COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORWICH COUNTY COURT
HIS HONOUR JUDGE DARROCH
London, WC2A 2LL
B e f o r e :
MR JUSTICE WILSON
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Mr Nigel Cooksley QC (instructed by Pattinson & Brewer) for the Respondent
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Lady Justice Hale:
"I have absolutely no doubt in my mind that this is a vibration induced complaint. I say that because I have considered the evidence and what Mr Cross says is that he is 80% or so sure that it is caused by vibration. He has found a case in the literature, a thin case if you like about motocross, which appears to connect the two. His opponent says that he has suspicion but is not prepared to make the jump. So at one extent 80%, at the other 'suspicion'. I think therefore that the answer to the primary question 'Is this vibration induced?' is that it is. I have borne in mind the evidence of the expert engineers; the claimant's own evidence; the previous diagnoses, and the extent to which the claimant expert can go, and the maximum concession made by the defendant.
The claimant also said through his expert that this was diagnosis by exclusion, which is not entirely satisfactory. It is, however, and I think the authorities show, a possible approach. I can also turn to the criticisms that are made of the defendant's expert, Dr Cooke, and really they amount to saying that at the end of the day he is forced to admit that it is palmar arch disease. He has therefore changed his position as well. I do not think it is the hammer syndrome and I do not think he really seriously argues for that now. It is not Buerger's disease. That is caused by smoking. I can eliminate that. He really, in my view, cannot come up with a more plausible explanation, so the diagnosis by exclusion, the literature and the experience of Mr Cross all lead me to the firm conclusion that this is vibration induced."
"One looks at the joint experts' report; the history; the degree of involvement; the vibration; the heavy equipment. Asking a man to do that without being monitored medically it seems to me makes a very substantial increase in the risk."
"1. It is agreed that the magnitudes of vibration experienced by the Claimant while employed by the Defendant were sufficient to cause vibration-induced white finger. . . .
3. It is agreed that the durations of exposure to hand-transmitted vibration as claimed by the Defendant were sufficient to present a foreseeable risk of the Claimant developing vibration-induced white finger.
4. It is agreed that, in addition to vibration-induced white finger, exposure of the hand to vibration can cause a variety of other disorders collectively known as the hand-arm vibration syndrome. . . .
6. We agree that we do not know of a previous case in which the development of palmar arch disease has been attributed to the vibration from hand-held vibratory tools.
7. It is agreed that the development of palmar arch disease, as a specific disease, was not foreseeable, but that the development of hand-arm vibration syndrome was foreseeable."
"the predominant health effect is known as hand arm vibration syndrome, defined as a disease entity with the following separate components - circulatory disturbances (vasospasm with local finger blanching - 'white finger') . . . while arterial disruption or spasm is necessary to stop blood flow, vasospasm in the skin venules is required to produce blanching . . . the blanching is restricted to the tips of one or more fingers but progresses as the vibration exposure time increases. The thumbs are usually the last to be affected . . . it is generally agreed that due to the mechanical stimulus, specific anatomical changes occur in the small arteries and arterioles of the digits."
"Conditions responsible for obstruction of the arteries of the hand and fingers include emboli, vibratory trauma (in chain saw or jackhammer operators), repetitive percussive trauma (hypothenar hammer syndrome, baseball catching), frostbite, auto-immune diseases (scleroderma or rheumatoid arthritis), Buerger's disease, intra arterial drug administration, and exposure to various toxins."
Rutherford then goes on to explain how to detect whether hand symptoms are due to arterial obstruction or to a vasospastic process. If arterial obstruction is found,
"The distribution of the lesions . . . may suggest a cause. An incomplete palmar arch may represent a common congenital variant . . . or it may be due to any of a host of pathological entities, including trauma, atherosclerosis, emboli, and collagen diseases."
Mr Cross's evidence was that congenital absence could be ruled out, and everything else had been excluded but for trauma, in which he would include vibration exposure. Vibration was multiple trauma.
"The middle area of the palm is where the drill is when you are leaning on it. It is quite a focused area. The palmar arch is quite short. You can see from this arteriogram the superficial and the deep palmar arches are quite short. Mr Griggs was exposed to a lot of vibration over the years and what would you expect is the vessels to become narrowed over quite a long time to the point where the narrowing became critical."
"In the United Kingdom HAVS is considered to exist if, after prolonged exposure to hand-transmitted vibration, involvement of the vascular and/or peripheral nervous system occurs with or without musculoskeletal involvement."
Mr Cross's opinion was entirely consistent with that definition.