Causation in the eye of the beholder

This article was co-authored by Sulaiman Yusuf, Trainee Solicitor.

This case is an example of the importance of carefully exploring causation with the help of medical evidence before issuing a claim.

Background

The pursuer was a demolition worker who required a right leg amputation due to an infected toe ulcer. He was instructed to clear pieces of metal being cut from the roof of a warehouse in North Cumbernauld (the Site) following a partial collapse in the roof in May 2018.

During the period of work, rain had pooled in the area where the pursuer was working. He claimed that his work boots were not adequate to prevent his feet from getting wet and that the water broke the skin on his toe and exposed him to infection. The pursuer claimed that, by failing to ensure he had been provided with suitable waterproof working boots, the defender had breached their common law duty of care and health and safety regulations.

Issues in dispute

The period of the pursuer’s exposure to standing water was disputed. It was originally pled that the pursuer was stood in water between 28 May 2018 and 1 June 2018. However, it was taken from the oral and photographic evidence that the relevant exposure occurred between 9 and 11 May 2018, after which the pursuer began using suitable footwear for work. The Court accepted this evidence as admissible as it was merely a modification of what was originally pled.

The turning point in this matter was the issue of causation. The Court accepted that there was standing water at the Site, no deeper than 5 inches, which caused the pursuer’s feet to be continuously wet while working. It was accepted that the pursuer first attended hospital complaining of an infected toe on 1 June 2018. The primary issue to address was whether the exposure to the wet environment was relevant to the subsequent amputation.

The pursuer had a history of type II Diabetes Mellitus. This put him at a high risk of amputation for a number of reasons including toe ulceration caused by prolonged immersion in water. It was accepted that toe ulceration and amputation are common in diabetics, regardless of the level of preventative care they undergo.

The pursuer’s medical expert attributed the injury to him developing Immersion Foot Syndrome which in turn caused the diabetic foot infection that resulted in the amputation. The defender did not lead medical evidence to challenge the pursuer’s expert. However, counsel for the defender challenged the factual basis for the medical expert’s conclusions. The expert was instructed based on the period of exposure between 28 May and 1 June. In that scenario, there would have been no gap between the immersion and the pursuer’s hospital attendance. If the end of the exposure was 11 May 2018, there would have been a three week gap between immersion and his hospital attendance. The pursuer’s expert told the Court that, in the latter situation, if the toe was completely normal between the end of the immersion and the hospital attendance, there was unlikely to be a causal link.

Decision

The defender was successful with the Court finding that the pursuer had failed to demonstrate a causal link between his exposure to standing water and the toe ulceration which led to the amputation of his foot. The duration of exposure was not sufficient to cause the pursuer to sustain Immersion Foot Syndrome. There was also no evidence that his toe was abnormal from the end of the immersion. In all circumstances, the Court found that the toe injury which resulted in the amputation was more attributable to other symptoms of the pursuer’s Diabetes Mellitus.