WRULD Claims heard in Courts in England, Scotland and Wales

Hearing(s) - Kane -v- Eaton Williams Group Ltd

Date	Court	Claimant(s)	Task	Injury	Judgment for
Jan 2011	Tunbridge Wells County Court	Kane	Use of tin snips	Tendonitis, Tenosynovitis	Claimant

Mr Kane claimed damages for an injury to his right arm and wrist that was allegedly caused by, or at least aggravated by, his work when he was employed by the Defendant from January 1999 to December 2004. Over that period the Defendant manufactured air conditioning units in a factory at Edenbridge in Kent. Mr Kane worked for them as a metal worker. Part of his job was to operate a computer numerical control (CNC) cutting/punching machine used to cut parts from sheet metal. The particular machines used by the Defendants were two Trumpf TC500 machines. The Trumpf machines would take sheets of metal of about 8 foot by 4 foot and thicknesses up to 3 mm. Depending on the programme selected the machine would cut the metal sheeting into the various components needed for the manufacture of the air conditioning units.

As operated by the Defendant, the Trumpf machines were normally programmed so that they would not cut the individual components completely out of the metal sheet. Instead, each component would be left held in place by tags or micro-joints. Generally there were four tags for each component and the tags were 2 mm wide (seen from the top) and of a depth equal to the thickness of the metal sheet. The number of components per sheet could vary from 2 or 3 to at least 250. When he was operating the Trumpf machine it was Mr Kane's job to load the metal sheet onto the machine and to set the machine up to run the required programme. When the machine had finished cutting, which could take up to 30 minutes, depending on the complexity of the job, the finished sheet could be pulled out onto an adjacent table. It was then the operator's job to free the components from the tags holding them into the sheet. There were three ways of doing this.

The first, and easiest, was to give the sheet a shake, whereupon some, perhaps all, the components would simply fall out. The second method was to give the more obstinate components a tap with a metal bar. The third method was to use a set of 'tin snips', an industrial version of a gardener's secateurs, in order to cut the tags and free the components. Part of the dispute in this case was over how much snipping Mr Kane had to do. It was Mr Kane's case that he was often unable to free the components by shaking or tapping them out, that he therefore had to do a great deal of snipping and that the repetitive action of snipping first caused the injury to his wrist and then aggravated it. The Defendant, on the other hand, said that most components could be freed by shaking or tapping so that there was not much snipping to do and that Mr Kane's symptoms were unrelated to his work. There was also a dispute over when Mr Kane was working on the Trumpf machine rather than upon other, quite different, machines.

Mr Kane claimed damages in respect of the onset of symptoms in his wrist on two occasions. First in late March 2004, when he was off work for a week due to tendonitis, and second on 7 June 2004, following which he was off work for 6 months, and never returned to work for the Defendant. Mr Kane claimed that, even if the Defendants were not liable for the symptoms he suffered in March and early April 2004, after he returned to work in April 2004 with a diagnosis of tendonitis the Defendant became responsible for ensuring that he did not suffer another outbreak, as he subsequently did in June 2004.

The injury for which Mr Kane claimed damages is referred to in the Judgment as "tendonitis or tenosynovitis affecting his right arm and wrist" with no explanation as to why there was uncertainty about the precise diagnosis. The Medical Experts, who did not give oral evidence, agreed in a joint statement that the upper limb symptoms with which Mr Kane presented in June 2004 were the result of a soft tissue inflammatory condition, which had been variously described as a tenosynovitis, or a tendonitis. The Medical Experts also noted that the extent to which Mr Kane used the tin snips at work in the Summer of 2004 was disputed and agreed that: if the Claimant's description was accepted there was a direct causal relationship between his work circumstances and his development of tendon inflammation; while in the event that the Defendant's account was accepted, Mr Kane's upper limb condition had arisen for constitutional reasons. The Medical Experts considered that even if the Defendant's account was accepted the work he was undertaking would have resulted in the condition being more symptomatic than if he had been undertaking a different job without the use of the tin snips.

Similarly, the two Ergonomics Experts, who also did not give oral evidence, agreed in a joint statement that if the Claimant's work at the material time had been undertaken in the manner demonstrated at the inspection, there would be no inherent, significant or foreseeable risk for the injury as diagnosed, but that if the work required the use of the tin-snips to the extent alleged by the Claimant then there would have been a foreseeable risk presented by the work activities.

The Defendant had undertaken a risk assessment of work on the punching, folding and cutting machines on 18 February 2004, which categorised the hazards arising from punching machines as low risk. There was nothing in the risk assessment to suggest that repetitive strain type injuries were identified as a risk at that time. On 25 June 2004 the Defendant made an online RIDDOR report to the HSE in respect of Mr Kane's injury. This report described the injury as tendonitis of the wrist. The description of the circumstances said that Mr Kane had to load and unload the machine with sheet metal.

On 5 July 2004 an HSE inspector visited the Defendant's premises in response to the RIDDOR report. Following this visit, the HSE wrote to the Defendant on 16 July 2004 suggesting that it was "not immediately likely that the activities being undertaken would create a risk of repetitive strain type injuries", but that the most likely activity to cause such an injury was the use of the snips and that it would be a sensible precaution to provide a variety of shapes of snips (eg cranked to cut off corner tags) and sizes. The HSE inspector strongly advised that the Defendant buy self-opening snips to reduce the strain. Following receipt of this letter the Defendant's risk assessment for the cutting, folding and punching machines was amended and the Defendant provided self-opening snips.

In his Judgment, Mr Recorder Rhodri Davies QC considered the events and evidence relating to two periods: the first up to the 29 March 2004; the second from April to June 2004. With respect to events up to late March 2004, Mr Recorder Rhodri Davies QC concluded that while Mr Kane did have a natural or constitutional vulnerability to the development of tendonitis or tenosynovitis, which was not created by the Defendant, the symptoms that he suffered in late March 2004 were caused by his use of the tin snips at work: there being no other explanation of these symptoms and, as Counsel for the Claimant pointed out, the treating medical staff consistently associated them with Mr Kane's work. However, Mr Recorder Rhodri Davies QC also concluded on the evidence that Mr Kane's injury in March 2004 was not caused by any breach of duty by the Defendant.

With respect to the events and evidence relating to the period from April to June 2004, Mr Recorder Rhodri Davies QC concluded that the symptoms which Mr Kane suffered in June 2004 were, like those he suffered in March, caused by his use of the tin snips at work: again, there being no other explanation of these symptoms and the treating medical staff consistently associated them with Mr Kane's work. Mr Recorder Rhodri Davies QC also concluded that the injury suffered by Mr Kane in June 2004 was caused by a breach by the Defendant of their duties to him. Mr Kane therefore succeeded on liability.

In his Judgment, Mr Recorder Rhodri Davies QC then said:

This finding of liability is not the result of any ill-intentioned conduct by the Defendants but, in my view, if an employer is notified that an employee doing manual work is suffering from a condition such as tendonitis and keeps him on the same work without further inquiry, then the risk of a second outbreak lies on the employer rather than the employee.

Mr Kane was awarded: £3,000 for pain, suffering and loss of amenity; £9,852.57 for loss of earnings and pension contributions; and £210 for travel and care, giving a total of £13,062.57.

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Last updated: 14/05/2013