 House of Lords |
Session 1997-98
Publications on the Internet Judgments |
| Judgments - Pickford (A.P.) v. Imperial Chemical Industries Plc
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Lord Steyn Lord Hope of Craighead
(RESPONDENT)
(APPELLANTS)
LORD GOFF OF CHIEVELEY
My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hope of Craighead. For the reasons he has given, I would also allow this appeal.
LORD JAUNCEY OF TULLICHETTLE
My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hope of Craighead. For the reasons he has given, I would also allow this appeal.
LORD SLYNN OF HADLEY
My Lords, I have had the advantage of reading in draft the speeches prepared by my noble and learned friends Lord Steyn and Lord Hope of Craighead. They have set out the facts and the competing views so fully that it is not necessary to repeat them. I therefore summarise my conclusions. I accept that at the relevant time it was foreseeable to the employers that if employees typed for excessively long hours this might produce not only backache and eye strain but also a risk of cramp of the hand or repetitive strain injury. The fact that the present employers gave a warning and took special precautions in relation to their accounts department supports this. It seems to me, however, that on the evidence the trial judge was entitled to find that the plaintiff was not in the same position as staff in the accounts department. She was employed not just for typing but also for general secretarial work. True it is that she did sometimes type for 75 per cent. of the working hours particularly in April and May 1989 but she often typed for not more than 50 per cent. of the day, her other activities intervening. Some of those other activities she could, as I see it, arrange so as to break up her periods of typing and some of them would of themselves interrupt her typing. The plaintiff was clearly efficient and experienced and, albeit highly conscientious, was capable of avoiding and able to avoid excessively long periods of typing. I am not satisfied therefore that the employers were negligent in failing to give her warnings similar to those given to the accounts department which it is claimed should have been given to her or to so control her activities that she did not type for long consecutive periods. I differ with considerable hesitation from the majority in the Court of Appeal because of their great experience in cases of this kind and because of the complex interplay of medical evidence in the case. I am however satisfied for the reasons given by Swinton Thomas L.J. and by my noble and learned friend Lord Hope of Craighead that the trial judge was entitled to find that the plaintiff had not discharged the onus of proving, as it was necessary to prove, that the pain she suffered was organic in origin. It is obvious that the trial judge found this a difficult case, as it was, and I have considerable sympathy with the plaintiff as a conscientious and loyal employee. But at the end of the day I do not consider that it was open to the Court of Appeal to reject the judge's findings. I would therefore allow the appeal.
LORD STEYN
My Lords, A Deputy High Court Judge decided that a secretary's claim against her employers for what is commonly called repetitive stress injuries failed on the facts as he found them. It was not an easy case to try. And there is a presumption that a trial judge's conclusions on issues of fact are correct. But in agreement with the majority in the Court of Appeal [1997] I.C.R. 566 my view is that the trial judge's assessment of the evidence was fundamentally flawed. Moreover, on balance I am satisfied for the reasons so lucidly and trenchantly given by Stuart Smith L.J. (with whom Waite L.J. expressed agreement in a separate judgment) that the employee was entitled to succeed on liability. Since 1948 cramp of the hand or forearm due to repetitive movements such as typing has been classified as a prescribed disease for the purpose of industrial benefit. It is described as PDA4. The causative agent is still uncertain but the DSS Notes of 1983 state that it is "probably due to a combination of physical fatigue of muscles and an underlying psychoneurosis." It rarely occurs among typists. But the risk is known. Thus Imperial Chemical Industries Plc., the employer in the present case, had in place a system of warning and supervising intensive users of word processors in their accounts department at Macclesfield. But no warnings were given to the plaintiff, Miss Pickford, and the extent of her typing was not supervised. The employers assumed that she was not an intensive user of a word processor. By all accounts given by those who worked with her Miss Pickford was a diligent and conscientious employee. She was also an excellent and fast typist. In 1986 the typing content of her job was apparently about 50 per cent. But it was her case at trial that by November or December of 1988 typing was taking up as much as 75 per cent. of her time. It was then that she began to experience strange feelings in her hands by the weekend. That was her oral testimony. Her diary entries reflected the constant pressure of her typing load. Her entry of Tuesday, 23 May 1989, recorded that her hands "are almost seizing up when I do a lot of typing." It stated that "it started late last year when I notice that by Friday, my hands were tight and sore (I'd been typing flat out all summer to keep up with mounds of work, as well as my other jobs)." Her case was therefore based on the link between a sharply increased typing workload and the manifestation of those symptoms between November 1988 and May 1989 when she first took medical advice. What then followed is common grounds. Miss Pickford was advised to stop typing. She was therefore compelled to stop working as a secretary. And ICI did not offer her satisfactory alternative employment. In September 1990 ICI terminated her employment. Miss Pickford had an excellent work record. She was a conscientious and indeed dedicated employee. The judge found that she was not a malingerer. He also found that she was an honest and truthful witness. Yet he rejected the account given in her diary entry of 23 May 1989 to the effect that her symptoms had started in late 1988. He therefore also rejected her oral evidence which expanded on the diary entry but was to the same general effect. No matter how one strives to find a plausible explanation, which may support the reasoning of the Deputy High Court judge, I must confess that this particular decision confounds common sense. In her diary entry and oral evidence Miss Pickford could not possibly have made an honest mistake about the pressure of typing work and her symptoms over a period of six months immediately preceding her seeking medical advice. The judge came into a conclusion which lacks intellectual coherence. Plainly her diary entry of 23 May, made at a time when it is acknowledged she knew nothing about PDA4, was broadly speaking accurate and so was her oral evidence expanding on it. It follows that the judge misdirected himself in the assessment of Miss Pickford's evidence. A misdirection on one point does not necessarily justify a complete disregard of all the judge's findings of fact. Everything depends on the nature of the misdirection and the circumstances of the particular case. In the present case the misdirection was not on an isolated point of evidence. It related to the essence of Miss Pickford's case: if the evidence of Miss Pickford about mounting pressure of typing in late 1988 and early 1989, and the emergence of symptoms over six months, is rejected her case failed at the first hurdle. Moreover, the judge's finding had a domino effect: If the pressure of her typing did not increase as and to the extent that Miss Pickford testified, the emergence and continuance of her symptoms become more questionable. The judge's error led him to treat Miss Pickford as honest but inclined to exaggerate. It caused the judge to give inadequate effect to the picture of mounting typing pressure emerging from Miss Pickford's diary entries. Critically, it led him to accept only that Miss Pickford "from time to time may have typed up to the five hours." Leaving aside the fact that 75 per cent. of her working day was 5 hours and 40 minutes, the judge's findings materially understated the effect of Miss Pickford's oral evidence. In short the judge's error dragged down the whole of his conclusions of fact. His error disabled him from fairly assessing Miss Pickford's evidence. Much of the argument on the present appeal centred on the natural breaks from typing caused, for example, by Miss Pickford answering the telephone. This was a relevant matter. But this is how the judge approached the matter:
Again the judge fell into error. It was established at the at the trial that Miss Pickford was unaware of the risk posed by prolonged repetitive movements: she only became aware of that months after she first sought medical advice. It is therefore wrong to say that she had the necessary knowledge to prioritise her work. In any event, the alleviating effect of natural breaks was a matter of fact and degree upon which Miss Pickford's evidence was not accepted by the judge. And his relevant findings are directly linked with his earlier rejection of the diary entry of 23 May and oral evidence in support of it. The employers relied on an Australian expert, Dr. Lucire, who put forward the theory that Miss Pickford suffered from conversion hysteria. Miss Pickford's excellent work record was inconsistent with this theory. But more importantly it was proved at the trial that this medical phenomenon only arises where the individual has knowledge of the risks of repetitive strain injury. Miss Pickford had no such knowledge at the relevant time. Admittedly, the judge did not accept the conversion hysteria theory. On the other hand, he did not, as the evidence compelling required, find that it could be eliminated as a possibility. Had he done so the judge would have been bound to accept the opinion of Mr. Stanley (an orthopaedic consultant) and Dr. Hay (a consultant psychiatrist) that Miss Pickford's symptoms were largely (but not exclusively) due to an organic cause i.e. excessive typing. The argument of the appellants that the Court of Appeal reversed the burden of proof is wrong: the march of common sense reasoning, closely tied to the facts of the case, led to the Court of Appeal's conclusion. The judge found that Miss Pickford had PDA4. The contrary was not argued in the Court of Appeal or, after some hesitation, not before the House. That immediately raises the point that there must be an explanation for the fact that she contracted PDA4. What was the cause of her PDA4? There really was no alternative on the evidence to concluding that this condition was caused by Miss Pickford's typing work. No doubt there was also an underlying psychoneurotic cause but that does not affect the legal position. Unfortunately, the judge encountered conceptual difficulties. He said:
The judge concluded that the cramp in Miss Pickford's hand was associated with her work but not caused by it. He said that the typing was "only a causa sine qua non." This is not the first time that a judge has been led astray by a Latin tag. Plainly the judge thought that the typing contributed to Miss Pickford's cramp and it was therefore even on his own findings in causative terms a sufficient contributory cause. The judge was persuaded that Miss Pickford did not sustain "an illness or an injury or a lesion or a disease." This was a misconception. If Miss Pickford's oral testimony is substantially rejected as the judge did, her claim had to fail. But if the thrust of her case is accepted, viz that she sustained continuing systems which disabled her from continuing to type, then she plainly sustained a disability. Since at least 1948 the argument that PDA4 cannot ever be an injury can be dismissed as wholly unmeritorious. That leaves the issue of negligence to be considered. I must approach this aspect on the basis that there are compelling reasons for departing from the findings of fact of the trial judge and accepting the evidence of Miss Pickford as well as that of her expert witnesses. Nevertheless I have found this the most difficult issue in the case. On balance I am persuaded that, although the ICI had an excellent employment record, they culpably failed in this case to appreciate that Miss Pickford was carrying an enormous typing load and that she had in fact become an intensive user of the word processors. Her immediate supervisor failed to supervise the extent of her typing. Significantly, Dr. Lamb the defendant's medical officer did not know that secretaries did anything like as much typing as Miss Pickford did. She ought to have been given the warnings to take breaks and rest pauses like the typists in the accounts department. And, it seems to me that she should have been told why it was necessary and there should have been supervision of the extent of her typing. My Lords, amid all the tangled words and imperfect scientific insights afforded by the evidence in this case, the cumulative effect of the central proved facts establish that Miss Pickford's work caused her disability and that her employer's could, by the exercise of reasonable care, have avoided the occurrence of her disability. For these reasons I would dismiss the appeal.
LORD HOPE OF CRAIGHEAD
My Lords, The respondent was employed by the appellants as a secretary at the premises of ICI Pharmaceuticals at Macclesfield. She had worked as a secretary and typist elsewhere since 1970. She went to ICI in 1983 at first as a temporary secretary. In January 1984 she obtained employment there full time as the secretary to three section managers in the quality control department. She worked a seven and a half hour day from 10a.m. to 6p.m., with half an hour off for lunch. Among the various duties which she was expected to perform was typing work. At first she used an electric typewriter, but during 1984 she was provided with a word processor. In November 1986, when preparing a job assessment, she estimated that her typing work took up to 50 per cent. of her working time. Her other secretarial duties took up the remaining 50 per cent. Towards the end of 1988 and again in April and May 1989 there was an increase in the amount of her typing work. But she continued nevertheless to perform all her other duties as a secretary. On 25 May 1989 she went to see her general practitioner, Dr. Baker. She complained of pain in both hands, more in the right than the left. She told him that she had first noticed this about seven months previously. Dr. Baker could find no abnormality on examination, but he signed her off work for a short period. She was then seen by the works doctor, Dr. Lamb. He noted that the volume of typing seemed to be the problem, but he was unable to find any physical explanation for the pain in her hands. After further visits to Dr. Baker she was referred to a consultant orthopaedic surgeon, Mr. Auchincloss. He saw her on 14 September 1989. In his opinion the symptoms were work related, but they were impossible to treat and were not capable of pathological diagnosis. The respondent was not satisfied with the advice which she received from Mr. Auchincloss. He had told her that she could carry on typing and put up with it, or else seek alternative work. He said that he would not be seeing her again, as he had nothing to offer her. In September 1989 she wrote to the Repetitive Strain Injury Association, one of whose publications had been given to her by a work colleague. She asked them for information on repetitive strain and for the name of someone whom she might contact as an expert on this condition. On their recommendation she was seen thereafter by a number of specialists. Meantime in November 1989 she was signed off work as long-term sick. She returned to work in May 1990, but after three days' work including filing she left again due to pain in her hands. The appellants terminated her employment with them on 14 September 1990, as there was no work available for her for which she accepted she was fit. On 20 November 1991 she commenced proceedings against the appellants for damages. She claimed that by their negligence they had caused her to sustain repetitive strain injury. On 11 February 1994 her Statement of Claim was amended to allege that she suffered not from repetitive strain injury but from Prescribed Disease A4 (PDA4). Repetitive strain injury is a familiar expression, but medical experts agree that as a medical term it is unhelpful. It covers so many conditions that it is of no diagnostic value as a disease. PDA4 on the other hand does have a recognised place in the list. It was included in 1948 as a prescribed disease by the Department of Health and Social Security for the purpose of industrial injury benefit. It was described in the list of prescribed diseases in leaflet NI.2 which was issued by the Department of Health and Social Security in October 1983 in these terms:
The appellant's case was that she had contracted the condition in the course of her employment with the appellants as a secretary. She maintained that it was PDA4, that it was organic in origin and that it was due to repetitive movements of her hands while typing. She said that it had been caused by the very large amount of typing which she had carried out on her word processor at speed for long periods of time without breaks or rest periods; that was reasonably foreseeable that typing at speed for long periods without breaks or rest periods might give rise to it; and that the appellants were negligent because they had failed to warn her of the risk of contracting the disease and of the need to take rest breaks. |
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