WRULD DB-Plaintiff: Stephen Harmer

Case	Task	Injury	Date	Court	Judgment for
Mountenay (Hazzard) & others - v - Bernard Matthews plc	Poultry processing: bagging/skinning	Tenosynovitis, Carpal Tunnel Syndrome	9 Jul 1993	Norwich County	Plaintiff

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Nine actions, heard together, were brought by nine separate claimants employed by the defendants in poultry processing factories, involving repetitive, strenuous work, in circumstances where the claimants came to suffer from various disorders of the hands, fingers and wrists, mainly pain, aching and swelling. Whether RSI, or WRULD, is a recognised clinical condition; whether symptoms complained of were work-related; whether any of the claimants had become sensitised as a result; whether damages recoverable for future and continuing loss.

All nine claimants were, or had been, employees of the defendant company and had worked at one or other of the defendants' poultry processing factories at Holton in Suffolk and at Great Witchingham in Norfolk. The factory processes included the killing, evisceration, skinning, cutting, bagging and boxing of poultry. Work on the E line (mainly evisceration) and on the FP line (further processing, including cutting and skinning) involved strenuous, repetitive work in which employees' wrists and hands were used at various angles, and with varying degrees of force and awkwardness. Bagging and boxing involved similar physical strain but to a lesser degree.

The defendants' business, started in 1950, grew steadily during the 1960s and 1970s into a major poultry processing operation. By about 1972, the defendants had become aware that several of their employees suffered from various disorders of the upper limbs (mainly the hands, fingers and wrists) which could be work-related. In 1977 the Health and Safety Executive issued a Circular MS10 on Beat Conditions: Tenosynovitis (TS, a recognised upper limb disorder) in which TS was described as an important cause of sickness absence and said to be the second most common prescribed disease in the United Kingdom, occurring, inter alia, in the work of eviscerating and trussing chickens, and liable to result from trauma, overuse of the wrists and forearms during repetitive operations, unaccustomed work, alteration in work tempo or from persistent strain. It was said to occur most often in new employees, or in employees returning to work after an absence, or on the introduction of new tools or processes, thus placing unaccustomed strain on muscles.

It was not until the early 1980s that the defendants started taking positive steps to confront the problem. In 1983 (by which time the defendants had notice of claims by employees against them) a notice, warning of the risks of repetitive, strenuous work, was prepared but was not issued to all existing employees or to all new employees taken on thereafter. The defendants were concerned that, if they attached too much importance to the problem, it would encourage malingerers to make false claims. In 1985, by which time the number of claims had increased, the defendants agreed to fund a University Research Project into TS and the general problem of Upper Limb Disorders (ULD). In late 1987, the defendants still had not developed a formal training programme for new employees put on repetitive, strenuous work, nor were employees, returning to work after absence (whether or not due to RSI), re-introduced gently back into their routine. It was not until the late 1980s (by which time several writs had been issued), that the defendants took any major steps to combat the problem of WRULD and to minimise the risk of employees developing symptoms

Writs in the nine separate actions were issued between 1987 and 1990. All nine claimants claimed damages against the defendants for personal injury suffered by them during the course of their employment, such injury being alleged to fall within a recognised category of RSI, or WRULD. At the trial of the nine actions, heard together in the Spring of 1993, the judge had to determine a number of issues, the principal issues being:
(1) whether the defendants had breached the duty of care owed to the claimants in one or more of several respects, including:
(a) failing to warn them of the risk of developing some upper limb disorder as a consequence of the work they did;
(b) failing to provide proper and adequate equipment;
(c) failing to have a system of regular rotation of jobs on the various production lines involving repetitive, strenuous work;
(d) failing to have a system of "gentle introduction" of new employees on to the various production lines involving repetitive, strenuous work;
(2) whether any proven breach of the duty of care was causative of the personal injury suffered by the claimants;
(3) whether RSI, or WRULD, was a medical condition recognisable as such, or whether the symptoms complained of all related in some way to different and diagnosable conditions which are or may be connected with certain working practices; conditions such as teno-synovitis (TS, inflammation of the synovial sheath of the tendon); peritendinitis crepitans (PC, inflammation proximal to the tendon sheath); De Quervain's Syndrome (DQS, affecting the radial aspect of the wrist); tendovaginitis (trigger finger/thumb); carpal tunnel syndrome (CTS, constitutional in origin, and involving the compression of the median nerve in the carpal tunnel); epicondylitis (tennis elbow);
(4) whether any claimants, proved to have suffered from a recognisable clinical condition of the upper limbs, or from a work-related upper limb disorder, had become sensitised in the sense that they would thereafter be more prone to recurrence of the symptoms, even if the aggravating cause had been removed, or lessened;
(5) even if sensitisation could not be proved, whether any of the claimants could recover damages for continuing or future loss of earnings or for being at a disadvantage on the open labour market as a result of their personal injury.

In his judgment, the trial judge first made a number of general findings on the issues of liability, causation and on the status and nature of the personal injury complained of, and he then applied those findings to the individual cases of each claimant.

Liability
The judge held first that the defendants had failed to warn adequately, or at all, employees doing repetitive, strenuous work of the risks inherent in doing that sort of work, but that the failure to warn was not causative of the injuries complained of on the basis that none of the claimants would have refused the employment if they had been warned. The judge also found that the allegation of inadequate equipment was not made out. He did find, however, that the defendants had failed to institute any adequate system of rotation of tasks on those production lines where the risk was significant, in particular the E and FP lines. In addition, the defendants had failed to adopt any adequate system of "gentle introduction" of new employees on to those production lines.

Causation
This involved a consideration of the medical evidence in the case of each claimant and the judge held that, in six out of the nine claims, there was a causative link between the proven breaches of duty and the injuries complained of.

On the medical issue as to what the claimants had suffered from precisely, the claimants had contended that there was, now, a specific clinical condition known as WRULD, or diffuse RSI, in addition to other known medical conditions. The judge held that, on the evidence placed before him, he was not able to make such a finding. He did find, however, that, in principle, a worker could recover in respect of pain going beyond the aches and pains of a stressful job to the extent that if it has been suffered as a consequence of any breach of duty by the defendant, albeit that the foreseeable risk giving rise to that duty was the risk of one of the recognisably clinical conditions to which reference has already been made, rather than of simple pain as noted above. This ruling was material to one claimant, namely Miss Cockaday who recovered damages for pain beyond the norm to be expected.

On the issue of sensitisation, the judge held that it had not been proved that a recurrence of symptoms in any of the nine cases should be attributed to the original occurrence. Any recurrence was likely to be due to a continuation of the susceptibility that had led to the original episode of trouble.

On the issue of entitlement to damages for categories of future loss, the judge held that even though, in some cases, there was evidence that a claimant was now at a disadvantage on the open labour market because of continuing symptoms or because of a history of, e.g. TS, such continuing disability was too remote from the consequences of the defendants' negligence: "The true cause of the disadvantage on the open labour market is the misfortune of the underlying susceptibility and not the co-incidence of revelation, however that came about.";

The judge then dealt with each of the nine claims in turn.

Mrs Joy Mountenay (Date of birth: March 2, 1946)
Her employment commenced in August 1990 at Holton. She started working on gammon production but after one year was transferred to the E line where she remained until she was dismissed in 1990, on medical grounds. Within three weeks of starting work on the E line she developed pain and aching in her hands and she reported it. She was supplied with a tubi-grip. Between 1983 and 1990, she continued to suffer from pain, aching and swelling in her wrists and hands and she was away from work for several periods, but not all her absences from work were connected with her upper limb disorders. Her doctors diagnosed her as having a diffuse, work-related upper limb disorder, involving an element of TS, with some inflammatory process affecting the tendons. One of the defendants' doctors thought that she displayed the classic signs of TS, another doctor thought it was PC.

The judge found in favour of the claimant on liability, on the basis that there was an inadequate system of rotation on E line and that there was no satisfactory system of gentle introduction of new members to E line. He found she had suffered from TS and his award for general damages was based on five years' nagging pain and discomfort, between 1983 and 1990, which went well beyond the normal aches and pains of life, thereby seriously affecting the quality of her life. He awarded her £4,000 plus some special damages.

Mrs Shirley Spencer
She started work in September 1983 at Great Witchingham, and was put on the FP line. In December 1983, she was required to transfer to the E line for one month but, in fact, had to remain on that line permanently. Her main task was the "drawing" of poultry. Very soon after starting this work she developed pain and aching in her hands which became much worse by February 1984 and, in late August 1984, she underwent an operation, under general anaesthetic to relieve a left trigger thumb. After nine weeks off work she returned and was put back on the E line, in spite of her doctor's advice that she be transferred to a less strenuous task. Eventually she was transferred to other work where she remained until she was retired on medical grounds in May 1991. Between late 1984 and 1991, she complained persistently of continuing trouble in her hands and wrists, as well as of other ailments.

The judge found in her favour on liability on the basis that the defendants failed to organise a gentle introduction to her new work on E line in late 1983. His award was based on her pain and suffering from February 1984 through to the operation in August of that year, and to the nine weeks' recovery period, together with the slight permanent loss of flexion in her left thumb. The judge accepted (as was undisputed in the medical evidence) that Mrs Spencer had suffered a left trigger thumb, that following an operation had resulted in a very minor continuing loss of flexion in her thumb. He accepted this condition was work-related. He rejected the argument that her subsequent complaints of aches and pains were work related. He awarded her £3,000 general damages, plus some special damages.

Mr Clifford Lucken (Date of birth: February 7, 1931)
He started at Holton in October 1982 on E line, where he stayed for two to three months, and was then transferred to the hatchery where he remained until late 1984/early 1985. He then went to work on the sausage line where the work, albeit not heavy, involved rapid, repetitive movements of the wrist, in particular, extension of the wrists. He felt growing discomfort in his wrists as time went by and had some treatment in 1985 and then, in 1987, underwent surgery on each wrist in turn in order to relieve what was agreed by all to be a bi-lateral carpal tunnel syndrome. He was left with some modest but permanent pain and discomfort.

The judge held on the evidence that there was no breach of duty by the defendants in this case and that Mr Lucken's trouble was in any event constitutional in nature and not work-related. The assessment of general damages was £5,000.

Mr Nigel Page (Date of birth: October 24, 1959)
He started work at Holton in May 1980. After an initial spell on turkey logs he was transferred to the FP line. In March 1984, he first started to experience pain and aching and swelling in his upper limbs which persisted until he left the defendants' employ in December 1988. His condition was almost certainly a recurring TS.

The judge found in the claimant's favour on liability on the basis that there was no adequate system of rotation on the FP line. His award for general damages was based on four-and-a-half years of pain and suffering from early 1984 to late 1988. He awarded £3,500 plus some special damages.

Mr Stephen Harmer (Date of birth: July 19, 1963)
He started work at Holton in October 1984 on the FP line. Before the end of his 13-week training period (which included skinning, thigh cutting and bagging) he was already experiencing trouble in both his wrists. These symptoms continued into 1985 when he was transferred to the sausage line (when the trouble abated somewhat) where he remained for one year before returning to the FP line. Between 1986 and 1988 he remained on the FP line. He was off work for some time in 1987 with a probable carpal tunnel syndrome, secondary to TS. He was treated with injections by a consultant rheumatologist.

The judge found in the claimant's favour on liability on the basis of the defendants' failure to provide an adequate system of rotation and an adequate system of gentle introduction to new work. He held that, while on the FP line (two periods) Mr Harmer suffered pains in his wrists going beyond the normal aches and pains of life. He awarded general damages of £3,000 plus some special damage.

Mr Mark Emeny (Date of birth: July 3, 1965)
He started work at Holton in May 1982 on the FP line. For two years he had no trouble with his upper limbs but then started to experience pain and aching which was diagnosed as TS. In 1986, he was operated on for a ganglion which had developed and which, it was agreed, was not work-related. After that he continued to experience some symptoms of pain and aching.

The judge held that, on the evidence, Mr Emeny's medical condition was not work-related even though he held that the defendants were in breach of duty for their failure to have an adequate system of rotation on the FP line. He made no award of damages, but assessed the general damages at £1,250.

Mrs Margaret Neale (Date of birth: November 3, 1937)
After working for the defendants some years earlier, she started again in March 1982 at Great Witchingham on the bagging line. Initially she worked part-time (four hours per day) and then, in 1984, she went on to full-time work. Prior to starting full-time, she had only once reported that she was suffering from a painful right thumb, hand and wrist. Her condition worsened from mid-1984 onwards and she also suffered from other ailments, including a stiff neck. Some time in or after 1986 she was transferred to boxing which was much lighter work but her troubles persisted

The judge found that she had suffered from bilateral DQS in 1986/87, due to her working on bagging and boxing lines. He found in her favour on liability on the basis of an inadequate rotation system and awarded her £1,250 general damages plus some special damages.

Miss Julie Cockaday (Date of birth: July 8, 1968)
She started work at Great Witchingham in October 1986 on bagging. She was warned about the possible risk of trouble occurring in her upper limbs as a consequence of her work. During her training period she started to experience pain in both her wrists. Her symptoms had worsened by February 1987, when she was off work for a period. In June 1987, she was transferred to boxing where her troubles abated but did not cease altogether.

The judge found in her favour on liability on the basis of an inadequate system of rotation and gentle introduction to new work. He held that, although her symptoms could not be specifically diagnosed, they were serious enough to extend beyond the normal aches and pains of life and he awarded her general damages of £400 plus some special damages.

Mrs Deborah Norton (Date of birth: March 4, 1965)
She started work at Great Witchingham in July 1984 on bagging. She was transferred to E line in February 1985, where she worked for nearly two years without any trouble at all. In late November 1986, she started to experience pain and aching in both her wrists which continued on and off through to 1990. The judge held that Mrs Norton had failed to establish any breach of duty by the defendants. On the basis of intermittent and diminishing TS over a period of some three years, he assessed general damages at £2,000.[Robin Thompson & Partners]

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Last updated: 16/10/2009