Personal injury law

Work related upper limb disorder - fibromyalgia

Hadoulis v Trinatours Ltd (2002) 1 October

In Alexander v Midland Bank 2000, JPIL issue 2, the Court of Appeal found in favour of the claimants in respect of a diffuse condition, fibromyalgia.

The court found for the claimants because their symptoms had to have either a physical or a non-physical explanation, and once the non-physical explanation had been rejected they succeeded.

Additionally, the case was put forward on the basis that the cause of the claimants' symptoms was multifactorial and, following Bonnington Castings v Wardlow [1956] AC 613, providing they could demonstrate a breach of the duty of care had made a material contribution to their injury they should succeed.

Ms Hadoulis also suffered from fibromyalgia.

She worked for a travel company and claimed to spend up to 10 hours a day seated at a computer work station.

She performed 7,000 keystrokes an hour and her witness statement painted 'a picture of continuous, grinding work at the computer for many hours a day with continuous input and keystrokes'.

Sadly, for Ms Hadoulis, this evidence was not accepted.

The ergonomists and doctors for both parties agreed that the keyboard rate 'did not in any way' present a hazard to the claimant.

The judge found her answers evasive and in fact the keystroke rate in itself was described as 'a huge overestimate'.

She relied upon statutory breaches of the Health and Safety (Display Screen Equipment) Regulations 1992 and the Work Place (Health, Safety and Welfare) Regulations 1992.

While there was no analysis of the workstation under the display screen regulations and no training provided in the operation of the computer, the judge found that neither had caused her condition.

Additionally, the workstation did not demand a posture that was likely to cause injury.

The chair, which clearly did not comply with the regulations, was not capable in itself of causing fibromyalgia according to the doctors and the ergonomists.

However, it was her evidence which was her undoing as the condition of fibromyalgia has no physical pathology and, therefore, both doctors based their opinions on what the claimant had told them.

Once the court started to question the accuracy of the claimant's evidence, the medical picture described by her own experts was likely to unravel.

This case demonstrates various important points in relation to upper limb disorder cases:

- A keystroke rate of 7,000 per hour is not foreseeably likely to cause injury.

A figure of around 10,000 keystrokes per hour is more likely to be accepted.

- Breaches of the 1992 regulations are of little consequence if they are not causative.

- To succeed with diffuse conditions, the claimant's evidence must be accepted as the doctors are reliant upon its accuracy in making their diagnosis.

- Natural breaks can all too readily defeat a claim of heavy unbroken keyboard use.

Ms Hadoulis's tasks included operating a fax machine, filing of documents, filling in forms, making telephone calls, dealing with clients visiting the office and printing from the computer.

- Most upper limb disorder cases succeed on the basis of lack of warnings.

This aspect didn't feature in this case and the likely reason is that the claimant saw her general practitioner within weeks of the symptoms starting in the spring of 1998.

Diffuse upper limb disorder cases are difficult to run.

The judgment of Lord Justice Stuart Smith in Alexander must be read.

However, more importantly, the claimant's evidence must be accurate, consistent and resistant to attack under cross-examination.

By Simon Allen, Russell Jones & Walker, Sheffield