Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 102
PD339/10	OPINION OF LORD PENTLAND in the cause RAYMOND KNOX Pursuer against FIRST SCOTRAIL LIMITED Defender ­­­­­­­­­­­­­­­­­________________

Pursuer: Revie; Drummond Miller, LLP

Defenders: Watson, Solicitor Advocate; Simpson & Marwick

17 June 2011

Introduction
[1] The proof which I heard in this action was restricted to liability by interlocutor of 5 May 2011. In outline, the pursuer claimed damages from his employers on the ground that they supplied him, in or about October 2006, with a pair of safety shoes which caused him to develop a condition known as "Morton's Neuroma" in his left foot. The pursuer was employed by the defenders as a train dispatcher at Waverley Station and was required to wear safety shoes whilst at work. Morton's Neuroma is a condition affecting one of the nerves that run between the metatarsal bones in the foot. The exact cause is not certain. Symptoms include pain, burning, numbness and tingling between two of the toes of the foot.

[2] At the end of the evidence the pursuer abandoned his case insofar as based upon negligence at common law. That left his claim founded on alleged breach of certain of the regulations contained in the Personal Protective Equipment at Work Regulations 1992 ("the 1992 Regulations").

The pertinent factual evidence led at the proof

[3] This may be summarised as follows. In the course of his duties, the pursuer had to do a considerable amount of walking and standing on platforms at Waverley Station; his duties involved checking that the trains were ready to be dispatched and assisting members of the public. The platforms mainly had a hard concrete surface, although some were partially tiled. He thought that he would sometimes have had to walk up to 5 or 6 miles a day. In accordance with the defenders' usual practice, he was issued with a new pair of safety shoes when he took up employment with them in 2004. These were size 10 "Sole Mate" shoes with steel toe caps and a ridged sole; the pursuer's feet are size 10. A sample pair of this type of safety shoes was lodged as a production by the defenders, although the sample was not a size 10 (7/5 of process). By about October 2006 the shoes issued to the pursuer had become worn down and he asked for them to be replaced. He went to the appropriate office at the station and was given a new pair of size 10 "Tuf" safety shoes. These were described in evidence as being a Dr Martens type of safety shoe with a sole known as an "air sole"; again they had steel toe caps. I shall refer to these shoes as the "2006 shoes". A sample of this type of shoe was amongst the defenders' productions; these were not, however, a size 10 (7/7 of process).

[4] The pursuer tried on the 2006 shoes when he got home. He said in evidence that, compared with his previous safety shoes, the 2006 shoes felt wider and it was as if they were a wider-fitting shoe. The soles also felt harder and flatter than the previous safety shoes. The previous ones, he said, were chunkier and felt as if they were higher off the ground and more comfortable. Because they felt wider, the pursuer had to pull the laces tighter in order to make the shoes grip his feet better. Thereafter the pursuer wore the 2006 shoes at work, as he was required to do.

[5] The pursuer had never felt that the 2004 shoes were painful, but he said that he started getting pain in his left foot about two months after he began to wear the 2006 shoes. At first it felt like he had a pebble in his sock. Then it grew into a burning sensation as if there were pins in his foot. His left foot would be throbbing and tingling. Every time he put his left foot down on the ground it was as if there was a lump beneath it. The pain gradually got worse; it was on the sole of his left foot just below the third toe. It felt as if there was a lump underneath his third toe. The pain was exacerbated by walking. The pursuer felt that he had to try to walk on his heel with his toes curled up. It got to the point where it was unbearable for the pursuer to put down his left foot.

[6] The pursuer went to see his General Practitioner on 7 November 2006. The note in the records states that the doctor diagnosed "metatarsalgia in heavy flat boots" and that advice was given. There is no mention in the notes of the safety shoes being too wide or of the sole being too stiff. The pursuer said that about 7 or 8 weeks later he mentioned the problem to his line manager, Alastair Scott, who suggested that the pursuer might have developed a condition known as plantar fasciitis, caused by walking on the platforms in hard-soled shoes. Plantar fasciitis is an inflammatory condition of the plantar fascia, which is a thick fibrous band of connective tissue running from the heel bone along the sole of the foot to the toes. It is a different condition to Morton's Neuroma. The pursuer did not mention to Mr Scott that the safety shoes were too wide or that the sole was too stiff. The pursuer eventually went off work on 22 February 2007. He explained in his evidence that he had thrown out the 2006 shoes some time after he went off work, when he was clearing out his house.

[7] In cross-examination it was put to the pursuer that the difference between the 2004 shoes and the 2006 shoes was simply that he was comparing old, worn down shoes with new ones. He did not agree. The pursuer was asked to consider the point again in re-examination. The exchange went as follows:-

"When you put on the 2006 shoes, did they feel different?

-         They were lower to the ground. I felt smaller.

It was put to you that the only difference was that the 2004 shoes had been walked in. Did the 2006 shoes feel stiffer or not?

-         They felt wider. They were a wider fit.

And were they stiffer or the same?

-         (After a lengthy pause) I can't remember exactly how they felt. They felt like a new pair of shoes. I can't say if they felt stiffer."

[8] On 20 March 2007 the pursuer was seen at the BUPA Wellness Centre in Glasgow, having been referred there by the defenders. In a letter sent to the defenders dated 21 March 2007 an occupational health physician at the Centre, Dr A D Scott, reported that the pursuer had been off work for some time complaining of pain in his left foot, particularly when walking. The letter went on to say that the pursuer had what appeared to be a metatarsalgia, which is a chronic condition affecting tendons and bones of the foot. It is of interest to note that Dr Scott then said that the condition would certainly be made worse by any tight-fitting footwear. He had advised the pursuer not to wear the issued safety shoes. Significantly, there was no mention made of the pursuer's safety footwear being too wide (indeed rather the reverse it would seem) and no mention of the soles being too hard or stiff.

[9] On 18 May 2007 the pursuer was examined at the Orthopaedic Assessment Clinic at Mountcastle Health Centre. He had been referred there by his General Practitioner. A diagnosis of Morton's Neuroma was made. The Treatment Plan issued by the Health Centre stated that the pursuer felt that his foot problems were exacerbated by his work footwear. It was suggested that insoles would help aid his foot function and his return to work. It is interesting to note that the report sent to the General Practitioner then continued by suggesting the use of ice packs twice daily "on footwear that are (sic) wide at the metatarsal region". Again, there appears to have been no suggestion by the pursuer at this time that the 2006 shoes were too wide or that the soles were too stiff.

[10] In early August 2007 the pursuer attended a podiatry practice in Edinburgh, known as Abbeyhill Footcare. This was at the defenders' behest; they paid the relative fees. From the notes it is clear that the podiatrist, Mrs Pam Baxter, carried out a detailed examination of the pursuer's feet. She too diagnosed Morton's Neuroma in his left foot. She made no note of the pursuer having mentioned that the 2006 shoes were too wide or that the soles were too stiff.

[11] In his evidence the pursuer referred to discussions he had had with two other managers employed by the defenders concerning his foot problems: Mr Edward Brown and Mr John McBrinn. Each of them gave evidence. The pursuer did not tell either of them that the 2006 shoes were too wide or that the soles were too stiff.

[12] The abandonment of the pursuer's common law case means that a good deal of the rest of the factual evidence led at the proof is now irrelevant. I should, however, mention that there was evidence from the pursuer's wife, Mrs Tracey Knox, to the effect that the pursuer first began to complain of pain in his left foot soon after he had been supplied with the 2006 shoes. Beyond that, she added little.

[13] I should also refer at this point to the evidence given by Mr Stewart Barr, the defenders' Head of Occupational Safety. He gave unchallenged evidence to the following effect. The defenders' health and safety procedures require that a safety responsibility statement is prepared for each position in their organisation. Mr Barr is responsible for considering what the safety risks are in respect of each post. In the case of employees who work on station platforms, such as train dispatchers like the pursuer, the safety risks have been assessed to include those arising from heavy objects falling onto or otherwise coming into contact with an employee's feet. Such employees are, therefore, required to wear safety footwear with steel toe caps. Mr Barr explained that he had no prior knowledge of Morton's Neuroma from his experience in his post, from his professional training or from his continuing professional development.

Conclusions on the condition of the 2006 shoes

[14] There were two aspects to the pursuer's complaints at the proof about the condition of the 2006 shoes: (a) that they were too wide and (b) that the soles were too hard or too stiff. I consider that the pursuer has failed to prove either of these two complaints.

[15] So far as the width of the shoes is concerned, the only evidence that they were too wide came from the pursuer himself and it was, as will be apparent from what I have already said, couched in the most general of terms. The 2006 shoes themselves were not produced. None of the medical witnesses had been asked to test whether a size 10 safety shoe of the type issued to the pursuer in 2006 was too wide for his left foot or that the sole was too hard for him. There was no evidence that such shoes had been technically examined or properly measured or that their suitability for the pursuer's feet had ever been evaluated by someone qualified so to do. This means that in order to find that the shoes were too wide and that their soles were too hard, I would have to accept as credible and reliable the pursuer's evidence on these points. So far as credibility is concerned, I was not invited to hold that the pursuer was an untruthful witness. He seemed to me to be doing his best to provide an accurate account of matters to the best of his recollection, as it stood at the time of the proof. As to his reliability, however, I was left with major doubts for a number of reasons. Overall, the evidence showed that the pursuer was a poor historian. He was vague and uncertain in the account he gave of the history and sequence of important events forming the basis of his case. Moreover, on a number of significant factual issues his evidence was inconsistent with that of other witnesses. For example, the pursuer said in evidence-in-chief that he had taken the 2006 shoes to the initial examination at Abbeyhill Footcare on 2 August 2007. He said that he showed them to Mrs Baxter, that he had tried them on to let her see him wearing them and that he had walked back and forth in them a few times. When confronted with her detailed notes in cross-examination, however, the pursuer had to accept that these made no reference to his having worn the 2006 shoes at either of his appointments with her. Mrs Baxter's evidence was that the pursuer had not worn the 2006 shoes when she examined him on 2 August 2007.

[16] Another example of the unreliability of the pursuer's recollection of events arose from his evidence about the conversation he said that he had had with one of the defender's managers, Mr Edward Brown. The pursuer gave a detailed and specific account that, in or about January 2007, Mr Brown approached him on platform 14. The pursuer claimed that Mr Brown told him that he had been informed that the pursuer was complaining of suffering from painful feet. I should mention that this chapter of evidence was relevant and of some importance to the pursuer's common law case. According to the pursuer, Mr Brown asked him how he was. The pursuer replied that his left foot was very sore. Then, the pursuer maintained, Mr Brown said that he had himself undergone a leg operation so he knew that the pursuer's problem would be uncomfortable. In cross-examination the pursuer was pressed as to whether any such conversation had taken place, but he was adamant that it had. When Mr Brown came to give evidence he was, however, very clear that he had had no knowledge whatsoever of the pursuer's problem with his feet until after the pursuer had gone off work in February 2007. In March 2007 he had referred the pursuer to BUPA in Glasgow so that he could undergo an occupational health assessment. In particular, Mr Brown denied that he had ever had a conversation with the pursuer about his feet. Mr Brown then went on to say that he had never had an operation on his legs. I noted that on the last point Mr Brown was not challenged in cross-examination on behalf of the pursuer. It seemed to me that Mr Brown was a clear and reliable witness and there could be no doubt that he was being truthful when he said that he had never had leg surgery. This sharp discrepancy, to my mind, makes it impossible to accept the accuracy of the pursuer's account of his alleged conversation with Mr Brown; this was, as I have observed already, an important aspect of the pursuer's pleaded case (see the averments on Record at page 7A - B).

[17] A further feature of the case which calls into question the pursuer's reliability, in my opinion, is that he has given differing accounts over the years as to the nature of his condition. For example, he told Mr Colin Thomson, a specialist podiatrist who examined him for the purpose of the present proceedings, that after his return to work following his initial absence he was sent to see a podiatrist. He told Mr Thomson that he was diagnosed with plantar fasciitis. He gave the same account to Mr John McKinley, a consultant orthopaedic surgeon, instructed to examine him for the purposes of the case. Mr McKinley examined the pursuer on 16 November 2009. In his report he provided a detailed history of the pursuer's injury based on an account the pursuer provided to him. That account was clearly to the effect that the pursuer had been diagnosed by a podiatrist in Abbeyhill as having plantar fasciitis. The pursuer at one point in his evidence said the same. It is clear, however, that Mrs Baxter of Abbeyhill Footcare, who, as I have already explained, carried out a detailed podiatric assessment of the pursuer in early August 2007 diagnosed (correctly) that the pursuer had Morton's Neuroma. The same diagnosis was made at the Orthopaedic Assessment Clinic at the Mountcastle Health Centre, to which the pursuer was referred by his General Practitioner, in May 2007. The pursuer said in evidence that he believed that he was being treated for plantar fasciitis and that this belief was based on what he had been told by the duty manager at Waverley Station, Mr Alastair Scott, with whom he had discussed matters in January 2007. In cross-examination the pursuer accepted that he had difficulty in remembering how his various medical appointments fitted in with each other. I accept that the pursuer should not be criticised for minor inaccuracies on points of detail, but it seems to me that his confused recollection as to the very nature of his medical problem does again cast a considerable degree of doubt over his general reliability as a witness on other important factual issues.

[18] In considering whether to accept the particular complaints now advanced by the pursuer about the 2006 shoes, it also seems to me to be important to note that in none of the discussions he had with any of the three managers to whom he spoke about his foot problems did he make any mention of the 2006 shoes being too wide or having soles that were too hard. The same observation can be made about the discussions the pursuer had with his General Practitioner and with the other medical professionals, including a podiatrist, who saw him relatively soon after the problem first arose. I note also that the pursuer did not tell Mr McKinley, the independent consultant instructed on his behalf as an expert witness, about the alleged problems with the 2006 shoes. Finally, I note that in his report prepared in December 2009 on the pursuer's instructions, Mr Thomson, the independent specialist podiatrist, did not record the pursuer as complaining about the 2006 shoes being too wide or having soles that were too stiff.

[19] As to the alleged hardness of the soles, the pursuer's evidence ultimately came to be in re-examination that he could not say if the 2006 shoes were stiffer than his previous pair. When he came to give evidence, Mr Iain H Annan, the independent consultant orthopaedic surgeon instructed on behalf of the defenders, compared the stiffness of the shoes lodged as samples of the 2004 shoes, particularly the soles, with the samples of the 2006 shoes. His impression coincided with my own. The 2006 shoes cannot, on any reasonable view, be said to be significantly stiffer or to have materially harder soles than the 2004 shoes.

[20] I take account also of the fact that the pursuer gave no detailed or specific evidence about the manner in which the 2006 shoes were too wide. He was not asked about their width at the metatarsal area. He led no evidence about the design of the 2006 shoes or of any variation that may be encountered as between the widths of shoes that are nominally of the same size. There was no evidence as to the way in which the 2006 shoes interacted with the pursuer's left foot.

[21] In that state of the evidence, I have no difficulty in concluding that the pursuer has fallen substantially short of establishing, even on the balance of probabilities, that the 2006 shoes were too wide or that their soles were too stiff. In my opinion, his own evidence on these points was far too vague and general to allow me safely to conclude that he has proved either of these aspects of his case. That is especially so when one considers that the pursuer did not mention these complaints to any of the many persons to whom he spoke about his painful feet soon after the problem arose, although he now claims that he noticed that the 2006 shoes were too wide and too stiff at an early stage. It follows that the pursuer has not proved any breach of the 1992 Regulations on the basis that the 2006 shoes were too wide or that their soles were too stiff. I shall come back later in this Opinion to consider whether the pursuer has proved that the defenders breached the 1992 Regulations on any other ground.

Causation

[22] It is convenient to look next, however, at the question of whether the pursuer has proved that his Morton's Neuroma could have been caused by the 2006 shoes, if they were too wide or had soles that were too stiff. On this issue, I heard medical evidence from Mr Thomson and Mr McKinley, who were led on behalf of the pursuer and from Mr Annan, who was called as part of the defenders' case. Strictly speaking, the issue of causation does not arise since I have found that the pursuer has failed to prove that either of the problems with the 2006 shoes on which he relied existed, but since the question was addressed in the evidence it is right that I should give my opinion on it.

[23] I should explain first what I understand, on the basis of the evidence led at the proof, Morton's Neuroma to be. The typical symptoms were first described by T G Morton of Philadelphia in 1876. In fact, the condition is not a true neuroma and would more accurately be described as Morton's metatarsalgia. In short, the condition is generally understood to be an entrapment neuropathy, most usually affecting the third interdigital nerve, sometimes the second interdigital nerve and rarely the first and fourth interdigital nerves. The medical experts agreed that the aetiology of Morton's Neuroma is not well understood. A number of theories have been discussed. These are reviewed in some detail in an article by Hassouna and Singh published in Acta Orthopaedica Belgica in 2005 entitled "Morton's metatarsalgia: Pathogenesis, aetiology and current management". The theories include the possibility of chronic trauma arising from mechanical effects in the forefoot during walking and weight-bearing; ischaemia; intermetatarsal bursitis; and nerve entrapment. So far as nerve entrapment is concerned, this is thought to arise from compressive forces against the deep transverse intermetatarsal ligament. Classically the condition manifests as a paroxysmal burning sensation, often described by the patient as feeling like walking on a hot pebble or having a hot poker forced between the toes. It would appear to be generally accepted that the pain is considerably aggravated by walking in shoes and is relieved by rest.

[24] With regard to the type of footwear that can be implicated in causing Morton's Neuroma, it seems to me that the medical literature referred to at the proof was overwhelmingly to the effect that the condition can be caused by the wearing of pointed and high-heeled shoes and not by wide shoes or shoes with hard soles. Thus, Dr Kent Wu of the Henry Ford Hospital in Detroit, in a review article published in the Journal of Foot and Ankle Surgery in 1996, observed that the condition "exhibited a predilection for fashion-minded women between the fourth and sixth decades of life who frequently wear pointed and high-heeled shoes." Similar views are expressed throughout the medical literature that was referred to by the experts in their evidence. Another example is to be found in the article by Hassouna and Singh already cited. They explain that high-heeled, narrow toe-box shoes increase the plantar pressure over the metatarsal heads, causing compression, stretching and tethering of the underlying digital nerves. I note also that in the chapter on Morton's Neuroma contained in McGlamry's Comprehensive Textbook of Foot and Ankle Surgery the authors state that the use of narrow or tight-fitting shoes can both instigate and aggravate symptoms. Pointed toes or narrow shoes create compressive forces which favour the production of metatarsal neuromas in any type of foot. High-heeled shoes not only throw weight forward onto the ball of the foot and jam the toes into the narrow front of the shoe, they also force the toes into hyperextension thereby encouraging compression of the nerve. When discussing conservative management of the condition, the authors state that wider shoes with adequate toe space along with good arch support are a good recommendation. Avoiding high heels was also a reasonable choice. Spina, Cameron and Alexander from Victoria University in Melbourne also observed in an article published in 2002 that most patients will have greater symptoms in tight shoes. By contrast, support for the hypothesis that the condition can be triggered by wide-fitting shoes is very thin (to say the least) in the literature cited to me. In the article published by Spina et al there is reference to a few patients having more symptoms in wide shoes. It is not, however, suggested by the authors that there is any support for the view that the wearing of wide-fitting shoes could in itself be causative of the condition. It is worth noting in this connection that all the medical experts who testified at the proof agreed that conservative treatment of the condition starts in practice with advice to patients that they should wear low-heeled, wide shoes.

[25] As to whether thick or hard soles could be a causative factor in the development of Morton's Neuroma, none of the peer-reviewed papers referred to in evidence supported - or even suggested - this as a possibility. Hassouna and Singh state, on the contrary, that a stiff-soled shoe may decrease pain due to limitation of metatarsophalangeal extension during the toe-off phase. The expert witnesses were also agreed that dorsiflexion of the toes may cause stretching of the nerve. It seems to me that a mechanism whereby increased dorsiflexion may cause stretching of the nerve is easily reconciled with the onset of Morton's neuroma. I consider that the balance of the medical evidence was that decreasing dorsiflexion was a factor tending to protect against the condition. The principal source relied on by the pursuer in regard to the alleged causative contribution of a hard or thick sole was an internet posting by Dr Nirenberg in 2009 on the website entitled "americaspodiatrist.com". This was not, however, a peer-reviewed paper. It was not even a paper addressing the causation of Morton's neuroma. It appears to have been an article aimed at the lay reader, discussing at a very general level why the wearing of shoes may cause harm to feet. Putting it at its highest, it considers why footwear in childhood may be implicated in "many foot ailments". At one point the author posited the rather hesitantly expressed view that "perhaps we need to add to tight-fitting the inflexible shoe and the thick-soled shoe". In my opinion, Dr Nirenberg's article cannot be regarded as having provided solid scientific support for the view that Morton's Neuroma can be caused by thick or hard-soled shoes.

[26] On the basis of the evidence led at the proof, I conclude that there is no support in the medical literature (at least insofar as it was put before me) for the view that Morton's Neuroma can be caused by the wearing of wide-fitting or hard-soled footwear.

[27] I turn then to examine the evidence of the expert medical witnesses who testified at the proof. Mr Thomson believed that Morton's Neuroma could be caused by footwear. He had not, however, examined the 2006 shoes or how they fitted the pursuer's feet. He had never seen the pursuer wearing the 2006 shoes. He had had no opportunity to measure or test the 2006 shoes. Mr Thomson explained that about 90 per cent of his patients with the condition were women. He confirmed that the condition could be caused by high-heeled shoes with narrow toes, but he thought that thin-soled or hard-soled shoes could also play a part and could exacerbate symptoms. When asked about the biomechanical effects of the 2006 sample shoes on the foot, it seemed to me that Mr Thomson's evidence was expressed very tentatively and, as it had to be in the circumstances, at a high level of generality. He suggested that if the sole did not yield, the toes would not dorsi-flex, although that would not itself have an impact on the nerve. There would, however, be compressive forces from the unyielding sole. Such compressive forces, if experienced over a prolonged and continuous period could, he suggested, result in trauma to the ball of the foot and increase the risk of Morton's Neuroma. So far as the width of footwear was concerned, Mr Thomson suggested that wider shoes would allow greater movement of the feet within the shoes. There would then be what he described as a subconscious tendency to move the toes to a greater extent than was desirable. This would not directly increase the risk of developing Morton's Neuroma, but if the toes were bent or clawed, this would put tension on the nerve and this mechanism could potentially increase the likelihood of Morton's Neuroma. Mr Thomson went on to say that there was usually a trigger for the development of the condition. He thought that the fact that the pursuer had been issued with the 2006 shoes shortly before he began to experience symptoms was in itself significant. The new shoes may have caused him to alter his gait and this in turn could have led to the onset of the condition. Mr Thomson explained that he had treated many patients who had developed Morton's Neuroma after wearing hard-soled shoes by prescribing an insole. Such treatment had often been effective.

[28] Mr McKinley advanced, in what seemed to me to be equally hesitant terms, a theory linking the wearing of shoes that were too wide with the occurrence of Morton's Neuroma. He suggested that shoes that were too wide could allow the metatarsal heads to spread to a wider degree than was desirable and thereby increase the pressure on the nerve. He said that patients often described a change of footwear shortly before noticing symptoms of the condition. Changing from a cushioned sole to a harder one might increase the risk. Mr McKinley accepted that in his evidence he was considering matters on a general basis without specific reference to the pursuer. His hypothesis was that the change of footwear to the 2006 shoes had brought on the condition in the pursuer's case. When he had examined the pursuer his understanding had been that the pursuer had been diagnosed as suffering from plantar fasciitis. In his report he had expressed the view that the pursuer's gait had changed due to the plantar fasciitis affecting his left heel. There would have been an increase in forefoot pressures allowing the development of Morton's Neuroma as a result of the altered gait. There could be many factors involved in causing Morton's Neuroma, but a change of footwear shortly before the onset of symptoms suggested, on the balance of probabilities, that the alteration in footwear had been the predisposing factor in the development of plantar fasciitis and the subsequent neuroma. When it was explained to Mr McKinley that the evidence showed that the pursuer had not developed plantar fasciitis, he said that this did not affect his view; his opinion remained that the 2006 shoes had altered the pursuer's gait. Mr McKinley was frank enough to acknowledge that he had some difficulty in seeing why wider shoes could have caused Morton's Neuroma when one considered matters in an anatomical or biomechanical sense. He suggested, very tentatively as it seemed to me, that increased splaying of the toes leading to increased pronation of the foot could be implicated. His view was that increased pronation of the foot was a risk factor for development of the condition. Loose shoes, instead of supporting the foot, could lead to increased pronation over time. At least the position was, in his words, fairly close to that. He said that when he had examined the pursuer he had not noticed that he had any obvious biomechanical abnormality in his left foot. He agreed that Morton's Neuroma could arise spontaneously; it was not a well-understood condition. He acknowledged that he had not been instructed to carry out any analysis of the 2006 shoes or to assess their interaction with the pursuer's feet.

[29] The final medical expert to give evidence was Mr Iain H Annan, who had examined the pursuer and prepared a report dated 6 May 2010 on the instructions of the defenders. In contrast to the accounts he gave to Mr Thomson and Mr McKinley, the pursuer stated to Mr Annan that the 2006 shoes were unduly wide-fitting and had a Dr Martens type of sole. In his report Mr Annan acknowledged that the pursuer's symptoms began around the time he changed his safety footwear. Despite this timing, Mr Annan considered it to be unlikely that there was any association between the 2006 shoes and the development of Morton's Neuroma, which he described as a commonly occurring condition. The conclusion of his report then continued by saying that it was very unlikely that the condition was caused by steel toe cap footwear which the pursuer described as being wide and loose with a Dr Martens sole. The condition was generally accepted to be associated with tightly fitting shoes, particularly in women.

[30] Mr Annan helpfully explained that the main culprit in the development of Morton's Neuroma was thought to be the transverse intermetatarsal ligament. The common digital plantar nerves were, as he put it, on the ground surface of those nerves. If one wore high heels, the effect would be that the toes would tend to be bent upwards (i.e. hyper-exended or dorsi-flexed) thereby bringing the nerve into contact with the under-surface of the ligament. So far as the width of a shoe was concerned, Mr Annan was in no doubt that Morton's Neuroma was more likely to be associated with a narrow shoe than with a wide one. The risk of developing the condition was generally accepted to be significantly reduced by the wearing of a wider shoe, which allowed the toes to spread in a natural way. This reduced the danger of the nerve being trapped or "nipped" at the narrowest space between the second and third toes. So far as Mr Annan was aware, there was no serious support in the medical studies for the view that wide shoes or stiff-soled shoes could cause Morton's Neuroma. Based on his own extensive clinical practice and experience, he did not consider any such theories to be sound. The pursuer's descriptions of the 2006 shoes did not fit with any of the aetiologies described in any of the medical literature of which he was aware. There was no doubt, in Mr Annan's opinion, that the condition could arise spontaneously; it could often be difficult to pinpoint the exact cause, particularly in male patients. In the pursuer's case, it was probable that the condition had arisen spontaneously. His view was reinforced by the fact that the time interval between the pursuer starting to wear the 2006 shoes and the onset of his symptoms was, in fact, rather shorter than one would normally expect. It would take longer than a period of a few weeks for the necessary fibrotic changes to develop. Mr Annan did not think that there was any significant risk of undue pronation of the foot arising from the wearing of shoes that were wider than those previously worn. He did not consider there to be any good evidence to support the theory that there was a causative link between over-pronation and Morton's Neuroma. In the very large number of patients he had seen over many years he had never formed the view that the condition might be associated with wide or stiff-soled shoes.

[31] I have come, ultimately without much difficulty, to conclude that the evidence of Mr Annan must be preferred to that given by Mr Thomson and Mr McKinley wherever there is a difference between their respective views. I say this for a number of reasons. In the first place, there is really no doubt that Mr Annan's opinions on the points in issue are supported by the consensus of the medical literature and are entirely in line with established thinking in the relevant area. Those expressed in the witness box by Mr Thomson and Mr McKinley on the same points are not consistent with the views expressed in the medical literature and must, I think, be regarded as controversial, if not somewhat unorthodox. Secondly, Mr Annan was, to my mind, a substantially more impressive witness than either of his colleagues. Not only was he the most experienced, having been a consultant orthopaedic surgeon since 1986 and specialised in foot and ankle surgery since 1995, he was also, by a considerable margin, the more definite and assured when dealing with the causation issues in the witness box. As I have already observed, I had the impression with both Mr Thomson and Mr McKinley that the support they were willing (or persuaded in the witness box) to lend to the theories which favoured the pursuer's case was tentative and, I am bound to say, to my mind unconvincing. This is perhaps unsurprising since there is, so far as shown by the evidence in the present case, no (or at the very best for the pursuer extremely faint) support for these theories in established medical thinking. Counsel for the pursuer, in his closing submissions, criticised Mr Annan on the ground that he was unduly partisan and too strong an advocate for his own views. In my opinion, such criticism is misconceived. My impression was that Mr Annan was sufficiently confident in his thinking and opinions to be able to respond effectively to the challenges put to him (quite properly) in cross-examination. I do not think that there is anything wrong in his doing so in what seemed to me to be a clear and definite manner. Finally on the medical evidence, I would observe that the position taken up by the pursuer's expert witnesses really came down to the view that because the pursuer had been supplied with new shoes shortly before the onset of his Morton's Neuroma, it must follow that there was some causative mechanism at play. It seemed to me, however, that both Mr Thomson and Mr McKinley were unable to explain convincingly what the nature of the relevant mechanism was. Ultimately, they suggested that there might have been some alteration in the pursuer's gait, which had been brought on by the wearing of the 2006 shoes. But there was no evidence that the pursuer's gait had been investigated or analysed, although with modern technology this could easily have been done. The pursuer was not asked about whether he had himself noticed any change in his gait. The issue was not referred to in any of his medical records. I note also that this theory is not discussed in any of the medical studies referred to in the evidence. In the circumstances, the explanation based on a supposed alteration in the pursuer's gait seems to me to be purely speculative and unsupported by the evidence. I conclude that the pursuer has failed to prove that the 2006 shoes caused his Morton's Neuroma to any extent.

The 1992 Regulations

[32] In terms of regulation 4(1) of the 1992 Regulations, the duty laid on an employer is to provide to his employees personal protective equipment ("PPE") which is "suitable". The pursuer submitted that any PPE which caused injury to the foot was, by definition, unsuitable. Since I have held that the 2006 shoes did not cause any injury to the pursuer's left foot (in particular Morton's Neuroma), it follows that this aspect of the pursuer's case must be rejected.

[33] At the stage of closing submissions counsel for the pursuer sought to raise, for the first time, a case based on the proposition that the 2006 shoes were ergonomically unsuitable for the pursuer's feet. The pursuer submitted that, in any event, PPE in order to be suitable had to take account of the ergonomic requirements of the person who wore it (regulation 4(3)(b)). The argument was that if the interaction of the pursuer's left foot and the left 2006 shoe caused the pursuer to develop Morton's Neuroma, then the 2006 shoes were not suitable because insufficient account had been taken of ergonomic requirements. In my opinion, this line of argument must be rejected. The science of ergonomics was not explored to any extent in the evidence at the proof. There was, as I have already explained, no evidence as to the interaction between the pursuer's left foot and the 2006 shoes.

[34] Then the pursuer argued that if his state of health was such that he was particularly susceptible to developing Morton's Neuroma and the cause of the onset of his condition was the PPE, then the 2006 shoes were not suitable. I reject this line of argument. There was no evidence that the pursuer had any degree of susceptibility to the condition. In any event, he has failed to prove that the PPE caused the condition.

[35] In relation to regulations 6 and 7, it was accepted that the pursuer could only succeed in the event that he proved that the Morton's Neuroma was caused by the PPE. Since he has failed to prove this, it follows that this line of argument also falls to be rejected. As to regulation 6, which requires that there should be an assessment of the suitability of the PPE by the employer, I consider that the defenders carried out an appropriate and satisfactory risk assessment for the pursuer's position as a train dispatcher. The unchallenged evidence of Mr Barr was to the effect that the defenders assessed the risks of which they could reasonably have been expected to be aware and provided PPE which was suitable to guard against such risks. The risk that the pursuer might develop Morton's Neuroma was not, as it seems to me, a risk which was reasonably capable of having been identified by the defenders.

[36] I should record that at the stage of closing submissions, brief reference was made by both parties to certain authorities. I have considered these, but none was (as both sides ultimately accepted) in point. In my view, the case turns on its own particular facts. The Solicitor-Advocate for the defenders made reference to a decision of the House of Lords in the case of Fytche v Wincanton Logistics plc [2004] ICR 975, a case involving a very different set of facts to the present one. It concerned a claim based on a tiny undiscoverable hole in a pair of safety boots, which were not intended to be waterproof or used in extreme weather conditions. The unsuccessful claimant was a milk tanker driver, whose vehicle became stuck in snow on an icy road in the South Downs. The case was decided against the claimant on the basis that the safety boots were ordinarily satisfactory for his usual conditions of work, notwithstanding the tiny hole. That being so, it could not be said that the continuing existence of the hole amounted to a breach of the employer's duty under regulation 7 to maintain the boots in good repair. In the present case there was no defect in the 2006 shoes; so it may be thought to be a fortiori of Fytche. Nor was there any evidence to suggest that the defenders should have foreseen that the pursuer was likely to develop Morton's Neuroma or any other foot condition as a result of wearing a perfectly sound pair of safety shoes. In the circumstances, I can see no basis on which the defenders could be held to have breached any duty incumbent on them under the 1992 Regulations.

Result

[37] In the result, I hold that the pursuer has failed to prove that the 2006 shoes did not fit his left foot properly; in particular, he has not established that the shoes were too wide for him or that their soles were too hard or unduly stiff. He has not proved that the defenders did not take account of the ergonomic requirements of wearers of the 2006 shoes. Moreover, he has failed to prove any causal link between the condition of the 2006 shoes and the onset of his Morton's Neuroma. Accordingly, I have pronounced decree of absolvitor and reserved all questions as to expenses.