Pattani v ICICI Bank UK Plc [2014] EWHC 4356 (QB)

[2014] EWHC 4356 (QB)Case No HQ13X04418
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/12/2014
Before
THEHONOURABLE MR JUSTICE PHILLIPS
Between
SHILPA PATTANIClaimantICICI BANK UK PLCDefendant
The Claimant appeared in person for in personMr William Vandyck (instructed by Beachcroft LLP) for DefendantHearing Hearing dates: 18, 19, 20, 23 and 24 June and 22 September 2014
Judgment
[1]In these proceedings the claimant, Miss Shilpa Pattani, seeks damages in the region of £1.5 million for personal injury she claims to have suffered whilst employed in the defendant bank’s marking department. Miss Pattani alleges that between January and August 2007 and again on 9 June 2009 she was required to undertake repeated lifting of heavy items which injured her back and caused pain. She claims that the bank, in requiring and permitting her to undertake such manual handling, was in breach of its statutory duties, in particular those imposed by the Manual Handling Operations Regulations 1992 (“the Regulations”), and its common law duties to protect its employees from injury and provide a safe system of work.[2]It is common ground that Miss Pattani now suffers from chronic widespread pain and fatigue, diagnosed by the parties’ experts in rheumatology as fibromyalgia and by the experts in psychiatry as Chronic Fatigue Syndrome, a psychosomatic disorder. Miss Pattani claims that the bank’s breaches of duty in 2007 and 2009 caused this condition or materially contributed to its development.[3]The bank accepts that it cannot demonstrate that it gave Miss Pattani any manual handling training and further accepts that it carried out no formal or documented process of risk assessment in relation to manual handling operations involved in her job. The bank’s case is that Miss Pattani was engaged in clerical office work, any element of manual handling being so insignificant as to involve no real risk of injury or so small a risk that no practical precautions were necessary. The bank further contends that Miss Pattani has in any event failed to prove that any lifting she undertook during her employment caused her present condition or, indeed, any injury.[4]When these proceedings were commenced in December 2009 Miss Pattani was represented by solicitors, Pattinson & Brewer, pursuant to a conditional fee agreement (CFA), with the benefit of an ATE insurance policy. The claim form, particulars of claim and Miss Pattani’s first witness statement were prepared with their assistance. In 2011 those solicitors were replaced by Brian Barr Solicitors, specialists in fibromyalgia claims, also acting pursuant to a CFA. However, in February 2013 Miss Pattani dispensed with their services and has since then conducted the proceedings in person, including representing herself during the six-day trial of the action.[5]Given that Miss Pattani has no legal qualifications or experience and suffers from chronic pain and fatigue, it was a difficult and no doubt daunting task for her to conduct such a substantial trial in person, including cross-examining nine witnesses of fact and three expert witnesses called by the bank. Nevertheless, with the benefit of regular breaks and other reasonable adjustments (and, it seems, some informal legal advice) and the cooperation of Mr Vandyck, counsel for the bank, Miss Pattani succeeded in putting her case and challenging that of the bank and did so with no little skill and considerable force. I was satisfied that the trial process was fair and that the parties were, as far as practicable in the circumstances, on an equal footing.

The background facts and essential chronology

[6]The bank is a public company regulated by the Prudential Regulation Authority and the Financial Conduct Authority. It is a subsidiary of ICICI Bank Limited, a company incorporated in India. In 2006 the bank operated from five branches in England. A sixth branch, in Birmingham, opened in May 2007.[7]On 2 March 2006 Miss Pattani, then aged 25, started employment with the bank as an operations agent in retail banking at its Wembley branch, including working as a cashier. On 15 January 2007 Miss Pattani was re-assigned to the bank’s headquarters at 21 Knightsbridge, London, to work in the marketing department. At that time the only other member of the department was Prashant Maharshi, the Marketing Manager. Mr Maharshi resigned on 30 April 2007 and left the bank one month later.[8]Miss Pattani asserts that, after Mr Maharshi resigned, she effectively assumed his role as the bank’s Marketing Manager. The bank disputes that that was the case, contending that Mr Maharshi’s role was temporarily undertaken by Anubrata Biswas, then the Head of London Branches, Retail Products and Marketing, until a new permanent Marketing Manager, Prashant Gupta, was appointed in September 2007. The bank points out that Miss Pattani was at all times a Grade E0 officer, the bank’s lowest level of employee, whereas the Marketing Manager’s role was Grade E4.[9]It is not necessary for me to decide this issue, the relevant question in these proceedings being the nature and extent of the manual handling undertaken by Miss Pattani, whatever else her role may have comprised or however her responsibilities may be categorised. In that regard, it appears to be common ground that Miss Pattani’s responsibilities included the following:(1) Dealing with deliveries of marketing materials (such as leaflets), mainly from India, and re-packaging those materials for distribution by courier to the UK branches. These would arrive in boxes or other packages delivered to the reception area and, if not taken to Miss Pattani’s desk in the open-plan office by the courier, would be taken there by Miss Pattani (and sometimes by others), where she would unpack the boxes and either re-pack the materials into courier bags or place them in a nearby cupboard. She would then take the courier bags back to reception for collection.(2) Packing marketing and promotional materials to be taken to corporate events, including 8ft banners. These events included the Zee Carnival in February 2007, an Asian Wedding and Fashion Exhibition, the launch of the Birmingham Branch and a Private Banking Art Show, all in May 2007, an event at the Nehru Centre and Private Banking event at the Wembley Arena in June 2007, and a Directors’ event at Le Meridien Hotel, Piccadilly in July 2007.[10]On 2 August 2007 Miss Pattani went on two weeks holiday leave, which was extended due to the death of her grandmother. On 28 August she visited her GP complaining of lower back pain and was certified as unfit to work. She did not return to the marketing department until February 2008, by which time the department had relocated to Alperton whilst a new Head Office was being prepared in Tower Hill, London. The Tower Hill office opened in November 2008, at which time Miss Pattani relocated there with the rest of the marking department, which by then numbered five persons.[11]Miss Pattani makes no complaint in relation to manual handling in the period from her return to work until 9 June 2009. On that date Miss Pattani was asked to assist in sorting and clearing documents in a storage room in advance of an inspection. The task involved reviewing the contents of lever arch files and determining what could be discarded, taking discarded documents to recycling sacks. Miss Pattani claims that this exercise involved considerable repetitive manual labour, including lifting heavy box files, which left her in severe pain.[12]The following day Miss Pattani was in any event due to work from home due to a tube strike, and she did indeed send a work email from home that day. Her case, however, was that the activities of 9 June 2009 resulted in her being unable to sleep that night and caused her excruciating pain the next day. She says that she was in constant pain for three days and bed-bound for ten days. She attended her GP on 19 June 2009 and has not thereafter returned to work. In April 2010 Dr Daniel Fishman, a consultant rheumatologist, expressed the view that Miss Pattani was quite probably suffering from fibromyalgia.

(a) The Regulations

[13]Although Miss Pattani correctly identified a number of duties owed to her by the bank as her employer, it is clear that the most directly relevant duties arise under the Regulations and that no other duty is wider or more onerous. Regulation 4(1) provides as follows:
“Each employer shall (a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or (b) where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured:- (i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them.. (ii) take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable, and (iii) take appropriate steps to provide any of those employees who are undertaking any such manual handling operations with general indications and, where it is reasonably practicable to do so, precise information on (aa) the weight of each load, and (bb) the heaviest side of any load whose centre of gravity is not positioned centrally” (a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or (b) where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured:- (i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them.. (ii) take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable, and (iii) take appropriate steps to provide any of those employees who are undertaking any such manual handling operations with general indications and, where it is reasonably practicable to do so, precise information on (aa) the weight of each load, and (bb) the heaviest side of any load whose centre of gravity is not positioned centrally”
[14]It will be noted that the obligation of an employer is not to avoid the need for employees to carry out any manual handling operation, but to avoid those where there is a risk of their being injured. Although it is established that such a risk need not be a probability, a foreseeable possibility being sufficient, in making such assessment there has to be an element of realism: Koonjul v. Thameslink Healthcare Services, Court of Appeal 28 March 2000, per Hale LJ at paragraph 11. Hale LJ then went on to state at paragraph 13:
“It also seems to me to be clear that the question of what does involve a risk of injury must be context-based. One is therefore looking at this particular operation in the content of this particular place of employment and also the particular employees involved.”
[15]Hale LJ also referred to the guidance on the Regulations issued by the Health and Safety Executive, which includes numerical guidelines. Whilst recognising that there is no threshold below which lifting is regarded as “safe”, the guidelines provide a risk assessment “filter”. If using the filter shows that the risk of an activity is within the guidelines, it is normally unnecessary to carry out any other form of risk assessment. According to the filter, lifting up to 16 kg in a standing position is “low risk” for 95% of women if the weight is held close to the body at waist level, assuming no more than 30 repetitions per hour. The filter specifies lower weights for lifting away from the body, or at awkward heights, and where carrying or twisting is involved.[16]Where lifting involving a risk of injury cannot be avoided, the obligation is to reduce the risk to the lowest level practicable. In Koonjul the claimant was a care worker who suffered a back injury when pulling a bed away from a wall. Hale LJ again emphasised that what is reasonably practical has be to be considered in context:
“There are innumerable tasks around such a home, and the idea that the level of risk involved (which I have already said was very low) should be met by a precise evaluation of each of those tasks and precise warnings to each employee as to how each was to be carried out, seems to me to take the matter way beyond the realms of practicability”
[17]Against that background, I now turn to consider the specific allegations made by Miss Pattani concerning the manual handling she was required to undertake whilst working for the bank.

(b) 15 January to 1 August 2007

[18]Miss Pattani’s evidence, supported by Mr Maharshi (in relation to the period prior to his departure) and Stuart Sykes (who sat opposite Miss Pattani in the Knightsbridge office) was that in 2007 she was regularly engaged in “heavy lifting”, in particular carrying heavy boxes that arrived on a frequent basis at Reception to her desk, passing through two-set of double doors on the way. All three also referred, in particular, to Miss Pattani carrying the 8ft banners for use at promotional events, which were rolled up into a tube with a shoulder strap so that they could be carried across the back. In contrast, witnesses called by the bank (Mr Biswas, Reshad Dhotivala, the manager of the Knightsbridge branch, and Gajendra Gupta, a product manager), disputed that Miss Pattani was ever engaged in heavy lifting: they said that the boxes delivered to the Knightsbridge office were not at all heavy and could in any event be unpacked at Reception. The bank’s witnesses also stressed that other staff would help carry the boxes from Reception and referred to there being a trolley available. Mr Biswas stated that he never saw Miss Pattani carrying one of the banners.[19]I am satisfied that, as part of her job, Miss Pattani did have to carry boxes from Reception to her desk on a regular basis and I accept her evidence that it was not generally practicable (or acceptable) for her to unpack them at Reception. Miss Pattani firmly refuted the suggestion that there was a trolley at the Knightsbridge office and, given the rather vague and inconsistent descriptions provided by the bank’s witnesses, I accept her evidence in that regard. I also accept that from time to time she carried banners to or at corporate events.[20]The only objective evidence as to the weight of the materials in question related to the corporate banners, which Miss Pattani described as weighing 3.1kg each, a figure agreed by the bank. During the trial Miss Pattani suggested that there may (at some unidentified point) have been new and heavier banners, but I reject that belated suggestion. Miss Pattani’s case as to the weight of the banners she was required to lift had been stated clearly and consistently since her first witness statement made in 2009 and her attempt to improve on that evidence was an aspect of her propensity to reconstruct events when they did not fit with her theory of the case, a propensity to which I shall refer in more detail below.[21]As for the boxes carried from Reception, Mr Sykes estimated that they measured about one foot long and 5 or 6 inches deep. This coincided to a large extent with Mr Biswas’ evidence that the boxes were about “1ft squared”. Mr Sykes thought that the boxes weighed less than one of the banners (that is, less than 3.1kg).[22]The only other pre-trial estimate of the weight of the items in question was provided by Miss Pattani to Mr Andrew Ransford, an Orthopaedic Consultant, on 30 October 2009. Mr Ranford, who was instructed by Miss Pattani’s then solicitors, recorded Miss Pattani’s account of how she put brochures into courier bags to be sent to regional locations and that “The courier bags were heavy. They weighed less than two kilograms but she had to lift them, sometimes two at a time, and take them to the reception area”. In cross-examination, Miss Pattani denied having given Mr Ransford those estimates, but is noteworthy that the report notes Miss Pattani’s detailed comments on its substance: there is no correction to Mr Ransford’s account of what he was told in this regard.[23]It will be apparent that the above evidence, originating from Miss Pattani herself and from her witness, Mr Sykes (as well as from Mr Biswas), does not support the fundamental contention that Miss Pattani was engaged in “heavy” lifting. The weights in question are a small fraction of those set out in the HSE filter, which are based on 30 repetitions per hour, considerably more than asserted by Miss Pattani. Even allowing for reductions to the specified weights to allow for carrying or twisting, the weights in the range suggested by the evidence in this case (between 2 and 3kg) are well below the level at which risk would be regarded as significant.[24]Miss Pattani’s response to the above was as follows. First, she maintained that many of the boxes she carried were larger and heavier than recollected by Mr Sykes, suggesting that some could have been 8-10kg. In particular, she referred to having on occasions to carry large boxes of T-shirts, requiring her to fully extend her arms to the side to hold the box. However, it was Miss Pattani’s own case, which she repeatedly emphasised, that Mr Sykes was well placed to see what she was carrying. I see no reason to doubt the reliability of his evidence as to the size and weight of boxes she carried. Further, if Miss Pattani occasionally carried boxes of T-shirts (not seen or recollected by Mr Sykes), there is no basis to find that these weighed anywhere near 16kg, particularly given that, according to Mr Ransford, Miss Pattani appears to have regarded items weighing even less than 2kg as “heavy”.[25]Second, Miss Pattani placed great emphasis on records showing the weight of consignments collected by the courier, UBX, from the Knightsbridge office during the relevant period, suggesting that the total weights supported her case. The bank referred to the same records to suggest that the average box weighed less than 4-5kg. In my judgment such records provide little if any evidence of the weight of individual items which may have been lifted or carried by Miss Pattani. The weight of total consignments leaving Knightsbridge reveals nothing about the weight of boxes arriving there, nor the weight of the individual packages left out for onward transport.[26]Miss Pattani relies, in particular, on a consignment of 10 February 2007, weighing 200kg, which was for delivery to Mr Maharshi in London W14. Miss Pattani asserts that this was the bank’s marketing material for use at the Zee Carnival, claiming that it demonstrates that she processed that amount of material in the Knightsbridge office prior to its despatch. She also complains that she had to take that material from the van to the bank’s stall at the venue because the contractors hired by her to assist, Here & Now, did not arrive on time. She therefore asserts that she carried a total weight of 600kg (transporting 200kg twice in the office - to and from her desk - and once more at the venue). However, and as stated above, the total amount of the consignment does not assist as to the weight of individual items. It does not even give much assistance as to the burden imposed on Miss Pattani in the office, particularly as the timescale over which any such lifting occurred is unknown and given that in February 2007 Mr Marhashi, as he testified, assisted Miss Pattani with moving materials. As for what occurred at the venue, Miss Pattani’s account is open to considerable doubt given that after the event she emailed Here & Now praising their performance, making no mention of their alleged failure to assist with unloading the van. But in any event, it is difficult to see how the bank can be held responsible for the failure of contractors to attend or for Miss Pattani’s decision to undertake the lifting herself in their absence.[27]It is also noteworthy that there is no evidence of any contemporaneous complaint by Miss Pattani about being required to lift or carry heavy items. That is particularly telling in her case because, as she readily accepted, she frequently and robustly raised issues and made complaints concerning her job and conditions. These included raising(i) that the amount of stationery ordered through her was time consuming(ii) that there was a broken shelf in a cupboard(iii) that a set of drawers delivered to her had dirty fingerprints(iv) poor service to her by a courier(v) the state of the ladies’ toilet and toilet bins and(vi) that it was embarrassing that chairs were taken on a first-come basis in the board room and went missing. In that context it seems inconceivable that if Miss Pattani had indeed considered that she was being expected to lift and carry heavy items, she would not have raised the matter promptly and forcibly, particularly given that (as discussed further below) she had a history of back issues prior to working for the bank.[28]In cross-examination Miss Pattani alleged, for the first time, that she had in fact sent an email to Mr Dhotivala complaining about pain from lifting, but that it had not been disclosed by the bank. Her explanation for not raising the point before was that this was a deliberate ploy on her part (to which her solicitors were party) designed to lull the bank into a false sense of security so that it would not delete the email. That explanation, which is flawed on numerous levels, lacks any logic and all credibility, not least because the alleged ploy was pointless unless Miss Pattani demanded production of the document at some point, which Miss Pattani of course did not do. I can only conclude that the suggestion was a belated attempt to explain why there was such a notable absence of contemporaneous complaints from her as to heavy lifting.

(c) 9 June 2009

[29]Miss Pattani’s case is that on 9 June 2009 she emphasised to Pooja Misra (Mr Gupta’s successor as Marketing Manager) and Natasha Mitra (the Head of Marketing and PR) that she could not lift because of her back injury, but was nonetheless required by them to review documents which necessitated lifting “heavy box files full to the brim”. Her evidence was that she was very careful how much she chose to lift, but that by the fourth box file she felt significantly uncomfortable.[30]Mrs Misra denied asking Miss Pattani to undertake any lifting, stating that she was merely asked to open files on shelves and to sort through documents. Both Mrs Misra and Ms Mitra stated that Miss Pattani made no complaint about lifting and left that day without complaining of any pain. Ms Mitra, on learning of Miss Pattani’s complaint, went to examine the files in question and expressed the view that they were no heavier than “a plate of food”.[31]Miss Pattani’s own account of the incident to Mr Ransford in October 2009 once again tends to support the bank’s case rather than her own. Mr Ransford records the following:
“They were upright lever arch files on a shelf. She had to lay them down and take out the contents. As she was doing this, she could feel a burning sensation in her back from the poor posture that she was obliged to work in. She agrees that she did not pick up anything terribly heavy.”
[32]Further, on 11 June 2009 Mrs Misra telephoned Miss Pattani at home, as a result of which discussion Mrs Misra completed an Accident Report on 19 June. That report made no mention of Miss Pattani having experienced problems lifting files, but referred to Miss Pattani having dragged a garbage bag containing her waste paper from her desk to the marketing cupboards and recorded that “Shilpa said that she suffered a back injury due to dragging the bag”. I have no reason to doubt that the report reflects what Miss Pattani told Mrs Misra on 11 June 2009.[33]I am entirely satisfied that the bank’s version of events is to be preferred and that Miss Pattani was not asked to (and did not) lift anything of any significant weight on 9 June 2009. It is common ground that Miss Pattani was not expected to lift anything after her return to work in February 2008 and there is no reason to believe that the bank suddenly departed from that considerate approach on 9 June 2009. The evidence, including Miss Pattani’s own account to Mr Ransford, clearly demonstrates that she was engaged in moving papers, not lifting heavy files.

(c) Summary

[34]In the light of the evidence above, I am entirely satisfied that the tasks required of Miss Pattani by the bank in 2007 and 2009 did not involve heavy lifting or indeed any lifting which involved a risk of injury. Even if, contrary to the above, there was a very low risk of injury, such risk arose in the context of everyday office or clerical work, where the precise evaluation of each and every task of lifting or moving papers and files would be beyond the realms of practicability. The bank was therefore not in breach of the Regulations, nor did it breach any of the other duties it owed to Miss Pattani.

Whether any “tortious” lifting caused Miss Pattani’s injury and/or condition

[35]If I am wrong in my findings above and the bank did breach its duties in relation to manual handling tasks undertaken by Miss Pattani, the further question arises as to whether any such handling caused or materially contributed to the back injury of which she complains or the development of fibromyalgia from which she now suffers.[36]It is common ground that Miss Pattani was involved in a road traffic accident in August 2002, as a result of which she suffered back and neck problems. She made a claim in relation to her injury, but retains no documents in relation to it. Her evidence was that the claim was settled at the end of 2004 or in 2005 for about £8,000 or £9,000.[37]She was examined on 28 April 2003 by Mr Graham Belham, a consultant orthopaedic surgeon, who wrote to Miss Pattani’s GP in the following terms:
“I have to say that I found her symptoms rather extravagant at this stage after a relatively minor injury but her neck purports to be extremely stiff indeed. In fact she held it entirely rigid when I examined her although her movements in and out of the consulting room demonstrated that there is somewhat more flexibility than this. She also appears to have quite extravagant tenderness around the whole of the posterior aspect of her neck. There is no neurological abnormality”
[38]Miss Pattani’s case is that she had entirely recovered from the accident some considerable time before she started working for the bank and indeed, in a letter to her GP’s surgery in 2009, stated that she had been symptom free during her last year in university (September 2003 to July 2004). She explained attending a consultation in February 2004 with another consultant orthopaedic surgeon, Mr Michael Sullivan, on the basis that “it had been almost 2 years and I hadn’t undergone a medical for the accident”.[39]However, the documents suggest a rather different position:(1) Mr Sullivan’s letter to Miss Pattani’s GP dated 13 February 2004 states that Miss Pattani “continues to have unremitting dorsal back pain”.(2) On 25 January 2007, only ten days after starting at the Knightsbridge office, Miss Pattani emailed Mr Maharshi as follows:
“I confirm that I do have an ongoing back injury as a result of a whiplash injury and would request a risk assessment conducted on my seating.”
When cross-examined about this email Miss Pattani said that she did not in fact have an ongoing injury in January 2007 and that his email was “a mistake”. However, this email is a clear reference by Miss Pattani to her 2002 car accident, and the request made of Mr Maharshi is justified on the basis that she had an ongoing back injury as a result. It cannot be brushed aside as a mistake. (3) On 4 April 2007 Miss Pattani sent an email to her colleague, Gajendra Gupta, with advice as to treating his bad back. She concluded:
“Trust me from someone with years of back pain, it helps. Other things, ibroprofin (sic) gel from the chemist, awesome! and hot water bottle every hour”. (4) On 2 June 2007 Mr Dhotivala emailed Miss Pattani, asking her to place brochures in the storage cupboard. Miss Pattani replied that she had a back injury, so would appreciate help. It seems clear that this was a reference to the “ongoing” injury, not a new one. (5) Notes of her visit to a physiotherapist at her GP’s surgery on 19 June 2009 record that Miss Pattani had a “4 year history of back pain with several acute episodes of pain over the years.”
Miss Pattani subsequently wrote to the surgery challenging the accuracy of that entry, but it is entirely consistent with (amongst other things) her own email to Mr Gupta two years earlier.[40]In my judgment it is entirely clear from the above documents that, when Miss Pattani moved to the Knightsbridge branch in January 2007, she was already suffering symptoms which she attributed to a back injury caused by the 2002 road accident.[41]I am also satisfied that Miss Pattani’s recollection of her physical condition in 2007 is unreliable (although genuinely held), having been superseded in large part by a process of reconstruction, informed and directed by the theory, of which she has convinced herself, that the lifting and carrying materials that year caused her ailments. That process of reconstruction is evident from her attempts to explain away the documents referred to above, but also from her case as to the onset of her back symptoms in 2007. Miss Pattani’s original case in that regard, advanced in 2009, both in her pleadings and her first witness statement, was that she began to experience pain in her back and related symptoms in April 2007. However, at trial her case was that symptoms had in fact started shortly after she moved to the Knightsbridge office in January 2007. She derived that revised case from(i) her email to Mr Maharshi of 25 January 2005 (referred to above), re-interpreting it as referring to new back problems rather than an ongoing injury and(ii) the weight of courier consignments collected from Knightsbridge in January 2007. Self-evidently, neither factor justified Miss Pattani revising her case to allege that she starting suffering back problems in January 2007 because of heavy lifting.[42]Given that Miss Pattani made no secret in early to mid-2007 that she had a (pre-existing) back injury and was willing to assert her vulnerability and her rights in that regard (hence asking for a risk assessment of her seating), it is notable that at no time in the period January to August 2007 did she make any assertion in writing that she was suffering from back pain or related symptoms, let alone as a result of manual handling. Further, when she went on leave on 2 August 2007, she utilised her holiday entitlement and then compassionate leave. It was almost a month before she attended her GP complaining of lower back pain, casting serious doubt on her evidence that she had asked Mr Biswas for time off because she was in a lot of pain. Having had an extensive opportunity to assess Miss Pattani during the trial, including considering her correspondence during the relevant period, I have no doubt that, had she experienced pain or other symptoms which she attributed to manual handling, she would have voiced those concerns directly and forcibly and would have taken sick leave (as indeed she has done for many months since 2009).[43]As far as expert evidence is concerned, both of the experts in rheumatology and the bank’s expert in psychiatry, Mr Fahy, expressed the view that Miss Pattani had a pre-existing vulnerability and propensity to develop chronic pain problems, such as fibromyalgia, which could be precipitated by trauma but which, in the majority of individuals, develops spontaneously. Dr Cutting, the expert in psychiatry called by Miss Pattani, did not agree, but accepted that there was a “quorum” for that view and that it was reasonable. The defendant’s experts expressed the firm view that Miss Pattani’s history demonstrated that her condition was not work related, in particular noting that she did not visit her GP until she had been on leave for several weeks. Dr Fishman, the claimant’s expert in rheumatology, expressed his view that, on balance, the development of fibromyalgia in Miss Pattani’s case was work related, but that even then the cause could be stress at work rather than manual handling. The trigger could equally be bereavement, such as Miss Pattani experienced in August 2007.[44]In the light of the evidence, I find that, even if Miss Pattani did undertake significant manual handling at the bank, the symptoms of which Miss Pattani complains, and condition which has developed, were not on balance caused or contributed to by such handling, but were the spontaneous onset of a pre-existing condition or were otherwise triggered by stress or emotional trauma.

Conclusion

[45]Miss Pattani’s claim is therefore dismissed. Given that Miss Pattani has failed to establish either breach of duty or causation by reason of my findings of fact, I do not propose to deal with the various permutations which were investigated by the parties and their employment experts on the issues related to damages.[46]Three of the medical experts expressed the view that the cessation of this litigation would be an important factor in any improvement in Miss Pattani’s condition. I agree with their view that Miss Pattani has become fixated on this case and share their hope that she will now move on and make significant progress in returning to good health and will resume her career. In that last regard, I should add that Miss Pattani showed considerable intellectual and presentational abilities during the course of this trial, as well as a strong personality, traits which will stand her in good stead when she is able to resume work.