The respondent was a secretary to a partner in a leading London law firm. The judge at first instance found, as a result of a significant increase in her work and a close 'temporal connection' between the exposure to excessive keyboarding and the onset of symptoms, that she had established a breach of the display screen equipment regulations 1992 and she succeeded in a claim for damages.

The defence - which the law firm said was pursued at the instigation of its insurers - had been run on three lines; namely, her condition was psychosomatic (it had no organic (physical) basis); her condition was not work-related; and if it were work-related, it was not caused negligently.


This first defence was not pursued at the Court of Appeal but, in passing, Lord Justice Wall referred to the fact that he found it 'distasteful', a term he later changed to unfortunate', following an objection by the appellants. The court upheld the trial judge's finding that the appellants viewed risk assessment pursuant to the above regulations and the Management Health and Safety at Work Regulations 1992 (now updated to 1999) as 'an unfortunate waste of time'. No discussion was had with the respondent, nor was any action taken as a result of the findings. The risk assessment was simply filed away and forgotten. The claimant had not been trained pursuant to the regulations and, had she been, the court found that 'her working practices would have materially altered'.


Rather oddly, the appellants sought to suggest that the risk assessment pursuant to regulation 2 was only concerned with equipment making up the workstation and the immediate working environment. This was dismissed as 'plainly wrong' by the appeal court, which agreed with the content of the guidance note to the regulation that the risk assessment should concern itself with 'all the known health problems that may be associated with display screen work'. The interpretation by the appellants would render the regulations 'wholly ineffective'.


Finally, the appellants sought to suggest that the respondent's injuries were caused through her own failings in that she did not take sensible breaks and limit her periods of continuous typing, thereby bringing misfortune on herself. Lord Justice Wall found that this was 'an insidious aspect' of the defence. While the High Court (Kennedy J in Amosu & Ors v The Financial Times unreported, 31 July 1998) suggested that an intelligent claimant would understand the need to take breaks, this court found that the employer has a responsibility 'to intervene and alter work practices if need be, not to rely on the employee, who will have other priorities and may not appreciate (in the absence of training) the importance of breaks and a varied routine, who may be distracted by day-to-day pressures and deadlines and who may have become habituated to undesirable working practices'.


This is an important finding. The plight of the intelligent claimant has long undermined claims for damages in respect of upper limb disorders. This judgment provides a return to reality.


The court upheld the need for a proper risk assessment that should then be actioned, the need for training, and the greater responsibility of employers to intervene to prevent excessive exposure in keyboard-related upper limb disorder claims.


Lord Justice Buxton also considered the content of the defence. In relation to a number of precise allegations of statutory breach, the defendants had responded within the defence with what is an all too common response, that allegations were 'neither admitted nor denied, as the defendant has no knowledge of the matters pleaded therein and the claimant is put to strict proof'. To avoid evidence developing at trial, the judge made it clear that what should have happened is that once the evidence came to hand to enable the defendants to plead a positive case, they should have either formally amended the defence or informally given notice of their positive case to the claimant solicitors. This would have ensured that the issue could have been developed prior to the trial rather than at it. In this instance, a positive case was based on the interpretation of the medical records.


The judge said that, given the positive case, the responsibility would then have fallen to the claimant solicitors to indicate the extent of any objection to the accuracy of the medical records, and the matter could then have been dealt with through case management with a decision as to whether the records needed to be formally proved at trial.


Therefore, it is important that claimant lawyers ensure that if a defence is pleaded in the terms stated here, then at an allocation hearing or the first case management conference, the defendants are asked to plead a positive case and an order made in such terms.


By Simon Allen, Russell Jones & Walker, Sheffield