Alexander v Midland Bank Plc (Lancaster v Midland Bank Plc, Mulholland v Midland Bank Plc, Osler v Midland Bank Plc, Rolfe v Midland Bank Plc)

In an occupational injury claim, the claimant retains the burden of proving injury and causation on the balance of probabilities. Where the evidence presents a genuine choice between two identified explanations, the judge may assess both and select the more probable explanation; the burden does not shift merely because one alternative is weak. The absence of presently identifiable pathology does not establish that pain is psychogenic where consistent symptoms, work exposure and expert evidence support a physical cause. Adequate breaks from repetitive, high-pressure work may be necessary to control a known risk of upper-limb injury. Statistical documents offered to prove the adequacy of breaks require proper evidential explanation. Psychiatric injury is not inherently irrecoverable where it is a reasonably foreseeable consequence of breach; the central issue is causation.

Five former part-time encoders appealed against judgments of His Honour Judge Byrt QC in the Mayor’s and City of London County Court dated 22 May 1998. Each claimant had been awarded £7,000 general damages, plus special damages, for work-related upper-limb injury sustained during repetitive cheque and voucher encoding at the bank’s Frimley centre.

The trial judge found that the work was performed at intense speed and pressure, without adequate opportunities to relax, and that the claimants’ fibro-myalgia was physical rather than psychogenic. He found breach of duty and causation, while rejecting a separate footrest breach as causative. The bank challenged the burden and evaluation of medical proof, the findings on work breaks, negligence and causation, and the treatment of psychiatric injury. The central issues were whether the physical explanation was proved and whether the working regime caused the injuries.

1. Appeals dismissed. The court upheld the awards and the trial judge’s findings on breach, causation and knowledge of risk. The appeals on damage were abandoned. The order was appeal dismissed with costs.
2. Per Lord Justice Stuart-Smith, the burden of proving a physical injury and its causation remained on the claimants. The judge was entitled to treat the medical issue as a choice between physical and psychogenic explanations where no third explanation was advanced. He was therefore entitled to assess the strength of the psychogenic case first. The Popi M [1985] 1 WLR 948 did not govern: that case concerned an evidentially incomplete range of possible explanations, whereas this case required a choice between two identified alternatives.
3. The absence of a precise pathological or anatomical explanation did not justify a presumption that the condition was imaginary or psychogenic. Consistent symptoms temporally related to the work, the ergonomic evidence, the absence of indicators of psychological vulnerability and the evidence of Dr Mowatt and Dr Robertson supported the finding of physical injury. The judge was entitled to evaluate expert opinion by considering its reasoning, consistency, care, responsiveness in cross-examination and independence, as described in Loveday v Renton [1990] 1 MLR 117.
4. The findings that the regime involved repetitive work under intensive pressure, sustained arm posture and inadequate breaks, together with the bank’s knowledge of the risk, were sufficient to support negligence and causation. The statistical schedules and the later work-pause document did not reliably establish meaningful breaks. They lacked explanatory evidence, and their recorded figures did not show opportunities to stretch and relax away from the workstation.
5. Stuart-Smith LJ corrected the trial judge’s view that psychogenic pain fell outside personal injury. Under Page v Smith [1996] 1 AC 155, psychiatric injury is recoverable where it is a reasonably foreseeable consequence of breach. Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 concerned secondary victims and did not impose a general rule for primary victims. Johnstone v Bloomsbury Health Authority [1992] QB 333 and Walker v Northumberland CC [1995] 1 CR 702 illustrated recoverable psychiatric injury in excessive-work cases.
6. Buxton LJ additionally held that unsupported statistical documents were hearsay and not evidence of the facts asserted. Properly explained and vouched-for survey material may be admissible and weighty, including through an expert report or survey. He noted the evidential safeguards in CPR Part 33.6 of the Civil Procedure Rules 1998.

• Court of Appeal: The appeals from judgments of His Honour Judge Byrt QC in the Mayor’s and City of London County Court dated 22 May 1998 were dismissed with costs. No citation for the county court decision was stated in the judgment.