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

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 155

A1959/02

A1954/02

A1960/02

OPINION OF LORD BRACADALE

in the cause

JOHN BURKE

WILLIAM McCAFFERTY

BERNARD GOUGH

Pursuers;

against

GLASGOW CITY COUNCIL

Defenders:

________________

Pursuers: Ivey, QC, Leighton; Thompsons

Defenders: J Mitchell, QC, Pilkington; Edinburgh City Council

18 November 2005

Introduction
[1] These three cases came before me for proof. Although the cases were not conjoined there was agreement that evidence in one would be evidence in the others.

Certain areas of the evidence were common to the cases of all three pursuers. I shall deal with these before turning to the individual cases.

Background common to all three pursuers

1. The developing problem with HAVS among employees of the defenders
[2] In or around 2000, because of concern that there was a potential problem with Hand Arm Vibration Syndrome (HAVS) among particular groups of their employees, the defenders employed BUPA, Occupational Health Specialists, to introduce a scheme of surveillance of employees of the defenders who had worked with vibrating tools. This exercise disclosed that approximately 120 of the defenders' employees were apparently suffering from HAVS Stage 3. This raised a question as to whether these employees could continue to work with vibrating tools. On the basis of the findings of the BUPA screening the defenders divided these employees into three groups as follows. Group 1 comprised those employees who could no longer use vibrating tools. Group 2 comprised those who had an option to return to the tools with enhanced health surveillance. Group 3 comprised those employees whose condition was unclear or whose symptoms had been due to another condition such as Carpal Tunnel Syndrome. In June 2002 each affected employee was invited to attend a meeting with the defenders' management at which they were advised of the proposed re-deployment programme. Trade Union representatives were involved in the process. Prior to the meeting a pro-forma letter from Steve Kelly, the defenders' Corporate Services Manager, was sent to each employee. The terms of the letter depended on the group into which that employee had been placed. The letter to Group 1 employees was in the following terms:

"As you are aware, the Service has implemented a health surveillance programme in respect of HAVS. At a meeting on Monday 10 June 2002 I advised your Trade Union Representative that I would be writing to all employees categorised as Stage 3 and those employees who have been removed from the tools for health reasons associated with vibration. The purpose of the letter is to outline the options available to all employees.

The Council, with the assistance of its Occupational Health Service provider, has further classified those employees who have categorised as having Stage 3 HAVS into 3 groupings. Groups 1, 2 and 3 of which you are in Group 1.

As a Group 1 employee you are no longer able to work with vibrating equipment. You will, therefore, be able to apply for redeployment opportunities (Council wide). If you are unwilling to consider redeployment or you are unsuccessful in securing a new position then you will qualify for ill health retiral under the terms of the Local Government Scheme, provided you are in the Scheme.

I have attached a list of vacancies for your attention. If you wish to be considered for any of these posts please telephone Mrs Ham on 0141 287 9045. If you are unable to speak with her directly please leave a contact number with a member of staff."

The relevant paragraphs in the letter to Group 2 employees were in the following terms:

"As a Group 2 employee you will be allowed, if you so wish, to return to using vibrating tools/machinery in a controlled environment. If you decide to take this course of action then you will require to attend a medical examination one month after re-starting using vibrating equipment and a further assessment some 3-6 months later which will include objective testing. If you do not wish to return to the tools then you will be able to apply for re-deployment opportunities (Council wide). If you are unwilling to consider re-deployment or you are unsuccessful in securing a new position then, subject to a further medical assessment, you may qualify for ill health retiral under the terms of the Local Government Scheme, provided you are in the Scheme. If you do not qualify then the matter of your employment will be dealt with as a capability issue.

Please complete the attached form and return it in the envelope provided indicating whether or not you wish to return to the tools by no later than Wednesday 3 July 2002.

This is obviously a very worrying time for you and the service will do everything possible to assist you during this period. I have instructed Geraldine Ham, Personnel and Resources Manager, to co-ordinate this initiative. However, her first task will be to assist the Group 1 employees and, on completion of this, she will contact you with a view to discussing the options available to you.

Retraining, where appropriate, will be given. The Council's job coaches will also be on hand to provide advice and support in the search redeployment. Financial advice will also be available for those who wish to avail themselves of this service."

The relevant paragraphs in the letter to Group 3 employees were in the following terms:

"As a Group 3 employee you may not be classified as being 'unfit' in the strict sense. In certain cases 'unsuitable' or 'inadvisable' would be a more appropriate diagnosis. Also you may suffer from some other underlying medical condition. However, if you are declared fit you will be given the option of returning to the tools. If you fail to return to the tools then you will be able to apply for redeployment opportunities (Council wide). If you are unwilling to consider redeployment or you are unsuccessful in securing a new position then you will attend a further medical assessment to see if you qualify for ill health retiral under the terms of the Local Government Scheme, provided you are in the Scheme. If you are unsuccessful or fail to accept all of the aforementioned options, then the matter will be dealt with as a capability issue.

This is obviously a very worrying time for you and the service will do everything possible to assist you during this period. I have instructed Geraldine Ham, Personnel and Resources Manager, to co-ordinate this initiative. However, her first task will be to assist those individuals in Group 1 and thereafter Group 2 and on completion of this she will contact you with a view to discussing the options available to you. This however will not preclude you from applying for any of the attached vacancies.

[3] After the meetings a letter containing a résumé of the meeting was sent to each employee involved. The example attached to Geraldine Ham's affidavit appears to have been addressed to gardeners who formed the majority of the affected employees. However, I understood that the letters sent to the blacksmiths were in similar terms. The résumé letter was in the following terms:

"As discussed I now detail below a résumé of our general discussion which hopefully will serve as a reminder for those of you who attended meetings with myself last week and will also be of benefit to those of you who were unable to attend.

Résumé of Discussion

1) Explained the three different groupings and the options available to each of the three groups.

2) Advised those in Group one that they would receive figures to assist making their minds up. Advised them to indicate jobs they wish to apply for and add if applicable at the bottom of their form that this would be dependent on their figures.

3) Advised those in Group two that if they opt to return to the tools they can still apply for jobs. At the end of the first month if they are still able to work with tools then they will have to decide whether to continue as a gardener or opt for redeployment. Group two were advised that during the first month they can, if they are experiencing symptoms, discontinue using vibrating equipment.

4) Advised those in Group three that if they wished to return to the tools they should notify G Ham, who would check with BUPA if this would be advisable and then notify the individual of the decision.

5) Explained that the vacancy list attached with their letter dated 25 June 2002 was for current vacancies within Land Services. Advised that initially it was only a declaration of interest. Land Services will only require one application form for the vacancies included in the first listing. Job descriptions will be issued with the application form. Assistance if required will be given to complete the application forms.

6) Personnel Managers have been made aware of the situation in relation to HAVS. Individuals can opt to send their completed applications to G Ham for onward transmission to the appropriate department. G Ham will make the appropriate Personnel Manager aware of their existence. Again, if required, assistance will be given to complete application forms.

7) Explained that if successful, individuals will receive the rate for the job.

Parks Management have not identified any further posts which could be excluding from using vibrating tools."

Thereafter there were further communications in connection with the options and applications for re-deployment.

[4] Each of the pursuers had been assessed as falling into one or other of the above categories. At the time Mr Burke was a chargehand blacksmith, Mr McCafferty was a blacksmith and Mr Gough was hammerman whose job was to assist the blacksmiths. On 4 July 2002 the three pursuers attended a meeting for blacksmiths who fell into the various categories. After that meeting the blacksmiths' Trade Union representative requested that figures for ill health retiral be sent out to all affected blacksmiths. In the normal course of events this would not have been done until an employee had been accepted for ill health retiral but in the circumstances the personnel department arranged for provisional figures to be issued.

2. The use of vibrating tools by blacksmiths
[5] The duties of a blacksmith involved various forms of metal work. In particular, it included the fabrication and installation of items such as gates, fences, handrails, trip rails, stairways, steel doors and window grilles. Fabrication was generally carried out at the defenders' workshop at Paton Street. The installation work was carried out at the various premises of the defenders all over Glasgow. It would also be necessary to prepare on site for installation by removing existing structures, digging holes in the ground, drilling masonry and so forth.

[6] The hours which each of the pursuers worked were 8am to 4.30pm. There was the opportunity for some, but not much, overtime. Mr Burke estimated that about 90% of the work was outside, where hand held tools were used, and about 10% at the Paton Street workshop using fixed tools and sometimes hand tools. Mr McCafferty said that most of the work was done outside and Mr Gough estimated that he spent 60% of the time outside and 40% inside at Paton Street. They worked outside throughout the year in all weathers.

[7] In the course of their work outside the blacksmiths used a number of types of tools which gave off vibrations. These included pneumatic drills (also known as jackhammers) for digging holes in the ground; portable hand drills and hammer drills for general metal work and drilling masonry; and grinders for cutting through metal or, with a buffing stone, to clean up metal. The manufacturers of the hammer drills were Bosch and Hilti and of hand drills Bosch and Black & Decker. The manufacturers of the grinders were Bosch, Makita, Draper and Black & Decker. The tools used in the workshop included the pedestal grinder and the pedestal drill.

[8] The pursuer John Burke was employed by the defenders between June 1980 and September 2002. He joined the defenders at the age of 16. After completing a four year apprenticeship he qualified as a blacksmith and in due course became a charge-hand blacksmith. The pursuer William McCafferty was employed by the defenders between 1985 and September 2002. After completing his apprenticeship he qualified as a blacksmith in 1989. The pursuer Bernard Gough was employed as a hammerman by the defenders between 1974 and September 2002.

[9] Each of the pursuers gave evidence as to the periods for which they used vibrating tools on a daily basis over the years of their employment. That was on any view a difficult task for a number of reasons. The pursuers were being asked to cast their minds back over a long period of time. In the course of their work they were engaged in a range of tasks using different kinds of tools. I accept that in such circumstances it is difficult to obtain precise information as to the exposure to the use of vibrating tools experienced by each pursuer. I conclude that a considerable degree of latitude should be allowed and I am able, because of the agreement that the evidence in each case became evidence in each of the others, to draw inferences from the evidence of all three pursuers taken together. In any event the defenders themselves must have some knowledge of the daily usage of tools by their employees over the years.

[10] Mr Burke said that exposure to the use of tools varied with the different jobs. When erecting fencing a blacksmith would require to dig holes to take the fence posts. This would involve the use of a use a pneumatic drill, which might be used for two or three hours in the course of a day. A grinder would also be used when erecting metal fencing and again this would be used for perhaps two to three hours a day. The fitting of window guards involved drilling into masonry in order to fix the guards to the wall. For this purpose a hammer drill might be used for three to four hours a day. The erection of trip rails, which were constructed to stand about a foot off the ground by grass verges, involved the use of a pneumatic drill to dig holes in the ground in order to put the legs in, then cutting lengths of metal tube rail and attaching the tube rail to the top of the legs. Typically such work would involve the use of the grinder and the digger for two to three hours. The erection of handrails and stairways were also typical jobs involving the use of vibrating tools. Mr Burke thought that two to three hours a day was a fair average for outside tool use. Sometimes it would be less than three hours and sometimes more than four.

[11] Mr McCafferty said that the use of the hand-held tools varied. It could sometimes be half an hour one day and three to four hours the next day. It depended on the type of job and the length of the job. He might use the pneumatic drill for half a shift. Mr Gough estimated two to three hours per day use of the tools. He could use different tools in the course of one day.

[12] From the evidence of the pursuers I find it proved that the majority of the working time of each pursuer was spent outside engaged in tasks which required the use of hand held tools. I find it proved that each of the pursuers when working on outside jobs used the tools for an average of two to three hours on a daily basis. That use sometimes involved the use of one tool and sometimes the use of tools in combination.

[13] Inside the Paton Street workshop most, although not all, of the tools were static tools. These included the pedestal grinder and the pedestal drill. In the course of the fabrication process metal was held against the wheels of the grinder. When using the pedestal drill the operator would pull the handle of the tool down on to the metal which was on a small table. It would be necessary to use a hand to steady the piece of metal. These static tools did produce some vibration.

3. Knowledge of defenders and absence of steps to reduce risk
[14] In each case a Notice to Admit in terms of Rule of Court 28A.1was served on the defenders. While the second paragraph was in each case the subject of a Notice of Non-admission, the first paragraph was not. In each case the first paragraph is in the following terms:

"The defenders knew or ought to have known from at least 1976 that excessive exposure to vibration of employees required to use handheld powered vibratory tools could lead to the development of Vibration White finger."

[15] The evidence demonstrated that there were various publications which made clear the preventative measures which were recognised in the industry. These included the "British Standard Guide to Measurement and Evaluation of Human Exposure to Vibration Transmitted by Hand" published in 1987 (Production 6/26). The preventative measures included: measurement of vibration; medical surveillance; advice as to the risks of exposure to vibration; adequate training in proper use of equipment; avoiding continuous exposure over long periods; the wearing of suitable gloves; and maintaining a warm body core temperature.

[16] Mr Burke said that during the period between 1980 and 2000 he did not receive any advice about the safe use of vibrating tools. He was not aware of anyone coming to take measurements of vibration. He had no medical examination before the BUPA screening in 2000. He was given no instructions on how to use the tools in such a way as to minimise vibration. He received no instructions on the importance of keeping the hands warm or wearing gloves. There were no visits on site or to Paton Street in which the use of tools was monitored. There was no advice about breaking up the use of tools in the course of the day. It was up to the individual blacksmith to decide how long and how often the tool was used. He did not recall having received a copy of the employees handbook, including a passage on HAVS, or the 1998 pamphlet "Health Risks from Hand-Arm Vibration" (Production 6/7). He did recall seeing a pamphlet similar to that on the wall in the canteen at Paton Street. No one had pointed it out or explained why it was there.

[17] Mr McCafferty said that he had never been given any advice about vibration injury and the risk from using tools. He had some recollection of someone measuring the vibration on tools but could not say when that was. He had received no instruction on how to handle the tools with respect to vibration or any demonstration for that purpose. He had received no instructions about the importance of keeping the hands warm or the use of gloves. There was no advice about breaking up tasks. No one had brought to his attention the risks of HAVS.

[18] Mr Gough said that he had had no advice how to use the tools with respect to vibration. No one had come to monitor use of tools and they were not told to restrict the time over which tools were used. He was not given any instructions to keep warm or wear gloves. He was not given any instructions to break up the use of the tools. They were left to use the tools as they felt fit.

[19] I accepted the evidence of each of the pursuers on these issues as credible and reliable.

[20] Geraldine Ham was aware that it was only after 1996 that Steve Kelly, the defenders' Corporate Services Manager alerted management as to the possible problem of HAVS for the future. The leaflet (Production 6/7) to alert staff to the possible problems of HAVS and which was placed on the notice board was dated 1998.

[21] I am satisfied from the evidence that, although the defenders were or ought to have been aware of the risks to employees of contracting HAVS from excessive use of vibrating hand held tools, they did not take any steps to minimise the risks until 1998 when the leaflet was issued. At no time was there any control over the level of use of the tools and none of the recognised practical steps to reduce the risks was taken. I find this proved in relation to each of the pursuers. Accordingly, I conclude that if a pursuer in these cases can demonstrate (a) that he did contract HAVS; and (b) that he did so as a result of exposure over a period of years to a daily dose of vibration which was in excess of the recognised safe daily dose, he would succeed in his common law case and in his statutory cases under regulations 8 and 9 of the Provision and Use of Work Equipment Regulations 1992. It is convenient to address the question of excessive exposure first.

4. Excessive exposure: the evidence of Mr Andrews
[22] The recommended daily dose of vibration from tools over the material period was 2.8 metres per second per second (2.8m/s²). In support of the contention that the pursuers' exposure to vibrating tools over the years was in excess of the daily dosage the pursuer led the evidence of Mr Clive John Andrews.

[23] The first matter to be addressed in relation to Mr Andrews is whether he can be accepted as an expert witness. Mr Mitchell argued that while Mr Andrews might be an expert in ergonomics he was not a competent expert witness on matters relating to vibration white finger. The admissibility of expert evidence is dealt with in Dickson, A Treatise on the Law of Evidence in Scotland (3^rd Edition 1887) at paragraphs 397 et seq:

"Another exception to the general rule against examining witnesses on matters of opinion occurs wherever the issue involves scientific knowledge, or acquaintance with the rules of any trade, manufacture, or business with which men of ordinary intelligence are not likely to be familiar ... A foundation for such an examination must always be laid by ascertaining whether the witness is a person of skill or an 'expert' (the English term), under which is included those who have a theoretical acquaintance with the subject, as well as men who speak from practical knowledge."

[24] It seems to me that the measurement of acceleration in vibrating tools is a technical field. Further, the analysis of data obtained from measurement of acceleration and the calculation of the likely usage of certain types of tools which would be expected to lead to exposure beyond a recognised safe level were all matters that were suitable to be the subject of expert evidence. Mr Andrews had considerable experience in the field. He had been engaged in measuring acceleration for years. He had the necessary theoretical knowledge to make calculations and was able to draw on studies carried out in this field. There are certainly criticisms that can be made of his work. His reports were diffuse and difficult to follow. He made a number of arithmetical errors which required replacement of pages of his reports. However, it is important to bear in mind when considering the evidence of an expert witness that such evidence is a factor to be taken into account along with the other evidence in the case. In Davie v The Magistrates of Edinburgh 1953 SC 34 at p.40 Lord President Cooper observed in relation to expert witnesses:

"Their duty is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions , so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence if intelligible, convincing, and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the judge or jury."

I do find that the evidence of Mr Andrews assists me in considering whether the exposure to vibration experienced by the pursuer from the use over years of particular types of vibrating tools was such as to exceed the recognised safe daily dose. He was able to explain the procedure of measuring vibration given off by hand held tools and had extensive experience in these procedures. He was able to use his own experience together with published studies to advance a body of evidence indicating the levels of vibration given off by different types of hand held tools. He was able to give evidence which, when taken along with the other evidence in the case, enabled me to form a view as to whether the types of tools used by the pursuers over the periods described by them would have been likely to give rise to exposure to vibration in excess of the recognised safe daily dose. In addition, Mr Andrews was able under reference to published studies to identify latency periods for the development of HAVS for different percentiles of the population based on the susceptibility of individuals to contract the syndrome. Accordingly, I came to the conclusion that I was able to accept Mr Andrews as an expert witness.

[25] Each of the pursuers had completed a questionnaire for Mr Andrews in which the pursuer had supplied information as to the periods for which on a daily basis he used vibrating tools and the type of tools used. However, Mr Ivey indicated that he did not rely on any hearsay value from the examples of usage given by the pursuers to Mr Andrews. What I can accept from the evidence of Mr Andrews is that the tools which each pursuer, in his evidence, said that he used on a daily basis over a period of years were of types which gave off significant vibrations, to the extent that the daily dose of 2.8 m/s² would be likely to be exceeded within a relatively short period of use. This is helpful as a starting point in considering whether I am satisfied that a particular pursuer was exposed to excessive vibration. It is indicative that the level of usage described each of the pursuers in evidence would be likely to exceed the limit. In circumstances where, as I have already noted, it is impossible to have precision with respect to the particular tools being used for what jobs over what periods of times, it seems to me that the figures presented by Mr Andrews from a number of sources tend to indicate that the levels of exposure spoken to by each of the pursuers would exceed the level recommended in the industry.

[26] The second exercise carried out by Mr Andrews was to illustrate by means of hypothetical examples in which a number of different tools were used in combination what the likely exposure to vibration over an eight hour shift would be. In addition, he incorporated figures giving the latency period for the development of HAVS for different percentiles of the population exposed to levels of vibration from such use.

[27] It must be recognised that there are variables. These include the make, design and age of the tool, the level of maintenance, the amount of usage and the location on the equipment where measurements had been taken. I also bear in mind that actions raised by the pursuers are directed to the use of hand held tools and not the use of the static tools in the workshop at Paton Street.

[28] Taking these variables into account and having regard to the evidence as a whole, I am satisfied that the level of use of vibrating hand held tools, both individually and in combination, as described by the pursuers, would have exposed each of the pursuers over a number of years to a daily dose well in excess of the recognised safe dose. Accordingly, if in relation to a particular pursuer I can be satisfied that he did develop HAVS I am prepared to rely on the evidence of Mr Andrews along with the rest of the evidence to come to a conclusion as to whether the HAVS which that pursuer developed was as a result of that exposure.

[29] It is now convenient to deal with the case of each pursuer separately. There is one further matter which is suitable to be considered in relation to all three pursuers together and that is the question of apportionment. I shall return to this issue later.

The case of John Burke

The medical condition of John Burke
[30] John Burke is 41 years of age having been born on 30 May 1964. He is married with one child and is presently employed as a night porter with the Salvation Army in Glasgow. He has had that job since June 2003.

[31] Over the period using the tools Mr Burke had noticed a lot of pain and pins and needles in his hands and arms. There was also discolouring in his fingers, which had gone white. This applied mostly to the whole fingers and the thumb. These symptoms were particularly noticeable when using the tools and were worse in the winter. In evidence in chief he said that he first became aware of the symptoms around 1998/99. In cross-examination his attention was drawn to Production 6/1, a medical report by Dr R P Teenan dated 2 August 2001 in which it was noted that Mr Burke had become aware of numbness and tingling in his arms about six years earlier which would be 1995. He first noticed a bit of pain and tingling in the fingers, but did not go to the doctor at that time.

[32] Mr Burke's present symptoms were that he still got pain and pins and needles and tingling in his hands and also numbness. The pain in the hands is not present at all times; it is periodic. There was also discolouration. His hands became discoloured in water or when he was carrying things, for example, doing the dishes or washing the car. His hands would go pure white, with all the fingers and the thumbs. He feels pain when he does things such as gardening. He cannot carry things because he feels as if he does not have a good grip when carrying. He can wash the car, but feels pain in his hands while doing it, and afterwards. His gardening is affected, as are small do-it-yourself jobs. He has stopped doing the garden or washing the car. He now pays £4 to have the car washed and his nephew cuts the grass for him. His wife does the small bits and pieces about the house. He washes the car once or twice a month and the grass is cut once or twice a month.

[33] Production 6/10 comprises the BUPA occupational health records for Mr Burke. Page 4 is a Health Surveillance Report dated 22 February 2002. Mr Burke was assessed on the Stockholm Scale as zero for the vascular element and two for the sensoneural element (0V 2Sn) on the left hand and 0V 3Sn on the right hand. He was declared "unfit to work with vibration tools as before". At that time he continued to work, but without using vibrating tools. However, after the meeting with the management of the defenders in June 2002 which Mr Burke attended along with the other blacksmiths, Mr Burke was sent the letter advising him that he had been allocated to group 2 and could therefore continue to work with vibrating tools if he wished, subject to monitoring. I shall return to this evidence in the context of the calculation of loss.

[34] Mr John Drury, Consultant Vascular Surgeon, who gave evidence for each of the pursuers, examined Mr Burke on 12 July 2004. His report on Mr Burke is Production 6/19. Mr Drury explained that HAVS was produced as a result of exposure over a period of time to the use of vibrating tools. He explained that there are two aspects to HAVS. The sensoneural relates to the tingling and pain in the fingers and the vascular which relates to the colour change to white in the finger and hands. He noted that Mr Burke gave a reasonable description of vasospastic blanching down to the proximal interphalangeal joint of each finger on both hands. There was a definite interface between normal and abnormal colour. A typical white attack would last about ten minutes and Mr Burke experienced re-warming tingling. Mr Drury carried out various tests. Mr Drury noted a discrepancy between what Mr Burke told him about his history of vasospastic blanching and the records in the occupational health records which seemed to suggest that he had not complained of blanching. Mr Drury assessed him as having Hand Arm Vibration Syndrome and assessed him on the Stockholm Scale as having for the vascular component 2V on both hands and for the sensoneural component 2Sn on each hand. This was in contrast with the BUPA classification which had been 0 vascular on each hand 2Sn on the left and 3Sn on the right. Mr Drury concluded that he thought that the symptoms were probably reasonably described, but exaggerated by the BUPA test results. The grading of 2V indicated that he suffered blanching down to the middle joint of the finger and this could be regarded as moderate. 2Sn indicated a degree of difficulty in touch and tactile discernment. Somebody in this position would have minor problems with manual dexterity. 3Sn is a higher grade, which indicates a lack of touch, poor tactile response and poor manual dexterity. Somebody in this category would have difficulty handling small objects. He considered that Mr Burke would have been fit to return to using vibrating tools within limits and with regular reviews.

[35] Mr Burke was also examined by Mr John Pollock on behalf of the defenders. Mr Pollock concluded that when he examined him Mr Burke had classical vibration white finger syndrome typical of the HAVS disorder, on the Taylor Pelmear scale he was stage 2 and on the Stockholm classification he is stage 2V in both hands and stage 2Sn in both hands as far as sensoneural function is concerned. Mr Pollock also took the view that the BUPA grading of 3Sn was too high for someone with the symptoms and signs shown by Mr Burke. Mr Pollock produced a supplementary report in which he said that he saw no reason why Mr Burke could not carry out gardening duties, car washing and window cleaning duties.

Conclusion on liability in the case of John Burke

[36] From the evidence which I have considered so far in relation to Mr Burke I am satisfied that the following matters have been proved. Mr Burke contracted HAVS. He did so as a result of prolonged use over a period of years of hand held tools which gave off vibrations. Throughout that period he was in the employment of the defenders. His exposure to vibration through the use of such tools throughout the period exceeded the recognised daily dose. The defenders knew or ought to have known of the risks associated with vibrating tools and in particular the risk of contracting HAVS. They failed to take steps to control the use of the tools or to take any of the recognised precautions to minimise the risks. From that evidence I am satisfied that Mr Burke has made out a case against the defenders both at common law and under statute and I turn to the question of loss.

Loss in the case of John Burke

Solatium
[37] Mr Drury diagnosed Mr Burke as having Hand Arm Vibration Syndrome and assessed him on the Stockholm scale as having for the vascular component 2V on both hands and for the sensoneural component 2Sn on each hand. This was supported by Mr Pollock and I conclude that the absence of a record of a vascular component in the BUPA findings is one of a number of unreliable features of these records. 2Sn indicated a degree of difficulty in touch and tactile discernment. Somebody in this position would have minor problems with manual dexterity.

[38] Mr Burke stated that he continued to experience both sensoneural and vascular symptoms. I have outlined the difficulties which he continues to have with carrying, car washing and gardening.

[39] I was referred to two cases cited in Kemp & Kemp The Quantum of Damages: Lamb v British Coal Corp. (G12-005) and Stokoe v British Coal Corp (G12-004) and to the Guidelines for the Assessment of General Damages in Personal Injuries Cases compiled for the Judicial Studies Board. Mr Leighton, junior counsel for the pursuers, contended that Mr Burke fell within the moderate/serious ranges in the Guidelines while Mr Mitchell contended that the case fell within the moderate range.

[40] Having regard to the medical evidence and to Mr Burke's description of the extent to which he has been affected I conclude that his case should be seen as being at the top of the moderate band and that the appropriate figure for solatium in his case is £9000. There was no dispute that one third should be attributable to the past with interest at 4% per year (£400).

Services
[41] Under the head of services Mr Leighton contended for a lump sum of £3000 while Mr Mitchell suggested £500. Mr Pollock had opined that Mr Burke could continue with car washing. I consider, as was recognised by Mr Ivey, that the element of services in Mr Burke's loss is not extensive. Taking a broad axe approach I award a lump sum of £1000.

Wage loss
[42] The calculation of wage loss was a controversial issue in the case of each of the pursuers. Mr Burke had refused to return to working with vibrating tools and had declined to apply for re-deployment. Instead, he had successfully applied for ill health retirement. Both sides were agreed that the calculation of wage loss depended on the reasonableness of the decisions: (a) not to return to working with vibrating tools; and (b) not to apply for re-deployment. I am satisfied that this is the correct way to approach the question of wage loss and I explore the reasonableness of Mr Burke's decisions.

[43] It is clear from the affidavit supplied by Geraldine Ham and the evidence of Patricia Brand, who was the assistant personnel and resources manager, that, in the wake of the realisation by the defenders that they had a significant problem with HAVS among the workforce who had worked with vibrating tools, the management of the defenders took steps to deal with the problem. I have already set out the procedures which they adopted with respect to medical screening, meeting with employees, and placing employees into categories. Thereafter, the defenders established a structure for re-deployment of the affected employees to other jobs within the Council. Ultimately, all those who wished to obtain another job were successful.

[44] As with any operation of this kind there were difficulties. When examined in retrospect the screening operation carried out by BUPA plainly had defects. In some cases employees were put into one of the categories and subsequently transferred to another. It was recognised in the letters sent by the management that this was a very worrying time for the affected employees.

[45] Although it appears that Mr Burke signed Production 7/6 dated 11 July 2002 indicating that he did wish to return to vibrating tools, he did in fact choose not to go back to the tools. He said that he was concerned about going back to the tools because he had been told by the BUPA doctor not to work with vibrating tools. The BUPA Occupational Health Records (Production 6/10) confirm that he was declared unfit to work with vibration tools. He asked Geraldine Ham if he could see again the doctor who had said that he should not use tools and she said that he could not do so. In her affidavit Geraldine Ham confirmed that such a conversation did take place. In these circumstances Mr Burke felt that he would be better to proceed on what the doctor had said to him. In these circumstances it seems to me that Mr Burke acted reasonably in being cautious about going back to the tools when he had been specifically told previously by the doctor that he should not do so.

[46] On 20 August 2002 Mr Burke was sent Production 7/13, which advised him that the figures for ill-health retiral were now available. Production 7/14 was a mandate in which Mr Burke indicated that he did not wish to be considered for any of the advertised posts and wished to take up the option of ill-health retirement. Production 7/15 is a handwritten note signed M Walsh, dated 12 September 2002 recording that Mr Burke wished to accept the offer of ill-health retiral, was not wishing to be considered for any other post in the Council and did not wish to return to the tools in a controlled environment. He accepted 13 September 2002 as a termination date. Production 6/10, page 2, is a certificate of permanent ill-health dated 13 September 2002, certifying that Mr Burke was suffering from Hand Arm Vibration Syndrome.

[47] Mr Burke had been sent lists of jobs available within the Council. He was sent Production 7/4, the "City Insider" which contained a number of jobs, but none of them would have suited him. He was also sent Production 7/16, giving information on current vacancies in certain jobs, but none of these interested him because they would involve a drop in wages. He accepted in cross-examination that he was not interested in other jobs apart from a job as a blacksmith charge-hand.

[48] It is plain from this evidence that Mr Burke was simply not interested in re-deployment to another job in the defenders' employment. He considered that the jobs offered were not commensurate in status and remuneration with his position as a charge hand blacksmith. It was my impression that he gave very little consideration to the option of re-deployment.

[49] While, of course, the option of applying for ill health retirement was open to him, it seems to me that it would have been reasonable in the circumstances to have pursued the option of re-deployment and that Mr Burke acted unreasonably in failing to do so. Accordingly, the wage loss due to the negligence of the defenders should be calculated on the basis of the difference between what he would have earned had he remained working with vibrating tools and what he would have earned had he opted for re-deployment.

[50] Mr Leighton produced sets of figures which would be applicable depending on the view I took of the reasonableness of Mr Burke's choices of option. These figures were not disputed by Mr Mitchell but there was an issue as to what multiplier should be applied for future loss. Under reference to the Ogden Tables Mr Leighton contended for a multiplier of 14.34. Mr Mitchell submitted that I should have regard to the question of how long Mr Burke might have continued to work in what Mr Mitchell described as "a heavy outdoor job". Mr Mitchell suggested that taking a broad axe approach I should calculate on the basis of one-half of the full multiplier. There was, however, no evidence before me to suggest that Mr Burke could not have continued working until retirement at aged 61 years when he would have completed 45 years service. There was no evidence to suggest that as a rule blacksmiths were not able to complete their full service because they were engaged in heavy outdoor work. Accordingly, I do not accept that I should reduce the multiplier in the manner suggested and I conclude that there is no reason to depart from the adjusted multiplier derived from the Ogden Tables.

[51] Wage loss is calculated as follows:

Gross weekly rate for charge hand blacksmith:	£361.15
Highest weekly rate for re-deployment jobs	£337.62
Average weekly difference	£23.53
Multiplied by 52 to give annual difference (gross)	£1,223.56
Less 30% for tax and deductions	£367.07
Loss per annum	£856.49
Loss per month	£71.37
Past loss
Past loss from September 2002 to October 2005 (37 months)	£2640.69
4% interest per annum	£105.63
Interest from September 2002 to October 2005 (37 months)	£325.68
Total Past loss	£2966.38
Future Loss
Multiplier	14.34
Future loss (£856.49 x 14.34)	£11,990.86

Summary of loss (Mr Burke)
[52] The following is a summary of the award I make in favour of Mr Burke:

Solatium (including interest for past of £400)	£9400
Services	£1000
Past wage loss (including interest of £325.68)	£2966.38
Future wage loss	£11,990.86
Total	£25,357.24

The case of William McCafferty

The medical condition of Mr McCafferty
[53] William McCafferty is aged 37 years, having been born on 21 October 1968. He is married with two children and is presently employed as a warehouse operator in the Glasgow Pram Centre where he started work in April 2003. Between 1985 and September 2002 he was employed by the defenders as a blacksmith. After completing his apprenticeship he qualified as a blacksmith in 1989.

[54] When using vibrating tools he developed a pins and needles sensation in the hands. By 2001 he was suffering constant pins and needles and tingling in the fingertips. He also found it harder to let go of a tool. He suffered a marbling effect. His fingers did not go totally white, but the fingers and thumbs up the length of the fingers showed spots.

[55] Production 6/51 comprises Mr McCafferty's Occupational Health Records. At page Z32 it was noted that at an examination in 1995 in connection with another matter he was complaining of tingling and other symptoms after using tools. He remained on tools until 2001 when he had a BUPA examination. After the BUPA examination he was told not to work with tools. Page Z10 is a Health Surveillance Report dated 2 May 2001 in which Mr McCafferty was recorded as being 0V 3Sn on the left hand and 0V 3Sn on the right hand and was declared unfit to handle vibrating tools. Page Z5 records that he was seen again on 21 May 2002 and again declared unfit to work with tools. Page Z7 is the Health Surveillance Report which records that on 14 June 2002 he was assessed as being 0V 2Sn on the left hand and 0V 2Sn on the right hand. It is recorded that although there had been slight improvement in staging since he had come off vibrating tools he remained unfit to work with vibration tools due to an underlying medical condition.

[56] At the time of the proof he was still suffering pins and needles in both hands, mostly in the fingers. He did not have any other symptoms. He avoids cutting the grass so as not to do any more damage to his hands. A friend cuts the grass for him. He does not do much decorating but, for example, painting the ceiling would be a problem. He would get cramping after a time.

[57] Mr Drury first examined Mr McCafferty in August 2001. Mr McCafferty gave a history to Mr Drury that he became aware of symptoms in his fingers around 1993 or 1994. All the fingers, but not the thumbs, were affected and the left hand more severely. He was aware of tingling and numbness in the fingers and also stiffness and cramping sensation. He gave no history of vasospastic blanching and did not describe any colour change. At that time, in 2001, Mr Drury concluded that he could not be stage 3 because there was no vasospastic blanching. Mr Drury found a positive Phalen's test which was indicative of the beginnings of Carpal Tunnel Syndrome. However, there were no other objective features of Carpal Tunnel Syndrome. There was no lack of sensation in the hand in areas supplied by the median nerve. A positive result in the Phalen's test could arise in situations other than Carpal Tunnel Syndrome. A positive result in the Phalen's test was of more significant if it was present along with the other symptoms of Carpal Tunnel Syndrome. Mr McCafferty did not at that time describe the marbling effect that he described in evidence and to Mr Pollock. While Mr Drury was familiar with the description of such a symptom, it did not merit inclusion in the Stockholm scale which required pure whiteness. He was unable to say whether the mottling could be as a result of exposure to vibration. In 2001Mr Drury concluded that Mr Burke did have Hand Arm Vibration Syndrome and would require to be investigated in case he was developing Carpal Tunnel Syndrome. He thought that the sensoneural symptoms were related to using the tools.

[58] Mr McCafferty was seen again by Mr Drury in April 2005. On this occasion Mr McCafferty verified the previous symptoms stated in August 2001 and complained that now he had constant tingling at the tip of all his fingers but not the thumbs. The left hand was more severely affected. In addition, exposure to cold caused pain in his fingers. With respect to the BUPA records Mr Drury opined that it was very rare to be categorised at 3Sn and to have any improvement at all. While there could be some improvement, it usually took longer than twelve months, and often several years, before there was any improvement. Mr Drury concluded that Mr McCafferty had no major sensoneural upset and did not have any vascular symptoms. If necessary, he could use vibrating tools. Mr McCafferty had also suggested that he could perform tasks which would not be possible if he had severe sensoneural upset. In these circumstances Mr Drury found it difficult to explain such a major improvement in the symptoms as seemed to be demonstrated by the two sets of BUPA tests. He concluded that Mr McCafferty had mild Hand Arm Vibration Syndrome. He classified him as being 0V and 1Sn on each hand.

[59] Mr McCafferty was examined by Mr Pollock on 8 June 2004. He told Mr Pollock that symptoms began in 1996 and that his hands were getting generally better since he had ceased being exposed to vibration in 2001. His main complaint in 2004 was of some discomfort in his forearms. Mr Pollock noted that he had never described any classical vasospastic pallor but did describe a marbling like appearance. Since 1996 onwards he had been aware of a pins and needles sensation affecting both hands. There had been a slow increase in severity of these symptoms with time and it was particularly provoked by the use of hand-held grinders. He also had symptoms suggestive of cramp. He was able to handle small buttons and tie his shoelaces. Mr Pollock found that the motor, reflex and sensory function of the upper limbs was normal. In particular, fine touch sensation was normal and the two-point discrimination test was also normal. There were no signs to suggest Carpal Tunnel Syndrome; the Tinel's test and the Phalen's manoeuvre on both sides were negative. Mr Pollock graded him as being no more than grade 1Sn in both hands on the Stockholm classification. In May 2001 BUPA had classified him as 0V 3Sn in both hands. Mr Pollock noted that in May 2002 BUPA had graded him as 0V and 2Sn (late) on both hands. While that could be explained by an improvement due to the cessation of exposure to vibrating tools for the previous one year, Mr Pollock considered that this would be a very remarkable improvement in sensoneural function in such a relatively short period of time. Mr Pollock concluded that the BUPA tests were wrong. He did not think that Mr McCafferty could have been worse than 1Sn. He considered that he had not been able to prove that Mr McCafferty had HAVS disorder. He did not find any signs of Carpal Tunnel Syndrome.

Conclusion on liability in the case of William McCafferty
[60] From the evidence which I have considered so far in relation to Mr McCafferty I am satisfied that the following matters have been proved. Mr McCafferty contracted mild HAVS. I reject the assertion made by Mr Mitchell that Mr McCafferty was suffering from Carpal Tunnel Syndrome. The early tentative indications that he might be suffering from that syndrome were not borne out, and were discounted by the later tests. I am satisfied that Mr McCafferty contracted mild HAVS as a result of prolonged use over a period of years of hand held tools which gave off vibrations. Throughout that period he was in the employment of the defenders. His exposure to vibration through the use of such tools throughout the period exceeded the recognised daily dose. The defenders knew or ought to have known of the risks associated with vibrating tools and in particular the risk of contracting HAVS. They failed to take steps to control the use of the tools or to take any of the recognised precautions to minimise the risks. From that evidence I am satisfied that Mr Burke has made out a case against the defenders both at common law and under statute and I turn to the question of loss.

Loss in the case of William McCafferty

Solatium
[61] By 2001 Mr McCafferty was suffering constant pins and needles and tingling in the fingertips. He also found it harder to let go of a tool. At the time of the proof he was still suffering pins and needles in both hands, mostly in the fingers. He did not have any other symptoms.

[62] As noted above, Mr Drury concluded that Mr McCafferty had mild Hand Arm Vibration Syndrome. He classified him as being 0V and 1Sn on each hand. Mr Pollock graded him as being no more than grade 1Sn in both hands on the Stockholm classification.

[63] Mr Mitchell did not dispute the figure for solatium advanced by Mr Leighton of £2000 with one half attributed to the past with interest at 4% per annum (giving a figure for interest of £160). This is consistent with the minor nature of Mr McCafferty's condition and I consider that that is the appropriate figure.

Services
[64] There is no claim for services in Mr McCafferty's case.

Wage loss
[65] Mr McCafferty was initially put into group 1. Subsequently he was written to on 26 June 2002 advising him that he was now allocated to group 2 (Production 7/18). Later he was re-assigned to group 1 (Production 7/23). He was given figures for ill health retiral. His pension was to be £4,979.64 and his grant £14,938.91 (Production 6/58).

[66] He received notification of jobs which might be available within the Glasgow City Council. He understood the option to be that he would get ill-health retiral or be invited to apply for jobs if he wished. He said that he did consider the option of another job, but did not make any applications because the wages were not comparable with the wages of a blacksmith and he had no driving licence. He also felt that he had trained to be a blacksmith and had been told that the jobs that were available were better suited to the employees who worked in the parks (gardeners). He was also impressed by the figures being offered for ill-health retiral. On 13 September 2002 he accepted ill-health retiral (Productions 7/26 and 7/27). After he retired he applied for a number of jobs, but was unsuccessful in obtaining these (Productions 6/42-49). He got the job with the Pram Centre in April 2003. He had no other employment in the intervening period.

[67] In her affidavit Geraldine Ham stated that it was true to say that there were posts more suited to gardeners on the lists of available posts but that was because these were jobs available in the Parks Department. The Gardeners' posts comprised approximately 20 out of the initial list of 97 jobs. She had specifically pointed out to the employees in attendance at the Blacksmiths' meeting that they were probably more suited to the jobs for road workers which attracted salaries more compatible with their own.

[68] As I did in the case of Mr Burke I conclude from the evidence that Mr McCafferty was not interested in re-deployment to another job in the defenders' employment. He, too, considered that the jobs offered were not commensurate in status and remuneration with his position as a charge hand blacksmith.

[69] While, of course, the option of applying for ill health retirement was open to him just as it was to Mr Burke, it seems to me that it would have been reasonable in the circumstances to have pursued the option of re-deployment and that Mr McCafferty acted unreasonably in failing to do so. Accordingly, the wage loss due to the negligence of the defenders should be calculated on the basis of the difference between what he would have earned had he remained working with vibrating tools and what he would have earned had he opted for re-deployment.

[70] For the same reasons which I have given in the case of Mr Burke I am not prepared to depart from the adjusted multiplier derived from the Ogden tables. In Mr McCafferty's case this is 16.46 (rounded to 16). I am prepared to proceed on the alternative wage loss calculation advanced by Mr Leighton which is as follows:

Gross weekly rate for blacksmith	£355.30
Highest weekly rate for re-deployment jobs	£337.62
Average weekly difference	£17.68
Multiplied by 52 to give annual difference (gross)	£919.36
Less 30% for tax and deductions	£275.81
Loss per annum of	£643.55
Loss per month of	£53.63
Past loss Past loss from September 2002 to October 2005 (37 months)	£1716.16
4% interest per annum	£68.65
Interest Sept 2002 to October 2005 (37 months)	£183.06
Total Past Loss (including interest)	£1,899.22
Future Loss Adjusted Multiplier 16 16 x £643.55	£10,296.80

[71] The following is a summary of the award I make in favour of Mr McCafferty:

Solatium (including interest for past of £160)	£2,160
Past wage loss (including interest of £183.06)	£1,899.22
Future wage loss	£10,296.80
Total	£14,356.02

The case of Bernard Gough

The medical condition of Bernard Gough
[72] Bernard Gough is aged 53 having been born on 18 April 1952. He is married and has been employed the past two years as a self-employed fencer. Between 1974 and September 2002 he was employed as a hammerman with the defenders. Prior to that he worked with British Steel having been a butcher boy after leaving school in 1967. The job of a hammerman was to assist the blacksmiths. That involved using vibrating tools.

[73] He first became aware of the symptoms in the mid-1990s. His hands were sore and he had severe pins and needles. His hands cramped, particularly the right one, when holding a tool. His fingers went whitish and mottled in both hands. The cramping affected the last three fingers of the right hand and was not so bad on the left hand. The tightening and pain affected the fingers down to middle range of knuckles. Both his wrists were sore. It was worse in cold mornings.

[74] Mr Gough said that he still got pins and needles and blanching. He had difficulty at present in doing up buttons, handling change and tying laces. He felt clumsy with his hands lifting smaller things. While he did say that he did not do much about the house in any event, he could not do decorating and had to get someone else to do that.

[75] Production 6/61 comprised his occupational health records. Page 18 shows that on 6 August 2001 he was diagnosed as suffering from HAVS with 3V 2Sn early on the left hand and 3V 0Sn on the right hand. He was declared unfit to use vibrating tools. He did not use vibrating tools thereafter. Page 4 related to an examination on 5 July 2002 when Dr Willox expressed the view that he thought that Mr Gough should now be in group 1 and therefore unfit to use vibrating tools at all.

[76] Mr Drury saw Mr Gough first on 18 January 2002 (Production 6/60). At that time Mr Gough said that all the fingers and both thumbs were affected and the left hand more severely. This was in contrast with the evidence of Mr Gough that his right hand was more severely affected. At first Mr Gough had been aware of the left middle, ring and small fingers locking and cramping after using the tools. He would frequently have to pull them straight. He was also aware of pain around the left elbow and described discomfort around about the insertion of biceps tendon. Mr Drury assumed that this had been related to using tools which involved repetitive flexion of the elbow. Mr Gough was aware of tingling and numbness in the fingers and when his fingers were particularly cold, especially in the winter, he was aware that there was a degree of whiteness. The whiteness was only obvious on the dorsum of the fingers and there was no intermittency about it. When asked specifically about the front aspect of his fingers he was not particularly sure if these turned white. Mr Drury found abnormal two point discrimination at 6mm separation, which he described as objective evidence of some nerve damage in the fingers. Mr Drury concluded

"Overall, I believe this man has Hand Arm Vibration Syndrome and although he cannot quite describe the exact blanching which is necessary for this diagnosis, I believe it is a failure of his description rather than that the blanching is not happening."

[77] Mr Pollock saw Mr Gough in July 2004 (Production 7/43). He said that on questioning him closely about the presence or absence of blanching or pallor, he gave initially a description of colour change affecting the dorsal aspects of his fingers, but, eventually, when asked directly whether the tips of his fingers became white, he said that they did. Mr Pollock felt that he was left with a poor description of classical vasospastic pallor and that Mr Gough changed his description when prompted. Mr Pollock was critical of the BUPA testing. In particular in 2001 the VTT test, which he described as of importance, was described as normal, while in 2002 it was very abnormal. Following the second BUPA test Mr Gough had been graded as 3V, 3Sn in both hands. Mr Pollock was not convinced that Mr Gough had ever described classical vasospastic pallor. He had, however, described classical re-warming pain and on clinical examination he had cold hands. Mr Pollock found very modest deficiencies in sensoneural function. He said that if it was accepted that Mr Gough did have vasospastic attacks, he was no more than 2V. On the other hand, if the view was taken that he had not described classical vasospastic pallor, it could be argued that he would be no more than 1V. Mr Pollock did not find any significant abnormality of sensoneural function. On the basis of the symptoms described by Mr Gough he would be 2Sn in both hands. He recognised that others, including Mr Drury, had found minor abnormalities of sensoneural function and that therefore at most Mr Gough would be 2Sn in both hands.

[78] Mr Gough was seen by Dr Andrew Weir, Consultant Clinical Neuro Physiologist, on 17 September 2004. Dr Weir concluded that in his clinical opinion there was no evidence of any vibration associated neuropathy. His report was Production 7/42. Mr Pollock submitted a further report dated 6 October 2004 in which he said that Dr Weir's opinion backed up his own view that he could not support the high gradings put on Mr Gough by Mr Drury and BUPA. He pointed out that a difficulty with the gradings was that they were based purely on symptomatology and in this case the question arose as to whether Mr Gough was being truthful in his description of his symptoms.

[79] Mr Drury saw Mr Gough again in November 2004 (Production 6/72). Mr Drury reported that Mr Gough arrived in the examination room in the throws of a vasospastic attack. He said that the hands and fingers were freezing cold and there was a definite Reynaud's attack in place with an interface between white discolouration and normal colour at the proximal interphalangeal joint in each finger. As a result of this there was a degree of stiffness of the fingers, although there appeared to be good range of movement. He found that two point discrimination was abnormal at 4mm separation. Mr Drury could now confirm that he, himself, had seen vasospastic blanching in the fingers of Mr Gough. On the basis of what he had seen he would classify Mr Gough as Stockholm Scale vascular 2V. He stated that it was much more difficult to dealt with the sensoneural question. He appreciated Mr Pollock's comments about the lack of objective evidence and the conflicting evidence. However, he went on to say that diagnosis of HAVS is reached after exclusion of other conditions. There was in his view no test which undisputedly gave the diagnosis. He felt that the assessment of nerve conduction studies carried out by Dr Weir had to be viewed with caution and should be used to confirm a clinical signs. Mr Drury shared Mr Pollock's concern about the BUPA testing. He considered that the laboratory testing by BUPA had been exaggerated. He said that he was left with a definite impression that Mr Gough did have vasospastic blanching which he himself had now witnessed and he would be prepared to confirm the diagnosis of HAVS. He found him 2V on each hand and a sensoneural component of 1/2Sn on each hand. He explained that by 1/2Sn he meant the presence of tingling and numbness and a sensoneural deficiency. He himself did find abnormal tactile discrimination.

[80] There was therefore not much difference in the conclusion made by Mr Pollock and Mr Drury. In relation to the earlier accident in respect of which Mr Gough had made a claim, Mr Drury said that Mr Gough had not told him that history. He would have asked him if he had had an accident before. He said that he would have to take into account a previous accident but he described whiteness in the fingers which would not be related to a mechanical accident or injury. He agreed that it was difficult to disentangle the sensoneural factors from the earlier accident.

[81] Mr Pollock, in the light of Mr Drury's description of Mr Gough's blanching, was content to accept a classification of 2V but remained of the opinion that Mr Gough was no more than 1Sn in both hands based entirely on his symptomatology and not backed up with reliable physical signs.

Conclusion on liability in the case of Bernard Gough
[82] From the evidence which I have considered so far in relation to Mr Gough I am satisfied that the following matters have been proved. Mr Gough contracted HAVS. I am persuaded of this by the finding by Mr Drury of some, minor, sensoneural deficit and the witnessing by Mr Drury of a vasospastic attack. In Mr Gough's case the symptoms of HAVS can be described as minor. An additional difficulty in his case is that he previously suffered an injury, apparently to his left wrist on an earlier occasion in the course of his employment (for which he successfully pursued an action against the defenders). Mr Gough did not tell Mr Drury about this injury and Mr Drury was clearly first aware of it in the witness box. While the relationship between symptoms relating to the earlier injury and those indicative of HAVS were not explored to any great extent in the evidence, Mr Drury was of the view that while the tingling and difficulty with grip could be explained by the earlier injury, the presence of blanching and the minor sensoneural deficiency found by him would not be related to the earlier injury. I am satisfied that Mr Gough contracted HAVS as a result of prolonged use over a period of years of hand held tools which gave off vibrations. Throughout that period he was in the employment of the defenders. His exposure to vibration through the use of such tools throughout the period exceeded the recognised daily dose. The defenders knew or ought to have known of the risks associated with vibrating tools and in particular the risk of contracting HAVS. They failed to take steps to control the use of the tools or to take any of the recognised precautions to minimise the risks. From that evidence I am satisfied that Mr Burke has made out a case against the defenders both at common law and under statute and I turn to the question of loss.

Loss in the case of Bernard Gough

Solatium
[83] I have concluded that the symptoms of HAVS in Mr Gough's case can be described as minor. Unlike the position in the cases of Mr Burke and Mr McCafferty there was a significant difference in the figures for solatium urged upon me by each side in the case of Mr Gough. I was referred by Mr Leighton to two cases cited in Kemp & Kemp: Cudlip v British Coal Corp (G12-006) and Nullis v British Coal Corp (G12-007). Mr Leighton submitted that a figure of £8000 was appropriate for solatium. Mr Mitchell radically opposed that figure having regard to the very low sensoneural deficiency and the complication of the earlier injury. He suggested that the case was at the lower end of the scale and advanced a figure of £1500. I derive most assistance in this matter from the Judicial Studies Board Guidelines. I consider that Mr Gough's case falls within the minor category in the Guidelines, the range of which is £1,500 to £4,750. Taking a broad axe approach I am of the view that Mr Gough's case falls about midway through that category and I shall make an award of £3000. I consider that it is appropriate to attribute one half to the past. With interest at 4% for 4 years the sum of £240 requires to be added.

Services
[84] No claim is made for services.

Wage loss
[85] According to Mr Gough he was told that his employment was finished and that he would be pensioned off. He said that he was told this at a meeting with personnel. Production 6/61, page 3, is a letter dated 8 July 2002 from BUPA to the defenders stating that Mr Gough should be assigned to group 1. Production 7/31 is a letter from Steve Kelly, Corporate Services Manager to Mr Gough dated 26 June 2002 stating that he was in group 2. This was later changed to group 1. Production 7/33 is the résumé letter from Geraldine Ham sent to Mr Gough. Production 6/65 is the letter dated 31 July 2002 which gives his figures for retiral.

[86] With respect to the other jobs Mr Gough said that he was not offered a job. He said that he was told that he could apply for two or three jobs and that if he was unsuccessful he would be "out the door". He claimed that he was told this by Geraldine Ham. He took it that he had to go for his pension. He did not wish to be considered for any of the vacancies listed. He said that he thought the money was less and that he could not do a gardening job as he was not gardener. He understood that parks department people would be looked on favourably for these jobs as their wage structure was similar to the jobs on offer. This account was disputed in the affidavit of Geraldine Ham. She denied that she had indicated to him that his employment was finished and that he would be pensioned off. That suggestion was, she said, "categorically wrong". She denied telling Mr Gough that he could apply for two/three jobs and if he was not successfully interviewed he would be "out of the door" with no pension or that gardeners would be looked on favourably. She pointed out that Trade Union representatives were present and would never have tolerated such an approach. I did not find Mr Gough's account of these discussions convincing. I prefer the account given by Geraldine Ham. It seemed to me that Mr Gough was keen to leave. It is worthy of note that he had earlier made enquiries with respect to redundancy (Production 7/30). I am satisfied that Mr Gough was not interested in re-deployment to another job in the defenders' employment.

[87] While, of course, the option of applying for ill health retirement was open to him just as it was to Mr Burke and Mr McCafferty, it seems to me that it would have been reasonable in the circumstances to have pursued the option of re-deployment and that Mr Gough acted unreasonably in failing to do so. It was accepted in his case that on that approach there would be no wage loss.

[88] Accordingly, in the case of Mr Gough the loss is restricted to solatium in the sum of £3000 plus interest of £240.

Apportionment
[89] Mr Mitchell submitted that I should make an apportionment between the consequences of non-negligent and negligent exposure in each case. His extreme position was that there were no ill consequences as a result of any negligent exposure, but if that were going too far, I should, on a broad axe basis make a percentage reduction for the non-negligent exposure. He argued for substantial reductions in each case.

[90] Mr Ivey submitted that the approach of Mr Mitchell concentrated too much of the question of medical surveillance and failed to take account of the other precautions which were averred in the common law cases. These included the various measures designed to reduce the risks. Under reference to the evidence of Mr Andrews as to latency he submitted that, had the pursuers been exposed over the years to a daily dose below the safe limit then it was unlikely that the pursuers would have suffered any symptoms.

[91] The correct approach to the question of apportionment is set out in Allen v British Rail Engineering Ltd [2001] ICR 942 where Shiemann LJ delivering the judgment of the court said at p.952:

"20. In our judgment the case law as it now stands establishes five propositions of which the first is concerned with liability and the others with quantifying damages; (i) The employee will establish liability if he can prove that the employer's tortious conduct made a material contribution to the employee's disability; (ii) There can be cases where the state of the 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 defendant's 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."

The question as to what apportionment, if any, should be made is essentially a jury question (Thomson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405; Mustill LJ at p. 443D). The court may decline to make an apportionment (Smith v Wright & Beyer Limited unreported 3 July 2001 ([2001]EWCA Civ 1069)).

[92] There was very little exploration in the evidence of material which would provide me with a basis for making an apportionment in this case. This is, of course, not a case in which negligent exposure by another employer is involved. The pursuers were in the employment of the defenders throughout the relevant periods. Accordingly, the second proposition in Allen does not apply. It seems to me that in their common law cases the pursuers have averred and at proof have proved that over many years the defenders failed to take a number of steps which would have reduced the risk of a pursuer contracting HAVS. I am able to conclude from the evidence, including the medical evidence and the evidence of Mr Andrews as to latency that had the defenders taken the kind of steps about which they ought to have taken, it is unlikely that each of the pursuers would have developed any symptoms of HAVS.

[93] In addition, from the evidence of the pursuers taken together and the evidence of Mr Andrews I conclude that the exposure to vibration to which each of the pursuers was subjected was well in excess of the daily dose. Any element of loss attributable to non-negligent exposure would be very small. It would be impossible to quantify precisely. I conclude that on the evidence before me there is no basis on which I could make an apportionment.

Decisions in each case
[94] For the reasons which I have set out above I am satisfied that each of the pursuers has established a case against the defenders. In each case I shall sustain the pursuer's first plea-in-law and repel pleas-in-law one to five for each of the defenders, John Burke and William McCafferty and pleas-in-law one to six for the defender Bernard Gough. I make the following awards:

Summary of loss (Mr Burke)

[95] The following is a summary of the award I make in favour of Mr Burke:

Solatium (including interest for past of £400)	£9400
Services	£1000
Past wage loss (including interest of £325.68)	£2966.38
Future wage loss	£11,990.86
Total	£25,357.24

Summary of loss (Mr McCafferty)
[96] The following is a summary of the award I make in favour of Mr McCafferty:

Solatium (including interest for past of £160)	£2,160
Past wage loss (including interest of £183.06)	£1,899.22
Future wage loss	£10,296.80
Total	£14,356.02

Summary of loss (Mr Gough)

Solatium (including interest of £240)

£3240.00

[97] I shall reserve the question of expenses meantime.