WRULD Claims heard in Courts in England, Scotland and Wales

Hearing(s) - Gallagher - v - Bond Pearce

Date	Court	Claimant(s)	Task	Injury	Judgment for
9 Feb 2001	Truro County	Gallagher	DSE use: legal secretarial	WRULD	Claimant

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A legal secretary was awarded £87,056.69 damages for a repetitive strain injury where her employer had breached its statutory duty under the Health and Safety (Display Screen Equipment) Regulations 1992 SI 1992/2792, its duty of care not to expose the claimant to the risk of suffering injury to her upper limbs through excessive typing and its allied duty to take reasonable steps to reduce the risk of injury to the minimum reasonably possible.

Trial in an action for damages for personal injuries sustained in the course of the claimant's ('C') employment. C had started work as a legal secretary for the defendant firm of solicitors ('D') in 1986. C worked in a very busy commercial department for a successful and hard-working partner and had a heavy workload. Initially C used an electronic typewriter but in 1990 she was provided with a word processor. In 1992 D carried out a health and safety audit in anticipation of the coming into force of the Health and Safety (Display Screen Equipment) Regulations 1992 SI 1992/2792. C was assessed as needing a document holder, a footrest, a replacement chair and blinds fitted to her window. In August 1994 C began to do overtime on Wednesday evenings at a workstation away from her usual work area. At around the same time C began to experience aches and pains in her hands and wrists and by January 1995 her symptoms included stabbing pains in her shoulders whenever she used a keyboard. In spring 1995 C was given a revised timetable incorporating specific breaks and different types of work but it still contained over five hours of typing per day. In May 1995 C requested a transfer to a different department and in June she was moved to the marketing department. At that time C's GP diagnosed her as suffering from a repetitive strain injury ('RSI') and in November 1995 D terminated C's employment. C brought this action alleging negligence and/or breach of statutory duty by D on the basis that the pain, aches and suffering she experienced were all caused by her typing and the foreseeable inadequacies of her work station and system of work. Liability was disputed. C's medical expert gave evidence that C had suffered an injury to her right arm in the form of a diffuse type 2 work-related upper limb disorder ('WRULD'), caused 100 per cent by typing. D's medical expert did not doubt that C had genuinely suffered as alleged and continued to suffer but contended that no cause could be identified although there was a 5 to 10 per cent chance that her job had caused the problem.

HELD: (1) C gave her evidence in a clear, straightforward manner and was not given to exaggeration or embellishment. (2) The original audit carried out by D was manifestly inadequate. In particular, D had failed to ensure that C was given training prior to the audit, which was a specific requirement under reg.6 of the 1992 Regulations and an absolutely essential prerequisite to the completion of any checklist. Further, C had no idea at all that the audit was purporting to be a risk assessment carried out pursuant to the 1992 Regulations. (3) Following the audit there was no adequate regard to urgency by D so far as the identified action was concerned. There was considerable delay in supplying a document holder and footrest and, therefore, D had not taken "immediate steps to reduce the risk" in accordance with para.42 of the guidance notes to the 1992 Regulations. (4) D was also in breach of reg.4 of the 1992 Regulations for failing adequately to consider the necessity of rest breaks. C's daily work routine continued in exactly the same way after the audit. (5) D's primary concern was that the typing was done and it failed to give adequate thought to the health and comfort of its employees. No audit or assessment was ever carried out in relation to the overtime workstation used by C from August 1994, which was a most unsatisfactory and uncomfortable place to work. (6) Similar issues to those in this case had been dealt with by other courts in the cases of Pickford v Imperial Chemical Industries Plc (1998) 1 WLR 1189, Alexander v Midland Bank Plc (1999) IRLR 723, Mounteney v Bernard Matthews (1994) 5 Med LR 293 and Mughal v Reuters (1993) IRLR 571. (7) In all the circumstances the cause of C's pain was multifactorial. The initial trigger was probably the serious deficiencies in her overtime workstation but other contributory factors included tight deadlines, a heavy workload, poor posture, absence of proper breaks, an absence of changes in working routine and C's vulnerability. (8) C's symptoms began in earnest from January 1995 and became serious enough to cause her actual injury, albeit that there were no physical signs of her WRULD. The fact that academics and doctors were in disagreement about whether the symptoms suffered by C could be regarded as an injury did not prevent such a finding. (9) It was reasonably foreseeable that C would suffer an injury of some kind to her upper limbs if insufficient attention was paid to her workstation, the provision of proper rest breaks, the volume and intensity of her work and the existence of a varied working routine. Such risks had been well known for many years. (10) D was in clear breach of its duty of care not to expose C to the risk of suffering injury to her upper limbs and its allied duty to take reasonable steps to reduce such risks to the minimum reasonably possible as well as being in breach of its statutory duty as set out above. This court was satisfied that C's injury was caused or contributed to by those breaches. (11) Accordingly, judgment was entered for C and she was awarded damages as agreed in the sum of £87,056.69, which consisted of £41,604.09 for past loss of earnings, £37,698.96 for future loss of earnings and £7,300 general damages plus interest of £453.64

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Last updated: 16/10/2009