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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 142
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A431/03
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OPINION OF LORD McEWAN
in the cause
AMANDA SUTHERLAND
CHINN
Pursuer;
against
CYCLACEL LIMITED
Defender:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer: Hadjucki, Q.C.; Anderson Strathern
Defender: Shand, Q.C.; Brechin Tindal Oatts
7 August 2007
[1] In
this action the pursuer seeks damages for injuries sustained to her arm and
wrist while performing an operation. The
injury is allegedly caused by repetitive strain. In the Record she describes an operation
involving the use of pipette guns in a laboratory for several hours over a
period of months. The guns involved the
use of her thumb, index and middle fingers in pressing and bending
movements. The tasks over time were said
to be strenuous and repetitive while working at times in awkward positions and
as well doing other necessary hand tasks with a computer. The description of the job is difficult to
follow and has been met by an answer (Ans. 3) some thirteen pages long.
[2] In
the course of the debate before me the pursuer amended on the bar to restrict
the scope of her case.
[3] In
inviting me to dismiss the action Miss
Shand said that the Common Law case was not relevantly averred. She said that the duties of instruction and training
were confusing; nor was it clear which of the pipette guns were unsuitable or
why. The pursuer had failed to say what
was the proper method of working or how the defenders were to instruct and
train her. There were also serious
difficulties over the timing of her alleged injuries. Were they over a period of time or the days
before her employment ended in February.
There was a complete lack of specification over what was meant by
"gripping and twisting" and by the words "a large volume" of fluid.
[4] She
then moved to an attack on the statutory case at which point the pursuer asked
for and was allowed leave to amend. Inter
alia articles 7,8 and 10 were deleted, leaving
only the Regulation 5 case as averred in the renumbered 7.
[5] Miss Shand continued
that it could not be said that the guns were unsuitable. Such was not even a foreseeable
possibility. In the context of relevancy
she then argued that as the averments were doubtfully relevant the case was not
suitable for jury trial. Was the case based on total hours worked or an
increase towards the end. The 1999 Regulations referred to did not give
rights to any civil liability and there was no need for any risk
assessment. Also there was no such duty
in common law. There were also problems
of what injury the pursuer had sustained.
It was described in three alternative ways on page 47. The pathology was not identified. It was not described as tendonitis or
sympathetic dystrophy and the deterioration was unexplained. Only recent amendments had raised all these
medical issues which were complex. It
was wholly unclear why pipetting could cause such serious results. Further, the valuation of the claim now more
than the sum sued for could not be
put to the jury. There were also
problems with the averments relating to the pension loss. These lacked specification. The case was irrelevant or in any case not
suitable for jury trial.
[6] In
replying senior counsel for the pursuer began by saying that his valuation was
only information and would not be shown to any jury. They would, however, be given figures for wage loss. Turning to relevancy he said that the case
could not be dismissed at this stage.
The claim was only for the pipetting and nothing else. The time frame covered the whole period with
a crisis at the end of January. The
defenders knew the considerable extent of her working operations up to over 400
movements per day with the guns as they required an increased throughput of samples. The pursuer made complaints. In the circumstances of this case the
defenders should have made a risk assessment and had a safe system of working. The guns were with equipment and the only
injury was repetitive strain injury, and the pursuer was found to have a
prescribed disease.
[7] The
pursuer had a statutory right to a jury trial and a medical dispute about her
condition did not amount to special cause for refusing issue. Proper directions could easily be given and
the valuation lodged would assist the trial judge. Counsel did not respond to any of the
authorities relied on by the defenders.
[8] In
the course of the debate I was referred to a number of cases only by the
defenders which I list hereunder in order cited VIZ Porter v Strathclyde Regional
Council 1991 SLT 446, Moohan v City of Glasgow Council [2003] Scot. C.S 58, Moore v Stephens 1954 S.C 331, O'Malley v Multiflex 1995 S.C.C.R. 1143, Mitchell v Campbletown
Shipyard 1998 G.W.D 12-616, Mughal v Reuters [1993] I.R.L.R. 571, Robertson v T and H Smith 1962 S.C.
628, Fyfe v Barnet & Morton Ltd 1965 SLT (notes) 52, McInnes v Owen 24th November
2004, Pickford v I.C.L [1998] I.W.L.R. 1189, Kennedy
v Norwich Union 1994 SLT 617. I now look briefly at only the cases which
were fully canvassed.
[9] Pickford was a
case where a secretary who did a degree of typing in her work developed
symptoms of repetitive strain injury. At
first instance she failed to prove any organic disorder for her condition. The Court of Appeal reversed the findings of
the single judge on the facts but his decision was confirmed by the House of
Lords. The case is not truly in point on
its facts but it was decided after much evidence and the condition founded on
was however a prescribed disease unlike here, where there is none.
[10] Mughall
was also decided after proof and is a single judge decision. The plaintiff who was a journalist worked
long hours at a keyboard and VDU. He
began to experience numbness in his fingers and hands. His claim was based solely on repetitive
strain injury. There was a conflict of
medical evidence and the judge found that the symptoms were not caused by the
physical aspect of the work. The case
contains a detailed analysis of conflicting evidence about the condition. Once again the facts are different from the
present case, but I do think even that in this stage it advances Miss Shard's
argument on relevancy. What it does
indicate is that in this area complex medical questions do arise and that there
is no relevant claim based only on repetitive strain injury.
[11] The other cases I look at briefly concern Jury Trial. Fyfe v Barnet and Morton dealt solely with the
issue of Jury Trial. A blow on the nose
had caused blindness to the petitioner. The
Lord Ordinary considered that the facts raised difficult medical questions and
refused issues. The case is no more than
an example. Robertson v T and H Smith
is also another example of complicated issues, this time on an industrial
process. The Lord Ordinary was of the
opinion that "special cause" was a matter for his discretion in those
circumstances and that there were no general rules. The case also had issues of relevancy about
the use of complicated apparatus. Lord Strachan was a very learned and strong judge and no issue
can be taken with his reasoning, general and particular, in this case.
[12] O'Malley was a case
where there was a problem over the pleading of financial losses. That alone was enough to have the Lord
Ordinary refuse issues. Moore is only authority for the proposition
that in general it is desirable for cases which go to jury trial to have a
record which clearly states the issues and which is conclusive of relevancy (p
334/5). Moohan was a decision after proof
on Regulation 5 but the facts were wholly different from the present case. It is not in point.
[13] The authorities make it
clear that the court will be slow to dismiss an action at the stage of
relevancy. However, in my opinion that
is the only course open to me on the pleadings as they
stand. I think that Miss Shand was
correct to describe them as misconceived and totally confused. The case begins in Article 3 with the reader
being led to conclude that the problem at work began in February 2000. There is mention of two types of pipette gun
(the Gilson and the Pipetboy acu).
Finger and thumb movements are mentioned. They are described as "pressing" "gripping"
and "twisting". However, the pursuer
goes on to complain (page 12) of working in awkward positions, holding up large
volumes of fluid with her arms unsupported.
There is also a complaint of having to use a computer keyboard.
[14] Further on, in Article 3 there is mention of shifts and rotas
in 1999 but without any specific complaint of problems with any pipette. There is reinforcement of the averments of
supporting heavy weights of fluid (15 C/D).
It is only by reference back to Article 2 that some history of her work
from 1999 is given. There is, however,
no complaint of injury. The importance
of this is that only in his reply speech did counsel for the pursuer state that
his only complaint related to the pipetting. That means the other complaints have to be
ignored. They remain, however, on Record
and the task of excluding them from proof is not for me and no amendment was
suggested to narrow the issues. In
contradiction of that, he also said the Court had to look at the whole period
of her work with a crisis at the end of January. To have to explain pleadings in this way is
in my view fatal to their clarity and relevancy. I will leave the averments of injury for the
present and look at the duties of care.
These, of course, have been substantially restricted by the amendment
made at the bar during the debate (No 21 of Process)
[15] In Article 4 there is mention of guidance and training (34 C)
but with no specification of what is meant.
In Article 5 that complaint is repeated again without any
specification. There is a complaint of a
failure to carry out a risk assessment in terms of the 1999 regulation as
quoted. In my view, these duties are not
relevantly averred. The first duty is
irrelevant for lack of specification and in my opinion there is no duty to
carry out a risk assessment under these Regulations Mitchell v Campbletown
Shipyard is in point and I fully agree with the opinion of the Lord Ordinary
(Osborne).
[16] Then comes Article 6. That desiderates
a safe system of working but in relation to all the complaints made in Article
3 most of which have now been disavowed. Four alternative duties are stated (39 C)
as well as a separate inspecific duty to instruct and train. It is wholly unclear how any of this relates
to the Record as it stands or if it is confined only to the acts of
pipetting.
[17] I now turn to the only statutory case remaining (Regulation 5
of the Provision and Use of Work Equipment Regulations 1992). Assuming that the guns were work equipment it
is not averred why they were unsuitable.
Only "gun" in the singular is mentioned yet two were provided. It is only one gun or both? All of the
questions need proper answers and none were forthcoming.
[18] There is a further serious problem over the specification of
the injuries. In my view the pursuer has
failed to specify any recognised injury of the type seen in Pickford (see 1195 D/F). In this record 47 C/D she says what her
condition was, describing it in three alternatives. One of these is Repetitive Strain Injury
(R.S.I). At page 48 E there is then
mention of tenosynovitis which is a known condition. It is wholly unclear on what the pursuer is
founding. Although only the decision of
a single judge Mughall was decided
after an extensive proof. I take from it
that to make a claim based on
repetitive strain injury is not a relevant claim. The same view was taken in Pickford (also after proof). The pursuer's counsel in argument said the
claim was based on R.S.I. He did not seek to contradict or distinguish either of
the English cases. For all of these
reasons I consider the case as pled to be irrelevant. What of jury trial? In my view, had I been
able to find a vestige of relevancy I would have exercised my discretion by
refusing issues. Doubtful relevancy
alone is enough to exclude jury trial and complicated medical questions is a
further proper ground for taking the same course. The many cases cited to me, and not
contradicted, make that clear.
[19] At the end of the debate Senior Counsel for the pursuer
suggested that I put that case out By Order if I was minded to dismiss it. He wished to consider amending in that event. Miss Shand responded by referring me to Kennedy where that practice was discussed
at length. In my opinion it is not
appropriate to do that here. The pursuer
has already amended and in my view the proper course is to make a decision on
the pleadings as they now stand. I will
sustain the defenders second plea in law.
