Brown and Others v Corus (UK) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Scott Baker |
| Judgment Date | 30 March 2004 |
| Neutral Citation | [2004] EWCA Civ 374 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 March 2004 |
| Docket Number | Case No: B3/2003/0397/0703/0704 |
[2004] EWCA Civ 374
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF COUNTY COURT
(HIS HONOUR JUDGE HICKINBOTTOM)
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Right Honourable Lord Justice Auld
The Right Honourable Lord Justice May and
The Right Honourable Lord Justice Scott Baker
Case No: B3/2003/0397/0703/0704
Nigel Cooksley Q.C and Ian Scott (instructed by Russell Jones & Walker) for the Appellants
Charles Feeny (instructed by Cartwright Black) for the Respondents
This is the judgment of the court.
On 13 February 2003 Judge Hickinbottom, sitting in the Cardiff County Court, dismissed the claims for damages of six former employees at the Llanwern Steelworks in South Wales. We have heard the appeals of three of those employees, Messers Brown, Grogan and Trickey. The other three employees' claims failed on the ground of medical causation. They are of no direct relevance to the present appeals. The six individuals were selected as lead cases from some 57 similar claims. The outcome of the present appeals is therefore of some wider importance than to the three appellants.
Each of the appellants suffers from a condition known as Hand/Arm Vibration Syndrome ("HAVS"), a condition caused by exposure to vibration from hand held vibratory tools over many years. HAVS is the generic term covering a number of specific conditions of which Vibration White Finger, the condition suffered by the appellants, is one.
The Llanwern Steelworks closed in July 2001 although the Rolling Mills remained open thereafter. Since the 1960s they had been owned and operated by a succession of companies including the Steel Corporation of Wales, the British Steel Corporation, British Steel plc and finally Corus UK Limited who are the respondents to these appeals. Corus took over all relevant obligations and liabilities of its predecessors and nothing turns on the change of identity.
In its heyday the operation at Llanwern was very considerable and employed thousands of men. During their employment in either the Refractory Department (responsible for removing and replacing the refractory material that lined much of the plant), or the Civil Engineering Department (responsible for demolishing and rebuilding various parts of the works) the appellants used a variety of handheld pneumatic mechanical tools in particular jackhammers and drills for removing or "wrecking" refractory material, rammers for installing malleable refractory material and concrete pokers to assist the de-aerating and setting of concrete.
HAVS is a cumulative or progressive condition. Asymptomatic damage worsens as a result of exposure to vibration until it becomes symptomatic. The condition has a vascular and neurological element. The neurological element may develop independently from (or at a different rate to) the vascular element. The condition is dose related i.e. the more vibration to which the person is exposed, the greater the damage that is caused. The vibration dose is made up of three components (i) the vibration level experienced from the particular tool being used (ii) the daily exposure to that level of vibration and (iii) the cumulative exposure to that level of vibration. The amount of vibration experienced by an operator at any given time depends on a number of variables, including the nature of the job being done, the type of material on which the machine is operating and the grip of the operator. There are variables within the machine itself, including its weight, the length of action stroke (amplitude) and the number of beats per minute (frequency). High amplitudes and low frequencies produce greater vibration levels. Acceleration is directly proportional to the force produced on the hands and is expressed in terms of metres/second2("m/sec2").
Brown, Grogan and Trickey all worked in the Refractory Department as labourers. Brown worked there from 1971 – 2000, Grogan from 1977 – 2000 and Trickey from 1964 – 2000. Grogan had previously worked in the Civil Engineering Department from 1969 – 1977. The judge found that until about 1982 more than half of a labourer's time in the Refractory Department was spent using heavily vibrating tools. After 1982 the proportion dropped and continued to fall over time until the works closed in 2001. When Grogan worked in the Civil Engineering Department he spent about the same amount of time working with vibrating tools as he did in the Refractory Department i.e. about 3—4 hours per shift. This was translated to 2 hours per day 'anger time' mainly with jackhammers.
The judge found that Brown's exposure to vibration was 12.9m/sec2 from 1971 to 1982, thereafter falling to 10.5m/sec2 by 2000 when he left the respondent's employment. He found that Grogan's was 11.6m/sec2 from 1969 to 1977 (when he worked in the Civil Engineering Department) rising to 12.9 m/sec2 from 1977 to 1982 and then falling to 10.5m/sec2. He found that Trickey's exposure was 12.9m/sec2 from 1964 to 1982 thereafter falling to 10.5m/sec2 by 2001. The judge also found that each of the appellants developed neurological damage, but not vascular damage, as the result of their use of vibratory tools. He said with regard to Brown:
"Whilst, on the evidence, I am not satisfied that Mr Brown has suffered any loss of strength in his hands, or general pain in hands and arms, as a result of exposure to vibration, I am satisfied that he does suffer from low grade symptoms of numbness and tingling in all of his fingers, now on a persistent (as opposed to intermittent) basis, which are attributable to vibration. Dr Cooke concluded that Mr Brown was "describing sensorineural changes due to hand arm vibration exposure" (Report, 5 July 2000, Paragraph 6.17). I accept this conclusion. I accept Dr Cooke's evidence that, because of their nature, such symptoms will not improve following cessation of exposure (and neither will they deteriorate, unless there is further exposure to vibration), and the symptoms and their level are therefore permanent.
In classifying such symptoms, as they are restricted to the sensorineural, the Taylor Pelmear Scale is not helpful (although, on that scale, they would technically be classified as Ot/On). As I have explained, the Stockholm Scale is a coarse one, as it seeks to pigeon-hole cases into a particular category, although the scale is in reality a continuous linear one. The difference between 2SN and 3SN is, formally, the addition of problems of "tactile discrimination" or "manipulative dexterity". In this case, I find there is some evidence of such additional problems, but the evidence comes from only the (appellant) himself, is limited, and is made difficult to assess positively because of Mr Brown's other, unrelated complaints (e.g. loss of grip strength and general upper limb pain). Whilst I accept this is a borderline case, such problems are, in my view, poorly evidenced and, on the available evidence, insignificant.
For these reasons, I would categorise Mr Brown (as does Dr Cooke) ROV 2SN LOV 2SN, on the Stockholm Scale."
And with regard to Grogan:
"On the basis of all the evidence, I am satisfied that the sensorineural symptoms of which Mr Grogan complains were caused by the vibration to which he was subjected whilst in the employ of Corus.
…….
On questioning by Dr Cooke for the purposes of his report, Mr Grogan indicated that lack of sensitivity in his fingers had not resulted in any inability to, e.g., play darts. Having considered all of this evidence, I am not satisfied that the sensorineural symptoms of which Mr Grogan complains has led to any significant practical disability on his part.
As in Mr Brown's case, on the Taylor Pelmear scale, Mr Grogan's symptoms would be categorised as Ot/On: and, more helpfully, ROV 2SN LOV 2SN, on the Stockholm scale. Because of the lack of compelling evidence of reduced "tactile discrimination" or "manipulative dexterity", I do not consider a classification of the sensorineural symptoms to category SN3 to be warranted."
And Trickey:
"I find that he has suffered from persistent numbness, with reduced tactile discrimination and manipulative dexterity. Dr Cooke says that the formal test suggested a Stockholm Scale grading SN3, for each hand. Mr Trickey's account of his problems – which, in substance, I accept – supports that classification.
For these reasons, I would categorise Mr Trickey as ROV 3SN LOV 3SN, on the Stockholm Scale. The sensorineural symptoms to which I have referred were caused by vibrating tools, operated by Mr Trickey in the course of his employment by Corus at Llanwern."
The R and L in these classifications refer, of course, to the right and left hands.
The judge therefore concluded that each appellant suffered from sensorineural symptoms in the fingers but that none of them suffered from blanching in a manner diagnostic of HAVS. They did not therefore register on the vascular component of the Stockholm Scale used to measure the condition. The stages in the vascular component are as follows:
The stages in the sensorinenal component are:
| Stage | Grade | Description |
| O | No Attacks. | |
| IV | Mild | Occasional attacks affecting only the tips of one or more fingers. |
| 2V | Moderate | Occasional attacks affecting distal and middle (rarely also proximal) Phalanges of one or more fingers. |
| 3V | Severe | Frequent attacks affecting all phalanges of most fingers. |
| 4V | Very severe | As in stage 3 with trophic changes in the fingertips. |
| Stage | Description |
| OSN | Vibration-exposed... |
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