WRULD DB-Claimant: Kathryn Fifield

Case	Task	Injury	Date	Court	Judgment for
Fifield - v - Denton Hall / Denton Wilde Sapte	DSE use: audio typing	Pain Syndrome	8 Mar 2006	Court of Appeal	Respondent (Claimant)
			22 Mar 2005	Guildford County	Claimant

The Defendants in this case, who are collectively referred to in the Judgments as Dentons, unsuccessfully appealed the Judgment of HH Judge Reid QC who had awarded Mrs Fifield damages totalling over £150,000 for a Chronic Pain Syndrome arising from her work as a legal secretary. In the Judgment of the Court of Appeal, Lord Justice Wall refers to the Defendants' appeal as wholly without merit and describes Dentons' behaviour in defending the claim as "not the actions of a responsible employer". Lord Justice Wall also alludes to the negative publicity that can arise from such cases and the tensions that can exist between an employer and the employers' liability insurer.

Mrs Fifield was employed by Dentons as a legal secretary for some 19 years from July 1980 until her employment ceased in July 1999, when she was 43. At that point she was a senior secretary or 'key operator', who could advise other more junior staff about their work. She was the secretary to one of the firm's partners. It was common ground that she was good at her job and a hard worker. She regularly received good annual assessments from the partners for whom she worked and also had a good health record up until the summer of 1999.

From about 1989 Mrs Fifield had suffered intermittent pain in her wrists, but from about 1998 onwards she slowly developed a build up of pain in her hands, mostly in the morning, which caused some difficulty typing. The pain also moved up to her elbows and shoulders, and eventually to her neck. She is right handed and the symptoms were worse on her right side.

It was common ground that in early 1999, Mrs Fifield's workload increased substantially. Mrs Fifield's case was that her symptoms became more severe and more frequent in early 1999. In February 1999, she consulted her GP who referred her to a rheumatologist who recommended physiotherapy, which Mrs Fifield began in June 1999. This physiotherapy did not bring any relief, with the result that she was signed off work in July 1999, never to return.

Mrs. Fifield's claim relied on regulations 2(1), 2(3), 4 and 6 of the Health and Safety (Display Screen Equipment) Regulations 1992 together with the HSE's guidance published in November 1992. She also relied on regulations 3 and 5 of the Management of Health and Safety at Work Regulations 1992.

Dentons argued, firstly, that Mrs Fifield was suffering from a somatoform disorder, and that the pain and disability she appeared to suffer were psychosomatic in origin. That defence was based on psychiatric evidence called by Dentons, which the judge at first instance rejected. There was no appeal on that part of the case. Dentons' second defence was that Mrs Fifield's symptoms were not work related. The third defence was that, even if the injuries were work related, they were not caused by any negligence or breach of statutory duty on Dentons' part. The rejection of these two defences by HH Judge Reid QC formed the basis of the appeal.

In the judgment at first instance, HH Judge Reid QC found that Dentons were in breach of the Health and Safety (Display Screen Equipment) Regulations and that there was also a consequential breach of regulation 5 of the Management of Health and Safety at Work Regulations. HH Judge Reid QC went on to find that 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.

HH Judge Reid QC also found, on the balance of probabilities, a "synchronicity" in the onset of the major problems and the change in Mrs Fifield's workload and was satisfied that the deterioration in Mrs Fifield's condition and the onset of the chronic symptoms would not have occurred but for Dentons' breach of statutory duty and negligence. Her injuries were, accordingly, a consequence of Dentons' breaches of the Regulations. Breach and causation were thus both established.

In the Court of Appeal Judgment, Lord Justice Wall describes the evidence that Mrs Fifield's injuries were work related as "overwhelming" and refers to the "rock-like quality of the judge's finding of fact" and to Dentons regarding compliance with the Health and Safety (Display Screen Equipment) Regulations as "an unfortunate waste of time".

In paragraphs 69 to 72 of the Court of Appeal Judgment on the 8th March 2006, having concluded that the appeal was wholly without merit, and should be dismissed, Lord Justice Wall states:

I cannot say that this appeal should never have been brought, because Clarke LJ, on the papers, gave permission (albeit, as he said, with reluctance). It is, of course, commonplace for a case to give one impression on a first reading for a paper permission application, and a quite different impression when the arguments are deployed. I therefore do not query Dentons' right to prosecute the appeal. I have to say, however, that I find it distasteful that a large and well known firm of solicitors should not only submit a long-standing and competent employee to a trial at which it called psychiatric evidence in an attempt to show that her symptoms were imaginary, but that even when it rightly abandoned that unattractive argument in this court, it nonetheless sought to escape from its responsibilities to its employee both by attacking clear and compelling findings of fact by the judge relating to its dismissive attitude to its responsibilities under the Regulations, and by persisting in the argument that Mrs. Fifield's injuries were not its responsibility. In my judgment, these are not the actions of a responsible employer. Moreover, the proportionality of Dentons' behaviour can be measured by the fact that in the court below the judge ordered an interim payment of £100,000 on account of Mrs. Fifield's costs: see paragraph 3 of this judgment. By the time the case has concluded in this court, the costs of both sides are likely to total something in the order of three times the amount of the damages awarded.

In written submissions made after this judgment had been distributed in draft, Dentons invited me to reconsider the terms of paragraph 69 on two grounds. The first was as follows: -

"This appeal was prosecuted throughout by the employers' liability insurers of Dentons, and not by Dentons themselves, who had no involvement in the appeal process. Thus Dentons' insurers made the decisions (i) to seek permission to appeal; (ii) to pursue the appeal once permission was granted; and (iii) on legal advice as to the manner in which the appeal was pursued thereafter."

The second was that since I had recognised their right to prosecute the appeal pursuant to the permission granted by Clarke LJ it was unfair of me to designate Dentons' conduct of the proceedings as distasteful.

I have, of course, reconsidered paragraph 69 in the light of these arguments, but see no reason to alter the thrust of what I said. Dentons' statement that they were the creature of their insurers explains their conduct. I can, however, only express my surprise in these circumstances that the course favoured by the insurers was not subjected to a more detailed exploration than seems to have occurred in relation to the balance which needed to be struck between the unlikely success of the arguments advanced, its impact on Dentons' standing as employers and the costs involved. As to the latter, the final two sentences of paragraph 69 speak for themselves.

A party may well have a right to argue a distasteful point. The right to argue it does not render the point any less distasteful. I am, however, prepared to substitute the word "unfortunate" for "distasteful" in line 6 of paragraph 69.

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Last updated: 16/10/2009