Remember the beast from the east? The spring 2018 cold snap brought the country to a standstill, and on a small construction site in central Scotland it left behind standing water formed by melted snow.
That water would become the focus of intense judicial scrutiny six years later when the case of McIlwraith v Bluevale Industries [2024] CSOH 92 was heard at the Court of Session in Edinburgh. Mr McIlwraith was a construction worker employed by the defenders. He had diabetes, as his employers were aware. His case was that he was required to stand in water for several hours per day, with inadequate footwear and poor drying facilities. He claimed that, as a result, he developed immersion foot syndrome (IFS), his foot became infected and eventually he had to undergo a below the knee amputation of his right leg. Diabetics are however susceptible to foot infections and amputation regardless of whether they have had wet feet, so medical causation was a key aspect of the case.
Much of the court's time was taken up with identifying the dates Mr McIlwraith was standing in water. The dates in Mr McIlwraith's pleaded case (late May 2018) could not be correct, as photographic evidence showed the site was dry by then. There was however also photographic evidence of standing water on site earlier that month. In the event the judge was persuaded that Mr McIlwraith had to stand in water for several hours per day several weeks earlier in early May 2018, and that the pleadings were broad enough to establish that aspect of the case. Breach of duty was therefore established.
However, by bringing the dates of exposure forward, the claimant opened up a window of three weeks between exposure and subsequent diagnosis. The claimant's medical expert had been instructed on the basis that exposure was in late May, with no gap between exposure and diagnosis. In cross-examination he accepted that IFS tends to resolve when feet are dry. The evidence of the claimant himself was that he changed into dry shoes at the end of every working day. There was no evidence of any visible ulcer after exposure in early May. The result was that the claimant failed to establish a causative link between the exposure and subsequent infection, and therefore lost the case.
The medical evidence was complex in McIlwraith but the importance of the unexplained gap between exposure and diagnosis was highly significant. The claimant, for whom the court clearly had a great deal of sympathy, had not given evidence about the condition of his foot in that period and without that he could not succeed.
The case is a reminder that breach of duty is never enough, on its own, to establish liability. Causation is often the rock on which a claimant will founder when there are other potential explanations for the injury or condition. Early and detailed assessment of the medical evidence (both factual and expert) is absolutely key to a proper causation defence.
Beyond that, the case is a warning of the very serious conditions which can be caused by diabetes, and the importance of employers taking known medical conditions into account when assessing risks to their employees.
