WRULD Claims heard in England, Scotland and Wales

References to and/or interpretations of HSE Guidance Documents - Gallagher - v - Bond Pearce

Display Screen Equipment Work: Health and Safety (Display Screen Equipment) Regulations 1992. Guidance on Regulations: L26 1992
Regulation 2	Gallagher - v - Bond Pearce | Find Other Cases

In this County Court Judgment on the 9th February 2001, at D on page 4, HH Judge Tyzack says:

I have been referred to the detail of the DSE Regulations by [Counsel for the Claimant], and I am quite satisfied, especially having heard the Claimant's engineering expert and the Defendants' expert, that this audit by Mr. O was manifestly inadequate. In particular, the Defendants failed to ensure that prior to this audit the Claimant was given any training, a specific requirement of Regulation 6 of the DSE Regulations, and which in my judgment was an absolutely essential prerequisite to the completion of any checklist. I am quite satisfied that the Claimant herself had no idea at all that this audit was purporting to be a risk assessment carried out pursuant to the DSE Regulations. The guidance notes to the DSE Regulations at page 446 provide as follows - and I set out in my judgment paragraphs 19 and 21 in full, including (a) to (d).

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Display Screen Equipment Work: Health and Safety (Display Screen Equipment) Regulations 1992. Guidance on Regulations: L26 1992
Regulation 3	Gallagher - v - Bond Pearce | Find Other Cases

While there is no explicit reference in this County Court Judgment on the 9th February 2001 to any alleged breach of regulation 3 of the Health and Safety (Display Screen Equipment) Regulations, when commenting on risk assessments, at A on page 5, HH Judge Tyzack refers to the guidance on regulation 3 when he says:

I also find that there was no adequate regard to urgency so far as the identified action was concerned. I accept the Claimant's evidence that the document holder was not provided until about November 1993 - nearly 12 months later - and the footrest was provided sometime after that. That was hardly consistent, in my judgment, with paragraph 42 of the guidance notes to the DSE Regulations. I quote from paragraph 42(a)

"If assessment of an existing work station shows there is a risk to users or operators, the employer should take immediate steps to reduce the risk."

So far as the provision of document holders was concerned, Mr. S said that the reason for the delay was that the Defendants wanted to try out several first, and that this took time. I am afraid I do not accept that explanation as a valid reason for nearly 12 months' delay.

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Display Screen Equipment Work: Health and Safety (Display Screen Equipment) Regulations 1992. Guidance on Regulations: L26 1992
Regulation 4	Gallagher - v - Bond Pearce | Find Other Cases

In this County Court Judgment on the 9th February 2001, at F on page 5, HH Judge Tyzack says:

I am also quite satisfied that the Defendants were in breach of regulation 4 of the DSE Regulations. The text of this is set out on page 434 of the document before me, and reads as follows:

"Every employer shall so plan the activities of users at work in his undertaking, that their daily work on display screen equipment is periodically interrupted by such breaks or changes of activity as reduce their workload on that equipment."

The notes to this regulation are set out at page 453, paragraphs 43, which I set out in full in this judgment, and paragraphs 46 and 47.

However, after the audit was completed in December 1992, I find that the Claimant's daily working routine continued in exactly the same way as it had before. This is consistent with my overall finding that the Claimant was working in a very busy commercial department for a successful and hard-working partner. The work which the Claimant was required to type was, as I find, very often urgent, and Mr. W was an exacting boss, often requiring work to be retyped after changes or amendments had been made. He for his part valued the Claimant's work, as he told me, and indeed as the Claimant herself told me, and I accept that he did not like his work being typed by anybody else. He said in evidence, in terms, that he rated the Claimant highly, and assessed her as "very good". He never felt that she did not pull her weight. For her part, she liked working for him. She liked being part of a team with him and was quite happy to work hard for him.

In that climate I find that the Defendants did not apply their minds adequately to the necessity for rest breaks. It must follow that I find them to be in breach of regulation 4. They only tried to comply with that regulation much later, namely in about March 1995. Of course, the fact that I find the Defendants to be in breach of regulations 2, 4 and 6 of the DSE Regulations, as I do, does not inescapably lead to the conclusion that they are liable to the Claimant in this action.

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Display Screen Equipment Work: Health and Safety (Display Screen Equipment) Regulations 1992. Guidance on Regulations: L26 1992
Regulation 6	Gallagher - v - Bond Pearce | Find Other Cases

In this County Court Judgment on the 9th February 2001, at D on page 4, HH Judge Tyzack says:

I have been referred to the detail of the DSE Regulations by [Counsel for the Claimant], and I am quite satisfied, especially having heard the Claimant's engineering expert and the Defendants' expert, that this audit by Mr. O was manifestly inadequate. In particular, the Defendants failed to ensure that prior to this audit the Claimant was given any training, a specific requirement of Regulation 6 of the DSE Regulations, and which in my judgment was an absolutely essential prerequisite to the completion of any checklist. I am quite satisfied that the Claimant herself had no idea at all that this audit was purporting to be a risk assessment carried out pursuant to the DSE Regulations.

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Display Screen Equipment Work: Health and Safety (Display Screen Equipment) Regulations 1992. Guidance on Regulations: L26 1992
Annex B	Gallagher - v - Bond Pearce | Find Other Cases

In this County Court Judgment on the 9th February 2001, at B on page 29, HH Judge Tyzack says:

[Counsel for the Defendant] makes a number of powerful submissions. He says that throughout the period between 1993 and 1995 there is no evidence of any significant change in the Claimant's volume of work, in her pattern of work, or in her hours of work. How is it then, he asks, that the Claimant can say that her symptoms, which began in earnest in about January 1995, are related to her work? What was it that then suddenly caused those symptoms to arise? [Counsel for the Defendant] Mr. Evans' accumulation theory as being inconsistent with the evidence. Despite no footrest or document holder, no symptoms arose. Despite working at the overtime station since August 1994, again, he says, no symptoms arose until January 1995. And how, he asks, can the small amount of overtime a week be enough to fulfil Mr. Evans' "last straw" argument. He says that the Claimant's symptoms cannot be explained in medical terms, and since there is no evidence of any factual trigger, this claim must be dismissed because causation cannot be established.

[Counsel for the Claimant] responds by referring me to annex B to the DSE Regulations at page 467, paragraph 2, under the sub-heading, "Upper limb pains and discomfort":

"A range of conditions of the arm, hand and shoulder areas linked to work activities are now described as work related upper limb disorders. These range from temporary fatigue or soreness in the limb to chronic soft tissue disorders like peritendinitis or carpal tunnel syndrome. Some keyboard operators have suffered occupational cramp. The contribution to the onset of any disorder of individual risk factors, for example keying rates, is not clear. It is likely that a combination of factors are concerned. Prolonged static posture of the back, neck and head are known to cause musculoskeletal problems. Awkward positioning of the hands and wrist, for example as a result of poor working technique or inappropriate work height, are further likely factors. Outbreaks of soft tissue disorders among keyboard workers have often been associated with high workloads combined with tight deadlines. This variety of factors contributing to display screen risk requires a risk reduction strategy which embraces proper equipment, furniture, training, job design and work planning."

In effect [Counsel for the Claimant] says, if her symptoms are not work related, what caused them? She is not a malingerer. There is no evidence that she was climbing on a compensation bandwagon, whether at Bond Pearce or locally. She is not a member of a trade union. She has no sport or hobby that could have caused her symptoms. So what was it? Moreover, she was happy in her work, unlike Mr. Mughall, and was good at it, and there is no history of mental illness which could cast doubt on a diagnosis of work related upper limb disorder.

In the end I am driven to the conclusion that [Counsel for the Claimant] is right.

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Last updated: 14/05/2013