Clyde & Co are pleased to report it has successfully defended of the first ever disease Proof run in the All-Scotland Sheriff Court, Edinburgh, which was also the first Hand-Arm Vibration Syndrome (HAVS) proof in Scotland in more than 10 years.
Not only is this a positive result for our client, but it is an important judgment that clarifies the burden of proof in HAVS claims, clearly setting out what a pursuer must establish in HAVS actions.
It is not unreasonable to suggest that we may see a reduction in HAVS claims in the future.
The Pursuer raised an action for £100,000 plus expenses having claimed he had developed HAVS as a result of exposure to excessive vibration due to the use of power tools throughout his employment with the Defender.
The Defender denied that the Pursuer had developed HAVS and argued that the Pursuer had not established what magnitude of vibration he was exposed to, and therefore had not established either that there was any breach of duty owed to him or that any breach of duty had a causative effect.
Sheriff Braid was required to consider two principal questions in making his decision. First, does the Pursuer have HAVS and secondly, has he established what level of vibration he was exposed to? There was also the issue as to whether the Pursuer had established that the Defenders were in breach of their duty of reasonable care towards him.
Rachel Carr, an associate in Clyde & Co's Legacy team was instructed to act on the Defender's behalf. The Proof ran over 8 days in the All-Scotland Sheriff Court at Edinburgh, evidence was taken from a total of 7 witnesses; 4 of which were expert witnesses, and lengthy submissions were made.
The Pursuer was a stamping and deburring operative with the Defender. Although the Pursuer gave evidence of his alleged exposure; the Defender's witness evidence led from a work colleague was preferred. The Court noted several difficulties with the Pursuer's evidence. There was no evidence from the Pursuer on the magnitude of vibration which each tool he used was likely to transmit to him and there was also no evidence on the particular tools used by the Pursuer. Criticisms were also made of the Pursuer's evidence about the symptoms from which he suffered. His own reliability and credibility was questioned.
A central question was whether the Pursuer had proved the amount of vibration to which he was exposed. The Pursuer failed to prove his actual exposure as no evidence was led from the Pursuer on the tools he used. Ultimately there was no reliable evidence on the amount of vibration. Counsel for the Pursuer then submitted that since the Defender had been under a duty to measure the vibration and had not done so, an adverse inference should be drawn that the vibration was excessive. The Court did not accept this. So the onus of proof was on the Pursuer to establish the vibration produced by the tools in question; not the Defender.
Evidence was led from two different technical experts. When considering trigger time; the Court considered the Pursuer exaggerated his evidence and the Defender's witness evidence was more likely an accurate reflection.
The Court preferred the evidence of the Defender's expert in relation to magnitude and found that it was unlikely that the Exposure Action Value set by the Control of Vibration at Works Regulations 2005 would have been reached.
The Court did not accept that the Pursuer had either sensorineural or vascular HAVS and his claim therefore must fail.
Counsel for the Pursuer submitted that causation did not have to be proven but it was sufficient to establish there was an increased risk of HAVS. The Court confirmed it was a step too far to say that because a Defender failed to carry out a risk assessment the risk to the Pursuer is increased or that because there was a risk, causation must be held to be established where an employee develops HAVS. Sheriff Baird confirmed that he would not have found there to be any causal link between the Defender's breach of duty and the Pursuer's condition.
Sheriff Baird concluded that the Pursuer had not suffered any loss, injury or damage through any breach of duty of the Defenders. The Defenders were accordingly absolved.
What can we learn?
- This is an incredibly significant judgment for the handling of HAVS claims in the future. This decision impacts future HAVS actions with the following clearly set out by the Court:
- The onus of proof is on a pursuer to establish the vibration produced by the tools in question and not the defender; along with a clear responsibility on the part of a pursuer to prove that he is suffering HAVS.
- It is not acceptable to assume because HAVS is caused by vibration and that because the pursuer had been exposed to vibration that he therefore must have HAVS.
- The failure to risk assess is not enough for liability to be established. The fact that a risk assessment was not carried out did not automatically mean that liability was established.