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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 19
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PD258/04
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OPINION OF LORD GLENNIE
in the cause
DONNA O'HALLORAN
Pursuer;
against
CIBA SPECIALITY
CHEMICALS plc
Defenders:
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Pursuer:
Party
Defenders: Maguire, Q.C.; Simpson & Marwick
2 February 2007
[1] Between
1988 and July 2002 the pursuer was employed as an electrician by the
defenders. She was aged 16 when she
started work for them and 30 when she resigned.
In this action she complains that she has suffered injury to her neck,
shoulders and back as a result of the work which was allocated to her at
certain times during her employment.
[2] Although
the pursuer had legal representation at an earlier stage of this action, she
has been unrepresented for the last two years or so and she conducted the proof
herself. She was obviously suffering
from physical discomfort whilst doing so, but despite this she managed to
present her case with fortitude and not a little skill. The lack of legal representation at proof
clearly puts a litigant at a considerable disadvantage. However I am satisfied that, within the
limits of her pleaded case (to which I shall refer) and with some assistance on
matters of procedure, she was able to deploy her case effectively.
[3] It
is important at the outset to identify what does and does not form part of the
pursuer's case on Record. This question
arose frequently debated during the course of the proof. The relevant parts of the pursuer's case are
those contained in statements 4 and 8 of the Record. In statement 4 she complains that, in
June and July 2001, she was required to undertake fault-finding and repair work
on an injection moulding machine.
Because of the position and configuration of the machine, this work
involved her working in cramped conditions "on her knees and derriere" beside
the machine; and she was often lying in
an awkward position and having to bend and stretch as well as twisting her head
sideways. She complains that there was
no system of work rotation and that she was required to carry out the work for
long stretches at a time on consecutive days.
Further, she complains that there was no system of regular breaks to
relieve the strain and discomfort of working in those conditions. On completion of the work, she took some time
off on sick leave complaining of a migraine.
When she returned to work on 27 July, she reported neck, shoulder
and back pain and was put on restricted duties until some time in late
September or early October. In
statement 8 the pursuer refers to a period in May 2002. She woke up one morning with a stiff and
painful neck and was again put on restricted duties. She was told to avoid overhead work and, in
particular, to avoid raising her arm
above her head. Despite this, the work
to which she was allocated was that of supervising an apprentice who was
working on lights. She says that this
work involved her not only looking up at the work which he was carrying out
overhead but also physically checking that work. These activities, she says, caused further
pain to her neck, shoulders and back. It
is said in statement 11 that as a result of these matters, she suffered
injury to her neck, shoulders and back and has developed headaches. She avers that she continues to suffer great
pain and restriction as a consequence of the injuries; and she describes the help she receives both
from social services and from her partner.
[4] During
the course of the proof the pursuer sought to lead evidence of a much broader
complaint, covering the fourteen years of her employment with the
defenders. She sought to justify this by
reference to averments in statement 5 that over that period she suffered
sexual discrimination and mental abuse as well as physical abuse, involving her
working on long fluorescent light fittings (even when pregnant), and resulting
in a breakdown due to stress and depression in 1999. She had taken her case of sexual
discrimination to an Employment Tribunal and been vindicated in part at
least. It did not seem to me that the
averments in statement 5 gave notice of any case of fault (other than the
sexual discrimination) nor of any case linked to the injuries from which she
claims (in statement 11) that she has suffered. I therefore refused to allow this line of
evidence. Other averments on Record,
such as the pursuer receiving an electric shock whilst working on a fluorescent
light fitting; the pursuer being put on
to doing lights by herself; a discussion
about the wearing of a safety helmet; and
the defenders' refusal of help with transport (when the pursuer was told to
refrain from driving after having slipped at work and banging her head) all
appear to me to be mere narrative. There
were no averments suggesting that any of these incidents involved any
actionable fault on the part of the defenders.
Accordingly, it seemed to me that the pursuer's case on liability was
restricted to the complaints made in statements 4 and 8 to which I have
referred. I propose, therefore, to
restrict my consideration of the evidence to that relating to these two
periods.
[5] Before
doing so, I should note that the pursuer called as witnesses a number of the
defenders' employees who had either worked with her, instructed her in her work
or were part of the Occupational Health Department to whom she reported her
complaints. At the close of the
pursuer's case, the defenders elected not to call evidence. It did not seem to me that any adverse
inference should be drawn from this, since I was not made aware of any
individuals who were not called by the pursuer who might have been able to
offer assistance.
Stat.
4 - June/July 2001 - working on the Injection Moulder
[6] It was not in dispute that the
pursuer was put to work on the injection moulder in June and July 2001. It was apparent that the injection moulder
had been causing trouble for some time and there had been a number of earlier
attempts at repair. The pursuer gave
evidence that the machine was important and was urgently needed, and in this
she was supported by a number of witnesses, including Mr Davidson who
instructed her to carry out this work. I
am satisfied that the job was important and required to be carried out
expeditiously. I am also satisfied on
the evidence that the job was very awkward, particularly if carried out by one
person rather than two. The job involved
fault-finding and then re-wiring. The
fault-finding involved the pursuer in checking a large number of connections on
the machine. This involved working
between two panels, one situated less than a foot above floor level and the
other, perhaps three or four foot away, at a height of about three feet
off the floor. Working on connections
between these two panels involved the pursuer in sitting or lying in awkward
positions, stretching awkwardly and twisting her neck and shoulders. The work of re-wiring was similarly
awkward. I accept the pursuer's evidence
that she was left to carry out this work by herself for by far the greater part
of the time spent on it. Insofar as
Mr Davidson sought to suggest that he spent any significant amount of time
helping the pursuer, I reject his evidence.
I did not find him to be an impressive witness. Where his evidence differed from that of the
pursuer I did not accept it. Had the
defenders put two people on the job it would clearly have saved time and
reduced some of the awkwardness. In
particular, tasks could have been rotated between the two people working on the
machine; and the requirement to stretch
between the two panels would have been reduced.
[7] There
was some controversy as to the time involved in the work. Work such as this was recorded in advance in
a Permit to Work Book. The defenders
produced copies of pages from that book showing work on 25, 26, 29 June
and on 3, 4, 9, 10, 11 and 12 July 2001.
The work covered by those permits was re-wiring. On the evidence, I was satisfied that that work
was also carried out over a weekend and would not necessarily have been recorded
on the same permit or in the same book.
I find that the pursuer was involved in re-wiring the machine for about
11 days between 25 June and 12 July
2001. There were no permits
produced by the defenders for the earlier fault-finding. When the defenders produced the original
Permit to Work Book at the end of the proof, it was apparent that two or three pages
covering the period of the fault-finding had been torn out of the book. Miss Maguire, Q.C., for the defenders,
explained to me that, if an error was made on a page, that page would be torn
out. I do not need to decide why the
pages were missing. It was accepted by
the defenders and by witnesses (including Mr Davidson) that the pursuer
had spent some considerable time in fault-finding. In the absence of any written record to
contradict her evidence, I accept the pursuer's evidence that she spent about 10 days
fault-finding on the machine. This was
followed by a short break and then, as I have found, a further 11 days
re-wiring the machine. Most of the time
she was working by herself.
[8] At
the end of that period the pursuer took two weeks sick leave. The reason she gave was that she had a severe
headache or a migraine. When she
reported back for work on 27 July 2001
she complained of pain in her neck (on the right side), her shoulder and the
middle or her back. The Treatment Record
from the Occupational Health Department stated that muscle spasm was evident on
examination. It records that the pursuer
felt that the headache was related to the muscle strain and that she associated
this with the work she had carried out in an awkward position on the injection
moulder. A "Fitness for Work Assessment"
was issued by the Occupational Health Department advising that the pursuer be
given restricted work avoiding a number of activities such as stretching
overhead or across the body on the right side.
The pursuer attended the Occupational Health Department on a number of
occasions. Although the records are not
entirely clear, it appears that she was on restricted work until, at the
earliest, some time in late September 2001.
[9] The
pursuer's case on fault, in respect of this part of her case, fell under two
heads: first, that she should not have
been assigned to this work by herself for such a prolonged period; and secondly, that she was not permitted or
encouraged to take breaks from her work, to get up, walk around and stretch as
necessary, to relieve the discomfort and prevent the development of pain in her
neck, shoulders and back. Underlying both
of these complaints was a criticism of the defenders' failure to have in place
any risk assessment for this or indeed any work carried out at their
premises. It was the evidence of all the
witnesses who spoke to the matter that there were no risk assessments carried
out by the defenders in relation to this work at this time. The pursuer put her case both at common law
and under statute. With Miss Maguire's
assistance, for which I am grateful, the relevant Regulations were identified
as the Management of Health and Safety at Work Regulations 1999 (S.I.
1999/3242) and not those referred to by the pursuer on Record. Regulation 3 places an obligation on
employers to make suitable and sufficient risk assessments. However, Miss Maguire pointed out that
civil liability for breach of the Regulations was excluded by
Regulation 22. In those
circumstances, the pursuer has to fall back on her common law case, albeit that
the requirement for a risk assessment imposed by the Regulations may assist in
informing any duty of care owed by the defenders at common law.
[10] The common law duty on an employer to take reasonable care not
to cause an employee avoidable injury, and not unnecessarily to expose an
employee to the risk of such injury, manifests itself in specific duties which
vary according to the particular employment and the circumstances in which the
employer and employee are placed. In
this case, that duty, so it seems to me, includes the following: a duty not to put the pursuer on work for a
prolonged period without having taken steps to make themselves aware of the
risks of injury involved in that work; a
duty not to instruct or permit the pursuer to carry out that work by herself
without have taken steps to ascertain whether any risk of injury inherent in
her carrying out the work by herself could be diminished by putting another
person on to work with her; subject to
the above, a duty to ensure that a job such as this was carried out by two
people rather than one; and, subject
again to the above, a duty to ensure that persons instructed to carry out this
work were fully aware of the need, and of their entitlement, to take breaks
whenever necessary to ease the discomfort of working in cramped and awkward
conditions. No doubt there are other
ways in which the general duty of care would impact upon this work, and other
ways in which the particular duties to which I have referred could equally well
(or better) be expressed. But nothing
turns on the precise expression of the duties.
[11] In the present case, I am satisfied that the defenders were in
breach of duty to the pursuer. As I have
said, no risk assessments at all were carried out by the defenders. There was, in the course of the evidence, a
faint suggestion that the Permits to Work operated as a kind of risk
assessment. Such a suggestion is, to my
mind, untenable; and it was not relied
upon in argument by Miss Maguire.
Given the absence of a risk assessment of any sort, the defenders could
not show that they even addressed their minds to the sort of injury that
someone in the position of the pursuer might suffer if carrying out this work
for long periods and without assistance.
Further, from the description of the work that was taken from a number
of witnesses, it seemed to me to be manifest that putting two people on the job
would not only have made the job faster, but would have helped to alleviate the
discomfort which the pursuer suffered.
There would have been no need for the pursuer to stretch out so as to
reach the two panels at the same time.
There would have been the opportunity of rotating tasks so that a person
working at the panel only a foot or less above the ground would only have been
doing this for a part of the time. It
was also clear from the evidence before me that there was a need to ensure that
someone carrying out this type of work took such breaks as were necessary in
addition to the formal tea and dinner break.
A number of witnesses said that if they were not comfortable they would
stand up, stretch their legs and walk about.
They thought it was obvious that they were permitted to do this. I accept that evidence so far as concerned
those individuals. But I also accept the
pursuer's evidence that she did not feel able to get up, stretch and
walk about whenever necessary. She did,
on her own evidence, sometimes do this.
However, she said that she felt she would be reprimanded if she took
breaks of this sort whenever she felt she needed to. I accept that evidence, and do not accept
that of Mr Davidson who said that, when working with her, he encouraged
her to take breaks. It is clear that
there was no written policy upon which the pursuer could rely, and it was also
clear from Mr Davidson's evidence that at no time did he make any
announcement that in doing the work the pursuer was free to take a break as and
when she thought necessary. In those
circumstances, it seems to me that the defenders failed in their duties towards
the pursuer.
[12] I have indicated earlier that the pursuer took a case of sexual
discrimination against the defenders to the Employment Tribunal. The Tribunal found that the defenders did
discriminate against the claimant unlawfully in a number of respects. The complaint covered a long period through
the 1990s and into the years with which the present action is concerned. The decision and findings of the Tribunal are
consistent with my finding that the pursuer genuinely felt that she would be
picked upon if she took the breaks from her work which she thought necessary.
[13] I have little doubt that the pain to the neck, shoulders and
middle back of which the pursuer complained on 27 July 2001 resulted from the pursuer having to carry
out the work in the way in which I have described and resulted, therefore, from
the defenders' breach of duty. I heard
evidence from Mr Foxworthy, a consultant orthopaedic surgeon at whose
clinic the pursuer attended after the events of May/June 2002. He was called as a factual witness, to speak
to the records of the pursuer's attendance at his clinic and the diagnosis made
at that time. He found himself being
asked questions by the pursuer on other matters within his expertise, but for
which he was unprepared. Nonetheless, he
gave evidence about these other matters as best he could; and I am grateful for his assistance. He confirmed that the symptoms of which the
pursuer complained on 27 July 2001
could have been caused by her carrying out the work on the injection
moulder. He said that he would expect
such symptoms to clear up within a period of 2 - 8 weeks. I accept this evidence. It seemed from the pursuer's evidence that by
about the end of September she felt fully recovered. Indeed, one of her complaints was that she
was not given overtime in October. There
was no other suggested cause of the pursuer's symptoms at that time; and I find as a fact that the defenders'
breach of duty caused the pursuer to suffer neck, shoulder and back pain for a
period of about 8 weeks from late July to late September 2001.
[14] I shall address separately the more substantial question of
causation, namely whether the work on the injection moulder to which the
pursuer was assigned in June and July 2001 caused or contributed to the long
term injury to her neck, shoulder and back of which she complains in
statement 11.
Stat.
8 - supervision work assigned in May 2002
[15] On 20 May 2002 the pursuer reported pain in the
right side of her neck and to her shoulder and arm. It was not contended that this pain arose
from any work-related incident at that time, and although it may have been
linked to the pain which the pursuer suffered in July to September 2001, there
was no evidence upon which I could find that it was. The Occupational Health Department provided a
Fitness for Work Assessment for the pursuer in which it was said that she had
suffered this pain for some two to three weeks intermittently, but it had
got worse. The assessment continued: "Restricted in working on areas overhead and
when raising (R) arm above head as these will aggravate [the pursuer's]
condition." Notwithstanding this Assessment
by the Occupational Health Department, when the pursuer reported for work she
was allocated the job of supervising an apprentice who was doing lighting at
the premises. Supervision of that work
involved the pursuer looking upwards, whether from the ground or from a
stepladder or platform. The pursuer said
in evidence that she physically checked all of the work carried out by the
apprentice. I formed the impression that
this was something of an exaggeration, but I accept that she did physically
check a substantial part of the apprentice's work. I also accept that this would have been
expected of her. She was, therefore,
allocated work of a type which, according to the Fitness for Work Assessment, was
unsuitable for her and liable to aggravate her condition. Mr Grieve, who gave her instructions in
relation to this work, said in evidence that he would have discussed the work
with the pursuer and would not have put her onto this work without her
agreement. The pursuer disputed
this. I do not accept that there was the
sort of discussion that would have left the pursuer in a position where she
felt free to decline that work. But even
if there had been such discussion, that would not have been adequate. The recommendation from the Occupational
Health Department was unambiguous. The
pursuer should not have been put on that work.
She should not even have been asked whether she was prepared to do it.
[16] However, I am not persuaded on the evidence that this work of
supervision either caused or exacerbated her pain. On 31 May
2002 the pursuer was asked by Mr Grieve to change a Castel lock. She declined on the ground that the lock was
too heavy for her to deal with. She was,
as I understood the evidence, feeling fit by that time. The overheard supervision and the pain
resulting therefrom therefore lasted for no more than about 10 or
11 days. In the Occupational Health
records (after the entry about the neck, shoulder and arm pain reported on 20 May 2002) there are entries relating
to treatment for that pain, but there is no record of a complaint that the work
supervising the apprentice was causing any aggravation to it. In the Summons, the pursuer avers that at
about the end of May 2002, she slipped at work and fell backwards banging her
head on a concrete floor which increased the pain. In her evidence, by reference to a
precognition signed by her in January 2004, she said that this slip occurred on
24 May 2002. She there says that this slip aggravated her
symptoms. The slip is not attributed to
any fault on the part of the defenders.
In the Occupational Health records there is an entry of 10 June 2002 recording that the
pursuer attended physiotherapy on Friday
7 June 2002 in pain.
The entry attributes that pain to what happened about two weeks before. This appears to be a reference to her fall on
about 24 May. It is impossible to
find any evidence that links her supervision duties during the period from 20
to 30 May 2002 to any
aggravation of the pain which she was suffering. It is as likely, if not more likely, that any
such aggravation was due to her fall on about 24 May. In addition, Mr Foxworthy thought it
unlikely that moving her head up and down to inspect the apprentice's work - a
neck movement in a single plane - could have caused any aggravation of her neck
pain.
[17] In those circumstances, I do not find it proved that the
defenders' conduct in putting the pursuer on supervisory duties contrary to the
recommendation of the Occupational Health Department caused or aggravated the
pain that the pursuer was suffering to her neck, shoulders and arm.
Stat.
11 - the pursuer's long term injury - diagnosis and causation
[18] The pursuer's averments in
statement 11 are that she "suffered injury to her neck, shoulders and
back" and that "she developed headaches".
She recites that she has attended her general practitioner,
physiotherapists, an osteopath and a chiropractor, as well as an holistic
healer. She goes on to aver that she
"continues to suffer great pain and restriction as a consequence of said
injuries"; and she recites that she
receives help from social services in the form of a carer who supplies her main
meals for her and her son, a carer who helps with personal care, and carers who
help with shopping, house cleaning, laundry and ironing. She says that her partner has rendered
services for her. She describes how she
can no longer take part in activities with her son and how the injury has
affected all aspects of her home, social and work life.
[19] Seeing the pursuer conduct her case over the course of two
weeks, I can readily accept that she is in significant pain and
discomfort. But I had no evidence upon
which I could form any sensible view as to whether the condition that she has
is likely to improve, remain constant or deteriorate over the years. There is a letter from the pursuer's general
practitioner dated 8 January 2003
confirming that the pursuer has suffered from severe chronic neck pain for
several months and is unable to perform manual work. He did not give evidence. That letter was written to support the
pursuer's request for assistance from the Council for her gardening. It stated that the pursuer had a genuine
problem and concluded: "I do not
anticipate any change in her circumstances in the near future". That was four years ago. The pursuer was x-rayed and had an MRI scan
at Mr Foxworthy's clinic at Crosshouse
Hospital. The MRI scan confirmed degenerative changes
at T1/T2. Mr Foxworthy, in a letter
of 13 January 2003,
suggested a referral to the pain clinic.
The MRI scan did not show any disc pathology in the pursuer's neck. Blood tests and isotope bone scans were
carried out in case there was some treatable condition such as discitis or
osteitis. The conclusion was negative. A letter of 6 August 2003 from a consultant neurosurgeon,
summarising the correspondence from Crosshouse
Hospital, said that "no surgically
treatable cause for her chronic neck and arm pain has been identified". In a letter of 12 August 2004, written in connection with the
pursuer's appeal for Disability Living Allowance, the pursuer's general
practitioner confirmed that the pursuer had chronic severe neck pain and
limited function which affected her activities of daily living. But as with previous letters and reports,
this letter provided no diagnosis.
Kirsty Russell, a physiotherapist to whom the pursuer was referred, in a
letter of 27 November 2003,
stated that neurological examination of C5/6 showed that myotome - which I
understood to be the supply of power to the muscles in that area - was reduced
on the right side. None of this enables
me to form any view on the likely development of the pursuer's condition and
symptoms.
[20] The problem for the pursuer is that the cause of her problems has
not yet been diagnosed. Most of the
observations are of symptoms. All
Mr Foxworthy could say with certainty was that there had definitely been
degenerative changed to T1/T2. But it
was difficult to identify the cause of this.
Mr Foxworthy said that it was not caused by the period of work on
the injection moulder. He said that
degenerative change could not arise from activity of such a limited duration as
2 to 4 weeks. Further, degenerative
change such as that was unlikely to be the cause of the pursuer's
symptoms. It would be likely to cause
symptoms only at the localised level, where the neck joins the upper
chest. It might be the cause of neck
pain, but he would not have expected shoulder, arm or back pain to result from it. He was unable to ascribe the pain from which
the pursuer presently suffers to the work that she was made to do in June and
July 2001.
[21] On the basis of the material before me, and in the absence of
expert medical evidence providing a diagnosis of the pursuer's present condition
and linking it causatively to the events of June and July 2001, I am unable to
conclude that her present condition was caused by those events.
Quantum
[22] There was no evidence before me
which would have enabled me to form a view as to the pursuer's wage loss, either
on the assumption that she was unable to work for the rest of her life or on
any other assumed duration of her injuries.
Nor, in the absence of any diagnosis of how long her injuries would
last, and how they were likely to change in terms of severity over the coming
years, was I in a position to form any view as to the appropriate measure of
damages by way of solatium. Had I found
that the pursuer was suffering a long term injury caused by the defenders'
fault, I would, in the unusual circumstances of this case, have been minded to
put the case out By Order for consideration of whether I should,
retrospectively, treat the present proof as one on liability only, allowing
further consideration to be given to the question of quantum. The defenders indicated that they would
oppose such a course. But in view of my
findings that the pursuer has failed to prove any causative link between her
present injuries and the defenders' breach of duty, that question does not
arise.
[23] I do, however, have to consider what, if any, damages I should
award in respect of the period of neck, shoulder and back pain suffered by the
pursuer from July to September 2001, which I have found was caused by the
defenders' breach of duty in assigning her to work without adequate assistance
or breaks for long periods on the injection moulder. There is no evidence that she lost wages
during that period. However she suffered
pain and discomfort for a period of about 8 weeks. There is no evidence of how this affected her
life at home. I was presented by Miss
Maguire with an extract from the 8th edition of the Guidelines, published by the Judicial
Studies Board in England. The neck pain that I have described would be
regarded in their categorisation as minor.
Where there is a full recovery between a few weeks and a year, the
suggested figure for general damages, or solatium, is between г750 and
г2,550. With a recovery, as here, within
about 8 weeks, a figure at the lower end of that range would be
appropriate. Doing the best I can, I
assess the pursuer's damages in the sum of г1,500.
Conclusion
[24] I shall therefore pronounce
decree in favour of the pursuer in the sum of г1,500, together with interest at
8% per annum from date of citation until payment.
[25] It gives me no satisfaction that, after a two week proof at the
end of which I have held the defenders to have been in breach of duty to the
pursuer in respect of an incident in July to September 2001, that I should make
an award of such a small amount, particularly when set against the pursuer's
amended claim in which she concluded for г800,000. Part of the problem may lie in the pursuer's
incorrect assumption that she was coming to court to pursue a claim based on
the whole of the work she was instructed to carry out over a fourteen year
period. Part of the problem may lie also
in the pursuer's failure, resulting no doubt from her lack of legal
representation, to bring to court expert medical evidence to support the
causative link to the main part of her claim.
However, I have to decide the case on the basis of the evidence led in
support and the case on Record. It would
be unfair to the defenders to imply any assumption that the wider case which
the pursuer wanted to advance would have succeeded; or that further expert medical evidence could
have proved that the pursuer's current difficulties were caused by their breach.
