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Cite as: [2006] ScotCS CSOH_5, 2006 SCLR 682, 2006 GWD 14-270, 2006 Rep LR 78, [2006] CSOH 5

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OUTER HOUSE, COURT OF SESSION

[2005] CSOH 5

A88703

OPINION OF LORD MENZIES

in the cause

MARGARET HUGHES

Pursuer;

against

GRAMPIAN COUNTRY FOOD GROUP LIMITED

Defenders:

________________

Pursuer: Allardice; Thompsons

Defenders: Duncan; Simpson & Marwick, W.S.

18 January 2006

Introduction

[1] The pursuer is a process worker and trainer employed by the defenders at their factory premises at Cambuslang. She has worked there since about 1991. Her work involves her in a variety of activities, including trussing wings and legs of chicken carcasses using elastic strings. In about 1994 she developed Carpal Tunnel Syndrome in her right wrist. She avers that from about 2000 she developed Carpal Tunnel Syndrome in her left wrist which was aggravated by her work circumstances. She seeks damages for personal injuries from the defenders in respect of this aggravation. In the pleadings, the action is founded both on the fault and negligence of the defenders at common law, and on their alleged breach of Regulation 4 of the Manual Handling Operations Regulations 1992. However, during the course of the proof before answer, counsel for the pursuer indicated that he was no longer relying on his common law case, and restricted the pursuer's claim to breach of statutory duty under Regulation 4 of the 1992 Regulations.

[2] Regulation 4 of the Manual Handling Operations Regulations 1992 provides inter alia as follows:

"(1) Each employer shall -

(a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handing operations at work which involve a risk of their being injured;".

The pursuer avers that processing chickens was a manual handling operation. The defenders deny this, and further aver that the tasks carried out by the pursuer gave rise to no foreseeable risk of the pursuer developing symptoms of Carpal Tunnel Syndrome.

The Evidence

[3] The pursuer gave evidence that she was aged 47 at the date of the proof and started as a part-time process worker with the defenders in 1991. At this time she was working in the twilight shift, between 5pm and 9pm. After about three years she commenced full-time work with the defenders, working the back shift from 12.30pm to 9pm. In examination in chief she stated that she worked on only three lines during her employment, namely the fronts line, the trussing line and the spatchcock line. She said that she did the same thing each day; she would work on the trussing line from 12.30pm to 4.30pm, then have a break and then work on the fronts line during the evening. She developed Carpal Tunnel Syndrome in her right wrist in about 1994, for which she underwent surgery and was off work for about three months. At this time, she was suffering from tingling in her fingers, and she found that this was worse when she was working on the trussing line. She underwent a second operation for Carpal Tunnel Syndrome in her left wrist in March 2001. The symptoms in her left wrist became worse about two years before this operation, and she was kept awake at night because of the pains in her hand. These symptoms were worse when she was working on the trussing line. She would work on that line most days - at least three days each week and at most five days each week. After the break at 4.30pm she would work on the fronts line, but would also do trussing work most evenings. The pursuer described what trussing work involved, namely tucking the wings of a chicken carcass in, folding the legs and trussing the carcass with trussing string. Production No.6/1 was a video of another employee engaged in trussing a chicken carcass and the pursuer confirmed that this was the trussing operation which she carried out. She would process a lot of carcasses in an hour. She would work on the trussing line for four hours, with one fifteen minute break. On the fronts line she was only required to tuck the wings in - no legs were involved in the operation. On the spatchcock line she was required to open up the breast of the chicken and inject under the skin with a syringe. This line ran on only two or three occasions each week. She also worked with a gun in the wash house, but she stated that most of her work was trussing and that she would do this every day. Six people would work on each side of the trussing line, one of whom would be filling and loading racks and five of whom would be trussing. They would change places after every two hundred and forty birds, so that each employee gradually moved down the trussing line and then spent a period of five or six minutes loading racks. The whole rotation might take thirty to forty-five minutes.

[4] The pursuer went to her doctor before March 2001 because she had the same tingling in the fingers of her left hand as she previously had in her right hand. Her hand was numb and she could not sleep because of the pain. She underwent an operation as a day case on 24 March 2001; she was in hospital for about six hours, she had stitches in her surgical wound for about two weeks thereafter, and she was off work for sixteen weeks or perhaps less. After the operation her hand was bandaged and she wore a sling for about two or three weeks. She could not look after herself properly and required help from her husband and daughter and her father. She could not dry her own hair or work at a sink, and they helped her with these tasks and also with the housework which she would normally do. This help from her family lasted six to seven weeks. She was completely better about eight or ten weeks after the operation, and had recovered completely by the time she returned to work on 3 June 2001.

[5] The pursuer was cross-examined in some detail about her work regime. She stated that she had a fifteen minute break at about 2.30pm, a thirty minute break at about 4.30pm and another fifteen minute break at about 7.30pm. She had always worked in the back shift, but she worked in the dry store for about two years, which could have been in the period around 1998 and 1999. She accepted that the back shift was employed in a variety of different kinds of work and there was no set pattern of work. She worked on the fronts line, the trussing line, the spatchcock line, in the brine room, cleaning racks and fetching racks. She also worked with drumsticks and thighs and also on the "C Grade" and "Chinese" lines. The fronts line was the main job of the twilight shift. In the brine room, drumsticks, thighs or whole carcasses required to be unloaded into a chute manually and injected with brine; the pursuer accepted that this was virtually her permanent job from 4.30pm until the end of each shift. It was put to her that she was unofficially the brine injector, and she replied that this was her job - she was officially the brine injector, and she did this sometimes during the day shift and during every evening. She also worked injecting a sauce under the skin on the spatchcock line. Another of her jobs was to load, wash and collect racks. She accepted that trussing was a permanent job on the day shift, but on the back shift when she worked, nobody worked permanently on trussing. She was shown the averments at and around page 5C of the Closed Record (as amended) and agreed that these were a gross exaggeration. She accepted that if she went to see her doctor about the symptoms in her left wrist in January 2001, the symptoms would have begun just before that, and that the first time that they were bad enough for her to see the doctor was 22 January 2001. At this time her symptoms were predominantly nocturnal, and they were not bad enough to ask for lighter work. In February 2001 she asked her doctor to give her a letter to put her on light duties, and after she was seen by a nurse on 21 February 2001, she was taken off the trussing line and worked in the brine room. Her left hand is her non-dominant hand, but she still needed help in the house for some weeks after her operation in March 2001.

[6] In re-examination she stated that the fronts line was her main job on the twilight shift, but between 12.30pm and 4.30pm most days she was engaged on the trussing line. After 5pm she was mainly engaged in the fronts line, but also did some trussing work.

[7] Karen Rankin was a line leader with the defenders and had worked for them in process work for some sixteen years. She worked together with the pursuer regularly for about fourteen years, although Miss Rankin usually only did the twilight shift between 5pm and 9pm. She saw the pursuer working on the trussing line; this was normally between 12.30pm and 4.30pm, and Miss Rankin would start at 5pm. She stated that the pursuer would mostly do trussing during the day, and then do a combination of fronts and trussing - she did not do as much trussing on the twilight shift as on the day shift, but she still did some of this kind of work. She accepted in cross-examination that she had no experience of what happened in the shift between 12.30pm and 4.30pm after 1997, and that after 5pm a wide variety of work was carried out including the fronts line, the brine room, trussing, spatchcock, cleaning and fetching racks, Chinese and other works.

[8] Miss June Scotland was a process worker employed by the defenders; she started work with them at about the same time as the pursuer in about 1991, and she worked beside the pursuer until about two or three years before the proof. She was on the same lines as the pursuer and always worked back shift. She confirmed that she worked on trussing lines between 12.30pm and 4.30pm most days, and between 5pm and 9pm she worked on a different line from the pursuer. During this time she worked in the ovens corridor until about 1999, after which date she worked on the lines, working with fronts, drumsticks and the rest of the variety of work carried out by the back shift. She remembered the pursuer working in the brine room, although the pursuer did not do this all the time between 5pm and 9pm - the pursuer also worked on spatchcock, drumsticks and the like. The pursuer would be involved in trussing most of each day. She accepted that it was the day shift's responsibility to do trussing, and only the day shift had permanent responsibility for trussing. The back shift only helped out with trussing as required, and she accepted (eventually) that trussing was only done occasionally on the back shift.

[9] Clive Andrews was a self-employed Consultant Ergonomist. He was aged seventy-two; before becoming a self-employed consultant, he had taught ergonomics at Napier University from 1967 until he retired in 1998. Latterly, he had been a senior lecturer in ergonomics. He had a B.Sc. in mechanical engineering and an M.Sc. in ergonomics; he held an M.B.A. and was a fellow of the Ergonomics Society. He spoke to his report (Production No.6/2 of Process) and he took the video (Production No.6/1 of Process). He was asked if his conclusions were contradicted by the opinion of an Orthopaedic Surgeon would he defer to that opinion, and he replied that he would probably not do so, as the Orthopaedic Surgeon would not be trained in the surrounding areas. Mr Andrews gave his evidence under reference to the movements seen on the video (Production No.6/1 of Process). In answer to a question from the Court, he confirmed that the trussing of wings only (i.e. the fronts line) would involve only the movements described at paragraph 2.4.2 sub-paragraphs 1 and 2 and would not include sub-paragraphs 3 to 6.

[10] Mr Andrews gave detailed evidence in amplification of the research and publications referred to in paragraph 3 of his report; he pointed out that Carpal Tunnel Syndrome had been a topic of great interest to him for a long time, and this was about the twenty-fifth Carpal Tunnel Syndrome case that he had been involved with.

[11] Under reference to paragraph 4.1.2 of his report, Mr Andrews said that he saw much evidence of repetitive flexion movements in watching the employee on the video tucking in wings and legs and putting on string to the carcass, and he observed that both extension and flexion movements increase pressure in the carpal tunnel. He observed that the movements which could be seen on the video could cause Carpal Tunnel Syndrome, and the application of force could increase this risk, but he was unable to quantify that increase in risk.

[12] In cross-examination he accepted that he relied on four sources of information for his report - (1) his visit to the factory premises at which he took the video (Production No.6/1 of Process); (2) the Closed Record (as it stood at the date of his report on 7 June 2004, not in its amended form as Production No.19 of Process); (3) the precognition of the pursuer dated June 1999, and precognitions from two other employees; and (4) epidemiological articles. It was put to Mr Andrews with regard to the pursuer's June 1999 precognition that if the pursuer's symptoms started shortly before 21 January 2001 (possibly in late 2000) and her operation was in March 2001, and if one was looking at the effect on the pursuer's symptoms of her work operations from the onset of symptoms until her operation, the 1999 precognition was irrelevant; Mr Andrews accepted this. He also accepted that this precognition was, at least in part, the cause of his conclusions. With regard to the epidemiological articles relied on for his report, he accepted that the most recent of these was dated 1986. It was put to him that the debate on the causes of Carpal Tunnel Syndrome continued after 1986, and his response was that there had been no impressive arguments on this subject since then. He was shown Production No.7/13 of Process "Occupational Causes of Disorders in the Upper Limb" published in February 1992; he thought that he had read this, many years ago and he observed that Carpal Tunnel Syndrome was not a prescribed disease as a primary condition except as a result of vibration. He was shown Production No.7/14 of Process, "Work Related Disorders of the Upper Limb" published in April 2002. Although he knew Mr Hooper, who was a Consultant Orthopaedic Hand Surgeon and one of the authors of this article (and also of Production No.7/13 of Process) he was not familiar with this article. In its penultimate paragraph, this article examined the claim that work related upper limb disorder could be prevented by providing a more comfortable working environment. The authors of the article concluded with regard to these claims that "although such conditions are clearly desirable, there is no evidence that modifying the posture, avoiding forceful activities or preventing repetition will prevent the occurrence of these disorders ..." (with an exception which does not concern this case). Mr Andrews disagreed with this conclusion, and would not defer to the opinions of Orthopaedic Surgeons on this matter: he considered that Ergonomists were better placed to reach an opinion on such a matter than were Orthopaedic Surgeons. In his opinion in order to provoke the symptoms of Carpal Tunnel Syndrome, one required the combination of force, adverse posture and these things happening over a period of time.

[13] Under reference to paragraph 4.2.1 of his report, Mr Andrews did not consider that a respite from trussing by filling the racks for ten or twelve minutes would necessarily reduce the risk of Carpal Tunnel Syndrome - the important matter to consider was how many repetitive tasks were carried out between rests. If there was a break from trussing for a ten or twelve minute period in each hour, the consequence of this would depend on what happened in the remaining forty-eight minutes. He accepted that if an employee was involved in trussing only occasionally, and not all the time, this would reduce the risk.

[14] In re-examination Mr Andrews was asked whether he was of the opinion that there were three requirements for Carpal Tunnel Syndrome to arise, namely posture, force and repetition, and he replied that he did not consider that posture was necessary, if there was a lot of force and repetition. He was asked if, in the event that Mr Crossan expressed the view that one does not need all three factors to aggravate symptoms and that repetition by itself would be sufficient to provoke symptoms, would Mr Andrews defer to this view, and his answer was "partially yes". He observed that if the problem already existed, then finger movement alone would cause the symptoms. He expressed the view that if an employee already had Carpal Tunnel Syndrome, a different system of working would most certainly be required - the employee would have to be exposed for shorter times than other people, or possibly not even instructed to do the job at all.

[15] Mr James Crossan, FRCS was a Consultant Orthopaedic and Hand Surgeon whose qualifications and experience are set out in his report (Production No.6/3 of Process). About 85% of his work related to hand surgery, which was his particular interest. Within his field of expertise, Carpal Tunnel Syndrome was his commonest diagnosis. He saw about six patients each week with Carpal Tunnel Syndrome, and operated on about three or four each week with this condition. He was unusual amongst Scottish Orthopaedic Hand Consultants in carrying out pressure tests on atypical cases; he carried out such a test approximately once per month and had done this for several years. He was shown a report by Mr David Ross, a Consultant Orthopaedic Trauma and Hand Surgeon at Stirling Royal Infirmary, (Production No.7/5 of Process), in which Mr Ross expressed the view that "there is no evidence that Carpal Tunnel Syndrome is related to rapid repeated finger movements. In my opinion, Mrs Hughes' Carpal Tunnel Syndrome is not related to her occupation." Mr Crossan accepted that there was no published evidence to this effect, but he did not believe that Mr Ross had been involved in pressure testing, and Mr Crossan was of the view as a result of his own tests that Carpal Tunnel Syndrome was related to rapid repeated finger movements.

[16] Mr Crossan had seen the video (Production No.6/1 of Process) and observed that this showed the performance of a very repetitive task, which would if carried out throughout a full day, involve many movements of the hand and wrist, including flexions, extensions and rotations, although the force involved appeared modest. His opinion was that this could cause an increase in the pursuer's symptoms, although this would not apply to all patients: repetitive work could cause Carpal Tunnel Syndrome and work involving force could cause Carpal Tunnel Syndrome, and where both were involved this provided strong evidence of a causal link. He described the pursuer's job as mainly repetitive with some force, and considered that there was "good to strong evidence" of a causal link between her work and her increased symptoms. His opinion, which was in accordance with published literature, was that repetition of a task is itself sufficient to aggravate the symptoms of Carpal Tunnel Syndrome. There was no published evidence as to the speed of repetition required nor the length of period during which the task was performed before symptoms were aggravated, but he observed that most patients would feel pain after about half an hour of working in this way. Two hours of working, with a ten minute break, would enable the patient to recover and would not require surgery. Mr Crossan was broadly in agreement with paragraph 4.1.2 of Mr Andrews' report (Production No.6/2 of Process) and was of the view that repetitive flexion movements can cause Carpal Tunnel Syndrome and are likely to increase symptoms for those who already suffer from this syndrome (although not in all cases). Although force is likely to make matters worse, repetition without force may exacerbate symptoms, and he was of the opinion that the movements on the fronts line (which involved less force than the tucking in of legs on the trussing line) would be sufficient to increase symptoms in someone who already had Carpal Tunnel Syndrome. Mr Crossan was unable to quantify, either in general terms or specifically with regard to the pursuer, the extent to which symptoms of Carpal Tunnel Syndrome might have been exacerbated by working conditions. He stated that after her operation, the pursuer would have reasonably been expected to have a post-operative rehabilitation phase of about six weeks, and to have suffered some loss of function and increased sensitivity at the site of the operation for about two months after the operation. The pursuer did not require to stay in hospital for the operation, which was carried out under local anaesthetic and involved a surgical incision at the base of the palm about 2.5cms long.

[17] In cross-examination Mr Crossan expressed the view that if the pursuer was working on the trussing line for four periods each of about two hours, with breaks between lasting about ten minutes, she would require surgery because the repeated insult to the median nerve would be enough to cause symptoms. If the patient developed chronic pain and experienced symptoms each day, there would come a point when surgery was required. Work will tend to exacerbate the level of symptoms in a patient who is already suffering from Carpal Tunnel Syndrome, but the patient will experience symptoms even if not working, for example by carrying out household tasks. It was put to him that if the pursuer worked on the trussing line for only a very short period after her symptoms arose, it was unlikely that this work would have added to the need for an operation, to which Mr Crossan observed that this would depend on the period of work - a period of four to six weeks might be sufficient to exacerbate symptoms to the point where an operation was necessary, but the shorter the period, the more difficult it was to ascribe the exacerbation of symptoms to any particular cause. He was shown the pursuer's GP records (Production No.6/4 of Process) which showed the first mention of left Carpal Tunnel Syndrome being 22 January 2001 and a letter being sent to the defenders by the doctor on 16 February 2001. He agreed that it was very difficult to say that this period of about four weeks made any difference to the need for surgery, and that this difficulty was compounded if the pursuer only spent a short time on trussing work each day during this four week period.

[18] In re-examination Mr Crossan stated that the longer the movements which caused the pain continued, the more likely was the need for surgery, although it was impossible to put a figure on the number of insults to the nerve required before surgery was necessary. Half of the patients treated by him responded to conservative treatment, and half required surgery, but many people suffering from Carpal Tunnel Syndrome do not seek medical help and their symptoms respond to conservative treatment.

[19] Three witnesses were led on behalf of the defenders. Mrs Helen Harkin was employed by the defenders as a line leader or supervisor at the defenders' Cambuslang premises. She had worked there for fifteen years before the proof, and had been employed as a supervisor for about nine years. At the date of the proof she was working day shift, from 6am till 2pm, but for the last five or six years she had worked from 8am to 4.30pm. Before that, until about five or six years before the proof, she worked back shift with the pursuer, between 12.30pm and 9pm. At the date of the proof she was also working in the same shift as the pursuer. She stated that the back shift had a variety of jobs which changed from day to day. The back shift would help out with the day shift lines if required, as a result of absences or holidays or special promotions. She confirmed that the back shift were involved in many areas of work including the fronts line, the brine room, the trussing line, spatchcock, cleaning and fetching racks, drumsticks, thighs, Chinese and C Grade. On most days either all of the back shift or at least part of it would be working on trussing from 12.30pm to 4.30pm; after 5pm, if there was a backlog then the back shift would continue to work on the trussing line, but after this time the pursuer worked mainly in the brine room, although if there was a shortage of staff and trussing needed to be done, she would work on the trussing line.

[20] Mrs Sandra McEwan was retired at the date of the proof, but had been employed as a team leader/department supervisor by the defenders in their Cambuslang premises on the back shift. She confirmed that the back shift did a variety of work, and this depended on what had been done earlier in the day by the day shift. She stated that the pursuer was usually in the brine room, and she would have done the fronts line more than other jobs. The day shift had the principal responsibility for trussing, but the pursuer would be assigned to trussing if this was required. She was asked whether, in the period after 2pm, workers would be involved occasionally or regularly during trussing, and she replied occasionally, and that there might be periods when no trussing was carried out.

[21] Miss Kay Watson was employed by the defenders until 1 April 2005 as a team leader/supervisor at their Cambuslang premises. She worked on a different shift from the pursuer; she worked from 6am until 2.30pm, but there was some overlap with the pursuer. She stated that the back shift would do trussing work if the day shift were short of people, but this would not happen every day, and there would be days or weeks when the backshift would not do any trussing; they were on different jobs everyday. In cross-examination she stated that the back shift might perhaps truss on three or four days per week between 12.30pm and 4.30pm if the factory was busy, but they could go for weeks without trussing depending on how busy the factory was.

Submissions for the pursuer

[22] With regard to the evidence, counsel accepted that the pursuer contradicted herself in the course of her evidence, but urged me to accept that this was because she was nervous and liable to accept what was put to her in cross-examination - she was not lying nor was she trying to mislead the Court. The weight of evidence was to the effect that the pursuer was undertaking a substantial amount of trussing work; during the first part of her shift she would be engaged on the trussing line for three to four days per week, and would also be involved in this work on occasions in the latter part of her shift. In light of the medical evidence it was not necessary for the Court to form a detailed assessment of the amount of trussing work which the pursuer performed. The pursuer's complaints were focused not on the fronts line but on the trussing line. Counsel submitted that the pursuer's symptoms became exacerbated in the latter part of 2000; she had been taking painkillers for her symptoms for some time before she went to see her GP in January 2001. The pursuer's evidence regarding the amount of trussing work which she was required to carry out was supported by the evidence of Karen Rankin and June Scotland, and also by the defenders' witness Helen Harkin. The defenders had failed to make out their case at page 9C of the Closed Record (as amended) to the effect that "The employees on the pursuer's shift could go weeks without trussing. The pursuer never carried out trussing in the second part of her shift. Trussing in the first part was occasional."

[23] With regard to the expert evidence of Mr Andrews and Mr Crossan, counsel pointed out that this was not contradicted, and submitted that their evidence should be accepted. In particular, the Court should accept the opinion of Mr Crossan at page 3 of his report (Production No.6/3 of Process) that the type of work which the pursuer performed has clearly increased the levels of pain and tingling in her hands and has caused symptoms to persist. He expressed the view that "whilst her work practices have not directly caused her to develop Carpal Tunnel Syndrome, they have caused increased levels of pain and increased persistence in pain."

[24] As indicated above, in the course of his submissions counsel for the pursuer indicated that he no longer insisted on his case of fault at common law as set out in Article 4 of Condescendence, and that he relied solely on his case of breach of Regulation 4 of the Manual Handling Operations Regulations 1992. In this regard he submitted that the entire operation in which the pursuer was engaged on the trussing line was a single manual handling operation. It involved the moving of a chicken carcass by lifting it off a hook, supporting it as a load, placing it down, pushing and pulling its wings and legs and placing it on a conveyor. It amounted to the transporting of the carcass from a higher level to a lower level. Although the defenders might submit her injuries were not attributable to the transporting or supporting of the load but were rather caused by the movements relating to the wings and legs, counsel's primary submission was that this was one single operation. Counsel referred me to Cullen v North Lanarkshire Council 1998 SC 451 as authority for the propositions (1) that the Regulations may go beyond the Council Directive of 29 May 1990 (90/269/EEC) which the Regulations were intended to implement, and (2) that neither the Directive nor the Regulations are confined to back injuries caused by lifting heavy loads. Although Regulation 4 referred to reasonably practicability, the onus was on the defenders to raise this issue, and they had not done so in the present case. Under reference to Mains v Uniroyal Englebert Tyres Ltd 1995 SLT 115, counsel submitted that reasonable foreseeability is only relevant in the content of a defence based on reasonable practicability, and as reasonable practicability was not raised in the present case, reasonable foreseeability was not an issue. On the question of what constitutes a risk of injury for the purpose of the Regulation, counsel relied on Anderson v Lothian Health Board 1996 SCLR 1068, and on Cullen (supra at page 455G) as authority for the proposition that for there to be a risk of injury, injury need be no more than a foreseeable possibility; it need not be a probability. In the present case, the evidence indicated that the risk of injury was at least a foreseeable possibility, as indicated by the risk assessment record (Production No.6/7 of Process).

[25] In addressing the central question as to whether this was one manual handling operation, counsel submitted that the alternative was that the pursuer was involved in two separate manual handling operations - one in taking the carcass from the upper conveyor to the table and the second taking the carcass from the table to the lower belt. He described this as absurd, and said that it was obvious from the video that there was only one relatively short movement involved. The part of the operation which caused injury to the pursuer, namely the repetitive movement of her hands, wrists and fingers, was done during the transporting and supporting stage. The Regulations envisaged that this type of activity was to be covered - counsel referred me to the guidance on the Regulations at page 42, appendix 1 at paragraphs 6 to 7 where repetitive actions are expressly envisaged and relatively light weights are involved.

[26] In support of his submissions, counsel referred me to six authorities, namely Purdie v Glasgow City Council 2001 Rep. LR 26 (particularly at paragraph 8 in which Lord Hamilton observed that "Once an operation falls within the scope of a manual handling operation, all the foreseeable possibilities of injury incidental to such an operation require to be addressed by the employer."); Gissing v Walker Smiths Snack Foods Ltd [1999] CLY 3983; King v Carron Phoenix Ltd 1999 Rep. LR 51; McIntosh v City of Edinburgh District Council 2003 SLT 827; Mitchell v Inverclyde District Council (1997) GWD 31-1593 and King v RCO Support Services Ltd [2001] ICR 608.

[27] Turning to quantification of damages, counsel submitted that solatium should be assessed in this case at £2,500 before interest, and that interest should run on this sum at 4% from 1 December 2000 to 3 June 2001, and at 8% from 3 June 2001 to the present date. In support of this he referred me to the Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injury Cases (7^th Edition) and submitted that this case fell between the values in (c) and (d) of category (K) at page 46, because the symptoms arose in about November 2000, the operation occurred in March 2001, and the pursuer had made a full recovery by June 2001. He also referred me to two cases in McEwan and Paton on damages, namely Wilkinson v Post Office at CN9-10A and Cairns v Phillips Electronics at CN9-08. This case was, he submitted, more serious than Wilkinson, in which solatium of £1,250 was awarded which, adjusted for inflation, was worth approximately £1,600 now. On the other hand, it is probably less serious than Cairns, in which solatium of £1,500 was awarded which, allowing for inflation, is worth approximately £3,000 now.

[28] With regard to loss of earnings, counsel referred me to the joint minute (Production No.20 of Process), and submitted that the pursuer's loss of wages as a result of her absence from work following her operation was a recoverable head of claim. With regard to loss of services, counsel submitted that this head of claim should be assessed at a total of £750, divided equally between the pursuer's father and daughter, with interest thereon at 8% from 1 May 2001, being a date approximately in the middle of the period of the pursuer's recuperation. In support of this figure, he referred me to McGarrigle v Babcock Energy Ltd 1996 SLT 471, and to McEwan and Paton (op. cit.) at page 78-3.

Submissions for the defenders

[29] Counsel submitted that there were effectively only two issues in this case - (1) was the pursuer performing a manual handling operation within the meaning of the Regulations, and (2) if so, did it cause her any injury at all. On the first of these, the area of dispute between the parties was very narrow. Despite his pleadings, counsel was prepared to concede that there was a reasonably foreseeable risk of injury, and made no submission to the contrary. The only issue for the purposes of the Regulations was therefore whether this amounted to a manual handling operation. Counsel emphasised that the only area of complaint in the pursuer's pleadings is the trussing line - the fronts line did not cause her a problem. Counsel referred me to the definition of "manual handling operations" in Regulation 2(1) of the 1992 Regulations and submitted that there was no evidence in this case that when the pursuer was pushing or pulling the legs and wings of a chicken carcass she was transporting or supporting a load. She was not asked whether she did any of these pushing or pulling movements while supporting a load, and Mr Andrews gave no evidence which would set up this approach. The pursuer gave evidence that she manipulated a chicken, but she gave no evidence to the effect that she was supporting a load while doing so. Counsel submitted that it was clear from the evidence of the pursuer, Mr Andrews and Mr Crossan that what was being complained of was the manipulation of the carcass as it was actually being trussed, which gave rise to repetitive movements of the wrist, hand and fingers; no complaint was made about the lifting of the carcass from the shackle to the bench, nor about the moving of the carcass to the conveyor at the end of the task of trussing. Counsel accepted that the task of trussing was immediately preceded and followed by transporting a load, i.e. the chicken carcass. The submission for the pursuer appeared to be that the task was one continuous short movement, or at least if the carcass was being supported at any time during the trussing process then the statutory definition was satisfied. Counsel submitted that this approach offended against the ordinary use of language, it was unsupported by the facts and offended against the purpose of the Regulations.

[30] In considering the authorities, counsel submitted that it was important to keep in mind that two distinct questions arise under Regulation 4(1) - first, whether the task is a manual handling operation, and second whether the manual handling operation gave rise to a risk of injury. He submitted that the case of Cullen v North Lanarkshire Council was concerned with the second of these questions but was of no assistance in relation to the first question, which is the main issue in the present case. It is clear from the opinion of the Court in Cullen (particularly at page 453B) that in that case it was not in dispute that the operation which the pursuer was undertaking at the time of his accident was a manual handling operation within the meaning of the Regulations. That case is therefore of little assistance in the present case. This was also true of the cases of Mains v Uniroyal Englebert Tyres Ltd, Anderson v Lothian Health Board and Purdie v Glasgow City Council, referred to by counsel for the pursuer. Counsel submitted that the question of what is and what is not a manual handling operation is normally a question that can only be determined after enquiry into the facts, and so decisions made on the procedure roll are of limited assistance. However, what the cases all show (whether decided after proof or on procedure roll) is that the question should be approached using a common sense approach to the interpretation of the Regulation. Counsel referred me to several authorities, but ultimately relied principally on King v Carron Phoenix (supra), and McFarlane v Ferguson Shipbuilders Ltd (an unreported decision of Lady Smith dated 16 March 2004).

[31] Counsel also referred me to the terms of the Council Directive of 29 May 1990, (90/269/EEC) and pointed out that this was concerned with the manual handling of loads. He questioned whether the trussing of a chicken carcass could properly be categorised as the manual handling of a load, and contrasted this with the circumstances of King v RCO Support Services Ltd in which the claimant was spreading grit over ice in the yard of a bus station, using a sack barrow and a shovel to distribute the grit. Without wishing to put too much emphasis on the point, he observed that in the title to the Directive, the words "manual handling of loads" are immediately followed by the words "where there is a risk particularly of back injury to workers", and that in Article 2 again the transporting or supporting of a load is qualified by the words "which ... involves a risk particularly of back injury to workers". Counsel did not submit that the scope of the Directive was limited to back injuries, but he suggested that this might be relevant when assessing what type of operations the Directive was aimed at. He also referred me to the guidance on the 1992 Regulations issued by the Health and Safety Executive, and in particular to paragraphs 15 to 18 thereof. He concluded his submissions on the question of whether the pursuer was engaged in a manual handling operation by formulating three propositions. First, the question is one which should be answered on the basis of common sense and plain language, and to suggest that trussing a chicken is a manual handling operation offends both of these requirements. Second, the task itself must involve the support or transport of a load; it is not legitimate to look to anything other than the task itself. There is no support for the approach that one can take into account the context in which the task was performed, and argue that because a load was transported or supported before and after the task, therefore the task was a manual handling operation. And third, the risk of injury identified in this case was a risk arising from manipulation, not a risk arising from the bearing of a load, which supports the argument that the task being undertaken was a task of manipulation, not of transporting or supporting a load.

[32] Counsel's second submission was concerned with causation. He observed that the pursuer does not claim that the defenders caused her condition, but only that they exacerbated her symptoms. In order to succeed she must demonstrate that the defenders' breach of the Regulations made a material contribution to her symptoms, and she must satisfy the "but for" test. He submitted that the evidence for the pursuer did not satisfy these tests. Counsel attacked the pursuer as an extremely unreliable witness - although he accepted that she may not have deliberately set out to mislead the Court or to lie, her evidence was riddled with contradictions, both between her evidence in chief and her evidence in cross-examination and between her evidence and her pleadings on record. The Court could not rely on her evidence. In considering what the pursuer was required to do from December 2000 until the date of her operation counsel provided me with a detailed analysis of each of the witnesses who spoke to the working practices on the back shift, and concluded that during this period the pursuer was trussing "occasionally" and when she did so, she would be expected to truss for between forty and sixty minutes before getting a break of between ten and twelve minutes. In considering what symptoms the pursuer suffered as a result of this task, counsel submitted that there was no good evidence of what symptoms the pursuer was suffering from, for what period she suffered them and whether these were associated with trussing. Her symptoms were not sufficiently serious to mention them to her GP until 22 January 2001, and the pursuer accepted that she was taken off trussing following the nurse's line of 21 February 2001. In considering what her symptoms would have been had she not been involved on the task of trussing during this period, counsel submitted that Mr Crossan's evidence was to the effect that the pursuer's working would not have altered her requirement for surgery, the cause of her condition would have been very much the same in any event, and that all that may have occurred was a brief and transient exacerbation of symptoms which would have required surgery in any event. On the basis of the very short time scale concerned, Mr Crossan could not say that this made any difference to the pursuer's condition. Counsel submitted that in light of all the evidence it had not been demonstrated that the symptoms of which the pursuer complained would not have been experienced even if she had not been working, and even if there was any exacerbation of symptoms, this was not more than a de minimus contribution. The pursuer had failed to make out a causal link between her work and the exacerbation of symptoms of which she complained.

[33] Finally with regard to quantum, counsel pointed out that the values set out at page 46 of the Judicial Studies Board Guidelines relate to cases in which the injury has been caused by the work process. Causation of a condition with complete recovery within a short period is valued at between £1,250 and £1,900, and a case involving only exacerbation of symptoms where the effect is what counsel described as "fleeting" must be well below that range. He referred me again to the case of McFarlane v Ferguson Shipbuilders, which was a claim for aggravation of tennis elbow limited to a period of some months (many more months than in the present case). Solatium was assessed in that case at £1,000. Counsel submitted that solatium in the present case should be assessed at a maximum of £250. With regard to wage loss, he submitted that there was no evidence that the pursuer's absence from work and her operation were caused by any exacerbation resulting from her trussing work, and indeed the evidence was to the effect that she would have required an operation in any event. No awards for wage loss or loss of services were therefore appropriate.

Discussion

[34] I formed the impression that the pursuer was a truthful witness, who was doing her best to assist the Court and was not in any way attempting to mislead. However, as pointed out by counsel for the defenders and as accepted by counsel for the pursuer, her evidence was riddled with contradictions, and I did not find her to be a reliable witness as to the detail of how many hours she would spend in an average day or week on the trussing line. If it had been necessary for the purposes of this action for me to make a determination as to the exact number of hours which she worked on the trussing line each day from the period from December 2000 until her operation in March 2001, I should have found this impossible. However, in light of the expert evidence, and in particular the evidence of Dr Crossan, I do not consider that it is necessary for me to make such a precise determination. Looking at the whole of the evidence, including the evidence of the pursuer's fellow employees, I am satisfied that the pursuer was engaged in trussing work for three to four days each week during the first half of her work shift, and that she was engaged occasionally in trussing work for at least part of the second half of her shift. I am satisfied that the work which she performed was as shown on the video (Production No.6/1 of Process). Although this video was taken on 21 November 2003 and showed another employee working at the trussing line, the pursuer stated that this was the way which she worked, and that the video accurately showed how she trussed chicken carcasses on the trussing line. There was no more detailed evidence as to how the pursuer performed this task, and the pursuer's assertion that she worked in this way was not contradicted. Accordingly, I proceed on the basis of this assertion.

[35] The video initially shows the employee picking up a carcass from the workbench beside her and placing it on the workbench in front of her. While the carcass is on the workbench in front of her, she manipulates the legs and wings of the carcass, and then applies elasticised string around the carcass before tossing it onto a moving conveyor belt. After the first four chicken carcasses, which appear to have been picked up by the employee from the workbench beside her, she begins to lift carcasses from shackles on a conveyor belt at approximately head height above the workbench and take each carcass in turn to manipulate and truss it on the workbench in front of her. From taking the carcass from the workbench or from the shackle, through the process of manipulation and to the point at which the trussed carcass is thrown onto the lower conveyor belt takes approximately eleven or twelve seconds per carcass. Of this time it appears that less than one second is taken in lifting the carcass from the shackle to the workbench, and only a fraction of a second is taken in throwing the trussed carcass onto the conveyor belt. While the carcass is being manipulated and trussed, the employee is working on it while the carcass is on the workbench, or picks it up for a moment to apply the trussing string around it before placing it back on the workbench.

[36] Despite the eloquent submissions by counsel for the defenders as to causation, I was satisfied on the evidence that there was a sufficient causal link between the pursuer's work on the trussing line and the exacerbation of her symptoms. Although Dr Crossan found it difficult to be specific as to the precise extent of exacerbation, and although he accepted that it was more difficult to link exacerbation to work activities when the activities were carried out over a short period of time, nonetheless his evidence was that whilst the pursuer's work practices did not directly cause her to develop Carpal Tunnel Syndrome, they have caused increased levels of pain and increased persistence in pain. She might have required surgery at some stage even if she had not been working, but I am satisfied on the evidence that the manipulation of chicken carcasses which she was required to perform on the trussing line did cause an exacerbation of her symptoms which was greater than de minimus.

[37] The question remains whether this manipulation was carried out as part of any manual handling operations at work for the purposes of Regulation 4(1)(a) of the Manual Handling Operations Regulations 1992. If it was, the pursuer is entitled to damages; if it was not, the action must fail. Regulation 2(1) of the 1992 Regulations defines manual handling operations as meaning "any transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof) by hand or by bodily force." Schedule 1 to the Regulations sets out the factors to which the employer must have regard and question he must consider when making an assessment of manual handling operations, for the purpose of Regulation 4(1)(b)(i). The questions which the employer must consider are as follows - are they heavy? Bulky or unwieldy? Difficult to grasp? Unstable, or with contents likely to shift? Sharp, hot or otherwise potentially damaging?

[38] When interpreting the Regulations and deciding whether an activity constitutes a manual handling operation, the Courts have applied a common sense approach and have had regard to the ordinary meaning of the words "any transporting or supporting of a load". It does not follow that because an employee is pushing or pulling or moving something that this necessarily involves the transporting or supporting of a load - see for example King v Carron Phoenix Ltd, in which the pursuer was involved in pushing and pulling with a spanner to loosen and tighten bolts on production machinery, and Lord Kingarth observed that "as a matter of ordinary language and in the context of the Regulations, although the pursuer was no doubt involved in pushing and pulling when working with the spanner, it could not be said that he was involved in the transporting or supporting of a load." In William McFarlane v Ferguson Shipbuilders Ltd, in which the pursuer sought to rely on Regulation 4(1)(a) for injuries sustained while pushing a grinder over a surface, Lady Smith rejected the contention that this could be regarded as the transportation or supporting of a load. She observed that:

"The use of the expression "load" connotes something that is to be conveyed. The expressions "transporting", "supporting", "lifting", "putting down", "pushing", "pulling", "carrying", and "moving" are all descriptive of different activities involved in the conveyance of a load. The activity being carried out by the pursuer when he was grinding was, however, nothing to do with the conveyance of a load. It may have involved pushing but that was not for the purpose of moving the grinder from one place to another. It was for the purpose of producing a particular effect on the surface over which it was being pushed."

I respectively agree with the approach taken in each of these cases.

[39] In the present case, on the basis of the video evidence, it appears that the removal of a chicken carcass from the upper shackle to the workbench might be categorised as a manual handling operation, involving as it does both elements of transporting and supporting of a load. It may also be that the action of throwing the trussed carcass onto the lower conveyor belt can be categorised as transporting or supporting of a load by hand or by bodily force. However, there is no suggestion that the pursuer sustained any injury or exacerbation of symptoms as a result of either of these steps. Her complaint was focused on the repetitive movements of the wrists, hands and fingers in the manipulation of the chicken carcass, by tucking in the legs and wings and tying it with elasticated trussing string. While this manipulation was being performed, there was no transporting or supporting of a load.

[40] Counsel for the pursuer attempted to characterise the activity on the trussing line as one single operation, involving the transporting and supporting of the chicken carcass from its initial position on the upper shackle, via the workbench to the lower conveyor belt. This is too superficial an analysis of what happens. Because a load starts at point A and ends at point B, it does not follow that everything that is done to that load between points A and B amounts to a manual handling operation. If the pursuer's argument is correct, it could apply to any activity carried out on a workbench, however lengthy or detailed the activity was. Counsel for the defenders used the analogy of a typist sustaining injury as a result of repetitive use of a keyboard. This would not normally be regarded as a manual handling operation, as no load is transported or supported. The task cannot be transformed into a manual handling operation by looking at the surrounding context, in which the typist commences the operation by fetching and carrying a bundle of blank paper and concludes the operation by lifting and delivering a bundle of typed correspondence.

[41] The exacerbation of symptoms of which the pursuer complains was caused not by any transporting or supporting of a load, but by the manipulation of the chicken carcass whilst on the workbench. While this manipulation process was being carried out, the chicken carcass was not being conveyed anywhere. It would be straining the ordinary use of language to describe this manipulation as the transporting or supporting of a load, and it would be contrary to common sense to describe all the activities from the lifting of the carcass from the upper shackle to the workbench, through the manipulation of the legs and wings and the trussing of the carcass, to the throwing of the carcass onto the lower conveyor belt, as one operation of transporting or supporting of a load. Between the two elements of transporting or supporting of a load there is an interval, during which the carcass is worked upon at the workbench. It follows from this that the exacerbation of symptoms experienced by the pursuer as a result of manipulating the chicken carcasses on the trussing line was not caused by a breach of Regulation 4(1)(a) of the 1992 Regulations, and this action must fail.

[42] If I had been making an award of damages in favour of the pursuer, I should have valued solatium at substantially less than the range of £1,250 to £1,900 given in paragraph (K)(d) on page 46 of the Judicial Studies Board Guidelines, because that range relates to conditions caused by faulty behaviour, rather than cases such as the present in which pre-existing symptoms were merely aggravated. Moreover, the exacerbation of symptoms in this case was relatively short-lived, commencing in about early December 2000, involving a first visit to the pursuer's doctor on 22 January 2001 and in a successful operation as a day patient on 24 March 2001. Having regard to the cases to which I was referred, and taking into account the pain and discomfort experienced in the period of post-operative recuperation, I should have awarded solatium in the sum of £900 inclusive of interest to date.

[43] With regard to the claim for loss of earnings in the period from March to June 2001 following the pursuer's operation, despite the argument advanced for the defenders that the pursuer would have probably required surgery at some stage in any event even if she had not been working on the trussing line and so this head of claim should not be allowed, there was no evidence to indicate when such surgery would be required if the pursuer had not been working. On balance, I am satisfied that the evidence disclosed a sufficient link between the pursuer's working on the trussing line and the need for surgery to relieve her symptoms that, if I had been making an award of damages, I should have included in that award the figures for net loss of earnings and interest thereon provided for in the Joint Minute for the Parties (Production No.20 of Process). With regard to the claim for necessary services in terms of Section 8 of the Administration of Justice Act 1982, the help provided by the pursuer's family was limited in time and in scope; it lasted for only six to seven weeks, and covered drying the pursuer's hair, working at a sink and some housework. This element of the claim is worth less than the sum of £500 which was awarded in McGarrigle v Babcock Energy Ltd; if the pursuer had been successful on liability, I should have awarded a total of £300 under this head of claim, divided equally between the pursuer's husband, her father and her daughter. However, for the reasons given above, I do not consider that the defenders are liable to make reparation to the pursuer. I shall therefore sustain the defenders' third plea in law and grant decree of absolvitor.