Personal Injury Court issues first decision in respect of HAVS

Stuart Lambert v Proserve UK Limited [2019] SC EDIN 42

Executive Summary

The All Scotland Personal Injury Court has handed down the first judgment of its kind in respect of hand and arm vibration syndrome (HAVS). The pursuer sought compensation from his employers alleging his use of vibrating power tools in the workplace led to the onset of HAVS. The pursuer sought £100,000 arguing that the defender had breached their duty to take reasonable and prudent steps to put in place a safe system of work to minimise or prevent his exposure to excessive vibration and that injury resulted.

What is HAVS?

HAVS is a condition caused by exposure to vibration. The onset and progress of the condition varies between individuals. Symptoms include:

  • Tingling and numbness to fingers
  • Loss of feeling in the fingers
  • Loss of hand strength
  • Whitening of the fingers in cold and wet conditions

The Law

Employers have extensive duties under various regulations[i] to put in place a system of work designed to prevent or minimise the risk of injury when working with vibrating tools. Such a system will involve an assessment of the levels of exposure to that risk and, as a result, lead to steps to avoid, or minimise that risk. Employers also have a duty of care in negligence. In order for an employee to succeed in his claim he must show that his employer breached this duty and that this caused him to sustain injury.

The outcome

The pursuer was employed between 2013 and 2016 as a de-burring and stamping operative. The pursuer began suffering symptoms of HAVS in late 2014/early 2015.

The pursuer alleged that the use of power tools caused him to suffer HAVS. The defender denied that the pursuer had HAVS, and also alleged that the pursuer had failed to show what level of vibration he was exposed to and therefore he could not establish their breach of duty of care or that the breach caused him injury.

In terms of evidence, both parties relied on expert medical and mechanical vibration evidence. However, the evidence of the pursuer, given in cross-examination, was key to the court’s final decision. The pursuer was found to be far from reliable as a witness; for example, the pursuer claimed, improbably, that both his medical expert and the defenders’ had incorrectly noted his symptoms at the separate respective examinations.

The pursuer was vague as to the amount of time he spent on the relevant tools, which did not assist the court as to the level of vibration that the pursuer has been exposed to. It also damaged the pursuer’s credibility that he was shown to have not disclosed a pre-existing back condition prior to his employment with the defender, which indicated that he was not always reliable in respect of his medical history. The pursuer did not assist his case by failing to support it with documentary evidence.

The credibility of the pursuer was particularly important given that much of the expert evidence depended on the reliability of his account. The diagnosis of HAVS is a largely subjective exercise relying substantially on the pursuer’s responses to the experts’ questions.

The defender’s medical expert offered the opinion that the pursuer actually was suffering from a similar condition (Raynaud’s Phenomenon) which was unrelated to the pursuer’s work. This was found by the court to be the case largely because of the claimant’s failure to convince the court as to his exposure to vibration.

On this basis, the court found that the defender had not suffered injury through any breach of duty by the defender.

The pursuer was not assisted by either of the mechanical vibration experts in respect of level of vibration as their evidence did not deal with the actual tools used. The pursuer himself did not assist here with his own vagueness as to tool use and “trigger time” and his failure to secure documentary evidence.

However, the defender was somewhat fortunate in other respects. The defender failed to disclose any evidence that it had complied with its duties under the regulations. Accordingly the defender was in breach of its duty of care in that respect. However the Court did add that the pursuer would have struggled, on the strength of his evidence, to show that the breach of duty caused him injury.

Comment

The Court reaffirmed the general principles surrounding health and safety at work regulations in this case, the first of its kind to be tried in the All Scotland Personal Injury Court. Insureds and Insurers should note the attention that the court paid to compliance with the regulations, which impose duties on employers, and if followed may provide a defence. In this case, the pursuer’s failure to prove his injury, rather than a scrupulous compliance with the regulations by the defender, defeated the claim.

For any further information regarding any aspect of the issues raised in this case, please contact Pamela Stevenson, Partner on 0141 375 0867 or email  pamela.stevenson@weightmans.com

 

[i] The Management of Health and Safety at Work Regulations 1999 regulations 3, 4, 5, 6, 7 and 10

The Provision and Use of Work Equipment Regulations 1998 regulations 4, 5, 6, 7 and 8

The Control of Vibration at Work Regulations 2005 regulation 4, 5, 6, 7 and 8

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