B2/2000/0607

Neutral Citation Number: [2001] EWCA Civ 1025
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WATFORD COUNTY COURT
(HIS HONOUR JUDGE ANSELL)
Royal Courts of Justice
                                         The Strand
                                         London

Thursday  21  June  2001
B e f o r e:

LORD  JUSTICE  TUCKEY

and

LADY  JUSTICE  ARDEN

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B E T W E E N:

PRAVINA  KARIA
Appellant/Claimant
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ICS (MANAGEMENT) SERVICES LTD
Respondent/Defendant
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(Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4A 2HD
Telephone 020 7421 4040
Official Shorthand Writers to the Court)
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MR PAUL RANDOLPH (instructed by the Bar Pro Bono Unit, London WC1R) appeared on behalf of THE APPELLANT

MR D PLATT (instructed by Messrs Berrymans Lace Mawyer, London EC2M 5QN) appeared on behalf of THE RESPONDENT
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J U D G M E N T
Thursday 21 June 2001
1.	LORD JUSTICE TUCKEY: This is an appeal from the judgment of His Honour Judge Ansell given in the Watford County Court in which he dismissed the appellant, Mrs Karia's, claim for personal injuries and ordered her to pay indemnity costs. He did so after the claimant and her technical expert had given evidence. The essential complaint is that in doing so he did not decide the real issue in the case. The history of the proceedings and what happened at trial is therefore at the heart of this appeal. 
2.	The appellant was employed by the respondent as a data input clerk. For this job she had to work at a computer word processor keyboard. The particulars of claim settled by counsel on her behalf said: 
“The Plaintiff commenced work .... in 1989. She wrote to her supervisor complaining of pain in her right hand on February 12th 1993. She repeatedly complained verbally that the computer felt stiff to use. By July 1993 she reported that the pain was severe enough for her to take pain killers in order to keep on working. She lost her job [on 14 February 1994] since she was no longer able to work effectively on the keyboard. The pain was due to Repetitive Strain Injury.”
3.	Allegations of breach of statutory and negligence of the kind typically found in such claims followed. The particular allegations included the fact that the design of the keyboard was such that, given the nature of the claimant's work, she was working almost constantly (particularly using her right hand), at too high a speed with time deadlines and that her work involved constant, fast and repetitive keyboard movements for an excessive number of hours daily and/or weekly. 
4.	The amended defence denied all the allegations made in the particulars of claim, but at paragraph 6B said: 
“Further, the Defendant acted reasonably when the claimant made her initial allegations of pain in her hands, wrists and arm. 
(a) The Defendant investigated the allegations of victimisation by the Claimant. The Claimant made clear that her complaint against the Defendant was not in relation to the system of work, but that a person or persons unknown were tampering with the software/keyboard in such a fashion as to slow the operation of the keyboard down and/or alter the operation of the cursor. It was this that she alleged gave rise to her symptoms. The Defendant thoroughly investigated but could find no evidence of such victimisation.
(b) The Defendant supervised the operation of the keyboard when the Claimant was working at data inputting. At no stage did the alleged keyboard defect manifest itself and the Claimant alleged that the defect only re‑appeared when employees of the Defendant were not monitoring her. 
(c) The Defendant offered to change the work station, keyboard, identification code and password of the Claimant. 
(d) The Defendant took advice from software experts .... who advised it that such manipulation of the system to the disadvantage of the Claimant was not possible. 
(e) In the premises, the Defendant reasonably and correctly concluded that the allegations of harassment were a figment in the Claimant's mind.” 
5.	Those amendments to the defence were made at the end of 1999, a few months before trial. However, the allegations made by the appellant had been foreshadowed in her witness statement, which had been provided earlier, and in a letter which she wrote to the respondent's solicitors in February 1999, where she said: 
“As alleged in my statement, I will be charging [and she named five of the respondent's employees] for plotting conspiracy against me. I am also accusing them of alleged discrimination and harassment at the work-place. By sabotaging and intruding my computers, altering system priorities for individual users and tampering my system, by slowing the response of the system and thus making keys go hard and stiff; also stopping the automatic display of the data coming up on my screen, with the intention of causing bodily harm and causing health hazards and thus causing disabling injury. 
In spite of making my employers aware of the victimisation and also the health hazard and danger created to me, failure by the employers to take any action to stop this health hazard has created this injury and the consequence of inaction is injury.” 
6.	The case started before Judge Ansell on 17 January 2000, when the appellant was represented by counsel (not Mr Randolph who appears for her today). When introducing the issue of liability to the judge, counsel said: 
“.... the issue has narrowed somewhat in that the claimant's allegations against the defendant will focus on the keyboard and computer terminal that she was using and the way in which she will contend that was interfered with..... She maintains that the keyboard was programmed in such a way as to be stiff in its operation so that she had to press it very hard.... the way in which her particular software operated was also tampered with so that when she came to enter the various slips on the screen she was forced to use an excessive number of keystrokes.” 
7.	Counsel elaborated a little on the way the computer worked and the way these difficulties were experienced by the appellant. The judge then said: 
“If I reject these, if I can call them discrimination issues, is that an end to the case as far as liability is concerned? 
COUNSEL: Well, your Honour, l think it must be because it is her case that but for that interference she was perfectly able to do the work. 
THE JUDGE: So otherwise the system was safe, effectively? 
COUNSEL: Yes.” 
8.	The trial proceeded on that basis. The appellant's evidence in chief and her cross‑examination were confined to the harassment issue. Her expert said that it might be possible to interfere with a computer to produce some of the effects of which the appellant complained, but not a stiffening of the keys.
9.	The case was estimated to last for two days. Counsel had sensibly agreed that the doctors should be called on the second day because they were not agreed that the appellant had suffered any work‑related injury and there were a number of other important issues between them which could only be resolved by the judge after hearing their evidence. 
10.	After the appellant and her expert had given evidence on the first day (when it appeared to those present that the appellant had concluded her evidence on liability), counsel for the defendant invited the judge to dismiss the claim because it was bound to fail. The judge considered that submission without putting the defendant to its election. In his judgment, he reviewed the evidence of harassment. After noting that it was clear from the appellant's diary that she suffered from a persecution complex, the judge dismissed the allegation of harassment as “fanciful”. He said: 
“The court has to deal with facts and, no disrespect to Mrs Karia, she may indeed sincerely believe that these things have happened. I am sure that she does, but I am afraid the court cannot deal, as I say, with fancy. It has to deal with facts and she has to prove her case on the balance of probabilities, and to my mind one does not even get to that stage as far as her case is concerned. 
There is an additional legal problem as far as I am concerned, and that is the responsibility of .... the defendants in this case, for these acts..... 
.... 
For my part, I cannot possibly see how intentional conspiracy alleged in this case begins to be the responsibility of [the defendants] unless it is shown that they were part and party to it. And when it did come to their attention .... there were scrupulous attempts to change the software, change the ID, change the terminals on two occasions. And, moreover, these matters were thoroughly investigated in two disciplinary hearings .... And they certainly took it seriously.” 
11.	The principal criticism made by the appellant on this appeal is that the judge did not decide the real issue in this case. Mr Randolph says that the judge should have tried the claim set out in the particulars of claim. If he had considered the allegations made in this pleading, he should have realised that the appellant did have a case and should not have dismissed the claim when he did. He should first have asked whether the appellant had developed repetitive strain injury. Then, if so, whether this was a work‑related injury; and, if it was, whether the injury was caused by the negligence or breach of statutory duty pleaded against the defendants. He says that when counsel explained to the judge that the issue of liability had been limited, the judge should have confronted him with the fact that that was not what the case was about. He should not have allowed himself to be deflected on to the harassment issue, which was a side issue in the case. He should have brought counsel “back on to the straight and narrow” (to use Mr Randolph's words). 
12.	I cannot accept those submissions. Given what actually happened, I ask rhetorically: what else could the judge have done? Our system is adversarial. The judge will try the issues presented to him. At the beginning of the trial, counsel specifically abandoned the case which it is now said the judge should have tried. If the doctors had been there on the first day, the judge might have been able to reach some conclusion as to whether the appellant was or had been suffering from repetitive strain injury and whether that was a work‑related injury. That would still have left him with the issue of liability to resolve. The only basis upon which he was invited to find liability was the case based on harassment. Having rejected that case, the appellant's claim would have failed whatever his conclusions on the other issues.
13.	It is said that in any event the judge should not have proceeded to rule on the respondent's application without putting the defendants to their election. Mr Randolph relies on the recent case of Boyce v Wyatt Engineering, where the Court of Appeal said that a judge invited to rule on a claimant's case without putting the defendants to their election should proceed with considerable caution. But there is no doubt that the judge has power to do this in a suitable case, even if such cases are rare. 
14.	I think this was such a case. The judge was entitled to rule on the submission the case being presented depended upon the credibility of the appellant's assertion that she had been the subject of harassment. If the judge was unable to accept that assertion (as he quite plainly was not), then there would have been no point in him hearing any other evidence.
15.	Mr Randolph submitted that counsel was clearly in error in the way in which he confined the appellant's case. It is not for this court to consider whether or not that submission is right. This court is concerned with whether the judge in this situation should not have proceeded as he did. But perhaps it is not surprising that trial counsel felt that he had to present the case in the way in which he did. The defendant's evidence in answer to the allegations made in the particulars of claim was formidable. It was supported by an impressive expert's report from an ergonomist, Mr Wilkinson, which concluded: 
“The defendants have not breached any of the regulations. The equipment in use is satisfactory for its purpose and is well maintained. The system of work is satisfactory and the suggestion made by the claimant that only when she operated the system it became defective is totally groundless.” 
16.	The appellant had no expert of this kind to counter the views of Mr Wilkinson. 
17.	At the end of the day the question for this court is whether the judge was wrong to proceed as he did. For the reasons I have already given, I do not think his approach can be faulted. 
18.	That leaves Mr Randolph's fallback position, which is that assuming the judge was entitled to proceed as he did he should not have rejected the appellant's case as fanciful. Mr Randolph pointed to passages in the appellant's technical expert's evidence which supported the view that it was possible for someone to interfere with the computer in some of the ways in which the appellant alleged, and he relies also on the fact that the appellant's complaints about harassment were consistent. 
19.	The assessment of the appellant's credibility was for the judge who had the advantage of hearing her examined and cross‑examined for some time. Her allegations were, it seems to me, highly improbable, not least because she was unable to suggest any credible motive for the harassment she alleged. There was also the difficulty about vicarious liability to which the judge referred which I think presented an insuperable obstacle to the case of harassment. 
20.	I can see no basis for saying that this court should interfere with the findings which the judge made on the issues which he decided. Therefore I do not accept Mr Randolph's fallback position. 
21.	For those reasons this appeal must be dismissed. 
22.	LADY JUSTICE ARDEN: I agree that the appeal must be dismissed for the reasons which Tuckey LJ has given. I would like to add some short observations of my own. 
23.	Mr Randolph for the appellant (who did not appear below) has argued this matter with skill and taken every point that could be taken. He has not referred us, however, to Article 6 of the European Convention on Human Rights, to which further protection is given under domestic law by the Human Rights Act 1998, perhaps because the order of the judge was made before the commencement date of the relevant provisions of that Act. I am prepared to assume in the appellant's favour that she could rely on Article 6 on this appeal, giving her right of access to court. 
24.	The question which then arises in this case is whether the appellant was denied a right of fair trial in respect of the determination of the arguments which were not put before the court. No objection was made to the court after judgment was given that the judge could not dismiss the case because he had not decided a number of other issues. A possible inference is that in restricting his case as he did, counsel was acting upon instructions. Certainly the contrary has not been suggested. 
25.	Mr Platt, who appeared at the trial (and who appears for the respondent today) points out in his helpful skeleton that there were real reasons why the claimant could not succeed. These have been referred to by Tuckey LJ. Mr Platt also says that any allegations about the “normal” system of work were abandoned. It was on this premise that the case was tried. 
26.	In the light of the points which Mr Platt has made and which my Lord has made about the difficulties of the claimant's case, it is by no means clear that the course which counsel took in this case on behalf of Mrs Karia was necessarily prejudicial to her. In addition, she was at the trial; she gave evidence and no doubt she gave instructions.
27.	As I say, we have not been referred to Article 6 or any Convention jurisprudence. However, I would observe that in the recent case of TP and KM v United Kingdom (Application no 22945/95, European Court of Human Rights, 10 May 2001) the applicants sought, among many other contentions, to rely on a point which they had not argued in the English courts. The claim in the English proceedings arose of alleged negligence on the part of a local authority in taking a child into care. In the proceedings before the European Court of Human Rights the applicants argued that if they had contended in the English proceedings that the local authority owed them a direct duty of care as well as asserting that the authority was vicariously liable for the acts of a social worker and a psychiatrist, the House of Lords would have applied an exclusionary rule and denied them access to court in respect of their claim. The European Court of Human Rights held that since the ground in question was not relied on in the domestic proceedings the Court could not speculate as to the basis on which the claims might have been rejected if they had been so formulated (Judgment para 101). Although the situation in that case was not identical to the situation in the case before this court, the decision provides some support for the proposition, which I consider to be correct, that in general a party cannot complain under Article 6 of the Convention that the court did not adjudicate on a point which he chose not to put before it. However, as I have said, the point has not been argued in this case. 
ORDER: Appeal dismissed with costs.