Goodwin v Bennetts UK Ltd [2008] EWCA Civ 1374

[2008] EWCA Civ 1374

Case No B3/2008/0481

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM PORTSMOUTH COUNTY COURT

HIS HONOUR JUDGE DIXON

5PO 04194

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 11/12/2008

Before

THE MASTER OF THE ROLLS

LORD JUSTICE DYSON

LORD JUSTICE JACKSON

Between

GOODWINAppellant

BENNETTS UK LimitedRespondent

Mr Martin Porter QC (instructed by Larcomes) for Appellant

Mr Jonathan Waite QC and Ms Claire Toogood (instructed by Berrymans Lace Mawer) for Respondent

Hearing Hearing dates : 11 November 2008

Judgment

[1]This judgment is in six parts as follows: Part 1.Introduction Part 2.The Facts Part 3. The Present Proceedings Part 4. The Appeal to the Court of Appeal and the threshold question Part 5. Breach and Causation Part 6. Conclusion

Part 1. Introduction

[2]This is an appeal by the claimant against the rejection of her claim for damages for personal injuries sustained in the course of her employment. The claimant contends that the defendant’s breaches of statutory duty and negligence caused her to sustain tenosynovitis as a result of keyboard use whilst working at the defendant’s office.

[3]In this judgment I shall refer to work related upper limb disorder as “WRULD”. I shall refer to the Health and Safety (Display Screen Equipment) Regulations 1992 as “the 1992 Regulations”. Regulation 1 of the 1992 Regulations provides as follows:

“(2) In these Regulations- (a) “display screen equipment” means any alphanumeric or graphic display screen, regardless of the display process involved:… (c) “use” means use for or in connection with work; (d) “user” means an employee who habitually uses display screen equipment as a significant part of his normal work: and (e) “workstation” means an assembly comprising- (i) display screen equipment (whether provided with software determining the interface between the equipment and its operator or user, a keyboard or any other input device), (ii) any optional accessories to the display screen equipment, (iii) any disk drive, telephone, modem, printer, document holder, work chair, work desk, work surface or other item peripheral to the display screen equipment, and (iv) the immediate work environment around the display screen equipment.”

Regulation 2 of the 1992 Regulations provides as follows:

“2. (1) Every employer shall perform a suitable and sufficient analysis of those workstations which- (a) (regardless of who has provided them) are used for the purposes of his undertaking by users; or (b) have been provided by him and are used for the purposes of his undertaking by operators, for the purpose of assessing the health and safety risks to which those persons are exposed in consequence of that use. (2) Any assessment made by an employer in pursuance of paragraph (1) shall be reviewed by him if- (a) there is reason to suspect that it is no longer valid; or (b) there has been a significant change in the matters to which it relates; and where as a result of any such review changes to an assessment are required, the employer concerned shall make them. (3) The employer shall reduce the risks identified in consequence of an assessment to the lowest extent reasonably practicable.” (a) “display screen equipment” means any alphanumeric or graphic display screen, regardless of the display process involved:… (d) “user” means an employee who habitually uses display screen equipment as a significant part of his normal work: and (i) display screen equipment (whether provided with software determining the interface between the equipment and its operator or user, a keyboard or any other input device), (ii) any optional accessories to the display screen equipment, (iii) any disk drive, telephone, modem, printer, document holder, work chair, work desk, work surface or other item peripheral to the display screen equipment, and (iv) the immediate work environment around the display screen equipment.” “2. (1) Every employer shall perform a suitable and sufficient analysis of those workstations which- (a) (regardless of who has provided them) are used for the purposes of his undertaking by users; or (b) have been provided by him and are used for the purposes of his undertaking by operators, for the purpose of assessing the health and safety risks to which those persons are exposed in consequence of that use. (2) Any assessment made by an employer in pursuance of paragraph (1) shall be reviewed by him if- (a) there is reason to suspect that it is no longer valid; or (b) there has been a significant change in the matters to which it relates; and where as a result of any such review changes to an assessment are required, the employer concerned shall make them. (3) The employer shall reduce the risks identified in consequence of an assessment to the lowest extent reasonably practicable.” 4. Regulation 4 provides: “4. Every employer shall so plan the activities of users at work in his undertaking that their daily work on display screen equipment is periodically interrupted by such breaks or changes of activity as reduce their workload at that equipment.”

Regulation 6 provides:

“6. (1) Where a person- (a) is already a user on the date of coming into force of these Regulations; or (b) is an employee who does not habitually use display screen equipment as a significant part of his normal work but is to become a user in the undertaking in which he is already employed, his employer shall ensure that he is provided with adequate health and safety training in the use of any workstation upon which he may be required to work.” (a) is already a user on the date of coming into force of these Regulations; or (b) is an employee who does not habitually use display screen equipment as a significant part of his normal work but is to become a user in the undertaking in which he is already employed, his employer shall ensure that he is provided with adequate health and safety training in the use of any workstation upon which he may be required to work.”

Regulation 7 provides:

“7. (1) Every employer shall ensure that operators and users at work in his undertaking are provided with adequate information about- (a) all aspects of health and safety relating to their workstations; and (b) such measures taken by him in compliance with his duties under regulations 2 and 3 as relate to them and their work. (2). Every employer shall ensure that users at work in his undertaking are provided with adequate information about such measures taken by him in compliance with his duties under regulations 4 and 6(2) as relate to them and their work. (3). Every employer shall ensure that users employed by him are provided with adequate information about such measures taken by him in compliance with his duties under regulations 5 and 6(1) as relate to them and their work.”

[4]The Health and Safety Executive published helpful guidance concerning the 1992 Regulations. This guidance would or should alert employers to the need to protect keyboard workers against the risk of WRULD.

[5]After these brief introductory remarks I must now turn to the facts.

Part 2. The facts

[6]The claimant was born on 9 May 1974 and so is now aged 34. Between April 2000 and June 2003 the claimant was employed as an insurance adviser by the defendant, a firm of insurance brokers. The offices at which the claimant worked were as follows. The claimant began working in the defendant’s Portsmouth office. In January 2001 the claimant was transferred to the defendant’s Eastleigh office. In March 2001 the claimant was transferred to the defendant’s Southampton office. In May 2001 the claimant was transferred back to the defendant’s Portsmouth office, where she remained until she was made redundant in June 2003. The claimant’s line manager was Mr Richard Burton who was based at the Southampton office. Mr Gareth Andrews was team leader of the renewals department at the Southampton office. He also had some responsibility for the claimant’s work.

[7]The principal part of the claimant’s work comprised inviting customers to renew their insurance policies. The policies related to household insurance, motor insurance and so forth. In addition, the claimant carried out a number of other administrative and clerical functions. The claimant sat at a workstation in the defendant’s office. She prepared letters inviting renewal on her computer using a standard form keyboard and mouse. After such letters had been typed up, from time to time they had to be collected from the computer.

[8]In May 2002 the defendant decided to introduce a bonus scheme for its renewal staff. This was known as the “star performance renewal scheme” and was intended to reward staff with additional daily payments according to the number of renewals which they completed. This was reflected in the award of stars. However, the scheme was on the basis that individual reward also depended in part upon the performance of the whole team of which the individual was a member. The purpose of the scheme was to meet concern amongst clerical and administrative staff that they were not getting the opportunities to earn extra money, which opportunities were available to sales staff. The scheme proved to be extremely popular. The defendant quickly discovered that it had not structured the scheme as it would have liked, because it was too generous to enable the defendant to sustain the scheme. Accordingly the defendant revised the terms of the scheme with effect from 1 August 2002. In simple terms the effect was that rewards to individual members of staff were still dependent upon the number of additional renewals achieved each day, but the rates of return were less generous.

[9]Before the introduction of the bonus scheme the claimant was doing about 50 renewals per day. After the scheme had been put in place the number of renewals which the claimant dealt with per day increased. The extent of that increase has been a matter of controversy. It is clear however that the number of renewals per day never rose above about 70.

[10]In late July or August of 2002 the claimant was involved in a minor road traffic accident. She was a passenger in a car which stopped suddenly, she was thrown forward in her seat and put her hands out to protect herself, causing them to strike the dashboard.

[11]During the summer of 2002 the claimant started to notice aching in both wrists which became steadily worse. During August of 2002 the claimant told Mr Burton about the pain in her wrists. She also told him about the road traffic accident. Mr Burton gained the impression (whether rightly or wrongly) that the two matters were related. Mr Burton suggested that the claimant should consult her GP.

[12]The claimant took her annual holiday in the last fortnight of September 2002. During that period the symptoms subsided.

[13]At the beginning of October the claimant returned to work after her holiday. The pain in her wrists returned. On 11 October 2002 the claimant consulted her GP about the pain in her wrists. The GP’s notes record that he examined the wrists and considered the possibility of carpel tunnel syndrome and repetitive strain injury.

[14]On 23 October the claimant consulted her GP again and was signed off work for two weeks. The GP’s notes for that date read as follows:

“Both wrists painful. Quite incapacitating. Not tried NSAID yet – start. Certificate tenosynovitis.”

The claimant returned to work in early November. Initially the claimant was put to work on projects other than renewals, but quite soon the claimant was once again dealing with renewals. It does seem, however, that the number of renewals which the claimant was dealing with per day, was lower than the number of renewals which she had been dealing with per day before 23 October.

[15]On 27 November 2002 the claimant consulted her GP. He made the following brief entry in his notes:

“Hand improving because not typing. Heading for another job.”

The claimant asserts that in late December 2002 and early January 2003 the number of renewals which the claimant did each day progressively increased. However the contemporaneous records (summarised by Mr Burton at his exhibit “RB7”) show that the number of renewals undertaken by the claimant per day remained roughly constant during this period and subsequently. The claimant was doing between 25 and 30 renewals per day.

[16]The wrist pain which the claimant had previously suffered returned in January 2003 and grew worse. On 24 February 2003 the defendant’s human resources director sent a questionnaire to Dr Dinapala, the claimant’s GP, seeking medical advice. The GP duly returned that form with his responses to the questions put by the defendant. It is not entirely easy to read all that the GP wrote. However, one of the things which he put on the form was that the defendant should minimise repetitive tasks.

[17]During 2003 there were other issues between the claimant and her employers, as a result of which the claimant invoked the grievance procedure. In due course the claimant accepted voluntary redundancy. In June 2003 the claimant ceased to be employed by the defendant.

[18]In June 2003 and for a period afterwards the claimant continued to experience pain in her wrists, for which she considered that her former employers were responsible. Accordingly the claimant took legal and medical advice and, in due course, commenced the present proceedings.

Part 3. The Present Proceedings

[19]By a claim form issued in the Portsmouth County Court on 15 July 2005 the claimant claimed damages for personal injuries and consequential losses on the grounds of negligence and breach of statutory duty by the defendant as her employer.

[20]The claimant’s case has evolved over time. In its final form the claimant’s case may be summarised as follows. The introduction of the bonus scheme in May 2002 led to an increase in the number of renewals dealt with by the claimant each day. Between May 2002 and June 2003 the defendant failed to comply with its duties under Regulations 2, 4, 6 and 7 of the 1992 Regulations or to take reasonable care to protect the claimant from suffering wrist injury. As a result the claimant developed a form of WRULD, namely tenosynovitis. Tenosynovitis means inflammation of a tendon sheath. The tendons affected in the claimant’s case are the flexor tendons of the thumb and index finger on both sides.

[21]The action was tried before HH Judge Dixon over four days in November 2007. The claimant called four factual witnesses at trial, namely herself and three former colleagues at work. She called a medical expert, Dr Hull, and an expert ergonomist, Mr Hinckley. The defendant called two factual witnesses, namely Mr Burton, who was the claimant’s manager, and Mr Morley who was Mr Burton’s manager. The defendant also called a medical expert, Mr Warwick, and an expert ergonomist, Mr Pearce. I shall refer to the evidence given by those witnesses, so far as necessary, in parts 4 and 5 below.

[22]The judge delivered his reserved judgment on 4 January 2008, dismissing the claimant’s claim. The judge held that the defendant had been in breach of regulations 2, 6 and 7 of the 1992 Regulations, but those breaches had not been causative of injury to the claimant. The judge held that the defendant had not been in breach of regulation 4, nor had the defendant been negligent. In relation to the medical issues, the judge rejected Dr Hull’s diagnosis of tenosynovitis. He preferred the view of Mr Warwick that the claimant’s symptoms were not caused by her work, although they were “exposed” by it. Finally, the judge assessed damages in case he should be held to be wrong on the issues of liability and causation. He assessed general damages for pain, suffering and loss of amenity at £4,000. He assessed damages for loss of earning capacity in the sum of £8,000. He noted that special damages were agreed between the parties at £31.90.

[23]The claimant was aggrieved by the court’s rejection of her claim on liability and causation. Accordingly she has appealed to the Court of Appeal.

Part 4. The Appeal to the Court of Appeal and the threshold question

[24]By a notice of appeal dated 29 February 2008 the claimant appeals to the Court of Appeal on five grounds. These five grounds are as follows: (i) The judge erred in finding that the defendant had not been in breach of his duty under regulation 4 of the 1992 Regulations. (ii)The judge erred in finding that the defendant had not been negligent. (iii) The judge erred in finding that, had the defendant complied with its duties, it would not have acted differently towards the claimant’s work or that, even if it had acted differently towards the claimant’s work, such differences would not have made any difference to what happened. This was referred to as the “general causation issue”. (iv) The judge erred in finding that the claimant’s injury was not caused by the claimant’s work. This issue was referred to as the “medical causation issue”. (v) The judge erred in rejecting the claimant’s “fallback” argument that the recurrence of symptoms in early 2003 was caused by the defendant’s negligence and/or breach of the 1992 Regulations.

[25]Although medical causation only features as the fourth ground of appeal, logically this issue must be considered first. It is the threshold question. If the claimant fails on medical causation, then that is the end of her claim. If the claimant succeeds on medical causation then she crosses the threshold and the other four grounds of appeal will require consideration. I therefore turn to ground 4, the issue of medical causation.

[26]Dr Hull’s diagnosis was that the claimant developed tenosynovitis as a result of increased use of the keyboard in and after the summer of 2002. Mr Warwick disagreed with that diagnosis.

[27]A significant feature of this case was that the number of keystrokes made by the claimant per day, both before and after May 2002 was not great. Each renewal involved an average of 150 keystrokes. So even if the claimant did 70 renewals in a day, that would only involve 10,500 keystrokes. That is approximately the equivalent of what a good touch typist achieves in half an hour. The claimant is not a touch typist and these observations reflect in no way to her discredit. They are, however, relevant when considering the medical causation issue. The amount of typing which the claimant undertook between June 2002 and June 2003 is not such as would normally cause personal injury.

[28]In cross-examination Dr Hull explained that posture, repetition and lack of rest were important in the development of tenosynovitis. If the judge found that those factors were not present, then the diagnosis was unlikely to be tenosynovitis caused by the claimant’s work: see day 3, pages 131-133. Mr Warwick expressed similar views on this aspect in his evidence.

[29]It is clear on the evidence that the claimant’s workstation and posture were satisfactory. The volume of the claimant’s work was not such that there was either excessive repetition or insufficient rest.

[30]Having considered the medical reports and the oral evidence of Dr Hull and Mr Warwick, I am quite satisfied that the judge was entitled to reject Dr Hull’s diagnosis of tenosynovitis.

[31]Although the diagnosis of tenosynovitis has been rejected, the fact remains that during the claimant’s employment and for a period afterwards the claimant suffered a considerable amount of pain and aching in her wrists. Those symptoms were genuine. The judge found the claimant to be an honest witness, even though mistaken in her recollection about a number of matters of detail.

[32]The question arises therefore as to why the claimant suffered these symptoms. In their joint statement prepared for the court the medical experts accepted that the claimant developed symptoms in her wrists and hands (more marked on the left than the right) in the summer of 2002. They considered that the road traffic accident may or may not be relevant. They recorded that by the time they examined the claimant (October 2003 and July 2006 respectively) the claimant’s symptoms were mild and minimal. The experts also summarised their areas of disagreement. In relation to causation they recorded as follows:

“Dr Hull noted the onset of symptoms towards the end of the working day with a gradual increase in onset of symptoms earlier in the working day, relief with rest such as weekends, holidays and time of work. He noted that the symptoms had virtually resolved following her redundancy in June 2003. Mr Warwick feels that this relation of symptoms to work should be interpreted as meaning that work simply aggravates symptoms from any painful condition rather than primarily causes that condition.”

Mr Warwick made a similar observation in the concluding section of his report.

[33]Mr Warwick retreated somewhat from the limited concession which he had made in writing, when he came to give his oral evidence. Nevertheless, I regard that concession as properly made, indeed inevitable. There was a clear pattern to the claimant’s symptoms in and after the summer of 2002. In periods when the claimant was engaged upon typing significant numbers of renewals her symptoms grew worse. In periods when(a) the claimant was off work or

(b) she was at the office but only doing a small amount of typing, her symptoms abated. The underlying cause of the pain in the claimant’s wrists is not known and has not been established on the evidence. What has been established, however, is that after the summer of 2002 the claimant’s symptoms were aggravated whenever her work consisted principally of typing up renewals. Of course coincidences can happen, as Mr Warwick pointed out in oral evidence. However, the concession made by Mr Warwick in his written report and in the experts’ joint statement is plainly correct. The judge ought to have held, on the balance of probabilities, that the pain which the claimant suffered in her wrists was aggravated by her keyboard work.

[34]I therefore conclude that to this extent the claimant succeeds on the fourth ground of appeal. Between the summer of 2002 and June 2003 the claimant’s keyboard work aggravated the pain which the claimant suffered in her wrists. It is clear to me on the evidence that the claimant’s keyboard work made a material contribution to that pain.

[35]Since the claimant has succeeded on the threshold question, I must now turn to the other grounds of appeal.

Part 5. Breach and Causation

[36]In this part of the judgment I shall address the first, second, third and fifth grounds of appeal.

[37]As to the first ground of appeal, there is no dispute that the 1992 Regulations were applicable to the claimant’s employment. The claimant was an employee of the defendant, who used a workstation for the purposes of the defendant’s business. Accordingly regulation 4 of the 1992 Regulations imposed upon the defendant a duty to plan the claimant’s activities so that her daily work on the display screen equipment was periodically interrupted by such breaks or changes of activity as would reduce her workload at that equipment.

[38]It is clear from the evidence at trial that the defendant did not comply with regulation 4. Indeed the defendant was unaware of the existence of the 1992 Regulations. The defendant never devised any plan for the claimant, which would meet the requirements of regulation 4.

[39]All employers of staff who use display screen equipment should be aware of the 1992 Regulations and should take steps to comply with those regulations. Indeed both the expert ergonomists in this case would have expected the defendant to be familiar with the 1992 Regulations: see paragraphs 7 and 8 of the ergonomists’ joint statement.

[40]The crucial question which I have to address is whether the defendant’s breach of regulation 4 had any causative effect. If the defendant in or before May 2002 had set about devising a plan to comply with regulation 4, the defendant would have taken into consideration the following three facts:(i) The claimant only used the keyboard to a moderate extent in relation to her work on renewals: see part 4 above.

(ii) The claimant was entitled to a one hour break during the day. The claimant could take this break at lunch time. Alternatively the claimant could take a 45 minute break at lunch time plus a further break or breaks totally 15 minutes at other times: see the judge’s findings at page 4 of the judgment, which were open to him on the basis of Mr Burton’s evidence.

(iii) As the judge found at pages 4 and 18 of the judgment, the claimant had a number of other tasks to do during the day which did not involve keyboard work. Examples of such tasks were making telephone calls, dealing with post and general administration. The judge was entitled to make these findings on the basis of the claimant’s evidence and the evidence of Mr Burton.

[41]In my view, the claimant’s daily routine was such that it was in practice interrupted by such breaks or changes of activity as would reduce her workload on the display screen equipment.

[42]There was some discussion at the hearing as to whether, in effect, the defendant had inadvertently complied with regulation 4. I was initially attracted to that analysis. I have, however, come to the conclusion that that analysis is not correct. Regulation 4 required the defendant to plan the activities of the claimant in a particular way. The defendant did not plan the claimant’s activities at all, but instead left the claimant to her own devices at an office some distance away from her manager. The correct analysis is that the defendant was in breach of regulation 4, but that breach had no causative effect. If the defendant had set about devising a plan as required by regulation 4, such plan would not have required any material change to the claimant’s existing routine.

[43]I turn now to the second ground of appeal. The judge concluded that the defendant had not been negligent for the reasons set out on pages 28 -33 of the judgment. I would summarise the judge’s principal reasons as follows. The amount of typing which the claimant did each day in connection with renewals was modest and not such as to cause a reasonable employer to foresee any risk of personal injury. The judge preferred the views of Mr Pearce to the views of Mr Hinckley, who took a somewhat theoretical view of the case. In cross-examination Mr Hinckley had conceded that no force was involved in the claimant’s typing; that she did not adopt an awkward posture; and that her work was not unduly repetitive.

[44]In respect of the period up to November, the judge’s conclusion cannot be faulted. The judge’s findings at pages 28-33 of the judgment are fully supported by the oral and written evidence at trial.

[45]The position after November requires separate consideration. The claimant was signed off work for two weeks from 23 October. The GP diagnosed her condition as tenosynovitis. The defendant was alerted to the fact that the claimant had pain in her wrists and that such pain appeared to be related to her keyboard work. The claimant’s workload on renewals was reduced after she returned to work in November, but that reduction in renewals was not sufficient.

[46]There was a recurrence of the claimant’s symptoms in early 2003, as described by the claimant in paragraph 11 of her witness statement and amplified in cross-examination on day one. The judge accepted that there was a recurrence of the claimant’s symptoms in early 2003: see the second paragraph on page 21 of his judgment.

[47]Mr Burton was cross-examined about these matters on day two. That cross-examination included the following passage on pages 108-109 of the transcript:

“Mr Porter Yes? Thank you. And once she was signed off of course, you knew that she was being signed off because of the GPs diagnosis of tenosynovitis. Mr Burton Yes……. Mr Porter All right, but what matters is what you knew, rather than what he pleaded and you knew that it was tenosynovitis. And did you know at that stage that was potentially a work related upper limb disorder? Mr Burton No, I did not; no. Mr Porter You did not? You still did not know after she had been signed off sick with a diagnosis of tenosynovitis that that might be connected with work? Mr Burton I did not, at that stage that I received that doctor’s note, no. HHJ Dixon Did you know what tenosynovitis was or had you an idea of it? Mr Burton I did not, no. HHJ Dixon So you did not know if it was anything to do with her work or if she had contracted some disease or had an accident at home or what. It could have been anything. Mr Burton Yes that is right; I did not know. Mr Porter Okay. Would this note have been submitted to personnel and passed to you, or submitted to you and passed to personnel? What would have happened? Mr Burton Yes, it would have been sent in for my attention and I would have passed it on to personnel or human resources. Mr Porter So once you had seen it, it would have gone to personnel and someone in the personnel department would have seen it. Mr Burton Yes. Mr Porter And we know that the Claimant returned to work on a reduced workload, or a different workload anyway, In November and you have described how she was doing project work and audit work? Mr Burton Yes. Mr Porter Had anyone in the personnel department or anyone else explained to you what tenosynovitis was and what the complications were? Mr Burton No. Mr Porter No. So that no doubt is how it came about that by Christmas time you had her back to doing some renewal invitation work. Mr Burton Yes. Mr Porter Yes. And that before any advice had been sought from an occupational health physician or a doctor, was it not? Mr Burton Yes. Mr Porter And she ended up going into 2003 doing 20 to 30 renewals a day, did she not? Mr Burton If that is the figure recorded, then yes. Mr Porter Well it is the figure that she has given and I have not yet heard anyone challenge that, so do you accept that that is what happened? Mr Burton Yes, that is probably about right. Mr Porter Do you remember that she got a return of the symptoms, and it became worse again? Mr Burton Yes. Mr Porter You do recall that? Mr Burton Yes.”

HHJ Dixon Did you know what tenosynovitis was or had you an idea of it? Mr Porter You do recall that? Mr Burton Yes.”

Mr Porter You do recall that?

[48]In cross-examination Mr Warwick expressed the view that it would be reasonable in such a situation for the employer to seek medical advice before returning an employee to her original work.

[49]In my view, after the claimant’s return to work in November it was or ought to have been apparent to the defendant that the claimant was an employee particularly vulnerable to WRULD from moderate use of the keyboard. In those circumstances the defendant was in breach of its duty of care to the claimant in causing or allowing her quite soon after her return to work to process renewals at the rate set out in Mr Burton’s exhibit “RB7”. (Mr Waite who is counsel for the defendant makes the comment that the entry in exhibit “RB7” in respect of November 2002, which shows a high number of renewals in that month, must be incorrect. I agree with that observation.) It was foreseeable that this would lead to personal injury.

[50]In relation to the second ground of appeal, I would uphold the judge’s decision in respect of the period up to November 2002. I leave on one side the position in December, when no recurrence of the claimant’s symptoms appears to have occurred. In my view, however, the defendant is liable in negligence for the recurrence of the claimant’s symptoms which occurred in January 2003.

[51]On 24 February 2003 the defendant consulted the claimant’s GP, Dr Dinpala. The doctor advised the defendant to “minimise repetitive tasks”. This advice appears to have had no impact on what happened in practice. In my view the defendant’s breach of duty continued until the claimant’s employment was terminated in June 2003.

[52]I turn now to the third ground of appeal. The claimant here challenges the judge’s conclusion that the defendant’s breaches of regulations 2, 6 and 7 of the 1992 Regulations had no causative effect. In relation to regulation 2, I agree with the judge’s conclusion. Up until November 2002 the defendant undertook no analysis of the claimant’s workstation. However, it is clear from the evidence that if any analysis had been undertaken, it would have led to the conclusion that the claimant’s workstation was satisfactory. The defendant did undertake such an analysis in November 2002 and so at that time the defendant’s breach of regulation 2 came to an end.

[53]I turn now to regulations 6 and 7. The defendant at no time complied with its obligation under these regulations to provide information and training to the claimant about how to use her workstation without suffering personal injury. In respect of the period up to November 2002, I agree with the judge’s conclusion that these breaches had no causative effect. Even if the defendant had provided proper training and information, no-one would have expected the claimant’s moderate use of the keyboard to be causing personal injury.

[54]In respect of the period after November 2002, the position was transformed for the reasons which I have set out above. If the defendant had provided proper information and training to the claimant, it would at once have become apparent that the claimant’s keyboard use needed to be further reduced. I therefore conclude that the defendant’s breaches of regulations 6 and 7 caused the recurrence of the claimant’s symptoms in early 2003. If the defendant had provided proper information and training in and after November 2002, the keyboard use by the claimant would have been substantially less than 25-30 renewals per day. The consequence would have been that the recurrence of the claimant’s symptoms in January 2003 would not have occurred.

[55]The fifth ground of appeal is that the judge erred in rejecting the claimant’s fallback argument. The claimant’s fallback argument was that the recurrence of the claimant’s symptoms in early 2003 was caused by the defendant’s negligence and breach of the 1992 Regulations. This ground of appeal succeeds to the extent set out above and for the reasons which I have already stated when addressing the second and third grounds of appeal.

Part 6. Conclusion

[56]For the reasons set out in part 5 above, this appeal is allowed in part. The claimant is entitled to damages, not in respect of all the injuries pleaded but only in respect of the recurrence of her injuries in and after January 2003.

[57]It would be wasteful of costs to remit this case to the trial judge for a further assessment of damages. I therefore propose that each party should submit brief written submissions on the extent to which the judge’s assessment of damages stands or requires adjustment in the light of this court’s decision on liability and causation. This court will then deal with quantum of damages (if not agreed) on the date when this judgment is handed down.

[58]Finally, I express my gratitude to counsel on both sides for the clarity of their skeleton arguments and oral submissions.

[59]I agree

Master of the Rolls

[60]I also agree