WRULD Claims heard in England, Scotland and Wales

References to and/or interpretations of Health and Safety Regulations - Fifield - v - Denton Hall / Denton Wilde Sapte

Health and Safety (Display Screen Equipment) Regulations 1992
	Contextual Commentary | Fifield - v - Denton Hall / Denton Wilde Sapte | Find Other Cases

In the Judgment at first instance on the 22nd March 2005, at paragraph 9, HH Judge Reid QC states:

Mrs. Fifield relies on the Health and Safety (Display Screen Equipment) Regulations 1992 (Display Screen Regulations), which came into force on 1 January 1993, regulations 2(1), 2(3), 4, and 6. Reliance on regulation 7 was abandoned. Guidance on the Regulations was published in November 1992.

At paragraphs 66 & 67, HH Judge Reid QC states:

I take the view that there was a breach of duty to Mrs. Fifield in failing to comply with the requirements of the DSE Regulations. I am further of the view that consequent on that breach of duty there was a breach of duty in respect of Regulation 5 of the MHSW Regulations, and that the inept way in which the risk assessment obligations were undertaken also gives rise to a claim in negligence.

In my judgment, despite the persuasive argument to the effect that compliance with the Regulations and an absence of negligence would have made no difference to the eventual outcome, Mrs. Fifield's working practices would have been materially altered if she had been properly trained and had risk assessments been performed competently and with proper frequency. On balance, the likelihood is that she would have ensured that her typing was spread throughout the working day and was not concentrated in the morning and early afternoon; she would have taken regular breaks from typing in every hour; she would have ensured that her breaks did not involve pressured manual tasks; she would have told Dentons of the intermittent symptoms she experienced during 1998; and the risk of injury from the increase in work load would have been identified and her workload would have been managed so as to reduce the quantity of typing and the ensuing document collation that was required. Further, in the knowledge of her wrist pains, it is more likely than not that other secretarial help would have been enlisted to deal with the PAC.

In the Court of Appeal Judgment on the 8th March 2006, at paragraph 48, Lord Justice Wall states:

Mrs. Fifield relied on regulations 2(1), 2(3), 4 and 6 of the Health and Safety (Display Screen Equipment) Regulations 1992 (hereinafter the "DSE Regulations") together with the Guidance published by the Health and Safety Executive in November 1992.

At paragraph 57 in the Court of Appeal Judgment, Lord Justice Wall states:

Although the judge also found negligence, it is clear from paragraph 31 of the judgment that the only discrete allegation of negligence advanced independently of the allegations of breach of statutory duty was the assertion that the decision to require Mrs. Fifield to undertake the PAC work in addition to her normal work load was negligent because Dentons ought to have foreseen the possible consequences in the light of what they knew or ought to have known about Mrs. Fifield's wrist pains. In my judgment, the assertion of common law negligence adds little to this aspect of Ms. Fifield's case, which, it seems to me, succeeds or fails on whether or not the judge was right to find relevant breaches of Dentons' statutory duties contained in the DSE Regulations which were causative of Mrs. Fifield's injuries.

V1.01

Health and Safety (Display Screen Equipment) Regulations 1992
Regulation 1	Contextual Commentary | Fifield - v - Denton Hall / Denton Wilde Sapte | Find Other Cases

There is an implicit reference to regulation 1 of the Health and Safety (Display Screen Equipment) Regulations in paragraph 45 of the Judgment at first instance on the 22nd March 2005, in which HH Judge Reid QC refers to the two Ergonomics Experts agreeing that "Mrs Fifield was a 'user' under the Display Screen Equipment Regulations".

V1.01

Health and Safety (Display Screen Equipment) Regulations 1992
Regulation 2	Contextual Commentary | Fifield - v - Denton Hall / Denton Wilde Sapte | Find Other Cases

In the Judgment at first instance on the 22nd March 2005, at paragraph 32, HH Judge Reid QC states:

Under the (DSE) Regulations, in the submission of counsel for Mrs. Fifield, Dentons should have carried out a suitable and sufficient analysis of her workstation and assessed the health and safety risks to which she was exposed in consequence of its use (Regulation 2(1)). There was a duty on them to have reduced the risks identified in consequence of the assessments to the lowest extent reasonably practicable (Regulation 2(3)).

HH Judge Reid QC goes onto say in paragraphs 39 to 41:

Once staff had been trained, each work station was assessed in 1993. The form used on each occasions was a tick box form with room for comments at appropriate places. Mr. McAvoy appears to have gone through the form with Mrs. Fifield. The form of the entries suggests that he did his job conscientiously, so far as he could. He noted that a document holder was required, and that the typewriter was taking a lot of space but "until the nemux cabinet is moved it cannot go into another position + cable under the desk". Importantly he also made the note "Kate has been receiving medication on her wrists (drugs)".

When Mr McAvoy had completed the form he handed it in, probably to a Mr. Hagland. No-one told the personnel department anything about it. Indeed, the existence of the form only came to light at a late stage in these proceedings, after the defence and after the ergonomists' reports had been exchanged. Nothing was done, and (so far as the evidence goes) no one was told anything about Mrs. Fifield's reported wrist pains.

So far as can be seen from the evidence, the assessments were made, the forms filled in and filed and forgotten, after (at least in Mrs. Fifield's case) any physical requirements had been dealt with in that the nemux cabinet and the cabling were removed (as they were going to be anyway) and she was offered a document holder which she did not use because it was too big."

At paragraph 44 of the Judgment at first instance, HH Judge Reid QC says:

On the evidence that was the limit of Dentons' efforts to comply with the Regulations. There was no re-assessment of workstations. An assessment would be carried out on a case by case basis if it was perceived to be necessary. Hence the 1999 assessment was carried out at the request of the personnel department after Mrs. Fifield's condition became a matter of serious concern."

At paragraph 51 of the Judgment at first instance, HH Judge Reid QC says:

There was agreement [between the two Ergonomics Experts] that neither the Health and Safety Executive nor any other relevant body makes any recommendation on the frequency with which display screen equipment risk assessments should be completed, other than in the event of a significant change to the system of work. There was no suggestion of any significant change to Mrs Fifield's workstation between 1994 and 1999. There was a change in word processing programmes from WordPerfect 6.0 to Word, but neither expert regarded that as significant, both programmes being widely used mouse-driven word processing packages. ....... Their oral evidence suggested to me that even now regular re-assessment in the absence of substantial change is the exception rather than the rule and this is not regarded as untoward. In my judgment, whilst periodic reviews every three years might now be regarded as best practice, it could not properly be said that failure to review every three years could be said to be any form of breach of duty.

Having set out the respective submissions on both sides, HH Judge Reid QC reached the following conclusions relating to risk assessments, in paragraphs 63 to 67:

In my judgment, the risk assessment and Dentons' treatment of it was inadequate. Whilst Mr. McAvoy was no doubt perfectly adequately trained for dealing with the purely mechanical questions as to desk position and the like, I am wholly unpersuaded that he had any meaningful interchange with Mrs. Fifield on the questions under the heading of "Job design". He was not, I judge, in a position to discuss with her in any meaningful way the adequacy of opportunities for regular breaks from display screen use or the steps that could be taken to minimise repetitive or boring tasks, and eliminating peaks and troughs.

The impression I am left with is that the whole risk assessment exercise was regarded as an unfortunate waste of time with which Dentons were required to comply and the form filling was regarded as a tick box exercise and little more. That impression is reinforced by Dentons' treatment of the form when completed. It was not referred to personnel. Nothing was done in relation to the reference to wrist pain. The form was simply filed away and forgotten. This was clearly inconsistent with the Guidance which provides (rather obviously) that those conducting the assessment should have the ability to: "Make a clear record of the assessment and communicate the findings to those who need to take appropriate action". No doubt Mr McAvoy did what was required of him but that hardly constituted communicating with the personnel department who needed to know about the wrist pains.

Mrs. Fifield was not party to any meaningful training in order to participate in the assessment. Nor, on the evidence, was any real thought given to her work and how it was organised. The duty of the employer is to intervene and alter work practices if need be, not to rely on the employee, who will have other priorities and may not appreciate (in the absence of training) the importance of breaks and a varied routine, who may be distracted by day to day pressures and deadlines, and who may have become habituated to undesirable working practices.

I take the view that there was a breach of duty to Mrs. Fifield in failing to comply with the requirements of the DSE Regulations. I am further of the view that consequent on that breach of duty there was a breach of duty in respect of Regulation 5 of the MHSW Regulations, and that the inept way in which the risk assessment obligations were undertaken also gives rise to a claim in negligence.

In my judgment, despite the persuasive argument to the effect that compliance with the Regulations and an absence of negligence would have made no difference to the eventual outcome, Mrs. Fifield's working practices would have been materially altered if she had been properly trained and had risk assessments been performed competently and with proper frequency. On balance, the likelihood is that she would have ensured that her typing was spread throughout the working day and was not concentrated in the morning and early afternoon; she would have taken regular breaks from typing in every hour; she would have ensured that her breaks did not involve pressured manual tasks; she would have told Dentons of the intermittent symptoms she experienced during 1998; and the risk of injury from the increase in work load would have been identified and her workload would have been managed so as to reduce the quantity of typing and the ensuing document collation that was required. Further, in the knowledge of her wrist pains, it is more likely than not that other secretarial help would have been enlisted to deal with the PAC.

In paragraphs 62 to 64 of the Court of Appeal Judgment on the 8th March 2006, having quoted regulation 2 of the Health and Safety (Display Screen Equipment) Regulations 1992, Lord Justice Wall states:

Dentons' argument in relation to Regulation 2 struck me as artificial in the extreme. As I understood it, it ran along the following lines. On its true construction, Regulation 2 is concerned with the equipment that makes up the workstation and the immediate work environment around the display screen equipment. The health and safety risks are those that arise from the equipment, the user's interface with the workstation and the immediate environment. The ergonomic experts had been in agreement that, with one minor exception, the design and disposition of Mrs. Fifield's workstation were satisfactory and did not present her with a risk of injury. Having concluded that the workstation was ergonomically sound, the judge should have found that it did not present a health and safety risk to Mrs. Fifield. The judge had been further wrong to roll up the various breaches compendiously in paragraph 67. The judge should have concluded that training and job design were the subject of discrete statutory duties under regulations 4 and 6 respectively and could not properly form the basis for a finding that the workstation assessment undertaken by the Dentons was not suitable or sufficient. Alternatively, the Judge should have found that there was no breach or causatively relevant breach regarding the provision of training and job design.

[Counsel] for Mrs Fifield, pointed out that Dentons' construction of Regulation 2 flew in the face of the Guidance attached to the Regulations. I agree. I do not need to set out the Guidance in detail, but it refers in terms to Regulation 2 addressing the prevention of "all the known health problems that may be associated with display screen work". In my judgment, Dentons' construction of Regulation 2 would neuter it and render it wholly ineffective. It is plainly wrong.

Secondly, as applied to this case, the arguments deployed by Dentons disintegrate against the rock-like quality of the judge's findings of fact. On the evidence deployed in this case, the judge in my view was manifestly entitled to find, as he did, that Dentons regarded the whole risk assessment as "an unfortunate waste of time".

V1.02

Health and Safety (Display Screen Equipment) Regulations 1992
Regulation 4	Contextual Commentary | Fifield - v - Denton Hall / Denton Wilde Sapte | Find Other Cases

In the Judgment at first instance on the 22nd March 2005, at paragraph 32, HH Judge Reid QC states:

Under the (DSE) Regulations, in the submission of counsel for Mrs. Fifield, Dentons should have ..... planned Mrs. Fifield's activities at work such that her daily work on display screen equipment was periodically interrupted by such breach or changes of activity as to reduce her workload at that equipment (Regulation 4).

In paragraph 46 of the Judgment at first instance, HH Judge Reid QC states:

[The two Ergonomics Experts] further agreed that the Guidance associated with the Display Screen Equipment Regulations (1992) concerning the planning of work for the Claimant by the Defendant was sound and that if her job was such that she was unable to take a break from continuous keyboard work of about five minutes per hour, then steps should have been taken to ensure that she could. They noted from the risk assessments of both February 1994 and May 1999 that her job was recorded at these times included breaks and/or changes of activity. They did not think that any need for further intervention into the organisation of her working day had been identified. I accept this conclusion.

At paragraph 67 of the Judgment at first instance, HH Judge Reid QC says:

In my judgment, despite the persuasive argument to the effect that compliance with the Regulations and an absence of negligence would have made no difference to the eventual outcome, Mrs. Fifield's working practices would have been materially altered if she had been properly trained and had risk assessments been performed competently and with proper frequency. On balance, the likelihood is that she would have ensured that her typing was spread throughout the working day and was not concentrated in the morning and early afternoon; she would have taken regular breaks from typing in every hour; she would have ensured that her breaks did not involve pressured manual tasks; she would have told Dentons of the intermittent symptoms she experienced during 1998; and the risk of injury from the increase in work load would have been identified and her workload would have been managed so as to reduce the quantity of typing and the ensuing document collation that was required. Further, in the knowledge of her wrist pains, it is more likely than not that other secretarial help would have been enlisted to deal with the PAC.

In paragraphs 66 & 67 of the Court of Appeal Judgment on the 8th March 2006, having quoted regulation 4 of the Health and Safety (Display Screen Equipment) Regulations 1992, Lord Justice Wall states:

In my judgment, the judge's findings in paragraph 67 of his judgment clearly establish a breach of Regulation 4. In this respect, however, there is a more insidious aspect to Dentons' defence, namely that it was really down to Mrs Fifield to look after herself, and that if she did not take sensible breaks and limit her periods of continuous typing, she had brought her own misfortunate on herself. Dentons' skeleton argument for this appeal is replete with references to Mrs. Fifield's "concessions" in her oral evidence. I cite only one extract from the skeleton argument settled by junior counsel:

"Further, Mrs. Fifield gave oral evidence in cross examination that: (a) she knew what repetitive strain injury was; she knew it was possible that keyboard work might cause pain; that she knew that she should report any problems about her computer (and her use of it); she knew that she should take breaks from prolonged periods of keyboard work. In light of these concessions (covering as they did many of the issues the statutory Guidance states should be covered in training, and in light of the agreement at trial that Mrs. Fifield had been provided with a booklet ("You & Your Workstation") which gave appropriate health and safety information on all relevant matters, the judge should have found that Mrs. Fifield had indeed received training, alternatively, that any failure to provide training was immaterial."

This submission, in my judgment, reinforces the judge's findings that Mrs Fifield was very much left to her own devices, and that Dentons regarded compliance with the Regulations as an unfortunate waste of time. Accordingly, in my judgment, the second limb of Dentons' appeal also fails.

V1.01

Health and Safety (Display Screen Equipment) Regulations 1992
Regulation 6	Contextual Commentary | Fifield - v - Denton Hall / Denton Wilde Sapte | Find Other Cases

In the Judgment at first instance on the 22nd March 2005, at paragraph 32, HH Judge Reid QC states:

Under the (DSE) Regulations, in the submission of counsel for Mrs. Fifield, ...... There was also a duty on Dentons to have provided adequate health and safety training in the use of any workstation upon which she may have been required to work (Regulation 6).

At paragraph 65 of the Judgment at first instance, HH Judge Reid QC says:

Mrs. Fifield was not party to any meaningful training in order to participate in the assessment. Nor, on the evidence, was any real thought given to her work and how it was organised. The duty of the employer is to intervene and alter work practices if need be, not to rely on the employee, who will have other priorities and may not appreciate (in the absence of training) the importance of breaks and a varied routine, who may be distracted by day to day pressures and deadlines, and who may have become habituated to undesirable working practices.

Then, at paragraph 67 of the Judgment at first instance, HH Judge Reid QC says:

In my judgment, despite the persuasive argument to the effect that compliance with the Regulations and an absence of negligence would have made no difference to the eventual outcome, Mrs. Fifield's working practices would have been materially altered if she had been properly trained and had risk assessments been performed competently and with proper frequency. On balance, the likelihood is that she would have ensured that her typing was spread throughout the working day and was not concentrated in the morning and early afternoon; she would have taken regular breaks from typing in every hour; she would have ensured that her breaks did not involve pressured manual tasks; she would have told Dentons of the intermittent symptoms she experienced during 1998; and the risk of injury from the increase in work load would have been identified and her workload would have been managed so as to reduce the quantity of typing and the ensuing document collation that was required. Further, in the knowledge of her wrist pains, it is more likely than not that other secretarial help would have been enlisted to deal with the PAC.

In paragraph 60 of the Court of Appeal Judgment on the 8th March 2006, having quoted regulation 6 of the Health and Safety (Display Screen Equipment) Regulations 1992, Lord Justice Wall states:

Mrs. Fifield's case was that she had received no such training. Dentons were manifestly unable to establish the contrary. The judge found in paragraph 67 of his judgment that her working practices would have been "materially altered if she had been properly trained". That, in my judgment, is a finding which was plainly open to the judge on the evidence, as were the findings contained in the balance of paragraph 67. The admitted breach of Regulation 6 was thus causative of Mrs Fifield's injuries. That, in my judgment, is the short and simple answer to the Regulation 6 point.

V1.01

Health and Safety (Display Screen Equipment) Regulations 1992
Regulation 7	Contextual Commentary | Fifield - v - Denton Hall / Denton Wilde Sapte | Find Other Cases

In the Judgment at first instance on the 22nd March 2005, at paragraph 9, HH Judge Reid QC states:

Mrs. Fifield relies on the Health and Safety (Display Screen Equipment) Regulations 1992 (Display Screen Regulations), which came into force on 1 January 1993, regulations 2(1), 2(3), 4, and 6. Reliance on regulation 7 was abandoned.

V1.01

Management of Health and Safety at Work Regulations 1992
	Fifield - v - Denton Hall / Denton Wilde Sapte | Find Other Cases

In the Judgment at first instance on the 22nd March 2005, at paragraph 9, HH Judge Reid QC states:

Additionally she relies on the Management of Health and Safety at Work Regulations 1992 under regulations 3 and 5 of which Dentons were obliged to assess the risks to the health and safety of employees and to "ensure that his employees are provided with such health surveillance as is appropriate having regard to the risks to her health and safety which ought to have been identified by the assessment".

At paragraphs 66, HH Judge Reid QC states:

I take the view that there was a breach of duty to Mrs. Fifield in failing to comply with the requirements of the DSE Regulations. I am further of the view that consequent on that breach of duty there was a breach of duty in respect of Regulation 5 of the MHSW Regulations, and that the inept way in which the risk assessment obligations were undertaken also gives rise to a claim in negligence.

In the Court of Appeal Judgment on the 8th March 2006, at paragraph 48, Lord Justice Wall states:

She also relied on regulations 3 and 5 of the Management of Health and Safety at Work Regulations 1992 (hereinafter the "MHSW Regulations").

At paragraph 58, Lord Justice Wall states:

Despite the detail in which, and the vigour with which this part of the case was argued by [Counsel for the Appellants], I can, I think, take it quite shortly. [Counsel for the Appellants] firstly made the point that, as applicable to the instant case, paragraph 15 of the MHSW Regulations provided that breaches of Regulations 3 and 5 did not give rise to civil liability for breach of statutory duty. I therefore propose to concentrate on the DSE Regulations.

V1.01

Manual Handling Operations Regulations 1992
	Contextual Commentary | Fifield - v - Denton Hall / Denton Wilde Sapte | Find Other Cases

In the Judgment at first instance on the 22nd March 2005, at paragraph 30, HH Judge Reid QC states:

The Particulars of Claim refer also to the Manual Handling Operations 1992 but this was not persisted in.

V1.01

Last updated: 14/05/2013