Patrick Clark V. Scott Lithgow Limited
| Jurisdiction | Scotland |
| Judge | J. Gordon Reid, Q.C. |
| Date | 30 July 2004 |
| Docket Number | A1626/00 |
| Court | Court of Session |
| Published date | 30 July 2004 |
| OUTER HOUSE, COURT OF SESSION | |
| A1626/00
| OPINION OF J GORDON REID Q.C., F.C.I.Arb, Sitting as a Temporary Judge in the cause PATRICK CLARK Pursuer; against SCOTT LITHGOW LTD Defenders: ________________ |
Act: Guinnane; Thompsons
Alt: Stacey, Q.C.; Simpson & Marwick, W.S.
30 July 2004
Introduction
[1]This is a time bar proof in a personal injuries action. I heard evidence on 23 and 24 October 2003, and 10 and 11 June 2004. Miss Guinnane appeared on behalf of the pursuer and led his evidence and the evidence of Anne Clark (the pursuer's wife), Derek Flood, a work colleague of the pursuer, David Stevenson, a solicitor and partner in the firm of Thompsons, Solicitors, Edinburgh, and John Drury PhD., F.R.C.S., a consultant general surgeon with a special interest in vascular disease. Mrs Stacey, for the defenders, led no evidence. A number of productions were allowed to be lodged late and during the course of the proof, there being no objection by either party. A short joint minute agreeing various matters was also lodged.
Facts
Employment
[2]Mr Clark (the pursuer) has been employed as a Welfare Rights Officer by Inverclyde Council since 1995. He was forty seven years old when the proof commenced. Between about 1972 and 1982, he was employed by the defenders as a plater, at their Greenock yard initially as an apprentice. He spent a significant amount of time there using a variety of hand held tools. These tools vibrated. He worked on ships and within the defender's yards. During that period or at least part of it he was a member of the Boilermaker's Union. He has been a member of UNISON (formerly NALGO) since about 1987.
Injuries
[3]In the late seventies and early eighties, Mr Clark's fingers in both hands (but not his thumbs) became very cold and white at times for no apparent reason. In March 1981 he consulted his General Practitioner, a Mr Anderson, about his fingers. Mr Clark's mother suffered from rheumatoid arthritis and Mr Clark had seen a programme on television or read an article which indicated that rheumatoid arthritis was hereditary. The GP indicated that Mr Clark might have touch of "rheumatics" and took a blood test which subsequently proved negative. Mr Anderson did not inform Mr Clark that his complaints were or might be related to his use of hand held vibrating tools or that his views fell to be revised following the result of the blood test. He gave Mr Clark the distinct impression that the cause might be cold conditions at work and that it was "just one of these things". Mr Clark did not consult his GP again about his hands. He believed that his problems with his hands were a genuine sensitivity to the cold . He did not believe that these problems were attributable to his employment with the defenders. That belief was reasonable in the circumstances.
[4]Mr Clark has, since the early eighties, continued to suffer such symptoms. He experiences blanching, coldness, and numbness followed by a throbbing and tingling sensation. This happens about three to four times per week and more frequently in winter. These symptoms occurred even more frequently in the late seventies and early eighties when he was still in the employment of the defenders. He was and is an enthusiastic bagpipe player. The problems with his hands adversely affected his bagpipe playing skills which he has found frustrating. His general manual dexterity has also been affected impairing his ability to carry out DIY activities at home. For example, he cannot hold a screwdriver easily. However, his ability to fulfil his duties in the employment of Inverclyde Council has not been adversely affected. His symptoms are worse in winter. It did not occur to him to consult his GP again about these difficulties and his wife did not suggest that he do so.
Raynaud's Phenomenon
[5]Vibration White Finger, formerly described as Raynaud's Phenomenon, and more recently as Hand Arm Vibration Syndrome, arises when the small blood vessels in the extremities, usually the fingers "clamp down", usually in response to cold. This causes blanching of the fingers; it is usually short lived; the blanching disappears when the blood supply returns. Various circumstances can cause this phenomenon although it can occur for no known reason. As a result, nerve, tendon and joint damage can occur. By the late nineteen eighties the general public was still not aware of VWF. Even the vast majority of GPs had not by then made the connection between VWF and employment. Even now it may depend upon the nature of a GP's practice and whether it is located within an area of heavy engineering, whether the connection is made. Knowledge among GPs is still "patchy".
Knowledge During Employment with the Defenders
[6]Throughout the period of his employment with the defenders he was unaware of the condition known as Vibration White Finger. He was not party to and did not hear any discussion about VWF. At some stage during his employment Mr Clark was a shop steward. At some stage in the eighties Mr Clark made a claim against the defenders in respect of industrial deafness. The connection between hearing loss and working in shipyards was well established by then.
History After Leaving Defender's Employment
[7]Between about 1982 and 1986, Mr Clark studied at Strathclyde University. He married in 1985. At University, he studied a variety of subjects including Industrial Relations, part of which was concerned with health and safety legislation. The symptoms described above sometimes made it difficult for him to make notes at lectures but he coped. He did not regard it as a significant problem. He devised his own form of shorthand. He worked for about two months as a plater with James Adam, Boat Builders, Gourock in the summer of 1986. After successfully completing his BA degree course in Social History, he took up employment with Inverclyde Council in their Social Work Department in about 1987. He was at that time involved with keeping "kids out of jail". In 1995 he became a Welfare Rights Officer with Inverclyde Council. His duties involved tribunal representation at Social Security Tribunals on behalf of members of the public. The general procedure was that members of the public would be seen by a duty officer or Information Worker within the Social Work Department, who would assist in the making of a claim for appropriate State Benefit. If the claim was refused then the claimant would appeal again with the assistance of an Information Worker or other official. Free representation would be offered to claimants at appeals. Mr Clark represented such claimants at a variety of tribunals such as Disability Appeal Tribunals, Social Security Appeal Tribunals and before the Social Security Commissioners. Mr Clark was generally not the first point of contact. The bulk of his work related to Incapacity Benefit and Disability Benefit.
[8]Mr Clark was unaware, at the time, of the coupon campaign in 1991 in which Mr Flood was involved (see para 10 below). Mr Flood from his greater experience than his colleagues as a welfare rights officer since 1988 was aware from about 1989 that VWF could be caused through employment. At an early stage it was only necessary to establish 7% disability to obtain a gratuity. Thereafter, from 1/10/86 15% disability had to be established to entitled the claimant to benefit. Generally between 1993 and 1996 the number of claims for Industrial Injury Benefit passing through Inverclyde Council's Welfare Rights Office dropped with only about at most a dozen VWF cases during that period. Mr Clark was not involved in any of those claims.
Mr Rennie's Claim
[9]In about November 1996, Mr Clark was approached by a Mrs Elizabeth Fern, the sister of a Mr Duncan Rennie. Mrs Fern was a social worker. She was assisting Mr Rennie with a Disability Living Allowance claim. She asked Mr Clark, if he could "claim for Vibration White Finger". Mr Rennie thought that was what he had. Mr Clark checked the relevant Social Security Regulations to ascertain whether that disease was a prescribed disease in respect of Mr Rennie's occupation and confirmed to her that a claim could be made. Mr Clark's office did not have the appropriate claim form. He obtained one. Mrs Fern asked him to assist her brother in completing a claim form for Industrial Injury Benefit. He did so and in his own hand completed some parts of the form e.g. a part which described the claimant's symptoms as blanching of all fingers and poor grip. Mr Rennie subsequently sued the defenders for damages. Mr Clark attributed little significance to his interview of Mr Rennie and his partial completion of the claim form on Mr Rennie's behalf which took but a short period of time. At that stage he did not realise that he himself might have a claim for Industrial Injury Benefit or a claim for damages against the defenders.
Backdating of Industrial Injury Disablement Benefit and Claims Campaign
[10]At some point probably in early 1997, it became apparent to Mr Flood and Mr Clark that changes were afoot in relation to the backdating of awards of certain State Benefits. It was known that the Government intended to stop the backdating of awards of various benefits including Industrial Disablement Benefit, but it was not known when the change would take place. Normally about six months notice of such a change is given and regulations of this nature are usually promulgated in or about April or October. Mr Flood thought that there should be a publicity campaign to alert people of the impending change and to encourage potential claimants to make claims sooner rather than later. At some stage in early 1997, Mr Flood gave Mr Clark some paperwork in relation to the 1991 campaign. This related to "good cause" claims, industrial accidents and about seventy five prescribed diseases. Most responses to the 1991 campaign related to industrial accidents although Mr Flood was surprised at the number of VWF claims.
[11]The 1997...
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