Judgment - Pickford (A.P.) v. Imperial Industries Plc  continued

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      The majority in the Court of Appeal had no difficulty with this issue. Stuart-Smith L.J. said that once it was concluded, as in his view it had to be, that her condition was an organic one, this cast a flood of light upon and in support of her evidence that she was working--that is to say, typing--during the critical periods for prolonged stretches and for about 75 per cent. of her working day. This however was the evidence of a witness whom the trial judge, who had had the opportunity of observing her in the witness box, described as at time prone to exaggeration and some inconsistency. One of her complaints had been that the pressure of work had been such that during most days she had to type not only for long hours but also at high speed. Her normal typing speed was 60 words per minute, but she estimated that she was getting up to 80 words per minute on her word processor. The judge heard evidence from other witnesses to the effect that a typist could not exceed her natural optimum speed of about 60 words per minute on the word processor for any sustained period, but only exceptionally and briefly to type the odd letter or document. Stuart-Smith L.J. said that the judge was entitled to find that the respondent had exaggerated in this respect, but that in his view that did not affect the position as on any showing all the evidence showed that she was a fast typist and it was prolonged unbroken spells of typing that were the trouble. Speed however was not the only matter about which the judge held that the respondent was prone to exaggerate. This assessment of the reliability of her evidence applied also to the question whether she was typing for prolonged periods--a very loose expression, which in this case meant very little unless it was related to the opportunities which arose naturally during the course of that work for breaks and other rest periods.

      What the judge found on this issue was that at the relevant times in 1988 and 1989 the respondent did not as a general rule spend more than three and three quarter hours per day--50 per cent. of her working time--on typing. He accepted that from time to time during these periods, in order to type an urgent letter or document, she might have typed for up to five hours per day--75 per cent. of her working time, leaving aside her half an hour lunch period. But he also found that during these periods she had ample scope to intersperse her typing with the remaining two and a half hours of non-typing secretarial work. While there were peaks and troughs, and while the peaks may have seemed excessive in the respondent's perception, she had the necessary discretion, knowledge and experience to plan, organise, prioritise and negotiate the work and, if necessary, to seek help to enable herself to cope reasonably with it. As there was no evidence to show that she was not coping with her other non-secretarial work, the implication was that the periods of typing were not being undertaken for prolonged periods without interruption as she had claimed. The majority in the Court of Appeal were critical of these findings. But much of their discussion of this issue seems to have been influenced by the view which they had already formed that her condition was organic and that, as it was only in circumstances of excessive typing that this condition would develop, her account of what she was doing was supported by the nature of her condition as being accurate. They were also of the view that the difference between the respondent's account of her work and what the judge was prepared to accept about this was so great that he must have been saying that she was being dishonest about it--something which in his assessment of her evidence he had expressly negatived. There were some other details which they used to support their view that the judge ought to have accepted the respondent's account of the time which she had had to spend on her typing work. For example, Stuart-Smith L.J. said that she had said that her job was done by two people after she ceased her employment with ICI.

      The judge had however heard a good deal of evidence on this issue. Some of this evidence gave some limited support to the respondent's contention that she was from to time being overworked. But there was also much evidence, other than her own assessment, to show that she was not working without any interruption for prolonged periods on typing work. On the only occasion when she was asked to put a figure on this, the respondent said that the time which she spent on typing during the critical periods amounted to "possibly around 75 per cent." of her working time. Strictly speaking, after allowing for her lunch break, the judge's finding that this could be expressed as five hours of her working time was a slight underestimate. But the important point which emerged clearly from the evidence of the other witnesses was that throughout her working time, despite several complaints in her diary of overworking, the respondent was able to satisfy all the other demands which were made on her in the performance of her other duties as the secretary to three section managers. There were no complaints by those for whom she was working of poor service or of inefficiency. The nature of those other duties was such that she had to attend to them, as and when they arose, throughout her working day. They provided frequent natural breaks from typing as she answered the telephone, left her desk to speak to the managers elsewhere when they were not contactable by telephone, arranged meetings for them, made diary entries and so on. Her own job description, which she had prepared to show the work she was doing in 1986 to provide a secretarial service in her department, impressed the judge because of the range and variety of her work. As for the suggestion that her job was done by two people when she left her employment, the evidence showed that nothing much could be made of this. The respondent accepted that there was some readjustment of her work after she left ICI. One of the managers, Mr. Mason, took on his own secretary and there was an increase in the work which had to be done for the other managers.

      Taking the evidence as a whole, the judge was far better placed than the Court of Appeal was to assess to what extent, if at all, the respondent was exaggerating and which of the other witnesses who tended to contradict her were the more reliable. Here indeed were primary findings of fact on mundane matters, to adopt Lord Bridge's description in Wilsher v. Essex Area Health Authority [1988] A.C. 1074, with which the Court of Appeal were not entitled to interfere. As for the comment that the organic nature of the respondent's cramp cast a flood of light on her claim that she was typing for prolonged periods, this proposition may equally well be run round the other way. It may indeed be said that the judge's conclusions about the amount and nature of the respondent's typing work, based on his assessment of the reliability of the evidence given by the various witnesses, cast a great deal of light upon the question whether her condition had been proved to have been an organic one.

Foreseeability and Negligence

      The judge held that it was not reasonably foreseeable, in the state of knowledge about the condition in 1988 and 1989, that the work which the respondent was required to do as a secretary would be likely to cause her to contract PDA4. As he put it, while it was technically foreseeable that a typist might suffer from this condition, it was not reasonably foreseeable that this would happen to a secretary who was typing to the extent which he found established by the evidence. He also held that the respondent had not established the grounds on which she had claimed that the appellants were negligent.

      In her particulars of negligence the respondent had alleged that the appellants were negligent because they had failed to warn her of the risk of developing the condition from typing at a fast speed all day without respite apart from her lunch break. At the trial the allegation was that they had failed to take steps to ensure that she was given the same instruction, warnings and advice as were given to the typists in the accounts department. The judge did not think that the appellants were under a duty to prescribe for the respondent rest periods from her typing work, as she had ample non-typing secretarial work to intersperse with it. He said that her work lent itself naturally to rotation and interspersment. He pointed out that the respondent herself had rejected the notion that a regime might be imposed upon her which, as a secretary and not a typist, she would have regarded as unsuitable. This was, he said, a matter of common sense. He rejected the allegation that a warning should have been given to her, on the grounds that the condition was uncommon and, on the evidence, very rare in the case of typists, that it was not the practice in the industry to give such a warning and that to do this, in the case of such a vague condition which was not easily identifiable, might well be counterproductive.

      The majority in the Court of Appeal held that it was plainly reasonably foreseeable that typists might suffer from the condition if they typed for long periods without break, and that the appellants should have given the same advice, instructions and warning as they gave to the typists in the accounts department. It is clear from their reasoning that they were proceeding on the basis that the amount and nature of the respondent's typing work was not materially different from that done by the typists in that department. As in their case, as they understood it, she also was required to type for long periods without breaks or rest pauses. So she needed to be given the same advice and instructions as had been given to them so that she would take breaks and rest periods, and she should have been given a warning in order to ensure that she did what she was told. Without that warning she would not have had the requisite knowledge that it was necessary for her for her own health to take breaks from prolonged spells of typing work.

      There are two flaws in this approach which in my opinion wholly undermine the conclusion by the majority that in this case the appellants were negligent. The first is their assumption that the respondent's evidence that she was typing for prolonged periods with breaks and rest pauses was accurate and reliable. The second is their failure to appreciate, and to take into account, the fact that the nature and variety of her other work lent itself naturally to rotation and interspersment with her typing work. This was not something that had to be laid down in advance. The breaks and rest pauses from typing, on the judge's findings, occurred naturally throughout her working day because of the variety of the duties which she had to perform as a secretary.

      In effect, the majority rejected the judge's assessment that the respondent's evidence was affected from time to time by exaggeration and inconsistency and that it had to be tested carefully against the other evidence. They left out of account his detailed analysis of the evidence of the other witnesses whom he accepted as reliable. Had they accepted that analysis, they would have seen that her position was quite different from that of the typists in the accounts department. The typists who worked there had no other work to do other than typing. In their case steps had to be taken by way of forward planning to ensure that they took breaks and rest pauses. In her case this was not so. Even when she was spending up to 75 per cent. of her time on typing work she still had 25 per cent. of her time, in addition to her lunch break, to do her other work which was spread naturally over her working day. Unlike the typists, she had both the experience and responsibility to organise and plan her own work according to its requirements from day to day. She did not need to be told what to do.

      There was also a good deal of evidence to show that the appellants had taken steps to enquire into, and to provide against, the possibility that the operators of word processors might suffer from fatigue--in itself not harmful to health--and possible injury due to poor posture and other undesirable working practices. At a meeting held in Runcorn in May 1987 five possible health concerns had been identified by them. These were back-ache, eyestrain/headache, effective lighting, radiation/pregnancy and repetitive strain injury. In the case of repetitive strain injury it was noted that this complaint was most often associated with a combination of poor hand position and typing too fast. It was not suggested that the respondent had been adopting a poor hand position, and her complaint of typing too fast was rejected by the judge on the evidence. It was noted that the results of repetitive strain injury were pain, swelling and discomfort in the fingers and wrist. The respondent's complaint when she went to see the works doctor, Dr. Lamb, on 31 May 1989 was of pain in the back of her hands. He said that he was unable to find any physical sign of the pain, and that he had not seen or heard of similar symptoms.

      As for the giving of warnings, the respondent said in her particulars of negligence that she should have been told of the risk of contracting PDA4. The giving of warnings of the risk of disease or injury is a precaution which is familiar in the field of litigation for personal injury. But in the case of conditions such as PDA4, which are not easily identifiable and not well understood, great caution must be exercised as to the content of any such warning and as to whether to give a warning at all is appropriate. To impose a duty which may cause more harm than good would be undesirable. The law does not compel employers to take steps which may bring about the condition which they wish to prevent. Conditions which are associated with functional or psychogenic disorders present particular difficulty. So the judge was right to pay careful attention to the advice of the experts, and to the practice in the industry, as to precise terms of any warning that the appellants might responsibly give to their employees about the risk of contracting PDA4.

      Dr. Hay said that those who were prone to anxiety might perceive that they had the symptoms of the disease, so a balance had to be struck. On the other hand a balanced warning might simply do no more than accord with the common sense precautions which everyone would take. Mr. Stanley said that it would be disgraceful to give a warning which said that if you developed pain you may never work again. The warning which he would have regarded as acceptable was simply to go and see the works doctor if you develop unusual pain or discomfort. But that was not the kind of warning which the respondent was looking for--she went her GP two days after she had noted in her diary for the first time that she had pain in her hands, and a few days later she was seen by the works doctor. The judge accepted the evidence of Mr. Pearce, the appellant's ergonomist, that it was not the practice in industry in 1988 and 1989 to give a warning of any kind about the risk of contracting PDA4, and that of Dr. Teasdale, the appellants' chief medical officer, who said that no literature had ever come to his attention advocating such a warning. His evidence was that the appellants were well aware that poor siting of equipment could lead to eye strain and other disorders, and that steps had been taken to ensure suitable work station design and siting and that appropriate information was given to visual display operatives. But he would have regarded a warning that muscle fatigue might develop into PDA4, a rare disease, to be counterproductive and, in the absence of advice by a suitable expert body such as the Health and Safety Executive to the contrary, he did not consider it necessary or proper to give such warnings. The judge also accepted Dr. Lamb's evidence that a formal system of instruction, warning and advice was adopted and implemented for typing staff in the accounts department as the working day was confined to accounts and difficulties in changing postures could arise in their case. But such a system was not considered necessary for secretaries as they carried out many non-typing duties in the course of their working day.

      Stuart-Smith L.J. said that he was not moved by the suggestion that the giving of warnings might give rise to difficulty. In his opinion all employers had to do was to give the instructions, advice and warning which the appellants gave to those they considered to be at risk of doing excessive typing. It seems that the kind of warning which he had in mind was that described by Dr. Lamb, which is not what the respondent was asking for. But the judge had ample evidence before him to justify the decision which he took that in the respondent's case this was unnecessary. I think that he was right to regard her case as entirely different from that of the typists in the accounts department. She was not required, as they were, to work continuously on a word processor, and the appellants had no reason to anticipate that she was exposed to the same risk of contracting PDA4 which, in any event, was minimal in their case.

      The decisive point which emerges from this part of the case is that the respondent's claim that her typing work was comparable with that done by the typists in the accounts department was shown, by a careful analysis of the evidence, to be exaggerated and unsupportable. The findings by the judge that the condition was not reasonably foreseeable in her case and that the appellants were not negligent in the respects alleged by her were, in my opinion, soundly based on the evidence. I do not think that the Court of Appeal should have interfered with his decision that the appellants were not liable to the respondent in damages. I would allow this appeal.

 
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