Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [20112] CSOH 001
PD2114/09	OPINION OF LADY SMITH in the cause DAVID WALKER Pursuer; against SMITH ANDERSON PACKAGING LIMITED Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Blessing, Advocate; Thompsons, Solicitors

Defender: MacKenzie, Adovocate; Simpson & Marwick

[Date of Issue]6 January 2012

Introduction

Smith Anderson Packing Limited, the defenders, manufacture paper bags for the fast food industry. Mr Walker, the pursuer, has worked for the defenders since 2001 including as a machine operator from spring 2003. By the time of the proof, his role had changed; he had become a production leader, which is a supervisory role.

The pursuer had pain in his right wrist for a period from early September 2006. He was off work for five weeks. He attributed the pain to:

"suffering tendonitis of the right wrist relating to repetitive strain injury."
[1]

He seeks damages.

Issues

The defenders did not dispute that, contrary to the requirements of paragraph 5(1) of the Provision and Use of Work Equipment Regulations 1998, they had failed to ensure that certain work equipment - a machine known as a 'Potdevin 6' - had been maintained in an efficient state and in efficient working order. A part of the machine which, had it been working, would automatically have folded the ends of parcels of bundles of bags, was not functioning. The parcel ends required, accordingly, to be folded manually. Agreement was also, helpfully, reached regarding various documents and wages rates.

The issues between parties were:

(i)                 Whether or not the pursuer contracted tendonitis in or around September 2006?

(ii)               If the pursuer did contract tendonitis:

a.      What caused it?

b.     Whether he continued to suffer any symptoms relating to it?

c.      Whether he is, as a consequence, disadvantaged in the labour market?

Witnesses

There were five witnesses for the pursuer: the pursuer, David Robertson (fellow employee), Michael Kuszeluk (fellow employee), Professor Margaret McQueen (orthopaedic surgeon), and Clive Andrews (ergonomist).

There were two witnesses for the defenders: Dr David Ross (hand surgeon) and Dr Richard Graveling (ergonomist).

Facts

Having heard the evidence led and considered it together with the joint minute, I was satisfied that the following facts were established.

The defenders use machines called 'Potdevins' in their paper bag manufacturing process. Towards the end of the process, stacks of bags pass into a part of the Potdevin which wraps them in bundles of either 500 or 1000. It generally takes 2 to 3 minutes for the process of producing parcels of 500 bags to be completed and 4 to 5 minutes in the case of 1000 bags. At the relevant time, the pursuer was working on 500 bag parcels. The wrapping material is thick brown paper. The parcels pass into a part of the machine known as the bag tender at which point, although the machine has wrapped the paper around four sides of the bag parcel, encircling it, the ends are still open; the ends require to be folded in manually.

The manual folding operation involves: (i) the operator opening a gate at one side of the machine, thereby halting the ongoing conveyor process; (ii) reaching into the bag tender and making creases in the paper so as to create wrapping folds; (iii) walking round the machine to the other side; (iv) opening a similar gate to get access to the other end of the parcel; (v) reaching in and making creases in the paper at that end so as to create wrapping folds; and (vi) closing that gate.

Although stages (ii) and (v) can be performed using both hands, operators tend to use one hand, whilst holding the gate open with the other hand. The pursuer usually used his right hand. Those stages involved taking hold of the paper, pulling it across, folding it in and pressing it flat to form creases. These actions are carried out using a mixture of hand and arm movements: rotating the forearm, flexing the wrist, using the fingers both bent and flat and using both the front and back of the hand, bent and flat.

It takes the operator no more than a few seconds to carry out the folding task involved at stages (ii) and (v). Those stages take less than half the time involved in the entirety of stages (i) to (vi). The operator is not under pressure of time, given that the conveyor has stopped. Stages (i) to (vi) in total take less than 20 seconds to complete. The operator is also responsible for generally checking on the running of the machine and loading the finished parcels of bags onto pallets.

Stages (ii) and (v) are not difficult to perform and whilst the operator requires to be firm, they do not require a lot of force. The force required is best described as minimal.

The pursuer, who is aged 28 years, became a machine operator in 2003. He worked 8 hour shifts until about April 2005, when he moved onto working 12 hour shifts, 4 days per week. Throughout his time as a machine operator, he required to carry out the manual folding operation referred to above. He became skilled in so doing, developing a knack for the task so as to carry it out with as little wasted effort as possible. In 2007, the 12 hour shifts ceased and the pursuer returned to working 8 hour shifts. When working 12 hour shifts, the pursuer had daily rest breaks totalling 90 minutes. Whilst, at one point, it seemed as though the 12 hour shift pattern was going to be relied on as being of significance for the pursuer's case, ultimately, it was not. He no longer works as a machine operator although, from time to time, he has to carry out the manual folding operation to cover other employees' breaks.

Shortly prior to 11 September 2006, the pursuer began to experience pain in his wrist. He had suffered no symptoms in his wrist prior thereto. The pain was all over his wrist and he had cramping feelings up his arm. On 11 September 2006, he attended his general practitioner. The relevant entry in the GP records reads:

"Right wrist pain. ? secondary to repetitive work. Extensor pollicis brevis. Report physio. Diclofenac. Advise if gets GI upset."

At no time did the pursuer's GP make a definitive diagnosis.

Tendonitis is the term used to refer to inflammation of a tendon; it is where there is an inflammatory response which gives rise to oedema in the surrounding tissues. There is usually swelling in the affected area. It is characterised by the sudden onset of localised pain, localised swelling, redness and severe localised pain on resistance testing. It is a rare condition. The 'extensor pollicis brevis' is a tendon which runs along the outside of the thumb. Inflammation of that tendon can result in what doctors refer to as "de Quervain's tendonitis". The pursuer did not contract de Quervain's tendonitis.

Tenosynovitis is where there is inflammation of the synovial sheath of a tendon. Some doctors and ergonomists use the terms tendonitis and tenosynovitis interchangeably. Pain is localised to a specific area and there will normally be swelling, redness and crepitus as well. Resistance testing will produce an exceedingly painful response. There are such sheaths on the front and back of the wrist. It is commonly caused by inflammatory conditions such as rheumatoid arthritis. It may sometimes be caused by very strenuous activity such as forceful gripping (e.g.when hauling the rope on a fishing boat) or bending the wrist backwards against resistance; force is more significant than repetition.

Diclofenac is an anti - inflammatory painkiller. Anti inflammatory painkillers such as diclofenac are routinely used to treat pain in cases of musculo -skeletal disorder.

The pursuer did not contract tendonitis nor did he contract tenosynovitis.

Force is the main risk factor for hand disorders in industrial work. Repetition may also play a role but it is of less significance than force. Repetition would, however, require to be at a much greater level than that experienced by the pursuer in carrying out the folding task involved in the above process.

The pursuer's GP signed him off work for 5 weeks after which he returned to his job as machine operator, after a short period on lighter duties. He lost wages of £310 as a result of his absence from work.

The pursuer attended Adamson Hospital physiotherapy department where he received physiotherapy treatment and was discharged from further follow up on 29 November 2006. The discharge report states that stiffness from which the pursuer suffered would have been due to inflammation but there is no suggestion that the physiotherapist saw inflammation herself and she was not called to give evidence to explain the basis on which she made what appears to have been an assumption. The physiotherapist supplied him with a splint which he wore, at times, at work, on his return. It was not at all clear from what, if any, ongoing wrist symptoms the pursuer suffered or suffers; he did not always differentiate between past and present. There is, however, nothing at work that he is prevented from doing nor does he need any assistance to perform the tasks required of him.

If the pursuer lost his job (which is not at risk), although he would look for work that was not manual, he would not pass up any work at all.

Observations on the Evidence

Turning first to the pursuer, I would observe that it was apparent that, at times, he was prone to exaggeration. For instance, he was adamant that each folding operation took 10 to 15 seconds (which, on the demonstration recorded on the DVD that was played in court
[2], it manifestly did not), that it involved "quite some force" and involved having to push his hand to the maximum which, again, was not what the DVD showed. Nor did that accord with the evidence of Dr Graveling. He also sought to give the impression that the folding task was a difficult one yet that was directly contradicted by David Robertson, who said that the parcels were not difficult to fold. Similarly, Mr Kuszeluk said that the operation did not involve a lot of force. Then, as to the costs involved in travelling for physiotherapy, he said he drove there and it cost £1‑300 yet there was no evidence that he had multiple appointments (there is but a single entry in the medical records
[3]) or that he had to drive far to attend.

I move then to Clive Andrews, who retired from teaching ergonomics at Napier University in 1998 and is 78 years old. I reject his evidence. It was presented as expert evidence, the area of expertise relied on being ergonomics, particularly, for the purposes of this case, in the context of upper limb injuries sustained at work. I was not, however, satisfied that he was qualified to give expert evidence at all. Rather, unfortunately, his evidence demonstrated his incompetence. I so conclude for a number of different reasons. First, as a generality, he was dogmatic, unduly defensive, aggressive at times and not prepared to make any concessions at all. Secondly, he asserted that he kept up to date. Doing so would, evidently, involve knowledge and understanding of relevant up to date studies (the defenders' productions included, for instance, studies which postdated 2000). Mr Andrews report
[4] contained a list of 30 references "RE: TENOSYNOVITIS" ranging in date from the nineteenth century to 1982. No reference later than that was included, not even the later 1987 version of a report (the 1982 version of which he listed) by 'Armstrong et al'(produced by the defenders at 7/15, 5b). Some of them were written in German; Mr Andrews does not speak or read German. Although he, initially, insisted that he had read all the papers and articles referred to, on further questioning, it transpired that he had not done so. He suggested he had read synopses in English, of the German ones. He also said he could not remember what he had read. Thirdly, he repeatedly and erroneously referred to Dr Graveling's report as having stated that the time involved in the manual folding process alone (i.e. stages (ii) and (v) above) was 20 seconds when plainly it did not; Dr Graveling's report referred to the entirety of stages (i) to (vi) taking "less than 20 seconds"
[5]. He would not accept that Dr Graveling's 20 second period did not relate solely to stages (ii) and (v) of the process. Further, he insisted on basing his answers on a timing of 20 seconds for stages (ii) and (v) even although the DVD (which he had filmed himself) demonstrated that the time taken was significantly less than that. Fourthly, when asked if he had read the report by Dr Ross, his answer was that he 'believed' it had been sent to him but he had 'read a whole lot of documents' and hoped that if it was in 'the pile' that he would have read it, giving the distinct impression that he had a poor memory and was careless. Fifthly, he refused to answer questions in cross examination which were posed on the basis of a hypothesis of fact which was, given the defender's case, appropriate. Sixthly, he had worked on the basis that the breaks afforded to the pursuer when working 12 hour shifts were only 50 minutes (which they were not - as abovenoted, the breaks totalled 90 minutes) and that the pursuer worked a 5 day week on 12 hours shifts (which he did not - he worked 4 days). Seventhly, he was offensively dismissive of Dr Graveling's report. He assumed he had not slowed down his DVD, to analyse it (which Dr Graveling had infact done). He referred to Dr Graveling's use of the word "stereotyped" and rejected it because 'it could mean anything'; as Dr Graveling explained, that term is well recognised by ergonomists. Eighthly, he made no allowance, when analysing his DVD, for the fact that it was a staged event in the sense that he did not film the pursuer in 'real time' but had him carry out a deliberate demonstration - an exercise which, as Dr Graveling explained, tends to be artificial. Ninthly, as explained by Dr Graveling, the description in Mr Andrews' report of the sequence of movements carried out by the pursuer in the folding operation did not tally with what was shown on the DVD.

Turning to Dr Graveling, he impressed me as being steady, reliable, thoughtful and professional. He is the principal ergonomics consultant employed by the Institute of Occupational Medicine. He had observed the Potdevin machine process through a number of cycles, taken a video and analysed it. His description of the operator movements was as set out in the above findings in fact. He was clear that the forces involved in folding the paper were negligible and observed that force itself was not the key element involved in making the crease. Also, it was well recognised that persons carrying out manual tasks learn, over time, to minimise the effort involved; it did not surprise him to be told that the pursuer had developed a knack for the job. He plainly had a reliable familiarity with the studies referred to in his report, some of which find that there is an association between repetitive movements at work and upper limb injuries, including tenosynovitis and tendonitis. He concluded that the movements carried out by the pursuer in the course of the folding task he had to carry out were not such as to put him at risk of upper limb injury.

Moving on to Professor McQueen, her eminence in the field of orthopaedics, particularly in relation to the upper limbs, is well known and was not disputed. She is a world authority on wrist fractures. She is not, however, a member of the British Association of Hand Surgeons. She examined the pursuer on 3 May 2010, some 3 years and 8 months after him having attended his GP complaining of wrist pain. She concluded that the pursuer's pain at that time was a result of tendonitis. The treatment of tendonitis is a minor part of her practice, amounting to about 5%. Professor McQueen concluded that the pursuer had been suffering from tendonitis. She stressed that her view was arrived at on a balance of probabilities - infact referring, at one point, only to there being a "chance" that the pursuer was suffering from tendonitis - and in circumstances where she could not think of any other diagnosis. She relied on five factors, namely (a) that the pursuer had had wrist pain, (b) the nature of his work, (c) that the pain ceased when he stopped work, (d) that his GP prescribed an anti - inflammatory drug (which she saw as showing that his wrist was inflamed) and (e) that the GP referred to the extensor pollicis brevis, which was indicative of inflammation. So far as (b) was concerned, her conclusions were based on information that she had been given by the pursuer to the effect that he had had to fold parcels at the rate of 300 to 350 times per day at the relevant time. That was, as the above findings show, an overstatement. She also appeared to assume that the job involved rapid movements of which there were many in succession which, again as shown by the above findings, it did not.

Professor McQueen did, however, accept that so far as the thinking behind prescribing an anti-inflammatory was concerned, one would need to hear what the GP had to say about that. It was evident that she was assuming, from the fact of the prescription of diclofenac that the GP had been satisfied that there was inflammation. Also, she had not viewed the DVD
[6], she had not seen the pursuer carrying out the relevant manual folding task and she was not given any account of the particular hand and arm movements involved; it was surprising, in these circumstances, that she was prepared to offer the view that the pursuer's condition was caused by his work. Regarding the matter of inflammation, the GP did not give evidence and I could not, on the available evidence, conclude that inflammation was present on 11 September 2006 - it was as likely that he had prescribed diclofenac simply because it was an effective painkiller, particularly since he had made no note that the pursuer's wrist was inflamed. Regarding the work process, Professor McQueen's assumption that the pursuer's task involved rapid movements of which there were many in succession was shown by the DVD and by the pursuer's and his workmates' descriptions of the job, to be erroneous. Further, regarding (e) she appeared to contradict herself, having earlier indicated that inflammation in that area was indicative of a de Quervain's tendonitis but that she did not even suspect that the pursuer had that condition. She would not countenance the possibility that the appropriate way to describe the pursuer's condition was as having had arm pain of inspecific origin because, in her view, that could only apply in the case of malingerers - which the pursuer was not - or persons with psychological problems. The impression was that she felt she had to come up with a diagnosis and tendonitis was her best effort. I found that the above matters significantly weakened the value of her evidence and led me to the conclusion that I could not place any weight on it when determining the issues in this case.

I turn to Dr Ross. He is a consultant orthopaedic hand surgeon. He has specialised in hand surgery since 1982 as is evident from his CV. His evidence was clear and persuasive. He regularly sees patients who are referred to him by general practitioners on the basis that they have arm and/or hand pain. He rarely sees cases of tendonitis because it is a rare condition. He explained that it is characterised by the sudden onset of localised pain with localised swelling and redness and a feeling of a creaking or crackling sound ('crepitus') on palpation. Dr Ross also explained that it is simply not possible to diagnose every condition with which patients present, even with the assistance of modern technology such as MRI or CT scanning. He examined the pursuer's medical records, he examined the pursuer (on 2 March 2010), and he examined the DVD
[7]. Dr Ross accepted that tenosynovitis can be related to activity although the literature was, he considered, confused and there was an inherent problem with the studies referred to in that they focused on whether or not the employees had sore wrists without addressing diagnosis. There would, however, need to be very strenuous activity such as forceful gripping or bending the wrist backwards against resistance such as the force used when hauling a rope with full body weight; force was important rather than repetition. Having examined the DVD, he did not conclude that the force involved was of the sort that would be liable to give rise to tenosynovitis, whilst being careful to stress that he did not want to step outwith his area of expertise. Indeed, taking care in reaching his conclusions was a cardinal feature of Dr Ross' evidence.

Dr Ross could not conclude from the GP entry for 11 September 2006 that the pursuer had tendonitis (or tenosynovitis). Unlike Professor McQueen, given the terms of the note and also that diclofenac is routinely prescribed as an effective painkiller irrespective of whether or not there are signs of inflammation, he did not conclude that there was swelling or inflammation present at that time. Nothing in his own examination of the pursuer led him to conclude that the pursuer suffered from any condition. There were aspects of the history given by the pursuer which did not fit with tendonitis, tenosynovitis or indeed, any particular diagnosis; he referred in particular to the pursuer having told him he had had spasms in his hand and having described the site of his pain as being diffuse rather than localised. Although the pursuer had said he still had occasional swelling (which might have been thought to be indicative of earlier swelling) that did not lead Dr Ross to alter his conclusion. The swelling referred to was not localised. Whilst he noted that the pursuer had slightly less dorsiflexion in his right wrist, there was a lack of clinical or objective evidence for a conclusion of tendonitis or tenosynovitis. He did not rule out either as being a possible explanation for the pursuer's symptoms - he was prepared to concede that much - but it was highly unlikely that that was what the pursuer suffered from. His concession was far from being to the effect that, on a balance of probabilities, the pursuer suffered from either condition. He described the pursuer as having had arm pain for which there was no diagnosis.

Submissions for the Pursuer

Mr Blessing submitted that I should find in favour of the pursuer and award solatium of £7,000, two thirds of which should be attributed to the past, together with an award for loss of employability of £21,025.90. The latter was calculated on the basis that the pursuer would probably retire at age 68 years, and that a fair award under this head would be 1/40 of net lifetime earnings, based on current rates.

He submitted that the duty under the 1998 regulations was absolute and that the pursuer had averred and proved the mechanism of his injury. Dr Ross had accepted it was possible that the pursuer was suffering from tendonitis or tenosynovitis and Professor McQueen was sure that he did. She was sure, also, that it was caused by the pursuer's work. He also suggested that Dr Ross had said that he was sure that if the pursuer had the condition, it was caused by his work.

Mr Blessing submitted that Dr Ross had been difficult to pin down in respect that he did not offer any diagnosis and he had not asked the pursuer when the swelling that he referred to had occurred. He invited me to accept Professor McQueen's evidence. He referred to her being a world authority on wrist fractures. She was the sort of doctor who would inspire confidence if one was ill. She gave clear reasons for her diagnosis. She was the only person who had made a diagnosis.

Regarding causation, Mr Blessing relied on Mr Andrews' evidence. He had carried out an in depth analysis and I should accept his conclusions. The studies to which Dr Graveling referred were based on a 37 hour working week and he had been concerned only with reasonable foreseeability, which was not the issue.

Submissions for the Defender

In a clear and carefully structured submission, Mr Mackenzie began by submitting, under reference to Gloag and Henderson
[8] that whilst the defenders had admitted that they were in breach of paragraph 5(1) of the 1998 regulations, the pursuer still required to prove actionable damage. He had failed to do so.

First, there was insufficient evidence to prove that, on a balance of probabilities, the pursuer suffered tendonitis (or tenosynovitis) whether in September 2006 or subsequently. Even at this stage, it was not clear whether the pursuer was contending that he suffered tendonitis or tenosynovitis; both had been referred to although, interestingly, only tenosynovitis, was referred to in the "Work - related Upper Limb Disorders" section of Kemp & Kemp
[9] . The pursuer should, in any event, be held to his averment, which was restricted to tendonitis. The pursuer's description in evidence of the symptoms suffered were not indicative of either condition. There was no indication of localised swelling or any description of swelling at all. The pain was not said to be localised. His descriptions were at times vague, inconsistent and generalised.

It should not, he submitted, be inferred from the GP entry that swelling was present at that time. The GP was not called to give evidence and no explanation had been given for that failure. The defenders had infact tried to precognose the GP but he had refused to co-operate. Whilst the physiotherapy discharge summary referred to inflammation, it was historical, his symptoms had settled by the date of the report and there was no indication of what it was that she based that comment on.

Turning to the expert evidence, Mr Mackenzie referred to the well known passage in the opinion of Lord President Cooper in Davie v Magistrates of Edinburgh
[10] where he stresses that however expert the witness, he can do no more than give evidence to furnish the judge with the necessary scientific criteria for testing the accuracy of their conclusions and that ultimately, the decision is for the judge not the expert.

Mr Mackenzie very properly recognised Professor McQueen's eminence. There was, however, a problem with her evidence in respect that it did not have a proper factual basis and she was confused and dogmatic at times. Regarding swelling, she seemed to have been suggesting that the swelling would have been over the tendon mentioned in the GP note but that was the extensor pollicis brevis - the tendon associated with de Quervain's tendonitis - and she was clear that the pursuer did not have that condition. She was not objective. She, further, concluded that the pursuer's condition was caused by his work but had not viewed the DVD.

Conversely, Dr Ross had, in Mr Mackenzie's submission, given his evidence in a calm and authoritative manner. His evidence ought to be accepted. He had considered the various possible alternatives. He would not be drawn into calling the pursuer a malingerer. He was not wholly dismissive but was clear and reasonable in his conclusion that diagnosis was not possible in the pursuer's case.

Turning to causation, Mr Mackenzie submitted that there was insufficient evidence to prove that the admitted breach of duty by the defenders caused the pursuer any loss. Even if he had, contrary to the defenders' case, established diagnosis, he had not proved that force, repetition and/ or posture used in the folding task were sufficient to cause tendonitis - or tenosynovitis. There was a hiatus. There had been no establishment of the requisite cause and effect. No cogent inference could be drawn from the direct evidence. He referred in that regard to Jones v Great Western Railway Co
[11] per Lord MacMillan at p.45. The pursuer had failed to adduce evidence which showed that it was more likely than not that the wrongful conduct of the defender had infact resulted in the damage of which he complained. He had not shown that the event complained of could ever cause that type of harm. He had not shown that the particular damage complained of by him had been caused by the admitted breach of duty. This was not a case where the pursuer was unable to prove the precise mechanism of injury. The exception referred to in, for instance, the case of Vaile v Havering
[12] did not apply; the pursuer had not proved that he had suffered a loss which was of a kind that was likely to have arisen from the task he was required to carry out. Dr Graveling did not concede that it was likely that the work process had caused either tendonitis or tenosynovitis and gave reasons for his conclusion. It had not been seriously disputed that force was the main ergonomic risk factor and insofar as repetition might play a part, the repetition involved in the pursuer's work was nowhere near as great as would have been required. The evidence did not support a case of sufficient force. It ought not to be concluded from the lack of an alternative explanation for the pursuer's symptoms that they must have arisen from his work. The defenders were not obliged to provide an alternative explanation: Pickford v ICI
[13]. The defenders should, in all the circumstances, be assoilzied.

Regarding solatium, the pursuer's assessment was overstated. If he had established liability, his injuries would have come within category (d) of the range suggested by Kemp & Kemp and an appropriate award would have been £1500 with interest on the whole sum to date at the rate of 4%. Past wage loss had been agreed. Regarding loss of employability, the pursuer required to establish (i) a substantial risk that at some future date he would find himself on the labour market and (ii) he would be at a disadvantage compared with an able bodied person
[14] . The pursuer did not satisfy either criteria. So far as out of pocket expenses were concerned, the pursuer had not produced any vouching.

Discussion and Decision

As Mr Mackenzie rightly observed, notwithstanding the admitted breach of statutory duty, the onus was on the pursuer to establish both that he had suffered the injury alleged and that it was caused by that breach of duty. As a generality, it was difficult to resist the conclusion that the pursuer's approach had been one of post hoc ergo propter hoc. Whilst there are cases where such an approach may not be entirely inappropriate, at least as a starting point, I cannot accept that this was one of them.

I was not satisfied that the pursuer had proved he suffered from tendonitis, as averred. His pleadings make no reference to tenosynovitis but even if they had, I was not satisfied that he had established that he suffered from that condition either. Looking at matters from a medical point of view, as I explain above, there were difficulties with Professor McQueen's evidence. Having considered it in the light of the other evidence, particularly that of Dr Ross, I cannot accept her conclusion that the pursuer suffered from tendonitis nor do I accept her conclusion that it was caused by the folding task that he carried out at work. It was not for the defenders to establish an alternative diagnosis. Mr Blessing, at one point, appeared to suggest that Professor McQueen's diagnosis had to be accepted because she was the only medical expert who had reached one, but that proposition is not well founded. To suggest that a defender can only counter a pursuer's case on diagnosis by establishing an alternative is to ignore the demands of the rules of onus. The pursuer requires to prove his case on the balance of probabilities. The fact that a defender does not present or establish an alternative diagnosis does not mean that the pursuer is home and dry on that issue.

Turning to causation, for the reasons explained above, I reject the evidence given by Mr Andrews. There was no other evidence available to the pursuer from which it could have been concluded that the folding task which he had to carry out was likely to have caused his symptoms; his injury was not shown to be of a type which was likely to arise from the task in question. As I explain above, I was not satisfied that I could draw that conclusion from Professor McQueen's evidence and Dr Graveling went no further than conceding that the folding task was a possible cause. I agree with Mr Mackenzie that this case is not one where causation can easily be inferred - such as in the case of Vaile . Even in Vaile, however, there was a sound factual basis from which it would have been proper for the judge of first instance to infer that if a risk assessment had been carried out, it would have led to the adoption of procedures designed to minimise the risk of injury of the type which actually occurred. Again, the onus was on the pursuer. It was not for the defenders to provide an alternative explanation for the pursuer's symptoms.

Had I found that the defenders were liable to make reparation to the pursuer, I would not have upheld Mr Blessing's submissions regarding solatium. His valuation was, I consider, significantly overstated. The pursuer had, on his own evidence, had symptoms for about 5 weeks in 2006. His evidence regarding symptomatology thereafter was not clear. Mr Mackenzie's valuation was fair and I would have agreed with it.

Regarding loss of employability, the pursuer did not establish his case. He is well able to carry out his present job. He is not at risk of losing it. He would, on his own evidence, consider any work if he did. Whilst Professor McQueen thought there would be some restrictions in his working capacity in the future, that was on the basis that he suffered tendonitis which I cannot conclude is correct.

Regarding out of pocket expenses, in the absence of appropriate vouching, I do not consider that it would have been appropriate for me to make any award.

In these circumstances, I will pronounce an interlocutor assoilzing the defenders from the conclusion of the summons. I will reserve, meantime, all questions of expenses.