Outer House personal injury case arising from worker’s leg amputation fails on causation

About this case:

• Citation:
  [2024] CSOH 92
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Ericht

Joseph McIlwraith, who was diabetic and thus susceptible to requiring an amputation for various causes, sought damages from Bluevale Structures Ltd on the basis that his injury has caused by his employer’s breach of common law duty and health and safety regulations. Quantum was agreed at £85,000 in the event of the pursuer’s success.

The case was heard by Lord Ericht in the Outer House of the Court of Session. Allardice, advocate, appeared for the pursuer and Mackenzie KC and Rolfe, advocate, for the defender.

Most likely scenario

In May and June of 2018, the pursuer was working at warehouse premises in North Cumbernauld to safely remove the roof of a loading bay area that had collapsed following the “Beast from the East” weather pattern the previous winter. The defender was engaged as a demolition subcontractor for the job, with the main contractor being another firm, McLaughlin and Harvey.

Due to the collapsed roof, rainwater pooled in the area where the pursuer was cutting metal roof pieces into smaller sizes for disposal. The pursuer was wearing steel toe capped rigger type boots which were not waterproof, a fact he averred was known by the defender. As a result of the standing water, the pursuer’s boots became soaked through. Further, the boots did not dry when not in use as the dry room provided for storage was not heated, leaving the boots consistently wet overnight. On 12 May, the pursuer purchased new, waterproof boots that he used for the remainder of the job.

On 1 June 2018, the pursuer was taken from the job site to hospital as his right toe became numb and discoloured. The toe developed a diabetic infection which spread further, necessitating the below knee amputation of his right leg. It was submitted for the pursuer that this was caused by the work done while wearing soaked boots and the defender ought to have known of the risk that the pursuer would have to work in standing water with non-waterproof footwear, and taken suitable measures to either remove the water or provide proper overnight drying facilities.

Counsel for the defender submitted that there was no evidence that the pursuer had suffered ulceration because of his wet feet, and the most likely scenario was that the condition arose because he was diabetic. In doing so a challenge was made to the factual basis of the pursuer’s expert witness, consultant surgeon Keith Hussey, which concluded that he had developed Immersion Foot Syndrome that caused the tissue damage resulting in ulceration.

Balance of probabilities

In his decision, Lord Ericht began by saying of the case overall: “It is clear from the medical evidence that even diabetics who do not get their feet wet can end up in the same position as the pursuer in respect of amputation of a limb. It is in the nature of the disease of diabetes.”

He continued: “In order to succeed in this case, the pursuer requires to prove on the balance of probabilities that, rather than the cause being one of the other incidents of diabetes which could lead to amputation, the cause was infection caused by toe ulceration caused by Immersion Foot Syndrome caused by getting his feet wet at the Site on 9, 10 and 11 May. In my opinion the pursuer has failed to do so.”

Explaining the reasoning for his finding, Lord Ericht said: “At the end of the working day on each of 9, 10 and 11 May, the pursuer changed into dry shoes for the journey home and his feet remained dry until his return to work the next day. That is not eloquent of the consistent soaking and lack of drying off referred to by Mr Hussey as being required for the development of Immersion Foot Syndrome. Further, there was no evidence of any visible ulceration after 11 May.”

He concluded: “While I accept the pursuer’s evidence that his feet were sore and he suffered from pins and needles, that does not assist in proving causation as he had been experiencing that since 2012 as a symptom of his diabetes. There was no evidence that his toe had been abnormal from the end of the immersion on 11 May onwards. In all the circumstances I find that the injury suffered by the pursuer was not caused by getting his feet wet by standing in water in the course of his employment.”

Decree of absolvitor was therefore pronounced in favour of the defender.