7SA01092 v GARY THOMAS [2009] EW Misc 8 (EWCC)

IN THE SWANSEA COUNTY COURT

[2009] EW Misc 8 (EWCC)

Case No Case Nos. 7SA01092, 7SA01932, 7SA01933

Between

7SA01092

GARY THOMASClaimant

ARRIVA TRAINS WALES LIMITEDDefendant

AND BETWEEN

7SA01932

PAUL STUDHOLMEClaimant

ARRIVA TRAINS WALES LIMITEDDefendant

AND BETWEEN

7SA01933

BARRY PATRICK ROGANClaimant

ARRIVA TRAINS WALES LIMITEDDefendant

Before

His Honour Judge Vosper

Mr Robert O'Leary (instructed by Thompsons, Swansea) for the Claimants

Mr James Pretsell (instructed by Watmores, London) for the Defendant

Hearing dates 18th, 19th, 20th, 21st and 22nd May 2009

Date 30 November 2009

[1]These three cases have been heard together. The Claimant in each is a train driver employed by the Defendant and based at Carmarthen. The routes which the Claimants drive extend from Cardiff in the east to Pembroke Dock, Milford Haven and Fishguard Harbour in the west. They also drive on the Heart of Wales line as far north as Llandrindod Wells. Each alleges that he has developed carpal tunnel syndrome and chronic compartment syndrome, and that those conditions have been caused by driving. (There was initially also a complaint about the temperature in the cabs but that has not featured significantly in final submissions.)

[2]They contend that the routes which they drive require frequent use of the train's controls. On a branch line, where the speed limit is 60 mph, there are cattle crossings, road crossings, frequent stations, gradients and corners, all of which require use of the controls. Additionally, even when driving on the main line, the Claimants' case is that they are required to stop not only at the major stations at which the drivers of longer-distance trains also stop, but also the smaller stations at which the longer distance trains do not. They therefore have to operate the controls of the train more frequently than the drivers of those trains.

[3]In about July 2004 the Defendant introduced a "Professional Driving Policy," a system of working under which a train was to be driven in a way which was intended to be more efficient and to reduce the need for maintenance and servicing. Whereas under the style of driving formerly adopted by some drivers, the practice was to brake and accelerate heavily, under the new practice drivers were required to engage the brake more gently and to accelerate slowly. The consequence of this new practice, it is said on behalf of the Claimants, was that more frequent movement of the controls was required. Compliance with the new practice was monitored by an "On Train Monitoring Report" (OTMR), a device fitted to all trains which records movements of the controls. By reference to the data provided by the OTMR, a driver might be reprimanded by a manager for excessive acceleration or use of the brake.

[4]It may be that the style of driving required by this policy had in effect been encouraged since about 1998. It should be noted that of the Claimants Mr Rogan did not believe that his style of driving had changed following introduction of the new policy and Mr Thomas did not regard it as a "massive change" of his driving style. Mr Studholme however did think that the new policy was a contributory factor in his injury.

[5]Each Claimant drives diesel powered units of the types 142, 143, 150, 153, 158 and 175. Each unit consists of a passenger compartment and a driver's cab at each end. The driving cabs on different types of unit differ, but the cabs at each end of each unit (except the 153) are identical. The 153 unit is a modified 155 which has effectively been split in two. The modification involved the construction of a second driving cab. Accordingly on a 153 unit the original cab (number 1 cab) differs from the subsequently-constructed cab (number 2 cab).

[6]Although the cabs on each type of unit are not identical, the layout of the controls is broadly similar. There is a seat which may be adjustable to a limited extent in front of a driving desk (or console). On the desk there are two main controls: the power lever which is operated with the right hand and the brake which is operated with the left hand. The power lever moves in a vertical plane fore and aft. "Power off" is the forward point furthest away from the driver. The lever is then notched at seven further positions. Number 7, nearest to the driver, is full power. The brake handle is attached to a spindle which descends vertically below the desk. The handle moves in a horizontal plane and in a circular direction around the axis of the spindle, which is to the left of the driver's left hand. When the handle is nearest to the driver the brake is fully released. The driver applies the brake by pushing the handle away from him towards the front of the train. It then passes through three steps which apply the brakes with increasing friction. There is also an emergency position which is not used in normal driving.

[7]Both the power lever and the brake operate electrical switches. In general the degree of force required to move them (measured by the Defendant's expert witness whose evidence I shall deal with more fully below) is between 10 and 20N (Newtons). This is low and is comparable to, or less than, the force required to move the gear lever of an average motor car. However the Claimants say that on some units the brake lever may require more force than on others.

[8]There is a re-set button for the Advanced Warning System (AWS). This system operates by magnets on the track and on the train. As the train approaches a green signal, a bell sounds in the cab. But if the signal is at red or amber a horn sounds. The driver must then push the AWS reset button within 3 seconds. If he fails to do so the train will automatically come to a halt. The force required to press the reset button is about 30N.

[9]On the floor of the cab is a pedal on which the driver must maintain pressure when the train is moving. If for a period of one minute he fails to operate any control, a warning sounds and he must release the pedal and press it again. If he fails to do so the train will stop.

[10]I had the opportunity to inspect a 153 unit at Swansea railway station and to sit in the driver's seat of both number 1 and number 2 cabs. I was also able to inspect and sit in the cab of the more modern 175 unit about which no complaint is made. I have not inspected the cab of any other unit.

[11]Mr Rogan gave a description of some of the different units. I take the following summary from his evidence. The 153 unit. a) In number 1 cab beneath the driving desk is a panel which slopes forwards and downwards toward the front of the train. This panel has the effect of restricting legroom for taller drivers whose knees strike against it. The number 2 cab, though smaller, in fact has more legroom. Its problems relate to the horn and a metal bar below the driving desk whose sharp corners present a hazard to the driver's knees. b) The seats are the same in each of the two cabs. The seat can be raised or lowered but the back rest is fixed to the back wall of the cab and the only adjustment is a limited change of angle. c) Mr Rogan who was the tallest of the Claimants finds it more comfortable to stand to drive in both cabs of the 153 unit. He lowers the seat, tips it up like an old cinema seat and rests his buttocks on the upturned edge of it. d) When I inspected the 153 unit at Swansea railway station, I also found that my knees struck the panel in number 1 cab and the bar in number 2 cab. I understand why a taller driver might prefer to stand. e) The arm rests, which can be raised to enter the seat, are bolted to the back wall. They permit no forward adjustment and are significantly lower than the level of the driving desk. Mr Rogan said that for those reasons it was not possible to rest the forearms on the arm rests while holding the controls. When I inspected the 153 unit, for the reasons explained by Mr Rogan, in neither cab was I able to do so. The142. f) On a 142 unit the seats have arm rests, the angle of which can be raised or lowered and which end just distal to the elbow. The seat can be adjusted up and down but there is again limited adjustment of the angle of the back of the seat because of the proximity to the rear wall of the cab. Overall Mr Rogan said that the 142 was "not bad at all for comfort." The

143. g) This unit has no armrests. The seat is bolted to the floor and rotates slightly. It cannot be locked. It tends to rotate as the train is driven. It can be raised and lowered and the back has limited adjustment. When he drives this unit Mr Rogan is seated but is well back from the driving desk. He finds that he rests his hands on the edge of the desk. h) Foot room is restricted and the horn catches the knee. The 150. i) On some of the 150 units the armrests are too short so that they stick into the back of the elbow and are of no use. On other units the seats have been changed for ones with longer armrests. j) The back of the seat can be adjusted through three positions at the bottom. The seat can be raised and lowered but the arm rests cannot be adjusted for height independently of the seat. They can be tilted. There is again a fixed and angled panel beneath the desk so that the higher the seat the less the knee room. k) Mr Rogan drives sitting fully back in the seat and with his arm resting on the edge of the deck. The 158. l) These are similar to the 150 unit.

[12]Mr Barry Rogan was born on 29 th March 1959. He has been a driver since about 2000. He has regularly driven the 142, 143, 150, 153 and 158 models. His symptoms began with an ache. Later he experienced pins and needles and pain in his fingers and wrists. His right wrist was first affected. Occasionally he suffered a shooting pain up his arm. The pain was worse at night and affected his sleep. He consulted his general practitioner who arranged physiotherapy which was of no assistance. In late summer of 2004 carpal tunnel syndrome was diagnosed. He was off work from September 2004 and underwent decompressive surgery on his right hand on 1 st November 2004. He returned to work on 3 rd January 2005. On 14 th February 2005 he underwent surgery on his left wrist and returned to work on 28 th March 2005 driving the same trains.

[13]The operations were initially very successful but unfortunately, he says 12 to 18 months after, he began to experience pain in his right hand. He is at present waiting to see a consultant at University Hospital of Wales.

[14]He said that when he drives he normally rests his hands on the driving desk or on an arm rest if there is one. He said that he never moves his hand far from the brake handle but keeps it hovering over or resting near the handle ready to apply the brakes if necessary. He demonstrated that he holds his left hand on the brake handle with his wrist in a flexed position and his distal forearm resting on the desk. He nudges the brake lever forward to step 1 by extension of the wrist and then pushes it on from that position. Sometimes he pulls it back with the fingers and with his wrist flexed. When standing his left wrist is extended and as he moves the brake lever there is some deviation at the wrist. He estimates that the brake handle moves through an arc of about 120 degrees.

[15]He holds the power lever with his right hand so that the ulnar side of his hand and right forearm is resting on the desk. With his fingers and thumb he maintains what appears to be a light grip of the lever. His right hand, therefore, is not palm down. On about 50% of occasions he moves the power lever back and fore between notches by a flick of his wrist and on the other 50% by moving his arm without significant movement of the wrist.

[16]Mr Rogan said that he rarely drove type 150 units. By reference to his diary he estimates that in 2003 he drove type 158 units for 50% of his driving time and type 142, 143 and 153 units for the other 50%.

[17]Mr Paul Studholme was born on 20 th October 1966. He began work as a driver in December 1991. At first he drove the 150 and 153 units and later the 158 units also. He has also driven the 140 and 143 units.

[18]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.

[19]He struggled on at work until 26 th October 2004. He was then away from work until 15 th June 2005 during which time the symptoms in his arm resolved. His first day of driving on return to work was 18 th July 2005. He immediately began to suffer pain in his hands. By 3 rd August 2005 the pain was so bad that he consulted the Defendant's doctor and on 15 th 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.

[20]He thinks that proper procedures were not followed by the Defendant. He was not interviewed about the incident. 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.

[21]The Defendant's doctor diagnosed carpal tunnel syndrome and on 27 th January 2006 he underwent decompressive surgery which was a success. He returned to work on 24 th April 2006.

[22]Following his return to work in April 2006 he has begun to experience minor symptoms in his left hand. He says that those symptoms are different from the symptoms he previously experienced. It is said that he now has chronic compartment syndrome in both arms.

[23]When he drives he tends to keep his right hand on top of the power lever as if holding a computer mouse. He flicks the lever towards him with his fingers by flexing his wrist and pushes it up away from him by pushing his arm forward and extending his wrist. He has never held his hand to the side of the power lever as Mr Rogan demonstrated.

[24]He normally sits with his left hand on the brake handle. He moves the handle from release to step 1 by extending his wrist and effects further movement by pushing his arm forward. If the handle is stiff, as some are, all movements have to be made with the arm.

[25]When he is not operating the controls he keeps his left hand resting on the brake handle and rests his right hand on the desk by the power lever. He finds armrests an irrelevance. His view is that they serve no purpose. He has never stood to drive a train. He has, he says, short legs and so he can squeeze himself into position behind the desk and there he stays.

[26]Mr Gary Thomas was born on 30 th November 1963. He began working as a train driver in April 2001. The majority of his time is spent driving the 150 153 and 158 models. 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. His sleep was disturbed. 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.

[27]He described the way in which he operated the controls. He works the brake handle by a forward flexing movement of the left wrist to move it from release to step 1. He moved the handle beyond step 1 by pushing his arm forward without significant flexion or extension of the wrist.

[28]He puts his right hand over the top of the power lever and holds it in the palm of his hand with the palm down and moves the lever by moving his arm forward with his wrist flexed and by pulling his arm backwards towards him with his wrist extended.

[29]He adjusts the driver's seat to a high position to provide a safer view of the track. On a type 153, as I have described, the seat is like an old cinema seat in that the part on which the driver sits can be tipped up. He sometimes puts the seat in that position and perches on the edge of it to improve his view. He also does that to stretch his legs. On occasions and for short periods he has driven the 153 from a standing position to give himself a break. Alternatively he rests his knee on the edge of the desk for comfort and to swap the leg with which he is pressing the pedal.

[30]When seated he adopts a driving position crouched forward over the controls. In the main cab of the 153 he does not drive with his back against the back of the seat though in the smaller cabin he does.

[31]He considers armrests to be a waste of time. He finds that it is not possible to operate the controls with his arms on the armrests.

[32]The Defendant put in evidence a video recording of a driver, Mr Paul Ley, driving a 153 unit between Cardiff and Swansea. During the course of his driving Mr Ley frequently took his hands away from the controls and sat with them in his lap. None of the Claimants drives in that way.

[33]The Defendant called Mr Andrew Goosey who is now a driver team manager based at Cardiff but was a driver for five years. By reference to the OTMR he has calculated for each of the Claimants the number of control movements made during a period of driving. For Mr Rogan he noted that there were 350 power movements and 270 brake movements during a journey of 1 hour 39 minutes between Llanelli and Llandrindod Wells. This was a frequency of one movement of the right hand every 17 seconds and one movement of the left hand every 20 seconds. Mr Thomas made 269 power movements and 359 brake movements during a 1 hour 19 minute journey from Carmarthen to Pembroke Dock (right hand once every 17 seconds; left hand once every 13 seconds). Mr Studholme made 320 power movements and 198 brake movements during 1 hour 46 minutes between Carmarthen and Cardiff (right hand once every 19 seconds; left hand once every 32 seconds). These figures support the Claimants' evidence that more frequent movement of the controls is required on the branch lines.

[34]With respect to his experience of the instruction given to drivers, Mr Goosey said that no emphasis was placed on the way an individual handled the controls. What was important was that he should be comfortable. He himself has had no ergonomic training.

[35]Mr Martyn Brennan is the Defendant's Driver Performance Manager based at Cardiff. He gave evidence about the way in which routes are organized. There are 55 drivers based at Carmarthen. Each day 27 drivers will be required to drive the 27 different routes operated from there. Each driver is given a "diagram" which is a print out setting out what he is to do throughout his shift. The time required to complete a diagram varies from about 5 hours 30 minutes to 10 hours 30 minutes. The maximum period during which a driver might be required to drive without a break is 4 hours 45 minutes.

[36]Mr Brennan was taken through one diagram as an example. It showed that of 9 hours 50 minutes of the shift, the driver was actually driving for about 3 hours 15 minutes. The example may not have been a good one because the train driven for the majority of the time was of a type which none of the Claimants drove. Nevertheless it is not disputed that during a shift there will be periods of time when a driver is not actually driving a train, but is a passenger or is waiting to relieve another driver. There will also be rest breaks.

[37]A rota ensures that each driver drives each route a broadly similar number of times over the year. A driver is entitled to 104 rest days each year in addition to 26 days annual leave. Sundays are also excluded from compulsory working. In practice, however, according to the Claimants, overtime was freely available and regularly taken by drivers.

[38]Mr Brennan is not and never has been a driver. Although his statement includes comments about the way in which a driver might place his hands at the controls, his evidence about this is therefore of limited value. He says that an ergonomic risk assessment of the driving cab is unnecessary because each class of unit is certified by the Vehicle Acceptance Body before being allowed into service. Certification by the Vehicle Acceptance Body would, as I understand the evidence, have taken place at the time of first manufacture of a unit of any design. I shall refer further to this when dealing with the evidence of Mr Michael Brett.

[39]Mr Brennan's evidence is that the 143 units were first used on the South Wales lines during the mid 1980s; the 142 units in about 1987 or 1988; the 150 units and 153 units in the late 1980s, and the 158 units in 1989 or 1990. All were acquired as used units from other rail areas.

[40]He was asked to consider a Railway Group Standard dated August 1995 entitled Requirements for Driving Cabs of Railway Vehicles and published by the Safety and Standards Directorate of Railtrack PLC. The requirements are expressed to apply to new vehicles and to existing vehicles when undergoing engineering change insofar as it is reasonably practicable to incorporate them. Prima facie, therefore, the requirements do not have to be achieved with respect to any of the units driven by the Claimants. The requirements, however, include matters relating to the safe working environment for drivers by reference to the furniture and controls.

[41]He was also asked to consider a risk assessment relating to drivers, which had been carried out by Catherine Tryon, a Risk and Environment Manager, in June 2007. It records that there is a risk of strain and work-related upper limb disorders, but arising from manual handling, not from driving. There is no assessment of the ergonomics of the cab. Mr Brennan said that this was an example of a risk assessment which was updated each year. He had carried them out in years before 2006. He said that he had attended a NEBOSH course but accepted that he had had no training in the assessment of the risk of upper limb disorders.

[42]His attention was drawn to the minutes of a Health and Safety meeting held on 6 th April 2005 which he and Mr Rogan, as the Carmarthen representative, both attended. Mr Rogan raised the question of modifications to cabs and to the existence of a cab environment group. Further he was asked about a later document compiled probably in late 2008 which lists actions of the Cab Environment Steering Group. By reference to those documents Mr Brennan was able to say that there has been a process of replacing the driving seats on the 142 and 143 models with better seats. The Defendant then considered whether similar improved seating should be fitted to the 150, 153 and 158 units. However, he was unable to assist with the extent to which these improvements had been carried through. These were matters for which he was not responsible at the material time. He was not aware of any ergonomic assessment of the armrests on any unit.

[43]Mr Michael Brett who is the maintenance compliance engineer at the Defendant's Canton depot gave evidence that the new seats were fitted to some 143 units because of complaints about the old pedestal seats and the fact that those old seats were no longer available. But the new seats were themselves unsatisfactory and the problem remains unresolved.

[44]He explained that the each class of unit was certified fit for service at the time of first manufacture by a Vehicle Acceptance Body comprised of engineers who would have assessed the vehicle against national standards current at the time. For the 150, 153 and 158 units, with which these cases are principally concerned, that assessment would have been carried out in the mid 1980s. There was no requirement for any subsequent assessment, or, in his understanding, for any risk assessment, in the absence of any significant engineering modification of the units. He is not personally familiar with the standards because he never has to consider them, but would do so if he were to be responsible for any significant modification of the cab. Any such modification would have to comply with standards current at the time of the modification. The Expert Ergonomic/Engineering Evidence.

[45]The Claimants relied upon the evidence of an ergonomist, Mr Stirling Hinkley, and the Defendant upon the evidence of an engineer, Mr David Jackson. Mr Hinkley prepared a report in respect of each Claimant, though he did not in those reports suggest that any distinction between the manner of driving adopted by each Claimant affected his conclusions.

[46]Mr Hinkley refers to the HSE guide "Upper limb disorders in the Workplace" published in 2002 which, he says, states that working postures can increase the risk of an upper limb disorder injury when they are awkward and/or held for prolonged periods in a static or fixed position. An awkward posture is where a part of the body is used well beyond it neutral position. When awkward postures are adopted, additional muscular effort is needed to maintain body postures as muscles are less efficient at the extremes of the joint range. The resulting friction and compression of soft tissue structures can lead to injury.

[47]He continues that his understanding is that each Claimant would have had to adopt awkward wrist positions (extension combined with ulnar/radial deviation) for prolonged periods of time (an average of around two hours). With respect to the ergonomics of the cabs he says that the arm rests are an inadequate means of support for the arms. This cannot be corrected by the limited possible adjustment of the position of the driving seat.

[48]In his evidence he said that all three Claimants demonstrated deviation of the left wrist when using the brake lever. That was to be expected because the control moves in a rotary fashion and any other position of the wrist would be unnatural. Because the power lever moves through a vertical arc it is higher above the driving desk at the midpoint than at the extremes. Accordingly the movement encourages flexion and extension of the wrist. Even when the Claimants are sitting resting their hands on the driving desk, their wrists are in an extended position.

[49]When Mr Rogan is standing with his hands over the controls his wrists are in extension. If, as he says, when sitting he rests his right hand ulnar side down on the driving desk it will be difficult for him maintain that position when operating the power lever which, as stated, rises through its arc of movement. There is likely to be ulnar and radial deviation.

[50]Further, from the HSE guidance, he says that where a task involves repeating the same fundamental movements every few seconds or using the wrists/hands/fingers intensively, for two hours consecutively, the task can be classified as repetitive. It his understanding that driving the trains required the use of the same fundamental movements every few seconds (using the brake accelerator and AWS reset control). The respite when the train is at a station amounts to inadequate rest.

[51]A job is regarded as highly repetitive where the cycle time is less than 30 seconds. By reference to the analysis of the OTMR data provided by Mr Andrew Goosey, Mr Hinkley concludes that the movements involved in driving the trains is highly repetitive within that definition.

[52]He initially expressed the view that the force required to operate the controls (particularly with respect to the AWS reset control) in combination with bent wrists and repetitive movement is "somewhat significant." Ultimately however he agreed that force was not a relevant consideration in this case.

[53]In his opinion it is possible to predict which jobs may give rise to upper limb disorders. The factors in any system of work are those set out in the HSE guide. A relevant factor in the present case is the inability to adjust the driver's seat to a comfortable position. A driver leaning forward to reach the controls is more likely to hold his wrist at an angle thereby increasing the risk of injury. Further the armrests provide no support.

[54]If he had been asked to carry out an ergonomic assessment of the job of driving these trains he would have done so by applying the approach of a two stage risk filter set out in the HSE guide which he and Mr Jackson agree should have been known to the Defendant. Applying the first stage, he would have concluded that this was a case which required a full risk assessment because of the factors of repetition and working posture. He would then have gone on to watch drivers doing the job. If he had seen a driver driving in the manner demonstrated by Mr Ley on the video, he would have had no concerns about upper limb disorders. The issue might then be whether that style is safe from a train operating perspective. If it is, the Defendant should promote it by instruction to other drivers. It should not simply be assumed that all drivers adopt Mr Ley's style.

[55]Mr Jackson inspected a 158 unit. He was unable to adjust the seat to an ideal position. Even in its most forward location he was too far away from the driving desk for comfort and had to stretch to reach the power and brake levers. On the 150 unit (which has an identical seat) he was able to adjust it to a position 4 centimetres closer to the driving desk, which he found more comfortable.

[56]He was able to adjust the seat of the 142 unit to a position even closer to the driving desk. This position was more comfortable than both the 158 and 150 units. On a 153 unit the seat in the number 1 cab could be adjusted to a position in which the controls were "slightly easier" to reach than in the 150 and 158 units but not as easy as on the 142. He does not deal separately with the number 2 cab.

[57]He found that it was not necessary to bend the wrists when operating the power and brake levers. The wrist is straight and movement is achieved by moving the hand backwards and forwards by flexing the elbow and the shoulder. Not only is there no need to bend the wrists, but it is unnatural to do so.

[58]In his report Mr Jackson describes the way in which he understands that the Claimants Mr Studholme and Mr Thomas operate the controls. The description with respect to Mr Studholme broadly corresponds with Mr Studholme's evidence. With respect to Mr Thomas, Mr Jackson says that he places each wrist palmar surface down on the edge of the driving desk and, repeatedly and continuously throughout the working day, flexes or extends his wrist without moving his arm. That does not correspond precisely with Mr Thomas's evidence. Mr Jackson gives no description of the way in which he understands Mr Rogan operated the controls.

[59]Mr Jackson agrees that known occupational risk factors associated with the development of carpal tunnel syndrome are repetitive and forcible flexion and extension of the wrist. The risk can be exacerbated if the wrist is rested against the edge of a surface.

[60]Because it is not possible to predict from first principles whether a task will give rise to upper limb disorder, Mr Jackson's opinion is that an employer can make an assessment of risk in three ways: by documentary assessment from published literature; by an ergonomic assessment, and by an epidemiological assessment of the workforce. There is no published literature which states that there is a known association between driving a train and carpal tunnel syndrome.

[61]An ergonomic assessment should consider force, frequency and posture. Here the forces involved are minimal and within safe limits. On the evidence then available to him, Mr Jackson concluded that the bake lever was operated no more frequently than once a minute. Although he accepts that on 150 and 158 units in particular the seat could not be moved sufficiently far forward so that the levers fell to hand for a driver sitting back in the seat, that is irrelevant to the risk of developing carpal tunnel syndrome. The key question is whether it is necessary to flex and extend the wrist when operating the controls. In his opinion it is not. An ergonomic assessment would identify no risk of carpal tunnel syndrome.

[62]Although it was suggested that other drivers have suffered similar injuries the evidence is that the three Claimants are the only (and certainly the first) drivers to complain of upper limb symptoms.

[63]Mr Jackson's conclusions therefore are that the forces involved in the operation of the controls are not excessive and can be applied safely. It is unnecessary to flex the wrists when operating the controls. If the wrists are not flexed, the nature of the work does not present any identifiable risk of the development of carpal tunnel syndrome. If the Claimants drove in the manner alleged, they adopted an unnatural and awkward way of operating the controls and placed themselves at increased risk of developing carpal tunnel syndrome.

[64]It should be noted that Mr Hinkley did not agree with Mr Jackson that the comfortable, and therefore natural, way to drive was with by arm and shoulder movement without significant flexion or extension of the wrists. Mr Hinkley said that he had tried operating the controls in that way and thought that a driver would not be able to maintain it for more than a few minutes.

[65]The operation of the controls involves a movement on average every 10 seconds. If a driver were to move only his arm and shoulder it is likely that he would anyway experience problems more proximally in the upper limb.

[66]Mr Hinkley says that there is a relationship between the ergonomically poor set-up of the cab and upper limb disorder. The more "sub-standard" the cab, the more likely it is that the driver will adopt a poor posture. The Claimant, Mr Rogan, describes how his knees strike the front structures beneath the driving desk. It is likely therefore that he will try to achieve a more comfortable position by reaching for the controls. When he is standing his wrists must constantly be in extension. But even when he and the other Claimants are sitting, they are holding their wrists in an extended position.

[67]The OTM data show that the job is repetitive, or highly repetitive, in that it requires a movement more frequently than once every 30 seconds (a standard definition). The act of pushing a lever away and pulling it towards a driver engage the same muscles and should be regarded as the same movement.

[68]In cross examination he agreed that the HSE defines awkward posture as when a joint is used "well beyond" its neutral position. However, "well beyond" is not itself defined. He agreed that it implies an extreme of movement but the lack of specificity in some parts of the HSE guide means that a pragmatic approach is essential. There is no accepted method of measuring the extent to which a joint moves from the neutral. It is not a matter simply of impression but of skilled observation.

[69]Not every operation of the controls gives rise to movement of the wrist to the same extent, but some of the required movements are awkward. Examples are movement through the mid-range of the power control and movement of the brake particularly to position 1.

[70]The HSE guide specifies that work be assessed by reference to a daily period of two hours but according to Mr Hinkley that period should not be taken literally. He agreed that by reference to the OTM data, it was possible to demonstrate that there are periods when the power lever is not being operated at all. The same can be said for the brake which is fully off for parts of the journey. There will be no movement of the hand when the brake is not being operated. However a pragmatic approach is required. There may be breaks during any two hour period when activities other than the repetitive acts are carried out. Whether or not those breaks amount to rest periods will depend upon whether the same muscles are being used.

[71]For example, there is a photograph (page 1283) of the Claimant Mr Rogan showing his left hand in a position on the centre of the brake which Mr Hinkley considers extended and awkward. Mr Hinkley would not be happy with that position. If he were advising the Defendant he would want to know for how long Mr Rogan had had his hand in that position. If it had been for too long he would advise redesigning of the cab or education of the workforce to report symptoms.

[72]Mr Hinkley's opinion is that if the working day for the Claimants was of only two hours duration, it would not give him cause for concern. He thinks that repetitive movement for only two hours a day, even when they are consecutive hours, is safe, provided that there is rest for the remainder of the day.

[73]He considers that temperature in this case is a secondary concern.

[74]In re-examination he said that repetition and working posture are separate factors. A repeated action may not be awkward but movements which are not repetitive may be awkward. Movement of the brake, because of the rotational element, gives scope for ulnar and radial deviation. On the power lever there is scope for extension and flexion.

[75]If he had been asked to advise the Defendants Mr Hinkley would have advised that the seats be improved to permit better adjustment, that they be fitted with armrests which support the arms during movement of the levers and that the drivers be trained about the risks of upper limb disorder and how to avoid it.

[76]Mr Jackson supplemented his report in his evidence in chief. At inspection he said he had attempted to operate the brake lever in the way in which Mr Studholme describes in his Particulars of Claim, by resting the wrist on the edge of the console and employing a rocking flexion extension of the wrist. It was possible for a limited range of movement but he could not operate the lever through the whole range of movement in that way. Mr Studholme had given a slightly different description in his evidence involving a flicking movement to initiate the first movement from release to step 1 and a pushing movement for the remainder of the travel. Mr Jackson said that Mr Studholme demonstrated a starting position with his wrist angled downwards with a fair degree of flexion and the elbow raised (though I should note that I did not recall the raised elbow as part of the demonstration). Mr Jackson thought that the starting position with the highly flexed wrist was not a good posture but that the pushing with a straight wrist seemed to be perfectly acceptable.

[77]Mr Studholme demonstrated movement of the power lever with his finger which would involve no wrist movement.

[78]Mr Jackson did not accept that the wrist has to deviate as the brake handle is pushed forward. The purpose of the ball on the handle is to allow a loose grip which means that the hand does not have to follow the movement of the handle. The same applies to the power lever.

[79]He had watched the video evidence which shows Mr Ley bringing the train to a halt at a station. In 230 seconds the power lever was operated 15 times, equating to once every 15 seconds or 4 times per minute. The brake lever was operated 25 times equating to once every 9 seconds or a little over 6 times a minute. The OTMR data generally show less frequent use of the levers than this section of the video evidence. (The significance of this evidence is that Mr Hinkley had not been critical of Mr Ley's driving style as shown on the video, though perhaps Mr Hinkly was dealing with the mainline driving rather than that part which showed the train coming into a station.)

[80]With respect to rest breaks it is necessary to take account of both formal breaks and the naturally occurring breaks when a driver, though still at the workplace, is not repeating the same movements. On a train journey there are regular station stops during which there is no need for a driver to operate the levers or to keep hands on the controls. There will inevitably be times in the journey when there is no need to operate the controls.

[81]The HSE guide at paragraph 47 recommends two approaches to identifying problems in the workplace; firstly to look for signs of problems or symptoms amongst the workforce and secondly to observe the work tasks to see if risk factors for upper limb disorders (ULDs) are present by following the risk filter. The risk filter relates to repeating the same movement every few seconds. Mr Jackson would interpret that to mean less than 10 seconds. There are clearly times when levers are operated repeatedly within a few seconds but that is not repeated over the whole journey. It is not continuous over an entire 2 hour period.

[82]In cross examination Mr Jackson agreed that he is not an ergonomist (although ergonomics was part of his degree course) and has never carried out an ergonomic assessment.

[83]The flurry of activity seen on the video when the train was pulling into the station is likely to be repeated at every station stop but is not typical. He agrees that if those rates were maintained, the movements would be classified as repetitive on a risk assessment because they are more frequent than the 1 in 30 second standard, which he accepts is a recognized guide. But on average there is more activity shown in that section of the video than on the journeys recorded on the OTM.

[84]He accepts that frequency of operation should not be viewed in isolation. Other factors are force and posture, and although force can be disregarded some of the wrist postures in the demonstration by the Claimants were awkward. Two examples are Mr Thomas's use of the power lever which he moves with his wrist in a flexed position when pulling it back, and Mr Studholme's initiation of movement of the brake. It is a matter of degree but those could be regarded as sufficiently extreme from neutral to be unnatural.

[85]When Mr Rogan is standing he could operate the levers without moving from a neutral position by holding the balls on top of the levers. It is a matter of choice.

[86]He agrees that there was a difference between the ways in which Mr Rogan operated the power lever when standing and sitting. When standing his right hand is in a potentially awkward position. There is the potential for him to put his left hand in an awkward position on the brake when standing.

[87]In the photograph at page 1282 (which shows Mr Studholme's driving position) Mr Jackson agrees that his left hand appears well deviated from neutral. He disagrees that the photograph at page 1283 (Mr Rogan sitting) shows any great divergence from neutral in either hand.

[88]Photographs at page 1315 show Mr Jackson demonstrating use of the controls. His right hand on the power lever is in the "handshake" position adopted by Mr Rogan. Mr Jackson accepts that at notches 3 and 4, when the lever will be at its highest point above the driving desk, if the hand is rigidly locked on to the lever, then as the lever is moved there will be some deviation, but it is possible to accommodate that by movement of the elbow and shoulder. His opinion is that deviation of the right wrist is a possible consequence, but not an inevitable consequence, of operating the power lever with the hand in the handshake position.

[89]If the lever were to be moved by flicking the wrist there would be flexion/extension movement but not if by flicking only the fingers. If a driver operates the power lever with his palm down and the heel of his hand kept on the console there will be more divergence at the wrist joint and if the starting point is with a divergent wrist, greater divergence may occur during movement. Similarly with respect to the brake, ulnar and radial deviation which could be classified as awkward may occur.

[90]He also accepts that a driver may maintain a posture between lever movements in which his hands are divergent from neutral. Mr Rogan, when standing, in particular might adopt such a posture. But generally people adopt positions which are comfortable and an awkward position becomes uncomfortable.

[91]He agrees that if a risk assessment were carried out, it might be said that there is potential for a driver to adopt an awkward posture, but that could be said for anyone grasping a lever or control. The operation of any levers might have the potential for awkward movement, but that is not the same as saying that there is a foreseeable or identifiable risk of ULD. People who are carrying out hand movement do not do them in a way which is uncomfortable.

[92]Mr Jackson accepts that an ergonomist evaluating risk to drivers might take account of, say, 3 or 4 hours of use of the levers during a day's work and that in addition there are operations of the AWS button and of the horn, which potentially require movement of the wrist. He agreed that an ergonomist seeing the potentially harmful wrist movements demonstrated by the claimants would go on and carry out a full risk assessment.

[93]He further agreed that the risk assessment for drivers which the Defendant did carry out did not consider ULDs and that there is no document which suggests that the Defendant ever turned its mind to the risks attached to the process of driving. It was surprising that no risk assessment had been carried out in 2005 by which time the Claimants had all complained of symptoms in the upper limb. By that date three out of fifty five of the pool of drivers based at Carmarthen had complained. At just over 5% of the workforce that is a significant minority.

[94]He also agreed that there was no document to suggest that the Defendants ever provided training in ULDs for any manager or driver.

[95]He further agreed that if the Defendant ever became aware of the Claimants' manner of driving, it ought to have carried out an assessment, and that as an employer the Defendant ought to have put itself in a position to know how its drivers were driving, and if necessary to take steps to eradicate bad driving styles. He qualified that to this extent: he does not know how unusual the style of driving adopted by these Claimants is; it does appear to him to be unnatural in that the movements are unnecessarily awkward. But he agreed that as a general statement, an employer should train its drivers to drive in a way which is safe for them. Here no doubt drivers adopt a variety of hand positions throughout the journey, but they have not been told to rest their hands between movements as Mr Paul Ley does. They have been left to choose their own way to grasp the levers.

[96]He agreed that there were elements of the Claimants' driving style which are less than ideal. From an ergonomic perspective it seemed to be the case that the manner in which they drove gave rise to an increased risk of carpal tunnel syndrome (CTS).

[97]On inspection of the trains Mr Jackson found that the armrests were non-existent or too short but he regards the issues with seats and armrests as related only to comfort. If a driver cannot adjust the seat far enough forward he has to lean forward and the job becomes more fatiguing, but wrist posture is not affected. The absence of a supporting armrest has the consequence that the driver is supporting the weight of his arm with his shoulder. That becomes more uncomfortable but there is no connection between fatigue of the arms and posture divergence. He agreed, however, that armrests may be relevant to a driver's health, rather than merely his comfort, if they put his arm into a correct position. The Expert Medical Evidence.

[98]Dr Pritchard and Dr Williams, both consultant rheumatolgists, respectively gave evidence for the Claimants and the Defendant.

[99]In June 2006 Dr Pritchard prepared a report on Mr Studholme. He noted that he would operate the levers by holding the knobs on top with the wrist resting palmar surface down on the edge of the driving desk, pulling and pushing the levers with an extension/flexion movement of the wrists. There was no support from the armrests.

[100]Mr Studholme had had low back pain in 2003. Minor lower back degenerative changes were noted. He had had some neck pain (described as "wry neck" by the orthopaedic surgeon who subsequently operated on his carpal tunnel) in 2004. A small disc protrusion at C5/6 and degeneration at C6/7 were noted. Although the radiologist reported that there was "some possible compression of the left sided nerve roots at this level" a neurosurgeon noted no neurological condition in the neck. Dr Pritchard does not regard the protrusion as related to the forearm and hand symptoms.

[101]In about 2004 Mr Studholme developed pins and needles in the left hand which deteriorated until he was suffering extreme pain throughout the left forearm, aggravated by use. The Defendant's occupational health physician diagnosed carpal tunnel syndrome in September 2005 and Mr Studholme saw an orthopaedic surgeon in October 2005. He advised nerve conduction tests but these were not carried out. Decompressive surgery was carried out in January 2006 which resulted in immediate relief of symptoms. He returned to work in April 2006. When seen by Dr Pritchard he was fit and well.

[102]Dr Pritchard concluded that the diagnosis of CTS had been correct and that it had been caused by Mr Studholme's work. His reasoning was that the risk of CTS increases with age. Other factors are hypothyroidism, diabetes, previous injury or arthritis, obesity and working conditions in which there is repeated use of the wrist so that it is held in prolonged flexion or extension. CTS is more common in women than men by a ratio of 5:1. Apart from work, obesity is the only relevant factor for Mr Studholme.

[103]Dr Pritchard's opinion is that work is the cause of the CTS. It would be exceptional for CTS to occur solely in the left non-dominant hand of a man still not aged forty. The act of driving the train by resting his wrists on the edge of the driving desk, thus putting pressure on the carpal tunnel, and extending and flexing the joint is the obvious explanation. An angle of 60 degrees of extension of the wrist significantly raises pressure within the carpal tunnel and it is this pressure, sustained over time, which damages the median nerve and leads to symptoms.

[104]Dr Williams who reported for the Defendant examined Mr Studholme on 17 th March 2008. He described the way in which Mr Studholme drives the train as follows: the wrist is held palm downwards on to the knob of the lever, slightly extended but in neutral or slightly flexed at the furthest point of movement. The lever is pushed forward or retracted with modest finger and palm pressure.

[105]He traces the origin of Mr Studholme's symptoms to painful neck cramps in about 2003 with intermittent symptoms of pain radiating into the left shoulder and down the left arm. He also felt numbness in the left arm which caused sleep disturbance. After about 18 months of these symptoms they ceased but were replaced by intense discomfort to the left forearm and hand.

[106]Mr Studholme was off work for 7 months in 2005. According to Dr Williams he said that he experienced an improvement in left arm and hand symptoms after about 5 months off work and before the decompressive surgery. That is not Dr Pritchard's understanding.

[107]Dr Williams concludes that the cause of Mr Studholme's left arm symptoms was the disc protrusion at C5/6. Had the nerve conduction tests been carried out CTS would have been eliminated. CTS, he believes, has not been proven to be a work related condition. Further it would not explain pain in the upper arm.

[108]On 20 th May 2008 Dr Pritchard reported again. By that time he noted that Mr Studholme had been experiencing symptoms of pain, aching and muscle cramp in his right arm for about 6 months. (He had therefore been experiencing them before he was examined by Dr Williams.) Although Mr Studholme described the symptoms as the same as those he had experienced in the left arm, Dr Prichard found no evidence of carpal tunnel compression in either arm. He concluded that the findings were in keeping with chronic compartment syndrome (CCS) of the right forearm. He also thought that that condition had been underlying the CTS in the left arm. It would explain the upper arm pain which, he agrees, is not explicable by CTS. Decompressive surgery had successfully treated the CTS and minimal symptoms were by then present in the left arm.

[109]On 20 th August 2008 Dr Pritchard carried out pressure testing of the muscle compartment of the right forearm and found increased pressure at rest and after exercise. Further, pressure did not immediately drop when exercise ceased. These tests in Dr Pritchard's opinion confirm the diagnosis of CCS.

[110]Dr Pritchard describes CCS as a condition caused by over use of muscles. Muscles in the arms and legs are arranged in groups known as compartments which are separated from each other by fibrous bands. In the forearm there are two compartments, one containing the extensor muscles of the wrist and fingers, and the other the flexors. CCS primarily affects the extensor compartment which maintains the posture of the hand and wrist while working and gripping. Fatigue can be caused by prolonged sustained action or rapid repetitive use over a long period of time.

[111]CCS is the name given to the condition in which the pressure inside the compartment is pathologically increased affecting the function of the structures inside it. These include the muscles but may also include the nerves and blood vessels. The pressure is sufficient to inhibit normal function and to cause significant pain. It is rarely sufficient to cause permanent muscle damage.

[112]After exertion the pressure remains raised and returns to resting levels only slowly over several minutes. The condition is also referred to as exertional compartment syndrome.

[113]The process starts with repetitive or sustained muscle overuse without adequate rest breaks. This leads to fatigue and tissue damage, hypertrophy and inflammation. In the early stages it is a common and reversible complaint but cumulative exposure causes chronically increased pressure on the nerves which in turn, in a manner which is not fully understood, affects the blood supply to the muscle so that the muscles, working under increasingly ischaemic conditions, become swollen and painful. Stress is thought to be a factor and that also fits with Mr Studholme's history. The condition is well recognized in the legs of long distance runners where it is called shin splints.

[114]On 5 th December 2008 Dr Williams provided his second report. By then Mr Studholme was saying that over the preceding 2 or 3 months he was experiencing in his left arm symptoms which were almost exactly those which he had experienced before the decompressive surgery.

[115]He was also complaining of stiffness and soreness in the muscles of the right forearm, hand and fingers which might last for 2 or 3 days and were troublesome at night. They were not however impairing his ability to drive. Dr Williams reiterates his opinion that the left arm symptoms were caused by the disc pathology. Alternatively if CTS had been present it was constitutional, not work related.

[116]Dr Williams says that compartment syndrome occurs when pressure inside a facial compartment increases to such an extent that the local blood flow is compromised resulting in tissue ischaemia. It usually presents acutely after fractures, muscle rupture or vascular injury, and generally needs immediate surgery. The most common sites are in the leg. It presents very rarely in the forearm. He concedes that it was described in 2001 in the forearm of an athlete undertaking significant upper limb weight training. Compartment syndrome is therefore an acute rather than a chronic condition.

[117]Such findings as an increase in pressure in a compartment during exercise are not uncommon. The pressure testing which Dr Pritchard carried out could not be repeated because it is a painful procedure and Mr Studholme was understandably reluctant to undergo it again. In any event it is a test of limited value because the testing process itself can cause an increase in compartment pressure. It has never been accepted by a court as evidence of CCS in the upper limbs. No general medical opinion supports it as useful. The views expressed by Dr Pritchard on CCS in the upper limbs have not been accepted generally by other rheumatologists or occupational physicians. In Dr Williams's opinion Dr Pritchard's views are unsound.

[118]Dr Pritchard seeks to distinguish between acute compartment syndrome (caused by bleeding in the compartment as described by Dr Williams) and chronic compartment syndrome (caused by muscle overuse, a good example of which is shin splints). He concedes that CCS has not been recognized as occurring more than very occasionally in the arms and not at all as a consequence of prolonged repetitive work. However his opinion is that because of the similarities between upper and lower limbs, CCS is a logical explanation for work related upper limb disorders where the symptoms are appropriate. He and those in his department have investigated over 150 such cases and have treated 50 surgically. He cites a paper to which he was a contributor in Rheumatology published in November 2005. It is not force or frequency of movement which are the causes of CCS in this case, but prolonged immobility and the unsupported forearm, together with extension of the wrist.

[119]He does not accept that the only literature on CCS in the upper limbs relates to a weightlifter, nor that he is alone in his views. He says that the condition is attracting an increasing level of interest among orthopaedic and hand surgeons. It is a condition which has been known for centuries under different names but is under recognized.

[120]Dr Pritchard provided a report on Mr Thomas in April 2006. He recorded that Mr Thomas's general practitioner had referred him for orthopaedic opinion in October 2002 because of paraesthesia in the right forearm. He was not seen until January 2004 when he was complaining of numbness and tingling in the right hand and pain and stiffness in the right shoulder. He was noted to have calcific tendonitis in the right shoulder which was treated with anti-inflammatory medication. No abnormality was seen in the right forearm or hand.

[121]When he was reviewed in May 2004 the shoulder pain had settled but his hand pain was worse. He also had symptoms in the left hand. Nerve conduction studies showed CTS in both arms and decompressive surgery was recommended. Mr Thomas underwent decompression of the right arm on 30 th August 2005. At the time of the report Mr Thomas was awaiting surgery on the left hand which was still symptomatic. He had returned to work and was working normally.

[122]Dr Pritchard's understanding of the way in which Mr Thomas drives is that he would hold the knob on the top of each lever with his wrist resting palmar surface down on the edge of the driving desk. Armrests provided no support. He would move the levers towards him by wrist extension without movement of the arm.

[123]Mr Thomas had no obvious constitutional risk factors for CTS and in Dr Prichard's opinion his work was the cause.

[124]Mr Thomas underwent decompressive surgery on his left arm in September 2006. The results were good. After recuperation he returned to work.

[125]Dr Williams saw Mr Thomas in March 2008. He agreed with the diagnosis of bilateral CTS but disagreed that it had been caused by Mr Thomas's work. His opinion is that CTS should not be a prescribed industrial disease. He suggested that it was of constitutional origin. Mr Thomas's work at most aggravated the symptoms.

[126]Although initially Mr Thomas returned to work without problems, in 2008 symptoms returned in both arms. He was seen again by Dr Pritchard in August 2008. He was then complaining of pins and needles in his left forearm, some numbness and pain around his left elbow, and some pins and needles in the right arm. (These symptoms, Dr Pritchard then recorded, differed from those which Mr Thomas had experienced before the decompressive surgery. In a later memorandum dated April 2009, however, he agreed that the symptoms were similar.) Mr Thomas found that he could achieve some relief by taking his hands off the controls at regular intervals.

[127]Dr Pritchard undertook testing of the pressure in the muscle compartments of his left arm which is the worse. They show increased pressure which Dr Prichard says supports a diagnosis of CCS. It is not possible to say for how long the CCS has been present. It may have been present at the same time as the CTS but overshadowed by it. Both CTS and CCS are in Dr Pritchard's opinion work related.

[128]Dr Williams saw Mr Thomas again in October 2008. He records that the symptoms which Mr Thomas began to experience in 2008 were very similar to those which he suffered in 2004. He also says in his report that "within but weeks of the successful surgery Mr Thomas became aware of a return of symptoms to both hand – the right more than the left." However if the symptoms began in 2008, that was over 2 years after the surgery on the right arm and over a year after the surgery on the left arm. In his report he repeats his opinion about the cause of the CTS and rejects the diagnosis of CCS for the reasons already given.

[129]Dr Pritchard provided a report on Mr Rogan in July 2006. He recorded that Mr Rogan had been involved in a road traffic accident in 1998 when he had sustained a whiplash injury, following which he experienced pins and needles and weakness in his right arm for several weeks. In October 2002 he complained of back pain and persistent pain and numbness in the right arm for six months. Cervical spine investigation was normal.

[130]Dr Pritchard records that Mr Rogan began to experience pins and needles in his hands (the right hand worse than the left) in 2003. He recorded that Mr Rogan drove with his wrists resting on the edge of the control desk. He would find by the end of the day his wrists and hands were aching and burning and the symptoms did not settle for several hours. His general practitioner recorded in March 2004 the he was getting numbness and tingling in his right hand. An MRI of his cervical spine showed osteophytes at C3/4 but no nerve root or spinal canal compression. In June 2004 he was experiencing intermittent shooting pain down the middle finger and up the forearm with tenderness in the middle finger joints. He had pain over the back of the right hand at night which was disturbing his sleep. In September 2004 nerve conduction studies revealed marked carpal tunnel compression on the right and slight compression on the left.

[131]An orthopaedic surgeon to whom he was referred thought that the symptoms were not typical of CTS but that the nerve studies were clear and surgery was indicated. Mr Rogan underwent decompressive surgery on his right carpal tunnel in November 2004 and on the left carpal tunnel in February 2005.

[132]He began to experience symptoms in the right hand within about six weeks (or possibly six months) of the decompressive surgery. By October 2005 right wrist symptoms were the same as those he was experiencing before the decompressive surgery and he was referred to a neurophysiologist who noted that Mr Rogan had very little trouble when driving the 175 unit or when driving a 153 unit when standing, but when he was driving an older unit seated and with his wrists resting on the edge of the control desk, symptoms returned.

[133]Despite these symptoms Mr Rogan was at the time of Dr Pritchard's report working normally.

[134]In Mr Rogan's case there were no known risk factors for CTS and Dr Pritchard concluded that it was work related. The right wrist discomfort of which he was complaining was not uncommon after decompressive surgery. There was no evidence of a recurrence of the carpal tunnel compression but plainly resting his wrists on the edge of the control desk was to be avoided.

[135]Dr Williams saw Mr Rogan in March 2008. He was concerned to explain why Mr Rogan had identical symptoms in the right hand despite decompressive surgery which had apparently been successful. His answer is that the right arm problem is related to the road traffic accident in 1998 rather than to his work. An MRI scan carried out in February 2004 did not show the C5/6 cervical spine. Dr Williams believed that it might have shown a disc pressing on a nerve although by the time of his report in March 2008 Mr Rogan had no clinical neuropathy.

[136]Dr Williams's opinion therefore is that the diagnosis of CTS, supported by nerve conduction testing, was correct, at least for the right wrist. However he disagrees that it is work related. The CTS in the right wrist (and in the left wrist if the diagnosis was accurate) have been dealt with by the decompressive surgery. The current symptoms in the right wrist are not attributable to CTS. They are more likely to be a recurrence of the symptoms he was experiencing in 1998 and subsequent years and caused by a problem at C5/6.

[137]Dr Pritchard saw Mr Rogan again in May 2008. He concluded that the continuing symptoms were attributable to muscle overuse leading to CCS, possibly associated also with some residual sensitivity of the right median nerve. Dr Pritchard believed that the problem was the need to rest the wrist on the edge of the control desk when driving. That had two effects. The first was that the wrist was kept in a state of constant extension while he worked the accelerator lever, with consequent muscle fatigue leading to CCS. The second was that there was pressure on the median nerve which no longer had the protective effect of the carpal ligament.

[138]CCS would account for the neurological symptoms, muscle aching, fatigue and relationship to the driving position. The driving position caused the CTS and was now causing the CCS.

[139]On 13 th August 2008 pressure testing of the right arm was carried out. It showed elevated pressure in the extensor muscle compartment.

[140]By the time Mr Rogan was seen again by Dr Williams in November 2008 he had undergone a second decompressive operation on his right wrist. That was a procedure for which Dr Pritchard could see no indication. Dr Pritchard appears to have been correct. Mr Rogan was continuing to experience symptoms in his right hand. Dr Williams rejects the diagnosis of CCS. He says that Mr Rogan is now driving only the newer trains, the 175s, which require no use of the right hand on the accelerator. Therefore symptoms in the right hand cannot be work related. However Dr Williams also speaks of Mr Rogan standing to drive these trains. Mr Rogan of course stands when driving the 153s. It may be that Dr Williams has misunderstood. Dr Williams also was under the misapprehension that the driving cabs of all trains were perfectly satisfactory. He repeats his diagnosis of a neuritis related to pathology at C5/6.

[141]Dr Pritchard in a report in January 2009 rejects that diagnosis. There is normal hand and arm function with normal reflexes. That would not be the case if the problem was a C5/6 neuropathy. Symptoms would not be related to hand activity.

[142]In evidence Dr Pritchard agreed that CCS is better known in the leg, in particular as shin splints in sports medicine, though it has been identified in the forearms of motocross riders. He agreed that it has not been identified as a work related condition.

[143]But it is a muscle fatigue complaint and posture is relevant to muscle fatigue. A typist creates fatigue in the arm muscles by the posture in which the hands are held as much as by the act of typing. So in this case the Claimants had no support for the forearm other than by resting the wrist on the edge of the driving desk. The weight of the arm is being taken on the wrist while the Claimant is also using the hands to operate the controls.

[144]Dr Pritchard's opinion is not devoid of support in the medical literature. He relies upon an article "Exertional Compartment Syndrome of the Upper Extremity" by Botte and others in August 1998. the authors say that the syndrome (which they say is also called Chronic Compartment Syndrome), although "noted to occur in the forearm ….or hand ….is more commonly reported in the lower extremity and, occasionally, in the trunk." Dr Prichard, it should be said, has never encountered it in the trunk.

[145]They continue; "In exertional compartment syndrome however the exact cause is often not clear and pathogenesis remains less well understood. Most information has been obtained from patients with exertional compartment syndrome of the lower extremities. The condition is obviously exercise or activity induced. The specific activity is believed to cause a disturbance of the microvascular flow because of elevated intramuscular pressure leading to tissue ischaemia, depletion of high-energy phosphate stores and extreme cellular acidosis. The result is a condition of intermittent and reversible elevation of intra-compartmental pressures."

[146]They describe a similar pressure testing procedure for diagnosis as that carried out by Dr Prichard. They do however say that the stress test should duplicate the activity which usually provokes symptoms. The patient performs the repetitive activity or exercise until symptoms are produced. As I understand it Dr Pritchard did not try to simulate the activities of driving a train when testing the Claimants. He employed a defined exertional exercise (a strenuous two minute gripping exercise) so that symptoms which may take a variable length of time to develop during work, can be accelerated to a realistic time scale.

[147]Dr Williams produced a letter in Rheumatology for 2001 from Jawed and others in which they report the CCS experienced by the weight lifter to whom reference has already been made. They say that CCS is extremely rare in the forearm.

[148]Dr Pritchard said that CTS is not always but can be work related. Constitutional factors which predispose to CTS are well known: age and gender being the most relevant. The chances of the Claimants individually developing CTS vary between about 45 and 70 per 100,000. The chances of all three Claimants developing CTS constitutionally are so small that it is highly unlikely.

[149]The fact that each of the Claimants drove for several years before developing CTS is not a reason to reject work as the cause. The length of time it takes an individual to develop CTS is highly variable. Muscle fatigue is cumulative. There was a change in driving instructions and that may have brought about a change in an individual's driving style, even imperceptibly. The Claimants do not all operate the levers in the same way and it one Claimant were to be filmed several times throughout the length of a journey it is unlikely that he would drive it in exactly the same way each time.

[150]But the change in driving instructions in 2004 required a driver to move a lever step by step rather than by pulling or pushing it fully to its desired position so that the hand might be in contact with the lever for far longer. For example, if a driver operating the power lever is waiting for the train to achieve a certain speed before moving it to the next position it is unlikely that he will let go of the lever between notches. His hand will therefore be held in some fixed posture on the lever. Dr Pritchard's impression, therefore, is that a driver is holding his hand in that posture for longer. But he conceded that this was essentially speculation. His real point is that precise analysis of the driving style of each is probably not possible or useful.

[151]The balance of probabilities is that each Claimant's working practice is the cause of his complaint because there are no other candidates. Further CCS does not occur spontaneously.

[152]CTS is a prescribed disease. Although its description includes a reference to the use of vibrating power tools it also includes "a job involving repeated palmar flexion and dorsiflexion of the wrist for at least twenty hours per week for a period or periods amounting in aggregation to at least twelve months in the twenty four months previous to the onset of symptoms where repeated means once or more often in every thirty seconds."

[153]Dr Pritchard believes that the work of driving these trains fits that description; Dr Williams that it does not.

[154]Dr Pritchard is very much in favour of armrests. They would solve a great number of work related problems. Resting the arms correctly takes strain off the muscles and permits free use of the hands. He proposes an armrest which extends over the driving desk to a small degree permitting access to the levers with the wrist straight and the arm extended.

[155]Dr Williams in evidence said that it is only in about 10% of cases of CTS that a definite cause will be ascertained. There are many constitutional factors. Obesity is one and all the Claimants are, he says, overweight.

[156]He relies upon an article by Barton and others "Occupational Causes of Disorders of the Upper Limb" in the British Medical Journal of February 1992 in which the authors say of CTS that "the evidence regarding its association with occupation is mixed … There may be a few cases in which a certain activity at work has brought on symptoms of the syndrome but .. the vast majority of case are not caused by work."

[157]He also relies upon an article, Work-Related Disorders of the Upper Limb by Palmer and Cooper dated October 2006, for the proposition that it is forceful gripping which is relevant. That article however does not dispute that there is a link between CTS and work. It states that the strongest association in case-control studies has been with the use of vibratory tools and with activities that frequently flex or extend the wrist.

[158]Dr Williams's position is that posture alone is present in this case and that frequency of movement vibration and force are all lacking.

[159]Finally he refers to the article Carpal Tunnel Syndrome by Bland in the BMJ for August 2007 which states that genetic predisposition is the single strongest factor in predicting the development of CTS and that if overuse of the hand does contribute, it may be a relatively minor factor.

[160]In Dr Williams's opinion work may aggravate symptoms but not cause CTS.

[161]As to compartment syndrome, Dr Williams says that in CCS it is proposed that swelling occurs within the muscle compartment, which causes a lack of oxygen which in turn creates a build up of lactic acid. But that will occur only when there is forcible repeated use of the muscle which is driven beyond its natural capacity. That may occur in the lower limb. But in the upper limb there are few case reports of a similar phenomenon. It is a very uncommon condition.

[162]He says of Dr Pritchard that in South Wales he has about 200 patients in whom he has diagnosed this condition. That is by far the largest number of patients in one area in the world. He says that Dr Pritchard has an obsession with the condition; that he is a publicist for it and an enthusiast. He plainly questions Dr Pritchard's judgement if not his bona fides.

[163]Dr Williams says that each of the Claimants told him that their symptoms were occurring not only at work but in bed at night, waking them. Symptoms of CCS should not come on at rest. It is a condition which comes on during activity. Further, they said that exercise by moving their hands around, made things better.

[164]The pressure tests conducted by Pritchard have to be taken in their clinical context. The test itself requires a fair amount of experience to undertake. It has variables. Pushing a needle into the arm causes discomfort. All three Claimants had refused to have the test repeated by Dr Williams because it was painful.

[165]Dr Williams agreed however that Dr Pritchard is experienced at administering the pressure test. What troubles him is that the tests have never been repeated. "No one has stood behind Dr Pritchard and seen that he is not making an error in testing." He agreed that if the tests have been properly carried out, these Claimants have abnormal extensor muscle compartments. But it would be astonishing for such a rare condition to appear in these three Carmarthen train drivers at the same time.

[166]He agreed that damage can be done by repeated work and that individuals differ. But generally he would have expected the onset of CTS and CCS to be within a few months of beginning work. In the case of the Claimants symptoms were not experienced until they had been driving trains for about 4 years in the cases of Mr Rogan and Mr Thomas and very much longer in the case of Mr Studholme.

[167]He agreed that he had never carried out pressure testing of a muscle compartment in the forearm but that was because he, in common with almost all other physicians, had never clinically diagnosed CCS of the upper limb. He does not accept that any of the Claimants has CCS and regards the tests as doubtful.

[168]Dealing with the Claimants individually Dr Williams said that Mr Thomas did have CTS, proved by the nerve conduction studies.

[169]Mr Studholme did not have CTS at all. His symptoms were attributable to nerve root entrapment at C5/6 and C6/7. The orthopaedic surgeon who carried out the decompressive surgery on Mr Studholme had asked for a nerve conduction study but Mr Studholme had declined. Accordingly the surgeon wrote to his general practitioner saying that CTS was not established, but that the decompressive procedure was minor. This letter was to cover himself. A neurosurgeon had found no problems with the neck. The decompressive surgery might have sorted out the problem. If not, the surgeon would be able to say that he had advised nerve conduction studies and that the diagnosis had not been established.

[170]The fact that symptoms were improved after the decompressive surgery was of no relevance. Mr Studholme was improving before the surgery anyway. That is why he improved after it. That is also why Mr Studholme did not have neck symptoms when Dr Williams examined him. Symptoms from a nerve root entrapment occur only when the nerve is swollen.

[171]The C5/6 nerve enervates the arm to the thumb and middle fingers. Mr Studholme had pain and tingling of the whole arm, not only to the fingers as would be the case in CTS.

[172]The orthopaedic surgeon's diagnosis of wry neck is of no relevance. It is a lay term. It is used to mean any muscle spasm which pulls the neck to one side. Such a muscle spasm can be caused by any painful condition including a disc problem.

[173]Mr Rogan had nerve conduction studies which, together with his clinical symptoms, proved he had CTS of his right wrist. Surgery cured the problem. It is reasonable to assume that he had CTS of the left wrist also. The symptoms continued after decompressive surgery when the carpal tunnel was normal. So CTS was not responsible for those symptoms. But he had had a serious whiplash injury which had caused right arm symptoms including lack of power. That was a much more likely cause of his symptoms.

[174]Although both Mr Thomas and Mr Rogan did develop CTS it was constitutional and not work related. Work exacerbates but does not cause the symptoms. They would have had the symptoms anyway whatever they were doing.

[175]Dr Williams agreed however that for someone who is genetically predisposed to CTS it is possible that his work would be a precipitant. He hoped that the working environment in every workplace should be such as to avoid an employee who is predisposed to CTS in fact developing it. But Mr Thomas and Mr Rogan were going to develop it anyway. He cannot say when. That is a question which medical science cannot answer.

[176]Dr Pritchard's opinion with respect to Dr Williams's views is as follows. With respect to Mr Studholme, wry neck is a condition where the sterno-mastoid muscle goes into spasm. The symptoms are quite different from a nerve compression. The patient would have some discomfort but there would be no neurological signs. In Mr Studholme's case no nerve root compression was picked up at the time. If he had had a prolapsed disc he would have had pain down the arm and neurological changes. His reflexes would have been reduced.

[177]With respect to Mr Rogan Dr Williams is attributing his problems to a road accident in 1998. Whiplash injury is common. It does not generally damage a disc but the patient will get soft tissue injury in the neck and arm which will last for a period of time but gradually fade. That is what happened in Mr Rogan's case. Findings of Fact.

[178]It will be apparent that a precise and consistent description of the way in which each Claimant held and moved his hands when driving a train is not easy to extract from the evidence. That is not surprising. The description will often depend upon the questions asked and the questions will depend upon what the questioner thinks important. For example, Dr Pritchard believes that resting the wrists on the edge of the driving desk is important. He elicited from each of the Claimants that that is what he did. Dr Williams does not appear to have elicited that.

[179]Further, as Dr Pritchard suggested, the same Claimant driving the same route in the same unit might not be expected to adopt precisely the same posture or make precisely the same hand movements on each occasion.

[180]It is also difficult if not impossible to determine with precision for precisely how long during each working day any Claimant was engaged in the act of driving. A close analysis of the driver's diagram for each route would enable a calculation to be made of the times during which a driver is driving, travelling as a passenger, waiting for a train and on formal rest breaks. It cannot tell us for how long he is on an informal break such as waiting for a signal or stationary at a platform. Mr Pretsell submits that the diagrams show that for no period was a Claimant driving for more than 2 hours.

[181]Mr O'Leary disagrees that that inference can be drawn from the diagrams. They refer to routes, not individual drivers. The routes have changed over the years. In any event the submission does not accord with the evidence of Mr Brennan who said that a driver might be required to drive without a break for as long as 4 hours 45 minutes. Depending on the route, turn-around times could be very short indeed. A driver might walk from one train to another and carry on immediately. In such cases it is incorrect to regard the journeys separately.

[182]The OTM data analysed for the purpose of identifying the frequency of movement of the controls involved journeys of about 1 hour 40 and 1 hour 45 minutes. No evidence was given about how those journeys were selected but it would have been sensible to select a short journey for that purpose. Precision is not possible but in general terms I am satisfied that the Claimants did drive for periods as long as 2 hours.

[183]All the Claimants appeared to me to be honest witnesses. Mr Rogan in particular was an impressive witness. I am satisfied that each of the Claimants attempted to give as accurate a description of his manner of driving as he could.

[184]Mr Pretsell for the Defendant in his closing submissions analyses the evidence of each Claimant and submits that none ever held his wrist in a position which could be regarded as "well beyond" the neutral position, at least for any significant period of time. He suggests that Mr Thomas, in an unguarded moment, demonstrated movement of his right arm without bending the wrist, contrary to a demonstration he had given earlier in his evidence. For the reasons I have given I reject any suggestion of duplicity by Mr Thomas. But Mr Pretsell's submission generally is difficult to reconcile with the evidence of Mr Jackson who thought that the manner of driving demonstrated by the Claimants (or more accurately the different manners of driving demonstrated) did involve what the HSE guide would define as awkward postures.

[185]I am satisfied that the awkward postures included periods of time when the wrist was held in significant flexion and when the wrist was rested on the edge of the driving desk. Findings of Fact with respect to the Ergonomic/Engineering Evidence .

[186]Of the two experts Mr Jackson was the more precise. Mr Hinkley in his reports complained about issues (temperature and force) which later played little or no part in his conclusions about these cases. Unlike Mr Jackson, he had not sought to measure the force involved. However these differences in approach may be a reflexion of their different disciplines. Ergonomics may be a discipline which depends upon the experienced assessment of the interplay of variable factors in a way which does not permit precise measurement.

[187]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.

[188]Mr Hinkley's evidence throughout was that the Claimants' manner of driving gave rise to a risk of ULD. During his cross-examination Mr Jackson agreed that there were elements of the Claimants' driving style which are less than ideal. From an ergonomic perspective it seemed to be the case that the manner in which they drove gave rise to an increased risk of CTS. I therefore accept that the expert evidence shows that the way in which the Claimants drove gave rise to a risk that they might develop an ULD.

[189]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. Mr Jackson says that they were entitled to come to that opinion because the manner in which the Claimants drove was unnatural. The evidence of Mr Goosey 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 Mr Ley. 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.

[190]The evidence of Mr Hinkley is that if the Defendant had instructed him to carry out an ergonomic assessment of the job of driving a train he would have carried out the two stage approach recommended by the HSE. On initial observation he would have concluded that this was a case which required a detailed assessment, and after such assessment he would have advised the Defendant that the seats be improved to permit better adjustment; that they be fitted with armrests which support the arms during movement of the levers, and that the drivers be trained about the risks of upper limb disorder and how to avoid it.

[191]Mr Jackson agreed that an ergonomist, seeing the potentially harmful wrist movements demonstrated by the Claimants, would go on to carry out a full risk assessment. He further agreed that if the Defendant had ever become aware of the Claimants' manner of driving, it ought to have carried out an assessment. As an employer, the Defendant ought to have put itself in a position to know how its drivers were driving, and if necessary to take steps to eradicate bad driving styles.

[192]On that evidence I find that if the Defendant had instructed an ergonomist to consider the risk of ULD to its drivers from the ergonomic set-up of the cabs of its older units and from the driving styles adopted by its drivers, an ergonomist would have followed the procedure and made the recommendations proposed by Mr Hinkley. Whether the Defendant was under a duty to instruct an ergonomist (or to carry out such an assessment by a member of staff appropriately trained) is a matter I shall consider later.

[193]With respect to the seats Mr Hinkley said that their relevance was that poor seating led to poor posture. The Claimants would lean forward to reach the controls. Mr Jackson agreed that they might lean forward but regarded that as an issue of comfort only. He did concede that armrests might have relevance to health. Having regard to what Dr Pritchard said about armrests and the causal effect of resting the wrist on the edge of the driving desk, together with my own experience of sitting in the seats of a 153 unit, I accept Mr Hinkley's evidence that seating is relevant to issues of health, not comfort only. Findings of Fact with respect to the Expert Medical Evidence.

[194]Of the two rheumatologists I found Dr Pritchard the more impressive witness. In dealing both with CTS and with CCS he expressed his opinion clearly. He sought to explain why he held that opinion. He made concessions with respect to evidence which was inconsistent with the opinion he was putting forward and, with respect to CCS, he informed me of the limitations of his opinion. When his opinion was open to the criticism that it was speculative, he volunteered that information. He gave evidence in a calm and balanced way.

[195]Dr Williams by contrast was a little histrionic at times during his evidence. In his reports he stated as established fact matters which are contentious (for example he quoted large parts of the statement of Mr Brennan as to the quality of the driving cabs of the trains and used that material as part of the basis of his contention that CTS cannot have been caused by work). He appeared to misunderstand some parts of the case (for example, with respect to which units Mr Rogan was driving). He regards Dr Pritchard as outside the mainstream of rheumatological opinion with respect to CCS (which indeed he probably is) and appeared at times to be more concerned to denigrate Dr Pritchard's work than to give a balanced counter-opinion. Yet he himself might be said to have had his own argument to put forward: he believes that CTS should not be regarded as a work-related condition. As I understood his evidence he considers that its inclusion as a prescribed disease is something which should be reconsidered, at least other than where use of vibrating tools is concerned. Against that assessment of the witnesses I turn to their respective opinions regarding the Claimants' injuries.

[196]It is agreed that Mr Thomas developed CTS bilaterally. That was shown by nerve conduction testing and by the fact that decompressive surgery alleviated his symptoms promptly. Dr Williams accepts that CTS was the correct diagnosis. In Mr Thomas's case there are no constitutional risk factors. (Dr Williams says that all the Claimants are overweight but in fact only Mr Studholme might be said to very much overweight.) Dr Williams says that the time during which Mr Thomas worked as a driver before developing symptoms suggests that work was not the cause. However I accept Dr Pritchard's evidence that the syndrome is the result of cumulative exposure to adverse work practices. In the absence of some other constitutional explanation I find that it is more probable than not that it was his work which caused the CTS which he undoubtedly had.

[197]Dr Williams agrees that Mr Rogan had CTS in 2004. Mr Rogan had been experiencing intermittent shooting pain up the forearm which is not typical of CTS, but nerve conduction studies revealed marked carpal tunnel compression on the right and slight compression on the left. The orthopaedic surgeon who carried out the decompressive surgery noted the atypical symptoms but the nerve studies were clear and surgery was indicated. After decompressive surgery, initially symptoms resolved.

[198]I am satisfied, therefore, that Mr Rogan developed CTS. Like Mr Thomas, symptoms came on after he had been driving for about 3 or 4 years. Again, there are no constitutional risk factors. In those circumstances the cases of Mr Thomas and Mr Rogan lend mutual support to each other with respect to causation. I accept Dr Pritchard's observation that in the absence of constitutional factors, where two drivers doing the same job develop CTS, and where on the ergonomic/engineering evidence the manner in which they drive gave rise to an increased risk of CTS, it is more likely than not that the CTS in both cases is work-related.

[199]In Mr Studholme's case, Dr Williams contends that he never developed CTS. Two pieces of evidence in particular cause him to hold that opinion. One is that CTS was never confirmed by nerve conduction studies. The other is that Mr Studholme had pain in the upper arm. He attributes all the symptoms to the cervical disc protrusion at C5/6.

[200]The contrary points put forward by Dr Pritchard are that the orthopaedic surgeon was aware of Mr Studholme's neck problem. He described it as wry neck, which is spasm of the sterno-mastoid muscle, rather than an imprecise term for muscle spasm generally as Dr Williams suggests. That would produce neck and upper arm pain. If the symptoms had been caused by nerve root entrapment, there would have been neurological signs. His reflexes would have been reduced. It is very unlikely that the orthopaedic surgeon would have used the term wry neck if he had noted neurological signs, or that he would have failed to note neurological signs if any had been present. That is particularly the case when the orthopaedic surgeon was considering a diagnosis of CTS which he regarded as unconfirmed by nerve conduction testing. The orthopaedic surgeon evidently regarded the neck symptoms as irrelevant.

[201]Further than that, the orthopaedic surgeon decided to carry out decompressive surgery without the nerve conduction tests. It is unlikely that he would have carried out that procedure, relatively minor though it may be, if he had doubts that CTS was the proper diagnosis on the symptoms. Dr Pritchard does not accept Dr Williams's theory that the orthopaedic surgeon was simply carrying out the procedure because Mr Studholme wanted him to do so.

[202]Dr Williams also says that before the surgery, Mr Studholme's symptoms were improving. That is not Dr Pritchard's understanding but if that were the case, it is difficult to understand why Mr Studholme would have insisted on surgery being carried out.

[203]On balance it is far more likely that Mr Studholme had continuing symptoms of CTS and that the surgeon carried out the decompressive surgery for that reason.

[204]It should perhaps also be noted that Mr Rogan had upper arm symptoms which were not typical of CTS but that nerve conduction tests showed, and Dr Williams agrees, that the carpal tunnel was compressed.

[205]I find, for the reasons given by Dr Pritchard, that Mr Studholme did develop CTS. In his case there is a constitutional risk factor in that he is overweight. Also in his case the period of time during which he had been driving trains before he developed CTS is much longer than in the cases of Mr Thomas and Mr Rogan. However Mr Studholme was the one Claimant who said that his style of driving changed with the introduction of the new policy (whether upon its formal introduction as the Professional Driving Policy or perhaps, according to the evidence of Mr Brennan, a few years before).

[206]Taking into account my findings with respect to Mr Rogan and Mr Thomas, I find that work rather than obesity is the likely cause of CTS in Mr Studholme's case also. Chronic Compartment Syndrome.

[207]The decompressive surgery which the Claimants have all had should have, and according to nerve conduction studies since, has eliminated symptoms attributable to CTS. Yet all Claimants continue to have symptoms in the upper limbs. Those symptoms, it is agreed, are not attributable to CTS. That is established not only by the nerve conduction studies but also by the lack of success of a second decompressive operation on Mr Rogan's right wrist which Dr Pritchard correctly said, before it was carried out, was not indicated and would not relieve symptoms.

[208]Dr Pritchard's evidence that the symptoms are explained by CCS is, to someone without medical training, persuasive. It is easy to understand his argument that a muscle compartment in the arm is identical with a muscle compartment in the leg; that raised pressure within the compartment may affect the structures within it, and that such pressure can be measured. Thus he produces not only a plausible explanation but empirical evidence in support.

[209]However, he fairly makes the following concession:

"Chronic compartment syndrome is a well known complaint under other circumstances and these results [the tests of pressure in the muscle compartment] mirror those found elsewhere carried out by other people so there is nothing unique about either the tests or the results. The only novel feature is showing that this condition occurs in a repetitive work related situation. Although so far only one of my cases has reached court, whereupon a settlement was offered, about fifteen others have settled before going to trial on the basis of this data, in many cases accepted by the medical expert on the other side. While I agree that this concept is not widely recognised there is increasing interest in it and the unit at the Royal National Hospital for Rheumatic Diseases in Bath is carrying out similar studies."

I take this passage from Dr Prichard's report on Mr Rogan dated 13 th August 2008. I have added the emphasis.

[210]A court must reach its decision on the evidence put before it by the parties. Where there is conflicting expert medical evidence a court must decide which evidence it accepts. But it is not for a court to promote advances in medical thinking. If a new theory is proposed to explain the presence and causation of a set of symptoms found in the population, it is for the medical profession to consider and evaluate that theory.

[211]In the context of these cases that means that my task is to have regard to the evidence and answer the question "Have the Claimants proved on a balance of probabilities that the symptoms they are currently experiencing have been caused by the work which the Defendant required them to do?"

[212]The evidence is that there are the following possible explanations for their continuing symptoms: in Mr Rogan's case either continuing symptoms from a whiplash injury sustained in 1998 or CCS; in Mr Studholme's case either a disc protrusion or CCS, and in Mr Thomas's case either some unexplained condition or possibly tendonitis in the shoulder or CCS. Plainly if the cause of symptoms is a whiplash injury or a disc protrusion or tendonitis, the symptoms have not been shown to be work related. But what if the symptoms are attributable to CCS? On the evidence I have heard, it has still not been proved to the appropriate standard that the symptoms are work related because there is no body of medical opinion that CCS is a work related condition. The evidence in support of the proposition is confined to the opinion of Dr Pritchard which at present represents, as he says, a novel feature not widely recognized.

[213]It may be that in due course Dr Pritchard's opinion will be accepted by the medical profession (or at least by a significant number of his fellow rheumatologists) and will become an orthodox view. But on the evidence I have at present I cannot say that it is more likely than not that the symptoms which the Claimants are currently experiencing, even if attributable to CCS, are work related. They might be, but they might not.

[214]Dr Pritchard puts his argument forward in an attractive way. As I have said to the layman it is a plausible explanation (though the view of the layman may not be a good indication of its medical accuracy). But in my judgement it is not evidence which enables the Claimants to establish their case on causation of current symptoms. The fact that other cases have settled does not assist me. Cases settle for all sorts of reasons.

[215]I should make it plain that I am not here applying some kind of Bolam test ( Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582 ). That is a test which applies in a different context. I am reflecting the evidence which is that a link between work and CCS has not yet been established. The Duty on the Defendants.

[216]The essence of the Claimants' case is that the Defendant should have carried out a risk assessment in respect of the work of driving these trains. Regulation 3 of the Management of Health and Safety at Work Regulations 1999 impose a requirement on an employer to carry out a risk assessment of the risk to the health and safety of his employees while they are at work and to review it if there is reason to suspect that it is no longer valid or if there has been a significant change in the matters to which it refers. However Regulation 22 as originally drafted and so far as is relevant to these cases provided that breach of Regulation 3 does not confer a right of action in civil proceedings. The 1999 Regulations are therefore not relied upon directly by the Claimants.

[217]Instead the Claimants rely upon breaches of Regulations 4, 8 and 9 of the Provision and Use of Work Equipment Regulations 1998. Where material they provide as follows: 4.. Suitability of work equipment(1) Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided.

(2) In selecting work equipment, every employer shall have regard to the working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that work equipment.

(3) Every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable.

(4) In this regulation 'suitable'— (a) subject to sub-paragraph (b), means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person … 8.. Information and Instructions (1) Every employer shall ensure that all persons who use work equipment have available to them adequate health and safety information and, where appropriate, written instructions pertaining to the use of the work equipment… (3) Without prejudice to the generality of paragraphs (1) and (2), the information and instructions required by either of those paragraphs shall include information and, where appropriate, written instructions on- (a) the conditions in which and the methods by which the work equipment may be used; (b) foreseeable abnormal situations and the action to be taken if such a situation were to occur; (c) any conclusions to be drawn from experience using the work equipment. (4) Information and instructions required by this regulation shall be readily comprehensible to those concerned. 9.. Training (1) Every employer shall ensure that all persons who use work equipment have received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken.

[218]With respect to Regulation 4 the Defendants submit that, in accordance with the guidance of Pill LJ in Yorkshire Traction Co Ltd v Searby

[2003] EWCA Civ 1856

, regulation 4 does not require complete and absolute protection from all foreseeable risks. The lay and engineering evidence tends to show that the units were suitable in that they were suitable in all respects in which it was reasonably foreseeable that that they would affect the health and safety of any person as required by Regulation 4(4).

[219]Searby was a case involving the fitting of a screen to a bus to protect the driver from assault. Pill LJ at paragraph 43 said:

"However, I agree with [counsel for the Defendant] Mr Berrisford's submission that neither the directive nor the regulation require complete and absolute protection. An assessment must be made, as at the date of the accident, of the state of the bus having regard to the operations and conditions involved in its use, as contemplated by Schiemann LJ in Palmer with whose approach I respectfully agree. The assessment of the suitability of the vehicle for operations involves an assessment of the extent of the risk presented by the alleged defect."

The passage from the judgment of Schiemann LJ in Marks and Spencer plc v Palmer

[2001] EWCA Civ 1528

, a case involving a tripping hazard, to which Pill LJ was referring is:

"I do not consider that the existence of this small rise means that it should be regarded as rendering the floor unsuitable for the purpose for which it is used namely leaving or entering the shop. Another way of putting the point is to say that this degree of risk in this situation does not fall within the concept of constituting a risk to health and safety as used in this regulation [Regulation 12 of the Workplace (Health Safety and Welfare) Regulations 1992]."

[220]Mr O'Leary for the Claimants however submits that the decision in Searby cannot stand with the decision of the House of Lords in Robb v Salamis (M&I) Limited

[2006] UKHL 56

. That is the view of the editor of Redgrave, para 5.638 (p.508).

[221]Mr O'Leary relies upon the following paragraphs from the speech of Lord Hope in Robb v Salamis :

"13. The pursuer did not allege a breach of any of the Management Regulations. Mr Stewart QC said that this was because they do not give rise to civil liability. I would prefer to reserve my opinion on that point: see Redgrave's Health and Safety, 4th ed (2002), para 2.16. It is proper nevertheless, when construing regulations 4 and 20 of the Work Equipment Regulations, to take account of regulation 3(1) of the Management Regulations ..... These provisions provide the context for [the employer's] obligations under regulations 4 and 20 of the Work Equipment Regulations. 14. It is necessary, when construing those regulations, to have regard also to the provisions of the Framework Directive and the Work Equipment Directive that the Work Equipment Regulations were designed to implement. The rule is that the domestic court must seek to interpret national law to achieve the same result as is intended by the relevant provision of EU law, where it is reasonably possible to do so: Pickstone v Freemans plc [1988] ICR 697 , Lister v Forth Dry Dock & Engineering Co Ltd [1989] ICR 341 , 354, per Lord Oliver of Aylmerton. Article 1 of the Framework Directive provides: '(1) The object of this Directive is to introduce measures to encourage improvements in the safety and health of workers at work …' '(3) This Directive shall be without prejudice to existing or future national and Community provisions which are more favourable to protection of the safety and health of workers at work.' Article 5 provides: (1) The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work …' (3) The workers' obligations in the field of safety and health at work shall not affect the principle of the responsibility of the employer. (4) This Directive shall not restrict the option of member states to provide for the exclusion or the limitation of employers' responsibility where occurrences are due to unusual and unforeseeable circumstances, beyond the employers' control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care. 15. Article 3 of the Work Equipment Directive sets out the general obligations of employers. It provides: (1) The employer shall take the measures necessary to ensure that the work equipment made available to workers in the undertaking and/or establishment is suitable for the work to be carried out or properly adapted for that purpose and may be used by workers without impairment to their safety or health. In selecting the work equipment which he proposes to use, the employer shall pay attention to the specific working conditions and characteristics and to the hazards which exist in the undertaking and/or establishment, in particular at the workplace, for the safety and health of the workers, and/or any additional hazards posed by the use of [the] work equipment in question. (2) Where it is not possible fully so to ensure that work equipment can be used by workers without risk to their safety or health, the employer shall take appropriate measures to minimise the risks. Regulation 4 of the Work Equipment Regulations gives effect to article 3(1) of this Directive. But there is no definition in the Work Equipment Directive of the meaning that the word 'suitable' is to have for the purposes of article 3(1). This must be borne in mind when the definition of this word in regulation 4(4) is being considered. So too must article 1 of the Framework Directive. The dominant purpose of all these provisions is to encourage improvements in the safety and health of workers at work. In my opinion the purpose of regulation 4(4) is to ensure, not to reduce, the protection provided for by article 3(1) of the Work Equipment Directive that regulation 4(1) was designed to implement." "23. I would take as my starting point the meaning of the words used in regulations 20 and 4(1)...... Regulation 4(1) requires the work equipment to be "suitable" for the purpose for which it is used or provided..... regulation 4(4) provides that "suitable" in that regulation means suitable in any respect which it is reasonably foreseeable will affect the health and safety of any person. 24. But the question of foreseeablity has to be examined in its context. The aim in both regulations is the same. It is to ensure that work equipment which is made available to workers may be used by them without impairment to their safety or health: see article 3(1) of the Work Equipment Directive. This is an absolute and continuing duty, which extends to every aspect related to their work: see article 5(1) of the Framework Directive. It is in that context that the issue of foreseeability becomes relevant. The obligation is to anticipate situations which may give rise to accidents. The employer is not permitted to wait for them to happen. The sheriff misdirected himself on this point. 25. Regulation 4(2) serves to underline this approach. The obligation in this paragraph implements the second paragraph of article 3(1) of the Work Equipment Directive. It requires that an assessment of risk be carried out before the work equipment is used by or provided for persons whose health or safety may be at risk. The aim is to identify the risks to the health and safety of workers if things go wrong."

[222]In my judgement the Claimants' submissions with respect to Regulation 4 of the Provision and Use of Work Equipment Regulations 1998 are correct. Adopting the approach of Lord Hope in Robb v Salamis , there was a duty upon the Defendant to assess the risk to its drivers of the act of driving the trains it provided. The risk assessments carried out by the Defendant did not consider that risk and were performed by staff who had not been trained to consider the ergonomic risks. I do not accept that the risk of upper limb disorder was so small that no risk assessment was necessary. Nor do I consider as determinative of the extent of the Defendant's duty the fact that the trains are standard units in use throughout the rail network since at least 1990, in respect of which the Claimants cannot show that the Defendant knew of any similar complaint before these claims were brought. The experts in ergonomics and engineering agree that simple observation of the manner of driving of the Claimants (and by inference at least some of the other 52 drivers employed at Carmarthen) would have been sufficient to alert the Defendant to the risk, provided that the observation was, as it should have been, carried out by someone with the requisite experience.

[223]The duty is a continuing one. The date upon which each train was put into service by the Defendant is not known. However the Defendant should have carried out a risk assessment at the time when the train was put into service or at the time when the duty imposed by the Regulations (or their predecessor: Regulation 5 of the PUWE Regulations 1992 is in identical wording) first applied to it. I conclude, therefore, that the Defendant was in breach of Regulation 4 of the PUWE Regulations 1998.

[224]Mr Pretsell seeks to rely upon the evidence that these units must have been certificated by the Vehicle Acceptance Body prior to being brought into use on the rail network. He submits that the VAB is comprised of experienced engineers who assess the suitability or otherwise of the train for service. Each of the units complained about must have been subject to this process and certificated as suitable for use on the network applying nationwide safety standards.

[225]There was little detailed evidence about the VAB. It was mentioned by Mr Brennan and Mr Brett. But Mr Brett who is the witness who might be expected to have most knowledge of the VAB admitted that he is not personally familiar with the standards. Certification of the 150, 153 and 158 units must have taken place in the 1980s. Knowledge of ergonomics has no doubt advanced considerably since then. There is no evidence that certification involved any ergonomic assessment of the driver's cab. Mr Brett said that there was no requirement for subsequent certification unless modifications were carried out to the units. He did not explain by reference to what rules or regulations he asserted that there was no such requirement. However whatever they may be it seems to me that they cannot displace the requirements imposed upon an employer by the PUWE Regulations.

[226]Having come to the conclusions set out about breach of statutory duty there is no need for me to consider the Defendant's liability at common law. However, Mr Pretsell rightly concedes that as employer the Defendant owed to the Claimants a duty at common law (I paraphrase his submission) to provide proper plant and apparatus by means of which the Claimants were to perform their duty and to maintain the plant and apparatus in a proper condition. It also owed a duty to establish and enforce a proper system of working. Although the common law, as stated in, for example, Wilsons & Clyde Coal Co Ltd v English

[1938] AC 57

unsurprisingly does not refer to a risk assessment, in my judgement a modern restatement of an employer's duties to his employee would do so, probably as an adjunct to the duty with respect to the provision of proper plant and equipment. In the context of the present case, I would conclude, if necessary, that at common law the Defendant owed to the Claimants a duty to inform itself of the manner in which they drove its trains and to consider whether the trains ergonomic layout created any risk of injury to them.

[227]If a risk assessment had been carried out what should it have revealed and what should have been done? An organisation such as the Defendant should have had the resources to engage an ergonomist to assess the cabs of its trains. Alternatively, it should have arranged for staff such as Miss Tryon and Mr Brennan to be adequately trained in ergonomics so as to be able to carry out such an assessment.

[228]I accept the evidence of Mr Hinkley that an ergonomist would have identified that the seats and armrests on the older trains (that is other than the 175 unit) were not suitable within Regulation 4(4) of PUWE Regulations 1998. He would have recommended that the seats be improved to permit better adjustment, that they be fitted with armrests which support the arms during movement of the levers and that the drivers be trained about the risks of upper limb disorder and how to avoid it. I accept that the fact that the seats could not be properly adjusted is a factor in the causation of the CTS which the Claimants developed. The Claimant's posture in leaning forward contributed to their wrists resting on the edge of the driving desk and to the increased extension of the wrist. Further I accept that proper armrests could have alleviated the problem in the way described by Dr Pritchard. No evidence has been adduced by the Defendant to suggest that for cost or any other reason improved seats and/or armrests could not have been fitted. On the contrary the Defendant has pursued a programme with respect to some trains of replacing the old seats.

[229]But even in the absence of changing the seats or armrests, the Defendant could, as an interim measure, have disseminated information to its drivers about the need to avoid resting the wrists on the edge of the driving desk for long periods and to avoid extension of the wrists when holding the controls. I am satisfied that any of these steps would have prevented the Claimants' CTS.

[230]Although the Claimants rely also upon Regulations 8 and 9 of the PUWE Regulations 1998, I was initially disinclined to make any specific findings in respect of them because it seemed to me that they added nothing to the claim in the light of my findings and conclusions set out. However both counsel have asked me to make findings with respect to Regulations 8 and 9 and therefore I will do so.

[231]In their submissions both counsel have dealt with Regulations 8 and 9 together. Regulation 8 imposes upon an employer a duty to ensure that a person using work equipment has adequate health and safety information pertaining to the work equipment. Regulation 9 imposes a duty to ensure that a person using work equipment has received adequate training for the purposes of health and safety. In the context of this case the relevant information is that operating the controls of a train may cause upper limb disorder if carried out in a way which puts pressure on and/or involves flexion of the wrist. Relevant training is training showing how to operate the controls in a manner which does not have those features. This information and training are so interconnected that it is impossible to conceive of their being provided separately.

[232]In Allison v London Underground Limited

[2008] EWCA Civ 71

Smith LJ said at paragraph 55:

"In my judgment, the test for the adequacy of training for the purposes of health and safety is what training was needed in the light of what the employer ought to have known about the risks arising from the activities of his business. To say that the training is adequate if it deals with the risks which the employer knows about is to impose no greater a duty than exists at common law. In my view the statutory duty is higher and imposes on the employer a duty to investigate the risks inherent in his operations, taking professional advice where necessary."

At paragraph 57 Smith LJ said:

"How is the court to approach the question of what the employer ought to have known about the risks inherent in his own operations? In my view, what he ought to have known is (or should be) closely linked with the risk assessment which he is obliged to carry out under Regulation 3 of the [Management of Health and Safety at Work Reulations1999]. That requires the employer to carry out a suitable and sufficient risk assessment for the purposes of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions. What the employer ought to have known will be what he would have known if he had carried out a suitable and sufficient risk assessment. Plainly, a suitable and sufficient risk assessment will identify those risks in respect of which the employee needs training. Such a risk assessment will provide the basis not only for the training which the employer must give but also for other aspects of his duty, such as, for example, whether the place of work is safe or whether work equipment is suitable."

It follows from my findings with respect to the evidence of Mr Hinkley and Mr Jackson in relation to Regulation 4 of the PUWE Regulations 1998 that, had the Defendant carried out a risk assessment of the ergonomics of the cabs of its older trains, as it should have done, it would have received advice not only with respect to improvement of the seats and armrests, but also with respect to training and instruction. It should have followed that advice. If it had done so, it would have provided information and training sufficient to comply with the obligations imposed upon the Defendant by Regulations 8 and 9. Accordingly breaches of Regulations 8 and 9 are proved in these cases just as the breach of Regulation 4 is proved and upon the same evidence. Conclusions.

[233]My conclusions therefore are: a) Each of the Claimants has proved that he suffered CTS; b) Each has proved that the CTS was caused by his work; c) The Defendant was under a duty by statute and at common law to assess the ergonomic risk to its drivers including the Claimants of ULD from the act of driving its trains; d) The Defendant carried out no such assessment; e) 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 which gave rise to a risk of ULD; f) It would also have been informed 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; g) It would have received advice 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; h) If it had acted on that advice the Claimants would not have developed CTS; i) Each Claimant has failed to prove that the symptoms which he has experienced subsequently to decompressive surgery, are work-related; j) The Claimants are entitled to damages for the CTS and any associated losses.

[234]In order to assess damages it is necessary to determine when injury which the Claimants have proved is attributable to the Defendant's breach of duty ceased. In the case of each Claimant the relevant date will be the date on which recuperation after decompressive surgery for CTS ended. That will be the date on which each returned to work. In the case of Mr Rogan that proposition must be qualified. Mr Rogan underwent a second decompressive operation on his right wrist in 2008. I have accepted Dr Pritchard's opinion that that operation was not indicated. All symptoms of CTS had been resolved by the first operation on his right wrist. The second operation was in respect of symptoms which I have found have not been shown on a balance of probabilities to be work related. The attributable period in Mr Rogan's case therefore ends when he had recovered sufficiently to return to work after the operation on his left wrist which was carried out in February 2005.

[235]I sent a draft of this judgment to counsel before handing down and counsel have been able to agree quantum and costs. Mr O'Leary has handed to me draft orders in the case of all three Claimants. It is agreed that there should be judgment for Mr Thomas in the total sum of £12,364.23 of which £8,000 represents damages for pain suffering and loss of amenity; that there should be judgment for Mr Studholme in the total sum of £20,037.71 of which £8,000 represents damages for pain suffering and loss of amenity, and that there should be judgment for Mr Rogan in the total sum of £9,089.89 of which £5,500 represents pain suffering and loss of amenity. Because of offers made before trial the orders for costs differ with respect to each Claimant. There is no need to set them out in this judgment but I make orders in each case in the terms of the agreed draft orders.