Work-Related Upper Limb Disorders: Establishing Liability

Duncan McNair

These claims fall into one of the more unusual categories of P.I. work. Because such an injury (catchily known as a WRULD) is normally a result of a series of movements repeated over a very long time, a variety of complications exist in proving a claim. The purpose of this article is to take the reader through the issues which frequently arise in such cases.

Establishing liability, as always, depends on establishing that the defendant owed the claimant a duty, that the duty was breached, and that the breach caused damage which was not too remote. I will deal with each of these points in turn.

Duty

The relevant duties are normally owed by employee to employer. The most helpful statutory provisions are in the Health and Safety (Display Screen Equipment) Regulations 1992. This include duties to:

·        Carry out a risk assessment on each workstation, and review as appropriate (r. 2(1) and 2(2));

·        Reduce such risks to the lowest level reasonably practicable (r. 2(3));

·        Ensure each workstation fulfils certain specific requirements set out in the Regulations (r.3);

·        Plan employee’s workloads to ensure breaks or changes of activity in relation to workstations (r. 4);

·        Provide vision tests on request by an employee (r. 5);

·        Provide adequate health and safety training in the use of the workstation (r. 6);

·        Provide adequate health and safety information relating to the workstation (r. 7).

These regulations are very helpful, but only apply to claims in respect of static graphical display equipment not on board a means of transport (r. 1). (Also excluded are drivers’ control equipment.) For claims in other circumstances, there are other useful provisions.

The Manual Handling Operations Regulations 1992 are often and perhaps unexpectedly applicable. The definition of a manual handling operation is surprisingly wide, and even using the controls of a machine can be held to be “transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof) by hand or by bodily force,” the definition from r. 2(1).

If these provisions are activated, the duties require both risk assessment and the reduction of such risks to the lowest level reasonably practicable. The risk assessment must involve consideration of, inter alia, whether the task involves insufficient rest or recovery periods – a particularly useful provision for WRULD cases.

Other useful provisions come from the Provision and Use of Work Equipment Regulations 1992. If the claimant’s injuries arose from the machinery itself rather than the way it was used, the r. 4 requirement for suitability may assist. The r.9 requirement for training may also be relevant.

From the Workplace (Health, Safety and Welfare) Regulations 1992, the r. 11 provisions relating to workstations can assist. Finally, of course, the common-law duty will always apply: to provide a safe system of work.

Breach

The claimant must show that the defendant breached one of the applicable duties. Proving this will frequently require evidence from an expert in ergonomics, as well as the appropriate conclusions from a medical expert.

There are, broadly, three types of failure generally committed by defendants:

• Failure to provide or set up appropriately the right equipment and/or workstation to prevent injury;
• Failure to allow the claimant sufficient breaks;
• Failure to assess the relevant risks;
• Failure to warn or train the claimant appropriately.

The first generally requires ergonomical evidence. For the claimant to prove that her workstation was inadequate, or that the equipment was prone to causing WRULDs, she will normally have to adduce an expert analysis of the setup. However, the second can sometimes be proven with only medical evidence: if it is clear to the consultant that the same motion repeated too frequently would cause a WRULD, then such a report may not be needed. If a risk assessment is absent or inadequate, this will sometimes be apparent without the need for such an expert.

Damage: causation

It should be noted that the claimant must show that the specific breaches found caused her injury. It is no good establishing a failure to carry out a risk assessment if, had it been carried out, the claimant would still have suffered injury.

To prove causation, it can be helpful if the claimant’s symptoms arose on some change in working practices: for example, a marked increase in workload.[1] Although causation is ultimately a question of fact, it is normally helpful to have the conclusions of the medical and ergonomic experts on the question.

Damage: remoteness

To be recoverable, the damage has to satisfy the Wagon Mound test as to foreseeability. In general this is not difficult, given the modern state of medical science. It is generally accepted that repeated movements can cause some kind of injury. It does not, of course, matter if the exact type of injury was not reasonably foreseeable – a claimant with an obscure condition can recover if only some more common injury was foreseeable.[2] In cases where the defendant argues that the claimant’s injury is purely psychogenic, it must also show that a psychogenic injury was not reasonably foreseeable.

Damage: the injuries

Some WRULDs are easily diagnosed and categorised. Examples include carpal tunnel syndrome, trigger finger, rotator cuff tendonitis, de Quervain’s disease and tenosynovitis (a useful catch-all).[3] If a medical expert reports a specific diagnosis such as one of the above, few difficulties are likely to arise.

More problematic, however, are cases in which no specific diagnosis can be made. Sometimes referred to generically as repetitive strain injury (‘RSI’), such cases are more difficult. Defendants in the past have successfully argued that symptoms were wholly psychogenic (and that psychiatric injury was unforeseeable),[4] and that RSI was effectively meaningless with no diagnosable physical cause.[5] However, in recent years the courts have been more willing to find in favour of claimants with generic RSI: examples include Denton Hall v. Fifield [2006] EWCA Civ 169 and Alexander v. Midland Bank plc [2000] ICR 464, [1999] IRLR 723. A decision on this point will depend very much on the nature and quality of the medical evidence on each side.

Limitation

Frequently a claimant’s injury was sustained over a long time – often a period of years. Such cases require extra care. The claimant’s date of knowledge needs to be ascertained, with supporting evidence. Often the claimant’s symptoms are relatively minor for a considerable period, however, and only become significant at a later stage.

Conclusions

WRULD cases are often very serious. A claimant with only relatively minor injuries may well be prevented from working – sometimes completely, sometimes only in his former employment – which often leads to high lost earnings claims in cases with relatively low general damages. A reader who has never previously dealt with such a claim should now have a basic understanding of some of the issues which frequently arise, and will know the directions to take any further research.