WRULD DB-Defendant: Midland Bank plc

Case	Date	Court	Claimant	Task	Injury	Judgment for
Westray - v - Midland Bank plc	17 Jun 1997	Manchester County	Westray	DSE use: audio typing	Radial Tunnel Syndrome	Plaintiff

Doreen Westray claimed that her employment as a VDU operator at the Defendant's typing unit in Preston from May 1991 to March 1993 caused her to develop Radial Tunnel Syndrome. She alleged that: she had received no warnings from her employers about the risk of her developing an upper limb disorder; she was not told about the symptoms of upper limb disorders; she was not advised to report any symptoms promptly nor was she warned that if she did not report symptoms early the condition could deteriorate; she had received no training whatsoever about these matters.

If she had been advised or warned of these matters, the Plaintiff's evidence was that she would have reported her symptoms to her employers and her doctor with the result that she would not have had to suffer the symptoms she, in fact, suffered and would not have had to come off work in March 1993. She also complained about the frequency of the breaks she was permitted by her employers. The argument was that if she had had breaks every hour for 5 minutes, she may have avoided or delayed the onset of her symptoms.

From April 1986 to May 1991, when she was 19 years old, the Plaintiff was a secretary at the Midland Bank. She had general secretarial duties with about two hours typing per day interspersed with various other duties. The Plaintiff had been happy in her employment, however, in May 1991 she was transferred from her general secretarial job to the typing unit. This was a new unit set up to deal with all typing work from the various branches of the bank in the area. Instead of typing being carried out at each branch, a van collected the tapes from all the branches and brought them to the area typing unit.

The Plaintiff's typing load when she entered the typing unit consequently increased from two hours per day to something in the order of six and a half hours per day taking into account breaks. She took a 5 minute break every two hours, usually with other typists. It was left to the Plaintiff to choose whether she took a lunch break or not. It was the Plaintiff's habit to collect a lot of tapes and sit down and type for a long time before going to the printer to print out and collect the work she typed. She then placed the typed work in an appropriate post bag and returned to her typing. Despite the fact that the Plaintiff was not happy with her move to the typing unit, she worked hard and the Defendant's appraisals of her work were good.

One week or two weeks after the Plaintiff started in the typing unit, the Plaintiff's evidence was that she noticed that both of her hands and fingers ached and were uncomfortable. She said she told no one at work that she was experiencing these symptoms.

The Plaintiff's work from May 1991 to October 1991 is referred to as the Plaintiff's first period of employment. During this first period the Plaintiff became pregnant but unfortunately suffered from a pregnancy disorder, which caused her to go off work in October 1991. The symptoms in her hands cleared up completely while she was off work between October 1991 and 13th December 1991, during which she did no typing whatsoever. She went back to work part-time on 13th December 1991, later picking up full time work in January 1992.

The Plaintiff's work from January 1992 until April 1992 is referred to as the second period of employment. When the Plaintiff went back to work in January1992, she was typing all day from 8 to 3 with no lunch break, or from 8 to 4 with a one hour lunch break approximately once per fortnight. However, by this time a 10 minute break every two hours had been introduced by the Defendant, rather than the previous 5 minute break. Nevertheless, despite the fact that she took work more easily, her symptoms came back straight away.

From 18th April 1992 to 14th January 1993 the Plaintiff was off work on maternity leave, during which she did no typing. Her symptoms eased but she experienced a slight dull ache in her right hand if she ironed for a long time.

During what is referred to as her third period of employment from 14th January 1993 to 26th March 1993, the Plaintiff returned to work part time, alternating between two and three days per week. She always worked Mondays and Tuesdays and, on alternate weeks, the additional Wednesday. Her hours were always eight to three. She never took a lunch break. Within a few weeks her right arm and her right hand was causing her more and more problems. As the weeks went on her right elbow, wrist and fingers ached. Her hand felt weak. She had tingling in her arm and her arm ached inside and outside of the forearm. She went to her GP on 19th March 1993.

HH Judge Eaglestone came to the conclusion that, on balance, the Plaintiff had given to the Court a "reasonably accurate account" of her symptoms and went on to consider whether the Plaintiff had Radial Tunnel Syndrome. Much of this lengthy Judgment is devoted to a review of the medical evidence, following which HH Judge Eaglestone concluded that, on the balance of probabilities, the symptoms of which the Plaintiff complained were caused by and were consistent with Radial Tunnel Syndrome. After further review of the competing views of the medical experts, HH Judge Eaglestone concluded that, on the balance of probabilities, the Plaintiff's Radial Tunnel Syndrome was caused by her work as a VDU operator.

HH Judge Eaglestone went on to find that there was a foreseeable risk of the Plaintiff developing an upper limb disorder caused by her work and that the Defendant were in breach of their duty of care which they owed to the Plaintiff in that they first of all failed to instruct, train or warn the Plaintiff about the risk of upper limb disorders. Secondly, they failed to tell her about the symptoms of upper limb disorder. Thirdly, they failed to advise her to report her symptoms promptly. They failed to inform employees that if they did not report symptoms they may be at risk of deterioration and they failed to provide training at local level explaining their Code of Practice.

HH Judge Eaglestone was satisfied that the Plaintiff had a persistent problem during her first two periods of employment as well as during period three and that she ought to have been warned to report the symptoms early during period one with the result that, on the balance of probabilities, she would have been redeployed by the bank during period one. HH Judge Eaglestone found that, on the balance of probabilities, the Defendant's breach of duty caused the Plaintiff to sustain damage, namely, pain and discomfort from mid period one, approximately August 1991. By that time it would have been apparent to all concerned the Plaintiff was not suffering from mere fatigue due to unaccustomed work.

Having found that the Plaintiff had established negligence against the Defendant, HH Judge Eaglestone went on to consider whether the Defendant was in breach of regulation 4 of the DSE Regulations with respect to her third period of employment and concluded they were not.

The Plaintiff was awarded total damages of £1,595.70.

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Last updated: 16/10/2009