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OUTER HOUSE, COURT OF SESSION
[2005] CSOH 5
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A88703
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OPINION OF LORD
MENZIES
in the cause
MARGARET HUGHES
Pursuer;
against
GRAMPIAN COUNTRY
FOOD GROUP LIMITED
Defenders:
________________
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Pursuer: Allardice; Thompsons
Defenders: Duncan; Simpson & Marwick, W.S.
18 January 2006
Introduction
[1] The
pursuer is a process worker and trainer employed by the defenders at their
factory premises at Cambuslang. She has
worked there since about 1991. Her work
involves her in a variety of activities, including trussing wings and legs of
chicken carcasses using elastic strings.
In about 1994 she developed Carpal Tunnel Syndrome in her right
wrist. She avers that from about 2000
she developed Carpal Tunnel Syndrome in her left wrist which was aggravated by
her work circumstances. She seeks
damages for personal injuries from the defenders in respect of this
aggravation. In the pleadings, the
action is founded both on the fault and negligence of the defenders at common
law, and on their alleged breach of Regulation 4 of the Manual Handling
Operations Regulations 1992. However,
during the course of the proof before answer, counsel for the pursuer indicated
that he was no longer relying on his common law case, and restricted the
pursuer's claim to breach of statutory duty under Regulation 4 of the 1992 Regulations.
[2] Regulation
4 of the Manual Handling Operations Regulations 1992 provides inter alia as follows:
"(1) Each employer shall
-
(a) so far as is reasonably practicable, avoid the need for
his employees to undertake any manual handing operations at work which involve
a risk of their being injured;".
The pursuer avers that processing
chickens was a manual handling operation.
The defenders deny this, and further aver that the tasks carried out by
the pursuer gave rise to no foreseeable risk of the pursuer developing symptoms
of Carpal Tunnel Syndrome.
The Evidence
[3] The
pursuer gave evidence that she was aged 47 at the date of the proof and started
as a part-time process worker with the defenders in 1991. At this time she was working in the twilight
shift, between 5pm and 9pm.
After about three years she commenced full-time work with the defenders,
working the back shift from 12.30pm
to 9pm. In examination in chief she stated that she
worked on only three lines during her employment, namely the fronts
line, the trussing line and the spatchcock line. She said that she did the same thing each
day; she would work on the trussing line from 12.30pm
to 4.30pm, then have a break and
then work on the fronts line during the evening. She developed Carpal Tunnel Syndrome in her
right wrist in about 1994, for which she underwent surgery and was off work for
about three months. At this time, she
was suffering from tingling in her fingers, and she found that this was worse
when she was working on the trussing line.
She underwent a second operation for Carpal Tunnel Syndrome in her left
wrist in March 2001. The symptoms in her
left wrist became worse about two years before this operation, and she was kept
awake at night because of the pains in her hand. These symptoms were worse when she was
working on the trussing line. She would
work on that line most days - at least three days each week and at most five
days each week. After the break at 4.30pm she would work on the fronts line, but would also do trussing work most
evenings. The pursuer described what
trussing work involved, namely tucking the wings of a chicken carcass in,
folding the legs and trussing the carcass with trussing string. Production No.6/1 was a video of another
employee engaged in trussing a chicken carcass and the pursuer confirmed that
this was the trussing operation which she carried out. She would process a lot of carcasses in an
hour. She would work on the trussing
line for four hours, with one fifteen
minute break. On the fronts
line she was only required to tuck the wings in - no legs were involved in the
operation. On the spatchcock line she
was required to open up the breast of the chicken and inject under the skin
with a syringe. This line ran on only
two or three occasions each week. She
also worked with a gun in the wash house, but she stated that most of her work
was trussing and that she would do this every day. Six people would work on each side of the
trussing line, one of whom would be filling and loading racks and five of whom
would be trussing. They would change
places after every two hundred and forty birds, so that each employee gradually
moved down the trussing line and then spent a period of five or six minutes
loading racks. The whole rotation might
take thirty to forty-five minutes.
[4] The
pursuer went to her doctor before March 2001 because she had the same tingling
in the fingers of her left hand as she previously had in her right hand. Her hand was numb and she could not sleep
because of the pain. She underwent an
operation as a day case on 24 March
2001; she was in hospital for about six hours, she had stitches in
her surgical wound for about two weeks thereafter, and she was off work for
sixteen weeks or perhaps less. After the
operation her hand was bandaged and she wore a sling for about two or three
weeks. She could not look after herself
properly and required help from her husband and daughter and her father. She could not dry her own hair or work at a
sink, and they helped her with these tasks and also with the housework which
she would normally do. This help from
her family lasted six to seven weeks.
She was completely better about eight or ten weeks after the operation,
and had recovered completely by the time she returned to work on 3 June 2001.
[5] The
pursuer was cross-examined in some detail about her work regime. She stated that she had a fifteen minute
break at about 2.30pm, a thirty
minute break at about 4.30pm and
another fifteen minute break at about 7.30pm. She had always worked in the back shift, but
she worked in the dry store for about two years, which could have been in the period
around 1998 and 1999. She accepted that
the back shift was employed in a variety of different kinds of work and there
was no set pattern of work. She worked
on the fronts line, the trussing line, the spatchcock
line, in the brine room, cleaning racks and fetching racks. She also worked with drumsticks and thighs
and also on the "C Grade" and "Chinese" lines.
The fronts line was the main job of the
twilight shift. In the brine room,
drumsticks, thighs or whole carcasses required to be unloaded into a chute
manually and injected with brine; the pursuer accepted that this was virtually
her permanent job from 4.30pm until
the end of each shift. It was put to her
that she was unofficially the brine injector, and she replied that this was her
job - she was officially the brine injector, and she did this sometimes during
the day shift and during every evening.
She also worked injecting a sauce under the skin on the spatchcock
line. Another of her jobs was to load,
wash and collect racks. She accepted
that trussing was a permanent job on the day shift, but on the back shift when
she worked, nobody worked permanently on trussing. She was shown the averments at and around
page 5C of the Closed Record (as amended) and agreed that these were a gross
exaggeration. She accepted that if she
went to see her doctor about the symptoms in her left wrist in January 2001,
the symptoms would have begun just before that, and that the first time that
they were bad enough for her to see the doctor was 22 January 2001.
At this time her symptoms were predominantly nocturnal, and they were
not bad enough to ask for lighter work.
In February 2001 she asked her doctor to give her a letter to put her on
light duties, and after she was seen by a nurse on 21 February 2001, she was taken off the trussing
line and worked in the brine room. Her
left hand is her non-dominant hand, but she still needed help in the house for
some weeks after her operation in March 2001.
[6] In
re-examination she stated that the fronts line was her
main job on the twilight shift, but between 12.30pm
and 4.30pm most days she was engaged
on the trussing line. After 5pm she was mainly engaged in the fronts line, but also did some trussing work.
[7] Karen
Rankin was a line leader with the defenders and had worked for them in process
work for some sixteen years. She worked
together with the pursuer regularly for about fourteen years, although Miss
Rankin usually only did the twilight shift between 5pm and 9pm. She saw the pursuer working on the trussing
line; this was normally between 12.30pm
and 4.30pm, and Miss Rankin would
start at 5pm. She stated that the pursuer would mostly do
trussing during the day, and then do a combination of
fronts and trussing - she did not do as much trussing on the twilight shift as
on the day shift, but she still did some of this kind of work. She accepted in cross-examination that she
had no experience of what happened in the shift between 12.30pm and 4.30pm
after 1997, and that after 5pm a wide
variety of work was carried out including the fronts
line, the brine room, trussing, spatchcock, cleaning and fetching racks,
Chinese and other works.
[8] Miss
June Scotland was a process worker employed by the defenders; she started work
with them at about the same time as the pursuer in about 1991, and she worked
beside the pursuer until about two or three years before the proof. She was on the same lines as the pursuer and
always worked back shift. She confirmed
that she worked on trussing lines between 12.30pm
and 4.30pm most days, and between 5pm and 9pm
she worked on a different line from the pursuer. During this time she worked in the ovens
corridor until about 1999, after which date she worked on the lines, working
with fronts, drumsticks and the rest of the variety of work carried out by the
back shift. She remembered the pursuer
working in the brine room, although the pursuer did not do this all the time
between 5pm and 9pm - the pursuer also worked on spatchcock, drumsticks
and the like. The pursuer would be involved
in trussing most of each day. She
accepted that it was the day shift's responsibility to do trussing, and only
the day shift had permanent responsibility for trussing. The back shift only helped out with trussing
as required, and she accepted (eventually) that trussing was only done
occasionally on the back shift.
[9] Clive
Andrews was a self-employed Consultant Ergonomist. He was aged seventy-two; before becoming a
self-employed consultant, he had taught ergonomics at Napier
University from 1967 until he
retired in 1998. Latterly, he had been a
senior lecturer in ergonomics. He had a
B.Sc. in mechanical engineering and an M.Sc. in
ergonomics; he held an M.B.A. and was a fellow of the Ergonomics Society. He spoke to his report (Production No.6/2 of
Process) and he took the video (Production No.6/1 of Process). He was asked if his conclusions were
contradicted by the opinion of an Orthopaedic Surgeon would he defer to that
opinion, and he replied that he would probably not do so, as the Orthopaedic
Surgeon would not be trained in the surrounding areas. Mr Andrews gave his evidence under reference
to the movements seen on the video (Production No.6/1 of Process). In answer to a question from the Court, he
confirmed that the trussing of wings only (i.e. the fronts line) would
involve only the movements described at paragraph 2.4.2 sub-paragraphs 1 and 2
and would not include sub-paragraphs 3 to 6.
[10] Mr Andrews gave detailed evidence in amplification of the
research and publications referred to in paragraph 3 of his report; he pointed
out that Carpal Tunnel Syndrome had been a topic of great interest to him for a
long time, and this was about the twenty-fifth Carpal Tunnel Syndrome case that
he had been involved with.
[11] Under reference to paragraph 4.1.2 of his report, Mr Andrews
said that he saw much evidence of repetitive flexion movements in watching the
employee on the video tucking in wings and legs and putting on string to the
carcass, and he observed that both extension and flexion movements increase pressure
in the carpal tunnel. He observed that
the movements which could be seen on the video could cause Carpal Tunnel
Syndrome, and the application of force could increase this risk, but he was
unable to quantify that increase in risk.
[12] In cross-examination he accepted that he relied on four sources
of information for his report - (1) his visit to the factory premises at which
he took the video (Production No.6/1 of Process); (2) the Closed Record (as it
stood at the date of his report on 7 June 2004, not in its amended form as
Production No.19 of Process); (3) the precognition of the pursuer dated
June 1999, and precognitions from two other employees; and (4) epidemiological
articles. It was put to Mr Andrews with
regard to the pursuer's June 1999 precognition that if the pursuer's symptoms
started shortly before 21 January 2001 (possibly in late 2000) and her
operation was in March 2001, and if one was looking at the effect on the
pursuer's symptoms of her work operations from the onset of symptoms until her
operation, the 1999 precognition was irrelevant; Mr Andrews accepted this. He also accepted that this precognition was,
at least in part, the cause of his conclusions.
With regard to the epidemiological articles relied on for his report, he
accepted that the most recent of these was dated 1986. It was put to him that the debate on the
causes of Carpal Tunnel Syndrome continued after 1986, and his response was
that there had been no impressive arguments on this subject since then. He was shown Production No.7/13 of Process
"Occupational Causes of Disorders in the Upper Limb" published in February
1992; he thought that he had read this, many years ago and he observed that
Carpal Tunnel Syndrome was not a prescribed disease as a primary condition except
as a result of vibration. He was shown
Production No.7/14 of Process, "Work Related Disorders of the Upper Limb"
published in April 2002. Although he
knew Mr Hooper, who was a Consultant Orthopaedic Hand Surgeon and one of the
authors of this article (and also of Production No.7/13 of Process) he was not
familiar with this article. In its
penultimate paragraph, this article examined the claim that work related upper
limb disorder could be prevented by providing a more comfortable working
environment. The authors of the article
concluded with regard to these claims that "although such conditions are
clearly desirable, there is no evidence that modifying the posture, avoiding
forceful activities or preventing repetition will prevent the occurrence of
these disorders ..." (with an exception which does not concern this case). Mr Andrews disagreed with this
conclusion, and would not defer to the opinions of Orthopaedic Surgeons on this
matter: he considered that Ergonomists
were better placed to reach an opinion on such a matter than were Orthopaedic
Surgeons. In his opinion in order to
provoke the symptoms of Carpal Tunnel Syndrome, one required the combination of
force, adverse posture and these things happening over a period of time.
[13] Under reference to paragraph 4.2.1 of his report, Mr Andrews
did not consider that a respite from trussing by filling the racks for ten or
twelve minutes would necessarily reduce the risk of Carpal Tunnel Syndrome -
the important matter to consider was how many repetitive tasks were carried out
between rests. If there was a break from
trussing for a ten or twelve minute period in each hour, the consequence of
this would depend on what happened in the remaining forty-eight minutes. He accepted that if an employee was involved
in trussing only occasionally, and not all the time, this would reduce the
risk.
[14] In re-examination Mr Andrews was asked whether he was of the
opinion that there were three requirements for Carpal Tunnel Syndrome to arise,
namely posture, force and repetition, and he replied that he did not consider
that posture was necessary, if there was a lot of force and repetition. He was asked if, in the event that Mr Crossan
expressed the view that one does not need all three factors to aggravate
symptoms and that repetition by itself would be sufficient to provoke symptoms,
would Mr Andrews defer to this view, and his answer was "partially yes". He observed that if the problem already existed,
then finger movement alone would cause the symptoms. He expressed the view that if an employee
already had Carpal Tunnel Syndrome, a different system of working would most
certainly be required - the employee would have to be exposed for shorter times
than other people, or possibly not even instructed to do the job at all.
[15] Mr James Crossan, FRCS was a Consultant Orthopaedic and Hand
Surgeon whose qualifications and experience are set out in his report
(Production No.6/3 of Process). About
85% of his work related to hand surgery, which was his particular
interest. Within his field of expertise,
Carpal Tunnel Syndrome was his commonest diagnosis. He saw about six patients each week with
Carpal Tunnel Syndrome, and operated on about three or four each week with this
condition. He was unusual amongst
Scottish Orthopaedic Hand Consultants in carrying out pressure tests on
atypical cases; he carried out such a test approximately once per month and had
done this for several years. He was
shown a report by Mr David Ross, a Consultant Orthopaedic Trauma and Hand
Surgeon at Stirling Royal Infirmary, (Production No.7/5 of Process), in which
Mr Ross expressed the view that "there is no evidence that Carpal Tunnel
Syndrome is related to rapid repeated finger movements. In my opinion, Mrs Hughes' Carpal Tunnel
Syndrome is not related to her occupation."
Mr Crossan accepted that there was no published evidence to this
effect, but he did not believe that Mr Ross had been involved in pressure
testing, and Mr Crossan was of the view as a result of his own tests that
Carpal Tunnel Syndrome was related to rapid repeated finger
movements.
[16] Mr Crossan had seen the video (Production No.6/1 of Process)
and observed that this showed the performance of a very repetitive task, which
would if carried out throughout a full day, involve many movements of the hand
and wrist, including flexions, extensions and rotations, although the force
involved appeared modest. His opinion
was that this could cause an increase in the pursuer's symptoms, although this
would not apply to all patients:
repetitive work could cause Carpal Tunnel Syndrome and work involving
force could cause Carpal Tunnel Syndrome, and where both were involved this
provided strong evidence of a causal link.
He described the pursuer's job as mainly repetitive with some force, and
considered that there was "good to strong evidence" of a causal link between
her work and her increased symptoms. His
opinion, which was in accordance with published literature, was that repetition
of a task is itself sufficient to aggravate the symptoms of Carpal Tunnel
Syndrome. There was no published
evidence as to the speed of repetition required nor
the length of period during which the task was performed before symptoms were
aggravated, but he observed that most patients would feel pain after about half
an hour of working in this way. Two
hours of working, with a ten minute break, would enable the patient to recover
and would not require surgery. Mr
Crossan was broadly in agreement with paragraph 4.1.2 of Mr Andrews' report
(Production No.6/2 of Process) and was of the view that repetitive flexion
movements can cause Carpal Tunnel Syndrome and are likely to increase symptoms
for those who already suffer from this syndrome (although not in all
cases). Although force is likely to make
matters worse, repetition without force may exacerbate symptoms, and he was of
the opinion that the movements on the fronts line (which involved less force
than the tucking in of legs on the trussing line) would be sufficient to increase
symptoms in someone who already had Carpal Tunnel Syndrome. Mr Crossan was unable to quantify, either in
general terms or specifically with regard to the pursuer, the extent to which
symptoms of Carpal Tunnel Syndrome might have been exacerbated by working
conditions. He stated that after her
operation, the pursuer would have reasonably been expected to have a
post-operative rehabilitation phase of about six weeks, and to have suffered
some loss of function and increased sensitivity at the site of the operation
for about two months after the operation.
The pursuer did not require to stay in hospital
for the operation, which was carried out under local anaesthetic and involved a
surgical incision at the base of the palm about 2.5cms long.
[17] In cross-examination Mr Crossan expressed the view that if the
pursuer was working on the trussing line for four periods each of about two
hours, with breaks between lasting about ten minutes, she would require surgery
because the repeated insult to the median nerve would be enough to cause symptoms. If the patient developed chronic pain and
experienced symptoms each day, there would come a point when surgery was
required. Work will tend to exacerbate
the level of symptoms in a patient who is already suffering from Carpal Tunnel
Syndrome, but the patient will experience symptoms even if not working, for
example by carrying out household tasks.
It was put to him that if the pursuer worked on the trussing line for
only a very short period after her symptoms arose, it was unlikely that this
work would have added to the need for an operation, to which Mr Crossan
observed that this would depend on the period of work - a period of four to six
weeks might be sufficient to exacerbate symptoms to the point where an operation
was necessary, but the shorter the period, the more difficult it was to ascribe
the exacerbation of symptoms to any particular cause. He was shown the pursuer's GP records (Production
No.6/4 of Process) which showed the first mention of left Carpal Tunnel
Syndrome being 22 January 2001
and a letter being sent to the defenders by the doctor on 16 February 2001. He agreed that it was very difficult to say
that this period of about four weeks made any difference to the need for
surgery, and that this difficulty was compounded if the pursuer only spent a
short time on trussing work each day during this four week period.
[18] In re-examination Mr Crossan stated that the longer the
movements which caused the pain continued, the more
likely was the need for surgery, although it was impossible to put a figure on
the number of insults to the nerve required before surgery was necessary. Half of the patients treated by him responded
to conservative treatment, and half required surgery, but many people suffering
from Carpal Tunnel Syndrome do not seek medical help and their symptoms respond
to conservative treatment.
[19] Three witnesses were led on behalf of the defenders. Mrs Helen Harkin was employed by the
defenders as a line leader or supervisor at the defenders' Cambuslang
premises. She had worked there for
fifteen years before the proof, and had been employed as a supervisor for about
nine years. At the date of the proof she
was working day shift, from 6am till 2pm, but for the last five or six years she had
worked from 8am to 4.30pm. Before
that, until about five or six years before the proof, she worked back shift
with the pursuer, between 12.30pm
and 9pm. At the date of the proof she was also working
in the same shift as the pursuer. She
stated that the back shift had a variety of jobs which changed from day to
day. The back shift would help out with
the day shift lines if required, as a result of absences or holidays or special
promotions. She confirmed that the back
shift were involved in many areas of work including the fronts line, the brine
room, the trussing line, spatchcock, cleaning and fetching racks, drumsticks,
thighs, Chinese and C Grade. On most
days either all of the back shift or at least part of it would be working on
trussing from 12.30pm to 4.30pm; after 5pm, if there was a backlog then the
back shift would continue to work on the trussing line, but after this time the
pursuer worked mainly in the brine room, although if there was a shortage of
staff and trussing needed to be done, she would work on the trussing line.
[20] Mrs Sandra McEwan was retired at the date of the proof, but had
been employed as a team leader/department supervisor by the defenders in their
Cambuslang premises on the back shift.
She confirmed that the back shift did a variety of work, and this
depended on what had been done earlier in the day by the day shift. She stated that the pursuer was usually in
the brine room, and she would have done the fronts line more than other
jobs. The day shift had the principal
responsibility for trussing, but the pursuer would be assigned to trussing if
this was required. She was asked
whether, in the period after 2pm, workers
would be involved occasionally or regularly during trussing, and she replied
occasionally, and that there might be periods when no trussing was carried
out.
[21] Miss Kay Watson was employed by the defenders until 1 April 2005 as a team
leader/supervisor at their Cambuslang premises.
She worked on a different shift from the pursuer; she worked from 6am until 2.30pm,
but there was some overlap with the pursuer.
She stated that the back shift would do trussing work if the day shift
were short of people, but this would not happen every day, and there would be
days or weeks when the backshift would not do any trussing; they were on
different jobs everyday. In
cross-examination she stated that the back shift might perhaps truss on three
or four days per week between 12.30pm
and 4.30pm if the factory was busy,
but they could go for weeks without trussing depending on how busy the factory
was.
Submissions for the pursuer
[22] With regard to the evidence, counsel accepted that the pursuer
contradicted herself in the course of her evidence, but urged me to accept that
this was because she was nervous and liable to accept what was put to her in
cross-examination - she was not lying nor was she trying to mislead the
Court. The weight of evidence was to the
effect that the pursuer was undertaking a substantial amount of trussing work;
during the first part of her shift she would be engaged on the trussing line
for three to four days per week, and would also be involved in this work on
occasions in the latter part of her shift.
In light of the medical evidence it was not necessary for the Court to
form a detailed assessment of the amount of trussing work which the pursuer
performed. The pursuer's complaints were
focused not on the fronts line but on the trussing
line. Counsel submitted that the
pursuer's symptoms became exacerbated in the latter part of 2000; she had been
taking painkillers for her symptoms for some time before she went to see her GP
in January 2001. The pursuer's evidence
regarding the amount of trussing work which she was required to carry out was
supported by the evidence of Karen Rankin and June Scotland, and also by the
defenders' witness Helen Harkin. The
defenders had failed to make out their case at page 9C of the Closed Record (as
amended) to the effect that "The employees on the pursuer's shift could go
weeks without trussing. The pursuer
never carried out trussing in the second part of her shift. Trussing in the first part was
occasional."
[23] With regard to the expert evidence of Mr Andrews and Mr
Crossan, counsel pointed out that this was not contradicted, and submitted that
their evidence should be accepted. In
particular, the Court should accept the opinion of Mr Crossan at page 3 of his
report (Production No.6/3 of Process) that the type of work which the pursuer
performed has clearly increased the levels of pain and tingling in her hands
and has caused symptoms to persist. He
expressed the view that "whilst her work practices have not directly caused her
to develop Carpal Tunnel Syndrome, they have caused increased levels of pain
and increased persistence in pain."
[24] As indicated above, in the course of his submissions counsel
for the pursuer indicated that he no longer insisted on his case of fault at
common law as set out in Article 4 of Condescendence, and that he relied solely
on his case of breach of Regulation 4 of the Manual Handling Operations Regulations
1992. In this regard he submitted that
the entire operation in which the pursuer was engaged on the trussing line was
a single manual handling operation. It
involved the moving of a chicken carcass by lifting it off a hook, supporting
it as a load, placing it down, pushing and pulling its wings and legs and
placing it on a conveyor. It amounted to
the transporting of the carcass from a higher level to a lower level. Although the defenders might submit her
injuries were not attributable to the transporting or supporting of the load
but were rather caused by the movements relating to the wings and legs,
counsel's primary submission was that this was one single operation. Counsel referred me to Cullen v North Lanarkshire
Council 1998 SC 451 as authority for the propositions (1) that the Regulations
may go beyond the Council Directive of 29 May 1990 (90/269/EEC) which the Regulations
were intended to implement, and (2) that neither the Directive nor the Regulations
are confined to back injuries caused by lifting heavy loads. Although Regulation 4 referred to reasonably
practicability, the onus was on the defenders to raise this issue, and they had
not done so in the present case. Under
reference to Mains v Uniroyal Englebert Tyres Ltd 1995 SLT
115, counsel submitted that reasonable foreseeability is only relevant in the
content of a defence based on reasonable practicability, and as reasonable
practicability was not raised in the present case, reasonable foreseeability
was not an issue. On the question of
what constitutes a risk of injury for the purpose of the Regulation, counsel
relied on Anderson v Lothian Health Board 1996 SCLR 1068, and
on Cullen (supra at page 455G) as authority for the proposition that for there
to be a risk of injury, injury need be no more than a foreseeable possibility;
it need not be a probability. In the
present case, the evidence indicated that the risk of injury was at least a
foreseeable possibility, as indicated by the risk assessment record (Production
No.6/7 of Process).
[25] In addressing the central question as to whether this was one
manual handling operation, counsel submitted that the alternative was that the
pursuer was involved in two separate manual handling operations - one in taking
the carcass from the upper conveyor to the table and the second taking the
carcass from the table to the lower belt.
He described this as absurd, and said that it was obvious from the video
that there was only one relatively short movement involved. The part of the operation which caused injury
to the pursuer, namely the repetitive movement of her hands, wrists and
fingers, was done during the transporting and supporting stage. The Regulations envisaged that this type of
activity was to be covered - counsel referred me to the guidance on the Regulations
at page 42, appendix 1 at paragraphs 6 to 7 where repetitive actions are
expressly envisaged and relatively light weights are involved.
[26] In support of his submissions, counsel referred me to six
authorities, namely Purdie v Glasgow City Council 2001 Rep. LR 26
(particularly at paragraph 8 in which Lord Hamilton observed that "Once an
operation falls within the scope of a manual handling operation, all the
foreseeable possibilities of injury incidental to such an operation require to
be addressed by the employer."); Gissing v
Walker Smiths Snack Foods Ltd [1999]
CLY 3983; King v Carron Phoenix Ltd 1999 Rep. LR 51; McIntosh v City of Edinburgh
District Council 2003 SLT 827; Mitchell
v Inverclyde District Council (1997)
GWD 31-1593 and King v RCO Support Services Ltd [2001] ICR 608.
[27] Turning to quantification of damages, counsel submitted that
solatium should be assessed in this case at £2,500 before interest, and that
interest should run on this sum at 4% from 1 December 2000 to 3 June 2001, and at 8% from 3 June 2001 to the present date. In support of this he referred me to the
Judicial Studies Board Guidelines for the Assessment of General Damages in
Personal Injury Cases (7th Edition) and submitted that this
case fell between the values in (c) and (d) of category (K) at page 46, because
the symptoms arose in about November 2000, the operation occurred in March
2001, and the pursuer had made a full recovery by June 2001. He also referred me to two cases in McEwan and Paton on damages, namely Wilkinson
v Post Office at CN9-10A and Cairns v Phillips
Electronics at CN9-08. This case
was, he submitted, more serious than Wilkinson,
in which solatium of £1,250 was awarded which, adjusted for inflation, was
worth approximately £1,600 now. On the
other hand, it is probably less serious than Cairns, in
which solatium of £1,500 was awarded which, allowing for inflation, is worth
approximately £3,000 now.
[28] With regard to loss of earnings, counsel referred me to the
joint minute (Production No.20 of Process), and submitted that the pursuer's
loss of wages as a result of her absence from work following her operation was
a recoverable head of claim. With regard
to loss of services, counsel submitted that this head of claim should be
assessed at a total of £750, divided equally between the pursuer's father and
daughter, with interest thereon at 8% from 1 May 2001, being a date approximately in the middle of
the period of the pursuer's recuperation.
In support of this figure, he referred me to McGarrigle v Babcock Energy
Ltd 1996 SLT 471, and to McEwan and Paton (op. cit.) at page 78-3.
Submissions for the defenders
[29] Counsel submitted that there were effectively only two issues
in this case - (1) was the pursuer performing a manual handling operation within
the meaning of the Regulations, and (2) if so, did it cause her any injury at
all. On the first of these, the area of
dispute between the parties was very narrow.
Despite his pleadings, counsel was prepared to concede that there was a
reasonably foreseeable risk of injury, and made no submission to the
contrary. The only issue for the
purposes of the Regulations was therefore whether this amounted to a manual
handling operation. Counsel emphasised
that the only area of complaint in the pursuer's pleadings is the trussing line
- the fronts line did not cause her a problem. Counsel referred me to the definition of
"manual handling operations" in Regulation 2(1) of the 1992 Regulations and
submitted that there was no evidence in this case that when the pursuer was
pushing or pulling the legs and wings of a chicken carcass she was transporting
or supporting a load. She was not asked
whether she did any of these pushing or pulling movements while supporting a load, and Mr Andrews gave no evidence which would set up
this approach. The pursuer gave evidence
that she manipulated a chicken, but she gave no evidence to the effect that she
was supporting a load while doing so.
Counsel submitted that it was clear from the evidence of the pursuer, Mr
Andrews and Mr Crossan that what was being complained of was the manipulation
of the carcass as it was actually being trussed, which gave rise to repetitive
movements of the wrist, hand and fingers; no complaint was made about the
lifting of the carcass from the shackle to the bench, nor about the moving of
the carcass to the conveyor at the end of the task of trussing. Counsel accepted that the task of trussing
was immediately preceded and followed by transporting a load, i.e. the
chicken carcass. The submission for the
pursuer appeared to be that the task was one continuous short movement, or at
least if the carcass was being supported at any time during the trussing
process then the statutory definition was satisfied. Counsel submitted that this approach offended
against the ordinary use of language, it was unsupported by the facts and
offended against the purpose of the Regulations.
[30] In considering the authorities, counsel submitted that it was
important to keep in mind that two distinct questions arise under Regulation
4(1) - first, whether the task is a manual handling operation, and second
whether the manual handling operation gave rise to a risk of injury. He submitted that the case of Cullen v North Lanarkshire Council was concerned with the second of these
questions but was of no assistance in relation to the first question, which is
the main issue in the present case. It
is clear from the opinion of the Court in Cullen
(particularly at page 453B) that in that case it was not in dispute that
the operation which the pursuer was undertaking at the time of his accident was
a manual handling operation within the meaning of the Regulations. That case is therefore of
little assistance in the present case.
This was also true of the cases of Mains
v Uniroyal Englebert Tyres Ltd, Anderson v Lothian
Health Board and Purdie v Glasgow City Council, referred to by
counsel for the pursuer. Counsel
submitted that the question of what is and what is not a manual handling
operation is normally a question that can only be determined after enquiry into
the facts, and so decisions made on the procedure roll are of limited
assistance. However, what the cases all
show (whether decided after proof or on procedure roll) is that the question
should be approached using a common sense approach to the interpretation of the
Regulation. Counsel referred me to several
authorities, but ultimately relied principally on King v Carron
Phoenix (supra), and McFarlane v Ferguson Shipbuilders Ltd (an unreported decision of Lady Smith
dated 16 March 2004).
[31] Counsel also referred me to the terms of the Council Directive
of 29 May 1990,
(90/269/EEC) and pointed out that this was concerned with the manual handling
of loads. He questioned whether the
trussing of a chicken carcass could properly be categorised as the manual
handling of a load, and contrasted this with the circumstances of King v RCO Support Services Ltd in which the claimant was spreading grit
over ice in the yard of a bus station, using a sack barrow and a shovel to
distribute the grit. Without wishing to
put too much emphasis on the point, he observed that in the title to the Directive,
the words "manual handling of loads" are immediately followed by the words "where
there is a risk particularly of back injury to workers", and that in Article 2
again the transporting or supporting of a load is qualified by the words "which
... involves a risk particularly of back injury to workers". Counsel did not submit that the scope of the Directive
was limited to back injuries, but he suggested that this might be relevant when
assessing what type of operations the Directive was aimed at. He also referred me to the guidance on the
1992 Regulations issued by the Health and Safety Executive, and in particular
to paragraphs 15 to 18 thereof. He
concluded his submissions on the question of whether the pursuer was engaged in
a manual handling operation by formulating three propositions. First, the question is one which should be
answered on the basis of common sense and plain language, and to suggest that
trussing a chicken is a manual handling operation offends both of these
requirements. Second, the task itself
must involve the support or transport of a load; it is not legitimate to look
to anything other than the task itself. There
is no support for the approach that one can take into account the context in
which the task was performed, and argue that because a load was transported or
supported before and after the task, therefore the task was a manual handling
operation. And third, the risk of injury
identified in this case was a risk arising from manipulation, not a risk
arising from the bearing of a load, which supports the argument that the task
being undertaken was a task of manipulation, not of transporting or supporting
a load.
[32] Counsel's second submission was concerned with causation. He observed that the pursuer does not claim
that the defenders caused her condition, but only that they exacerbated her
symptoms. In order to succeed she must
demonstrate that the defenders' breach of the Regulations made a material
contribution to her symptoms, and she must satisfy the "but for" test. He submitted that the evidence for the
pursuer did not satisfy these tests.
Counsel attacked the pursuer as an extremely unreliable witness -
although he accepted that she may not have deliberately set out to mislead the
Court or to lie, her evidence was riddled with contradictions, both between her
evidence in chief and her evidence in cross-examination and between her
evidence and her pleadings on record.
The Court could not rely on her evidence. In considering what the pursuer was required
to do from December 2000 until the date of her operation counsel provided me
with a detailed analysis of each of the witnesses who spoke to the working
practices on the back shift, and concluded that during this period the pursuer
was trussing "occasionally" and when she did so, she would be expected to truss
for between forty and sixty minutes before getting a break of between ten and
twelve minutes. In considering what
symptoms the pursuer suffered as a result of this task, counsel submitted that
there was no good evidence of what symptoms the pursuer was suffering from, for
what period she suffered them and whether these were associated with
trussing. Her symptoms were not
sufficiently serious to mention them to her GP until 22 January 2001, and the pursuer accepted that
she was taken off trussing following the nurse's line of 21 February 2001.
In considering what her symptoms would have been had she not been
involved on the task of trussing during this period, counsel submitted that Mr
Crossan's evidence was to the effect that the pursuer's working would not have
altered her requirement for surgery, the cause of her condition would have been
very much the same in any event, and that all that may have occurred was a
brief and transient exacerbation of symptoms which would have required surgery
in any event. On the basis of the very
short time scale concerned, Mr Crossan could not say that this made any
difference to the pursuer's condition.
Counsel submitted that in light of all the evidence it had not been
demonstrated that the symptoms of which the pursuer complained would not have
been experienced even if she had not been working, and even if there was any
exacerbation of symptoms, this was not more than a de minimus contribution. The
pursuer had failed to make out a causal link between her work and the
exacerbation of symptoms of which she complained.
[33] Finally with regard to quantum, counsel pointed out that the
values set out at page 46 of the Judicial Studies Board Guidelines relate to
cases in which the injury has been caused by the work process. Causation of a condition with complete
recovery within a short period is valued at between £1,250 and £1,900, and a
case involving only exacerbation of symptoms where the effect is what counsel
described as "fleeting" must be well below that range. He referred me again to the case of McFarlane v Ferguson Shipbuilders, which was a claim for aggravation of tennis
elbow limited to a period of some months (many more months than in the present
case). Solatium was assessed in that
case at £1,000. Counsel submitted that
solatium in the present case should be assessed at a maximum of £250. With regard to wage loss, he submitted that
there was no evidence that the pursuer's absence from work and her operation
were caused by any exacerbation resulting from her trussing work, and indeed
the evidence was to the effect that she would have required an operation in any
event. No awards for wage loss or loss
of services were therefore appropriate.
Discussion
[34] I formed the impression that the pursuer was a truthful
witness, who was doing her best to assist the Court and was not in any way
attempting to mislead. However, as
pointed out by counsel for the defenders and as accepted by counsel for the
pursuer, her evidence was riddled with contradictions, and I did not find her
to be a reliable witness as to the detail of how many hours she would spend in
an average day or week on the trussing line.
If it had been necessary for the purposes of this action for me to make
a determination as to the exact number of hours which she worked on the
trussing line each day from the period from December 2000 until her operation
in March 2001, I should have found this impossible. However, in light of the expert evidence, and
in particular the evidence of Dr Crossan, I do not consider that it is
necessary for me to make such a precise determination. Looking at the whole of the evidence,
including the evidence of the pursuer's fellow employees, I am satisfied that
the pursuer was engaged in trussing work for three to four days each week
during the first half of her work shift, and that she was engaged occasionally
in trussing work for at least part of the second half of her shift. I am satisfied that the work which she
performed was as shown on the video (Production No.6/1 of Process). Although this video was taken on 21 November 2003 and showed another
employee working at the trussing line, the pursuer stated that this was the way
which she worked, and that the video accurately showed how she trussed chicken
carcasses on the trussing line. There
was no more detailed evidence as to how the pursuer performed this task, and
the pursuer's assertion that she worked in this way was not contradicted. Accordingly, I proceed on the basis of this
assertion.
[35] The video initially shows the employee picking up a carcass
from the workbench beside her and placing it on the workbench in front of
her. While the carcass is on the workbench
in front of her, she manipulates the legs and wings of the carcass, and then
applies elasticised string around the carcass before tossing it onto a moving
conveyor belt. After the first four
chicken carcasses, which appear to have been picked up by the employee from the
workbench beside her, she begins to lift carcasses from shackles on a conveyor
belt at approximately head height above the workbench and take each carcass in
turn to manipulate and truss it on the workbench in front of her. From taking the carcass from the workbench or
from the shackle, through the process of manipulation and to the point at which
the trussed carcass is thrown onto the lower conveyor belt takes approximately
eleven or twelve seconds per carcass. Of
this time it appears that less than one second is taken in lifting the carcass
from the shackle to the workbench, and only a fraction of a second is taken in
throwing the trussed carcass onto the conveyor belt. While the carcass is being manipulated and
trussed, the employee is working on it while the carcass is on the workbench,
or picks it up for a moment to apply the trussing string around it before placing
it back on the workbench.
[36] Despite the eloquent submissions by counsel for the defenders
as to causation, I was satisfied on the evidence that there was a sufficient
causal link between the pursuer's work on the trussing line and the
exacerbation of her symptoms. Although
Dr Crossan found it difficult to be specific as to the precise extent of
exacerbation, and although he accepted that it was more difficult to link
exacerbation to work activities when the activities were carried out over a
short period of time, nonetheless his evidence was that whilst the pursuer's
work practices did not directly cause her to develop Carpal Tunnel Syndrome,
they have caused increased levels of pain and increased persistence in pain. She might have required surgery at some stage
even if she had not been working, but I am satisfied on the evidence that the
manipulation of chicken carcasses which she was required to perform on the
trussing line did cause an exacerbation of her symptoms which was greater than de minimus.
[37] The question remains whether this manipulation was carried out
as part of any manual handling operations at work for the purposes of Regulation
4(1)(a) of the Manual Handling Operations Regulations
1992. If it was, the pursuer is entitled
to damages; if it was not, the action must fail. Regulation 2(1) of the 1992 Regulations
defines manual handling operations as meaning "any transporting or supporting
of a load (including the lifting, putting down, pushing, pulling, carrying or moving
thereof) by hand or by bodily force."
Schedule 1 to the Regulations sets out the factors to which the employer
must have regard and question he must consider when making an assessment of
manual handling operations, for the purpose of Regulation 4(1)(b)(i). The questions which the employer must
consider are as follows - are they heavy?
Bulky or unwieldy? Difficult to grasp? Unstable, or with contents
likely to shift? Sharp, hot or otherwise potentially damaging?
[38] When interpreting the Regulations and deciding whether an
activity constitutes a manual handling operation, the Courts have applied a
common sense approach and have had regard to the ordinary meaning of the words
"any transporting or supporting of a load".
It does not follow that because an employee is pushing or pulling or
moving something that this necessarily involves the transporting or supporting
of a load - see for example King v Carron Phoenix Ltd, in which the pursuer
was involved in pushing and pulling with a spanner to loosen and tighten bolts
on production machinery, and Lord Kingarth observed that "as a matter of
ordinary language and in the context of the Regulations, although the pursuer
was no doubt involved in pushing and pulling when working with the spanner, it
could not be said that he was involved in the transporting or supporting of a
load." In William McFarlane v Ferguson
Shipbuilders Ltd, in which the
pursuer sought to rely on Regulation 4(1)(a) for injuries sustained while pushing
a grinder over a surface, Lady Smith rejected the contention that this
could be regarded as the transportation or supporting of a load. She observed that:
"The use of the
expression "load" connotes something that is to be conveyed. The expressions "transporting", "supporting",
"lifting", "putting down", "pushing", "pulling", "carrying", and "moving" are
all descriptive of different activities involved in the conveyance of a
load. The activity being carried out by
the pursuer when he was grinding was, however, nothing to do with the
conveyance of a load. It may have
involved pushing but that was not for the purpose of moving the grinder from
one place to another. It was for the
purpose of producing a particular effect on the surface over which it was being
pushed."
I respectively agree with the
approach taken in each of these cases.
[39] In the present case, on the basis of the video evidence, it
appears that the removal of a chicken carcass from the upper shackle to the
workbench might be categorised as a manual handling operation, involving as it
does both elements of transporting and supporting of a load. It may also be that the action of throwing
the trussed carcass onto the lower conveyor belt can be categorised as
transporting or supporting of a load by hand or by bodily force. However, there is no suggestion that the
pursuer sustained any injury or exacerbation of symptoms as a result of either
of these steps. Her complaint was
focused on the repetitive movements of the wrists, hands and fingers in the
manipulation of the chicken carcass, by tucking in the legs and wings and tying
it with elasticated trussing string.
While this manipulation was being performed, there was no transporting
or supporting of a load.
[40] Counsel for the pursuer attempted to characterise the activity
on the trussing line as one single operation, involving the transporting and
supporting of the chicken carcass from its initial position on the upper
shackle, via the workbench to the lower conveyor belt. This is too superficial an analysis of what
happens. Because a load starts at point
A and ends at point B, it does not follow that everything that is done to that
load between points A and B amounts to a manual handling operation. If the pursuer's argument is correct, it
could apply to any activity carried out on a workbench, however lengthy or
detailed the activity was. Counsel for
the defenders used the analogy of a typist sustaining injury as a result of
repetitive use of a keyboard. This would
not normally be regarded as a manual handling operation, as no load is
transported or supported. The task
cannot be transformed into a manual handling operation by looking at the
surrounding context, in which the typist commences the operation by fetching
and carrying a bundle of blank paper and concludes the operation by lifting and
delivering a bundle of typed correspondence.
[41] The exacerbation of symptoms of which the pursuer complains was
caused not by any transporting or supporting of a load, but by the manipulation
of the chicken carcass whilst on the workbench.
While this manipulation process was being carried out, the chicken
carcass was not being conveyed anywhere.
It would be straining the ordinary use of language to describe this
manipulation as the transporting or supporting of a load, and it would be
contrary to common sense to describe all the activities from the lifting of the
carcass from the upper shackle to the workbench, through the manipulation of
the legs and wings and the trussing of the carcass, to the throwing of the carcass
onto the lower conveyor belt, as one operation of transporting or supporting of
a load. Between the two elements of
transporting or supporting of a load there is an interval, during which the carcass
is worked upon at the workbench. It
follows from this that the exacerbation of symptoms experienced by the pursuer
as a result of manipulating the chicken carcasses on the trussing line was not
caused by a breach of Regulation 4(1)(a) of the 1992 Regulations, and this
action must fail.
[42] If I had been making an award of damages in favour of the
pursuer, I should have valued solatium at substantially less than the range of
£1,250 to £1,900 given in paragraph (K)(d) on page 46
of the Judicial Studies Board Guidelines, because that range relates to conditions
caused by faulty behaviour, rather than cases such as the present in which
pre-existing symptoms were merely aggravated.
Moreover, the exacerbation of symptoms in this case was relatively
short-lived, commencing in about early December 2000, involving a first visit
to the pursuer's doctor on 22 January
2001 and in a successful operation as a day patient on 24 March 2001. Having regard to the cases to which I was
referred, and taking into account the pain and discomfort experienced in the
period of post-operative recuperation, I should have awarded solatium in the
sum of £900 inclusive of interest to date.
[43] With regard to the claim for loss of earnings in the period
from March to June 2001 following the pursuer's operation, despite the argument
advanced for the defenders that the pursuer would have probably required surgery
at some stage in any event even if she had not been working on the trussing
line and so this head of claim should not be allowed, there was no evidence to
indicate when such surgery would be required if the pursuer had not been
working. On balance, I am satisfied that
the evidence disclosed a sufficient link between the pursuer's working on the
trussing line and the need for surgery to relieve her symptoms that, if I had
been making an award of damages, I should have included in that award the
figures for net loss of earnings and interest thereon provided for in the Joint
Minute for the Parties (Production No.20 of Process). With regard to the claim for necessary
services in terms of Section 8 of the Administration of Justice Act 1982, the
help provided by the pursuer's family was limited in time and in scope; it
lasted for only six to seven weeks, and covered drying the pursuer's hair,
working at a sink and some housework. This
element of the claim is worth less than the sum of £500 which was awarded in McGarrigle v Babcock Energy Ltd; if the pursuer had been successful on
liability, I should have awarded a total of £300 under this head of claim,
divided equally between the pursuer's husband, her father and her
daughter. However, for the reasons given
above, I do not consider that the defenders are liable to make reparation to
the pursuer. I shall therefore sustain
the defenders' third plea in law and grant decree of absolvitor.
