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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 2
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OPINION OF LORD
KINGARTH
in the cause
DANIEL MOFFAT
Pursuer;
against
THE ADVOCATE
GENERAL FOR SCOTLAND
Defender:
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Pursuer:
Party
Defender: K Campbell, Q.C., Morton Fraser
13 January 2006
[1] The
pursuer was formerly a regular soldier who served with the First Battalion of
the Royal Scots, the Royal Regiment between 12 November 1995 and 12 November 1998.
On said latter date he was medically discharged by reason of certain
dermatological problems. On Record he
claims that his skin condition was eventually diagnosed as mycosis fungoides,
which manifested itself as an irritation in or about 1996. He claims that his problems were caused by
exposure to chemicals which had been applied to his Army uniform -
consistent with certain advice he received in or about January 1998. Although the particular nature of the chemicals
is said to be unknown, the application of them was intended inter alia, it is said, to render
wearers of the uniform less liable to detection by infra-red heat sensors than
would otherwise be the case. He claims
damages on the basis that his condition was caused by the fault and negligence
of the Ministry of Defence, who, it is said, failed in their duties of
reasonable care by requiring him to wear items of uniform which had been
treated with harmful chemicals. Further,
he claims that his loss, injury and damage was caused
by breach by the Ministry of Defence of Regulation 7(1) of the Control of
Substances Hazardous to Health Regulations 1994, and by their breach of
Regulation 5(1) of the Provision and Use of Work Equipment
Regulations 1992.
[2] The
defender, as representing the Ministry of Defence, denies liability. It is claimed that the condition from which
the pursuer suffers, and has suffered, is not mycosis fungoides,
but chronic superficial dermatitis.
This, it is said, was not caused by wearing Army uniforms. Insofar as certain Army clothing had
chemicals applied to it to render wearers less liable to detection by infra-red
heat sensors than would otherwise be the case, this was done by carbon black
being added to the pattern printed on the outside of the fabric of combat jackets
and trousers. Carbon black is said to be
a standard, commercially available product.
No additional treatment is said to have been carried out by the Ministry
of Defence.
[3] I
heard evidence, in a proof before answer, over a period of some four days. The pursuer, whose pleadings had been
professionally prepared, represented himself. Three different sets of advisers had
apparently withdrawn from acting on his behalf during the course of the
action. Although he sought to rely on
certain medical records, he himself was the only witness who gave evidence on
his own behalf. It appeared that the
person who had in or about January 1998 advised him that his condition was
mycosis fungoides (and this, in the event, was not disputed by the defender)
was a consultant dermatologist at Aldershot, Lt
Col Boxer. The pursuer explained
that he had been unable, despite certain efforts having been made on his
behalf, to trace her. By contrast, the
defender led in evidence Dr Colin Fleming, consultant dermatologist at Ninewells
Hospital, Dundee
and at Perth Royal Infirmary. He had
been a consultant since May 1998, and his sub-specialty was skin
cancer. He had specifically examined the
pursuer in December 2001, and apparently had had access to all previous
written medical records and had reviewed the original histology slides taken in
or about 1998. Evidence was also led
from Mr Richard Allan, from Defence Clothing Research and Project Support,
relative to the clothing issued to soldiers such as the pursuer. Further, evidence was led from
Maj. Colin Kerr, Colonel for Infantry Manning and Career Management
Division, in relation to assessment of the pursuer's potential progress in the
Army if he had not been medically discharged.
Despite the obviously difficult position in which the pursuer was thus
placed, he presented his case at all times with clarity, courtesy and with no
small skill.
[4] A
number of matters were not seriously in dispute.
[5] The
pursuer's skin irritation, taking the form of a rash and scaly blistering, was
noticed at least by January 1996. It was
thereafter, and has continued to be, apparent in various parts of the pursuer's
body, including behind the knees and the top of the legs, the back, the trunk
and the oxters. Although
present most of the time, there are times when it is worse than others. While in the Army he found it particularly
irritating if required to undertake physical activity, or anything that made
his body sweat. Despite various
treatments having been tried, there has been no cure or substantial
relief. The condition has persisted to
the present day and is, if anything, now more uncomfortable and
irritating. It still flares up more if
he sweats. He has been advised that the
condition will not go away. He is
concerned inter alia by its
appearance. It prevents him from, for
example, going swimming with his daughters.
[6] As
indicated above, it was not, in the event, disputed that in or about
January 1998 he was advised by Lt. Col. Boxer, to whom he had
been sent at Aldershot, that the condition was mycosis fungoides. It appeared from certain records that in or
about November 1997, when she first saw the pursuer, her preliminary diagnosis
was of chronic superficial scaling dermatitis.
She arranged for a biopsy to exclude mycosis fungoides which she thought
"less likely". A record of a review on 26 January 1998 records, apparently
in her writing, that the biopsy suggested mycosis fungoides. This was repeated in a letter from her, dated
26 January 1998, to
Lt. Col. Kempster.
[7] It
was not disputed that combat clothing issued to the pursuer had had chemicals
applied inter alia to render wearers
of the uniform less liable to detection by infra-red heat sensors than would
otherwise be the case. Mr Allan
gave evidence that the Army would make up a specification for all uniforms
(after inter alia extensive trials),
although the uniforms would be manufactured by others. The particular chemical applied for infra-red
reduction was a small amount of carbon black (otherwise known as graphite). Apart from some fluoro-carbon
or silicone waterproof finishing of a standard type, no other chemical
treatment was, according to the witness, applied. Although the pursuer explained that he
himself believed that other chemicals were applied, there was no evidence to
support this belief. In the event,
Mr Allan's basic evidence was thus essentially unchallenged.
[8] The
first disputed question which I have to resolve is whether the pursuer has
established on the evidence that he suffers from mycosis fungoides, or whether,
as contended by the defender, the condition is, and has always been, chronic
superficial dermatitis. The former, as
explained by Dr Fleming in evidence, is a rare cancerous tumour of the
skin - a type of lymphoma. It is
characterised by infiltration of lymphocytes (white cells of the immune
response system) in the skin in abnormal numbers. The latter, again as explained by Dr Fleming,
is one of a number of low grade inflammatory conditions of the skin
characterised by the presence of scaly patches on the skin. Although the language used from time to time
has differed, there are perhaps nine or ten different conditions, probably of
the same type with slightly different clinical presentations, all of which
could be generally described as parapsoriasis.
It was Dr Fleming's evidence that mycosis fungoides was
particularly difficult to diagnose in its early stages. At all times it was necessary to consider
together both clinical and pathological evidence.
[9] On
the one hand the pursuer invited me to accept the diagnosis of mycosis
fungoides made by Lt. Col. Boxer.
It was not disputed that he could found on the hearsay evidence given to
that effect. In the absence of her oral
testimony, however, I am unable to judge the nature of her experience or form
any impression as to the quality of her expertise. The basis upon which she reached her
conclusion remains unexplored. It is
unknown how certain or otherwise she was in the views she formed. It is not clear whether her opinion would still
be the same in the light of developments since.
[10] Further, even on the records alone, it appears that her view
was not shared by numbers of others who assessed the pursuer both before, at
the same time as and after she did. It
appears that Major Hepburn, a consultant dermatologist who saw the pursuer in
March 1997, made a diagnosis of psoriaform dermatitis. The consultant pathologist who reported on
the histology taken in December 1997 (at the request of Lt. Col. Boxer)
reported that the histological appearances were more suggestive of mycosis
fungoides than of chronic superficial dermatitis, but explained that he was
arranging for T-cell receptor gene rearrangement studies to be performed to
confirm or refute this diagnosis, and that a final report would be issued in
due course. The final report,
apparently transmitted at some stage on 26
January 1998 (after the gene rearrangement analysis had been
performed), indicated: "These findings do not support a diagnosis of mycosis
fungoides and the pathological findings are interpreted as being those of a
chronic superficial dermatitis". It is
not clear whether Lt. Col. Boxer had this final report when she
reviewed the pursuer on 26 January
1998, although to be fair to her there is a letter in the records,
dated 14 July 1999, from
which it appears she maintained her diagnosis notwithstanding being made aware
of the results of the gene rearrangement studies. It appears also that following the pursuer's
discharge from the Army he was reviewed at the Edinburgh Royal Infirmary, and
that a further biopsy was taken in or about July 1999. This was interpreted, according to the
records, as a non-specific dermatitic reaction and no clear evidence of mycosis
fungoides was reported. On 21
January 2000 he was seen by Dr Benton (who is, according to
Dr Fleming, an expert of particular repute) who clinically felt that the
condition was a "pre-mycotic eruption" - a term which Dr Fleming explained
was used synonymously with parapsoriasis.
[11] The only medical witness led, Dr Fleming, was clear and
impressive. He had significant
experience in relation to the diagnosis of mycosis fungoides. He explained how his examination of the
pursuer disclosed clinical features of a pattern and type associated with
chronic superficial dermatitis, in particular pale pink, fine, scaling
plaques. It was his view that the
clinical features disclosed in the records were consistent with his diagnosis.
He thought it significant that, even at the time Lt. Col. Boxer was
seeing the pursuer, the records disclosed that there was no evidence of
lymphadenopathy or organomegaly, important negative findings which remained during the
pursuer's attendances at Edinburgh Royal Infirmary and in the course of the
witness's own examination of the pursuer.
Dr Fleming was not persuaded that the histology was indicative of
mycosis fungoides, in particular having reviewed the original slides along with
his pathologist colleague, Dr Alan Evans, in February 2003. It was his view that the negative T-cell gene
rearrangement test was significant.
Further, he attached importance to the fact that the condition had not
progressed in the way that he would have expected had it been mycosis fungoides
- a view which, he explained, he could express with the benefit of hindsight
which Lt. Col. Boxer did not have.
In short, it was his view that the "overwhelming evidence" was that the
pursuer's condition was chronic superficial dermatitis. In all the circumstances, given the
impressive nature of his evidence (supported, as it was, by the views of almost
all others in the records), I accept this opinion, prefer it to the hearsay
evidence of Lt. Col. Boxer and conclude that the pursuer's condition
is, and always has been, properly described as chronic superficial dermatitis.
[12] Counsel for the defender submitted that in that event the
pursuer could not succeed. While a
strict reading of the pursuer's pleadings might be thought to support that
contention, I am not persuaded that that is so.
The pursuer's condition is referred to in Condescendence 2 as a
skin irritation, and it would, in my view, be over-strict to read his case of
fault as perilled on proof of the appropriate label
to be attached. In any event, a claim
that his skin condition - even if properly described as chronic superficial
dermatitis - was caused in the way set out, could properly be described as a permissable variation, modification or development of the
case which he makes.
[13] There can be no doubt at all, however, that the pursuer's claim
on Record is that his skin condition - whatever label may be attached to it -
was caused by the chemicals which were applied to uniforms issued to him - in
particular (as developed in the evidence) chemicals applied to effect infra-red
reduction. All three cases of fault are
clearly and expressly predicated on this assumption. The critical question is whether he has
established this.
[14] The evidence on which the pursuer relied was, again, what he
said he had been told by Lt. Col. Boxer. It was his evidence that she had explained
that the clothing was waterproofed and that chemicals were applied to effect
infra-red reduction, and that it was the latter which had caused the
problem. That she had expressed this
view was not accepted by the defender, whose counsel questioned the pursuer's
reliability on this matter. It was
pointed out that there was no reference in the records to this having been her
view. It was submitted that the apparent
uncertainty in the pursuer's evidence as to when his condition started, and as
to which part of the body was first affected (in particular when compared with
certain of the records and indeed with the Closed Record) cast doubt generally
on his reliability. Although the latter
point was, it seemed to me, a reasonable one to take, and it is surprising that
there is no written record of the particular causal link said to have been made
by Lt. Col. Boxer, I have come to the view that the probability is
that she did, in some way at least, convey to the pursuer views to the effect
which he recalls. It is difficult to
envisage how he could be mistaken as to such a matter, and it is not without
significance - at least so far as his own understanding is concerned - that he
gave evidence of being allowed to wear a battalion tracksuit for the last six
weeks of his duties. Precisely how this
came about, however, was not fully explored.
[15] The pursuer is nevertheless in a much more difficult position
in respect of his submission that I should accept the views apparently
expressed by Lt. Col. Boxer to him.
In the absence of her oral testimony, I am unable to say upon what basis
her view was formed or even how clear she was.
The absence of any written record does not suggest any particularly
strongly or confidently held opinion. I
noted also that the pursuer, in evidence-in-chief, said that she had said that
"part of the reason" was "the chemicals off the uniform". He agreed, however, with propositions put in
cross-examination that the advice given was more definite. Equally, it is not clear to me whether
Lt. Col. Boxer would have said the same if she had not been persuaded
(as she was) that the condition was mycosis fungoides.
[16] Against that there was clear and impressive evidence from
Dr Fleming to the effect that his own examination of the pursuer was not
suggestive of a contact dermatitic reaction.
In particular the fact that the lesions he saw largely spared a commonly
affected area around the axillae was not suggestive of a clothing induced
dermatitic reaction. It was his view
that if it had been clothing contact dermatitis, the condition should have
subsided after the pursuer left the Army.
Instead, if anything, his condition had become worse. This was not something which
Lt. Col. Boxer could have known.
The constituents of the clothing were, as he understood it, common, and
he would be surprised if they were the cause of the pursuer's condition. He was not aware from the literature of any
particular propensity of these constituents to cause a dermatitic reaction, nor
was he aware that any other soldiers had so suffered. His views encompassed the use of graphite in
the infra-red treatment. Although he
could not exclude the possibility, his conclusion was that the balance of
probabilities was "heavily stacked against" the clothing having caused the
condition. Although the pursuer had
reported to him that the symptoms were particularly annoying when wearing Army
clothes, his view was that this was readily explicable by the combined weight
of the fabrics used making normal sweating and thermoregulation slightly
difficult for him, which in turn made his skin condition (otherwise caused)
more difficult to tolerate.
[17] Mr Allan also gave evidence that his department always
tried to obtain feedback in relation to clothing issued. He was not aware of any history of skin
problems said to have arisen from any of the uniforms in question.
[18] In the event I prefer (when compared with the apparent hearsay
opinion of Lt. Col. Boxer) the view expressed by Dr Fleming
(supported as it was, to an extent, by Mr Allan's evidence) that the
pursuer's condition was not caused by chemicals in the Army clothing issued to
him. In these circumstances the pursuer
cannot succeed in any of the cases of fault which he makes.
[19] Although it is unnecessary to go further, I would add that even
if I had been persuaded that the pursuer's condition was caused in the way he
claims, no evidence was led to suggest that that was reasonably foreseeable to
the Ministry of Defence. It could not
therefore be said that they were in breach of any common law duties of care to
him. If anything it would appear that the
pursuer must in some way have become sensitised himself by contact with the
clothing in question. It further seems
clear in these circumstances that the chemical in question (namely graphite)
could not be said to have been a substance hazardous to health within the
meaning of the Control of Substances Hazardous to Health Regulations 1994.
[20] By contrast, however, I was not obviously attracted by counsel
for the defender's argument that the lack of evidence of foreseeability would
have prevented the pursuer from succeeding under the apparently absolute terms
of Regulation 5(1) of the Provision and Use of Work Equipment Regulations 1992. Regulation 5(1) provides:
"Every employer
shall ensure that work equipment is so constructed or adapted as to be suitable
for the purpose for which it is used or provided".
Although regulation 5(4), on which
counsel particularly relied, provides:
"In this
regulation 'suitable' means suitable in any respect which it is reasonably
foreseeable will affect the health or safety of any person"
it might be thought that a
"respect" which reasonably foreseeably would affect the health or safety of any
person, so far as clothing was concerned, would be the effect, if any, on any
person handling or wearing it, and thus that regulation 5(1) would require
the provision of clothing suitable inter
alia in that respect. On the face of
it regulation 5(4) does not provide in terms that an employer must
reasonably have foreseen that particular work equipment would be likely to
injure an employee, far less in a particular way, before he could be liable
under regulation 5(1). Counsel's argument was, in the event, not fully
developed, but I was referred to Horton
v Taplin Contracts Ltd 2003 I.C.R.179
and Robb v Salamis (M & I) Ltd 2005 S.L.T.523. The former case can, I think, readily be distinguished, and the point in issue was
not, it seems, taken in the latter. The
matter, however, was not, I repeat, fully developed, and I say no more about
it.
[21] Had I been persuaded that the pursuer was entitled to damages I
would have awarded the sum of г8,000 in respect of solatium (whatever label
attached to the pursuer's condition).
This was the figure suggested, it seemed to me
reasonably, by counsel for the defender.
He referred me to Parks v West Lothian NHS Trust 1998 S.C.L.R.201,
Guidelines for the Assessment of General Damages in Personal Injury Cases,
compiled for the Judicial Studies Board (in particular under the heading
Dermatitis), and to the summary of two cases appearing in Kemp & Kemp on The Quantum
of Damages (Vol.4) - namely Maddox
v Rocky Horror London Ltd (at
J4-003) and Davies v Gwent HA (at
J4-004). As to loss of earnings, it was
the pursuer's belief that he would have remained in the Army for a period
overall of 12 years and perhaps more, although probably not more than 15 years
(when he would have been 45).
Maj. Kerr spoke to a report which he prepared. Having assessed the various written records
relating to the pursuer, and certain general statistics, it was his view, based
on his experience, that the probability is that the pursuer would have served
about 7 years in all (i.e. from November 1995). One feature noted was that the records
contained more than one reference to the pursuer wishing to leave the Army in
the early part of 1998. Although the
pursuer explained, I thought persuasively, that these feelings were temporary,
and were quite common for soldiers to have from time to time, overall I prefer,
on balance, the objective assessment made by Maj. Kerr, who impressed me
as an experienced and fair-minded witness and who based his conclusions on a
number of different factors. Counsel for
the defender suggested that it would perhaps be reasonable to take a period of
8 years overall - that is up to the end of 2003 -as an appropriate period
for the assessment of wage loss. I agree
with that approach. On the basis of
figures which were agreed, the net wage loss from 1 December 1998 to 31 December 2003 would have been г24,595.12
(after deduction of earnings the pursuer was able to achieve in other
employment during that period). Although
the pursuer also claimed loss of pension, there was no evidence before me to
enable any calculation to be made, a position which the pursuer appeared
ultimately to accept. I would have
attributed half of the award for solatium to the past, and awarded interest at
4% on that past element to date, and at 8% thereafter. I would have awarded interest at 4% on the
past wage loss up to 31 December 2003,
and at 8% thereafter.
[22] In all the circumstances, however, I shall sustain the second
and third pleas-in-law for the defender and pronounce decree of absolvitor,
reserving meantime all questions of expenses.
