WRULD Claims heard in Courts in England, Scotland and Wales

Hearing(s) - Cowley -v- The Stroke Association

Date	Court	Claimant(s)	Task	Injury	Judgment for
1 Jul 2010	Northampton County	Cowley	DSE use: administrative tasks	Carpal Tunnel Syndrome	Defendant

Amanda Cowley started working for The Stroke Association in a clerical capacity in 2000, when she was 21. In 2005 she was diagnosed with carpal tunnel syndrome. Despite operative treatment and modifications to her workplace and work routine, in late 2005 she had to give up working for the defendants. By the time of the trial in 2010 she had not returned to full-time employment or to full health. She blamed the defendants for this state of affairs, alleging that by reason of the defendants' negligence and breach of statutory duty, she was caused to contract carpal tunnel syndrome and the defendants, accordingly, were responsible for its consequences.

At an early stage of the proceedings, the defendants had admitted some limited breaches of duty in that they had failed to carry out risk assessments and plan the claimant's work. In the course of the proceedings there were other concessions as to breach of duty, but the defendants continued to maintain that the claimant's condition was constitutional and that it was neither caused by nor exacerbated by her work with the defendants. Accordingly the defendants continued to deny liability and it was for the court to determine whether the breaches of duty that had been admitted or any further breaches of duty or negligence that might be found had, in fact, caused or materially contributed to the claimant's alleged injury.

Having heard the evidence, HH Judge Hampton found that the claimant's working day varied, not all her work was keyboard related. Although she may have been seated at her keyboard and her workstation for fairly long periods whilst she was there, her work was not restricted to keyboard use. She had writing tasks, banking tasks, opening post, folding letters, thanking individuals for donations and filing. There was a fairly relaxed attitude about taking breaks in the defendants' organisation. There was a formal lunch break, but no other formal breaks such as tea breaks, although employees were allowed to take breaks for refreshment, for comfort and smoking breaks were also allowed. The claimant had natural breaks from keyboard work in the course of the day.

When the claimant first started to suffer symptoms in her wrist that took her to her GP on 30th October 2003, there was some discussion about repetitive strain injury in the course of that consultation. The GP evidently diagnosed a ganglion and although there was no reference in the medical notes to the term "RSI" it did appear on a document that was created the following day, when the claimant finally had her risk assessment carried out by Miss D and RSI was mentioned. The assessment that was carried out was the type of risk assessment that the defendants ought properly to have carried out at an earlier stage. However, HH Judge Hampton found that had a risk assessment been carried out at an earlier stage very little change would have occurred as a result. The claimant had come to the view by then that the reason that she was suffering problems was because there had been a change of keyboard after her original keyboard, described as an ergonomic keyboard, had broken and she had been given a standard keyboard as a result. The claimant, rightly or wrongly - according to the ergonomic evidence probably wrongly - attributed the onset of her symptoms to the change in keyboard. A new keyboard was provided almost straight away. Thereafter, various types of computer mouse were tried and for the following year or so the claimant did not have any particularly severe symptoms.

HH Judge Hampton found that the claimant made no complaint of symptoms to her employers between the risk assessment in October 2003 and the claimant going to her GP in January 2005. If she continued to experience discomfort, that discomfort was not particularly intrusive. There was an intrusion of symptoms towards the end of 2004 such that when she had two weeks off over Christmas the claimant found that her symptoms were relieved. Then on returning to work they returned. That prompted her to seek further advice from her GP. Purely by coincidence, on 10th January 2005, a routine risk assessment was carried out. The claimant had already made a doctor's appointment, for just over a week later, on 18th January. In that risk assessment the claimant did not raise, as she would have had the opportunity to do, any particular problems or report that she was experiencing discomfort or other symptoms attributable to her work. Under the heading "Further action needed or any problems" there was a reference to lighting, but nothing about the workstation or pressure of work. It was noted in that risk assessment that the amount of time the claimant was assessed to be spending in front of her screen had in fact reduced since the earlier risk assessment from seven to five hours.

When considering the breaches of duty, HH Judge Hampton states:

Breach of Regulation 2 is admitted, so is breach of Regulation 4. However, I find on the balance of probabilities on the facts as I find them to be that, had those duties been complied with, there would not have been any difference to the claimant's working environment, or the facts which occurred between 2003 and 2005. So far as the allegations with regard to Regulation 6 and 7 are concerned, those have been conceded and I find that placing a booklet in a staff room is not adequate; indeed had those breaches not been conceded I would have found the defendants in breach. However, for the reasons that I have already given, I have come to the conclusion that the course of the history of this case, on the balance of probabilities, would not have been any different. Even if the claimant had had further information, whilst she might have gone to her doctor a little earlier than she actually did, she would have continued to work for the defendants and because of the findings that I make on medical causation, it would not have affected the eventual outcome to this case.

So far as the allegation that there was a breach of Regulation 11 of the Workplace Health, Safety and Welfare Regulations 1992 with regard to the workstation, that breach is not proved. .......... So far as failing to implement an adequate system for rest periods and task rotation, on the facts I find that allegation not to be proved. Although there was no formal system for rest periods I find, on the balance of probabilities, it was not required, because task rotation and breaks from keyboard work were a natural part of the claimant's working environment. Moreover, the ergonomists do not support such a finding against the defendants. ......... So far as the allegations of negligence .... are concerned - instructions, information, advice - that really adds nothing to the breaches that I have already found. The allegation in paragraph 12.8 of the particulars of claim - failing to effectively reorganise the claimant's workplace, and so forth - again I make no finding against the defendants. ....... The allegation that the defendants failed to cause the claimant to be assessed for aptitude to perform such work, I have heard very little evidence about, and there is no evidence on which I could make an adverse finding against the defendants. So far as failing to heed complaints made by the claimant in respect of symptoms she was suffering, again I find that that is not made out. Certainly not after January 2005 when I find the defendants did all they reasonably could to assist the claimant. There is perhaps a failure on the part of the defendants in failing to follow up the claimant's condition and whether she was continuing to suffer discomfort after she made the initial report in October 2003, but having made the findings of fact I have already outlined I find that it would have made no difference to the course of events that followed in due course. The allegations with regard to work equipment, working conditions and so forth ..... add nothing.

HH Judge Hampton then goes on to consider what she describes as "the most controversial matter in this case", the issue of causation. In paragraph 22 of the Judgment, HH Judge Hampton says:

The claimant for her part is, perhaps unsurprisingly, convinced that her symptoms initially arose from the change of keyboard in 2003. I have sympathy with her for that view, because there is a lot of misinformation available about working at keyboards and the effect that they may have on people who undertake a good deal of keyboard work. Unfortunately, the ergonomic evidence does not support her and neither does the medical evidence.

After reviewing the medical evidence, HH Judge Hampton says:

I am driven to the inevitable conclusion, which was effectively conceded on behalf of the claimant in argument, that the claimant's carpal tunnel syndrome was not caused by her work, nor was it caused by any breach of duty on the part of the defendants. The matter, of course, does not end there. I must then go on to consider whether her condition was accelerated or made worse by the breaches of duty that have been established. ....... This is not one of those cases where one has reliable evidence that an individual with a constitutional problem has suffered it five or ten years earlier than they might otherwise have done. Neither of the experts addressed that issue and I can make no finding on that point.

I must then go on to consider whether the claimant's condition has been made worse, possibly more difficult to treat and ultimately chronic, as a result of the breaches of duty that I have found. That consideration has to be set against a background that the treatment of carpal tunnel syndrome is usually successful. Treatment is usually fairly straightforward and it is unusual for the condition to become chronic. On this point the medical witnesses agreed that the symptoms from which the claimant now suffers are not those of the carpal tunnel syndrome. Mr Campbell [instructed by the claimant] thought it was some sort of regional pain syndrome but said he was not an expert in this area and has made no further comment. Mr Morris [instructed by the defendants], who appears to have more background knowledge about regional pain syndrome, has considered that and dismissed it as a diagnosis. He was of the view that there was some form of illness behaviour here; that is not to say that the claimant is malingering and Dr Hyde [instructed by the claimant] has specifically ruled out any question of exaggeration or malingering, but both agreed in their final discussions that it was psychological problems which had overtaken the claimant.

In dismissing Amanda Cowley's claim, HH Judge Hampton states:

Accordingly, and with some regret, because I have sympathy for the claimant, whose discomfort I find to be genuine, who I find to be an honest young lady who has suffered very considerable misfortune, I must dismiss this claim. It is not sufficiently proved to the appropriate standard, that the breaches of duty that I have found, have caused her problems or have made them worse or more difficult to treat.

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Last updated: 29/09/2010