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WILLIAM REID v. D B SCHENKER RAIL (UK) LIMITED (FORMERLY EWS RAILWAYS LIMITED)


Submitted: 22 February 2012

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord Carloway

Lord Philip

[2012] CSIH 16

XA133/10

OPINION OF THE COURT

delivered by LORD PHILIP

In the appeal by

WILLIAM REID

Pursuer and Appellant;

against

D B SCHENKER RAIL (UK) LIMITED (FORMERLY EWS RAILWAYS LTD)

Defenders and Respondents:

______

Act: Clarke, QC; Love; Bonnar & Company

Alt: I G Armstrong, QC, Middleton; Tods Murray LLP

22 February 2012

[1] This is an appeal from a decision of the sheriff principal of the sheriffdom of Lothian and Borders at Edinburgh in an action by the appellant against the respondents for damages for the loss sustained by him as a result of developing plantar fasciitis in his left foot due to the nature and conditions of the work he was required to carry out in the respondents' employment. He avers that his condition was caused by the respondents' breach of regulation 4(1) of the Manual Handling Operations Regulations 1992 which provides:

"4(1) Each employer shall:

(a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve the risk of their being injured."

[2] The respondents admit a breach of that statutory duty, conceding that the need for the manual handling operation in question could have been avoided, but they contend that the development of the appellant's condition was not caused by his work with them.

[3] The circumstances of the case were as follows. The appellant, who was born on 26 July 1947, was employed by the respondents at Longannet Power Station from 1994, latterly as a rail operator supervisor. His duties included manually closing doors on wagons of trains which had not closed automatically as the trains left a hopper shed after delivering coal. Trains of wagons of coal arrived daily at the power station to discharge coal at the hopper shed. Normally the doors on the underside of the wagons were closed automatically by equipment called "daleks" as the wagons were hauled out of the hopper shed. Sometimes the daleks failed to close individual doors. The appellant's duties included closing such doors manually using an instrument known as a yale pull, a long chain and ratchet device, which weighed 30 kgs.

[4] Prior to 31 August 2000 the appellant was in the habit of crawling under or between wagons in order to close doors on the far side of the wagons from his work station. On 31 August 2000 he was forbidden to crawl between the wagons without telling the driver because it was dangerous. He interpreted that instruction as forbidding him to crawl under or between wagons at all, an interpretation which the sheriff found to be reasonable in the circumstances. As a result, it became necessary for him to walk some distance along the side and round the front or rear of trains to close doors on the far side from his work station and back again. The trains were about 1000 feet long. On these occasions he had to carry the yale pull on his shoulder. Sometimes a wheelbarrow, not specially provided for the purpose, was available to carry the yale pull. The appellant was never instructed to use the wheelbarrow, but when one was available, he used it.

[5] The sheriff found that in each eight hour shift about six or seven trains went through the hopper shed. The number of doors that the appellant had to close manually was at least two on each shift, of which one would be on the far side of the train from his workstation. The sheriff also found that the maximum distance the appellant had to walk along the side of a train in order to close a door and back would be two-ninths of a mile.

[6] The ground beside the railway line on which the appellant had to walk was, prior to July 2001, compacted through use. The rails themselves were set in ballast and the appellant had to walk across it to get to the far side of the wagons. Prior to July 2001 the ballast was not unstable or loose. In July 2001 the appellant went on holiday. During his absence the ballast around the tracks was renewed and at the same time the ground beside the trains became rough and uneven.

[7] As a result, in August and September 2001, after his return from holiday, he had to walk along the side of trains on rough and uneven ground and, in order to attach the yale pull to wagons, he had to step on fresh loose ballast which was unstable. These changed conditions in which the appellant had to work are described in the sheriff's note as "the increased activity".

[8] On 17 September 2001 the appellant ceased work. On the following day he saw his general practitioner complaining of pain in his left heel and ankle which he had then been suffering for about six weeks. The condition was subsequently diagnosed as plantar fasciitis. The appellant has had a deformity of his right foot since childhood and has no dorsiflexion in that foot. As a result he walks with a limp. The sheriff found that the dorsiflexion of his left foot was limited to about 5°. He was not obese. The appellant was subject to compulsory retirement on ground of ill-health because of his condition on 1 March 2003.

[9] The principal issue in the case was whether the increased activity caused the appellant's condition of plantar fasciitis. The sheriff heard evidence from three orthopaedic surgeons who were not agreed as to the causes of or risk factors associated with plantar fasciitis. Mr John De Leeuw, a consultant orthopaedic surgeon at Falkirk Royal Infirmary, who was called as a witness by the appellant, was of the opinion that plantar fasciitis developed when something changed in the load of the foot. He said that 85% of his patients did not know what caused the condition but on further questioning he was usually able to identify the event which had caused it. In his view the cause in the majority of cases was increase in body weight over a short period of time, as well as changes in footwear, leisure activities and changed activity at work. The condition occurred predominantly in the 40-60 age group and all that was needed was something the foot was not used to. While he was on holiday the appellant had a period of relative rest. After his return to work his work involved picking up heavy weight and walking on unstable ground. Dr Leeuw's view was that the carrying of a heavy weight and the requirement of the appellant to walk on uneven ground were both, independently, causes of his plantar fasciitis.

[10] Mr Frans Denolf was the consultant orthopaedic surgeon at Falkirk Royal Infirmary to whom the appellant was referred by his doctor in October 2001. His view was that there were numerous causes of plantar fasciitis but little was known and there was much speculation. Risk factors were said to be obesity and middle age. Since not all middle aged people developed the condition, age alone was not a sufficient cause. There had to be another factor. In his view the sudden increased activity undergone by the appellant could be that factor. Although not medically proved he thought there was a relationship between walking surfaces and plantar fasciitis. He also thought that the deformation of the appellant's right foot had to be taken into account when considering the cause of his plantar fasciitis.

[11] Mr James Christie, who was until his retirement in 2005 the lead orthopaedic consultant and Director of the Trauma Unit at Edinburgh Royal Infirmary, one of the largest trauma units in Britain, was called by the defenders. His opinion was that plantar fasciitis was an age-related degenerative condition of the foot accompanied by gross thickening of the plantar fascia, most commonly seen in the 40 to 60 age group in patients with no risk factors, for example, office workers, doctors and lawyers. He did not see any relationship between injury and activity in the development of the condition, and did not think that the appellant's increased activity was a cause or that his plantar fasciitis was work related. Limited dorsiflexion was however an important risk factor. He made reference to an article from the Journal of Bone and Joint Surgery by Riddle and Others which dealt with risk factors relating to plantar fasciitis. The authors of the report found evidence of association between plantar fasciitis and the risk factors of ankle dorsiflexion and work-related weight bearing. Mr Christie called the appellant back specifically to measure the dorsiflexion of his left ankle and found it to be restricted to 5o. His concluded view was that the appellant had developed plantar fasciitis quite independently of his work but that his work had accelerated the onset of his symptoms by a few months. He did not accept that the uneven ground or the ballast on which the appellant had to walk was the cause of the appellant's condition.

[12] The sheriff found as a fact that limited dorsiflexion in the left foot was a risk factor in the development of the appellant's plantar fasciitis and that it was a probable cause of the appellant's condition. He further found that the increased activity which the appellant had to undertake in August and September 2001 was not a cause of his plantar fasciitis nor had it materially contributed to it. He nevertheless found that the increased activity accelerated the onset of the appellant's symptoms by a few months. It is clear that in making these findings the sheriff accepted the evidence of Mr Christie.

[13] The sheriff granted decree in the sum of £7376.95 on the basis that the breach of duty merely accelerated the onset of the appellant's condition. The pursuer appealed to the sheriff principal and submitted that, the sheriff having erred in his findings on the question of causation, decree should be granted in favour of the appellant on the basis that the breach of duty caused the appellant's condition, at the agreed sum of £63,690.95. The respondents' cross-appealed on the submission that the sheriff had erred in holding that although the breach of duty did not cause the appellant's condition, it accelerated its onset, and therefore that decree of absolivitor should be pronounced. The sheriff principal refused the appeal, sustained the cross-appeal and granted decree of absolivitor. In the present appeal the appellant moves us to recall the sheriff principal's interlocutor in its entirety; to amend the findings in fact and to grant decree in favour of the appellant at the agreed sum of £63,690.69, or if the onset of the appellant's condition had been accelerated, but not caused by the breach of duty, at the agreed sum of £7,373.95. In answer to the appeal counsel for the respondents moved us to refuse the appeal; failing which to find for the appellant in the sum of £7,376.95.

[14] On behalf of the appellant, it was argued that the sheriff had applied the wrong standard of proof. He had considered scientific and epidemiological papers without proper instruction and, in doing so, sought to ascertain what had been proved in the scientific sense rather than in the legal sense by application of the standard of a balance of probabilities. He treated the questions raised in the epidemiological papers as actual variations of the body of medical knowledge rather than matters worthy of further study. Accordingly his findings in fact on aetiology should be set aside. Further the sheriff failed to give reasons for his finding on the cause of the appellant's condition by reference to expert medical evidence. In particular he failed to say whose evidence he preferred.

[15] Secondly, it was argued for the appellant that carrying excessive weight at work was an accepted risk factor in relation to the development of plantar fasciitis in the same way as was sudden weight gain over a short period of time. The sheriff erred in failing to find on a balance of probabilities that the respondents' breach of the regulations made a direct and material contribution to the development of the condition.

[16] Thirdly, and alternatively, the appellant argued that the sheriff was entitled to hold that the breach of the manual handling regulations accelerated the onset of the appellant's condition by a few months. The sheriff principal had erred in concluding that he was not entitled to do so.

[17] Counsel for the respondents argued that there was ample evidence before the sheriff to entitle him to conclude that the appellant's condition was not caused by the increased activity. The evidence of Mr Christie was clearly to that effect and he found support in the report by Riddle and Others. There was a dispute among the medical witnesses with the result that, on the evidence, there were a number of different risk factors or causes which could have given rise to plantar fasciitis. In that situation the sheriff had been unable to find that the appellant had proved on a balance probabilities that the condition had been caused by the increased activity. This was not a case in which a causative link between the increased activity and the development of plantar fasciitis could be deduced from what usually happens since there was dispute in relation to, and limited understanding of, the causes of plantar fasciitis.

[18] We reject the appellant's argument that the sheriff applied the wrong standard of proof. The contention was that he sought proof of the cause of the appellant's plantar fasciitis to a standard which a scientist would require in order to regard it as established, rather than considering whether he was satisfied that the appellant's contention as to the cause of the condition was probably sound. Counsel for the appellant did not point us to any specific passage in the sheriff's note which indicated that he had applied any other standard of proof than the balance of probabilities, nor have we been able to find any such indication. On the contrary, the sheriff made frequent reference to the appropriate standard.

[19] The Riddle report was referred to in evidence by both Mr Christie and Mr De Leeuw. The appellant's complaint was that the sheriff had regard to its contents in coming to his conclusion on causation "without proper instruction", and that he treated the questions raised in it and the other paper referred to as variations in the body of medical evidence. This argument misunderstands the sheriff's purpose in mentioning these papers. He was faced with a conflict of medical evidence. In the course of assessing the evidence he looked at the contents of the papers the witnesses had referred to in evidence. He found that Mr Christie's view was consistent with some of the results reported in Mr Riddle's paper. That weighed with him in his assessment of the evidence. He did not require "instruction". He had already heard the witnesses explain the relevance of the contents of papers to their conclusions. He was merely giving appropriate consideration to the evidence before him.

[20] In so doing he gave sufficient explanation of his acceptance of Mr Christie's evidence and of his reasons for his finding on causation. Mr Christie found that the appellant had limited dorsiflexion of the left foot. He called him back specifically to examine the dorsiflexion after reading the Riddle Report which indicated that limited dorsiflexion was a possible factor in the onset of plantar fasciitis. Since Mr Christie had made a particular point of examining the dorsiflexion with some care, the sheriff was entitled to prefer his evidence on that matter. On the other hand, since little was known about the aetiology of plantar fasciitis, there was no body of published research which could be said to be directly supportive of Mr De Leeuw's view of the cause. The onus of proof was on the appellant and the sheriff had sufficient doubt about the cause put forward by Mr De Leeuw that he was not satisfied that it was proved on a balance of probabilities

[21] The appellant relied on the decision in Gardiner v Motherwell Machinery & Scrap Co Ltd [1961] S.C. (H.L.) 1 in support of the argument that he had contracted plantar fasciitis after being subjected to an activity which was known to be likely to cause that condition and had shown that it had started in a way typical of a condition caused by that activity. There was therefore a prima facie presumption that the condition was caused by the increased activity. The sheriff found on the evidence that the increased activity could not be said to be a typical way in which plantar fasciitis occurred. In the state of the evidence before him the sheriff was entitled to take that view. There was no body of evidence showing that individuals had contracted plantar fasciitis in circumstances similar to those experienced by the appellant. There had been little research into the causes of plantar fasciitis, and certainly insufficient to establish one or more causes which were generally accepted by the medical profession. We therefore reject the argument based on Gardiner.

[22] Mr Christie expressed the view that the onset of the appellant's condition, although caused by factors other than the increased activity, was probably accelerated by that activity by a few months. The sheriff accepted that evidence and made an award of damages on the basis on that the appellant's condition became symptomatic a few months earlier than it would otherwise have done. The respondents cross-appealed to the sheriff principal arguing that if the appellant's condition was not caused by the defender's breach of duty it could not, either legally or medically, have been accelerated by it. Before the sheriff principal the solicitor for the appellant accepted that that proposition was sound and the sheriff principal proceeded on that concession. Before this court the appellant argued, if we were against him on his principal submissions, that the sheriff was entitled to hold on the evidence that the breach of the manual handling regulations had accelerated the onset of the condition by a few months. We see nothing illogical in the sheriff's approach. He found, as he was entitled to do, that the respondent's breach of duty was not the cause of the appellant's plantar fasciitis. Mr Christie's evidence was that the appellant's plantar fasciitis was a degenerative condition which had developed asymptomatically but which would have become symptomatic at some stage. Because of the increased activity it became symptomatic earlier than it would otherwise have done. In other words the increased activity did not cause the condition, it merely accelerated it. The sheriff was therefore entitled to award damages as he did.

[23] In the result we shall recall the interlocutor of the sheriff principal to the extent that it sustained the defenders' cross-appeal and quoad ultra refuse the appeal. The effect of that will be to restore the sheriff's interlocutor.