WRULD Claims heard in Courts in England, Scotland and Wales

Hearing(s) - West - v - Miller & Co

Date	Court	Claimant(s)	Task	Injury	Judgment for
18 May 1998	Truro County	West	DSE use: audio typing	Tendonitis, Tenosynovitis	Defendant

This matter reached Court some eight and a half years after the events that gave rise to the Plaintiff's claim, resulting in some significant evidential issues. The statement of claim was amended two months prior to the trial, adding new allegations relating to the workstation and changing the Medical Expert upon whose evidence the Claimant relied. The Plaintiff's claim failed. The Plaintiff unsuccessfully sought leave to appeal out of time and for leave to adduce further evidence. See Judgment of Lord Justice Tuckey on the 7th December 1998.http://www.bailii.org/ew/cases/EWCA/Civ/1998/1923.html

In October 1989, the Defendant received instructions from a client to produce valuations of eight different properties and submit reports of the valuations to a tight deadline. The Plaintiff's account of what happened was that she had to complete the reports in the space of effectively twenty-four hours. She said that after she received the audio tapes she typed non-stop for five-and-a-half hours from 12 noon until 5.30 when her working day ended, and then the following morning she had to resume again and she completed the typing by about 11 am. According to her account, as a consequence she was in quite considerable pain. On that evening she went to see her doctor who diagnosed tenosynovitis.

The Plaintiff claimed that her regular pattern of working was typing between four to five and maybe on some occasions six hours a day, but it was only on those two days in the October of 1989 when she said she had been typing all day for eight hours a day. In fact, the evidence which she gave was that she typed for five-and-a-half hours on the first day followed by a couple of hours on the next day, making somewhere in the region of seven-and-a half hours in total, but with a night in between.

The account given on behalf of the Defendant was somewhat different. The person for whom the Plaintiff was working did not think the typing of the reports was anything exceptional, nor did he regard this as being a period of any great pressure. There was a deadline to be met, but that was frequently the case. The reports took the form of letters that mostly ran to three to four sides - more than three but less than four sides of A4.

The number of words in the six reports in the trial bundle came to 6,591. The number of words in the other two reports were not counted but they were of similar length, or perhaps marginally shorter, certainly one of them marginally shorter than the six reports in the trial bundles. This suggested about 1,100 words per report, which for the eight reports would mean a total of about 8,800 words. If typing at sixty words per minute, the eight reports would require less than three hours work.

HH Judge Thompson says, at D on page 13 of the Judgment:

I think there is considerable doubt as to just what the pressures were to which the plaintiff was subjected. I doubt if they were any more than one would find in any office. In any business, no doubt, there are occasions of pressure, there are occasions of urgency, and occasionally clients put up a deadline which everyone strives to meet, but that I would regard as part of the ordinary, every-day hazards of working life and nothing exceptional about that.

The Plaintiff's Medical Expert argued that with the passage of time the acute inflammation associated with tenosynovitis or tendonitis was followed by the development of adhesions or scar tissue, which was responsible for her continued symptoms. The effect of this tight scar tissue was to cause pain when activities increased, when ordinarily tendons would move freely but are partially stuck down and therefore unable to move satisfactorily. This argument, successfully advanced by the Plaintiff's Medical Expert in other cases around the same time (see for example Binns - v - Speechly Bircham), became known as the 'adhesions theory'. The Defendant's Medical Expert was dismissive of this theory and suggested the Plaintiff was exhibiting "disability behaviour".

Having summarised the medical evidence, at F on page 18 of the Judgment, HH Judge Thompson states:

........... I unhesitatingly prefer the evidence of [the Defendant's Medical Expert]. I think that the evidence of [the Plaintiff's Medical Expert really depends upon an act of faith. There seemed to be no diagnostic justification for his conclusions. There are no clinical signs which would justify him in finding that there was a presence of tenosynovitis, and indeed his theory in the absence of crepitus and swelling, of some sort of scar tissue again involves some sort of act of faith because nothing has shown up on the M.R.I. scan, and so consequently it has to be so small that it does not show up on the scan and at the same time it has to be disabling. I think there is an indication that there was or may have been tenosynovitis present in a mild form on the right side in the very early stages when seen originally by her general practitioner in October 1989. It receded and was minimal by November 1990. What the cause of that was must be a matter of conjecture. I think the basic position was this, that when she may have had tenosynovitis I am far from satisfied that there was anything in her employment which was the cause of it.

HH Judge Thompson concludes his Judgment by saying:

Typists, especially competent ones with word speeds of 60 to 70 words per minute, type with both hands equally but the tenosynovitis was only diagnosed as being on the right side and having been mild. If insofar as she did have any, I think that that has cleared up and what her present condition is I do not know and I do not propose to speculate, but in my judgment this claim, so far as it relates to any negligence or the sins of omission on the part of these defendants, fails.

V1.03

Last updated: 16/10/2009