Reid v EWS, 2010 Sheriff Principal E F Bowen QC
The facts
William Reid worked as a rail operator supervisor by EWS
Railways at Longannet Power station from 1994. His duties involved
manually closing doors on railway carriages after loads of coal had
been discharged. To do this he used a chain and ratchet device
known as a yale pull which weighed about 30 kilogrammes. Mr Reid
claimed that in the summer of 2000 he was told that he was not
allowed to pass between railway carriages to close doors on the
opposite side of the train. He said that there was an increase in
the number of trains between June and September 2001. Both changes
required him to walk greater distances.
Around August 2001 Mr Reid began to suffer pain in his left heel
and ankle. After six weeks he went to his GP who diagnosed plantar
fasciitis, an inflammation of fibrous tissue in his foot.
Mr Reid raised an action under the Manual Handling Operations
Regulations. He said that carrying a yale pull over significant
distances constituted a significant risk factor. His employers
could have provided a barrow to transport the yale pull, or several
yale pulls down the length of the track, avoiding the need for
manual handling. EWS Railway conceded that manual handling could
have been avoided. The question that remained was whether Mr Reid's
plantar fasciitis had been caused by their breach of duty.
There was conflicting medical evidence about the cause of
plantar fasciitis. Mr Reid's experts said that the condition
emerged when something changed in the load of the foot. There was a
definite relationship between walking surface and plantar
fasciitis. EWS's expert described the condition as a middle aged
degenerative condition of the foot. It was commonly seen in
patients with no risk factors. Limited dorsiflexion was an
important risk factor.
At trial the sheriff found that Mr Reid did indeed have limited
dorsiflexion in his foot, and that this was a probable cause of his
condition. He found that the increased activity that Mr Reid was
involved in at work was not a cause of the plantar fasciitis but
had accelerated the condition by a few months.
Both parties appealed against the decision. Mr Reid said that it
was plainly wrong for the sheriff to hold that, on the evidence,
the breach of duty had not made a material contribution to the
condition of plantar fasciitis. His employers said that if the
condition had not been caused by the breach of duty, it could not,
legally or medically, have accelerated the onset.
The law
How can a claimant establish a causal connection between his
injury and the defenders' breach of duty? The Sheriff Principal
commented that various attempts have been made to define the
criteria for the application of the Fairchild exception.
Two criteria were key. The first is that the claimant must be
faced, due to the limits of medical science, with the impossibility
of proving that one out of a number of possible causes of his
illness was the "guilty" source. The second is that the duty
breached must have been specifically designed to protect workers
against the risk of being exposed to the danger of contracting a
particular disease.
The Sheriff Principal said that this was not the sort of case in
which it was impossible to prove the cause of the condition.
Although there was conflicting evidence about the cause, that did
not mean that the case called for the application of the
Fairchild exception. Turning to the second criterion, the
Sheriff Principal held that this was clearly not met. He commented
that the Manual Handling Operations Regulations were intended to
protect employees from risk of injury to their backs and upper
limbs. They were not 'obviously intended' to protect employees from
the risk of plantar fasciitis. He said that the case could be
clearly distinguished from McGhee where there was no doubt
that brick dust could cause dermatitis and Fairchild where
there was no doubt that asbestos could cause mesothelioma.
Comment
This is a reminder of the circumstances in which the application
of the Fairchild exception can be called upon by
claimants. A simple dispute on the causes of a condition is not
enough to invoke its application. What is also interesting is the
Sheriff Principal's approach to the purpose of the Manual Handling
Operations Regulations. It is perhaps surprising that he considers
that their purpose is to protect workers from injury to their backs
and upper limbs, and not their lower limbs. Given the purposive
approach to construing health and safety taken by the European
Court of Justice and indeed in many domestic decisions, we suspect
this part of his opinion will not readily be followed.
Contributed by Katie Carmichael