Scottish Sheriff Court Decisions

(A262/04)

JUDGMENT OF

SHERIFF PRINCIPAL EDWARD F BOWEN QC

 

in the appeal

in the cause

 

WILLIAM REID

Pursuer and Appellant

 

against

 

E W S RAILWAYS

 

 

Act: Conway, Solicitor, Bonnar & Co

Alt: Middleton, Advocate, instructed by Michael Lamont, Solicitor, Glasgow

 

EDINBURGH, 6 August 2010

 

The Sheriff Principal, having resumed consideration of the cause, refuses the pursuer's appeal and sustains the defenders' cross-appeal; amends the findings in fact contained in the sheriff's interlocutor dated 10 March 2009 as follows:

(1) By inserting a new finding in fact 8: "Plantar fasciitis is widely regarded as an age related degenerative condition of the foot. It is most likely to affect those between the ages of 40 and 60 years and can occur in the absence of any other risk factors".

(2) By re-numbering findings in fact 8 to 12 as 9 to 13.

(3) By deleting the word "possible, and by adding in finding 11 (as (re-numbered) and substituting "possible", and by adding at the end of said finding: "as is age related degeneration".

(4) By deleting findings 13 to 17 and re-numbering findings 18 to 20 and 14 to 16.

"The pursuer having failed to prove that any loss, injury and damage sustained by him was caused by the defenders' breach of statutory duty, the defenders are entitled to decree of absolvitor".

Sustains the third and fourth pleas in law for defenders: repels the pursuer 's pleas and grants decree of absolvitor: reserves all questions of expenses.

 

(signed) E Bowen

 

NOTE:

1. The pursuer was employed as a rail operator supervisor by the defenders at Longannet Power Station. He had worked there from 1994. On 18 September 2001 he was diagnosed by his general practitioner as suffering from plantar fasciitis, that is to say inflammation of the fibrous tissue which runs along the base of the foot between the calcaneus (heel bone) to the metatarsal head of the big toe joint. The pursuer had been suffering from pain in his left heel and ankle for about six weeks prior to that.

 

2. The pursuer's duties involved manually closing doors on railway wagons after they had discharged a load of coal. To do this he had a chain and ratchet device known as a yale pull which weighed about 30 kilogrammes. Finding in Fact 4 made by the sheriff discloses the distances which the pursuer had to walk around the front or rear of trains in the course of his work. Finding in Fact 5 narrates: "In August and September 2001 the ground on which the pursuer had to walk along the side of the train was rough, uneven ground. To attach the yale pull to a wagon he would have to step on fresh loose ballast, there having been re-ballasting of the railway tracks in July 2001".

 

3. The pursuer's case in law against the defenders is based solely on alleged breaches of the Manual Handling Operations Regulations 1992. He avers that carrying a yale pull over significant distances constituted a "significant risk factor". He contends that it would have been reasonably practical for the defenders to have provided a barrow to transport the yale pull along the railway line or provide several yale pulls situated at different points on the track. It is unnecessary to set out the detailed breaches which the pursuer alleges because in answer the defenders admit that they were in breach of Regulation 4(1) "in that manual transportation of the yale pull could have been avoided which failing any risk of injury arising therefrom could have been reduced by the permanent provision of a wheel barrow". The defenders aver, however, that the development of the pursuer's condition had not been caused by his work with the defenders. They maintain in their pleadings that plantar fasciitis is essentially an age related cellular abnormality of the fascia and is not a condition caused by trauma or injury. Moreover, they contend that the pursuer had limited dorsiflexion of his left foot. They contend that this, and the pursuer's age, were significant risk factors for him and were the cause of his condition.

 

4. It falls to be observed that the pursuer's case on record was not confined to a complaint relating to a change in working conditions in about August 2001. His factual averments (in Condescendence 2) cover the whole period of his employment with the defenders from June 1994 to September 2001. There is an averment that in the summer of 2000 the pursuer was told that he could not pass between railing wagons in order to close doors on the opposite side of the train, and there are averments of an increased number of trains between June and September 2001. The inference to be drawn is one of a requirement to walk large distances as a consequence of both events. There is an averment that whilst undertaking his duties the pursuer required to walk on rough uneven ground, and an isolated averment that "the said ballast had not been properly compacted down and was loose". Some light is shed on this reference to ballast by an admission by the defenders that fresh ballast was added to the railway line in the second fortnight of July 2001.

 

5. The sheriff found as a fact that the pursuer has limited dorsiflection in his left foot of about 5 degrees. He also found that limited dorsiflexion is a cause of or risk factor in plantar fasciitis and held it to be a probable cause of the pursuer's condition. He went on to hold that the "increased activity" as set out in Finding in Fact 5 was not a cause of the pursuer's plantar fasciitis but that it "accelerated the condition" by a few months.

 

6. It was matter of agreement between the parties that if the pursuer's condition was not caused by the increased activity but was accelerated by it by a few months damages inclusive of interest to the date of the proof would be £7,376.95. The sheriff awarded this sum to the pursuer.

 

7. Both parties have appealed against this decision. In outline, the pursuer's position is that it was "plainly wrong" for the sheriff to hold, on the evidence presented to him, that the defenders' breach of duty had not made a material contribution to the development of the pursuer's condition of plantar fasciitis. He maintains that the sheriff has not given a reasoned explanation for that conclusion. The cross-appeal, reduced to its basic proposition, is that if the pursuer's condition was not caused by the defenders' breach of duty it could not, either legally or medically, have accelerated the onset. At the conclusion of his submissions Mr Conway, solicitor for the pursuer, accepted the soundness of this proposition. That concession was in my view, a proper one. The sheriff made no finding that the onset of plantar fasciitis was, for the pursuer, inevitable: without that I do not consider that any question of acceleration could arise. In consequence, the pursuer's entitlement to any award of damages is dependent upon success in this appeal.

 

8. In arriving at his conclusion the sheriff began by setting out the background of the case and the parties' respective positions on record. He ventured an opinion, in general terms, that the defenders were entitled, notwithstanding their admitted breach of Regulation 4(1) of the 1992 Regulations, to argue "that the breach did not cause the injury......and that the pursuer has to prove, on a balance of probabilities, that it did". He then turned to deal with the pursuer's duties and the increased activity. He considered the evidence of the pursuer, his colleague Mr Brownlie; Mr John Stewart, a Health & Safety expert called by the pursuer; and Mr Bernard Reid, the defenders' Service Manager. In paragraphs 21 and 22 of his Note the sheriff sets out the following:

"21. To walk up the train the pursuer would use a path, such as that seen in photograph 6/16, between the railway lines. That path was ground including coal dust compacted through being walked on. The path did not exist in August or September 2001 after re-ballasting because the ground had obviously been disturbed in that process. I do not accept the evidence of Mr Bernard Reid that there is path to be seen in photograph 6/22. The pursuer would not have to walk on ballast unless he was crossing a line or when having to step up to a wagon to attach the yale pull. In August and September 2001, the ballast was fresh loose ballast.

22 .I hold therefore that the pursuer, after 31 August 2000, would have to walk further to close doors than he had to before that date. The number of doors he had to close each day was at least two doors out of six or seven trains on a shift and probably not more than four, of which at least two would be on the far-side of the train. After the pursuer returned from holiday that the beginning of August 2001 he also had to walk on rough, uneven ground along the side of the train and had to step onto fresh loose ballast in order to attach the yale pull".

 

9. These conclusions are reflected in findings in fact 4 and 5 and form the factual foundation for the matters which the sheriff had to determine. In concluding that the pursuer had to close between two and four doors on six or seven trains on a shift the sheriff rejected the pursuer's evidence, which he held to be exaggerated, which was to the effect that he had to deal with eight or nine doors on each train, and possibly more in damp weather.

 

10. The sheriff then turned to the medical issues, observing as a preliminary that "there was a dispute between the pursuer's and defenders' experts about whether the increased activity caused or could cause plantar fasciitis. Indeed, these witnesses did not agree on the causes of plantar fasciitis". He proceeded to set out first, the knowledge of the medical witnesses as to the pursuer's working conditions, and second, their respective positions on the causes of plantar fasciitis in general terms. The salient features of the first of these may be summarised as follows:

(a) Mr De Leeuw, a consultant orthopaedic surgeon at Falkirk Royal Infirmary, "understood that the pursuer's work duties included....walking the length of a train consisting of about 30 wagons and back. He had to carry a heavy yale pull. Occasionally he had the use of a wheelbarrow but this was also difficult because he had to take the wheelbarrow over the tracks". The sheriff went on to say that Mr De Leeuw: "based his opinion on the cause of the pursuer's injury as being a change of routine after the pursuer had a holiday in July 2001 involving stepping on loose ballast which was more unstable than before.......his opinion was dependant on the pursuer's exaggerated account of his duties."

(b) Mr Frans Denolf, a consultant orthopaedic surgeon to whom the pursuer was referred by his GP in October 2001, did not have specific details of the pursuer's job. The sheriff notes that "the pursuer told him that he had to walk on ballast and that his work involved continued repetitive heavy manual work";

(c) Mr James Christie, a retired Consultant Orthopaedic Surgeon who was called for the defenders, spoke to a report which according to the sheriff "contained the most detailed account of what the pursuer said his work duties were", an account which the sheriff had held to be exaggerated. The sheriff records: "Notwithstanding that, Mr Christie did not think, in any event, that the pursuer's increased activity was a cause of his condition".

 

11. The respective positions of the medical witnesses as to the cause of plantar fasciitis generally emerge from paragraphs 31 to 35 of the sheriff's note as follows:

(a) Mr De Leeuw's opinion was that plantar fasciitis developed when something changed in the load of the foot. The body got used to day to day activities but, if the conditions changed, microscopic examination revealed degeneration and thickening of the plantar fascia. The causes of plantar fasciitis in his opinion were obesity, changed footwear, changed leisure activities and changed jobs. He founded on passages in two textbooks, Neale's Disorders of the Foot and An Atlas of Foot and Ankle Surgery. Mr De Leeuw agreed that the condition was age related, and that 10% of the population between the ages of 40 and 60 got it; all it needed was something the foot was not used to.

(b) Mr Denolf's opinion was that there were numerous causes for the condition, and the cause was the subject of much speculation. Risk factors were obesity and middle age. He did not consider that age was a "cause" in itself because not everyone got it, and there had to be something else, for example increased activity. He thought there was a definite relation between walking surface and plantar fasciitis.

(c) Mr Christie described plantar fasciitis as a middle aged degenerative condition of the foot. The incidence of it increases with age, the 40 to 60 year age group being most prone to it. It was a degenerative condition, with gross thickening of the plantar fascia. It was most commonly seen in patients with no "risk factors" for example office workers, lawyers and doctors. Mr Christie thought that limited dorsiflexion was an important risk factor. He maintained that medical literature was divided on whether obesity was a risk factor. He was prepared to accept that "some factors" might bring forward the onset of the condition.

 

12. The sheriff then turned to the law of causation and the submissions made to him in that regard. A proposition was advanced to him, based on Gardiner v Motherwell Machinery & Scrap Co Ltd 1961 SC(HL) 1, that where a workman contracted a disease after being subjected to conditions likely to cause it, and showed that it started in a way typical of a disease caused by such conditions, he established a prima facie presumption that his disease was caused by those conditions which his employer had to rebut. The sheriff accepted this proposition, but was of the view that it did not apply in the circumstances of this case. The next set of submissions related to the range of somewhat complex cases where there has been more than one source of a disease or condition and the question was whether the defenders' breach of duty materially contributed to the onset, and other cases where it was alleged that the defenders' breach had exacerbated a condition which was either asymptomatic or had not developed materially prior to the breach. In the former context reference was made to Wardlaw v Bonnington Castings 1956 SC (HL)26 (Lord Reid at p32); Page v Smith [1996] 1WLR 855; Simmons v British Steel plc 2004 SC (HL) 94, and the obiter remarks of Lady Smith in McKenna v British Railways Board (15 August 2003, unreported). On "exacerbation", the sheriff was referred to Dingley v Chief Constable, Strathclyde Police 1998 SC 548 and Smith v McNair [2008] CSOH 154. The contention put to the sheriff was that, where there was more than one source of a disease or condition, the question was whether the source materially contributed to that condition, and if it was not de minimis it was material. For present purposes it is sufficient to note the sheriff's conclusion that: "....the approach of the court is the same, whether it is an exacerbation case or a question of material contribution or not, though the task may be more difficult. The question for the court is - "has the pursuer proved that it is more probable than not that the increased activity caused or materially contributed to his condition?" It is not enough to show simply that it was the more probable of a number of possibilities (Dingley)".

 

13. In the next section of his note the sheriff considered the evidence which suggested that limited dorsiflexion, whether on the side affected by plantar fasciitis or the uninvolved side, was a cause of the condition or at least a risk factor which heightened the likelihood of it. The discussion focussed on two medical research papers, Risk Factors for Plantar Fasciitis: a Matched Case Control Study by Riddle and others (relied on by Mr Christie), and a paper published by Huerta and others in the Journal of the American Podiatric Medical Association entitled Relationship of Body Mass Index, Ankle Dorsiflexion and Foot Pronation on Plantar Fascia Thickness in Healthy Asymptomatic Subjects, referred to in evidence by Mr De Leeuw. The sheriff reached a conclusion, based on the Riddle paper and in his opinion not contradicted by Huerta, that limited ankle dorsiflexion is a cause or risk factor.

 

14. The sheriff next posed the question: "Was there limited dorsiflexion in the pursuer's left foot and is it a cause of his condition?" It was not in dispute that as a result of a deformity in his right foot from childhood the pursuer had no dorsiflexion in that foot, and in consequence walks with a limp (Finding in fact 8). The question of limitation of dorsiflexion in the affected (that is, left) foot was one of at least mild controversy, and the sheriff considered the evidence relating to it in some detail. He concluded that the pursuer had limited dorsiflexion in his left foot of about 5 degrees, and this is reflected in Findings in fact 9. At this stage the sheriff observed that: "That the pursuer had limited dorsiflexion before the onset of plantar fasciitis is by no means conclusive, however, as the cause of his condition". Finding in fact 10 nevertheless states: "Limited dorsiflexion is a cause or risk factor in plantar fasciitis and is a probable cause of the pursuer's condition".

 

15. In the next section the sheriff dealt with whether "increased activity" was a cause or risk factor of the pursuer's condition. This contained a discussion of the competing views of Mr De Leeuw and Mr Christie, the former considering that the pursuer's condition was caused by having to carry a heavy yale pull which, added to his own body weight, gave him a Body Mass Index figure in the "dangerously obese" range, the latter being of the view that it was not proved that BMI increase had any influence as a cause of plantar fasciitis as the plantar fascia could get used to coping with heavy tensile loading. The sheriff also recorded Mr Denolf's view as being that it was "not unreasonable to say that there was a relation between the pursuer's condition and the surface he had to walk on".

 

16. The critical conclusions are to be found in paragraphs 67 and 68 of the note. These are as follows:

"67. In view of the fact that walking surface as a cause or risk factor is not established in the literature, it is difficult, in my opinion, to conclude that it is a cause or risk factor. It cannot be described as typical in the way in which plantar fasciitis occurs and cannot be something likely to cause the condition. If it is then why did the pursuer not develop the plantar fasciitis years earlier? The answer was said to be the coming together of the uneven ground and the fresh ballast after the 2001 summer holiday and carrying the heavy yale pull. The pursuer had only to walk on ballast, however, when attaching the yale pull, he did not have to walk along a path of fresh ballast. The pursuer had been carrying a yale pull since 1994. One can reasonably assume that the plantar fascia got used to that, as Mr De Leeuw and Mr Christie indicated could happen, and the pursuer did not develop plantar fasciitis before 2001. the pursuer had to carry the yale pull from September 2000 for distances somewhat further than previously; though the distance and number of times he had to walk with the yale pull were considerably less than he claimed. He would have had to carry the yale pull at most twice a shift for 2/9ths of a mile on each occasion. He did not carry the yale pull for all his shift. Any increase in BMI would be intermittent and for short intervals. Yet he still did not develop that condition. On Mr De Leeuw's hypothesis of a sudden event of change of routine bringing on the condition the change of routine in September 2000 did not make the condition apparent. The pursuer had holidays before 2001 without the condition becoming apparent".

"68. It cannot be said, because the condition occurred following the increased activity, that that caused the onset of the condition rather than limited ankle dorsiflexion. I do not find it established that the increased activity was a cause of the pursuer's condition. In so far as increased activity was said to be one of a number of possible causes, it cannot be said to have materially contributed to the pursuer's condition because it was not a cause of the condition occurring. If it was not a cause, it could not be a cause which materially contributed to the condition".

 

17. These conclusions gave rise to Finding in Fact 12: "The increased activity that the pursuer had to undertake in August and September 2001, namely, carrying the yale pull over rough and uneven ground and loose ballast for distances of up to 2/9ths of a mile at least twice a shift was not a cause of the pursuer's plantar fasciitis".

 

18. The sheriff went on to consider certain evidence relating to the fact that the pursuer had acquired a dog some time in 2001 and whether walking the dog might have been cause or risk factor of his condition. On the basis that walking surface was not a cause of plantar fasciitis the sheriff rejected this possibility. Finally he went on to consider the question of acceleration. He noted that "Mr Christie was prepared to accept that the pursuer's condition might have been brought on earlier than it might otherwise have been by a few months. He said that increased activity might be an association; it could "trigger" the condition which was going to occur anyway". As I have observed the sheriff did not find as a fact that the pursuer's condition was going to occur anyway, and specifically held that the increased activity was not a cause of the pursuer's plantar fasciitis.

 

19. In comprehensive submissions Mr Conway, and Mr Middleton, Advocate for the defenders, covered what appeared to me to be four broad areas. These were (1) the duty incumbent upon a judge of first instance in giving reasons for his decision in a case involving controversy amongst medical witnesses; (2) the sheriff's conclusions on the factual basis of the pursuer's case; (3) the sheriff's treatment of the medical evidence; and (4) the law of causation and in particular the test to be met by the pursuer to entitle him to succeed. I do not intend to rehearse all these submissions in detail, partly because it appeared to me that the nature of the appeal went through something of a process of refinement, if not variation, as the hearing progressed. I propose to deal firstly with the law of causation, as the sheriff's approach to the evidence was, in my judgement, at least potentially if not inevitably affected by his view of what the pursuer required to prove as a matter of law.

 

20. Leaving aside for the time being the obstacles which the pursuer must necessarily overcome if this appeal is to succeed, the central contention for the pursuer is, I consider, focussed in the following propositions:

(1) His condition of plantar fasciitis was caused by increased tensile forces on the left plantar fascia.

(2) The mechanism of the increased forces were both the pre-existing disability in his right foot (and, possibly, on the defenders' evidence his left foot) which in themselves caused increased tensile force to be placed on his left foot and the carrying of an additional 30kg (the yale pull) on a daily basis over difficult ground.

(3) The second of these arose because of the defenders' breach of duty. That made a material contribution to the onset of the pursuer's condition. It is a factor which does not fall to be regarded de minimis.

I take these propositions from Mr Conway's submissions made following references to Fairchild v Glenhaven Funeral Services 2003 1AL 32 and McGhee v National Coal Board 1973 SC (HL) 37, as well as Wardlaw (supra). He said: "In the present case at appeal, the argument is that the weight of evidence shows that the increased tensile forces on the plantar fascia caused the injury whether from the breach singly, or cumulatively with the pre-existing vulnerability and has therefore made a material contribution on the Wardlaw v Bonnington Castings basis".

 

21. As I think Mr Conway accepted, the references to Fairchild and McGhee were not truly relevant in the context of his principal submission. The decision of the House of Lords in McGhee, which appeared to many to blur if not confuse the distinction between materially contributing to the risk of a disease and making a material contribution to the cause of it, was interpreted as being special to its facts by the House of Lords in Wilsher v Essex Area Health Authority 1988 AC 1074. That view was, however, disavowed by the House in Fairchild, and it was determined that in particular circumstances, of which those in McGhee and Fairchild itself were examples, a modified approach to proof of causation was justified. This, and subsequent cases such as Barker v Corus (UK) Ltd 2006 AC 572 and Sanderson v Hull 2009 PIQR P7, have achieved a measure of settlement of the law of causation, the position being that in the normal case a pursuer must establish that "but for" the negligence of the defender he would not have suffered the injury complained of, but that in certain exceptional cases it will be sufficient to establish that the negligence complained of materially increased the risk of injury. This latter position is generally referred to as the "Fairchild exception".

 

22. Various attempts have been made to define the criteria for application of the Fairchild exception, and it is not my intention to take up that challenge, as was done by Smith L.J. in Sanderson v Hull. Suffice it to say that amongst the essential criteria two in particular are required before the exception can be resorted to. One is that, in the current state of medical science, the pursuer must be faced with an impossibility of proving, on balance of probabilities, as between the "guilty" source of his injury and some other causative agent (the "innocent" source). Secondly, the duty breached must have been specifically designed to protect employees against the risk of being exposed to the danger of contracting a particular disease. As Lord Rodger of Earlsferry put it in Fairchild (at para 120) "...the claimant must prove that his injury was caused by the eventuation of the kind of risk created by the defenders' wrongdoing. In McGhee, for instance, the risk created by the defenders' failure was that the pursuer would develop dermatitis due to brick dust on his skin, and he proved that he had developed dermatitis due to brick dust on his skin. By contrast, the principle does not apply where the claimant has merely proved that his injury could have been caused by a number of different events, only one of which is the eventuation of the risk created by the defenders' wrongful act or omission".

 

23. It is highly doubtful, at the very least, whether the present case falls to be regarded as involving a "medical impossibility" of proof such as would meet the first of these criteria. It was not the pursuer's main position that the state of medical science prevented him from proving the cause of his injury on a balance of probabilities; that is exactly what he set out to do. It was certainly the case that at the end of the day the expert witnesses were in disagreement as to the cause of his condition but that is not, in my judgment, the sort of situation which calls for an application of the Fairchild exception. However that may be, I am clearly of the opinion that the situation does not meet the second of the criteria indicated above. The Manual Handling (Operations) Regulations 1992 are not "obviously intended" to protect employees from the risk of plantar fasciitis. They are more directed towards prevention of back and upper limb injuries. No inference of causation thus arises, because it is not established as a fact that the pursuer contracted the very condition the risk of which the Regulations were designed to reduce or obviate. The position is clearly distinguishable 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.

 

24. In fairness to Mr Conway he did accept that the application of the Fairchild exception would only come into play if the view were to be taken that the cause of the pursuer's condition was a "genuine medical mystery". This was not his contention. He maintained that the pursuer's condition had been proved to have been caused by increased tensile forces on the left plantar fascia. That was caused by "work activity" and by the pursuer's pre-existing congenital foot disorder (of the right foot, and, possibly the left). If it was established, on a balance of probabilities, that the "work activity" made a material contribution to the cause of the condition, that was sufficient proof of a causative link with the defender's breach of duty.

 

25. I accordingly set aside any question of this case being one in which it is only necessary for the pursuer to show that the defenders' breach of duty materially increased the risk of injury. In consequence I do not detect any fundamental flaw in the sheriff's approach in law to causation. The question he posed was: "Has the pursuer proved that it is more probable than not that the increased activity caused or materially contributed to his condition?" (paragraph 42). I consider that to be the correct question.

 

26. The first ground of appeal (as amended) is in the following terms: "The sheriff has erred in his treatment of the medical evidence. It is plainly wrong to find on the balance of probabilities that the effect of the defenders' breach of duty has not made a material contribution to the development of the pursuer's condition of plantar fasciitis. His reasons for doing so are inadequate. The sheriff has accepted the evidence of the defenders' expert Mr Christie in parts only, and there is no reasoned basis for his rejection of the evidence of the other medical witnesses. Having found in Fact (No 14) that the defenders' breach of duty involved the foreseeable risk of injury, he should have found on the weight of the evidence that the defenders' breach has caused the condition and not simply accelerated it".

 

27. In furtherance of this ground of appeal Mr Conway founded on a number of observations on the judicial duty to give adequate reasons for preferring one view to another when dealing with a case involving conflicting expert testimony. He cited the remarks of Lord Caplan in Dingley v the Chief Constable Strathclyde Police 1998 SC 548 (from page 624) and the judgment of the Court of Appeal in Flannery v Halifax Estate Agencies 2001 WLR 377: "When the dispute involves something of an intellectual exchange, with reasons and analyses advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence, but it is not necessarily limited to such cases" (see page 382).

 

28. Mr Conway maintained that in the present case the sheriff had preferred the evidence of Mr Christie on all the major issues. He had rejected the opinion evidence of the two medical experts called for the pursuer, but had not adequately explained why he had done so. Moreover, he had applied a scientific standard of proof to the pursuer's averments of causation when he should have applied the less exacting legal standard.

 

29. In response Mr Middleton did not question the force of the observations in Dingley and the other cases cited by Mr Conway. He contended that it could not be said that the sheriff had failed to enter into the intellectual discussion nor had he failed to deliver a decision from which no obvious explanation for his conclusion could be discerned. Moreover, he contended that the situation in Dingley was rather different from the circumstances of the present case. In Dingley the facts were largely undisputed. The pursuer was injured in a road traffic accident and sustained a whiplash injury. Thereafter he developed multiple sclerosis. The contention was that the multiple sclerosis ensued as a result of the trauma sustained in the accident. The medical controversy surrounded the question of whether multiple sclerosis could be caused by trauma. Aside from the fact that the medical issues in the present case were much less complex, this was a case where the factual hypothesis upon which the action was based, namely the "increased activity" was, on the sheriff's assessment of the witnesses, inaccurate and exaggerated. Further, there was no real controversy between the medical experts on certain issues for example, the relevance of limited ankle dorsiflection as a risk factor in the development of plantar fasciitis. In short Mr Middleton contended that the sheriff's reasoning was perfectly adequate; that he was not plainly or unmistakably wrong, and that an appeal court should be slow to disturb his judgment, enjoying as he had the benefit of seeing and hearing the witnesses. Reference was made to the observations of Lord Thankerton in Muir v Glasgow Corporation 1943 SC (HL) 3 at page 8 and in Thomas v Thomas 1947 SC (HL) 45 at 54.

 

30. I do not consider that the sheriff's judgment is deficient to the extent suggested by Mr Conway. The sheriff has not approached the matter before him by way of a simple acceptance of the bulk of Mr Christie's evidence and rejection of competing evidence without explanation. What he has done is to approach the matter of causation methodically. On a consideration of all the evidence he arrived at a conclusion that limited ankle dorsiflection "is a cause or risk factor". He then concluded that the pursuer had limited ankle dorsiflection on his left side. Having then discussed, and largely discounted certain factors involved in work activity, the sheriff said: "It cannot be said, because the condition followed the increased activity, that that caused the onset of the condition rather than limited dorsiflection" (paragraph 68 of his Note). That appears to me to be perfectly intelligible process of reasoning; in consequence I am by no means persuaded that this case sits alongside cases such as Dingley and Flannery where the absence of reasoning per se justified setting aside the trial judge's decision.

 

31. The case is however unusual in that there is no doubt that the sheriff has, as a matter of concession, erred in holding that "the increased activity accelerated the pursuer's condition of plantar fasciitis by a few months". He has also gone too far, in my view, in his finding that "limited dorsiflection...is a probable cause of the pursuer's condition". I can understand the view that limited dorsiflection is a risk factor and can be a cause of plantar fasciitis which is what I take from the opening sentence of paragraph 68 of the note. I cannot however find any justification in the sheriff's note for the conclusion that limited dorsiflection was a probable cause of the pursuer's condition.

 

32. In that situation I have acceded to Mr Conway's submission that I should read the medical evidence, as I note the Lord President did before reaching his conclusion in Dingley (see page 52 G). I have to say, that having done so, I would find it extremely difficult to reach any view other than that the pursuer had failed to prove, on a balance of probabilities, that the defenders' breach of of duty caused or materially contributed in the Wardlaw sense to the condition of plantar fasciitis.

 

33. There was no dispute amongst the experts that the condition is age related, but only a percentage (10%) of the population are affected by it. A wholly coherent explanation was given by Mr Christie (vol 4 page 694). He said: "You have a population of people who have plantar fascia unravelling in a biochemical, complex biochemical way, rather like an old hawser that is beginning to unravel. So you've got a population of people who beyond the age of 40 have their plantar fascia beginning to unravel and the collagen fibres are just beginning to become subject to disruption and so forth, from entirely normal activities".

 

34. It was this "biochemical" theory, as Mr Conway described it, which led Mr Christie to the conclusion that the development of the condition in the pursuer was not work related, or at least was not related to the carrying of the yale pull. Thus in answer to the question "The carrying of a yale pull won't make any difference?" he said: "Well I understood him to have done it over a long period of time in that he transported it up and down the train but using different methods". He was then asked: "The fact that he had done it for a long time and didn't develop symptoms until August 2001 what does that tell you about whether or not the condition is work related? He replied: "It suggests to me that the condition is just what we know it is, it is a middle aged degenerative condition of the foot".

 

35. Mr Conway subjected Mr Christie's evidence to considerable criticism, both for its content and the manner in which it was given. He said that there was "an element of grandiosity" in his approach. Mr Christie, he said, had spent much of his career looking at medical orthodoxy and finding it flawed; he lacked attention to detail, and had not produced literature to support his position. To an extent these criticisms centre on the demeanour of the witness and are difficult for an appellate court to consider, but again in fairness to Mr Conway he did analyse Mr Christie's evidence thoroughly and pointed out a number of perceived deficiencies.

 

36. As Mr Middleton submitted, Mr Christie is an expert of vast experience; he is many years senior to the other experts, and was Director of Trauma and lead Consultant in the Trauma Unit of Edinburgh Royal Infirmary, one of the largest trauma units in Britain for around 20 years. He has a particular interest in injuries of the hind foot, the heel and the talus. He had carried out a detailed examination of the pursuer and had recorded the most detailed account of the pursuer's work duties. It would be difficult for me, as an appellate court, to treat his evidence as of no value and to prefer the competing evidence on a consideration of the transcript of the evidence. I am mindful of the observations of Lord Hope of Craighead in Thomson v Kvaerner Gowan Limited 2004 SC (HL) 1 at para 18 concerning the "temptation which must always be resisted by an appellate court of retrying the case on the printed evidence".

 

37. Having analysed the evidence and largely discounted that given by Mr Christie, Mr Conway summarised the weight of evidence along the following lines. From August 2000 the pursuer had to walk the length of a train to get to the far side carrying a 30 kilogramme weight. The textbook theory supported the view that this would result in micro tears in the plantar fascia. From July 2001 on there was an increased difficulty caused by the state of the ground. Mr Denolf had pointed out that the presence of a heel spur on x-rays seen in September 2001 indicated that it had commenced formation before July of that year. Whilst it was true that the presence of a heel spur is not predictive of full blown plantar fasciitis, according to the text book Neale if frequently accompanied it. In that situation it was reasonable to conclude that "something was going on" before July 2001. Further, the pursuer was aging. Forces which he might reasonably accommodate in his mid-40s he might not be able to accommodate in his 50s. So whilst there is no doubt a possibility that the plantar fascia had become accustomed to extra loading prior to 2000 that did not mean that it did not break down with the increasing effects of age and the increased loading from August 2000 and subsequently.

 

38. I am by no means convinced that the weight of evidence necessarily supports this analysis which seems to suggest gradual damage well before the appearance of symptoms caused by a combination of age and the increased loading. Mr De Leeuw said that in the vast majority of cases which he saw there was a "provoking feature" - usually a weight gain over a relatively short period of time (page 246). It was this experience which led him to express, at page 281 of the Notes, a view which might be said to encapsulate his opinion as to the cause of the pursuer's condition. He said: "This gentleman was off work for a fortnight and during that time his body mass index for that entire time, assuming he wasn't doing any manual lifting on holiday was approximately 26.9 so his foot during that time was not loaded and started getting comfortable with not being loaded; he then returned to work having to kind of pick up this very heavy weight which pushes his body mass index up into the high 30s. There was a period of relative rest for his foot and his foot was reloaded and I think on its own it could be sufficient provocation to cause plantar fasciitis. The second part of that question is the stability of the ground. I think the stability of the ground is quite an important factor here. We know that sportsmen have a problem, can develop a problem depending on the surface on which they train. A lot of patients who have ankle and foot problems one of the things they complain of they notice walking on different surfaces can provide pain, particularly people with ankle problems find it uncomfortable walking on unstable surfaces".

 

39. A number of observations fall to be made. In the first place as Mr Middleton suggested it is doubtful whether it is fair to compare someone who is obese and in consequence has a permanent high body mass index with someone who is lifting up a heavy weight on an occasional basis. It is also true that Mr De Leeuw placed some emphasis on the walking surface, a matter with the sheriff discounted as a contributory factor in plantar fasciitis but which in any event was a matter of which Mr De Leeuw's understanding, may not have been in accordance with the sheriff's findings on the evidence. In that situation to hold in the pursuer's favour would involving finding that the return to work after a holiday and the "reloading", as Mr De Leeuw put it, was a material cause of the pursuer's condition. In my judgment it might have been a cause, but when set alongside other possible causes namely, limited ankle dorsiflexion or simply the effect of advancing age it would be hard to find for the pursuer on this expression of opinion alone.

 

40. So far as the evidence of Mr Denolf is concerned he did express the view (see page 481) that "carrying the equipment over this uneven rough ground has caused over-use syndrome in Mr Reid's left foot". The term "over-use syndrome" was criticised by Mr Christie on the basis that the planter fascia was designed to absorb weight and that when it did so it was not subjected to "over-use". That aside, reading Mr Denolf's evidence as a whole it is plain that the over-use of which he spoke arose in his view from a number of factors of which carrying the yale pull did not feature to the same extent of the re-ballasting of the ground. The force of Mr Denolf's view may in consequence be undermined because of his knowledge of the state of the ground and the extent that the pursuer had to walk over re-ballasted ground, on which matters he was dependent on what was told to him by the pursuer.

 

41. In all these circumstances the situation is one where the evidence as a whole indicates a number of possible causes of the pursuer's plantar fasciitis, namely increased activity (which may or may not have involved the defender's breach of duty); limited ankle dorsiflexion; and age related degeneration. Had I considered it possible to revisit the sheriff's decision I would have not been in a position to say that the pursuer's condition was caused by the defenders' breach of duty in the sense that this made a material contribution to it. In that situation, and having regard to the concession made whilst it is necessary to make certain adjustments to the findings in fact to reflect the position that the cause of the pursuer's condition simply has not been proven, I have no alternative but to recall the sheriff's interlocutor and to grant decree of absolvitor.