Alexander & Ors v Midland Bank Plc [1999] EWCA Civ 1918 (22 July 1999)

1. These five appeals are brought by the defendant bank against judgments of HH Judge Byrt QC given in the Mayor’s and City of London Court on 22 May 1998 in favour of five claimants, who were representative of other claimants who had suffered similar problems. The judge awarded each claimant £7000 by way of general damages for pain and suffering and loss of amenity, together with the appropriate sum for special damages. The trial lasted 29 days.

2. The claimants were employed by the bank for a period of time as encoders at their District Service Centre (DSC) at Frimley in Surrey. In 1989 and 1990 the bank set up nine DSCs throughout the country. The object was to remove from local branches the work of recording cheque and voucher transactions involving debit and credit to the customer’s account into regional centres, of which that at Frimley was one. The centralisation was highly efficient from the bank’s point of view, involving sophisticated computer operation designed to ensure that all cheques and vouchers delivered during the day would be recorded in the relevant customer’s account by midnight on that day.

3. A central feature of the system was the encoding machine. At Frimley there were 90 such machines arranged in rows in a purpose built building. The sole function of the encoders was the rapid recording of the details of each cheque or voucher transaction passing through the centre. The gist of the claimants’ complaints is that as a result of that work they suffered musculo-skeletal injury to their necks, arms and hands due to the rapid repetitive work entailed in the keying in of the relevant information to be recorded of each transaction over a prolonged period of time whilst seated on a chair at an encoding desk, both of which were ergonomically of unsound design.

4. Recruitment of encoders began for Frimley in February 1990. Between April and July 1990, Mrs Osler, Mrs Alexander, Mrs Rolfe and Mrs Mulholland joined. The fifth claimant, Mrs Lancaster, joined in November of that year. All were to be part-time encoders. Their employment started after a period of training to familiarise them with handling banking documents and to ensure that their encoding skills reached the minimum required speed.

5. The encoder’s task is essentially very simple: the large majority of them are women; they are required to sit at a desk of a sort which is well shown in photographs before the court. The operator’s left hand picks up a cheque or a voucher from a batch placed in front of her, slightly to her left. She reads from it the required numerical information which has to be recorded. This she keys into the computer with her right-hand operating on the key pad on the right hand side of the desk. The key pad will rotate 360 degrees, but otherwise its position is fixed on the desk. Having completed the keying-in process, the encoder drops the cheque from which she has just read into a groove which runs across the back of the desk where it is mechanically carried away to a collection point to the right. The pace at which the encoder can perform her task is largely dictated by the speed at which the fingers of her right hand can enter the details onto the key pad. The encoder could only reach the target speed set for the job if she could learn to touch type utilising all five fingers of the right hand. Mrs Bird, who was responsible for the training, had to ensure that her trainees could type in this way.

6. The period of training lasted six months by which time the trainee had to achieve the required skill, otherwise their services were dispensed with. All the claimants achieved this; but they found the experience stressful and a struggle to achieve the required speed. The Frimley DSC went live in July 1990; at first work was slack; but it gradually picked up till a peak in August 1991. There was however a period in February 1991 when it was thought that there had been over recruitment of encoders. This resulted in some redundancies; those with the poorer skills, that is to say the slowest encoders, were most at risk. Not surprisingly this led to considerable anxiety and determination to keep up to speed.

7. By the Summer of 1991 a number of encoders were experiencing trouble with their necks and right upper limbs. The first of the claimants to do so was Mrs Rolfe. She began to feel pain in her right arm. She consulted her general practitioner, who thought it might be work related. In October and November Mrs Osler, Mrs Alexander and Mrs Mulholland notified their managers that they were experiencing similar pain. By that time eight encoders at Frimley were suffering similar troubles, including a Mrs Gayner Hughes, who was amongst the three fastest and most competent encoders.

8. All the claimants worked part-time; some worked for part of the day, others all day for two days a week. They experienced some relief when they stopped encoding, but it recurred when they resumed it. In many cases once the condition had become chronic it interfered with ordinary household tasks. The bank did their best to find alternative work; but in one case at least this proved unsatisfactory and on resumption of encoding symptoms were exacerbated. Moreover, as more and more encoders had to be found alternative work, it was less easy to move people to alternative work and this caused some resentment among the staff.

(a) The regime : This involved a consideration of the working conditions, including the design and suitability of the encoding desk and chair, the layout of the desk, and the rate at which the encoders had to work; what work breaks occurred and whether they enabled tension to be relaxed. This aspect of the case involved the consideration of those witnesses who spoke of the conditions including the claimants and the evidence of two ergonomists, Mr Coleman called on behalf of the claimants and Mr Pearce on behalf of the bank.

(b) The medical question. Here the issue was a stark one. It was common ground that the claimants were suffering from fibro-myalgia and that this was work related. It is now referred to as work related upper limb disorder (WRULD) whereas previously it had been called repetitive strain injury (RSI). It was equally common ground that all the claimants were genuinely suffering pain and disability. The dispute arose as to the basis of the condition. The claimants’ case, supported by two distinguished rheumatologists, Dr Mowatt and Dr Robertson was that the condition was physical and amounted to a physical injury, although the precise aetiology of the condition was not known. The defendant’s case was that it was non-physical, it was all in the mind. Sometimes this was called psychosomatic, sometimes psychogenic; the terms were used synonymously and I shall use the latter. This case was supported by an equally distinguished orthopaedic surgeon, Mr Varian, who specialised in hand and upper limb surgery.

The judge considered this under a number of different topics which fell under two main heads. The first was the atmosphere in the encoding room and the speed at which the encoders were required to work and what opportunity they had to relax. The second involved the physical conditions in which the encoders had to work involving the suitability of the chairs, desks and provision of foot rests.

This was important because of its impact on the pressures under which the claimants had worked and which in turn affected speed and tension. The day’s intake of cheques and vouchers had to be completed by midnight. The work was supervised by a team of managers and supervisors who enforced a moderately strict regime designed to ensure that each operator concentrated on the job in hand. The encoders were required to work to a minimum target speed. It required the processing of 1,500 fields per hour for what is known as “bulk work”, which came direct from the bulk retail customers; and 1,350 fields per hour for FAS work, that is work consisting mainly of vouchers coming from the branch banks. A field is a group of figures, maybe up to 11 in number, such as to be found on a cheque or voucher. In the case of bulk work only one field has to be encoded for each cheque; in the case of branch work there might be as many as five fields which have to be encoded for each voucher.

(1) in late 1990, as the workload increased, there was a change in the routine of the morning shift, so that the encoder could be kept at her work station fully supplied with work. Initially she had been able to collect her own work as and when required from the back of the encoding room. The change in the routine was that, in future, the work would be brought to her instead. Whilst administratively this made sense, its down side was that the new arrangements deprived the encoder of the opportunity periodically to walk about and stretch as hitherto.

(3) Efforts were made to cut down dead time on the encoding machines, that is, the time when, for one reason or another, the operator is not working her machine. A computer chip was introduced into the unit which would monitor when the operator signed on and signed off at the beginning and end of the shift. It would register breaks in the working process such as would occur when there was a need to trace an error, or a new batch of work had to be set up, or when the operator took her tea break. This new chip not only monitored each moment the encoder took a breather but it also deprived her of those natural breaks when she, as hitherto, had stopped encoding to write up her log, or “header”, as it was called. The evidence was uncertain as to when this chip was introduced. The best evidence suggests it was probably in November 1991. If this be the case it is not material to the cases of any of the plaintiffs, except Mrs Lancaster.

13. Secondly, motivation was stimulated by the introduction of an element of competition. (1) There was what was referred to as the “excellent board”, upon which each month the names of the three most successful encoders were displayed for all to emulate. (2) Teams corresponding with the columns in which the encoders sat were informally organised so that they could compete with each other. (3) At the end of each month the centre’s keying rate statistics were sent to Central Office where, with those sent in from all the other DSCs, they were set out in a league table of achievement, which in turn was circulated to all the centres. Mr Mumford said it was never his ambition to head the table; he aimed at securing a position in the middle for Frimley. But that of course entailed competition for himself and his managers as surely as seeking to come first or to avoid being last. Some will have seen this competitive element as adding fun to the job, something of a challenge, but for others temperamentally not made that way it would add peer pressure to the other pressures of the job. Both the fast and the slower encoders would feel the need to maintain or improve their contribution for fear otherwise of undermining the efforts of their team mates. Akin to this need to compete would be the anxiety experienced by some, like Mrs Alexander, and about which Mr Mumford testified, that sooner or later they might be made redundant. In the summer of 1991 the least strong encoders were potential candidates for selection, and in that context there was an added need to compete against one’s colleagues within that group to ensure that your keying-in rates were better than theirs, and good enough to avoid selection in a redundancy situation.

There was a conflict of evidence as to whether the minimum target speeds of 1500 fields per hour for bulk work and 1350 for FAS work were increased. The judge found that they were not. On the other hand he found that as part of local management’s efforts to increase productivity the managers and supervisors were regularly exhorting encoders, both fast and slow, to increase their own personal output. By various means they were urged to meet incrementally higher informal targets. This resulted in an average of 2123 fields per hour achieved by the fully trained encoders which was well in excess of the minimum target and was achieved because each encoder was being spurred on by the exhortations of the team leadership, which the judge described as bracing, to achieve the uppermost end of the bracket which embraced her personal capacity. This was a very important finding and not one that was challenged in the appeal.

Here again there was an important difference between the two cases. The defendant’s case was that for about twenty minutes in each hour the encoders were doing something other than encoding, which enabled them to have informal breaks from encoding, but importantly enabled them to relax from the tension and static posture of their right arms and hands which was adopted while actually encoding. The claimants’ case was that it was nothing like as long as this and they were not able to stretch, move around or relax so as to relieve the tension. I shall have to return to this issue later in this judgment, because Mr Stevenson QC for the bank submits that the judge’s finding on this aspect of the case was wrong.

(a) the high keying rate of about 12,700 depressions an hour (based on 2123 fields) showed that the encoding time was anything but a time for relaxing and relief of tension. Time off the machine was eating away at the encoder’s performance rate and a source of worry and frustration for her. On resumption of encoding she would normally have been intent on making up for the time she had lost, hence the high speeds she would feel impelled to achieve on resumption.

There was considerable criticism of the design of the chairs, mainly on the grounds that they were not easily adjustable. The judge rejected this criticism on the basis that most encoders managed to find a way round the problem. The judge held that the defendant was in breach of the common law and statutory duty (under the Offices, Shops and Railway Premises Act 1963 which appears to have added nothing to the common law duty) in failing to provide sufficient foot rests. But he was not satisfied that there was any causal connection between the breach and injury.

There was a good deal of criticism of this, not only from Mr Coleman and some of the claimants, but also from the Robens Institute and physiotherapists from Unstead Park. These people had been called in by the bank to advise; their examinations and reports were coincidental to the problems being experienced by the encoders, but it was said that they were asked to carry out their work with a view to seeing if conditions complied with forthcoming European legislation, and not because of the epidemic of WRULDs. Although the reports of these bodies were available, no-one was called from either institution. On the whole the judge did not accept these criticisms, save in one respect. He held that the horizontal and vertical fixture of the key pad was susceptible of criticism because it required the abduction of the right arm for keying purposes. This was significant in the onset of fatigue and eventually fibro-myalgia.

It is important to distinguish between body posture, which concerns the way in which the encoder sits on her chair, and the posture of the right arm when encoding. A failure to make this distinction was sometimes apparent in Mr Stevenson’s submissions. As to the former, there was considerable criticism again not only from Mr Coleman, but also the Unstead Park physiotherapist and the supplier of the chairs, who described the girls sitting on his new chairs ‘like a bag of coals’. The judge found that the management attached so little importance to posture that until January 1992 the encoders sat as they pleased. Then physiotherapists from Unstead Park were brought in to give them instruction how to sit. But the judge held that there was no evidence of what bad posture was adopted by the claimants or how it contributed to fatigue or injury.

The judge made a careful assessment of the evidence of the ergonomists. Mr Coleman supported the claimants’ case; the substance of his evidence was that the causes of WRULDs were multifactorial, but the features that he criticised could lead to physical injury. Mr Pearce on the other hand was an exponent of the psychogenic school of thought. Logically, therefore, it would seem that the working conditions could have little or no bearing on the condition. Paradoxically, however, he appears to have thought that frequent informal breaks from encoding were necessary. The judge put it like this:

“In his report Mr Pearce referred to the guidance in the 1983 H & SE document, “Visual Display Units”, which recommends that short frequent breaks are more satisfactory than longer ones taken occasionally, and that ideally they should be taken away from the work station. The principle behind that guidance is that the breaks prevent the onset of fatigue. If that aim is to be achieved then the operator should have the opportunity periodically to get down off her seat and do a mini walkabout to relieve the tension of pressurised work and relax. Mr Coleman approved of the routine in place in early days, when the encoder used to be able to do just that, when she went to the back of the encoder room to collect her work. In his evidence Mr Pearce said that he would not recommend more frequent formalised breaks but advocated a change of activity. I infer from that that he too approved the routine which, in the interests of productivity, the defendants scrapped.”

“Despite management’s anxieties in September and October 1991 that something was amiss at Frimley which might be responsible for the rising rate of sickness amongst encoders, they disregarded or discounted the recommendations of Robens and the Unstead Park physiotherapist as to how those pressures might be reduced by the introduction of increased frequency of work breaks. On the contrary, in January 1992 they shortened the length of the limited work breaks there were.

"Dr Mowatt saw each of the claimants twice, once in November 1994 and again in September of 1997. He took a history from them individually, especially covering the periods of time when they were employed by the defendants as encoders. He learned of the repetitive nature of their work, their hours and the work rates they were given. He listened to their accounts of the pain they had suffered, how their symptoms had developed, past the stage when firstly it amounted to no more than transient discomfort and fatigue, until the time it became persistent and disabling. He inquired what measure of improvement there was when they had a break from encoding, and he asked about their posture at the encoding desk and the position of their arms whilst engaged in the keying process. Having learnt this much about their background history and work environment, he completed a physical examination, which included testing for adverse neural tension, grip tests, and he applied pressure to tender spots at the shoulder girdle, elbow, wrist and fingers to gauge each claimant’s jump reaction.

He was much impressed by the striking similarity of the history given him by each of the ladies, of the accounts they gave him of how the pain progressed, as well as by the results of their physical examination. There was, as he says he would have expected, variability in the pattern of pain down the arm as between the different individuals, and even as experienced by the same ladies at different times. Despite that variability, he thought it most unlikely that there was a multitude of diverse causes for the pain experienced by the individual claimants or by the claimants as a group. In his opinion the high probability was that there was a single cause affecting all the claimants, and that this was work-related. He was satisfied that in each case the pain had passed from being transient discomfort to the point when it had become persistent and genuinely disabling.

His diagnosis was that the pain was symptomatic of a regional fibro-myalgia, and that it emanated from tissue damage - whether vascular or chemical he was uncertain - to the muscles and nerves within the affected arm due to the prolonged static posture the claimants would have had to adopt whilst encoding. In his opinion this amounted to physical injury. If their work was accompanied by physical pressures and emotional stress those factors would have added to the stress upon those muscles and nerves and increased their vulnerability.

This diagnosis was challenged in cross-examination. Dr Mowatt acknowledged that diffuse fibro-myalgia was not a precise anatomical condition. There was no ascertainable lesion one could point to, and in fact the reported pain spread down the arm in a away which did not accord with a recognised anatomical distribution. There was a lack of recognisable pathology such as would ordinarily evidence a physical injury. However, that, in his view, was not an end of the matter. The lack of such evidence was because little is known about the pathology of pain. Until research makes up the deficit one has to be satisfied with cruder, but no less practical, tools for diagnosis. One has to listen to the patient both describing the development of her pain and giving her historical account of relevant occupational exposure. One has also to rely on the results of the physical examination such as he undertook in this case, and in particular the tender spots test, and then apply a little common sense. From such an accumulation of information it was reasonable to infer, on a balance of probabilities, that the claimants had sustained physical injury because of their work.

´The lack of physical signs and the absence of recognisable pathology underlie the polarity of opinion on non-specific WRULDs. To accept this condition it may be necessary to abandon the medical model of disease. Using agreed but purely descriptive criteria accords with clinical practice and is in the best tradition of medicine. Simply because investigational or pathological data are not available to confirm the clinical picture does not mean that the condition does not exist. Clearly the condition does exist phenomenologically.'

Dr Mowatt was asked what was wrong about the posture that the claimants had to adopt at the encoding desk. He told the court that, in his view, the location of the task which had to be undertaken by the left hand and that of the keying-in pad meant that the right elbow had to be abducted away from the side of the body and the arms slightly flexed to reach the keying-in pad. Thus poised and unsupported, the right hand had to key-in for significant periods of time in a position which was inherently uncomfortable, as the claimants had told him. The consequence was that they would initially experience fatigue and an element of pain, which in turn would inhibit the encoders from developing over the course of time that degree of added fitness which would stave off physical injury. The longer the encoder persevered at this physical disadvantage the greater risk that injury would occur."

"The Australian experience laid the initial blame at the doors of the medical profession and the Government for mistakenly calling it a “repetitive strain injury”, when what was experienced by most sufferers was nothing more than the discomfort ordinarily associated with fatigue caused by repetitive activity. The doctors accordingly treated, and in fact over-treated, the symptoms as if to highlight an injury, and the Government paid out compensation under a statutory scheme. This approach in turn encouraged those with fragile personalities to believe they had sustained an injury for which they blamed their work. Such a belief became contagious, borne on the winds of mass hysteria through workshops, offices and Government departments in given areas of the states. This is what the literature calls the “iatrogenic effect”. This was then reinforced, it is said, by other socio-economic pressures. The persons affected were usually people with low self-esteem, employed in boring and repetitive type work which had little job satisfaction. Often they and their partners lacked job security which, combined with those other psychogenic factors, lowered their threshold of vulnerability. They sought refuge in victim support groups and in membership of trade unions who deployed aggressive, reactive tactics and encouraged litigation."

"More particularly, he said that while such commentary may or may not have a measure of validity as an assessment of the Australian situation, it was wholly inappropriate as a picture of the scenario with which the claimants were concerned. Although not psychiatrically qualified to analyse the personalities of the claimants individually, the factual background of such a hypothesis in no way related to the circumstances of the claimants as a group. Without exception, their annual staff appraisal showed them to be positive, co-operative, enthusiastic, competent employees, both whilst encoding and after they had ceased fulfilling their function.

Further, he was impressed by what had been recorded in Dr Reilly’s letter to the bank in June of 1992, to the effect that each of the claimants was happy in their work and wanting to go on working for the defendants, who they found to be sympathetic to their plight. The GPs had in no instance signalled the seriousness of their problem. In some instances they had not advised them to stop encoding; in other instances they had advised their patient to attempt to return to encoding after a temporary break. There was no suggestion that any of the claimants had been over-treated. With the exception of Mrs Alexander, none of the GP notes or other medical records, nor his own interviews with the patients, suggested that any of them had any psychiatric problems or were other than healthy, normal individuals. In Mrs Alexander’s case there was a GP’s referral letter dated 30 January 1995 in which he described her as being obsessive about her health. However, having regard to her satisfactory work record and her identification with the other appropriate responses which applied to the claimants as a whole, Dr Mowatt thought there was no justification for placing her in a category on her own by reason of her health consciousness.

He acknowledged that there was almost invariably a psychological element in any injury case where the patient felt his reported symptoms were not believed, where a diagnosis was protracted or uncertain and, more especially, where it was the subject of litigation. But it either inhibited recovery or unconsciously aggravated the condition. He was satisfied it was not responsible for generating the persistent symptoms of an injury itself, as in the case of these claimants.

In conclusion, Dr Mowatt’s opinion was that each of these claimants had sustained an injury which had resulted in tissue damage as a result of their encoding work. Having rejected the suggestion that their condition was psychosomatic, he asked what other mechanisms common to all could have caused that pain but an injury. He thought this conclusion was a matter of common sense. As for causation, he had no doubt that the injury had been brought about by the encoding process."

25. The reference to Dr Reilly requires some explanation. He is a consultant rheumatologist to whom the bank referred a number of those suffering from ULD in the course of 1992, including the claimants. He furnished reports upon them which were before the court, although Dr Reilly was not called to give evidence. I shall have to refer to these reports in a little more detail later.

"... considerative, careful and conscientious as a witness. He was ready and fair in making concessions where he thought it right. He was realistic and frank, in my opinion, about the limitation of what he could specifically prove, but plainly he was honest in his conviction when he said that after all his examinations and the consideration he had given the cases, it was common sense which for him clinched the argument in the claimants’ favour."

27. Dr Robertson was appointed consultant in Rheumatology and rehabilitation at the Salisbury and Southampton Health Districts in 1974. In 1994 he was appointed clinical director of the Preventive Rheumatology Unit, Salisbury Healthcare National Health Trust. He had a special interest in ergonomics and was a member of the Ergonomic Society. He sees 40-50 patients out of 800 new patients a year, who are suffering from WRULDs. That has been the picture for the last 10-15 years. He subscribed to the same clinical testing procedures as Dr Mowatt. His view was that the results of such testing produced physical signs of WRULDs which in the case of a patient’s reaction to pressured tender spots produced objective results as valid as a neurological reflex or deep tendon jerk indicative of damage. His opinion was that the problem was due to nerve damage; Dr Mowatt had been uncertain whether it was nerve or muscular damage or both. Like Dr Mowatt he considered that the keying-in process conducted over excessive periods of time without any significant breaks from the work station in an uncomfortable and ergonomically unsound position had caused the damage. Although there might be debate over the precise mechanism of injury, he was satisfied that there had been a patho-physiological change in the tissues of the arm, brought about by persistent dysfunction. Like Dr Mowatt, and for similar reasons, he rejected as highly improbable that any of the claimants’ conditions was psychogenic.

29. Mr Varian was consultant hand surgeon at the Black Rock Clinic, Dublin. In 1994 he was President of the British Society for Surgery of the Hand. He had published articles in reputable publications. He accepted that the claimants were suffering from fibro-myalgia and that their complaints were genuine and not exaggerated. He criticised Dr Mowatt’s opinion on the ground that a patho-physiological explanation could not be given and that the diagnosis should not be made in the absence of physical signs. He was critical of the tests adopted by the claimants’ doctors in relation to tender spots. These reactions could be obtained from healthy people and were subjective and unreliable. He did not consider that the degree of abduction of the upper arm while encoding was sufficient to be harmful. He said that if he could find no reasonable physical signs or pathology in the course of examination or in a patient’s medical records he diagnoses their problem as psychosomatic. He was clearly much influenced by the Australian literature.

"They [the claimants] could well in the course of encoding have developed transient pain due to fatigue. No one would suggest that such pain would amount to an injury. If, however, at some point thereafter they came, albeit wrongly, to perceive that pain to be symptomatic of an injury caused by encoding, they then would become vulnerable to a range of psychogenic pressures capable in the mind of transforming that transient pain into something long-standing and disabling."

In his evidence in chief Mr Varian had said those vulnerable to the development of psychosomatic disorders were those with fragile personalities who were more anxious than the norm, and therefore more open to suggestion concerning conditions affecting their health. He thought those circumstances applied in part to the ladies he examined. In cross-examination he accepted that in no instance were there any obvious psychological problems with any of the claimants any more than there would be with any other apparently normal woman. He then said that the psychological effect can work even on normal people."

Mr Varian accepted that in some instances, but not in these, fatigue engendered by keyboard work could progress in a causative sense to a physical injury such as tenosynovitis. But that is a specific physiological condition which can be clinically, and accurately diagnosed. Where the resulting fibro-myalgia however is diffuse, there are no signs other than complaints of pain, or pathology indicative of injury. In the absence of such signs physical injury was not proved. The explanation of prolonged pain extending beyond mere fatigue was probably purely psychosomatic.

"However, the strength of the claimants’ case lay in the fact that the claimants had from early on conceded, and rightly conceded, that the claimants’ pain was genuine and long-standing. It seems to have been accepted throughout that there were only two alternative explanations for their pain; it was either organic in origin or psychogenic. (For the purposes of the present argument, I leave out of account a third possibility, that it might have been essentially organic with a psychogenic overlay). If therefore there was no or no reliable evidence that it was psychogenic, then the case that it was probably organic must be strong.

I set out this position at some length because Mr Stevenson has rightly reminded me in his closing submissions that the burden of proving the organic origins of the pain did rest with the claimants. It never shifted to the defendants to prove that they were psychogenic. I accept that this must be the strict legal position, but in practice, where the parties each argue for one of only two possible explanations, who can prove what to be the more probable must necessarily be an important factor in evolving the final solution.

So I begin my evaluation of the medical issue by asking what are the merits for the contention that the claimants’ pain was or might be psychosomatic? Mr Varian sought to support this contention in two ways: he spoke of his own psychiatric experience gained in his practice as a hand surgeon, and said that though the claimants presented as outwardly normal people they probably picked up their psychosomatic disorders primarily from what they saw and heard in the encoding room. He found back-up support for his views from the medical literature commenting on the Australian epidemic. Second, he was saying that as, an orthopaedic surgeon, he could see so many holes in the diagnosis of the rheumatologists called for the claimants that the only feasible residual explanation for the pain was that it was psychosomatic.

It might seem strange to some that in a case where an important part of the debate was whether these claimants were exhibiting purely psychosomatic symptoms that neither party called a witness with psychiatric qualifications. Whilst Mr Varian might be satisfied that for all practical purposes connected with his own practice he is so qualified, it is my view that he did not in law have the right credentials any more than either Dr Mowatt or Dr Robinson had to give expert evidence in that field. Likewise, I am of the view that he did not have the qualifications to express an expert’s view in a legal forum about the psychological conclusions reached on the Australian epidemic and referred to in the related literature, or to apply those conclusions to the individual claimants.

It might be said that this is too purist a view, but, on the more practical evidential level, I find that Mr Varian’s evidence, and a fortiori Mr Pearce’s evidence too, failed to raise a prima facie case which satisfied me that the five claimants, as a group or individually, might be psychologically vulnerable to the extent that outside factors in their environment might induce in them psychosomatic disorders.

Mr Varian listed the sort of personality characteristics which might predispose a person to being so affected, but I saw these claimants in the witness box and it did not occur to me, any more than it occurred to Mr Varian himself, that those characteristics applied to the claimants. Indeed the claimants’ own management appraisal of these people described them as enthusiastic, committed, hard-working, co-operative people, who enjoyed their work and were keen to work even after the onset of their aches and pains. Superficial though this assessment might be, there was no substantive evidence suggesting a vulnerability.

Having made the findings in relation to the position in which the encoders worked and the pressure under which they did so without adequate breaks and also his finding that the condition was physical, the judge accepted the evidence of Dr Mowatt, Dr Robertson and Mr Coleman that it was caused by the factors of repetitive work under intensive pressure with insufficient work breaks and sustained bad posture. With regard to the question of posture he conceded that this would not have been a problem by itself. He said it ‘was marginal only and one which could have been accommodated without stress and fatigue had the encoders had a better opportunity of stepping away from the encoder desk with a regularity to relax with greater frequency’.

(b) In May 1989 the claimants had settled a claim by Mrs Burnard who had been employed as a secretary at a local branch and contracted tenosynovitis from excessive work on an electronic typewriter. They had paid her £45,000. Following that case there was extensive concern and consideration at the bank, particularly by Mr Hargreaves who was responsible for the matter. He was fully aware of the risk.

36. The first two of his submissions can be considered together. Mr Stevenson acknowledges that in the passage which I have cited in paragraph 32 the judge directed himself that the burden of proof remained on the claimant throughout. But he submits that by presenting the case as a choice between physical and psychogenic origin and then considering first whether it was likely to be psychogenic, the judge fell into error. He should, submits Mr Stevenson, first have considered the evidence of Dr Mowatt and Dr Robertson in the light of such concessions as they made in cross-examination. Only if he was satisfied on balance of probability that their evidence was acceptable should he find in favour of the claimants. He submitted that the situation was that envisaged by Lord Brandon of Oakwood in the ‘Popi M’ [1985] 1 WLR 948. In that case the claimant’s vessel sank in deep water such that no inspection of the wreck was possible. The claimants sought to claim under a marine policy issued by hull underwriters. They had to prove the loss was from ‘perils of the sea’. Prior to trial various explanations were put forward to support the claim. But eventually only one was contended for, namely that the ‘ Popi M’ had come into collision with an unidentified submerged submarine travelling in the same direction. Bingham J. regarded this explanation as inherently improbable, but nevertheless accepted that on balance of probability it must be accepted as the explanation of the loss. The House of Lords reversed the decision.

"My Lords, the late Sir Arthur Conan Doyle in his book The Sign of Four , describes his hero, Mr Sherlock Holmes, as saying to the latter’s friend, Dr Watson: “How often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?” It is, no doubt, on the basis of this well-known but unjudicial dictum that Bingham J. decided to accept the shipowners’ submarine theory, even though he regarded it, for seven cogent reasons, as extremely improbable.

The first reason is one which I have already sought to emphasise as being of great importance, namely, that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.

The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated. That state of affairs does not exist in the present case: to take but one example, the ship sank in such deep water that a diver’s examination of the nature of the aperture, which might well have thrown light on its cause, could not be carried out.

The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden."

38. In my judgment that case has no bearing on the present appeal. There was a clear choice between two alternative explanations. It is not suggested that there was any other explanation, such as malingering. The claimants had to prove that the physical explanation was more probable than the psychogenic one. The judge clearly had to weigh the strength of the psychogenic case before he reached a conclusion. It cannot matter in the least which he considers first. If he considers that the psychogenic case is wholly unconvincing it is simple logic or common sense to conclude that the physical case is more probable. This was not a case like the ‘Popi M’ where so little was known that the judge, if he thought the claimant’s explanation was so improbable ought to say that the burden of proof was discharged. On the evidence he had to chose between one explanation or the other.

39. In my judgment the judge was fully entitled to prefer the evidence of Dr Mowatt and Dr Robertson to that of Mr Varian. I shall consider the criticisms made of Dr Mowatt in due course. Moreover, the judge was entitled to use his common sense in reaching this conclusion. None of the features which were advanced as suggesting that a patient may be vulnerable to a psychogenic illness were present in any of these claimants, as was recognised by Mr Varian. For centuries medicine, as with other sciences, has progressed from a basis of observation of certain phenomenon of disease or injury and the conditions which are observed to give rise to it. The physical conditions are observed to give rise to a physical illness or injury. Simply because the precise pathological/physiological explanation could not be explained by the existing techniques, does not mean that these conditions were all in the mind. However, sophisticated modern diagnostic techniques have become, it must be a brave man who can assert that everything is known and charted in the human body. This is what Dr Helliwell was saying in the article quoted by the judge.

40. Here a number of honest and reliable witnesses, including the claimants, described broadly similar symptoms which were temporarily related to the work which they all did. This is what struck Dr Mowatt and Dr Robertson. It seems to me to be a glimpse of the obvious or at least common sense that there is a similar physical cause, especially when it has been recognised for many years that the conditions found by the judge can give rise to such complaints (see the HSE documents). This is a case where to some extent all four elements which go to make up liability are interdependent. Thus if no criticism could be made of the defendant’s regime, it would make it less likely that complaints which are dependant on poor conditions are physical rather than non-physical. But once those criticisms are established and it is well-known that such conditions can give rise to these and similar complaints, it is more likely that the fibro-myalgia is physically based.

41. Mr Stevenson submitted that the judge should have approached the evidence in the way which I suggested in the case of Loveday v Renton [1990] 1 MLR 117. The question in that case was whether the claimants had established on balance of probability that pertussis vaccine caused brain damage in very young infants who were inoculated with it. The problem was that incidents of brain damage occurred spontaneously in young infants for a variety of reasons. It had to be shown that it was the vaccine that was the probable cause. It is a far cry from the present case. At p125 I said:

"In reaching my decision a number of processes have to be undertaken. The mere expression of opinion or belief by a witness, however eminent, that the vaccine can or cannot cause brain damage, does not suffice. The court has to evaluate the witness and the soundness of his opinion. Most importantly this involves an examination of the reasons given for his opinions and the extent to which they are supported by the evidence. The judge also has to decide what weight to attach to a witness’s opinion by examining the internal consistency and logic of his evidence; the care with which he has considered the subject and presented his evidence; his precision and accuracy of thought as demonstrated by his answers; how he responds to searching and informed cross-examination and in particular the extent to which a witness faces up to and accepts the logic of a proposition put in cross-examination or is prepared to concede points that are seen to be correct; the extent to which a witness has conceived an opinion and is reluctant to re-examine it in the light of later evidence, or demonstrates a flexibility of mind which may involve changing or modifying opinions previously held; whether or not a witness is biased or lacks independence."

42. Mr Stevenson criticised the judge’s conclusion on the basis that he had effectively rejected the significance of posture as being causative of the claimants’ condition. In my judgment this submission revealed some misunderstanding of what the judge found. Unfortunately the word ‘posture’ was used throughout the case to mean two things. First it related to the way the encoder sat on her chair. Although there was criticism of this, in particular relating to the lack of instruction, the judge did not consider that it was causative of the condition. Secondly the word was used in a more restricted sense in relation to the posture of the right arm. It was Dr Mowatt’s view that this was what caused the fatigue and pain. At transcript 9, page 10, he said:

A. I think it’s the only sensible answer. By and large doctors like to come up with one diagnosis to fit a range of symptoms. On the whole people don’t end up with three or four different conditions in a single limb so we’d look for something that would unify all these things, and the concept that we’ve talked about, about muscle spasm and nerve tension, will explain all these features. If we then try and match that with the job description that she’s given me, of leaning forward rather unsupported, right arm in particular, for long periods of time, that seems to offer an explanation."

43. The judge discussed the evidence about posture of the arm at transcript p53/54. The principal passage of which I have cited. Mr Stevenson submitted that the judge’s conclusion that posture of the arm was only a marginal problem, undermines the claimants’ case. But the judge qualified this comment and the qualification is crucial. He said that the problem could have been accommodated without stress and fatigue had the encoders had a better opportunity of stepping away from the encoder desk. It was clear that it was marginal only in this sense. In other words if there had been sufficient breaks, the posture of the arm would have been of no consequence. This was entirely in accord with the evidence of Dr Mowatt, Dr Robertson and Mr Coleman which in the sentence before the judge expressly accepted on this aspect of the case.

(b) That there was no literature cited in support of the claimants’ case other than the Helliwell paper. The judge took this into account. Mr Stevenson submitted that the Helliwell paper did not support a physical cause, it was merely designed to show that RSI/WRULD existed. I do not agree with Mr Stevenson. It is quite clear to my mind that this is the whole thrust of the paper.

(d) That there is an absence of reliable epidemiological studies. This obviously cuts both ways, and does not advance either case. In my judgment the fallacy of the defendant’s position is to assume that because the precise physical, pathological and anatomical explanation cannot as yet be explained, the condition must be all in the mind. I can see no basis for such a presumption, if all the other evidence is taken into account.

(e) Mr Stevenson submitted that the fact that the claimants were all part-time workers and no full-time worker contracted the condition was inexplicable on the claimants’ case. We were not referred to any opinion of Mr Varian to this effect, nor was it put to Dr Mowett. It appears to have been explained very briefly by Dr Robertson. He said that since he had not examined those who did not succumb, he could not tell. It was probably something to do with varying physiology (transcript 12, page 106). And in re-examination he referred to the ‘healthy worker’ phenomenon in epidemiology. Mr Foy QC, on behalf of the claimants, in fact challenges the basis of the submission. He said that one or more of those affected were full-time workers. In my judgment there is no sufficient evidential basis for Mr Stevenson’s submission.

(f) Mr Stevenson submitted that the claimants’ doctors’ theories do not explain why some of the claimants had symptoms in their left upper limbs. Again, this matter does not appear to have been explored in the evidence of the doctors. The problems were transient; the judge does not refer to the point. I do not think it is a matter upon which Mr Stevenson can now place reliance.

1. Mrs Osler - Dr Reilly found ‘multiple tender points in a regional distribution affecting the second rib, suboccipital muscles, trapezius and supraspinatus muscles and both medial and lateral epicondyles at the right elbow’. His diagnosis was that she ‘presents with symptoms suggestive of regional pain (fibrosis) syndrome, attributed to the work of encoding’. He described her symptoms as ‘a well recognised development in such pain syndromes’.

2. Mrs Alexander - Under overall assessment Dr Reilly wrote, “The history and examination findings are those of a regional pain syndrome, or regional fibrositis syndrome. Although this is often attributed to repetitive movements of the hand and wrist, it is more likely to be due to mechanical strain on the ligaments which stabilise the cervical spine. These ligaments are pain sensitive and cause referral of deep pain into the upper limb, and can also be associated with muscle tension and tender points at predictable locations”.

3. Mrs Rolfe - Dr Reilly found a regional distribution of tender spots on the right side. There was no involvement of the left upper limb. He diagnosed right upper limb regional pain/fibrositis syndrome, made worse by encoding. He noted that her symptoms started when the rate of encoding was increased. He suggested attention should be paid to her complaints about the design of the work station.

4. Mrs Mulholland - He found no tender spots. He said her history was suggestive of right upper limb regional pain (fibrositis) syndrome. He added, “Prolonged periods sitting at an encoding machine, with the neck flexed, and with repetitive movements of the right hand can certainly cause mechanical stresses in the neck and deep pain referral to the upper limb”.

46. These examinations and reports were carried out in May and June 1992. There is no suggestion that the condition is psychogenic. On the contrary it is quite plain that Dr Reilly attributes the condition to physical causes involved in their work. It was not until Dr Reilly saw Mrs Lancaster in May 1993 that he said that “This is not a medical problem, but rather a psychosocioeconomic problem in people who are unhappy in work”. On the other hand he refers to the use of “hardware which does not take into consideration the various anthropomorphic measurement of the various employees”. He also recommended that she either changed her job or her work station was modified. These observations seem to me quite inconsistent with a non-physical cause.

47. In my judgment it is perfectly legitimate to refer to these reports and opinions to counter Mr Stevenson’s suggestion that there is no medical literature (apart from Helliwell, which I have already dealt with) to support the claimants’ case. Here is a distinguished rheumatologist who, using the same diagnostic techniques as Dr Mowatt and Dr Robertson, plainly (except perhaps in the case of Mrs Lancaster) considers it is a physical condition.

50. I should at this point refer to one matter where I do not agree with the judge. He appears to have thought that it was essential that the claimants establish that the injury was physical and not psychogenic because he said, “I am satisfied that psychosomatic pain would be out with the definition [of personal injury] because it is well-established that psychiatric injury simpliciter does not attract compensation at law unless induced by shock - see Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310”. With all respect to the judge this is not correct. Alcock’s case is concerned with secondary victims, where the law has restricted liability to those who were closely related to the primary victim and who witness through sight and sound an horrific event which causes shock. The rule has nothing to do with primary victims.

51. If psychiatric injury is the reasonably foreseeable consequence of breach of duty owed by the defendant to the claimant, damages in respect of it are recoverable - Page v Smith [1996] 1 AC 155 per Lord Browne-Wilkinson at p180G-181D and p182G-183C, and per Lord Lloyd of Berwick at p188E-F. Moreover there are reported cases where the courts have recognised that damages for psychiatric injury in the form of nervous breakdown can be recovered (see Johnstone v Bloomsbury Health Authority [1992] QB 333 - a junior doctor having a breakdown after being required to work excessive hours without rest; and Walker v Northumberland CC [1995] 1 CR 702 - an overworked social worker).

52. If the injury is psychogenic, the difficulty for the claimant is not that damages for that type of injury are irrecoverable, but that it may be impossible to establish any causal link between a breach of duty and the injury. If the injury is merely related to the claimants’ work and not caused by it, then it matters not whether there are adequate work breaks or the physical conditions are satisfactory, since ex hypothesi these matters have no bearing on the condition which is caused by extraneous factors involving no breach of duty.

This is the second main heading of Mr Stevenson’s attack on the judge’s judgment. To my mind there is only one aspect of his criticisms that merits consideration. The defendant’s case was that whatever pressure there was on the encoders, it was substantially mitigated by the fact that there was something like 20 minutes in each hour when encoders were doing something other than encoding. If that were so, the evidence of the ergonomists was that breaks of that sort from encoding would provide the encoder with ample opportunity to stretch, relax or do some other manual task which would enable her to shrug off fatigue from encoding.

"In proof of their contention, the defendants have relied on information collated with the aid of the new monitoring chip inserted into the encoder in late 1991, early 1992, to which I have earlier referred. The defendants adduced in evidence a selection of the schedules produced monthly in 1992 by Central Office, in which the information is set out. They show both the customer and operator error time, and also dead time. The limitation of this evidence is that the dead time shown varies substantially from month to month and, depending on whether one is looking at bulk or FAS figures. There was no reliable evidence to explain these discrepancies or to explain precisely what counted as dead time. How much time, for instance, had to elapse between two separate key strikes before the monitor would record it as dead time? If that time was so short that the encoder might not have appreciated that it happened, it is questionable whether that sort of break is meaningful.

The plaintiffs’ best estimate of a break in encoding time was eight minutes per hour. That was Mrs Mulholland’s evidence. Whilst she never sought to pretend that that was a figure based on a carefully worked out job analysis, I am satisfied it was her genuine assessment and one which served to signify her impression of the pressures she was working under when encoding. I think I have to accept when the defendants’ statistical information shows, notwithstanding the limitations that I refer to above (my emphasis). However, I would reject any suggestion that during the non-encoding time the encoder was able to stretch and move around and relax to relieve her tension. The evidence that by May 1991 the average rate for keying in bulk work was 2,123 fields per hour belies such a picture. On the basis of five figures per field, that amounts to 10,600 depressions in the hour. If, as I find more probable, there are on average six figures per field, the corresponding figure would be 12,700 depressions an hour. If that performance was returned in only 40 minutes of that hour it is equivalent to a strike rate of 15,600 or 18,700 per hour respectively. That rate is, by any standards, high for an average, especially when one takes into account it is achieved by one hand only. Even if, as the statistics show, from time to time the encoding time was increased to 45 minutes an hour, that rate still remains high."

55. The first point that Mr Stevenson makes is that in the sentence which I have underlined, the judge accepted the defendant’s case that there was about 20 minutes in each hour when the encoder was involved on some task other than encoding and therefore there were ample informal breaks. This he submits undermines the judge’s main conclusion that it was absence of these breaks that was the cause of the trouble. I cannot accept this submission. I acknowledge that at first sight the sentence in question might seem to lead to this conclusion. I think it is the one sentence in the judgment that falls short of the conspicuous clarity with which the judge has elsewhere expressed himself. But it is clear from what follows that the judge could not have meant that. It seems to me that he meant no more than that he accepted that someone had collated the statistical data which was before him. In view of the astonishing divergence of the figures, for example the London DSC frequently had no dead time at all, whereas Midlands usually had dead time of about 1000 hours, it would be impossible to place any reliable conclusion on these figures in the absence of satisfactory explanation from a witness who was able to do so.

56. A further document was placed before the court, again without any witness to support or explain it. It was entitled ‘District Service Centres work pause frequency’. It was dated November 1994 and purports to have been based from an analysis of statistics gathered during the 3rd and 4th quarters of 1991 (which were not available). Paragraph 3.2 purports to show that ‘33.4% of time was taken in activity other than encoding, such as time between batches, customer and operator error and tea breaks’. However, the figures appear to be based on 1500 fields per hour for bulk work and 1350 for FAS work. These were very substantially lower than the speeds attained by qualified encoders at Frimley. In my opinion the judge was fully justified in not accepting the defendant’s case on this important matter, constructed as it was on such a tenuous base.

57. Once the judge had found that the claimant’s injury was physical and that the defendant failed so to organise the work as to afford adequate breaks, his conclusions on negligence and causation follow. There was abundant evidence that the defendant was well aware of the risk. The problem was that that awareness for some reason had not reached those in charge at Frimley.

58. For these reasons I would dismiss this appeal. But I would like to pay tribute to the trial judge. Save in the limited respects in which I have criticised it, his judgment is admirable for its clarity and succinctness. He had to deal with a mass of evidence both oral and documentary on matters which were far from straightforward. I do not consider that any of the criticisms of his judgment upon which Mr Stevenson relied were made out. I should add that appeals on questions of damage were abandoned in the course of argument.

2. My Lord has described, in paragraphs 53-56 of his judgment, the important role sought to be attached, in arguing the appeal, to the documents produced by the defendants recording figures from the various centres for "productivity", and a narrative report of November 1994 called "DSC Work Pause Frequency". On the basis of those documents the appellants argued, as it was put in the Notices of Appeal, that the Defendant's statistical data showed that for approximately one-third of their time the encoders were doing things other than keying, which is an accepted form of interruption of keyboard work as recognised by the Health and Safety Executive in their guidance.

3. The documents referred to were, however, simply that, documents: without any supporting or explanatory exposition. As such, they were not evidence at all, but hearsay, since they were put forward to assert the truth of statements of fact that were not made by a testifying witness. And that is not merely an unattractively technical observation, because the absence of any actual evidence about the matters that the documents addressed or about how the documents had been put together meant that the court could not be informed as to the meaning of the figures, and as to the terminology used: much of which was very far from self-evident on the face of the reports. That latter consideration was particularly important because figures for "break" time had no relevance to the case unless the breaks that they reported were of a nature that in the view of the ergonomist experts protected the worker against RSI. That issue was not addressed in the documents, nor in the pleading in which the claim of twenty minutes per hour spent on tasks other than encoding was introduced.

4. When this gap in the case in terms of evidence was pointed out by the court, the appellants sought to meet the difficulty by referring to a brief passage in the evidence of Mr Ian Bishop who had been the processing manager at the Frimley Centre. He was asked by Mr Stevenson for his estimate of the length of time spent per hour in actual encoding, and he replied in the same spirit, giving what he described as his personal opinion. He conspicuously was not asked this question in the context of the statistical documents; he did not refer to them; and there is no reason to think, they being documents produced centrally and not under his direction, that he would have been able to assist the court about them even if he had been asked to do so. It is no criticism at all of Mr Bishop to say that, in the context in which it was sought to be deployed, such evidence of impression was entirely without value. It is not surprising that the judge ignored it.

5. I would, however, go further. Since no evidence was given about the defendants' surveys, the judge should not have referred to them at all. That he did so, albeit with the devastating criticism of the logical force and relevance of the figures even taken at face value that my Lord has quoted, was merely a demonstration of the fairness, though in this instance in my view indulgence, with which he treated the appellants. I do not of course say that matter of the type and origins that is contained in the appellants' surveys cannot be given in evidence at all. Quite the contrary: it is material of a kind that frequently features in an expert's report or survey, and properly explained and vouched for can be not merely admissible but weighty. But that is where such matter has to be found, and not to stand as proof in itself.

6. I venture to expand on this point because this appeal demonstrates the dangers of entering upon a case such as this without proper scrutiny of the status of the evidence or alleged evidence. In the procedure under which this case was conducted, it was possible for the rules of evidence and of proof to be lost sight of. One of the many benefits of the new Civil Procedure Rules is the strict pre-trial control of evidence, and in particular the provisions in CPR Part 33.6 in relation to matter that is not contained in a witness statement, affidavit or experts report. These provisions will valuably protect trial judges from the difficulties that the judge faced in this case.

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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Alexander & Ors v Midland Bank Plc [1999] EWCA Civ 1918 (22 July 1999) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1999/1918.html Cite as: [1999] EWCA Civ 1918, [1999] IRLR 723, [2000] ICR 464

England and Wales Court of Appeal (Civil Division) Decisions