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Transco Plc v Griggs, Court of Appeal

23 April 2003
The issues

VWF – material contribution

The facts

The Claimant was employed by the Defendant as a Distribution Fitter from 1974 to 1998. Over that time he routinely used various vibrating tools including tools including road breakers, wackers and other drills. In May 1998 he was diagnosed with Hand-Arm Vibration Syndrome (HAVS). In February 1999 a Rheumatologist decided the most likely diagnosis was Vibration White Finger (VWF) which is part of HAVS. The Claimant brought an action for personal injuries against his employer. Breach of duty was admitted. There was a dispute over causation. The Defendant’s expert was not satisfied that the Claimant’s symptoms were typical of the effects of vibration. The Claimant’s expert carried out further tests, which showed that the Claimant was not suffering from VWF. The Claimant’s expert now thought that the condition the Claimant was suffering from was Palmar Arch Disease (PAD) and that in the absence of any signs of vascular disease elsewhere the most likely cause was the use of vibrating machinery. The Defendant’s expert believed that generalised or diffuse PAD would account for his symptoms and did not accept that vibration had been shown to cause PAD.

At Trial the Defendant’s expert adopted the diagnosis of PAD and the Judge found as a fact that he was suffering from PAD. The Judge found that the Defendant’s expert did not come up with any more plausible explanation of the Claimant’s condition and that “by diagnosis by exclusion” the condition was vibration induced. Following Fairchild v Glenhaven and McGhee v National Coal Board he found that the Defendant had materially increased the risk. The Defendant appealed.

The decision

1. When faced with competing expert evidence, it was an important part of the Judge’s task to assess whose opinion was the more reliable.

2. Another factor was the respective qualifications and experience of the experts.

3. The most important factor however was the quality of evidence and reasoning upon which their opinions are based. The Judge’s approach in respect of the “diagnosis by exclusion” was reasonable. If a Claimant establishes that all other possible causes of damage must be excluded then it becomes more probable than not that the possible cause which has not been excluded is the true cause.

4. The Defendant had argued that the Claimant could not prove that his PAD was caused by guilty negligent levels of exposure rather than innocent non-negligent and acceptable levels. The Defendant argued that this was not the same situation as had been dealt with in Fairchild. It was inappropriate in this case to relax the strict “but for” requirement of causation, they argued.

5. Bearing in mind the length and magnitude of the Claimant’s exposure to vibration and the extensive breaches of duty admitted by the Defendant it was possible to conclude that the “but for” test was satisfied. It had been eventually agreed between the experts that all causes of the Claimant’s condition apart from his exposure to vibratory tools had been effectively excluded.

6. Even if the “but for” test could not be satisfied there was no doubt that the employers failure to have a proper system for protecting and preventing vibration induced diseases materially increased the risk of an employee sustaining such a disease. Appeal dismissed.

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