The claimant had cervical spondylosis, triggered by a fall in the street in 1990. She had suffered with intermittent flare-ups from that time.

In 2000 she had time off work for neck pain. A risk assessment by the defendant “agreed to minimise the risk of aggravation, C should be provided with a special chair, and a stand to raise her computer screen”.

The chair provided did not remove the problem with the claimant’s neck but better supported her and she felt more comfortable. It slowed the development of C’s condition. C had no further time off work.

In 2002, the claimant was 56. The underwriting department was being transferred elsewhere. C had a choice to either resign or retrain and opted to retrain.

The retraining took place at an external venue over five weeks. She made repeated complaints and requests for her chair but it was not until the last three days of the course that it was provided.

Even then, the arms of the chair would not fit under a new desk at her work station so she was a further distance from keyboard.

She felt increasingly severe and disabling neck pain.

The defendant argued there was no duty on them to risk assess the training desk as it was only being used for a short period of time for training, she had been provided with a chair that the jointly instructed ergonomic expert told the court was ergonomically sound. She may have felt genuine pain but that was related solely to psycho-social factors due to re-training and her job being in jeopardy and the pain was co-incidental with the change in chair.

Both medical experts accepted there was no pathological change or organic explanation for her increased pain.

But the claimant’s expert said she was on a physical knife edge and therefore, although differences in the chairs were very small, they would be significant to this individual.

The Judge found:

1. There was physical pain despite the absence of pathological change. Increased pain still amounted to an injury.

2. Causation: there were two temporal coincidences between the work and the injury – working at a new work station without a chair and working in a new environment, struggling to cope with a new job and worry about job security.

The absence of a chair was a far stronger explanation for the injury than psycho-social factors. It did not take long for unfamiliar arrangements to generate pain.

The Judge found on common law negligence rather than the pleaded DSE Regs.

The defendant had failed to respond to complaints and a request for the chair.

The implication that health & safety can be suspended for a short period of time was wrong.

£2,000 was awarded for the brief period of exacerbation of the injury.

Kelly -v- Aviva PLC, 20 September 2006, Keighley County Court.