Finger on the facts

Miners received damages for a condition many consider to have been cured – Vibration White Finger

The ghost of an almost forgotten industrial disease has returned to haunt an industry that hoped it had gone away.

Vibration White Finger sufferers won unprecedented damages in the High Court last week. It has turned the spotlight on to the cost of suffering and many fear it could land employers with very high insurance claims.

Last week seven miners won damages totalling nearly £125,000 from British Coal; the highest individual award was £41,000. Another 12,000 plaintiffs could take the total bill to £50m.

‘There are broad implications for other industries, and the level of damages awarded,’ says Andrew Tucker, solicitor for Irwin Mitchell, the firm that represented the miners. ‘The amounts awarded are above what some industries have been prepared to offer by way of settlement.’

Vibration White Finger has been the scourge of the engineering industry. Affecting many who have worked in steel, shipbuilding and construction, it damages the nerve endings and the circulation in the hands and upper body. Sufferers’ hands blanche, tremble and go numb, and they lose their dexterity and strength.

The condition was discovered in 1911 and called Raynaud’s Phenomenon. It can occur spontaneously in people who have poor circulation, but it can also be induced through the use of industrial equipment.

Attributed to vibrating, hand-held power tools used consistently over a long period, it can disappear with sufficient rest if caught early enough. If not, the disease is permanent and incurable.

British Coal was slow to respond to discoveries about VWF. Although it knew about the condition in the 1950s, it did not advise its staff to take preventative measures.

This case was unusual for two reasons: first because it received widespread publicity, and secondly because it was subject to the punitive damages exacted by the judiciary.

Conventional out-of-court settlements have typically only paid £1,000 to £2,000, helped by a confidential agreement set up between the Iron Trades Insurance Group and the AEEU and GMB unions.

Lawyers now expect the publicity surrounding British Coal to help future claimants negotiate higher deals out-of-court.

‘The level of damages employers offer are well below the level the courts have made, but we would expect future claims to be at least twice the usual claims,’ says Tucker.

‘For the first time you have got a comprehensive approach of compensating people with this disease.’

But insurance companies remain defiant and, perhaps unsurprisingly, play down lawyers’ expectations.

‘The proof needed for court settlements has to be much stronger, and so the damages awards are much higher,’ says Oscar Tempest, technical claims manager at the Iron Trades Insurance Company.

‘Just because someone gets £40,000, it doesn’t mean other cases will get the same,’ says Tempest.

But many companies in the engineering sector have had to pay compensation over the last 20 years.

Any employee who applies a repetitive vibration to his body and limbs runs a risk of injury. Most sufferers come from engineering, particularly the steel industry, where workers have hammered out cracks and fissures in steel ingots, or in shipbuilding, where staff hammer the seams and rivets on the side of ships. Those using pneumatic drills to dig up roads are also vulnerable.

Debate centres on whether it is a disease of the past, or if many future claims can be expected. Many of the most affected industries have shrunk, so employ fewer people. Employers are also more ‘safety aware’ and science understands more about the illness.

The employment solicitors, keen for business, play VWF up, while the insurance companies, inevitably, play it down.

‘The law says an employer should know about the disease but you will still get some employers who don’t make the right enquiries; or they do, but hope they don’t have a problem, or they’ve just developed a problem and hope they don’t get found out,’ says Tucker.

He reckons further claims will still appear in the next 20 to 30 years as new technologies create new vibrating environments for which health and safety scientists have no understanding. ‘There are still employers out there who are faced with problems,’ he says.

But the Iron Trades Insurance Company suspended its VWF agreement in 1995, because the need for it has almost disappeared. And the Association of British Insurers has revised its forecasts of VWF claims from 10% to 5% of all claims – industrial deafness is considered to be a far greater threat (80%).

Nor are insurers worried about the possibility of hundreds of potential historical cases rushing forward, because of the British Coal case. ‘Under British law, if the person has known he’s had the condition, and known the reasons for it for more than three years, he won’t be able to claim.’

The truth is that, 20 years after the Health and Safety at Work Act, some employers have finally started to take health and safety issues seriously.

Manufacturers have made adjustments to their equipment – tractor seats, for instance, have been designed to absorb vibration. There are ‘anti-vibration’ gloves, though many think they do little more than keep workers’ hands warm.

While health and safety has long been cast as the albatross of industry, the case of British Coal at least shows a grudging willingness to confront the legacy of years of bad industrial design and take responsibility for its effects.