of Lord McCluskey in McDyer v Celtic Football Club. The McDyer case is different from the others already examined in that the pursuer was not injured in the course of his employment. He was attending a sporting event at Celtic Park when, put simply, a piece of wood fell on him injuring his wrist. Lord McCluskey was of the opinion that the medical evidence in the case did not establish on the balance of probabilities that there was likely to be a very significant deterioration in the pursuer's condition. He accordingly rejected the pursuer's contention that he would be unlikely to continue working beyond age fifty-five and may require to seek lighter work before then. Accordingly, his Lordship did not sustain the pursuer's claim for loss of future earnings (see judgment paragraph 20). However his Lordship did make an award for loss of employability. He seems to have done so because he "estimated" that "the pursuer may feel eventually that enough is enough and that the daily awkwardness and pain aggravated by using his right wrist for work is no longer supportable." (See judgment paragraph 25). In awarding the pursuer £60,000 for loss of employability, discounted by 3% for early payment (ie following Lord Kingarth's reasoning in King v Carron Phoenix ), His Lordship said:- "It is quite impossible to do more than to predict that he (the pursuer) is likely to decide to draw a line under his working life sometime between his sixtieth and sixty-fifth birthday." I find this a strange case and the passage from His Lordship's judgment, last quoted, is almost an oxymoron as he appears to be indulging in some form of speculation. That said however even the McDyer case can be distinguished from the present one in that in the McDyer case there was no doubt that the pursuer suffered almost constant pain while performing his job. That is not so in the present case. Further, in the McDyer case, again His Lordship found that there was " a likelihood " the pursuer would be driven to seek early retirement. Under this head of claim Mr Conway also relied heavily and cited frequently the group of cases which can be conveniently referred to as the Armstrong Litigation. The case of Armstrong and Others v The British Coal Corporation began its life in the English High Court, Queen's Bench Division, sitting in Newcastle before Judge Stevenson on 15 January 1996. It concerned a group of miners suing the Coal Board because they had contracted vibration white finger while in the Board's employment. His Honour, Judge Stevenson, had nine plaintiffs before him, these being selected as leading cases for a great many others which were awaiting the outcome. Judge Stevenson found against the defendants on certain preliminary questions and they appealed to the Court of Appeal, which appeal was heard on 28 November 1996. The judge's decision at first instance was sustained and the matter was returned to the High Court to determine questions of causation and damages. The cases called again in the High Court, Queen's Bench Division, before Judge Stevenson on 30 September 1997. On this occasion His Honour sustained the claims of seven of the plaintiffs and awarded damages accordingly. Again, the defendants appealed. The appeal was heard by the Court of Appeal on 31 July 1998 and the High Court's judgment was largely upheld. Accordingly, the Armstrong Litigation is an important and useful guide in this area of the law, not only in the assessment of solatium but also in the determination of the loss of employability. This being so and having discussed the relevant Scottish authorities, I feel it is important to look in a little more detail at some of the individual cases in the Armstrong Litigation. Two matters must be borne in mind about the Armstrong cases. The first is the fact that the cases were all brought by miners, who were no longer working as miners. Secondly, the mining industry was in terminal decline, consequently there was little likelihood of these miners ever finding work in the mining industry again. These factors, in my view, immediately distinguish the Armstrong cases from the present one. In the present case the pursuer is still working at his trade albeit at very much reduced level and there was no suggestion that the coachbuilding industry was doing anything other than thriving. The Armstrong Cases In Carver v The British Coal Board (see Kemp and Kemp E12 - 001) it is clear that the plaintiff was very badly affected, there was an argument that he was at stage four on the TP scale and that he was 3v and 2sn on the Stockholm scale. Also, all five fingers on each hand were affected. It was thought at one stage that the plaintiff probably would not work again but by the stage of proof his prospects had improved, consequently, that assessment had to be qualified. Nevertheless, Judge Stevenson was of the view that:- " The odds remain that he will not get into the labour market and even if he did, VWF would be a handicap although not of the most serious sort." An award of one year's wages was made for loss of future employability. In Wright v The British Coal Board the plaintiff also had a very bad case of VWF in that he was stage three on the TP scale and 3v and 2sn on the Stockholm scale. Again, all five digits were affected. Again, it was felt that there was a " real risk " (see paragraph 12 Judge Stevenson's judgment) that because of the VWF he would be disadvantaged on the employment market and had already had two periods of unemployment. Again, an award was made for future loss. In Martin v The British Coal Corporation (see Kemp and Kemp G12 - 003) there was a slight difference of opinion between the medical experts as to how badly the plaintiff was affected. On either assessment however the plaintiff's condition was worse than the pursuer's in the present case. In looking at this difference of opinion Judge Stevenson was of the view that:- " The difference is a matter of impression what matters in the assessment of damages is the affect of the symptoms on the individual rather on which part of the definition fits, but for what it is worth, I would put him at 3sn bearing in mind the Stockholm definition." That is very much in line with the view I expressed earlier in this judgment that although the scales are a guideline they are not particularly precise and what one has to look at are the symptoms displayed by an individual and the affect on that individual which these symptoms have. In the present case, on the pursuer's evidence, it is difficult to assess exactly what his symptoms are and what affect they have upon him. (In the Martin case last referred to the plaintiff had other physical difficulties and no award for loss of employability was made). In Stokoe v The British Coal Corporation (see Kemp and Kemp G12 - 004) again there was a difference of opinion regarding the grading of the plaintiff's condition but again on either view the plaintiff's condition was worse than the pursuer's in the present case. Judge Stevenson came to the view that the plaintiff was border line between 2 and 3 on the TP scale and between 2 - 3 on the vascular and was border line 2sn/3sn on the Stockholm scale. Four fingers on each hand were affected. The judge described it as "not a particularly bad case." An award of loss of employability was made in the Stokoe case because the court came to the conclusion that "the claimant is clearly at some disadvantage on the labour market in not being able to work as a fitter using vibrating tools .... ." (See judgment, paragraph 31). I pause here to note that in all of the four cases looked at above the condition of the plaintiff in each of them was worse and arguably far worse than that of the pursuer's in the present case and that in the cases where an award for loss of future employability was made, it was made because the court came to the conclusion on the evidence that it had been proved that there was a "real risk" of disadvantage or that there definitely was a disadvantage in the labour market and that there was a likelihood that the plaintiff would be thrown on to that market. This is very much in line with the approach taken by the courts in the Scottish Authorities already quoted. One other case in the Armstrong series can be usefully examined because, in my view, for whatever reason, Judge Stevenson seems to depart from the approach he adopts in the other cases in the series and indeed from the approach adopted by the courts generally in the cases already discussed. In Cudlip v The British Coal Corporation Judge Stevenson made an award for loss of employability on the basis that the plaintiff "might" have to give up work. There was apparently no evidence before His Honour that there was any risk to the plaintiff's current employment. Therefore, unlike the other cases already quoted, there was no certainty, real risk, material risk or likelihood of the plaintiff losing his job and thereby being thrown back on to the labour market as a handicapped person. On appeal the award for loss of employability was set aside. The Court of Appeal remarked: "An award of £2,500 reflected Cudlip's handicap on the labour market. Without minimising it Cudlip's condition is not severe. The problem with his back is much more significant. He is in regular work. Nothing suggests that this employment is at risk. His claim under this head was speculative. An award should be set aside." This case, in my view, does have similarities with the present one in that the plaintiff's condition was not severe and there was no threat to his employment. I shall return shortly to look in general at the threat to the pursuer's continued employment. In my judgment the Armstrong Litigation and the Scottish cases already discussed demonstrate that before an award for loss of employability is justified there must be a certainty or a "real risk" or "likelihood" that a claimant will require to give up because of his condition. ------------------------ On the evidence of the pursuer in the present case and the medical evidence I cannot and do not come to the conclusion that the pursuer will require to give up work because of his condition or even that there is a likelihood that he would require to do so. That is not the end of the matter because I still require to consider how secure or otherwise the pursuer's present employment is and whether if he lost that employment he would be at a disadvantage in the labour market. Mr Conway relied on the evidence of Mr Carter to persuade me that there was a vulnerability about the pursuer's current employment and that should he lose it he would have difficulty in making a sideway shift because of his inexperience in management. Mr Conway also submitted that if the pursuer did lose his present job he would be at a distinct disadvantage on the labour market because "he has certainly lost his trade as a hands on coachbuilder." So the pursuer's argument on this issue is predicated on two propositions:- That the pursuer's present position is at risk: 2 That if he lost that position he would be at a disadvantage in the labour market because of his inexperience in management and because he had lost his trade as a coachbuilder. Looking at the second proposition first, again, on the evidence I am not convinced that the pursuer has "certainly lost his trade as a coachbuilder." He does has HAVS but for the reasons already given I am of the view that his condition is no higher than at the moderate stage and possibly lower. In my opinion, if necessary, the pursuer could in the future use vibrating tools providing he was careful to use tools of a lower vibration and monitored his medical condition regularly. There was evidence in the case that those who manufacture vibrating tools are conscious of the dangers which these tools present and are endeavouring to lower vibration levels wherever possible and currently when such tools are supplied the relevant amount of vibration level is indicated. There was an early example of similar tools giving off hugely different readings. Mr Conway's argument was that because the pursuer in the open market would either have to disclose his condition to a prospective employer thus risk rejection or lie about his condition, he would be at a distinct disadvantage. I am not convinced that the pursuer has proved this to be the case. He obtained his present employment when suffering from HAVS and he still uses power tools; perhaps not as often as he did, but still regularly. Mr Conway argued that the pursuer's condition had remained static partly due to the fact that he now uses tools less regularly but even in his employment with the defenders his condition remained static for three years. In any event, as Mr Conway pointed out, the pursuer has never really entered the job market in the sense of going for an interview and competing with other candidates. He has always gained employment (for about a quarter of a century) by contacts. That includes his present position. For these reasons I reject the proposition that the pursuer has certainly lost his trade as a hands on coachbuilder and I am not persuaded that the pursuer has proved that he has probably lost that trade. No doctor has ever advised the pursuer that he should not work with power tools (contrast this with the case of Bonar v Trafalgar House where the pursuer continued to work despite medical advice to the contrary. His doctor described the pursuer as having "a dreadful bargain to make between present employment and future health.") In my view, the pursuer in the present case is not in a situation such as that. Also, having heard the pursuer who did express the view that he would now prefer to do more managing than coachbuilding, it is my view that he would be horrified if someone suggested to him that his "hands on" days were "certainly" over. Turning to the first proposition namely, that the pursuer's present position is at risk. This proposition of course comes from Mr Carter's report and his evidence. I tend to agree with Mr Marney's submission that Mr Carter does not in fact take the pursuer's case very far. To begin with Mr Carter starts his report at paragraphs 1 and 2 by saying:- "1 Mr Deans has hand/arm vibration syndrome which is affecting his ability to work as a coachbuilder 2 Fortunately Mr Deans has been successful in obtaining employment as a supervisor/manager in JWR coachbuilders Limited however, he is still required to undertake manual operations that cause his problems. Whilst it is not stated in terms in these statements there is an implication that the pursuer left his previous employment with the defenders because of his condition and was lucky enough to obtain another job with less tool use. That is not the case as previously discussed. Also at paragraphs 5 and 6 of his report Mr Carter relates:- "5 As a fully fit man, were he to be unable to continue with JWR Coachworks Limited he would expect to return to his trade "on tools" for which he has considerable experience. With hand/arm vibration syndrome, Mr Deans will be unable to consider this and will need/ seek work that is less manual and does not involve either. i working out outside or ii continue the use of hands tools." This follows the line of the proposition made by Mr Conway concerning the loss of the pursuer's trade and which, for the reasons already given I judge illfounded. Accordingly, in my view, Mr Carter's report is based on a false premise and does not assist the pursuer. Mr Carter also expresses concern about the vulnerability of the pursuer's present employers. He does so because the firm is a small one and that they have only one main customer (ie., the parent company). Mr Carter has a great deal of experience and I have given due weight to his evidence and to his report but there is no evidence in the case that JWR have any financial problems nor that there is any prospect of them closing in the near future or for that matter in the far future. Accordingly there is no evidence that the pursuer's job is under threat. In my view, Mr Carter is speculating and as Mr Conway reminded me during his submissions the court is not entitled to speculate and accordingly I have rejected Mr Carter's conclusion. Also, when assessing the pursuer's future prospects Mr Carter confined himself, when looking at possible opportunities in the labour market for the pursuer were he to lose his present position, to Lanarkshire and concluded that there were few businesses which could offer the pursuer employment in the same position that he currently held, ie., manager/supervisor. Mr Carter did not look at businesses in Glasgow. That, in my view, rather weakens his conclusion because Glasgow is closer to the pursuer's home than many parts of Lanarkshire. In my view, before an award for loss of employability is justified there must be proof of a weakening of the claimant's position in the labour market. In the present case, for the reasons given, I am not satisfied on the balance of probabilities that the pursuer has proved that his position in the labour market has weakened. Accordingly, I am not prepared to make an award of damages under this head of claim. APPORTIONMENT The third matter to be considered in relation to damages is whether there should be any apportionment for non-negligent damage prior to the pursuer's employment with the defenders. Both Mr Conway and Mr Marney dealt with this subject fairly briefly in their submissions and both recognise that whether there should be apportionment or not is very much a matter for the court's discretion. I shall endeavour to be brief also. As previously indicated, I have decided that the "date of knowledge" for the coachbuilding industry should be taken as circa January 1986 and I have explained why I came to that conclusion. Consequently when the pursuer joined the defenders in 1988, the defenders had a duty of care towards him. There should have been in place as at 1988 appropriate preventative measures to ensure that the defenders' employees, including the pursuer, were protected. No such measures were in place, the defenders failed in their duty and because of that failure the pursuer contracted HAVS. Had the defenders not failed in their duty the pursuer may never have shown the symptoms of HAVS or if he had they could have been quickly and effectively dealt with. Clearly, prior to 1988 the pursuer had also been using vibrating tools but the symptoms did not appear until 1995/1996, some seven to eight years after he joined the defenders. It is impossible to tell what was going on in the pursuer's body prior to his symptoms emerging and it is conceivable that all the damage which resulted in the appearance of his symptoms took place while he was in the defenders' employment. The matter of apportionment was considered in some detail by the English Court of Appeal in the case of Smith v Wright & Beyer Limited (see case index no 12). This was a vibration white finger case where one of the central points argued on appeal was that, because a substantial amount of the plaintiff's exposure was prior to 1977 (the date of knowledge in that case) the judge at first instance ought, in his approach to the issue of damages, to have made a discount to allow for non-negligent exposure. The judge at first instance made no such discount and his approach was approved of by the Court of Appeal. There is a slight difference between the Smith case and the present one in that in the Smith case no other employers were involved. That is the non-negligent period was the period before the date of knowledge. In the present case, of course, the pursuer had been employed by other employers. That said however, in my view, the principle in the Smith case is applicable to the present one. Judge Tetlow, the judge at first instance, summed up the problem significantly thus:- "Further, it is difficult to gauge what, if anything, is happening before symptoms appear." (See Smith case 9). HAVS has been described by analogy as a glass which gradually fills and then overflows. The point of overflow being when the symptoms appear. If one stops filling the glass it will not overflow. That is if a person gives up using vibrating tools altogether or moderates his use of same then a person may never come to the symptom stage. What Judge Tetlow in the above quotation says is "difficult to gauge" is when did the glass begin to fill and how quickly has it filled? Later in his judgment Judge Tetlow states:- "Had the defendants, whether in 1977 or 1980, issued warnings, then, no doubt, the claimant in the early 1980's would have realised what was happening and then, no doubt, the defendants would have reorganised work patterns so that Mr Smith could work without enduring further symptoms. Alternatively, if that were not possible, they would have, no doubt, dismissed him. As it was the claimant continued until after his symptoms had reached a stage where damage was irreversible. Further, the defendants in 1977 or 1980, had they done their duty, would have reorganised their working practice so as to reduce exposure to vibration and hence the claimant may not ever have reached a stage where he would have experienced symptoms. Put shortly the pain and suffering and loss of amenity which this claimant appeals is entirely, in my judgment, due to the fault of these defenders and if I am wrong in not deducting something for symptomless damage occurring before the date of knowledge then, in my judgment, the deduction must be minus, in other words hardly worth deducting. The Court of Appeal agreed with the approach taken by Judge Tetlow and said at paragraph 19 of their judgment:- "The judge was entitled to find that, in this particular case, had there been proper discharge by the defendants of their duties as employers, white fingers would not have developed, notwithstanding the long earlier period of exposure. It was open to the judge to hold that, had the employers discharged their duties there would have been no further significant exposure to the vibrating tool. As a matter of fact, on the evidence before him the judge was entitled to reach that conclusion." In the present case I have no way of knowing what damage, if any, the pursuer experienced in his pre 1988 working life but on the evidence I am satisfied that had the defenders performed their duty of care towards him the symptoms would not have appeared. In my judgment if there was any damage prior to 1988 it must have been minimal. Accordingly, I am not inclined to make any apportionment of damages in this case. For Interest on Damages As far as interest on damages is concerned, whereas Mr Marney suggested that I take a broad brush approach and if I was making an award at all I should follow the English practice of making said award inclusive of interest. In my view, that would be incompetent. (See Interest on Damages (Scotland) Act 1958, Section 1(A)). Accordingly, I have awarded interest on half of the solatium at the rate of 4% per annum (ie, half the judicial rate) from 01 January 1996 (which date I have taken as being that of the onset of symptoms) until the date of my interlocutor (ie, September 2005). Accordingly, interest is awarded for nine years and nine months at the rate of 4% per annum on £4,000. This works out at nine years at £160 per year plus nine months which I calculate to be £120. Therefore, I have awarded total damages including interest at £9,560.00 with interest thereon at the rate of 8% per annum until payment. INDEX OF CASES McTear v Imperial Tobacco Limited (Outer House per Lord Nimmo-smith, 31 May 2005) Cross v Highland and Islands Enterprise 2001 SLT 1060 (Outer House per Lord McFadyen) Wardlaw v Bonnington Castings Limited 1956 SLT 135 (House of Lords) Nicolson & Others v Atlas Steel Foundry 1957 SLT 186 (House of Lords) Guarder v Motherwell Machinery & Scrap Company Limited 1962 SLT page 2 (House of Lords) McGhee v The National Coal Board 1973 SLT page 14 (House of Lords) Thompson & Others v Smiths Ship Repairers 1983 Queen's Bench Division, page 881 Hall & Others v British Gas Plc 1998 Manchester County Court (unreported) Billington and Another v British Rail Engineering Limited 2002 Queen's Bench Division 1005 Allan and Others v British Rail Engineering Limited (unreported) English Court of Appeal, February 2001 (see 2001 EWCA - civ 242) Doherty & Others v Rugby Joinery (UK) Limited 2004 EWCA - civ 147) Smith v Wright & Beyer Limited 2001 EWCA - civ 1069) Stangoe v Terrex Equipment Limited (unreported Outer House 04 December 2001 per Lord Wheatly) McKenna v British Railways Board (unreported) (Outer House 15 August 2003 per Lady Smith) Brown & Others v Corus (UK) Limited 2004 EWCA - civ 374) Griffiths v Vauxhall Motors Limited (no citation) Rugby Joinery (UK) Limited v Whitfield 2005 EWCA - civ 561) Brooks v South Yorkshire Transport Executive 2005 EWCA - civ 452) Bonar v Trafalgar House 1996 REP LR page 19 (Outer House per Lord Gill) Delaney v McGregor Construction Limited 2003 REP LR (Outer House per Lady Paton) King v Carron Phoenix Limited (unreported) 26 January 1999 (Outer House per Lord Kingarth) McDyer v Celtic Football Club (unreported) 06 February 2001 (Outer House per Lord McCluskey) Robertson v British Bakeries Limited 1991 SLT page 43 (Outer House per Lord Osborne) Balfour & Others v William Beardmore & Company Limited 1956 SLT 205 Clegg v North Ayrshire Council (unreported) 07 May 2002 (Outer House per Lord Carloway) Armstrong & Others v The British Coal Corporation ( The Arnstrong Litigation ) English High Court Queen's Bench Division 15 January 1996 and 30 September 1997 (also see appeals 28 November 1996 and 31 July 1998 English Court of Appeal) Morton v William Dickson Limited 1909 SC page 807 McFarlane v Ferguson Shipbuilders Limited (unreported) 16 March 2004 (Outer House per Lady Smith) Neil v Ayrshire Council (unreported) 25 January 2005 (Outer House per Lord Brody) Kemp and Kemp - section DG12 - Vibration White Finger Syndrome (assorted cases) BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII