WRULD DB-Claimant: Mr Barry Patrick Rogan

Case	Task	Injury	Date	Court	Judgment for
Thomas, Studholme & Rogan -v- Arriva Trains Wales Ltd	Use of hand operated control(s)	Carpal Tunnel Syndrome, Chronic Compartment Syndrome	30 Nov 2009	Swansea County	Claimant

This County Court Judgment deals with claims made by three train drivers who all alleged they had developed Carpal Tunnel Syndrome and Chronic Compartment Syndrome and that those conditions have been caused by driving units (142, 143, 150, 153 & 158) that had been in use since the 1980s. No complaint was made about driving the more modern 175 units.

The Claimants contended that the routes that they drove in West Wales required frequent use of the trains' controls. The Defendant put in evidence a video recording of a driver driving a 153 unit between Cardiff and Swansea. During the course of his journey the driver frequently took his hands away from the controls and sat with them in his lap. All of the Claimants claimed to drive in a way that was distinctly different to that shown in the video recording.

Mr Rogan had been a driver since about 2000. In the late summer of 2004, he was diagnosed as having Carpal Tunnel Syndrome. He was off work from September 2004 and underwent decompressive surgery on his right hand on 1st November 2004. He returned to work on 3rd January 2005. On 14th February 2005 he underwent surgery on his left wrist and returned to work on 28th March 2005 driving the same trains. The operations were initially very successful but he claimed he had begun to experience pain in his right hand 12 to 18 months after the surgery.

Mr Paul Studholme began work as a driver in December 1991. His symptoms began with stiffness in his neck and pain running down his shoulder to the elbow. He consulted his general practitioner who referred him to a consultant who could not explain the symptoms. By July and August 2004 the pain became intrusive. On an occasion when he attempted to apply the brake of a train he experienced cramp around his shoulder blade associated with pain through to his chest. This pain persisted for 5 weeks and seemed to be aggravated by his operating the brake. He also began to experience pain, pins and needles and stiffness in his left arm. When the arm pain started, his neck and shoulder pain eased off.

He struggled on at work until 26th October 2004. He was then away from work until 15th June 2005 during which time the symptoms in his arm resolved. His first day of driving on return to work was 18th July 2005. He immediately began to suffer pain in his hands. By 3rd August 2005 the pain was so bad that he consulted the Defendant's doctor and on 15th August 2005 overshot a station when he was unable to brake because of pain in his lower left arm. He was then relieved of driving duties. He felt that he was being ignored and from October 2005 he began to experience panic attacks and rage. He was diagnosed with a panic disorder and referred for counselling.

The Defendant's doctor diagnosed carpal tunnel syndrome and on 27th January 2006 he underwent decompressive surgery that was a success. He returned to work on 24th April 2006. Following his return to work in April 2006 he began to experience minor symptoms in his left hand. He said that those symptoms were different from the symptoms he previously experienced. It was said that he had Chronic Compartment Syndrome in both arms.

Mr Gary Thomas began working as a train driver in April 2001. In about 2004 he began to experience pain in his right hand and shortly afterwards in his left hand. It was a throbbing pain in his wrist and hand running down into his fingers, worse on the right. He also experienced numbness when using gym equipment or a computer, and pins and needles in his left hand. In September 2004, he consulted his general practitioner. He underwent decompressive surgery to both wrists. He returned to work but in early 2008 he began to experience numbness in all fingers of both hands.

A considerable part of the Judgment is devoted to reviewing the Expert Ergonomic/Engineering evidence. Even more of the Judgment is taken up by a review of the equally conflicting evidence of the Medical Experts. In paragraph 187 of his Judgment, HH Judge Vosper QC says:

The questions which it seems to me I must address are whether the manner of driving demonstrated by the Claimants was such as to be capable of causing an upper limb disorder; if so, whether the Defendant knew or should have known that; what steps if any the Defendant should have taken, and whether those steps, if taken, would have prevented the Claimants' injury. Some of these questions involve a consideration of the duty imposed by law on the Defendant.

At paragraph 189, HH Judge Vosper QC says:

The evidence establishes in my judgement that the Defendant never gave any thought to the possibility of its drivers developing an ULD from the act of driving. [The Expert Engineer instructed by the Defendant] says that they were entitled to come to that opinion because the manner in which the Claimants drove was unnatural. The evidence ....... shows that the Defendant was not concerned with the way in which an individual driver handled the controls. It was left entirely to the driver. In those circumstances I have come to the conclusion that the Defendant cannot be heard to say that the Claimants' driving style was not a matter to which they should have had regard. The position might be different if a Claimant had suffered injury because he had adopted an idiosyncratic driving style so out of the ordinary that no person in the Defendant's position could reasonably have been expected to contemplate it as a possibility. But that is not the case here. These Claimants simply drove in a manner which the Defendant permitted, in the sense that the Defendant took no steps to inform itself of the way in which each drove or to alter or correct that style by instruction or otherwise. Their styles were different from that adopted by [the driver shown in the Defendant's video]. But they were within the range of styles which the Defendant ought to have known their drivers might adopt. Accordingly I do not accept that the Claimants can be said by the Defendant to be themselves solely responsible for any injury caused by the driving style each adopted.

HH Judge Vosper QC found that all three Claimants had proved that they had suffered Carpal Tunnel Syndrome that was caused by their work, but had failed to prove that the symptoms that they experienced subsequent to decompressive surgery were work-related. HH Judge Vosper QC went on to find that the Defendant was under a duty by statute and at common law to assess the ergonomic risk to its drivers from the act of driving its trains, which it had failed to do. If it had done so it would have informed itself or received advice that the ergonomic set up of the cab of the older trains was such that there was a risk that drivers might adopt a driving style that gave rise to a risk of ULD; that the risk was caused or materially contributed to by the poor seats and absence of, or inadequate, armrests which were unsuitable within PUWER 1998 in that it was foreseeable that they might contribute to injury to the driver's health; that it should replace the seats and/or provide adequate armrests on its older trains and that it should warn its drivers against driving habits which created a risk of ULDs. If the Defendant had acted on that advice the Claimants would not have developed Carpal Tunnel Syndrome and thus the Claimants were entitled to damages for Carpal Tunnel Syndrome and any associated losses.

Damages were assessed on the basis of the period over which each of the Claimants had experienced injury that was attributable to the Defendant's breach of duty, resulting in awards for pain suffering and loss of amenity of: £8,000 to Mr Thomas; £8,000 to Mr Studholme; and £5,500 to Mr Rogan, with total damages respectively of: £12,364.23; £20,037.71; and £9,089.89.

V1.01

Last updated: 29/09/2010