Pickford v Imperial Chemical Industries Plc
| Jurisdiction | England & Wales |
| Judge | LORD GOFF OF CHIEVELEY,LORD JAUNCEY OF TULLICHETTLE,LORD SLYNN OF HADLEY,LORD STEYN,LORD HOPE OF CRAIGHEAD |
| Judgment Date | 25 June 1998 |
| Judgment citation (vLex) | [1998] UKHL J0625-2 |
| Date | 25 June 1998 |
| Court | House of Lords |
[1998] UKHL J0625-2
Lord Goff of Chieveley
Lord Jauncey of Tullichettle
Lord Slynn of Hadley
Lord Steyn
Lord Hope of Craighead
HOUSE OF LORDS
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hope of Craighead. For the reasons he has given, I would also allow this appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hope of Craighead. For the reasons he has given, I would also allow this appeal.
My Lords,
I have had the advantage of reading in draft the speeches prepared by my noble and learned friends Lord Steyn and Lord Hope of Craighead. They have set out the facts and the competing views so fully that it is not necessary to repeat them. I therefore summarise my conclusions.
I accept that at the relevant time it was foreseeable to the employers that if employees typed for excessively long hours this might produce not only backache and eye strain but also a risk of cramp of the hand or repetitive strain injury. The fact that the present employers gave a warning and took special precautions in relation to their accounts department supports this.
It seems to me, however, that on the evidence the trial judge was entitled to find that the plaintiff was not in the same position as staff in the accounts department. She was employed not just for typing but also for general secretarial work. True it is that she did sometimes type for 75 per cent. of the working hours particularly in April and May 1989 but she often typed for not more than 50 per cent. of the day, her other activities intervening. Some of those other activities she could, as I see it, arrange so as to break up her periods of typing and some of them would of themselves interrupt her typing. The plaintiff was clearly efficient and experienced and, albeit highly conscientious, was capable of avoiding and able to avoid excessively long periods of typing. I am not satisfied therefore that the employers were negligent in failing to give her warnings similar to those given to the accounts department which it is claimed should have been given to her or to so control her activities that she did not type for long consecutive periods.
I differ with considerable hesitation from the majority in the Court of Appeal because of their great experience in cases of this kind and because of the complex interplay of medical evidence in the case. I am however satisfied for the reasons given by Swinton Thomas L.J. and by my noble and learned friend Lord Hope of Craighead that the trial judge was entitled to find that the plaintiff had not discharged the onus of proving, as it was necessary to prove, that the pain she suffered was organic in origin.
It is obvious that the trial judge found this a difficult case, as it was, and I have considerable sympathy with the plaintiff as a conscientious and loyal employee. But at the end of the day I do not consider that it was open to the Court of Appeal to reject the judge's findings.
I would therefore allow the appeal.
My Lords,
A Deputy High Court Judge decided that a secretary's claim against her employers for what is commonly called repetitive stress injuries failed on the facts as he found them. It was not an easy case to try. And there is a presumption that a trial judge's conclusions on issues of fact are correct. But in agreement with the majority in the Court of Appeal [1997] I.C.R. 566 my view is that the trial judge's assessment of the evidence was fundamentally flawed. Moreover, on balance I am satisfied for the reasons so lucidly and trenchantly given by Stuart Smith L.J. (with whom Waite L.J. expressed agreement in a separate judgment) that the employee was entitled to succeed on liability.
Since 1948 cramp of the hand or forearm due to repetitive movements such as typing has been classified as a prescribed disease for the purpose of industrial benefit. It is described as PDA4. The causative agent is still uncertain but the DSS Notes of 1983 state that it is "probably due to a combination of physical fatigue of muscles and an underlying psychoneurosis." It rarely occurs among typists. But the risk is known. Thus Imperial Chemical Industries Plc., the employer in the present case, had in place a system of warning and supervising intensive users of word processors in their accounts department at Macclesfield. But no warnings were given to the plaintiff, Miss Pickford, and the extent of her typing was not supervised. The employers assumed that she was not an intensive user of a word processor.
By all accounts given by those who worked with her Miss Pickford was a diligent and conscientious employee. She was also an excellent and fast typist. In 1986 the typing content of her job was apparently about 50 per cent. But it was her case at trial that by November or December of 1988 typing was taking up as much as 75 per cent. of her time. It was then that she began to experience strange feelings in her hands by the weekend. That was her oral testimony. Her diary entries reflected the constant pressure of her typing load. Her entry of Tuesday, 23 May 1989, recorded that her hands "are almost seizing up when I do a lot of typing." It stated that "it started late last year when I notice that by Friday, my hands were tight and sore (I'd been typing flat out all summer to keep up with mounds of work, as well as my other jobs)." Her case was therefore based on the link between a sharply increased typing workload and the manifestation of those symptoms between November 1988 and May 1989 when she first took medical advice. What then followed is common grounds. Miss Pickford was advised to stop typing. She was therefore compelled to stop working as a secretary. And ICI did not offer her satisfactory alternative employment. In September 1990 ICI terminated her employment.
Miss Pickford had an excellent work record. She was a conscientious and indeed dedicated employee. The judge found that she was not a malingerer. He also found that she was an honest and truthful witness. Yet he rejected the account given in her diary entry of 23 May 1989 to the effect that her symptoms had started in late 1988. He therefore also rejected her oral evidence which expanded on the diary entry but was to the same general effect. No matter how one strives to find a plausible explanation, which may support the reasoning of the Deputy High Court judge, I must confess that this particular decision confounds common sense. In her diary entry and oral evidence Miss Pickford could not possibly have made an honest mistake about the pressure of typing work and her symptoms over a period of six months immediately preceding her seeking medical advice. The judge came into a conclusion which lacks intellectual coherence. Plainly her diary entry of 23 May, made at a time when it is acknowledged she knew nothing about PDA4, was broadly speaking accurate and so was her oral evidence expanding on it.
It follows that the judge misdirected himself in the assessment of Miss Pickford's evidence. A misdirection on one point does not necessarily justify a complete disregard of all the judge's findings of fact. Everything depends on the nature of the misdirection and the circumstances of the particular case. In the present case the misdirection was not on an isolated point of evidence. It related to the essence of Miss Pickford's case: if the evidence of Miss Pickford about mounting pressure of typing in late 1988 and early 1989, and the emergence of symptoms over six months, is rejected her case failed at the first hurdle. Moreover, the judge's finding had a domino effect: If the pressure of her typing did not increase as and to the extent that Miss Pickford testified, the emergence and continuance of her symptoms become more questionable. The judge's error led him to treat Miss Pickford as honest but inclined to exaggerate. It caused the judge to give inadequate effect to the picture of mounting typing pressure emerging from Miss Pickford's diary entries. Critically, it led him to accept only that Miss Pickford "from time to time may have typed up to the five hours." Leaving aside the fact that 75 per cent. of her working day was 5 hours and 40 minutes, the judge's findings materially understated the effect of Miss Pickford's oral evidence. In short the judge's error dragged down the whole of his conclusions of fact. His error disabled him from fairly assessing Miss Pickford's evidence.
Much of the argument on the present appeal centred on the natural breaks from typing caused, for example, by Miss Pickford answering the telephone. This was a relevant matter. But this is how the judge approached the matter:
"… while I accept that there were peaks and troughs and that at times the peaks may have seemed excessive in the plaintiff's perception, she had the necessary discretion, experience and knowledge, as she was well aware, to plan, organise, prioritise and negotiate the work and, if necessary, to seek help so as to enable herself to cope reasonably with it."
Again the judge fell into error. It was established at the at the trial that Miss Pickford was unaware of the risk posed by prolonged repetitive movements: she only became aware of that months after she first sought medical advice. It is therefore wrong to say that she had the necessary knowledge to prioritise her work. In any event, the alleviating effect of natural breaks was a matter of fact and degree upon which Miss Pickford's evidence was not accepted by the judge. And his relevant findings are directly linked with his earlier rejection of...
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