Scottish Court of Session Decisions

[1] The pursuer is a turner to trade. He did a five year apprenticeship with an engineering firm called Murray & Paterson starting in 1957. He then worked for British Steel from the early 1960s until 1974, and for General Motors between 1975 and 1981. It appears that General Motors changed its name to IBH Limited in 1981. The pursuer continued to work for them until 1984 when IBH went into receivership and re-emerged as the present defenders. The pursuer then became employed by the defenders in 1984 and has worked with them since.

[2] The defenders are a company incorporated under the Companies Act and are involved in the manufacture and construction of heavy earth-moving equipment. From the start of his apprenticeship up until the time he joined the present defenders in 1984, the pursuer occasionally used vibrating machinery and tools in the course of his work. After 1984 he continued to use vibrating tools on a rather more frequent basis, although he did not claim that for the first ten years or so of this employment that such use was either regular or frequent. In general terms the pursuer was engaged in the production process of metal components for the defenders' earth-moving vehicles. Up until 1995 he worked on a manual lathe. The production process involved metal sheets being cut to the correct size and shape before being transferred to be formed on lathes. Typically the pursuer would obtain a piece of metal, fit this into his lathe with the appropriate settings (which were made by hand), and the automatic operation of the lathe thereafter would convert the metal into the required component. The pursuer would therefore not require to have his hands on the machine while this part of the process was underway. Thereafter the pursuer would remove the finished component from the lathe. At that point certain types of components which the pursuer required to make might have to be de-burred. Three possible occasions for de-burring were mentioned in the evidence. First of all, certain components came out of the lathes with sharp edges which had to be flattened off so that they could be handled safely by other workers further down the production line. Secondly, there were occasionally ragged edges on the finished component which required also to be smoothed off. Thirdly, slag from the burning process might still adhere to the piece of metal and require to be cleaned. However, the pursuer's evidence was plainly to the effect that during this period up until 1995 the amount of de-burring work which he might require to do in the course of his employment was not particularly significant. This may have had something to do with the fact that at that time the defenders had a de-burring section which was exclusively devoted to that particular operation.

[3] Between 1995 and 1997 the pursuer was transferred to work on an automatic lathe known as the ST18, which was set and operated on the basis of a computer programme. In this respect the pursuer's employment consisted of receiving pieces of metal which had been cut as before and setting these into the lathe. The programme was then selected and switched on and the production process completed automatically. In essence the pursuer's claim in the present case is that in the course of working on the ST18 between 1995 and 1997 he had to work on a variety of components. Of these a number, namely accumulator rings, cap ends, tube assemblies, rod ends and retainers required to be de-burred when they came out of the lathe. The principal reason why de-burring was required was to smooth off the sharp edges or flanges of these items. The de-burring tool used throughout the pursuer's employment was a hand-held gun powered by compressed air with a diamond cutting edge, which vibrated when used and thus caused vibrations to pass through the hands of the operator while in use. Throughout the periods of his employment the pursuer also had occasion to use a chuck tightener, which is also a vibrating tool, but which in practice appears to have had relatively little impact on his working procedures. After 1997 the pursuer went back to working on a manual lathe.

[4] Between 1995 and 1997 while the pursuer was working on the ST18 automatic lathe, the defenders operated a four-day twelve hour weekly shift pattern, with a half hour meal break. At other times both before and after it appears that they normally operated a five-day eight hour shift pattern. Probably in about 1995 the pursuer became aware that the tips of his fingers were occasionally white. By 1998 all of his fingers had been affected in this way but especially his ring, middle and index fingers. His right hand is now more affected than his left hand and his symptoms include numbness, tingling and a lack of sensitivity for fine objects in his grip.

[5] It was clear that the components which required de-burring in terms of the pursuer's evidence made up only some of the items which he required to process in the course of his work. There were variable amounts of each component in the batches which had to be fabricated, and each component required a certain period of allocated time to process through the lathe. The working practice in respect of those components which required to be de-burred was that after each completed component was removed from the lathe, it was replaced by the next component to be processed and while that was being processed, the earlier completed component was subjected to de-burring.

[6] The first question therefore that arises in this case is to determine how much time in the course of his work the pursuer spent on de-burring the various components which he required to process. It appeared to be agreed that the crucial period in this respect concerned the pursuer's employment between 1995 and 1997 when he worked on the ST18 automatic lathe on the weekly shift pattern of four twelve hour periods. During that period the pursuer thought that about 40% of the components which he required to process also needed to be de-burred. He also accepted that de-burring was not necessarily a regular occurrence in the course of his work; he might be engaged in de-burring which involved the work programme for an entire day or even a week, and that there might be other times when he might not have to do any de-burring for similar periods of time. The pursuer also indicated that the period of time actually spent on de-burring would normally be about two minutes. It appeared from his evidence that the period of two minutes applied to most of the types of component he was working on which required de-burring, even although the time needed to process the various types of components would take varying periods from four minutes up to fifteen minutes to be processed through the lathe. In his evidence Mr Stangoe was largely supported by Mr Thomson, who currently works on the ST18 and who was a workmate of the pursuer during the period from 1995 to 1997. This particular aspect of Mr Thomson's employment has now substantially disappeared as the defenders apparently now buy in many of their components.

[7] Knowing what to make of the pursuer's evidence was not straightforward. Mr Drury, the consultant surgeon who examined the pursuer, indicated that workers such as the pursuer involved in heavy repetitive skilled work over a period of years had notoriously bad memories for particular dates. It was clear that the pursuer was a conspicuous example of this difficulty. Viewed objectively his evidence at first appeared to be confused on a number of significant issues. He has given a number of different accounts, for example, as to when he first noticed the whiteness in his fingers. In cross examination, which was conducted in a particularly careful and straightforward manner, his accounts varied even more widely. It became very evident that Mr Stangoe regarded the whole process of accounting for his symptoms to others as an uncomfortable and unsettling process, with which he was wholly unfamiliar. In these circumstances it is not surprising that he should produce such diverse accounts. I therefore concluded that a considerable degree of latitude should be afforded in order to find out what really happened in his case.

[8] Mr Stangoe's position was in essence that he had required to use vibrating tools to a significant extent particularly between the years 1995 to 1997. He seems to have fixed in his mind that this was the period which was the source of his problems. Earlier exposure he thought had been significantly less. However during the two years between 1995 and 1997 he was exposed to extreme vibrations. He could spend most of the day involved in de-burring. This however did not involve doing that particular kind of work all the time, but perhaps for periods of up to two minutes and occasionally two and a half minutes regularly and frequently throughout the day. There would however be other days when no de-burring was done. In all he would during this two year period be doing work which required de-burring for about 40% of his time. Finally, the best estimate I can make of the time when Mr Stangoe first noticed the whiteness appearing in his fingers was at the start of the period he worked on the ST18, possibly in 1995 and 1996. In reaching that conclusion I considered his evidence in the witness box that he had first noticed his symptoms some four to six years ago. In cross examination he accepted it might have been up to seven years before. He may have given different accounts to other people, but in the witness box I had a clear impression that he associated the onset of his symptoms with the period of his work on the ST18.

[9] Mr Drury was quite clear that Mr Stangoe had vibrating white finger as a result of working with vibrating tools. Equally I am in no doubt that if the pursuer does have vibrating white finger from working with vibrating tools in the employment of the defenders, then the defenders are liable. In terms of the statutory duty alone, the defenders have a duty to keep a place of work safe from dangers regardless of whether or not they were foreseeable (Mains v Uniroyal Englebert Tyres Ltd 1995 S.L.T.1115) and that duty extends in my view to the Provision and Use of Work Equipment Regulations 1992. In particular, the work equipment provided by the defenders to their employees must be capable of being used by them without impairment to their safety or health (English v North Lanarkshire Council 22 January 1999 unreported per Lord Reed). On the hypothesis that I have mentioned namely that the pursuer's condition was attributable to his work with the defenders then I think there can be no doubt that the defenders have failed in their duties of care. Should the issue of foreseeability have been a live one, then it appears that the defenders provided leaflets at some of their employees' places of work indicating the potential dangers of white finger vibration during the period that the pursuer was working on the ST18. They took no further steps in respect of this matter. This piece of evidence would seem by itself to indicate conclusively that the defenders were fully aware of the problems of this particular condition but took no steps to resolve those difficulties.

[10] The essential difficulty for the pursuer's case, however, lies in the evidence of his expert witness. Mr Andrews, whose report on his investigation into the hand-arm vibration characteristics of a selection of handtools is produced, is clearly a well qualified and authoritative expert in his field. The technical aspects of his report were explored in some detail and his conclusions presented clearly. There is, I think, no need to go into the detail of these technicalities but attention requires to be paid to two central conclusions which he reached. From the pursuer, Mr Andrews received information that the period of time which he normally spent on each process of de-burring was between three and five minutes. Further, Mr Andrews proceeded on the assumption that not only were these de-burring episodes a regular and frequent part of Mr Stangoe's daily work, but that this process was repeated on virtually a daily basis throughout Mr Stangoe's working year. In these circumstances, and from the tables accepted as being applicable to this situation, Mr Andrews indicated that such a level of use as he had understood to apply to the pursuer would produce evidence of white finger vibration within about eight years. In cross examination, he was prepared to accept that if the factual position was that the pursuer had been exposed to such vibration on the terms that he had spoken to in evidence, the appearance of white finger vibration would emerge after thirteen years. In these circumstances, it was clearly impossible for the pursuer's symptoms of white finger vibration which appeared in 1995 or 1996 to have been attributable to his operation of the ST18 automatic lathe between 1995 and 1997. The exposure to vibrating tools which caused the pursuer's symptoms in the mid-90s must have arisen significantly earlier.

[11] In these circumstances I think it is possible to speculate that that is exactly what happened. There can be no other evident explanation. However, while I am happy to give as much latitude as possible to the pursuer's varying accounts of how he remembers the incidents of his working life, it is unfortunately impossible to convert his clear evidence as accepted by his own counsel that he did not find himself exposed to significant vibrating tool use during the period when his condition must have been initially caused into evidence that he was so exposed. In other words, on any view the pursuer himself effectively negates the only possible view of the evidence that could justify the conclusion that the defenders were responsible for his condition. Unfortunately, therefore, in the absence of any evidence from the pursuer that he might have had to use vibrating tools excessively during the period when his condition might have been initiated (and this clearly could possibly have included a time when he was not employed by the defenders), it is impossible to sustain his claim for damages. I therefore repel the pleas for the pursuer, and sustain those for the defenders.

[12] The pursuer's symptoms are currently that he has a blanching of his fingers on both hands periodically and in particular during cold weather. He also experiences tingling sensation in his fingers. He has lost a degree of sensitivity in his touch with the result that he cannot do fine work like rewiring an electric plug, and is unable to play bowls as successfully as before. Various general authorities were referred to in respect of damages. In one case where blanching of one or more fingers with numbness usually occurring only in winter and causing slight interference with home and social activities was thought to be worth £2,000. In Mirfin v Spencer Clark Metal Industries plc reported in Kemp & Kemp on Damages (a case in 1997) a case where the symptoms were far worse than in the present and the degree of disability caused him to give up his employment, an award of £5,000 was made. The present case is clearly somewhere between these two awards and at the lower end. Had the pursuer been entitled to damages I would have made an award of £3,000.