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The importance of an expert witness: Joseph Mcilwraith v Bluevale Structures Limited

Demolition worker’s personal injury claims fails due to causation

Introduction

Lord Ericht in the case of Joseph Mcilwraith v Bluevale Structures Limited has held an employer not liable for the amputation of an employee’s right leg after prolonged exposure to stagnant water. This recent judgment further highlights the importance of expert evidence in personal injury cases and the cross-examination of said evidence in order to establish (or disprove) causation.

Case summary

The Pursuer (Joseph McIlwraith), a diabetic predisposed to ulcerations, worked on behalf of the defender (Bluevale Structures Limited) as a demolition worker. From 9-11 May 2018, the pursuer was assigned to work on a collapsed roof with his role being cutting and removing metal debris from ground level while his colleagues cut the pieces from the roof. This job took place during ‘the Beast from the East’ and the missing roof left the workers exposed to the elements. The ground was covered in up to five inches of water for the three days the pursuer worked there.

Crucially, the Pursuer was wearing ‘steel toe capped rigger type boots’ which were paid for by the employer and were not waterproof. Additionally, the dry room provided by the defender was not heated overnight and the pursuer’s boots remained soaked for the entirety of the job.

Within a few days, the pursuer’s right second toe had gone numb and discoloured resulting in the amputation of his toe. Sadly, the infection spread further up his leg and resulted in a below knee amputation of his right leg.

The pursuer averred that his employer had breached their common law duty and health and safety regulations. In his view, the wet environment and inadequate footwear were extrinsic factors that resulted in a greater risk of ulceration leading to amputation.

The pursuer’s long history of type 2 diabetes made establishing causation particularly difficult and the outcome of the case was dependent upon the expert witnesses. The pursuer called upon Mr Hussey, a consultant vascular and endovascular surgeon at Queen Elizabeth University Hospital Glasgow and lead clinician for vascular surgery at NHS Greater Glasgow and Clyde/NHS Forth Valley. The pursuer required to prove, on the balance of probabilities, that the infection was specifically caused by his work on the site from 9-11 May. In the evidence given by Mr Hussey, he reported that diabetics are at a higher risk of foot ulcerations but that the pursuer had no history of foot complications prior to presentation. However, the pursuer had not had a regular diabetes foot review. He continued to explain that diabetic foot ulceration is a combination of many intrinsic and extrinsic factors.

The defender decided not to call upon their expert witness and cross-examined Mr Hussey for clarification on certain matters. Namely, if he agreed with the following statement from their expert witness:

“Toe ulceration, and even limb amputation are common in diabetics and even diabetics who have paid assiduous attention to the care of their feet can end up in the same or worse situation as the pursuer:  it is the nature of the disease.”

Mr Hussey agreed with this statement, but he was of the opinion that on the balance of probabilities, the submersion of the foot was the extrinsic factor that lead to the tissue damage that resulted in the ulceration responsible for the transtibial amputation of his right foot. The medical evidence given made it abundantly clear that even diabetics who do not experience prolonged exposure to stagnant water can end up in the exact same position as the pursuer, as it is in the nature of diabetes.

My Hussey suggested that the cause of the injury was ‘Immersion Foot Syndrome’. He then went on to describe the conditions required for ‘Immersion Foot Syndrome’ as “being like that of a homeless person with consistently wet feet. Even feet that have Immersion Foot Syndrome tend to recover when dry”.

The defender crucially chose to challenge the factual basis of this claim. Mr Hussey’s report was based on his instructions that the date of injury was 28 May. However, the court found that the pursuer’s feet ceased to be wet after 11 May. When this was put to Mr Hussey, he submitted that it would only make a difference if the toe had returned to normal between immersion and presentation. If that were the case, then there may be no casual link. There was no evidence of any visible ulceration after 11 May.  

In Lord Ericht’s opinion, the pursuer had failed to satisfy the court that he suffered from Immersion Foot Syndrome. He highlighted that the pursuer had changed into dry shoes after leaving the site and his feet stayed dry until the next working day, which is inconsistent with the extreme exposure and soaking required for the development of Immersion Foot Syndrome. The pursuer also failed to provide evidence of any visible ulceration or indeed abnormality after 11 May. The pursuer’s sore feet and symptoms of pins and needles were a known symptom of his diabetes which he had been experiencing since 2012. Thus, the case failed due to causation.

What does this mean for you?

The crucial takeaway from this case, from an employer’s perspective, is the importance of reviewing full medical records and obtaining your own expert evidence in cases of catastrophic personal injury. As seen in this case, the cross examination of Mr Hussey proved crucial in disproving causation on the balance of probabilities, which in turn, won the case for the defender.

This article was authored by Weightmans Trainee Solicitor, Christie Stenson.

For further information on this case, please contact our expert Personal Injury lawyers.

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