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A work disease claim victim has lost out on compensation in a case which defendants may use to defeat other work claims.
Read more about how a failed claim for Vibration White Finger could stop others making work disease claims to get compensation.
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The case of Bowe v Mersey Rewinds Engineering & Others has highlighted how defendants and their insurers will robustly defend cases that are not properly proved.
The Bowe claim
In this case Mr Bowe argued that he had developed Vibration White Finger (VWF) and Carpal Tunnel Syndrome (CTS). He said that this was caused by using vibrating tools and exposure to vibration during employment with three employers. He worked as an armature winder and was exposed from 1985 until the date of the first trial in 2014.
The defendants all admitted that they could have done more. However they all denied that Mr Bowe was exposed to frequent or prolonged vibration.
The Law on Work Disease Claims for VWF and CTS
It is known in theory there is no safe practical limit for human exposure to vibration. However The Guide to Measurement and Evaluation of Human Exposure to Vibration Transmitted to the Hand was adopted and referred to. This states that if exposure to vibration remains constant then regular exposure to vibration could reduce the number of years before symptoms start by half.
The guidance averages out exposure over an 8 hour working shift.
Further guidance in 1994 encouraged measures to cut down exposure to vibration. It also suggested health surveillance where workers are regularly exposed to vibration. It confirms that 10% of persons who were exposed to an eight hour daily dose of vibration could get finger blanching after 8 years of exposure.
The law on safe levels of exposure was discussed in the coal miners VWF case of Armstrong V British Coal Corporation 1998. That case highlighted that both employers and employees should mention when potential problems with their hands came to light. This judgement also set out the benchmark that guidance was there for those exposed to vibrating equipment on a regular or frequent basis.
Expert evidence agreed that Mr Bowe’s exposure to vibration – if accepted- could be over the limits.
In the first trial the judge awarded damages. He was satisfied that whilst the Claimant had exaggerated the extent of vibration that the case should succeed. The judge found that the Claimant did not use vibrating machine tools as an armature winder and only carried out activities as a fitter on an infrequent basis. When exposed in fitting work he would use needle guns and air chisels as necessary. When doing so he reached threshold vibration levels in a short period of time, usually 3 minutes or so and up to 10 minutes for short periods.
The judge found that this transitory exposure was above the threshold level. This, combined with failures to provide warnings or other steps persuaded him to find the defendants liable.
The defendants appealed this matter. it was heard in July 2017 and judgment has recently been handed down. They argued that transitory and short-term exposure did not of itself breach the law in place at the time. A more detailed assessment of that decision was made.
The Court of Appeal ruled that the first judge finding transitory exposure above the threshold was a step too far. The evidence simply did not prove that there was exposure to vibration above the threshold limits on a regular or frequent basis.
The appeal was allowed and the Claimant’s case has failed.
Work Disease Claims – Practical effects
In practical terms this means, unless the case is appealed to the Supreme Court, the claim will not receive any monies.
A copy of the judgement can be read here
So what will this mean for work disease claims?
Insurers will use this decision to argue that exposure to vibration or noise needs to be much more thoroughly investigated. It will be interesting to see if they try to apply the logic to other diseases like dermatitis or silicosis.
Jobs where people go in and out of noisy workplaces or use tools on an infrequent basis will not necessarily win. Short periods of noise or vibration, even if in breach of rules may not get a claim home. Arguments where less than constant exposure is had can be expected.
The number of work deafness and VWF claims are steadily decreasing as work conditions improve. However Health & Safety Statistics show that many people continue to be diagnosed with diseases due to their work.
Corries Solicitors are leading work disease claims specialists. If you have suffered disease due to your work then you need an experienced lawyer in your corner. Contact our specialist team FREE on 0800 083 7839