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Employer's appeal against a decision of the Court of Appeal allowing a secretary/typist's claim for damages for personal injury by sustaining repetitive strain injury from excessive typing and computer keyboard activity.

Appeal by defendant employers against the decision of the Court of Appeal to allow an employee's claim for injury sustained in the course of her employment as a secretary with the employer's pharmaceutical section at Macclesfield. P was employed by the appellants as a secretary at the premises of ICI. 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. She worked a seven and a half hour day from 10am to 6pm, 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 GP. 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. The employee was suffering from PDA4, a complaint suffered by, amongst others, musicians and typists. The complaint was recognised in 1948 by the Department of Health and Social Security and is also known as repetitive strain injury ('RSI'). The injury was caused by excessive typing and had developed in 1988, coming to a head in 1989.

HELD (Lord Steyn dissenting): It was foreseeable to the employers that if employees typed excessively long hours this might produce not only backache and eyestrain but also RSI. However, 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. Their Lordships differed from the Court of Appeal on this point. The important point which emerged from the evidence, despite several complaints in the respondent's diary of overworking, was that the respondent satisfied three section managers as to her performance of her other duties. The nature of those duties was such that they provided frequent natural breaks from typing as she answered the telephone, left her desk to speak to the mangers elsewhere, made diary entries and so on. Taking the evidence as a whole, the judge was far better placed than the Court of Appeal to assess to what extent, if at all, the respondent was exaggerating and which of the other witnesses who tended to contradict her were more reliable. There were two flaws in the Court of Appeal's approach that she should have been warned of the danger to her health and the appellants were negligent. The first was their assumption that the respondent's evidence that she was typing for prolonged periods without breaks and rest periods was true and the second was their failure to appreciate and to take into account, the fact that the nature and variety of her other work lent itself naturally to rotation and interspersion with her typing work. There was a good deal of evidence to show that the appellants had taken steps to enquire into and to provide against, the possibility that the operators of word processors might suffer from fatigue. The decisive point which emerged was that the respondent's claim that her typing work was comparable with that done by the typists in the accounts department was shown, by careful analysis of the evidence, to be exaggerated and insupportable. Much of the medical evidence was directed to the question whether the condition was PDA4 and, if so, whether it was organic in origin. The medical issues were controversial, as the condition was such a mysterious one. There was a strong body of medical opinion to the effect that it was an organic condition, due to some kind of trauma or physical injury. There was another strong body of medical opinion that the basis of it was psychogenic, as the product of a somatisation - in layman's terms, that it is all in the mind. It was admitted that the condition was rare in typists. The appellants said that it had never occurred among typists on their premises. The ergonomic experts on each side were agreed that repetitive movements alone were unlikely to cause injury. However no pathology for the condition has yet been demonstrated. The medical experts differed as to the basis of the condition generally. When medical evidence alone was insufficient to show the precise cause of a plaintiff's injury, a trial judge was entitled to consider other evidence. The finding by the judge that the condition was not reasonably foreseeable in her case and that the appellants were not negligent in the respects alleged by her was soundly based on the evidence. The Court of Appeal should not have interfered with the judge's decision and the appellants were not liable in damages.

Appeal allowed.

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