WRULD DB-Claimant: Mrs Mary Campbell-Weller

Case	Task	Injury	Date	Court	Judgment for
Campbell-Weller -v- Omnicom Europe Ltd	DSE use: data entry / administrative tasks	Carpal Tunnel Syndrome	8 Nov 2010	Cambridge County	Claimant

Mrs Mary Campbell-Weller's claimed damages for personal injury suffered in the course of her employment by the Defendant, Omnicom Europe Limited, who employed her as an accounts payable assistant, which involved intensive use of a computer keyboard. The Claimant suffered carpal tunnel syndrome (CTS) with the associated pain and suffering. She claimed that this was caused by the Defendant's work practices. The Claimant relied on her employer's duty of care at common law and on breaches of various statutory duties under health and safety legislation. In the opening paragraph of his Judgment on the 8th November 2010, HH Judge O'Brien said:

The real issue in the case is the causation of CTS and the consequent pain and suffering.

Large parts of the Judgment were taken up by a detailed chronology of events and a review of the medical records and reports. The medical evidence is summarized in paragraph 52 of the Judgment of HH Judge O'Brien:

The doctors met and prepared a joint medical report on 22nd February 2010. They agreed that the diagnosis of bilateral carpal tunnel syndrome in 2004 was correct and that the surgical treatment was appropriate and that a successful result was achieved. They agreed that the claimant had suffered from a number of musculoskeletal symptoms and signs which were not caused by work. They agreed that, although she had complained of further symptoms and signs in her hands, neurophysiological investigations had not identified any median nerve compression. Both agreed that, at times, the claimant has had symptoms of ulnar nerve irritation but that this was not caused by her work, and they were agreed that she had had an unusual number of steroid injections, some of which were into locations not normally considered appropriate to the treatment of carpal tunnel syndrome. They disagreed, importantly; [the Defendant's Medical Expert] being of the opinion that neither the initial carpal tunnel syndrome nor any of her subsequent musculoskeletal symptoms were caused by the nature of her work, there being no biomechanical link between carpal tunnel syndrome and keyboard work. [The Defendant's Medical Expert] pointed out that she is of the correct gender and age to suffer from carpal tunnel syndrome, and then he referred to various research papers, which I will come to in due course. [The Claimant's Medical Expert], on the other hand, believed that the 2004 carpal tunnel syndrome was caused and exacerbated by the nature of the claimant's work.

HH Judge O'Brien then turned to issues relating to breach of duty and in paragraphs 54 to 56 of his Judgment said:

The claimant's counsel, mercifully, limited what might otherwise have been a vast area of enquiry by submitting that, having regard to the effect of limitation pleaded by the defendant, this issue really boils down to the alleged substantial increase in the claimant's workload in early December 2003 when her colleague, Mr Wally Bursari, left and was not replaced. His workload was distributed via herself and her two colleagues. The claimant's evidence that this increased her workload considerably - in fact doubled it - went unchallenged.

The history so far shows a story of an inconsistent approach by the defendant to the claimant's admitted problems at work. It is right that her work station was regularly assessed and her complaints were usually listened to. Sometimes (but not always) the advice of ergonomist and occupational medical experts was taken but, importantly, their advice about breaks and rotating work was not followed. By the time of the breach relied on, there was near three-year history of complaints by the claimant about pain in her wrists and her workload. In my judgment, it is perfectly plain, in the light of the claimant's employment history with the defendant, that by doubling (or even if it was nearly doubling) the claimant's workload in early December 2003, the defendant was in breach of its common law duty to provide the claimant with a safe system of work and to take reasonable care to ensure that she would not suffer physical harm in the course of her employment.

Of about ten statutory duties pleaded, the claimant's counsel, sensibly, pointed to the three most relevant to this case. They are all duties under the Health and Safety (Display Screen Equipment) Regulations 1992. I find a breach of Regulation 2(2)(b) in that on 6th December 2003 there was a significant change in the matters to which the earlier analysis of the claimant's work station related - that is to say, the doubling of her work - but no review of that analysis. I find a breach of Regulation 2(3) in that the defendant failed to reduce the risks identified to the lowest step reasonably practicable ....... by reallocating less extra work to the claimant or by employing another person to help. I find a breach of Regulation 4 in that the defendant failed so to plan the claimant's work as to interrupt it periodically by such breaks or changes of activities as would reduce her workload at the equipment.

HH Judge O'Brien then returned to the medical evidence and made some critical comments about the Claimant's Medical Expert, in paragraphs 60 to 63 of his Judgment in which he said:

I have to say, with regret, that [the Claimant's Medical Expert] was not a witness who was very helpful to this court. It was, of course, not his fault that he attended court with an eye problem that prevented him from reading any documents in court; however, he was plainly in default of an expert's duty to refer to the range of opinion on the matter which includes a respectable body of specialists who argue that there is no proven link between keyboard work and CTS. He was plainly aware of this body of opinion because, in his book (published, I think, in about 1997), he referred to its adherents as "flat-earthers".

When challenged on the aetiology of CTS, he frequently took refuge in asserting that he had not been instructed to deal with this but simply on the success of the CTS surgery. This was despite the fact that it was clear from his reports (and, ultimately, from his instructions, as well) that he did deal with the aetiology, and clear from his instructions that he was instructed so to do.

When challenged with the lack of any research cited, his response was that he thought this case was settled and he had not wasted any time seeking out such papers to produce to the court. I pause to observe that if he thought this case was settled, one has to wonder what he thought he was doing coming along to court to give evidence. He asserted that he could have produced any number of such papers if required to do so. In fact, after the beginning of his evidence on the Thursday of the trial had been challenged, he produced none on the second day of the trial and sent just one by Greening and Lynn (1997) on day three, on which he was not required and did not attend. As neither expert was still present at that stage, it is difficult to evaluate this research. It may lend some support to a link between computer work and repetitive strain injury. In the circumstances, I am unable to give it very much weight in this case.

His reaction to [the Defendant's Medical Expert]'s original report was essentially that it was very long and that, although [the Defendant's Medical Expert] was entitled to his opinion, he was wrong. Overall, he simply adopted an old-school patrician attitude that he was presenting his opinion which was plainly right and the court should be able to see that [the Defendant's Medical Expert] and others of his ilk were simply on a mistaken crusade.

Having reviewed the research papers relied upon by the Defendant's Medical Expert, HH Judge O'Brien said, in paragraphs 79 & 80 of his Judgment:

Looked at overall, the evidence and the medical research in this case has failed to persuade me that the slight possibility that keyboard work may cause CTS is actually a probability on the facts of the claimant's case. It is more probable that it has not. [The Defendant's Medical Expert] was of the view that not only does keyboard work not cause CTS but it does not accelerate its onset or aggravate the disease. There has been no discrete argument contradicting his opinion on acceleration or aggravation of the disease. By that, I mean that his opinion overall was resisted but it was not broken down into those three separate elements. Having accepted his opinion on causation overall, I accept his opinion on acceleration and aggravation.

The situation in this case on the balance of probability on the evidence is that the claimant suffered from CTS for a good deal of the time that she worked for the defendant. The nature of her work plainly exacerbated the painful symptoms which she has described. It was plain to the defendant that her work tended to cause her discomfort and pain. I have already found that it was in breach of its duty to her by doubling her workload on or about 7th December 2003 and remained in breach until about 7th June 2004 when assistance was obtained. It seems to me, therefore, that the defendant is liable to the claimant on a limited basis for the extra pain and suffering she suffered in that six-month period as a result of its breach of duty.

HH Judge O'Brien awarded the Claimant general damages of £1,600 for pain, suffering and loss of amenity.

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Last updated: 14/05/2013