Reducing the risk of an organisation experiencing personal injury claims for WRULDs

The views expressed in this commentary are those of the webmaster alone and do not necessarily reflect HSE policy. This site does not provide legal advice or seek to interpret the civil or criminal law. Visitors are strongly advised to consult a suitably qualified specialist for professional advice.

1. Employers (and employees) have a duty, enshrined in the criminal law, to protect the health and safety of employees (and others), which clearly includes reducing the risk of employees experiencing WRULDs. The function of the criminal law is normative, to provide rules to be observed, the infringement of which can lead to enforcement action and/or criminal prosecution. Personal injury claims for WRULDs invoke the civil law (the law of tort). The function of the civil law in this context is to compensate those whose injuries are the responsibility or fault of others. There is no simple relationship between the criminal law and the law of tort.

2. All recent HSE guidance includes a paragraph that states: "Following the guidance is not compulsory and you are free to take other action. But if you do follow the guidance you will normally be doing enough to comply with the law". The 'law' to which HSE guidance usually refers is the criminal law, though recent guidance has occasionally made implicit reference to civil case law. While HSE guidance attempts to explain the 'rules' that employers should observe to avoid enforcement action or criminal prosecution, the Courts have made clear that 'guidance is only guidance' and that it is for the Courts to decide how health and safety regulations should be interpreted and what constitutes a breach of duty.

3. In a personal injury claim for a WRULD a claimant has to show, among other things, that the employer was in breach of their common law duty of care (negligence) or in breach of some statutory duty and that, on the balance of probabilities, some breach of duty caused or materially contributed to the injury for which the claimant seeks damages. It is therefore not surprising that statutory duties and HSE guidance are cited, sometimes extensively, in personal injury claims for WRULDs.

4. While compliance with statutory duties and HSE guidance reduces the risk of employees developing WRULDs and significantly reduces the risk of enforcement action and/or criminal prosecution, it does not necessarily reduce the risk of an organisation experiencing personal injury claims. Whether or not personal injury claims arise is a complex matter that depends upon, among others things, economic and social factors. Evidence of enforcement action or non-compliance with statutory duties can be of considerable benefit to a claimant and personal injury claims can follow.

5. Thus, reducing the risk of enforcement action or a criminal prosecution should reduce the risk of experiencing a personal injury claim. However, it would be unwise for an organisation to believe that complying with statutory duties and HSE guidance was sufficient to avoid experiencing a personal injury claim. Even the most health and safety conscious organisation cannot eliminate the risk of an employee bringing a personal injury claim (see West v Health and Safety Executive).

Upper limb symptoms will arise in the workplace

6. It would appear to be stating the obvious to suggest that one of the best ways of reducing the risk of an organisation experiencing a personal injury claim for some type of upper limb disorder is to eliminate, or at least reduce, the risk of employees experiencing upper limb disorders. However, even the most health and safety conscious organisation cannot eliminate the risk of employees experiencing upper limb symptoms.

7. Given the high prevalence of upper limb symptoms in the general population, it is inevitable that symptoms arise in the workplace and are therefore almost inevitably perceived by some as 'work-related'. Symptoms can be perceived as 'work-related' when work activities merely make the sufferer aware of some constitutional, but previously asymptomatic, condition or simply influence an individual's ability to work.

8. It does not necessarily follow that a condition that is perceived or referred to as 'work-related' has been caused, aggravated, exacerbated or accelerated by work activities. Many people die in bed, but that does not mean beds are hazardous or that going to bed (alone) gives rise to a serious risk. Just because symptoms become manifest in the workplace does not mean the work is hazardous. Recently there has been the move towards using the term 'work-relevant' to describe symptoms or disorders that are associated with work irrespective of whether the association is causal, contributory or merely coincidental.

9. Whether symptoms are attributed to work and perceived as 'injuries', lead to seeking health care and/or result in time off work depends on complex individual psychosocial and work organisational factors. However, it is important not to lose sight of the fact that some ULDs are work-induced. Even so, the evidence suggests the development of chronic pain and disability depends more on individual and work-related psychosocial issues than on physical or clinical features.

10. Emphasising the important role that psychosocial factors can play is in no way intended to suggest there is little point in seeking to reduce the risk of employees experiencing WRULDs. What it does mean is that reducing the risk of an organisation experiencing a personal injury claim for some type of WRULD requires more than simply reducing the risk of employees experiencing WRULDs from physical hazards and more than simply focussing on the prevention of WRULDs.

Ideas and beliefs about ULDs and the social construction of injury

11. How upper limb symptoms are perceived by individuals, health and safety practitioners, doctors, lawyers and ergonomists, can be strongly influenced by external factors and the circumstances in which we find ourselves placed. For example, even though the use of the term 'repetitive strain injury' has been widely deprecated in the scientific and medical literature, it is still commonly used in the popular press.

12. While it would be nice to think that all medical practitioners used common diagnostic criteria, it is manifestly clear they do not. Moreover, some practitioners in medical and related disciplines appear willing to make categorical statements concerning the occupational nature of often vague signs and symptoms without giving due consideration to other possible causes and without ever having seen the work place. This can lead to an 'iatrogenic injury': an injury caused or induced by the actions or words of a doctor.

13. Take, for example, an individual who consults his GP about some sort of arm problem. During the consultation the GP may say something like: "I'm afraid you will keep on having this arm problem so long as you keep your current job". This might be quite accurate advice, but can be interpreted as implying a causal relationship between the work and the upper limb disorder. Thus, the individual with an upper limb sensation becomes a patient upon visiting the practitioner, can leave the consulting room with the perception of being an employee with a work-induced disorder, and becomes a claimant with an injury upon encountering the compensation system.

14. This is part of what is termed the 'social construction of injury' in which a variety of factors, including the press coverage of compensation claims, can induce in employees the perception that they have suffered work-induced injuries for which someone is liable. It is important to emphasise that this is in no way intended to suggest that such individuals are, themselves, deliberately constructing their injuries.

15. Consider, for example, an employee who has a previously undiagnosed constitutional disorder the symptoms of which are induced by work, or at least the employee perceives they are. In a climate in which virtually any manual activity is perceived as being capable of causing 'injury', the employee reports a 'work-related disorder'. Making some sort of change in the workstation or working regime, with the intention of making the employee more comfortable, is a positive step but unless this is carefully explained to the employee and his/her colleagues the change may be interpreted as confirming there was something about the work that caused or materially contributed to the employee's disorder, particularly if the change is perceived by the employee as making work more comfortable.

16. At around the same time the employee may also have been prescribed some sort of medication or provided with a splint or physiotherapy, any or all of which may have reduced the discomfort experienced at work. However, it is the change in the work, the intervention, that can be perceived by the employee as reducing the discomfort and the work itself that can be perceived as the cause of the employee's disorder. Interventions, medical or ergonomic, must be accompanied by carefully considered explanations that are not aimed solely at the individual concerned.

17. If the employee's fellow workers interpret the intervention as suggesting there was something about the work that caused their colleague's symptoms, there can be calls for similar changes in their work, which is newly and inaccurately perceived as hazardous. Herein lies fertile ground for localized 'epidemics' of upper limb disorders to flourish.

18. The experience of dealing with such 'epidemics' in a number of organisations in which there was no obviously hazardous activity suggests that failing to deal appropriately with the early cases, which were subsequently shown to be primarily constitutional in origin, permitted ideas and beliefs to flourish and the reporting of work-relevant disorders to increase for no obvious reason.

ULDs and stress

19. While a cluster of upper limb disorders, particularly following a change in a system of work, can signal a hazardous working environment, statistical theory shows such clusters can occur by chance, given the relatively high background level of such disorders. Clusters of upper limb disorders can also be a manifestation of sources of dissatisfaction and/or stress, such as any of those listed below.

(a) workers having little control over their work and working methods (including shift patterns);

(b) tasks requiring high attention and concentration in conditions where the worker has little control over their allocation of effort;

(c) workers being unable to make full use of their skills;

(d) workers not being involved in making decisions that affect them;

(e) being expected to carry out repetitive, monotonous tasks all the time;

(f) work being system-paced (especially if work rates are being monitored inappropriately);

(g) demands of the work being perceived as excessive;

(h) payment systems that encourage working too quickly or with insufficient breaks;

(i) opportunities for social interaction being limited by work systems;

(j) high levels of effort not being balanced by sufficient reward (pay, resources, self-esteem, status).

20. The above list is taken from the HSE's guidance on the use of Display Screen Equipment (L26), but such potential sources of dissatisfaction and/or stress can arise in many other types of work. (Download a free copy of L26 from the HSE's web site) Once again, it is important to emphasise that this is in no way intended to suggest that the symptoms are fabricated. Sources of dissatisfaction and/or stress may not be perceived by employees, or accepted by employers, as a valid cause for complaint, whereas the reporting of WRULDS may be seen as legitimate or even encouraged.

21. It is noticeable from examining the case papers in personal injury claims for WRULDs, i.e. prior to a case reaching Court, how in recent years, particularly since the recognition of non-specific pain syndromes in Upper limb disorders in the workplace, the circumstances that are alleged to have given rise to WRULDs, particularly in claims associated with DSE use, often read much like those in claims for work-related stress.

The biopsychosocial approach

22. A recent study undertaken for the Health and Safety Executive (HSE) advocates a biopsychosocial approach to the management of upper limb disorders (Link to Research Report 596). The biopsychosocial model assumes that biological, psychological, and social factors can all play a significant role in determining the outcome of a musculoskeletal problem and that these factors need to be addressed in a positive and constructive climate. While the biopsychosocial approach remains ill-understood in some circles and is not without its critics, it has been shown to be highly applicable to the understanding and management of pain and has successfully been applied to the management of problems such as low back pain.

23. Recognizing that upper limb disorders can occur naturally and that the perception of injury can be contagious in that it can arise from ideas and beliefs about work, does not deny the reality of symptoms or the legitimacy of concerns. Factors intrinsic to the workplace but not necessarily to the work itself can play an important role in the interpretation and attribution of symptoms.

24. Recognizing that for some a splint is more a 'badge of injury' than a therapeutic aid and that illness behaviour may be a natural response to the prevailing circumstances does not imply malingering but does suggest that psychological factors and factors extrinsic to work can play an important role in the treatment and rehabilitation of those with upper limb disorders.

25. The Courts have long recognised that psychological factors can play an important role in the development of chronic pain and disability and in the likely prognosis, e.g. the phrase 'functional overlay' is frequently encountered in older Judgments. However, it can be argued that the Courts have been slow to grasp the role that psychosocial factors can play in the development and attribution of symptoms and in the rehabilitation of those with upper limb disorders. The ramifications of the biopsychosocial approach to the management of upper limb disorders have yet to be explored in the Courts.

26. The apparent reluctance of the Courts to embrace psychosocial factors is perhaps, in part, a function of the adversarial system in which the claimant has often been portrayed as either 'genuine' or a 'malingerer' (see for example King - v - Coopers and Lybrand Ltd) or the alleged injury has been polarized as either physiological or psychogenic in origin (see for example Pickford - v - Imperial Chemical Industries plc and Ellis - v - The Financial Times Ltd). Experts in abnormal behaviour, i.e. Psychiatrists, are called to give evidence on what, from a lay perspective, often appears to have been a natural response to the prevailing circumstances.

Acting as a prudent employer

27. It can be argued that it should not matter to the prudent employer that the primary cause of some upper limb disorder was psychosocial or wholly unrelated to work activities. If a disorder influences an employee's ability to work efficiently, irrespective of any legal or health and safety considerations, it is an issue that the employer needs to be aware of and manage. However, a distinction can be drawn between disorders that probably originate outside work, but which influence the ability to work, and those that are probably caused or at least significantly aggravated or accelerated by work. The former may only require localised changes to accommodate the individual, the latter may require significant changes to be made to the overall system of work.

28. While upper limb disorders can be caused by leisure pursuits such as gardening and sports and by DIY activities, much of the currently available literature gives the impression that virtually all upper limb disorders are primarily caused by work and that by applying an 'ergonomics approach' they will be eliminated. They will not. An ergonomics approach, correctly applied, can reduce the likelihood of work-induced disorders and can assist in accommodating those with work-relevant disorders, but it cannot eliminate disorders that have been (mistakenly) attributed to work by social processes.

29. The guidance published by the HSE in February 2002 entitled Upper limb disorders in the workplace advocates a seven-stage framework for the management of ULD risks: understand the issues and commit to action; create the right organisational environment; assess the risks of ULDs in your workplace; reduce the risks of ULDs; educate and inform your workforce; manage any episodes of ULDs; and carry out regular checks on programme effectiveness. (Download free copy of HSG60 from HSE web site) While this guidance provides some sound advice, it is not a manual on how to avoid a personal injury claim. However, it is difficult to see how a prudent employer could be criticised for following HSE guidance and attempting to comply with health and safety regulations.

Risk assessments

30. Among other things, HSE guidance places considerable emphasis on undertaking suitable and sufficient and timely risk assessments. The Courts clearly consider that competently performed risk assessments are important and should be acted upon and not simply performed, filed away and forgotten. See, for example, Fifield - v - Denton Hall / Denton Wilde Sapte.31. In the case of Allison - v - London Underground Ltd, in the Judgment of the Court of Appeal on the 13th February 2008, at paragraph 58, Lady Justice Smith said:

Risk assessments are meant to be an exercise by which the employer examines and evaluates all the risks entailed in his operations and takes steps to remove or minimise those risks. They should be a blueprint for action. .......... It seems to me that insufficient judicial attention has been given to risk assessments in the years since the duty to conduct them was first introduced. I think this is because judges recognise that a failure to carry out a sufficient and suitable risk assessment is never the direct cause of an injury. The inadequacy of a risk assessment can only ever be an indirect cause. Understandably judicial decisions have tended to focus on the breach of duty which has lead directly to the injury.

32. While it is very common to find risk assessment worksheets and checklists that attempt to 'score' the risk arising from particular tasks by rating the probable severity of injury and the probability of an injury occurring, the examples of worksheets and checklists contained in HSE guidance documents such as L23 and HSG60 do not use or advocate such scoring systems. While such scoring systems can help prioritise control measures, it can also be argued that they have the potential to underplay the combined effects of several hazards and, depending on the choice of action levels, can underestimate the overall level of risk.

33. The manual handling risk assessment checklists that are provided in L23 require decisions to be made about the level of risk, but no guidance is provided on how to decide about whether the risk is 'Low', 'Medium', or 'High'. The examples of risk assessment worksheets in HSG60 require decisions to be made merely about whether or not the risk factors postulated as contributing to WRULDs are present. These decisions amount to little more than personal opinions, given that there is little in the way of objective criteria in the descriptions of most of the risk factors, e.g. "Is the wrist bent repetitively to either side?"

34. The currently available methods and tools for assessing the risks of musculoskeletal disorders are not well validated and there are no accepted metrics or commonly agreed criteria that can be used to quantify, accurately or objectively, the level of risk in this context. A qualitative assessment of the level of risk, e.g. 'Low', 'Medium', or 'High', is commonly used but there is no agreed definition of what is meant by 'Low', 'Medium', or 'High'. Thus, one assessor's criteria for a 'Low' level of risk may correspond to another assessor's criteria for a 'Medium' risk.

35. Thus, the approach to risk assessments advocated in the HSE's guidance documents, for the most part, merely requires a host of subjective judgements to be made about whether or not the postulated risk factors are present and does not explain how even a qualitative assessment is made of the overall level of risk. It can be argued that this undesirable state of affairs merely reflects the state of knowledge when the guidance was being drafted. Unfortunately, the current guidance inevitably leads to widely differing opinions about such risks.

36. Moreover, in the context of personal injury claims for WRULDs, tensions exist between the approach to risk assessments advocated in the HSE's guidance documents and the legal concept of 'a foreseeable' risk on injury. An old but often quoted Judgment in a personal injury claim for a WRULD (Presland - v - G W Padley Ltd) refers to "an inherent, specific and not insignificant risk" of a servant developing an industrial disease or condition. While this is also a qualitative rather than a quantitative statement, it suggests a level of risk that requires some action.37. A more recent Court of Appeal Judgment in a personal injury claim for a back injury (Link to Koonjul v Thameslink Healthcare Services on BAILII website) suggests that there must be "a real risk, a foreseeable possibility of injury, certainly nothing approaching a probability" for a task to attract the provisions of regulation 4 of the MHO Regulations, but that "the question of what does involve a risk of injury must be context-based".

Encouraging the reporting of upper limb symptoms

38. The HSE's latest guidance encourages employers to increase awareness of ULD risks and promotes the early reporting of symptoms. There are also statutory duties, for example in the Provision and Use of Work Equipment Regulations and in the Health and Safety (Display Screen Equipment) Regulations, to provide information and training about the risks to which employees are exposed. Reference is often made in Judgments in personal injury claims to the 'duty to warn'. While it may appear to be splitting hairs to distinguish between increasing awareness of risks, encouraging employees to report symptoms and the 'duty to warn', it can be argued there is a difference between them.

39. The wording of a 'warning' that is appropriate and necessary for a system of work that gives rise to an inherent, specific and not insignificant risk of upper limb injury may not be suitable for a system of work for which it is merely prudent to encourage the prompt reporting of symptoms. In can be argued that the objective in both cases is to identify, promptly, those with early symptoms of a possible work-relevant disorder, but the wording should neither cause employees to report every ephemeral ache and pain or symptoms of fatigue nor cause employees to ignore persistent symptoms because they perceive them to be naturally occurring rather than work-induced.

40. This delicate balance is referred to in a passage from the House of Lord's Judgment in Pickford - v - Imperial Chemical Industries plc in which the Claimant sought damages for Cramp of the hand (PDA4) allegedly caused by her work as a secretary in the late 1980s. In this Judgment, in June 1998, Lord Hope of Craighead states:

As for the giving of warnings, the respondent said in her particulars of negligence that she should have been told of the risk of contracting PDA4. The giving of warnings of the risk of disease or injury is a precaution which is familiar in the field of litigation for personal injury. But in the case of conditions such as PDA4, which are not easily identifiable and not well understood, great caution must be exercised as to the content of any such warning and as to whether to give a warning at all is appropriate. To impose a duty which may cause more harm than good would be undesirable. The law does not compel employers to take steps which may bring about the condition which they wish to prevent. Conditions which are associated with functional or psychogenic disorders present particular difficulty. So the judge was right to pay careful attention to the advice of the experts, and to the practice in the industry, as to precise terms of any warning that the appellants might responsibly give to their employees about the risk of contracting PDA4.

41. Few would argue with the idea of encouraging the early identification of a genuine disease process. However, if there is in fact no disease process, merely sensations of 'the heart-ache and the thousand natural shocks that flesh is heir to', excessive emphasis on the early reporting of even minor symptoms can be counter-productive in giving the impression that virtually any sensation, including fatigue, is a work-induced 'injury'.

42. Irrespective of whether or not employees are made aware of ULD risks and/or encouraged to report symptoms, it is essential that those to whom symptoms may be reported have a clear understanding of what they should and should not do and that appropriate measures are in place to respond to any such reporting of symptoms.

43. The GP will probably be the first source of professional advice for most employees experiencing a WRULD. However, it can be argued that little reliance should be placed on a GP's diagnosis of, or prognosis for, a work-relevant upper limb disorder. Once an employer has been made aware of a GP's diagnosis, under health and safety legislation there is a clear duty on the employer to assess, or re-assess, the risks inherent in the work and to seek specialist help to ensure that the condition is not made worse by the tasks the employee is required to undertake.

44. What is often needed, but all too rarely provided, is prompt referral to an appropriately qualified and knowledgeable specialist who is aware that 'careless words can cause claims' and whose primary objective, if at all possible, is rehabilitation, or failing that, prompt redeployment. Claims can be initiated, and succeed, simply because the response to the initial reporting of symptoms was not timely and/or appropriate.

Re-assessment and rehabilitation

45. The HSE's latest guidance on upper limb disorders suggests "It is often possible to return to work before symptoms have resolved, and, in some cases this may be advantageous". While an early return to work is generally seen as advantageous, simply sending someone directly back to a job they find painful is counter-intuitive and inappropriate.

46. There is a strong case for using transitional work arrangements as the facilitator that take account of both biological and psychosocial obstacles to returning to work. Even so, it is popularly understood that work activities may aggravate or exacerbate some disorders, even if the primary cause of the disorder is wholly unrelated to work. It remains to be seen whether employers will adopt the biopsychosocial model in the management of work-relevant upper limb disorders and how the Courts will react if they do.

47. Once an employer has been made aware that an employee is suffering a work-relevant upper limb disorder, under health and safety legislation there is a clear duty on the employer to assess, or re-assess, the risks inherent in the work and to seek specialist help to ensure that the condition is not made worse by the tasks the employee is required to undertake. Such assessments may identify the need for transitional work arrangements and/or for modification to the workstation. (See for example: Goodwin -v- Bennetts UK Ltd and Kane -v- Eaton Williams Group Ltd)

48. While there is considerable evidence for the use of temporary modification of activities to support people with regional pain on their return to normal activities, simply throwing supposedly 'ergonomic' equipment and furniture at a problem is rarely of any long term benefit.

49. There are numerous accessories and items of equipment and furniture on the market that are claimed to be 'ergonomically designed' and marketed as being beneficial to those with musculoskeletal problems. However, the currently available evidence suggests that very few such products are actually beneficial or used for anything other than the briefest of periods.

50. The burgeoning market for such products can in part be explained by the fact that it is often far easier to tinker with the physical features of a workstation than tackle the root cause of the problem, e.g. some psychosocial issue to do with the design of the job, and that tinkering with the physical features of a workstation can produce a 'Hawthorne effect' that gives the illusion of a successful, albeit ephemeral, ergonomics intervention.


51. Even if an employer believes they are acting in a reasonable and prudent way, taking positive thought for the safety of their workers in the light of what they know or ought to know, a significant minority of staff will inevitably experience upper limb symptoms. Whether or not these result in personal injury claims are complex matters that depend upon, among others things, economic and social factors. Whether or not these result in successful personal injury claims depends upon, among others things, the policies and procedures that are in place for dealing with upper limb symptoms when they do occur.

52. While in a personal injury claim for a WRULD the onus is on a claimant to prove his or her case, one of the most common problems encountered by Defendants is showing, several years after the event, that they did actually act in a reasonable and prudent way, assuming of course they did. Having appropriate policies and procedures in place for dealing with upper limb symptoms when they do occur is vital to reducing the risk of an organisation experiencing a personal injury claim. Having contemporaneous documentary evidence that shows appropriate policies and procedures were in place for dealing with upper limb symptoms when they occurred is vital to reducing the risk of an organisation experiencing a successful personal injury claim.