Pickford v Imperial Chemical Industries Plc
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STUART-SMITH,LORD JUSTICE SWINTON THOMAS,LORD JUSTICE WAITE |
| Judgment Date | 18 July 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0718-11 |
| Docket Number | QBENF 95/0120/C |
| Court | Court of Appeal (Civil Division) |
| Date | 18 July 1996 |
[1996] EWCA Civ J0718-11
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT AT MOULD
(HIS HONOUR JUDGE EIFION ROBERTS QC)
Royal Courts of Justice
Strand
London WC2
Lord Justice Stuart-Smith
Lord Justice Waite
Lord Justice Swinton Thomas
QBENF 95/0120/C
MR. M REDFERN QC & MR. G VICKERS (Instructed by Messrs. William Hood & Co., Macclesfield) appeared on behalf of the Appellant
MR. B A HYTNER QC & MR. S P STEWART (Instructed by Messrs. Halliwell Landau, Manchester) appeared on behalf of the Respondents
Thursday 18 July 1996
This is an appeal from a judgment of HHJ Eifion Roberts QC sitting as a deputy High Court Judge at Mould on 4 Nov 1994 in which he dismissed the Plaintiff's claim for damages for personal injury against the Defendant.
In 1948 the Department of Health and Social Security included as a prescribed disease for the purpose of industrial injury benefit under the relevant legislation PDA4 namely:
"Cramp of the hand or forearm due to repetitive movements, e.g. writer's cramp. Under the heading "type of occupation—any occupation involving" it is said "prolonged periods of handwriting, typing or other repetitive movements of the fingers, hand or arm: e.g. typists, clerks and routine assemblers."
The plaintiff's case was that she had contracted the condition of her hands in the course of her employment with the Defendants as a secretary at the premises of their Pharmaceutical Section at Macclesfield. The trouble developed in late 1988 and after brief incomplete remission in early 1989 it came to a head in late April and May of that year. It is her case that it has been caused by excessive typing for prolonged periods without proper breaks or rest pauses. The result has been that she had to cease work as a secretary; although she tried work as a filing clerk for the defendants in 1990 her hands again became sore and painful after three days and she could not continue. The Defendants were unable to offer her alternative employment and she was given formal notice on 25 June terminating her employment on 14 September 1990. Since then she tried unsuccessfully to obtain other work; she eventually retrained as a photographer and at the time of trial she had started in business on her own account as such, but as yet she has not had a great deal of work and the business was not thriving.
Essentially her case is that the Defendants caused or permitted her to undertake a very large amount of typing, which she carried out on a word processor, which she did for long periods of time without breaks or rest periods; this came about because the Defendants did not give her the same instructions as they gave their typists, working in the Accounts Department, who were carrying out typing work for most of the day. If she had been told of the need for rest breaks, she would have taken them and would have interspersed her other secretarial duties between the typing, or left some of the typing undone. It is said that she was not properly supervised. The Judge rejected her claim; he held that she did not have an organically based condition and that the Defendants were not negligent in failing to give her any instruction.
The Plaintiff is now 47; she is unmarried. She began her secretarial career in 1971 and for many years worked as a temporary typist for a local secretarial agency. She spent eight months in that capacity with the Defendants until in January 1984 they engaged her as a section secretary on a full time basis, but doing the same work as she had before. She worked in three sections: Technical Services, Computer Applications and Laboratory Control, managed respectively by Mr. Mason, Mr. Marriot and Mr. Hamilton but overall by Dr. Priaulx within the Quality Assurance Department of which he was the head. The Plaintiff worked on her own in an office in the Technical Services Section and responded to Mr. Mason. But she was under the supervision of Dr. Priaulx's secretary who until 1987 was Mrs Owen and thereafter Mrs Woodward. Dr. Priaulx's predecessor, Mr. Holbrook worked as a consultant for two days a week following his retirement in 1983. The Plaintiff also acted as his secretary; so far as his typing was concerned this involved two or three letters a week and a 20 page report every two or three months. In all this involved about one-and-a half hours typing a week.
The Plaintiff worked a seven and a half hour day from 10 a.m. to 6 p.m. having half-an-hour off for lunch. There were facilities for tea and coffee which the Plaintiff consumed as she worked.
She prepared a job assessment report dated 15 Nov 1986 for the purpose of upgrading her post from grade 3 to grade 4 (which it had previously been when she worked as a temporary secretary). In it she said that she spent 50% of her time typing and the remaining 50% in general secretarial duties, such as answering the telephone, arranging travel and meetings for those for whom she acted as secretary. This work from time to time involved her leaving the office to make contact with others in the Quality Assurance Section. In addition to Mr. Mason, Mr. Marriott, Mr. Hamilton and Mr. Holbrook she was available to do typing for some 30 to 40 others and from time to time, albeit rarely, for the 100 or so others in the section. The typing consisted of letters, memoranda, minutes, reports, standard operating procedures (S.O.P.s). In the review she stated that she planned and organised her workload; it was necessary to be flexible to deal with conflicting demands of the various sections she worked for. She was able to give priority to various types of work; but the priorities could change hour by hour as new work came in and she would give priority to an urgent piece of typing. Mr. Mason agreed with the Plaintiff's assessment and the job was upgraded.
It was the Plaintiff's case that if her job had continued as it had been in 1986 and described in the report, there would have been no problem. But her evidence was that the typing load gradually increased throughout 1987 and 1988 so that by November or December of that year it took up as much as 75% of her time. There was at that time an upsurge of typing work arising out of the launch of a new drug, Solidex. This had an effect on her hands so that she experienced strange feelings in her hands by Friday of each week. It was tightness in the back of each hand and a feeling that her fingers were not moving normally. But they recovered with rest over the week-end and she did not think there was anything seriously wrong.
In a performance review for 1988, discussed with Mr. Mason on 13 January 1989 and signed by him on 2 February it is stated:
"At times the typing workload is excessive and Ann has coped well with the pressure. She acknowledges there would be clear benefit in the secretarial force within QA being welded together as a team to spread the workload and help provide a more efficient cover during sickness and holidays. Although this was an objective in 1988 not much progress has been achieved. This clearly needs to be developed at a departmental level."
Mr. Mason added that the Plaintiff " had worked extremely hard and conscientiously during the year." Indeed it is a feature of this case that almost everyone who gave evidence for the Defendants and who knew the Plaintiff and her work described her in such terms; her work was of excellent quality and Mrs. Woodward had never received a complaint about it; she had very high standards and was a perfectionist.
It is convenient to mention at this point two matters touched on in the 1988 performance review. The lack of cover for sickness and holidays; this was something that troubled the Plaintiff because she was required to deputise for Mrs. Woodward when she was away. In theory her own typing was to be covered by a temporary typist; but sometimes such typists did not materialise and if she did she was unable to cope, either through inexperience or lack of the same dedication and persistence as the Plaintiff, with the volume of work, so that when the Plaintiff returned to her normal job she had to cope with a backlog of work.
The second matter relates to the Wordplex Group. This consisted of four part time typists doing the work of two full time ones. The Wordplex Group was available to the section amongst others for typing work and from time to time the Plaintiff asked for their help through Mrs. Woodward. But she was reluctant to use them partly because she was critical of their standards which were not up to her own and partly because on occasions when she sent work to them it was returned because they were too busy to do it. Following the 1988 review in February it was arranged that the Wordplex Group would type the Plaintiff's S.O.P.s; and this obviously provided some relief.
In 1987 when the Plaintiff went to live on her own in a flat she started to keep a diary. From about the middle of 1988 there was an increasing number of entries in this diary, which if they are accurate support the Plaintiff's evidence as to the build up of typing work. Such expressions as "still snowed under at work", "a large pile of typing waiting", "still very busy" abound. On 12 October she records that:
"I can't do the rest of my job for piles of typing".
On the 19th:
"I've managed to get through a lot of typing this week; but it keeps pouring in. I've got a pile of SOP's waiting to be done"
November 3rd:
"Snowed under with work again as I thought I might be"
November 18th:
"I'm swamped with typing at work. There's enough coming in for 2...
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