Alexander v Midland Bank Plc
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STUART-SMITH,LORD JUSTICE BUXTON,MR JUSTICE RATTEE,Lord Justice Stuart-Smith,Lord Justice Buxton |
| Judgment Date | 22 July 1999 |
| Neutral Citation | [1999] EWCA Civ J0722-2 |
| Judgment citation (vLex) | [1999] EWCA Civ J0722-14 |
| Docket Number | 98/1014 15, 16, 17, 8,CCRTF 98/1014 15, 16, 17, 8 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 July 1999 |
[1999] EWCA Civ J0722-14
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MAYOR'S
AND CITY OF LONDON COUNTY COURT
(HIS HONOUR JUDGE BYRT QC)
Royal Courts of Justice
Strand, London W2A 2LL
Lord Justice Stuart-smith
Lord Justice Buxton
Mr Justice Rattee
CCRTF 98/1014 15, 16, 17, 8
MR WILLIAM STEVENSON QC and MISS ERICA POWER (instructed by Messrs Kennedys, Brentwood, Essex) appeared on behalf of the Appellant (Defendant).
MR JOHN FOY QC and MR ROGER HIORNS (instructed by Messrs Lawford & Co, Richmond, Surrey) appeared on behalf of the Respondents (Claimants).
Background
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.
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.
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.
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.
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.
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.
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.
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.
Issues at trial
There were four principal issues at trial, which the judge considered in the following order:
(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.
(c) Causation: This was largely determined by the judge's findings on the first two issues.
(d) The defendant's knowledge of the risk.
The judge's findings
The Regime
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.
The atmosphere in the encoding room
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.
Once the encoder was fully trained it was envisaged that their speeds would increase. A number of steps were taken with this in view: First, there were some simple administrative measures introduced to increase productivity:
(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...
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