Scottish Sheriff Court Decisions

Act: Mr Conway, Solicitor

Alt: Mr Marney, Advocate

AIRDRIE: 13 September 2005

The Sheriff, having resumed consideration of the cause, finds in fact as follows:

1 That the pursuer is Stuart Deans (hereinafter referred to as the pursuer), he is thirty-eight years old and resides at 14 Cockridge Road, Lanark with his partner of some nine years, Eilidh McQueen.

2 That the defenders are George Newberry Coachbuilders (hereinafter referred to as the defenders), they were a firm of coachbuilders who had a place of business at Unit 5, Northburn Road, Coatbridge. In 2001 the firm was bought over by Gartsherrie Engineering and is no longer in existence. The George Newberry of George Newberry Coachbuilders is the pursuer's uncle.

3 That the pursuer is a coachbuilder to trade and he is currently employed by J.W.R. Coachworks in Coatbridge as the coachworks manager although from time to time he still engages in manual coachbuilding.

4 That the pursuer began his apprenticeship as a coachbuilder initially with Stuart Robertson (1981 - 1983) a firm which repaired caravans and completed his apprenticeship with Coachwork Services in Calderbank, a firm which built commercial vehicles. The pursuer has no formal qualifications but is recognised as a time-served coachbuilder.

5 That from 1986 to 1988 the pursuer worked as a coachbuilder for Commercial Coachwork Services in Hillington, a firm which built commercial vehicles.

6 That in 1988 the pursuer joined the defenders as a coachbuilder and he remained with them until 2002 by which time the firm had been taken over by Gartsherrie Engineering, aforesaid. He left to join his present employers in January 2002. The pursuer was therefore employed by the defenders from 1988 until 2002. The pursuer did not leave his employment with the defenders for health reasons.

7 That during his employment with the defenders the pursuer worked a thirty-nine hour week and he regularly worked overtime between four and ten hours depending on circumstances.

8 That during his working life from 1981 until 2002, with the exception of his time at Stuart Robertson (1981 - 1983), the pursuer used vibrating tools such as impact wrenches, angle grinders, electric saws and electric drills on a regular basis.

9 That circa 1995 or 1996 the pursuer began to experience tingling and numbness in the fingers of his left hand and he also noticed blanching at the tips of his fingers (ie, his fingers turned white). Gradually these symptoms spread to all the fingers of both hands. His thumbs were not affected. The pursuer's condition was not constant it came in the form of attacks, especially when exposed to cold weather or cold circumstances. On occasions he would experience slight difficulty in performing certain tasks at work.

10 That, prompted by his partner, the pursuer attended his General Practitioner, Dr Criggie, Lanark Health Centre, on 08 September 1999. Dr Criggie was of the view that the pursuer was suffering from "Vibration White Finger" but he also queried osteoarthritis and repetitive strain syndrome. He referred the pursuer to Law Hospital for a blood test and X-rays, both of which proved negative.

11 That apart from discussing the matter with his father, a former miner, the pursuer took no further action regarding his condition. He did not seek further medical advice and he did not inform the defenders that he might be suffering from Vibration White Finger (hereinafter referred to as VWF). He assumed that he had VWF and accepted it as, "just going with the job."

12 That VWF, (properly known as Vibration Induced White Finger but still referred to as VWF) is a vascular disorder which causes impaired blood circulation in affected fingers and parts of the hand causing them to blanch (turn white) and causing neurological damage leading to numbness and tingling. This can lead to reduced grip strength and manual dexterity.

13 That VWF is known in modern parlance as Hand/Arm Vibration Syndrome (hereinafter referred to as "HAVS"). The condition is caused by exposure to vibration from hand operated vibrating tools over a period of years.

14 That HAVS is a progressive condition. Asymptomatic damage worsens as a result of exposure to vibration until it becomes symptomatic. The condition has a vascular and a neurological/sensorineural component. The condition is dose related, ie., the more vibration to which a person is exposed the greater the damage that may be caused.

15 That in the first stages of a vibration injury there is a tingling sensation or "pins and needles" in a finger or the fingers. With continued exposure a person may suffer periodic attacks during which the fingers change colour when exposed to cold. Initially the whiteness and numbness will only affect the tips of the fingers, but if the condition progresses the whole finger down to the knuckle can be affected. As the condition progresses attacks can occur outside the workplace and are generally triggered by cold.

16. That the extent of the disease is measured by reference to two scales -

1 Taylor Pelmear Scale:

2 The Stockholm Scale:

The Stockholm Scale considers both components of the disease, ie., the vascular and the sensorineural (or neurological):

(See Faculty of Occupational Medicine of the Royal College of Physicians - Report of Working Party on Hand Transmitted Vibration: Clinical Effects and Pathoephysiology 1993 - see process no 5/2/5 of process)

As it is recognised by the medical establishment that both these scales have their limitations the more modern Stockholm graduation is preferred because it recognises the two components of the disease.

17 That if HAVS is identified at an early stage the condition is reversible, either by cessation of exposure to vibration or regulation of that exposure. But due to the probability that the symptoms at an early stage will be so slight, it is unlikely that the sufferer will realise that he/she is suffering from a work related disease or a disease at all.

18 That the vibration of a particular tool is measured as its frequency weighted vibration acceleration in metres per second squared (m/s² - is actually m/s ^-2 but it can be conveniently referred to in the positive).

19 That when a tool vibrates it does so along three axes ie., x, y and z axes. Initially when vibration was measured the dominant axis was chosen to display the vibration magnitude of the tool (eg. if a tool vibrated at 3 m/s² on the x axis, at 2 m/s² on the y axis at 1 m/s² on the z axis then the x axis would be chosen as the dominant axis because its vibration was the largest, and the tool would be given reading of 3 m/s²). The modern theory is that the vibration should be measured by adding the magnitude of vibration on each of the three axes.

20 That vibration from a vibrating tool is transferred from that tool to the hands of the operator. Vibration occurs and so passes to the operator's hands both when the tool is in contact with the work piece ("anger time") and when the tool is operating but not in contact with the work piece ("idling time"). The sum of "anger time" and "idling time" is known as "trigger time." (Certain tools, eg., electric drills, impact wrenches are generally only switched on at the point of usage and have therefore no idling time). Other tools such as angle-grinders are routinely carried by the operator between work pieces while still running thereby incurring idling time.

21 That vibrating power tools are used by coachbuilders. During his working life as a coachbuilder the pursuer regularly used vibrating power tools. During his employment with the defenders the pursuer regularly used vibrating power tools. In particular, he regularly used electric drills, chop saws angle grinders (both 9" and 4"), pop rivet guns, a Monobolt gun and on occasions he used air huckbolt guns. All these tools produce vibration to some degree.

22 That during his employment with the defenders the pursuer was routinely involved in constructing curtain-sided vehicles, box vans, panel vans, Luton vans and occasionally he worked on tipper lorries, platform lorries, mini bus conversions and repair work. All these activities involved the pursuer in regularly using vibrating tools.

23 That it was usual at the defenders' place of work that a single person would do a piece of work from start to finish although lifting of parts of a vehicle into place may require assistance on occasions.

24 That a detailed and precise measurement of the pursuer's exposure to vibration over the period of his employment with the defenders (1988 - 2002) is impossible. It would have been difficult enough to do such measures even contemporaneously, but any assessment afterwards would be only the roughest of estimations.

25 That measurement of exposure to vibration in the workplace is measured on an eight-hour shift basis. Overtime is taken into account but is standardised on the eight-hour model (known as A(8)).

26 That the probability of a vibration exposed individual developing HAVS depends on the amount of vibration exposure and individual susceptibility (see table 5, appendix B2, British Standards 6842 1987 - see item 5/2/8 of process).

27 That although the dangers of vibrating tools have been known for decades the full extent of these dangers had not been fully appreciated. Despite some indication in the past that HAVS should have been a prescribed disease it was not in fact so designated until 1985 (prescribed means that the disease is recognised for Social Security Benefit purposes).

28 That as at 2004 the Health and Safety at Work Executive had designated that a vibration exposure of 2.8 m/s² per eight-hour day would be recognised as the "action level." That is, if a person working an eight hour day was exposed to such a level of vibration, action should be taken by the employer. Such action would include medical surveillance, monitoring and, if necessary, job rotation. (The 2.8 m/s squared action level is outlined in the British Standard Guide to Measurement and Evaluation of Human Exposure to Vibration Transmitted to the Hand, - BSI 6842: 1987 where it was calculated that if the ten per cent of the population most susceptible to HAVS were exposed to 2.8 m/s² vibration over an eight-hour working day they would be expected to contract finger blanching /HAVS within eight years). (See item 5/2/8 of process).

The 2.8 m/s² figure is a measurement on the dominant axis and is equated with 4 m/s² on the triaxial measurement.

29 That the 2.8 m/s² / 4 m/s² should not be seen as a safe level. By EC Directive of 1995 due to be implemented by the British Government in July 2005 the "Action Level" will be reduced to 2.5 m/s² measured on the tri-axial scale.

30 That the pursuer, apart from the first two years of his apprenticeship, has had regular and prolonged exposure to vibration from power tools. It is impossible to specify accurately the level of his exposure but it has been sufficient for him to contract HAVS.

31 That the pursuer has contracted HAVS as a result of exposure to said vibration.

32 That the pursuer's contraction of HAVS has not been contributed to by his motor-cycle use.

33 That the defenders ought to have been aware of the dangers of vibration injury by at least 01 January 1986 ("the date of knowledge").

34 That the defenders were not aware of said dangers.

35 That the defenders did not carry out any measurements of the tools used by the pursuer or any of their employees for their vibration characteristics.

36 That the defenders did not make any general assessment of the vibration characteristics of the tools used by the pursuer or any of their other employees.

37 That the defenders did not carry out a risk assessment of the hazards presented to users of vibration producing tools in their employment, including the pursuer.

38 That the defenders did not warn the pursuer of the dangers of vibrating tools and they did not advise him of the possible symptoms and the need to report them should they occur.

39 That the defenders did not have in place any routine medical surveillance of their workforce, including the pursuer.

40 That because of the defenders' failures as specified in findings in fact, numbers 34 - 38, inclusive, the pursuer has contracted HAVS. Had the defenders not so failed the pursuer would not have experienced the symptoms of HAVS or if he had they could have been quickly and effectively dealt with.

41 That the pursuer's exposure to vibrating tools prior to 1998, if it contributed at all to his condition, only did so minimally.

42 That since 1999 the pursuer's condition has not deteriorated. His condition is currently probably at stage two, possibly less on the Taylor/Pelmear scale, aforesaid, or 1v Vascular, 1 SN sensorineural on the Stockholm scale in respect of both hands. He suffers blanching attacks in both summer and winter generally precipitated by the cold. Attacks typically occur when he is walking his dog, out in the garden or washing the car. The attacks are reasonably frequent but not particularly debilitating.

43 That the pursuer's present employment in a more managerial capacity is secure and although he still uses vibrating tools on an occasional basis, his exposure is greatly reduced.

44 That the pursuer would prefer to work in future in a more managerial role but he could return to work with vibrating tools although he would require to monitor his health and choose his tools carefully.

45 That the pursuer has not been disadvantaged in the labour market because of his condition.

Finds in fact and in law:-

1. That the defenders are in breach of their common law duty of care towards the pursuer and are liable to the pursuer in damages therefor.
2. That the defenders are not in breach of their statutory duty of care towards the pursuer under a Provision and Use of Work Equipment Regulations 1992.
3. That the defenders are not in breach of their statutory duty of care towards the pursuer under the Personal Protective Equipment At Work Regulations 1992.

Therefore, Sustains the pursuer's first plea in law and, to an extent, the defenders' second and fourth pleas in law; quoad ultra repels parties' pleas; finds the defenders liable to the pursuer in damages in the sum of EIGHT THOUSAND POUNDS (£8,000) STERLING with interest on half thereof at the rate of 4% per annum from 01 January 1996 until the date hereof; Decerns total damages at NINE THOUSAND FIVE HUNDRED AND SIXTY POUNDS (£9,560.00) STERLING with interest thereon at the rate of 8% per annum from the date hereof until payment; assigns 10 October 2005 at 10 am within the Sheriff Court House, Graham Street, Airdrie as a hearing on expenses.

In this proof I heard evidence over nine days; 13-16 September 2004, inclusive, 28 October 2004 and 15-18 November 2004, inclusive. Subsequently I heard submissions on that evidence on 21 and 22 June 2005.

The reason for the lengthy and undesirable delay between evidence and submissions was due to the unavailability of parties, holiday commitments and general pressure of court business.

The pursuer was represented by Mr Conway, solicitor, the defender by Mr Marney, advocate. For the pursuer I heard six witnesses, viz:-

1. Stewart Dean - the pursuer.
2. Keith Carter - employment consultant/labour market analyst.
3. Andrew Nicol - a member of the Institute of Occupational Medicine and an expert on vibration.
4. John Drury - surgeon specialising in vascular surgery.
5. John McLeish - coach builder
6. Eilidh McQueen, the pursuer's partner.

For the defender I heard five witnesses, viz:-

1. George Newberry - one time owner of the defenders.
2. Alexander McAvoy - works director of Gartsherrie Engineering (the company which took over the defenders).
3. Alexander Currie - coachbuilder.
4. John Pollock - consultant vascular surgeon.
5. Clive Andrews - consultant ergonomist/expert in vibration.

In this action the pursuer claims that the defenders have breached both their common law and statutory duties of care towards him.

The pursuer is a coachbuilder to trade. He started his apprenticeship in 1981 with a firm named Stewart Robertson. He remained with that firm until 1983 when he left to complete his apprenticeship with Coachwork Services in Calderbank. Thereafter the pursuer worked as a time served coachbuilder with Commercial Coachworks in Hillington, Glasgow and joined the defenders in 1988 remaining there until 2002. He is currently employed by JWR Coachworks in Coatbridge as the coach works manager although he does, from time to time, still do some manual coach building.

Consequently from 1983 when he left Stewart Robertson, which firm was engaged mainly in the repair of caravans, until 2002 when he left the defenders, the pursuer's working life has involved him in commercial coach building and that involvement has meant that he regularly used vibrating tools, eg., electric drills, impact wrenches, angle grinders and the like.

His standard working week was thirty-nine hours although he did regular overtime, ranging between four to ten hours depending on availability.

Although different commercial vehicles require different super structures most vehicles are built in a similar way. The defenders were involved in building curtain-side vehicles, platform vehicles, Luton vans, box vans, 31/2 ton tippers, mini bus conversions and the like.

The pursuer was involved in most processes but less so with mini bus conversion. As I understand it, the bulk of the pursuer's work was on curtain-siders but he built other vehicles as well. The practice at the defenders' works was that, apart from assistance in heavy lifting when required, one man was assigned to one job and did it from start to finish.

Basically the defenders started with a bare chassis with a cab attached to that chassis and a coach builder would attach two longitudinal runners to the two main chassis members which ran from the front section or cab end of the vehicle to the rear wheel assembly. The runners were two box section steel girders which were cut to the required size using a bench mounted Makita chop saw. These cuts would generally result in a ragged ends to the runners which ends would be cleaned up using a hand-held electric grinder (usually 4"). This cleaning up process is known as dressing.

The runners were attached to the chassis of the vehicle by means of up to eight brackets per side. Most brackets were bought in prefabricated but sometimes they were made up in the workshop by cutting lengths of steel using either the chop saw or a 9" angle grinder.

The brackets were then bolted on to the chassis by the coachbuilder, having first drilled a hole or holes in the chassis and a hole or holes in the bracket, if it was not prefabricated. The bracket was then welded to the runners. These welds were sometimes dressed using a 4" angle grinder and sometimes using a chipping hammer (the chipping hammer is a manual tool). The bolts for the bracket were attached using a hand-held impact wrench. On occasions, in addition to the brackets, the runners may be welded to the chassis members at some points.

The next stage of the process after the longitudinal runners were in place was to place crossbearers at right angles to the runners. The crossbearers or cross members were again generally made of steel, they were cut to size using the chop saw, the ends were dressed, they were placed across the runners and welded to them at 16" centres. The number of cross members depended on the size of the vehicle.

The rear of the chassis was then fitted with what was known as a transverse plate (really a sort of support), this was cut to size using either the chop saw or the 9" angle grinder, welded to the longitudinal runners and smoothed down by using a 4" angle grinder.

The next part of the process, at least in the bigger lorries, was to fit side protection bars. These basically stopped smaller motor vehicles going under the lorry. Side protection bars were attached to the crossbearers by side brackets. These brackets were welded to the cross members at the top end and to the protection bar at the bottom. These welds were dressed by means of a 4" angle grinder. Any visible welds or rough edges were then cleaned up again using a 4" angle grinder.

This then gave the basic subframe of the vehicle. Exactly what happened thereafter depended on the type of vehicle. The formation of the floor and the superstructure varied depending on the type of vehicle being built. Whatever the vehicle, further use of power tools would be required such as electric drills, impact wrenches and the like.

Repair work also required the use of power tools.

A major part of the pursuer's work with the defenders consisted of the construction of curtain-sided vehicles. This vehicle would begin with the construction of the subframe as described above. Thereafter a hardwood floor would be laid across the bearers (occasionally the floor might be steel). The coach builder would cut the various floor boards to length using a circular saw, these boards would then be fixed to the crossbearers using an electric drill which penetrated the hardwood and the steel of the crossbearer and screws would be put through the holes by an air screwdriver or impact wrench to fix the floor in position. There would be eight boards attached to each cross member at two separate places.

The coachbuilder would then construct the superstructure of the vehicle. This consisted of a steel bulk head made out of 4 x 2 box sections which were cut to the relevant size with a Makita chop saw, ground down using a 4" angle grinder and then welded together. There would be additional metal posts and a metal protective structure behind the cab and a metal framework on which the curtains could be hung. Hooks were also welded to the crossbearers to hold the curtains.

In general vehicle construction procedures the coachbuilder, including the pursuer, would typically use electric drills, chop saws, grinders (both 9" and 4"), pop rivet guns, Monobolt guns and air huck bolt guns.

All of these tools were power tools and produced to a greater or lesser extent vibration.

The above described procedure was that typically conducted by the pursuer throughout his working life, including the fourteen years (from 1988 to 2002) when he worked for the defenders. The pursuer avers that due to his regular and prolonged exposure to vibrating tools in the workplace he has developed vibration white finder, also referred to as hand arm vibration syndrome or HAVS (hereinafter referred to as HAVS).

A condition known as Reynauds syndrome has been recognised for many years. Reynauds syndrome is a description of colour changes which take place in the fingers in relation to cold exposure. Reynauds syndrome is sometimes known as constitutional white finger. Constitutional in the sense that the condition is contracted by non-traumatic means. It is a congenital condition and is often hereditary. Some people are more prone to Reynauds syndrome than others.

As research developed it became clear that external/traumatic causes could replicate these symptoms. One of these traumatic causes was identified as hand transmitted vibration. Numerous studies have been carried out over the years particularly on workers in heavy industry like shipbuilding, coal mining and the like and it was found that workers exposed to regular and prolonged use of vibrating tools were liable to develop symptoms similar to those in Reynauds disease and the phrase "Vibration Induced White Finger" was coined to described the condition.

It was identified as a vascular disorder causing a blanching affect in the fingers because of impaired blood circulation. As studies progressed it became clear that as the condition continued there was a risk of neurological and even muscular damage leading to numbness and tingling in the fingers and hands, reduced grip strength and a reduction in dexterity. There was also a sensitivity to both touch and temperature. The term hand arm vibration syndrome (HAVS) is now used to embrace both the vascular and the neurological aspects of the disease.

The difficulty with the disease is that a person susceptible to it could have it for many years before any symptoms were noticeable.

The Health and Safety authorities became aware of the disease and gave certain guidance to industry regarding it but they stopped short of making it a prescribed disease until 1985. A prescribed disease means that it is recognisable for Social Security benefit purposes.

Since 1985 the Health and Safety Executive produced pamphlets and papers warning of the very real dangers of the condition and research into the condition is still progressing.

A vibrating tool vibrates in three directions along the x, y and z axes and the vibration along these axes can be measured using instruments made for that purpose. The vibration is measured as a function of acceleration and is recorded in metres per second square (m/s²).

Originally it was the measurement on the dominant axis which was used to show the vibration factor of the tool but the current thinking is that all three axes should be taken together.

The Health and Safety advice, certainly up to 2002, had been that where a user is exposed to a vibration level of 2.8 m/s² over an eight-hour working shift, (A8) certain steps should be taken by the employer. The 2.8 m/s² per eight-hour shift level is referred to as the "action level" in that an employer should take "action" when that level is reached. What action is taken depends on the general circumstances, it might take the form of instituting regular medical surveillance, job rotation and so forth.

The 2.8 m/s² is a measurement on the dominant axis and it equates to the level of 4 m/s² on the triaxial measurement.

It emerged, that with the advances in the knowledge of the dangers of the disease, the European Commission issued a directive (EC Directive 1995) that the "action level" should drop to 2.5 m/s². The UK Government has undertaken to give effect to this European Directive in July 2005, it is therefore clear that there has been a considerable drop in the "action level" because the 2.5 m/s² measurement is on the triaxial model.

When one is measuring the amount of vibration to which a person is exposed one must consider not only the "anger time" (ie, the time when the tool is actually in contact with the work piece) but also the "idling time" (ie., the time when the operator is holding the tool while it is running but it is not in fact in contact with the work piece), the time when a person is exposed to vibration is taken as the sum of the "anger time" and "idling time" and known as the "trigger time." Some tools are only operating at the time of usage and would therefore only give rise to anger time.

In the present action the pursuer avers that he has contracted HAVS. He avers that during his employment with the defenders he regularly worked for prolonged periods with tools which generated vibration.

It is the pursuer's position that the defenders knew or ought to have known that he was working with vibration producing tools which were likely to be hazardous and they knew or they ought to have known that he was using said tools regularly and for prolonged periods. Accordingly, the pursuer avers that the defenders had a common law duty to take reasonable care that he would not suffer injury whilst he was in their employment. The pursuer specifies in Article of Condescendence 4 what preventative steps the defenders should have taken to ensure his safety. The pursuer alleges that none of these steps were taken, accordingly, the defenders have failed in their common law duty towards him.

Separatim the pursuer avers that the defenders had certain statutory duties towards him, in particular, under the Provision and Use of Work Equipment Regulations 1992 (the 1992 Regulations) and the Personal Protective Equipment Work Regulations 1992.

Again, the pursuer avers that the defenders have failed in the duties incumbent upon them under these regulations and are accordingly liable in damages.

Clearly whether or not the pursuer has contracted HAVS is the crucial question in this case. If the question is answered in the negative then the pursuer has no case.

Mr Conway, on behalf of the pursuer, submitted in his final submissions that it was clear that the pursuer did suffer from HAVS.

He referred to the pursuer's evidence in the description of his symptoms which Mr Conway said were typical of HAVS and to the observational and hearsay evidence of the witnesses, McQueen, Currie and McLeish, who had all heard the pursuer complain of numbness etc. in his fingers and on occasions saw the blanching effect for themselves.

He also referred me to the reports from the two experts (Mr Drury for the pursuer and Mr Pollock for the defenders) in which they were both of the opinion that the pursuer was suffering from HAVS and both were prepared to put a measurement of degree of that condition (see items 5/1 and 6/1 of process).

Mr Drury confirmed his diagnosis in his evidence while Mr Pollock was less emphatic after certain propositions were put to him.

Mr Conway, made submissions as to why the court should disregard Mr Pollock's ostensive shift of opinion. Mr Conway also submitted that it was an incontrovertible fact that the pursuer had throughout his employment with the defenders regularly used vibrating tools within the category which could be hazardous.

There was a dispute as to how prolonged the pursuer's use of the tools was on a day to day basis but no one seriously suggested that he didn't regularly use them.

Mr Conway also argued that it had never been suggested to the pursuer, for all the criticisms made by defence counsel about the pursuer's evidence, that he didn't suffer from the classic symptoms of HAVS.

In all the circumstances Mr Conway submitted it was more probable than not that the pursuer suffered from HAVS.

On behalf of the defenders, Mr Marney, submitted forcibly that the pursuer had not established to the appropriate standard, that he did suffer from HAVS.

Mr Marney referred to the many discrepancies in the pursuer's description of his condition. He had given different accounts as to the extent of the blanching in his fingers, ie., whether it was down 2 phalanges, 21/2 phalanges or all phalanges. He had given different dates when he first became aware of his symptoms, ie., 1995 or 1996 or 1998. He had also underplayed the amount of time that he had used motor cycles. The pursuer had also, said Mr Marney, substantially overestimated the time he spent using vibrating tools. Mr Marney also attacked the witness, McQueen, as being totally unreliable and motivated by financial gain in the support of her partner.

Mr Marney also pointed out that both Mr Drury and Mr Pollock in their original diagnosis had relied entirely on the accounts given to them by the pursuer. No other objective tests confirmed the condition. Mr Marney also reminded the court that when a different scenario was put to the two experts, Mr Drury became perhaps less forceful in his diagnosis and Mr Pollock was prepared to change his.

Accordingly, Mr Marney urged me to hold that the pursuer was an incredible and unreliable witness and consequently to find that he had not established to the required standard that he was suffering from HAVS.

I am quite satisfied on the balance of probabilities that the pursuer suffers from HAVS.

It is quite true that the pursuer's position on the timing of the onset of his symptoms did vary, even during his evidence and it was also true that his accounts of where the condition reached in his hand also varied. These variations however can be explained by the passage of time and the fact that the initial symptoms can be very slight. Mr Drury was not surprised that the pursuer gave differing accounts especially with regard to onset. He was of the view that workers involved in repetitive skilled work over a period of years have notoriously bad memories with regard to dates.

I found that the pursuer was perhaps not the best witness on his own behalf but was doing his best to tell the truth. He had noticed the symptoms probably about 1995/1996 and he did go to his doctor about them albeit three years later and only because his partner told him to do so. That doctor (Dr Criggie) thought the pursuer was probably suffering from vibration white finger at that stage and indicated that to him. The doctor referred the pursuer to Law hospital for a blood test and X-rays. It perhaps shows something of the pursuer's memory that he didn't recall going for these tests.

The fact that his general practitioner tendered no particular advice to the pursuer nor was any treatment suggested is perhaps indicative of the general lack of knowledge of the condition even in medical circles.

The pursuer's visit to the doctor indicates to me that the pursuer had something wrong with him in 1999 and that "something" was thought by his doctor to be vibration white finger. I find it inconceivable that this visit was some subterfuge by the pursuer to put down a marker for an action that he would raise some three years later.

There was also independent evidence from Mr McLeish and Mr Currie that they had seen the pursuer's fingers in the blanched condition and they had heard him complain about them. The pursuer's partner had also seen such attacks and although she said that she had seen the blanching right down to the hand, which was clearly wrong, I did not have the impression that she was deliberately attempting to mislead the court.

In my view, if the pursuer and his partner were endeavouring to concoct a story to secure compensation, they didn't make a very good job of it and the discrepancies in their evidence, in my view, only added to their credibility.

Further, at least in the body of their reports, the two medical experts, Mr Drury (for the pursuer) and Mr Pollock (for the defenders), diagnosed that the pursuer was suffering from HAVS (see the pursuer's first inventory of productions, item 5/1 of process - The Drury report and the defenders' second inventory of productions, 6/2 of process - Mr Pollock's report).

In evidence, Mr Drury adhered to his diagnosis. His position was that he distinguished between patients and clients. He believed what the former told him but was sceptical about the latter. Clients were persons he was examining in a damages action situation, and who may therefore have a motive to mislead him. The pursuer was "a client" and Mr Drury, who was very experienced in this field, accepted the history given by the pursuer and diagnosed HAVS.

Mr Drury also carried out various clinical tests on the pursuer with a view to excluding other causes of the symptoms he displayed. These tests did exclude the other causes hence his conclusion.

Mr Drury was cross-examined vigorously concerning his diagnosis and while he made certain concessions when certain scenarios were put to him he adhered to his diagnosis.

Mr Pollock had also concluded in his report that the pursuer was suffering from HAVS. He however, as I understood him, seemed to change his diagnosis during his evidence.

According to Mr Pollock he had based his findings in his report entirely on what the pursuer had told him. That is not strictly accurate since he had done various tests to look for conditions other than HAVS which might have given rise to the symptoms described, such as Reynauds disease, and found no such conditions present. At his examination of the pursuer for his report therefore, Mr Pollock, having found no other causes for the symptoms described, was prepared to accept what the pursuer told him about his symptoms and not only diagnosed that the pursuer had HAVS but also graded him as to the severity of the condition.

However, when a passage of evidence by the pursuer was put to him during his examination in chief, Mr Pollock seemed to change his mind (see transcript of evidence, page 924 line 5 to page 926, line 19).

Mr Pollock now concluded:-

Mr Pollock was then asked "why not?" and he replied:

I have some considerable difficulty with certain parts of Mr Pollock's evidence and this is one of them. In evidence he was suggesting that the pursuer was making up his symptoms and he based that quite serious allegation on three grounds:-

1. That people who suffer from the HAVS disorder are aware of how long an attack lasts.

If this is so crucial then it is remarkable that Mr Pollock did not ask the pursuer at examination how long the attacks lasted.

2. That people who suffer from this disorder are aware precisely what to do to stop an attack.

I can only assume that Mr Pollock did not listen carefully enough to the passage of evidence read to him. See notes on evidence page 926, lines 5 and 6:

Question - "Supposing you didn't put your hands under the water or wore gloves ...."

Mr Pollock also mentions the pursuer warming his hands in his report.

3. That people who suffer from this disorder usually describe classical re-warming pain and the pursuer did not.

This is exactly what happened when Mr Pollock examined the pursuer for the compilation of his report. (See Pollock report item 6/2 of process the defenders' second inventory of productions page 2 second last paragraph).

If this description of re-warming pain is so significant it seems to me extraordinary that in the absence of it Mr Pollock was still prepared to make the diagnosis in his report, which he did.

Mr Pollock was also much exercised in his evidence about the pursuer's inability to remember exactly when he first noticed the symptoms. Mr Pollock seemed to suggest (see transcript of evidence page 955, lines 3 and 4 and lines 10-16), that whilst he accepts that general labourers might have difficulty remembering when their symptoms first occurred a skilled worker, such as the pursuer, would remember exactly when the symptoms began.

I find this a somewhat startling if not an offensive suggestion, at least to general labourers.

In any event, even at the time of his examination Mr Pollock was aware that the pursuer had given a different date of onset to Mr Drury because he had Mr Drury's report available to him. Again if remembering the date of onset was so important it is remarkable that Mr Pollock still made the diagnosis of HAVS which he did.

In his evidence Mr Pollock went on to suggest that the pursuer might have Primary Reynauds syndrome despite dismissing this possibility at the examination for his report. Even in Mr Pollock's opinion the pursuer was too old to be showing the signs of Primary Reynauds disease.

At the end of the day it was not entirely clear to me what Mr Pollock's final position was because later in his evidence he seemed to revert to his original diagnosis - see transcript page 971:-

Question - "Did you mention it (ie. Reynauds syndrome) in your report."?

Answer - "No."

Question - "Why not"?

Answer - "Because I am here to record a case of possible occupational white finger: I believe he has that disorder .... ."

In any event it seems to me that, if the pursuer was manufacturing his symptoms in an effort to gain compensation, he would have told a consistent story throughout and he would have made sure that his partner backed him up in every detail. The pursuer, as I understood it, had not given evidence before and no doubt found it a fairly daunting experience, he did get confused and some parts of his evidence did not really make sense but I am quite clear that he was doing his level best to tell the truth.

In all the circumstances and for all the reasons given above I am quite satisfied on the balance of probabilities that the pursuer suffers from HAVS.

The simple answer to this question is that the causation was exposure to vibration over a long period of time.

On the evidence there were two possible sources of exposure:-

1. The use of vibrating tools throughout his working life or at least from 1983; and
2. The pursuer's use of motor cycles.

Mr Marney, in his submissions, argued that I should hold the second category as the cause or at least a material contribution to the pursuer's condition. (If I was persuaded that he had the condition).

In his final submissions Mr Marney dealt quite briefly with the subject and as I understood him did not rely on it significantly.

He based his argument on the evidence of Mr Drury with reference to the work by MJ Griffin - the Handbook of Human Vibration (see pursuer's eighth inventory of production, item 5/22 of process) and to some extent on the evidence of his own expert, Mr Pollock. Mr Marney also argued that when first asked about his motor cycling the pursuer had been less than candid saying that he had held a licence since 1996 but later conceding that he had done some off-road motor cycling as a youngster.

Mr Drury's evidence was that he was familiar with the handbook, already quoted, and accepted that vibration from a motor cycle could cause problems. However, as I understood his evidence and indeed the handbook, there would have to be exceptional use. Mr Drury basically dismissed the pursuer's use of his motor cycle as a contributory factor because there was nothing exceptional about his use. Mr Drury was of the view that unless the pursuer had been a speedway driver or the like then his motor cycle use could be ignored.

There was no evidence that the pursuer's motor cycle use was exceptional.

Mr Pollock's position was of no assistance to the defender in this regard.

Mr Pollock knew from his original examination of the pursuer that he rode a motor bike but does not suggest that this is a factor in the causation of condition which he diagnosed.

Further, despite having not raised the motor cycling as an issue in the compilation of his report during his evidence he did so. (See transcript of evidence page 922, line 6). I therefore specifically asked him:-

Question - "Have you ever come across a case where vibration white finger syndrome is occasioned by riding a motor bike."?

Answer - "Yes, I am aware now that motor cycles rev to the most incredible limits to 1100 rpms. I have never ridden such a bicycle, I have held the handlebars of such a bicycle and streaming over revs in a significant vibration." (See transcript of evidence page 922, lines 9 - 17).

There was no evidence of the revs on any of the motor cycles ridden by the pursuer.

Somewhat curiously when I tried to clarify the matter again during Mr Pollock's cross-examination he seemed at first almost to prevaricate and then change his position. (See transcript of evidence, page 988, lines 8 - 18).

Question - "Just to be clear, you have come across or you have not come across vibration white finger caused by someone riding a motor bike.?"

Answer - "I have been aware that vibration can come from many sources."

Question - "Subsequently, have you come across a case where somebody has developed (interrupted by witness)?

Answer - "No I have not particularly illustrated motor bicycles as a causal affect."

In the present action and for the reasons given above I have discounted the pursuer's motor cycle use as a cause of or contributory factor towards his HAVS.

Consequently I have come to the conclusion that the cause of the pursuer's HAVS is in all probability his regular use of vibrating tools over his time working as a coach builder, primarily the fourteen years he was employed by the defenders.

Because I have decided that the pursuer has contracted HAVS and it has been caused by his regular use of vibrating tools, particularly while in the employment of the defenders, there is really no need for me to consider the level of exposure.

However, for the sake of completeness and given that a great deal of evidence was led regarding same I consider it appropriate to at least attempt some analysis of that evidence.

HAVS results not just from regular use of vibrating tools, it results from regular and "prolonged" use of said tools.

As I understood the defenders' position, there was little dispute but that the pursuer used vibrating tools regularly. He used some sort of vibrating tool every day. The defenders did however dispute that the pursuer's use of the tools was prolonged in that he did not use them as much during an eight hour shift as the pursuer said he did.

Both the pursuer and the defenders led experts in both the investigation and measurement of vibration. For the pursuer I heard Mr Nicol, M.Phil.Docc.HYG, MF0A and MI0A, a senior environmental and occupational hygiene consultant and for the defenders I heard from Mr Andrews, BSc, MSC, MSC, MBA, F.Erg.Sg consultant with Ergonomics Interaction Limited.

There was no dispute that both these gentlemen were experts in the field and both spoke to their respective reports. (See Mr Nicol's first report, pursuer's second inventory of process, item 5/2/3 of process and second report, see pursuer's fifth inventory of productions - item 5/5/15 of process). (see Mr Andrew's report, defenders' third inventory of production, item 6/3 of process plus a letter dated 07 September 2004 - see defenders' fourth inventory of productions, item 6/4 of process).

The task of both these gentlemen was to determine or more accurately put, to estimate, the amount of vibration from vibrating tools to which the pursuer was exposed during his employment with the defenders. This appears to me to be an almost impossible task.

Even if Mr Nicol and Mr Andrews had been able to follow the pursuer round for say a week and measure all his tools for vibration and measure all the time he was using said tools to assess his exposure, it would have been a daunting, not to say hugely expensive task but to attempt these measurements several years after the event, in my view, would only give such rough estimates as to be almost meaningless.

This is especially so in this case when one considers the different methodology used by each of the experts.

In the compilation of his first report Mr Nicol did not make any site inspection and did not examine any of the actual tools used by the pursuer. He based his vibration measurement for various tools on levels which had been recorded on similar tools in other surveys undertaken by him or he used the values which are given in certain health and safety executive publications. He based his calculations for the times the various tools were used on what the pursuer told him but he discounted that time by 50%. (This seems to be a regular feature when measuring same and is based on the assumption that a tool operator invariably overestimates his use).

Using this methodology, Mr Nicol calculated the pursuer's Daily Vibration Dose (DVD%) and using the HSE point system his conclusion was that the pursuer had been exposed to almost twice the "criterion level." (The criterion level as I understand it equates to the "action level" already referred, ie., 2.8 m/s² (dominant) or 4. m/s² (triaxial)). Put in layman's terms, on any view the pursuer was exposed to hazardous levels of vibration.

For his second report (August 2004) Mr Nicol did make a site inspection, that inspection was not made at the defenders' workshop, it was made at the workshop at the JWR Coachbuilders, the pursuer's present employers. This was because he was given to understand, presumably by the pursuer, that the work carried out at JWR was more representative of the work the pursuer carried out at the defenders. Mr Nicol understood that the working practices at the defenders' former yard had changed since the takeover.

Having made this inspection, Mr Nicol did not alter his conclusion. He was still of the view that "the pursuer made extensive use in his job between 1988 and 2002 of hand tools which produced sufficient vibration to cause symptoms of hand and arm vibration injury ..... ."

In the compilation of his report (22 March 2004) Mr Andrews did visit the defenders' premises on 15 March 2004. He tested various tools for their vibration level. Again, as with Mr Nicol's report, these tools were not necessarily the tools which the pursuer had actually used but they were similar tools and he also asked one of the current employees at that yard (a Mr McCulloch) to time the use of various vibrating tools during operations to build certain vehicles.

Then applying the appropriate mathematical formulae to his findings, Mr Andrews concluded that "there would be few shifts, if any, when he, (ie., the pursuer) would have been required to use vibrating hand tools for accumulative periods that would have exceeded the safety limits for vibration exposure."

Mr Andrews used the expression "safety limits" whereas Mr Nicol used the phrase "criterion level". From the evidence and the documentary productions to which I was referred I am of the view that the phrase used by Mr Nicol is the more accurate.

As I understand it they are both talking about the "action level", ie., the figure of 2.8 m/s² (dominant) or 4 m/s² (triaxial). It is clear to me that someone who is susceptible to HAVS may well contract the disease when the vibration exposure is under the "action level." It would just take longer to happen. I am strengthened in his view by the fact that this year the "action level" is about to almost half, ie., 2.5 m/s² as opposed to 4 m/s². Both the expert reports are very thorough but, in my opinion, both are seriously flawed when it comes to measuring the amount of the pursuer's exposure to vibrating tools to such an extent that their evidential value to a finder of fact is almost negligible.

In Mr Nicol's case he compiled his first report without inspecting anywhere, he simply used data from previous jobs and accepted the pursuer's estimate of use discounted by 50%. For his second report he went to a different coachbuilders and measured the machines they used. Accordingly, Mr Nicol cannot at any stage have examined any of the tools used by the pursuer.

In Mr Andrew's case he did visit the former defenders' works but if the pursuer is right in saying that the working practices there have changed since the takeover then it is difficult to see how much value can be put on his observations. Mr Andrews did not time any of the operations himself and he did not observe any of the operations on which his calculations were based. I did not hear from the person who did the timing of these operations which makes the calculations less valuable evidentially. Also, from the evidence, it is clear that certain tasks which must have been carried out in the construction of the various vehicles are not recorded. Further, the assessment of completion times for various vehicles differed markedly depending on which coachbuilder one asked. Also, of the four vehicles which Mr Andrews asked to be timed, only two of them were typically worked on by the pursuer, ie., the 23 ft. Luton van (see Mr Andrews' report, pages 5 and 6) and 20 ft. platform body (see page 7 of Mr Andrews' report). The construction time for the main vehicle on which the pursuer worked, namely the curtain sider, was not measured.

There was also on occasion a startling difference between the measurements of similar tools taken by the two experts. For instance, the impact wrench measured by Mr Andrews on his inspection visit gave no recordable reading for vibration but the one in Mr Nicol's report gave a reading of 25 m/s² (dominant) (i.e. nearly 10 times the 2.8 m/s² action level).

I hasten to add that I do not lay any particular criticism at the door of either expert but it appears to me that the task they were given was an impossible one. In my view, the position was aptly summed up by Mr Nicol in his second report (see page 16 paragraph 3.8):-

Accordingly, although both experts compiled very erudite reports including very complicated algebraic formulae and came to honestly held conclusions, in deciding this case I found the reports and indeed their evidence of limited value.

There can be no definite measurement as to whether the pursuer was exposed to the 2.8 m/s² level during his average eight hour shift. This was recognised by Mr Conway in his final submissions in that he conceded that the pursuer had not proved that he had been regularly exposed to the 2.8 m/s² level and this in effect meant that the pursuer was not founding on Mr Nicol's first report. For the reasons given above in my criticisms of the worth of both experts, in my view, this was a very proper concession.

Mr Marney did not make such a concession in respect of the defenders' expert but again, for the reasons I have given above, I do not place any reliance on his report either.

The pursuer may have been exposed to the 2.8 m/s² he may not. In my view, it does not matter whether he was or not because as I have already indicated the 2.8 m/s² cannot be and should not be described as "a safe level." It was a figure which the Health and Safety Executive felt should alert employers to a potential problem so that action could be taken, hence the term "action level."

As I have already indicated that "action level" is about to be or has been drastically reduced.

Although my reasoning may appear tautological, in my judgment, the pursuer has been exposed to regular and "prolonged" doses of vibration BECAUSE HE HAS CONTRACTED HAVS.

There is no other explanation for his condition therefore it must be because throughout his working life particularly the 14 years with the defenders his use of vibrating tools has been such that it has caused him to contract the disease.

Because of what I have said above, I have no way of knowing for certain how long per eight hour shift the pursuer used vibrating tools. I do not accept that it was as long as the pursuer said it was ("on occasions five to six hours") but in all the circumstances I am satisfied that his use was probably regular and prolonged enough to be hazardous. That's why he contracted HAVS.

In my view the pursuer's situation in the present case is summed up in part of Lord Reid's speech in the House of Lords in the case of Gardner v Motherwell Machinery & Scrap Company Limited 1962 SLT 2.

This case concerned a pursuer who had contracted dermatitis and claimed that he had done so because the defenders had not provided washing facilities. The case was complicated by the fact that the pursuer had a medical history which disclosed other possible causes of his dermatitis.

Lord Reid stated:-

In the present case there is no suggestion that the pursuer previously suffered from HAVS and the evidence is against him having suffered Reynauds syndrome. I accept on the evidence that the conditions in which the pursuer worked, (ie., regular use of vibrating tools), was likely to give rise to HAVS. I further accept the pursuer's evidence that the disease started in a way typical of HAVS caused by such conditions.

Ergo the presumption is made and as I have held there was nothing in the evidence to rebut it.

In my view the defenders are at fault and they have breached their common law duty of care towards the pursuer.

Clearly before the defenders can be at fault they would need to have known or ought to have known about the dangers of vibrating tools as a cause of HAVS. They also require to have known or ought to have known about the existence of HAVS itself.

I am quite clear that the defenders knew nothing about the dangers of the use of vibrating tools nor of the existence of HAVS. I am equally clear however that they ought to have known. I have therefore to determine in this case when the defenders should have known about the danger, that is, I have to determine the defenders "Date of Knowledge."

From the evidence in this case, which evidence is not disputed, the date of knowledge for heavy industry and large companies had been reached circa 1973 - 1975. Such companies had their own health and safety officer and often had in-house medical staff. These companies consequently should have been well aware that regular and prolonged use of vibrating tools was a potential hazard to their workforce (See Armstrong v British Coal (see case index 26). Such an early date of knowledge cannot be attributed to the defenders. They were a small company with limited resources. That said however it is the duty of any employer to keep reasonably abreast of health and safety developments which might affect their workforce although there is no duty on a small employer to take extraordinary steps to find out about such matters.

In the present case there were several publications about which, in my view, the defenders should have been aware and had they been, said publications would have alerted them to the dangers of vibrating tools and should have led them to, at the very least, warn their employees of these dangers and require the reporting of any symptoms.

These publications were:-

1. The prescription of PDA 11, Vibration White Finger as a prescribed industrial disease in 1985 under the Social Security (Industrial Injuries) (Prescribed Diseases) (Amendment) Regulations 1985 (ie., the Order which made HAVS a prescribed disease for Social Security Benefit purposes).
2. An Engineering Federation pamphlet re the dangers of vibrating tools published in 1987 (the defenders' expert on vibration Mr Andrews referred to this pamphlet and indicated that he thought it was widely circulated).

3 The British Stand/BSI 684: 1987 - this document should at least have put the defenders on notice of the dangers of VWF.

3. The Management of Health and Safety at Work Regulations 1992.

(Under these regulations there is an obligation to assess the hazards of a particular industrial process and to put in place preventative and protective measures. Both the pursuer and the defenders' experts agreed that vibrating tools constituted a hazard for which an assessment should have been made by the defenders.)

4. HSG - Health and Safety Executive Guidelines "Hand/Arm Vibration" 1994.

(Under this publication the defenders should have been on notice of the dangers of the use, of particularly impact wrenches and angle grinders.)

In his evidence at the proof George Newberry, who effectively was the owner of the defenders, quite frankly admitted that, until the present action had been raised, he was completely ignorant of HAVS and had never heard of vibration white finger. He did not know that vibrating tools such as those used by his employees were potentially hazardous. He was unaware that since 1992 he was obliged to carry out a health and safety risk assessment for his business nor was he aware that he was obliged to appoint a health and safety "competent person" for his premises.

Bearing in mind that Mr Newberry, as at the date of proof, was still running a coachbuilding firm, I suggested to him that it may be in his best interests (and indeed that of his employees) if he were to check the general health and safety legislation and the position regarding HAVS. His response was:-

(See transcript in evidence page 824, lines 11 - 13).

Whilst one might have sympathy for a small business in coping with red tape and the increasing expense of administration, the defenders cannot adopt such a position. The defenders are responsible for the health and safety of their employees and cannot simply ignore health and safety legislation and the possible dangers in their working processes.

The defenders should have been aware of the dangers attendant upon the use of vibrating tools and I accept the evidence of both Mr Nicol and Mr Andrews that they should have been so aware by at least the end of 1985 when HAVS became a prescribed disease. Therefore, in my judgment, the date of knowledge which should be attributed to the defenders should be taken as 01 January 1986.

Accordingly, for the reasons given above, I am of the opinion that the defenders have breached their common law duty of care towards the pursuer and they persisted in that breach throughout the pursuer's time in their employment. Because of that breach of duty the pursuer has suffered damage.

Two statutory breaches of care are pled on record by the pursuer. The first is under the Provision and Use of Work Equipment Regulations 1992, the second under the Personal Protective Equipment at Work Regulations 1992.

On behalf of the pursuer, at the outset of his final submissions, Mr Conway indicated that he was abandoning the pursuer's case under the latter Regulations. Further, Mr Conway also indicated that he was not insisting on the pursuer's statutory case under Regulation 5 of the Provision and Use of Work Equipment Regulations (see averments at page 5 of the Record, Article of Condescendence no 5).

Mr Conway did however indicate that the pursuer was still insisting on his averments anent the breach of regulations 8, 9 and 23 of the Provision and Use of Work Equipment Regulations 1992 (hereinafter referred to as the 1992 Regulations). (These regulations were updated in 1998 but other than a few differences in the numbering of sections, for present purposes, they are the same).

Although Mr Conway did not depart from Regulation 23 of the 1992 Regulations he addressed no arguments to same in his final analysis.

Regulations 8, 9 and 23 are in the following terms:-

In the context of this case Mr Conway's submissions on the pursuer's statutory case were brief. That was because, as I understood him, Mr Conway was not arguing that the tools which the pursuer had been using were inherently unsuitable or unsafe for the jobs for which they were being employed (see Regulation 5(3) 1992 Regulation 4(3) 1998 Regulations) but that the defenders should have given information/instruction (Regulation 8) and training (Regulation 9) to the pursuer.

Mr Conway was not arguing, again as I understood him, that the defenders had actually breached the Regulations but he was using the regulations to illustrate what a reasonable employer should do and since the defenders had not complied with the guidelines in the regulations then the defenders were not reasonable employers and were therefore negligent.

Mr Conway referred me to the case of Griffiths v Vauxhall Motors Ltd (see case index no 16).

Mr Marney, on behalf of the defenders, submitted that the regulations did not apply to the present case and he referred me to the case of McFarlane v Ferguson Shipbuilders Ltd (Outer House Decision 16 March 2004 per Lady Smith).

This case concerned a worker who had allegedly contracted "tennis elbow" due to prolonged use of a grinder.

Mr Marney referred me in particular to paragraphs 31 - 34 inclusive in Lady Smith's judgment see paragraph 34:-

In this case Lady Smith makes a distinction between the cause of injury being the unsuitability of the tool itself and the possibility of injury being caused by the prolonged use of that tool.

Mr Marney submitted that although the regulation being considered in the McFarlane case was Regulation 4(3) of the 1998 Regulations (5(3) of the 1992 Regulations), Lady Smith's analysis applied to the regulations as a whole and included Regulations 8 and 9. (Again, like Mr Conway, Mr Marney made no submissions anent Regulation 23).

Mr Marney directed me to the Health and Safety Executive, Guidance on Regulations which were applicable to the Provision of Use of Work Equipment Regulations 1992 (this is the guidance referred to by Lady Smith in the paragraph quoted above).

In particular, Mr Marney referred me to paragraph 67 of the Regulations which paragraph gave guidance in respect of Regulation 5(3) of the 1992 Regulations (read Regulation 4(3) of the 1998 Regulations).

Regulation 5(3), ie., 4(3) is in the following terms:-

Paragraph 67 of the Guidance is in the following terms:-

Mr Marney compared this regulation and the guidance thereupon with regulation 8 and paragraphs 84 and 85 of the guidance concerning same. Regulation 8 is in the following terms:-

Paragraphs 84 and 85 are in the following terms:-

Mr Marney's point, as I understood it, was that on a reasonable interpretation of the regulations, it was clear that they were not intended and should not be used to regulate the situation in the present case.

Mr Marney also pointed out that in all the cases to which I was referred by Mr Conway regarding the use of vibrating tools and the potentially harmful consequences of using said tools, not one of them mentioned the 1992 Regulations.

In the result it appeared to me that there was not a great material difference in the parties' respective positions regarding this part of the dispute.

The pursuer's position was that in fact the regulations had not, as such, been breached but the spirit of the regulations had been and that added weight to the pursuer's common law case. The defenders' position was quite simply that they did not apply.

Because I have come to the conclusion which I have in relation to the pursuer's common law case their statutory case is perhaps only of academic interest but I am inclined, following the reasoning of Lady Smith in the McFarlane case, to the view that the Regulations are not applicable to the situation in the present case. In the McFarlane case it was specifically argued by senior counsel for the pursuer that the period of time over which the pursuer in that case had used the tool was one of the "conditions" in which the tool was used and so Regulation 4(3) applied.

Lady Smith specifically rejected that proposition of "long use" as a "condition" and in my view the same reasoning can be applied to Regulations 8 and 9. The pursuer in the present case is not complaining about the tools per se it is the prolonged use of the tools which he says gave rise to his injury.

I am strengthened in my view that the Regulations do not apply by the fact that these Regulations are not founded on in any way or even featured in the long list of "white finger" cases cited by Mr Conway. To apply the Regulations in the present case, I agree with Mr Marney, would be a novel and in my view incorrect approach.

Having decided that the pursuer has contracted HAVS, that he has done so due to his regular and prolonged used of vibrating tools during his working life and that from 01 January 1986 (date of knowledge) the defenders were under a common law duty of care towards the pursuer in this regard, which duty of care they have breached, the pursuer is therefore entitled to damages from the defenders.

On behalf of the pursuer, Mr Conway, approached the question of damages under three broad headings:- Solatium, Loss of Employability and Apportionment. (Apportionment in the sense that since the pursuer had used vibrating tools virtually since the beginning of his working life he had been subject to non-negligent exposure, prior to his employment with the defenders.)

As far as solatium was concerned, Mr Conway's starting point was the Judicial Studies Board Guidelines on Vibration White Finger Awards. Although this is an English body it seems that the figures are accepted on both sides of the border (see for example the McKenna case supra). Mr Conway also referred me to the Armstrong Litigation referred to above and the other cases referred to in Kemp & Kemp in the Chapter headed Vibration White Finger Syndrome (see Kemp & Kemp Volume 4 Section G12).

Mr Conway, while accepting that the pursuer's condition was not at the most serious end of the spectrum, argued that he was perhaps at "the beginning of the serious range." Accordingly, Mr Conway submitted, that an appropriate figure for solatium would be £10,000.

In examining this head of claim Mr Conway argued that the court should look at the position of the pursuer as he was as at the date of proof and "assess the likelihood that he might be thrown back onto the labour market and if so, what, if any, disadvantage will there be."?

Mr Conway pointed out that almost all the pursuer's previous posts (and indeed the present one) had been obtained by personal contacts as opposed to attending for interview and competing with other applicants. The pursuer had little genuine managerial experience and no managerial qualifications and although his present designation was "Coachwork Manager" the pursuer's role was more in a supervisory capacity. He had no hiring and firing role for instance.

Mr Conway also referred me to the evidence of Mr Carter who was doubtful whether the pursuer had truly made the transition from "hands-on tool" person to manager and was of the view that there were limited occupational opportunities in the sector for a very inexperienced manager. Mr Carter also felt that because the firm presently employing the pursuer was largely dependent on one customer, albeit that customer was the parent company, they were particularly vulnerable to closure.

All this being so, Mr Conway argued, there was a very real possibility that in the future the pursuer may lose his job and be thrown back onto the labour market at a distinct disadvantage because he was not truly a manager or at least he was a very inexperienced one and because of his condition he had lost his trade as a hands-on coachbuilder.

In support of his submission anent this head of claim Mr Conway referred me to cases of McKenna (see supra) Hall v British Gas, the Armstrong Litigation (see supra), Foster v Tyne & Wear County Council, Bonner v Trafalgar House, Robertson v British Bakeries, Delaney v McGregor and King v Carron Phoenix). (For citations see case index).

Mr Conway, whilst conceding that none of these cases really fitted with the circumstances of the present case, argued that they gave an indication of the approach which should be taken.

In all the circumstances Mr Conway suggested that an appropriate figure to be awarded in respect of this head of claim would be £35,000. This was the equivalent to a loss of earnings to the pursuer over a one/two year period.

In discussing this concept in relation to the damages to be awarded Mr Conway conceded that the pursuer must have been exposed to non-negligent vibration prior to his employment with the defenders. (ie., at least non-negligent in as far as the defenders were concerned).

Mr Conway again referred to the Armstrong Litigation and pointed out that small discounts were made to the final awards to reflect the fact that many of the plaintiffs had worked with vibrating tools long before the appropriate date of knowledge (in these cases the date of knowledge was 1973).

They were small discounts because the court held that the much more serious exposure was that which actually caused the symptoms to appear rather than the exposure pre-onset. Apportionment should be made accordingly.

Mr Conway further submitted that the up-to-date judicial approach to apportionment was to be found in the case of Smith v Wright & Beyer (see Court of Appeal 03 July 2001 per Lord Justice Pool and Mr Justice Tuckey) in that case the Appeal Court quoted with approval the statement of Mustill J in the Allan & Others v British Rail Engineering Limited & Another)

Mr Conway also referred me to the judgment of the judge at first instance in the Smith case of which the Appeal Court approved:-

(See Smith judgment, paragraph 9).

Mr Conway also referred me to paragraph 10 of the Smith judgment, again quoting from the judgment:-

In applying the ratio of the Smith case to the present case Mr Conway's argument was, as I understood it, that since the defenders' duty of care towards the pursuer (in respect of HAVS) arose as at 01 January 1986 (the date of knowledge) they should have, at that stage, taken precautions to guard against HAVS (ie., by issuing warnings, putting in place medical surveillance and the like). As at 1986 the pursuer was showing no symptoms of HAVS, consequently had the defenders performed their duty, the symptoms might never have appeared or if they had, they could have been effectively and quickly dealt with to prevent progression. Accordingly, any pre-onset damage was minimal when one assessed the overall damages.

In the present case Mr Conway suggested that if there was to be any discount by way of apportionment it should be minimal and no more than 10%.

Mr Marney's position on behalf of the defenders was that the court should not find that the pursuer had established that he had HAVS. His esto position was that even if the pursuer had contracted HAVS, a major contribution to that condition was his use of motor cycles. For the reasons already given I have rejected both these propositions.

In recognising that the court's decision may be such Mr Marney made certain submissions anent damages.

Mr Marney considered the medical evidence and argued that there was no reliable basis from which the court could assess the grading of the pursuer's condition. He suggested that the evidence that the pursuer was suffering at 2v as opposed to 1v on the Stockholm vascular scale was of poor quality and that I should therefore prefer the 1v diagnosis.

Clearly the grading of the condition would have a bearing on the solatium to be awarded.

As far as the subject of solatium was concerned Mr Marney referred me to the same cases in the same section of Kemp & Kemp referred to by Mr Conway and also to the judicial studies guidelines. He submitted that each case turned on its own facts and circumstances but on a fair assessment of the present case, taking the relatively low grading suggested by him and looking at the evidence, in particular, that of the pursuer and the medical assessment, a reasonable figure to be awarded by way of solatium would be £5,000.

Mr Marney argued that this would fairly reflect the pursuer's actual disability.

Mr Marney's submission regarding this head of claim was that the facts of the case did not support any award at all.

His argument was that the pursuer had not required any time off work in the past or present due to his condition and there was no evidence that he was likely to be required to be absent from work in the future because of his condition.

The pursuer had moved from the defenders' employment to his present employment to improve his position, in that he had a more senior role and was better paid. His leaving the defenders' employment had nothing to do with his condition. He was still using power tools.

Mr Marney further submitted that there was no suggestion from any doctor that the pursuer couldn't continue with his present employment and that the balance of medical evidence was that he could continue to use power tools.

Mr Marney also argued that on the evidence there was a strong demand for the work that the pursuer was presently doing and there was no reason to doubt that this strong demand would not continue. Counsel further submitted that there was no need for a report from an employment specialist because on the facts there was nothing that would support the loss of employability award in the present case. Mr Marney referred me to the case of Cudlip (see Armstrong Litigation and Kemp & Kemp supra) where, in very similar circumstances to those in the present case, the Court of Appeal set aside the award for the loss of employability, describing it as speculative.

Mr Marney then went on to question the basis and conclusion of Mr Carter's report/evidence, particularly the rather restricted market place in which the pursuer may be employed which Mr Carter had considered.

Finally, Mr Marney considered the cases referred to by Mr Conway in respect of the loss of employability and sought to distinguish each one thus coming to the conclusion (which seemed to be accepted by both parties) that each case depended on its own facts and circumstances.

Consequently, said Mr Marney, when one looked at the facts and circumstances of the present case and looked at the facts and circumstances applying to the pursuer there was no sound basis for the court to make an award under this head of claim. If there was it should be a nominal one.

On the subject of apportionment, one of Mr Marney's lines of argument was that the pursuer's use of motor cycles should be a factor in the apportionment process. For the reasons already given, I reject that proposition.

Mr Marney referred me to the case of Allan v British Rail Engineering Limited (see citation supra, also see 2001 ICR Reports). This case incorporates passages from the Thompson v Smith Ship Repairers case (in particular see paragraph 16):-

(This is the full quotation from the judgment of Mustill J as referred to by Mr Conway, supra).

Mr Marney also referred me to paragraph 20 of the same judgment which paragraph is in the following terms:-

In his analysis of the evidence in the present case and using the ratio as he took it from the Allan case Mr Marney argued that from 1981 until 1988 the pursuer had worked for employers other than the defenders and in those employments he had used vibrating tools. From 2002 (when he left the defenders) until the present day he continued to use vibrating tools, therefore out of his twenty-four year working career he spent ten years using vibrating tools outwith the defenders' employment, consequently, there should be a substantial apportionment in damages.

Mr Marney suggested the defenders were entitled to a 50% discount but were prepared to accept 33%. (Note: Mr Marney when arguing this point was factoring in motor cycle use).

From the submissions made by both parties I understood their position to be that, what level of solatium was to be awarded, whether there should be an award of loss of employability and whether there should be any apportionment of damages were all matters to be decided on a case to case basis.

In other words each case really turns on its own facts and circumstances. It was not suggested by either party that any of the many cases to which I was referred was directly analogous to the present one.

I make no criticism of either Mr Conway or Mr Marney, both had completed a monumental task by trawling through the relevant case law in an effort not only to support their respective cases but also to assist the court.

The fact remains that in this complicated area of reparation law there are so many variables to be taken into account that it would be remarkable if any prior case gave a template onto which the present case would fit.

Accordingly, I am of the view that in order to determine the level of damages appropriate in this case I have to look closely at the medical evidence, the evidence given by Mr Carter and particularly I have to revisit the evidence of the pursuer.

As I indicated earlier, the pursuer was not perhaps the best witness on his own behalf. Whether this was because he didn't understand some of the questions he was being asked or didn't listen properly to them is impossible to tell but the vagueness and inconsistency in his evidence makes it very difficult indeed to assess exactly how badly he has been affected by HAVS and therefore how much should be awarded to him in solatium.

What did come through from the pursuer's evidence was that he didn't seem unduly concerned about his condition. I raised this point with Mr Conway during his final submissions and he urged me "to look at matters from a certain Olympian detachment and say: What are the symptoms?."

Mr Conway's point was of course that just because a particular pursuer was a person who just got on with the job in a "grin and bear it" type of way that didn't mean that that pursuer's award of damages should be reduced. I accept that proposition but I still require to understand what the pursuer's symptoms are and how badly or otherwise the pursuer is affected by them.

Whereas a pursuer may be cavalier in the face of severe adversity and express this by giving the appearance that he is not all that concerned about any real pain and suffering, it may also be that a pursuer is not at all concerned about his symptoms because they don't affect him very much and don't cause him any real pain and suffering.

In this case, for the reasons already given, I have accepted that the pursuer has contracted HAVS but I still have to assess how badly he is affected by that condition in order that I can decide on appropriate damages. The pursuer's evidence in this case makes that assessment very difficult indeed.

I accept that he first noticed or became aware of his condition in 1995/96 and he seemed clear that the first sign was a tingling sensation at the tips of his fingers coupled with a blanching effect.

These attacks would appear to have been infrequent at this early stage. How many fingers were affected at this early stage is also unclear.

In examination in chief the pursuer was asked about how many fingers were affected at the initial stage. The question was put:-

This vagueness maybe explained by the fact that in 1995/96 the pursuer paid little attention to his symptoms. It does seem clear however that irrespective of how many fingers were initially affected, as the years went by all four fingers in both hands were affected and by the time he consulted his doctor in September 1999 he was experiencing "aches and pains" as a result of the condition. At least that is what he complained to his doctor about and I have no reason to doubt that that was the case. The pursuer did not elaborate upon how much pain he was suffering.

The pursuer's evidence regarding this visit to his GP again was very vague. The pursuer's recollection was that the doctor simply said "You've got Vibration White Finger" and that was that. With respect to the pursuer "That was not that." It appears from the medical notes that his General Practitioner queried whether the pursuer may be suffering from osteoarthritis or repetitive strain syndrome and referred the pursuer to Law hospital for a blood test and X-rays regarding same. The pursuer does not recall that visit to the hospital nor did he seek any further medical advice and other than mentioning the condition to his father he told no one else. Particularly he made no mention of it to the defenders. Whilst this omission in no way exonerates the defenders from their breach of duty it does not seem a particularly sensible course of action on the part of the pursuer. The defenders were after all owned by his uncle.

What it does perhaps indicate is that the pursuer was again not particularly concerned about the condition and that may be because the condition was not particularly painful nor was it particularly debilitating.

What is clear from the pursuer's evidence (see transcript of evidence volume 1, page 13, lines 13 - 18) is that since the visit to the doctors in 1999 his condition has remained static (ie., it has not worsened).

Accordingly, in properly assessing the quantum of damages to be awarded the court must look at not only how the pursuer was affected in the past, but also how affected the pursuer was as at the date of proof.

Mr Conway, in his examination in chief, attempted to illicit from the pursuer what his symptoms were and what his condition was, presumably in order that the court can make this crucial assessment.

Mr Conway begins this process at page 13 of the transcript of evidence and continues until page 19. As far as solatium is concerned, there is a very significant aspect of this passage of evidence.

The pursuer explained that as his condition steadily worsened from 1995/96 to 1999 when he saw his general practitioner, his hands were on occasions "sore." He complained to his doctor of "aches and pains."

However, in the passages of evidence to which I have referred, there is no mention of pain whatsoever. He is specifically asked if running his hands under hot water to alleviate an attack causes any pain - (see volume 1 of transcript of evidence, page 16, lines 19 - 21).

Neither does the pursuer make any complaint of pain during his attacks to the two medical experts, Mr Drury and Mr Pollock (see respective reports - pursuer's first inventory of production, item no 5/1 of process - Mr Drury's and defenders' second inventory of production, item no 6/1 of process - Mr Pollock's).

The pursuer described the attacks to both doctors as consisting of tingling, numbness and discolouration but does not indicate that he suffers pain. Mr Pollock comments in his report (see supra) that: "he (the pursuer) does not describe classical rewarming in that he does not get pain or burning but does get a sensation of numbness."

This omission is, in my view, extraordinary.

I can only conclude that although when he went to see his general practitioner in 1999 complaining of pain in his fingers that pain is no longer present.

This, in my opinion, must make a difference to the quantum of solatium.

Clearly a sensation of tingling and numbness and loss of manual dexterity must amount to suffering but if regular pain is taken out of the equation then there must accordingly be a reduction in the amount of damages to be awarded.

Also, in determining damages the court has to have some picture as to the severity and regularity of the attacks. Basically the court needs to know or at least have some idea of the problems experienced by the pursuer due to his condition.

Mr Conway asked the pursuer directly what problems the pursuer now had with his fingers (see Transcript page 13 line 22 to page 14 line 3):-

I pause here to emphasise that I am not seeking to be over critical of the pursuer because I appreciate from experience that members of the public have considerable difficulty in the witness box especially if they have not given evidence before. They are often nervous and that nervousness often results in them not listening to the questions properly and at times giving a less than articulate reply.

If a witness was too articulate and precise in relating events that would cause me to be suspicious and, as already indicated, I have no doubt in this case that the pursuer was doing his best to present matters as truthfully and reliably as he could. That said however, the pursuer has an onus to prove his case and in this case that includes evidence of the damage he has suffered and is suffering and I have to understand the effect upon him of the HAVS condition and, whilst I can make allowances for the pursuer in certain respects, in fairness to the defenders, I have to scrutinise the pursuer's evidence with great care.

In the answer quoted above to a direct question as to what his problems were I am told only that the pursuer's fingers go white when it is cold.

In fairness, later in his evidence, when pressed a little more by Mr Conway, the pursuer does say that because of his condition, fiddly operations like putting a nut on a bolt and doing up buttons during an attack will take longer.

Consequently I am left with the impression from the pursuer's evidence that the problems he suffers because of his condition are sensitivity to cold, which causes numbness and tingling, (but not pain), and which results in him having difficulty with certain fiddly tasks. Not that he can't cope with such tasks it's just that they take a little longer.

These are the problems which the pursuer says he has.

Another important factor in quantum assessment is how badly the pursuer's fingers are affected during an attack. Certainly he seems to be clear that initially (1995/96) only the tips of his fingers, and not all fingers were affected. As the condition progressed all his fingers were affected.

Mr Conway sought to take from the pursuer how far down his fingers the blanching went and presumably the accompanying numbness and tingling although this was not made entirely clear. (See transcript of evidence page 14, line 4 et seq). Mr Conway asked the pursuer:-

The pursuer was asked to show the court on his fingers the extent and he pointed to the top phalange and in an effort to clarify his evidence I asked him if he was referring just to the top phalange and he replied in the affirmative but added:-

Mr Conway sought to pin matters down further and as far as I can gather, although it was not completely clear, the pursuer was indicating that certainly the top phalange was affected and possibly a bit of the middle phalange. The pursuer agreed with the proposition that his fingers were affected down to the middle phalange.

Mr Conway also sought to confirm that all four fingers on each hand were affected but again the pursuer's answer was a little confusing:-

(Mr Conway pressed the question and it seemed to be the pursuer's position that all four fingers on both hands were affected. His final position seemed to be that the affect reached to the second phalange).

The pursuer told Mr Drury at his medical examination that blanching went down the end of the second phalange and signed a diagram at the end of Mr Drury's report to this effect but that did not appear to be his position in evidence.

According to Mr Pollock the pursuer told him that all four fingers on both hands were affected over all three phalanges down to the hand. The pursuer in evidence denied that he ever said this to Mr Pollock although I accept that he probably did.

In my view, the pursuer was genuinely confused about how far down the blanching went and I don't believe he entirely understood the word "phalange."

In my view, this confusion and inconsistency of description, results from the fact that the pursuer has probably never watched an attack from start to finish and also the possibility that not all attacks take exactly the same form.

On the evidence I am prepared to accept, on the balance of probability that the pursuer suffered blanching on all four fingers of each hand and that probably the blanching took affect into the second phalange but did not completely cover it.

In other words the attacks went halfway down his fingers.

As well as the problems experienced by the pursuer because of the attacks and the extent to which his fingers were affected during these attacks another relevant factor in assessing quantum is the frequency of the attacks.

Again, in this aspect of his evidence, the pursuer had difficulty answering what where direct and concise questions from his solicitor. (See transcript of evidence, volume 1, page 15, lines 5 - 11).

Again I am not seeking to overly criticise the pursuer because it would have been the easiest thing in the world for him to say to his solicitor when asked how often he had his attacks to say "Every day, two or three times a day", but the pursuer was trying as best he could to indicate that it might be every day it might not. Clearly he had never applied his mind to the frequency of his attacks. That could be because he was adopting the "grin and bear it" philosophy as contended by Mr Conway, in that the pursuer was the type of person who accepted his condition as part of the job and just got on with it or it could be the attacks were not particularly frequent nor particularly severe.

The fourth factor affecting the quantum of damages has to be the length or duration of the attacks. The pursuer, I suspect for the reasons already given, didn't know how long a typical attack would last.

The above analysis of the pursuer's evidence highlights the weaknesses in that evidence. It was these weaknesses, which Mr Marney argued, should lead me to hold that the pursuer had not established he did have HAVS. For the reasons already given I have rejected that submission. However these weaknesses have lead me to the conclusion on the evidence that the pursuer's condition is at the lower end of the scale for damages purposes.

I have discussed the medical evidence in this case when I considered whether or not it had been established that the pursuer had contracted HAVS and it is not my intention to rehearse that evidence.

However, in judging how badly or otherwise the pursuer has been affected, I am of the view that it must be revisited to some extent.

In doing so I am conscious that whereas both Mr Drury and, at least in his report, Mr Pollock diagnosed the pursuer as suffering from HAVS using a mixture of what the pursuer told them and a series of exclusion tests (ie., they did tests which excluded other causes of his symptoms), both doctors made their grading of the pursuer's condition basically on what the pursuer told them.

Mr Drury graded the pursuer using the scales already referred (ie., the Taylor Pelmear (TP) and Stockholm) as at stage 2 (late) on the TP scale, 2v on the Stockholm vascular scale (v) and 1sn on the Stockholm sensorineural (sn), that is Mr Drury assessed the pursuer as having blanching in all four fingers of each hand with numbness which could give slight interference with home and social activity, with no interference at work. This is the definition attributed to stage two on the TP scale. This equates with 2V on the Stockholm Scale to a "moderate" grade evidenced by occasional attacks affecting distal and middle (rarely also proximal) phalanges of one or more fingers and 1SN which has intermittent numbness with or without tingling.

Mr Pollock in his report agrees with Mr Drury that the pursuer has reached stage two on the TP scale (although he does not add the appendix "late") but on the vascular component of the Stockholm scale he assesses the pursuer as between 1v and 2v. (1v being graded as mild with attacks affecting only the tips of one or more fingers.) Mr Pollock agrees with Mr Drury on a 1sn grading on the sensorineural component of the Stockholm scale.

Mr Pollock appeared to depart completely from his diagnosis at one point during his evidence alleging effectively that the pursuer was making up his symptoms. For the detailed reasons given earlier I reject that assertion.

The question I have to ask myself is, how useful are the gradings attributed to the pursuer's condition by the doctors in their reports and at least adhered to by Mr Drury in his evidence?

They must be viewed, in my opinion as only, a ready reckoner and a fairly rough and ready reckoner at that. They have been and are used in almost all white finger cases on both sides of the border but they are not and could never be precise in their definitions. This must be used as a rough guideline only. The TP scale although still referred to, has been eclipsed by the Stockholm scale because the latter breaks the assessment down into individual components of the condition, ie., vascular and sensorineural.

The roughness of the TP scale is well illustrated in the present case since the stage two assessment made by Mr Drury includes the assertion in the definition that there is "no interference at work." That clearly was not the case with the present pursuer and Mr Drury knew that; therefore he was choosing a grade, which was nearest the pursuer's situation, but one, which did not fit it exactly.

According to the Judicial Studies Board Guidelines on Vibration White Finger the Stockholm scale is now the preferred table for grading the severity of the condition, because of the division of the components. Also unlike the TP scale any interference with work or social life is ignored thus it is purely descriptive of the frequency of attacks (v) what part of the finger is affected by the attacks (v), and what the affect on the fingers is (sn).

I must also add at this point that although the Stockholm scale is now the preferred one for measurement of the condition the TP scale cannot be discounted completely. That is so because the TP scale does attempt to define the interference with a person's social and working life and may therefore be a basis upon which compensation or damages can be assessed. Further, since in the past the TP scale has been used as the calculating scale on which judicial awards have been made, there is consequently a body of case law where the amount of damages has been calculated using that scale and the guidance of that case law cannot be completely ignored. (It is interesting to note that in neither the TP scale nor the Stockholm scale is "pain" a consideration).

For present purposes, that is assessing the grading of the pursuer's condition, it is convenient to concentrate on Mr Drury's report and his evidence. This is because in his report Mr Pollock gives the pursuer a lower scoring on the TP scale and on the Stockholm vascular component. Although in his evidence he doubts if the pursuer has HAVS at all. Also as I have already indicated I have some reservations about Mr Pollock's evidence in general.

Mr Drury scores the pursuer at 2 (late) on the TP scale and at 2v and at 1sn on the Stockholm scale. In examination in chief he seemed to suggest that his assessment on the Stockholm vascular scale as based on his one examination of the pursuer, could be more accurately described as between 2v and 3v to reflect his "late" description on the TP scale.

In cross-examination however Mr Drury did concede that his grading was, as I indicated earlier, predicated on the accuracy of the pursuer's account to him. He further conceded that if the pursuer's fingers were not affected to the extent described to him by the pursuer he might be looking at a lower classification of 1v on the Stockholm scale (see transcript of evidence, volume 5, page 588).

This line of evidence may be more relevant to the pursuer's claim for loss of employability and I shall return to it when I consider that head of claim but it still has a bearing on solatium in that if Mr Drury's grading was to be lower, then the pursuer would not be as badly affected as Mr Drury, acting on the pursuer's history as given by him, originally diagnosed.

The difficulty for the pursuer here is that what he did tell Mr Drury does differ from his evidence in court. He told Mr Drury that the blanching affect on his fingers extended to the end of the proximal phalange and signed a diagram to that effect. That wasn't his position in court. His position in court was initially that the first phalange only was affected and finally that it went down to the middle phalange but it didn't go down to the end of the distal phalange towards the proximal phalange.

He also seems to have told Mr Drury that a typical attack lasted twenty minutes. I don't know if this timescale is significant or not in Mr Drury's assessment but what is significant is that the pursuer was, as I have already indicated, unable in court to tell us how long a typical attack lasted.

The pursuer also appears to have told Mr Drury that he noticed that he was losing his grip strength. When asked by Mr Conway about the problems he faced because of his condition he made no mention of this. Again I don't know how significant this could be in Mr Drury's assessment of grade but as a matter of common sense, at least on the TP scale, it must have been of some significance.

It would not be proper for me to substitute a new diagnosis for that given by Mr Drury but because of the discrepancies between what the pursuer told Mr Drury and what he told the court I am entitled to have some doubts about the grading given.

For the reasons given I have such a doubt and that in all probability the pursuer's condition is no more that 2v and possibly less.

It would be convenient for me to rely on Mr Pollock's gradation in this respect to support this conclusion but that I cannot do.

Mr Pollock also proceeds on what he has been told by the pursuer and what he says he was told, regarding blanching, was that all three phalanges were affected down to the hands. This would, on my reading of the Stockholm scale, give a reading of definitely 2v and possibly 3v. Despite this Mr Pollock grades the pursuer at between 1v and 2v.

For all the reasons given with reference to the Judicial Studies Board Guidelines and the authorities cited and the submissions of parties I have come to the conclusion that in this case the award of damages to the pursuer should be in the low to moderate range and I assess solatium at £8,000.

In a difficult and complicated case this head of claim is perhaps the most difficult of issues.

It is difficult because the pursuer in this case, unlike the majority of pursuers and plaintiffs in the many cases to which I was referred, has not lost his employment nor has he had to move to a less lucrative line of work.

The pursuer in the present case has in fact moved to an employment which is arguably less arduous, certainly in a manual sense, and where he is better remunerated.

Another difficulty is the fact that the pursuer left his employment not because he was concerned that using vibrating tools was damaging his health but because he was upset that the business had been sold and he hadn't really been consulted about that sale.

Mr Conway, in arguing this head of claim, cited a line of Scottish authorities beginning with Robertson v British Bakeries 1991 SLT 434 (Outer House Decision per Lord Osborne) through Bonar v Trafalgar House 1996 REPLR page 19 (Outer House per Lord Gill), King v Carron Phoenix Limited and reported 26 January 1999 (Outer House per Lord Kingarth), McDyer v The Celtic Football and Athletic Club Limited unreported 26 February 2001 (Outer House per Lord McCluskey), Delaney v McGregor Construction (Highland) Limited I (2003 REPLR 56) (Outer House per Lady Paton) and ending with McKenna v British Railways Board & Another unreported, 15 August 2003. (Outer House per Lady Smith).

On the basis of these cases Mr Conway sought to persuade me that I should make an award to the pursuer for loss of future employability due to his HAVS condition and that that award, following the reasoning in the cases quoted, should be in the order of one to two years of the pursuer's present wages.

Mr Conway recognised, although I don't believe he said so in terms, that because the pursuer was seeking a payment for this possible future loss now, a substantial discount would require to be made (see the reasoning of Lord Kingarth in the King v Carron Phoenix Limited case, page 7 of the judgment, last paragraph and that of Lord McCluskey following the approach of Lord Kingarth in the McDyer v Celtic Football Club case, see paragraph 6 - loss of employability).

I have already narrated Mr Conway's submissions and those of Mr Marney on behalf of the defenders and I do not intend to repeat them now.

Suffice to say I am not persuaded that any award should be made in respect of this head of claim.

The cases referred to above, with one notable exception, to which I shall return are markedly different from the present case.

In Robertson v British Bakeries the pursuer suffered a broken ankle in a road traffic accident involving a fellow employee, Lord Osborne held that it was "likely that, within a very short period of time, the pursuer will begin to suffer from post traumatic osteoarthritis which it is "likely" will mean he cannot continue with his existing employment." (See page 13 of the judgment, last paragraph).

In Bonar v Trafalgar House, which was a case where the pursuer had contracted industrial asthma due to working with a particular combination of paints and whereas the pursuer no longer worked specifically with that combination and wore various masks, he was still with the same employer and was still in an environment which put him at severe risk, Lord Gill held that there was "a material risk" that the pursuer's condition would deteriorate if he continued to be exposed to certain substances. He was continuing to be so exposed.

In King v Carron Phoenix which was a case where the pursuer had contracted fairly severe tennis elbow due to his work process, Lord Kingarth held that there was "a real prospect" that the pursuer at some stage in the future would have to give up work due to his condition.

In Delaney v McGregor Construction the pursuer had been injured while working as a ganger/labourer and was now working in alternative employment. Lady Paton came to the conclusion, in awarding damages for loss of employability that there was "a real risk" of the pursuer losing his alternative employment. (I understood that his present employer gave evidence that he was seriously thinking of selling the business thus putting the pursuer back on the labour market with a disadvantage due to his injuries).

In McKenna v British Railways Board, because of his injuries, the pursuer had already been medically retired.

Accordingly, in the cases referred above, their Lord and Ladyships in making awards for loss of employability were persuaded that matters are "likely to happen" or that there is "a material risk of" or a "real prospect" of or a "real risk" that events may take a certain turn.

I cannot come to that sort of conclusion in the present case. The evidence is that the pursuer's job is not under threat because of his HAVS condition. His condition has remained static for five years and on the medical evidence there is no suggestion that he cannot continue with his present employment until the end of his working life and in that employment his pay is better than it was when he worked for the defenders.

The high water mark for the pursuer's case under this head comes perhaps in the judgment of Lord McCluskey in McDyer v Celtic Football Club. The McDyer case is different from the others already examined in that the pursuer was not injured in the course of his employment. He was attending a sporting event at Celtic Park when, put simply, a piece of wood fell on him injuring his wrist.

Lord McCluskey was of the opinion that the medical evidence in the case did not establish on the balance of probabilities that there was likely to be a very significant deterioration in the pursuer's condition. He accordingly rejected the pursuer's contention that he would be unlikely to continue working beyond age fifty-five and may require to seek lighter work before then. Accordingly, his Lordship did not sustain the pursuer's claim for loss of future earnings (see judgment paragraph 20).

However his Lordship did make an award for loss of employability. He seems to have done so because he "estimated" that "the pursuer may feel eventually that enough is enough and that the daily awkwardness and pain aggravated by using his right wrist for work is no longer supportable." (See judgment paragraph 25).

In awarding the pursuer £60,000 for loss of employability, discounted by 3% for early payment (ie following Lord Kingarth's reasoning in King v Carron Phoenix), His Lordship said:-

I find this a strange case and the passage from His Lordship's judgment, last quoted, is almost an oxymoron as he appears to be indulging in some form of speculation.

That said however even the McDyer case can be distinguished from the present one in that in the McDyer case there was no doubt that the pursuer suffered almost constant pain while performing his job. That is not so in the present case. Further, in the McDyer case, again His Lordship found that there was "a likelihood" the pursuer would be driven to seek early retirement.

Under this head of claim Mr Conway also relied heavily and cited frequently the group of cases which can be conveniently referred to as the Armstrong Litigation.

The case of Armstrong and Others v The British Coal Corporation began its life in the English High Court, Queen's Bench Division, sitting in Newcastle before Judge Stevenson on 15 January 1996. It concerned a group of miners suing the Coal Board because they had contracted vibration white finger while in the Board's employment.

His Honour, Judge Stevenson, had nine plaintiffs before him, these being selected as leading cases for a great many others which were awaiting the outcome.

Judge Stevenson found against the defendants on certain preliminary questions and they appealed to the Court of Appeal, which appeal was heard on 28 November 1996.

The judge's decision at first instance was sustained and the matter was returned to the High Court to determine questions of causation and damages.

The cases called again in the High Court, Queen's Bench Division, before Judge Stevenson on 30 September 1997.

On this occasion His Honour sustained the claims of seven of the plaintiffs and awarded damages accordingly. Again, the defendants appealed.

The appeal was heard by the Court of Appeal on 31 July 1998 and the High Court's judgment was largely upheld.

Accordingly, the Armstrong Litigation is an important and useful guide in this area of the law, not only in the assessment of solatium but also in the determination of the loss of employability.

This being so and having discussed the relevant Scottish authorities, I feel it is important to look in a little more detail at some of the individual cases in the Armstrong Litigation.

Two matters must be borne in mind about the Armstrong cases. The first is the fact that the cases were all brought by miners, who were no longer working as miners. Secondly, the mining industry was in terminal decline, consequently there was little likelihood of these miners ever finding work in the mining industry again.

These factors, in my view, immediately distinguish the Armstrong cases from the present one. In the present case the pursuer is still working at his trade albeit at very much reduced level and there was no suggestion that the coachbuilding industry was doing anything other than thriving.

In Carver v The British Coal Board (see Kemp and Kemp E12 - 001) it is clear that the plaintiff was very badly affected, there was an argument that he was at stage four on the TP scale and that he was 3v and 2sn on the Stockholm scale. Also, all five fingers on each hand were affected.

It was thought at one stage that the plaintiff probably would not work again but by the stage of proof his prospects had improved, consequently, that assessment had to be qualified. Nevertheless, Judge Stevenson was of the view that:-

An award of one year's wages was made for loss of future employability.

In Wright v The British Coal Board the plaintiff also had a very bad case of VWF in that he was stage three on the TP scale and 3v and 2sn on the Stockholm scale. Again, all five digits were affected.

Again, it was felt that there was a "real risk" (see paragraph 12 Judge Stevenson's judgment) that because of the VWF he would be disadvantaged on the employment market and had already had two periods of unemployment.

Again, an award was made for future loss.

In Martin v The British Coal Corporation (see Kemp and Kemp G12 - 003) there was a slight difference of opinion between the medical experts as to how badly the plaintiff was affected. On either assessment however the plaintiff's condition was worse than the pursuer's in the present case.

In looking at this difference of opinion Judge Stevenson was of the view that:-

That is very much in line with the view I expressed earlier in this judgment that although the scales are a guideline they are not particularly precise and what one has to look at are the symptoms displayed by an individual and the affect on that individual which these symptoms have.

In the present case, on the pursuer's evidence, it is difficult to assess exactly what his symptoms are and what affect they have upon him. (In the Martin case last referred to the plaintiff had other physical difficulties and no award for loss of employability was made).

In Stokoe v The British Coal Corporation (see Kemp and Kemp G12 - 004) again there was a difference of opinion regarding the grading of the plaintiff's condition but again on either view the plaintiff's condition was worse than the pursuer's in the present case. Judge Stevenson came to the view that the plaintiff was border line between 2 and 3 on the TP scale and between 2 - 3 on the vascular and was border line 2sn/3sn on the Stockholm scale. Four fingers on each hand were affected.

The judge described it as "not a particularly bad case."

An award of loss of employability was made in the Stokoe case because the court came to the conclusion that "the claimant is clearly at some disadvantage on the labour market in not being able to work as a fitter using vibrating tools .... ." (See judgment, paragraph 31).

I pause here to note that in all of the four cases looked at above the condition of the plaintiff in each of them was worse and arguably far worse than that of the pursuer's in the present case and that in the cases where an award for loss of future employability was made, it was made because the court came to the conclusion on the evidence that it had been proved that there was a "real risk" of disadvantage or that there definitely was a disadvantage in the labour market and that there was a likelihood that the plaintiff would be thrown on to that market.

This is very much in line with the approach taken by the courts in the Scottish Authorities already quoted.

One other case in the Armstrong series can be usefully examined because, in my view, for whatever reason, Judge Stevenson seems to depart from the approach he adopts in the other cases in the series and indeed from the approach adopted by the courts generally in the cases already discussed.

In Cudlip v The British Coal Corporation Judge Stevenson made an award for loss of employability on the basis that the plaintiff "might" have to give up work. There was apparently no evidence before His Honour that there was any risk to the plaintiff's current employment.

Therefore, unlike the other cases already quoted, there was no certainty, real risk, material risk or likelihood of the plaintiff losing his job and thereby being thrown back on to the labour market as a handicapped person.

On appeal the award for loss of employability was set aside. The Court of Appeal remarked:

This case, in my view, does have similarities with the present one in that the plaintiff's condition was not severe and there was no threat to his employment. I shall return shortly to look in general at the threat to the pursuer's continued employment.

In my judgment the Armstrong Litigation and the Scottish cases already discussed demonstrate that before an award for loss of employability is justified there must be a certainty or a "real risk" or "likelihood" that a claimant will require to give up because of his condition.

On the evidence of the pursuer in the present case and the medical evidence I cannot and do not come to the conclusion that the pursuer will require to give up work because of his condition or even that there is a likelihood that he would require to do so.

That is not the end of the matter because I still require to consider how secure or otherwise the pursuer's present employment is and whether if he lost that employment he would be at a disadvantage in the labour market.

Mr Conway relied on the evidence of Mr Carter to persuade me that there was a vulnerability about the pursuer's current employment and that should he lose it he would have difficulty in making a sideway shift because of his inexperience in management.

Mr Conway also submitted that if the pursuer did lose his present job he would be at a distinct disadvantage on the labour market because "he has certainly lost his trade as a hands on coachbuilder."

So the pursuer's argument on this issue is predicated on two propositions:-

Looking at the second proposition first, again, on the evidence I am not convinced that the pursuer has "certainly lost his trade as a coachbuilder."

He does has HAVS but for the reasons already given I am of the view that his condition is no higher than at the moderate stage and possibly lower.

In my opinion, if necessary, the pursuer could in the future use vibrating tools providing he was careful to use tools of a lower vibration and monitored his medical condition regularly.

There was evidence in the case that those who manufacture vibrating tools are conscious of the dangers which these tools present and are endeavouring to lower vibration levels wherever possible and currently when such tools are supplied the relevant amount of vibration level is indicated.

There was an early example of similar tools giving off hugely different readings.

Mr Conway's argument was that because the pursuer in the open market would either have to disclose his condition to a prospective employer thus risk rejection or lie about his condition, he would be at a distinct disadvantage.

I am not convinced that the pursuer has proved this to be the case.

He obtained his present employment when suffering from HAVS and he still uses power tools; perhaps not as often as he did, but still regularly.

Mr Conway argued that the pursuer's condition had remained static partly due to the fact that he now uses tools less regularly but even in his employment with the defenders his condition remained static for three years.

In any event, as Mr Conway pointed out, the pursuer has never really entered the job market in the sense of going for an interview and competing with other candidates. He has always gained employment (for about a quarter of a century) by contacts. That includes his present position.

For these reasons I reject the proposition that the pursuer has certainly lost his trade as a hands on coachbuilder and I am not persuaded that the pursuer has proved that he has probably lost that trade.

No doctor has ever advised the pursuer that he should not work with power tools (contrast this with the case of Bonar v Trafalgar House where the pursuer continued to work despite medical advice to the contrary. His doctor described the pursuer as having "a dreadful bargain to make between present employment and future health.") In my view, the pursuer in the present case is not in a situation such as that. Also, having heard the pursuer who did express the view that he would now prefer to do more managing than coachbuilding, it is my view that he would be horrified if someone suggested to him that his "hands on" days were "certainly" over.

Turning to the first proposition namely, that the pursuer's present position is at risk. This proposition of course comes from Mr Carter's report and his evidence. I tend to agree with Mr Marney's submission that Mr Carter does not in fact take the pursuer's case very far. To begin with Mr Carter starts his report at paragraphs 1 and 2 by saying:-

Whilst it is not stated in terms in these statements there is an implication that the pursuer left his previous employment with the defenders because of his condition and was lucky enough to obtain another job with less tool use. That is not the case as previously discussed.

Also at paragraphs 5 and 6 of his report Mr Carter relates:-

This follows the line of the proposition made by Mr Conway concerning the loss of the pursuer's trade and which, for the reasons already given I judge illfounded.

Accordingly, in my view, Mr Carter's report is based on a false premise and does not assist the pursuer.

Mr Carter also expresses concern about the vulnerability of the pursuer's present employers. He does so because the firm is a small one and that they have only one main customer (ie., the parent company).

Mr Carter has a great deal of experience and I have given due weight to his evidence and to his report but there is no evidence in the case that JWR have any financial problems nor that there is any prospect of them closing in the near future or for that matter in the far future. Accordingly there is no evidence that the pursuer's job is under threat.

In my view, Mr Carter is speculating and as Mr Conway reminded me during his submissions the court is not entitled to speculate and accordingly I have rejected Mr Carter's conclusion.

Also, when assessing the pursuer's future prospects Mr Carter confined himself, when looking at possible opportunities in the labour market for the pursuer were he to lose his present position, to Lanarkshire and concluded that there were few businesses which could offer the pursuer employment in the same position that he currently held, ie., manager/supervisor.

Mr Carter did not look at businesses in Glasgow. That, in my view, rather weakens his conclusion because Glasgow is closer to the pursuer's home than many parts of Lanarkshire.

In my view, before an award for loss of employability is justified there must be proof of a weakening of the claimant's position in the labour market.

In the present case, for the reasons given, I am not satisfied on the balance of probabilities that the pursuer has proved that his position in the labour market has weakened. Accordingly, I am not prepared to make an award of damages under this head of claim.

The third matter to be considered in relation to damages is whether there should be any apportionment for non-negligent damage prior to the pursuer's employment with the defenders.

Both Mr Conway and Mr Marney dealt with this subject fairly briefly in their submissions and both recognise that whether there should be apportionment or not is very much a matter for the court's discretion.

I shall endeavour to be brief also.

As previously indicated, I have decided that the "date of knowledge" for the coachbuilding industry should be taken as circa January 1986 and I have explained why I came to that conclusion. Consequently when the pursuer joined the defenders in 1988, the defenders had a duty of care towards him. There should have been in place as at 1988 appropriate preventative measures to ensure that the defenders' employees, including the pursuer, were protected. No such measures were in place, the defenders failed in their duty and because of that failure the pursuer contracted HAVS.

Had the defenders not failed in their duty the pursuer may never have shown the symptoms of HAVS or if he had they could have been quickly and effectively dealt with.

Clearly, prior to 1988 the pursuer had also been using vibrating tools but the symptoms did not appear until 1995/1996, some seven to eight years after he joined the defenders.

It is impossible to tell what was going on in the pursuer's body prior to his symptoms emerging and it is conceivable that all the damage which resulted in the appearance of his symptoms took place while he was in the defenders' employment.

The matter of apportionment was considered in some detail by the English Court of Appeal in the case of Smith v Wright & Beyer Limited (see case index no 12). This was a vibration white finger case where one of the central points argued on appeal was that, because a substantial amount of the plaintiff's exposure was prior to 1977 (the date of knowledge in that case) the judge at first instance ought, in his approach to the issue of damages, to have made a discount to allow for non-negligent exposure.

The judge at first instance made no such discount and his approach was approved of by the Court of Appeal.

There is a slight difference between the Smith case and the present one in that in the Smith case no other employers were involved. That is the non-negligent period was the period before the date of knowledge. In the present case, of course, the pursuer had been employed by other employers. That said however, in my view, the principle in the Smith case is applicable to the present one.

Judge Tetlow, the judge at first instance, summed up the problem significantly thus:-

(See Smith case 9).

HAVS has been described by analogy as a glass which gradually fills and then overflows. The point of overflow being when the symptoms appear. If one stops filling the glass it will not overflow. That is if a person gives up using vibrating tools altogether or moderates his use of same then a person may never come to the symptom stage.

What Judge Tetlow in the above quotation says is "difficult to gauge" is when did the glass begin to fill and how quickly has it filled?

Later in his judgment Judge Tetlow states:-

The Court of Appeal agreed with the approach taken by Judge Tetlow and said at paragraph 19 of their judgment:-

In the present case I have no way of knowing what damage, if any, the pursuer experienced in his pre 1988 working life but on the evidence I am satisfied that had the defenders performed their duty of care towards him the symptoms would not have appeared.

In my judgment if there was any damage prior to 1988 it must have been minimal.

Accordingly, I am not inclined to make any apportionment of damages in this case.

As far as interest on damages is concerned, whereas Mr Marney suggested that I take a broad brush approach and if I was making an award at all I should follow the English practice of making said award inclusive of interest. In my view, that would be incompetent. (See Interest on Damages (Scotland) Act 1958, Section 1(A)).

Accordingly, I have awarded interest on half of the solatium at the rate of 4% per annum (ie, half the judicial rate) from 01 January 1996 (which date I have taken as being that of the onset of symptoms) until the date of my interlocutor (ie, September 2005). Accordingly, interest is awarded for nine years and nine months at the rate of 4% per annum on £4,000. This works out at nine years at £160 per year plus nine months which I calculate to be £120. Therefore, I have awarded total damages including interest at £9,560.00 with interest thereon at the rate of 8% per annum until payment.

1. McTear v Imperial Tobacco Limited (Outer House per Lord Nimmo-smith, 31 May 2005)
2. Cross v Highland and Islands Enterprise 2001 SLT 1060 (Outer House per Lord McFadyen)
3. Wardlaw v Bonnington Castings Limited 1956 SLT 135 (House of Lords)
4. Nicolson & Others v Atlas Steel Foundry 1957 SLT 186 (House of Lords)
5. Guarder v Motherwell Machinery & Scrap Company Limited 1962 SLT page 2 (House of Lords)
6. McGhee v The National Coal Board 1973 SLT page 14 (House of Lords)
7. Thompson & Others v Smiths Ship Repairers 1983 Queen's Bench Division, page 881
8. Hall & Others v British Gas Plc 1998 Manchester County Court (unreported)
9. Billington and Another v British Rail Engineering Limited 2002 Queen's Bench Division 1005
10. Allan and Others v British Rail Engineering Limited (unreported) English Court of Appeal, February 2001 (see 2001 EWCA - civ 242)
11. Doherty & Others v Rugby Joinery (UK) Limited 2004 EWCA - civ 147)
12. Smith v Wright & Beyer Limited 2001 EWCA - civ 1069)
13. Stangoe v Terrex Equipment Limited (unreported Outer House 04 December 2001 per Lord Wheatly)
14. McKenna v British Railways Board (unreported) (Outer House 15 August 2003 per Lady Smith)
15. Brown & Others v Corus (UK) Limited 2004 EWCA - civ 374)
16. Griffiths v Vauxhall Motors Limited (no citation)
17. Rugby Joinery (UK) Limited v Whitfield 2005 EWCA - civ 561)
18. Brooks v South Yorkshire Transport Executive 2005 EWCA - civ 452)
19. Bonar v Trafalgar House 1996 REP LR page 19 (Outer House per Lord Gill)
20. Delaney v McGregor Construction Limited 2003 REP LR (Outer House per Lady Paton)
21. King v Carron Phoenix Limited (unreported) 26 January 1999 (Outer House per Lord Kingarth)
22. McDyer v Celtic Football Club (unreported) 06 February 2001 (Outer House per Lord McCluskey)
23. Robertson v British Bakeries Limited 1991 SLT page 43 (Outer House per Lord Osborne)
24. Balfour & Others v William Beardmore & Company Limited 1956 SLT 205
25. Clegg v North Ayrshire Council (unreported) 07 May 2002 (Outer House per Lord Carloway)
26. Armstrong & Others v The British Coal Corporation (The Arnstrong Litigation)
27. English High Court Queen's Bench Division 15 January 1996 and 30 September 1997 (also see appeals 28 November 1996 and 31 July 1998 English Court of Appeal)
28. Morton v William Dickson Limited 1909 SC page 807
29. McFarlane v Ferguson Shipbuilders Limited (unreported) 16 March 2004 (Outer House per Lady Smith)
30. Neil v Ayrshire Council (unreported) 25 January 2005 (Outer House per Lord Brody)
31. Kemp and Kemp - section DG12 - Vibration White Finger Syndrome (assorted cases)