Injury through vibration and recent guidance from the Court of Appeal

Rugby Joinery v Whitfield [2005] EWCA Civ 561, 10 May 2005; Burgin v Sheffield City Council [2005] EWCA Civ 482, 14 April 2005; Brookes v South Yorkshire Passenger Transport Executive and Mainline Group Ltd [2005] EWCA Civ 452, 28 April 2005


'Bearing in mind that VWF [vibration white finger] involve (sic) relatively small amounts of money (when compared with the likely level of costs involved) it is highly desirable that claims such as these be settled rather than litigated, and, indeed, settled at an early stage.' So said Lord Justice Neuberger in Rugby Joinery v Whitfield. The fact is that cases involving exposure to vibration are 'complex' (see Lord Justice Pill in Smith v Wright & Beyer Ltd, [2001] EWCA Civ 1069, 3 July 2001.


However, as recent case law demonstrates, the Court of Appeal on the one hand presents this tantalising vision of a prompt resolution of these claims, while in practice frequently offers an unpredictable approach to the key issues. An analysis of several recent cases shows how this inconsistency develops.


In Burgin v Sheffield City Council - a case in which limitation was in issue - Lord Justice Clarke stated: 'He [the claimant] then described his symptoms, which, as I understand it were symptoms of VWF, although not including the vascular symptoms.' The judge clearly failed to comprehend that VWF is the vascular component of hand/arm vibration syndrome. This is a fundamental and troubling error, given that the court seeks to encourage practitioners to settle quickly.


More confusion arises in relation to the date of knowledge of the effects of vibration transmitted through the hands. This is a complicated issue. Lord Justice Auld in Doherty v Rugby Joinery(UK) Ltd [2004] EWCA Civ 147, 7 February 2004, advised that 'while the notion of a general "date of knowledge" might provide a useful starting point for considering the "date of knowledge" in any individual case, that is all it is.'


Guidance was given on the factors which should be examined in fixing the knowledge of a particular employer, which include: the nature of the industry, the type of work, the tools used, and the nature and pattern of use of those tools. Nonetheless, in some of the major industries in which vibration features, for example, steel/heavy engineering and mining, an influential factor in identifying the date of knowledge has been DD43 - Draft for Development - Guide to the Evaluation of Exposure of the Hand-Arm System to Vibration, published in 1975. It is, therefore, with both surprise and dismay that one reads the view of the appeal court that a large transport company such as the defendants in the Brookes case, which employed 250 fitters, would only be fixed with knowledge from 1989. Lady Justice Smith, in considering DD43, comments: 'DD43 did not promulgate the British Standard; it gave provisional advice and called for contributions to the advancement of knowledge on the subject of VWF'.


The Court of Appeal did not address the fact that DD43 is a publication of the British Standards Institute. Arguably, the defendant's health and safety officer/department should have been aware of it from publication in February 1975.


The document could not be clearer. In its opening paragraph, it states: 'If a hand is subject to vibration, either when holding a power tool or when holding material which is vibrating, after a period the fingers become liable to attacks of blanching.' By suggesting that this is merely 'provisional advice', the picture is confused. Permitting the defendant to wait until the publication of British Standard 6842 in 1987, then, allowing two years to institute remedial measures, despite in the instant case having its own occupational health department from 1981, is likely to encourage more, not less, litigation.


However, perhaps I am being pessimistic. In Brookes, the date of knowledge became something of a red herring. Although the claimant had been exposed to excessive vibration prior to 1989, his symptoms did not commence until the winter of 1999. The defendant sought to argue for a discount for the 'non-negligent' exposure, but the Court of Appeal found that it was responsible for the whole of the damages. The basis was that if the defendant had complied with its duty in 1989, the claimant would never have suffered symptoms.


This builds on the approach of Lord Justice Pill in Smith v Wright & Beyer, who spoke of the effects of vibration being cumulative, and there being a 'reservoir of tolerance' that would eventually be breached if vibration continues - injury only materialising in that case through negligent exposure. In Smith, as with Brookes, there was only one employer.


Apportionment was also the issue in Rugby Joinery v Whitfield. The claimant had been exposed to vibration prior to the date of knowledge, but her symptoms only commenced three to four years afterwards.


In advising on how to apportion damages, Lord Justice Neuberger stated: 'There is often more than one way to assess damages; different approaches may be appropriate in different cases, and in many cases more than one approach may be appropriate.'


And the Court of Appeal wonders why vibration cases continue to reach its doors.


Lord Justice Neuberger accepted the view of Mrs Justice Smith (as she then was) in Allen v BREL [2001] EWCA Civ 242, that 'damages should reflect the onset and progress of disability as well as the actual damage' and should not be apportioned on a 'straight line basis'. He found it 'unrealistic' to give the same weight to the later exposure after symptoms commenced, as to the non-negligent exposure prior to the onset of symptoms, and awarded the claimant full damages without apportionment.


What do we learn from these recent decisions? Vibration cases are complex and the damages may be disproportionate to the costs incurred. Date of knowledge is likely to be an issue in respect of all but the very largest of those employers who have a well-recorded history of exposing their employees to vibration.


The status of DD43 is now less clear.


In single employer cases, if the claimant's symptoms started after the employer's date of knowledge, then a full award of damages may follow, irrespective of earlier non-negligent exposure helping to fill the 'reservoir'. This depends on two factors, namely, the susceptibility of the claimant, and the absence of any evidence to the contrary (see paragraph 26 of the judgment of Lady Justice Smith).


Lady Justice Smith gave the example of two claimants, A and B. A had high susceptibility to the effects of vibration, and developed symptoms within five years of the commencement of employment with increasing severity thereafter. Employee B had lower susceptibility, and did not develop symptoms for 15 years.


If the date of knowledge was established, say, after ten years, then employee A can only recover damages in respect of the deterioration after that ten-year date. Employee B could argue that he should recover full damages, because he would not have developed symptoms if there had been no negligence after the ten-year date.


However, note that with employee A, Lady Justice Smith stated that if it was not possible to make an apportionment because the evidence was not there to enable the judge to do so, the claimant would receive the full damages because the negligent exposure had made a material contribution to the injury.


In multi-defendant cases where the first defendant negligently exposed the claimant to vibration, but no symptoms developed in the years of that employment, the claimant can still pursue the defendant as the condition is cumulative, and the exposure negligent. Although, if the decision in Brookes is correct, the claimant could recover the full extent of the damages from the most recent exposing employer, with no apportionment in respect of earlier exposure.


The Court of Appeal presents practitioners with something that is desirable, but not easily attained. There are a plethora of issues in hand-arm vibration cases including condition, causation, knowledge and limitation. Even if a claimant satisfies these requirements, he then has the issue of apportionment to address.


Claimants, insurers and practitioners will be pleased to be able to settle/turn down vibration cases 'quickly', but little that the Court of Appeal has done in recent months has made that wish achievable.


By Simon Allen, Russell Jones & Walker, Sheffield