Personal injury lawBy Simon Allen, Russell Jones & Walker, London

Upper limb disorder of diffuse nature and burden of proofGallagher v Bond Pearce, Judge Tyzack QC, Bournemouth County Court, 9 February 2001The claimant worked for the defendant solicitors as a secretary between 1986 and 1995.

She suffered from pain in her shoulder, together with severe pain to her right wrist and forearm, but with no discernible pathology.The firm was in breach of regulations 2, 3 and 4 of the Health and Safety (Display Screen Equipment) Regulations 1992 with its RSI risk assessment under those regulations described as 'manifestly inadequate' by the judge.The case is of interest in relation to causation.

The claimant had 'no evidence of any physical signs or injury' according to her own expert.

Nevertheless, he said she was suffering from an organic (physical) condition of diffuse pain.

The defendant's doctor said there was a 'chance' of her condition being work-related, but no greater than 5 to 10%.The claimant's doctor won the day by persuading the judge that his taking of a careful history and eliminating all other causes/ explanations meant that it was possible to find that the claimant had a work-related condition.While there is confusion within the transcript as to whether the judge was referring to the previous upper limb disorder case of Pickford v ICI [1998] 1 WLR 1189 or Alexander v Midland Bank Plc [1999] IRLR 723, he seems to have made an error in leaping onto one side of the causation fence rather than the other when offered two explanations for her symptoms.

In this he failed to follow the authority of Lord Hope in Pickford, namely that 'there is another route, and that is that the claimant has not discharged the burden of proof'.

The judge relied on Alexander and the Court of Appeal's approach that in the absence of psychogenic cause there is a strong inference that it is organic.The fact remains that in Gallagher there was neither physical or psychiatric symptoms.On the face of it, there is no proof of injury.

It is therefore difficult to see how the judge could make the jump in finding that work had caused the symptoms.It is unfortunate that the Alexander case did not proceed to the House of Lords for its consideration of a decision that still troubles some personal injury lawyers as an unhappy shift in the positioning of the burden of proof.