Margaret Muir French v Phipson Nominees Pty Limited [1987] ACTSC 38 (9 June 1987)

SUPREME COURT OF THE ACT

MARGARET MUIR FRENCH v. PHIPSON NOMINEES PTY LIMITED
S.C. No. 169 of 1984
Negligence - Personal Injury - Damages for Personal Injury

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Davies J.(1)

CATCHWORDS

Negligence - Employer's liability - word processor operator in solicitors' firm - condition of repetition strain injury - duty of employer to take reasonable steps for the employee's safety - duty to provide safe equipment and safe system of work - breach of duty of care - no new question of principle

Personal Injury - condition of repetition strain injury whether condition exists

Damages for Personal Injury - no new question of principle

HEARING

CANBERRA
9:6:1987

ORDER

There be judgment for the plaintiff in the sum of $98,530.60 with costs to be agreed or taxed.

DECISION

In this action, the plaintiff, Margaret Muir French, a single person aged 32 years, seeks damages for personal injuries suffered while working as an employee of a firm of solicitors, or more strictly of their service company. The partners of the firm were directors of the service company and it is not suggested that any significance arises from the presence of the service company in the events that occurred. It is convenient if I refer to the defendant as "Phipson's".

2. The plaintiff was a word processor supervisor and operator and seeks damages for a condition earlier called tenosynovitis, subsequently called repetition strain injury or RSI and more recently termed occupational strain injury. The issues raised in the action include whether there was a breach of the duty of care by Phipson's to their employee, whether there is such a condition as RSI, if I may call it that, and whether, if the plaintiff suffers from that condition, she does so as a result of Phipson's breach of care.

3. In about 1979, Phipson's installed four Wang word processors in a word-processing pool and some Wang data processors in a data-processing pool. The machines were similar save as to the specific functions they were designed to do. Each machine had a keyboard that was attached to the screen. The word processors were each placed on an ordinary office desk in a partitioned cubicle. The operators were provided with a standard type secretary's chair. No problems emerged from the operating of these machines until 1983.

4. The plaintiff, who was born on 10 October 1954, in Scotland, came to Australia in 1981 and joined Phipson's as a word processor operator in November 1981. At first, the hours of work were 9 am to 5 pm five days a week with one hour off for lunch. In 1982, Mrs S, one of the partners, became the partner having responsibility for overseeing the word-processing unit. At some stage, the hours of work were changed to 8 am to 5.15 pm four days per week with half an hour off for lunch. Subsequently, the plaintiff was appointed supervisor of the wordprocessing unit.

5. There is in evidence, Exhibit W, a document which lists the duties of the supervisor. These do not include word-processing. At all times, however, the plaintiff had to spend considerable time as an operator and I believe that she always understood that this was part of her duties.

6. At the time of her appointment, the plaintiff was a bright, energetic and efficient employee. Mrs S said in evidence that, when she (Mrs S) first commenced to oversee the word-processing unit, the plaintiff was capable, efficient and conscientious. Mr R, a partner, said in evidence that, when the plaintiff was appointed supervisor, she was a very capable, conscientious and zealous worker and an efficient word processor operator.

7. About the middle of 1983, Mr J. Grant, the clerk who supervised the data-processing unit, commenced to seek refurbishing of the furniture and surrounds of the data-processing unit. On 4 July 1983, Mr J was appointed office manager of Phipson's. Increasingly, thereafter, he took an interest in the functioning of the word-processing unit and in matters of furniture and the like. However, as he had not previously worked in a legal firm, it took him some time to familiarise himself with the operations of Phipson's. About November 1983, he took over Mrs S's responsibility of overseeing the word-processing unit.

8. From the time of her appointment as supervisor, the plaintiff found increasing strain in performing her duties. The plaintiff considered she had too much work to do. In part this was due to lack of other competent operating staff and in part because the word-processing unit was placed under pressure by partners and solicitors who wanted work to be done. The plaintiff frequently complained about the working of the unit. She complained that the work did not come in in a constant flow, that users wished their work done urgently. The plaintiff complained about the manner of dictation of some of the users. She complained that she was not given an adequate opportunity to organise precedents in the word processor memory storage, so that the work could be done more efficiently. The plaintiff complained of the competence of some of the operators and of her lack of time to teach them. She complained of work rosters, of mechanical failures and of the lack of availability of servicemen to carry out repairs. There were also complaints about the furniture, particularly the chairs, but probably the plaintiff complained more of organisational problems than she did of furniture and surrounds, though these factors played a part in what subsequently occurred.

9. In October 1983, one of the operators, Miss Jennifer Schoer, who had commenced working for Phipson's in 1982, went off work with the condition then called tenosynovitis. She has not since returned to work. Miss Schoer said in evidence that in July and August 1983, she noticed that her arms were becoming tired and it was hard to get her fingers moving. The problems were occasional at first and then appeared with increasing frequency. She said that she found the work hard and there was pressure as work was needed urgently. A doctor's certificate with respect to Miss Schoer's tenosynovitis was given to Mr J on or shortly after 27 October 1983. Subsequently, Miss Schoer went to her parents' home for a short holiday. Mr J requested that she return for an interview. She did so and brought with her pamphlets and other information respecting the condition of RSI which she had obtained. There was a conference in early November 1983 between Miss Schoer, the plaintiff and Mr J, Mr R and Mr McA, another partner. Subsequently, late in November 1983, there was another conference between Miss Schoer, the plaintiff, Mr R and Mr McA.

10. I need not attempt to reconcile all the conflicts in the evidence as to the content of these discussions or as to the events that occurred. There were exaggerations, overstatements and inaccuracies in the evidence of most witnesses as to these happenings. It is sufficient that, by the end of November 1983, the partners and Mr J understood that electronic keyboard operators tended to suffer tenosynovitis. They understood that many keyboard operators in the Australian Capital Territory had gone off work with similar conditions and that many claims had been lodged. They understood that matters of furniture and work practices were thought to be involved.

11. Mr J gave evidence that he took immediate steps to avoid like problems with other operators. However, most of these steps in fact occurred during 1984. In 1983, there may have been some advice or direction given to the word processor operators to take regular breaks, but such breaks were certainly not enforced and I accept the plaintiff's evidence that the pressure of work was too great to make them feasible. Indeed, I draw the conclusion that the pressures increased towards the end of 1983. In late 1983, Mr J made enquiries as to furniture and equipment.

12. Before Christmas 1983, another experienced operator, Ms Patricia Stevens, left Phipson's.

13. Towards the end of 1983, the plaintiff showed signs of distress. Mrs S said that, in her weekly meetings with the plaintiff, the plaintiff sometimes spoke quietly, sometimes forcefully and sometimes angrily. Towards the end of Mrs S's time as overseer, the plaintiff was fairly often angry. Mrs S thought the plaintiff was not coping with the stress of the job as well as one would have expected of a person with her responsibilities. From time to time, the plaintiff appeared to be excited and flushed and Mrs S could see that the plaintiff was not coping. Mr R and Mr J gave like evidence.

14. The plaintiff began to feel pains in her arms and shoulders towards the end of 1983. She hoped that over the Christmas break her condition would improve. However, on her return to work she found no improvement.

15. Mr J gave evidence of a discussion he had early in January with Mr R and the plaintiff. He said that the atmosphere was tense. The plaintiff put her case firmly and was close to tears. The plaintiff said in effect that she should be able to do her work as a supervisor and not be required to spend time or as much time as an operator. At an executive meeting attended by Mr W and Mr McA, two partners, and Mr J on 17 January 1984, the following was reported:

"2. Word Processing. The unavoidable wastage of

experienced WP operators, and their replacement by
a willing but less capable group has resulted in
Margaret French needing to devote most of her time
to acting as an operator in order to meet work
flow and volume, rather than performing her
supervisory tasks. She therefore has been unable
to progress operator training and system
housekeeping to facilitate fuller exploitation of
system capabilities. (J) and (R) have
comprehensively discussed the situation with
Margaret, and will aim to develop an economic
operator/work flow structure which will provide
time and opportunity to redirect the emphasis in
Margaret's activities towards supervision,
although she will still be required to act as an
operator from time-to-time to overcome traffic
peaks and meet urgent requirements. Initially (J)
will provide regular in-house operator assistance
and in February Margaret will re-assess
requirements on the basis of a normal workload
with two experienced part-time operators
available."

However, it does not seem that any step was actually taken to relieve the pressure on the plaintiff. The relationship between the plaintiff and the partners and solicitors continued to deteriorate.

16. In the middle of January 1984, an articled clerk, who had previously helped out with the word-processing on an occasional basis, undertook an increased workload of word-processing, no doubt in part because of anxiety to have work produced. She immediately suffered symptoms of pain and strain in her arms and subsequently sought medical attention.

17. Towards the end of January 1984, Miss Schoer, who was still disabled, was dismissed from the employment of Phipson's.

18. Mr J had, in the meantime, ascertained that there was a firm in Canberra that could separate the keyboard from the visual display unit of the Wang machines. At least one such separation, perhaps a trial separation, was probably effected in January 1984. In late January 1984, Mr J took the plaintiff and Mr Grant, the supervisor of the data-processing unit, to an office furniture store and selected appropriate ergonomic furniture. On 31 January 1984, a minute of an executive meeting of two partners and Mr J recorded the following:

"5. Workstation Furniture. (J), Jim Grant and
Margaret French have inspected ergonomic desks
available and have concluded that the one most
likely economically to meet our needs is
manufactured by Instant Office Furniture at
Fyshwick. The total cost of outfitting each
workstation with desk, chair and work support,
plus modifying the Wang screen by separating video
display and keyboard would be approximately
$1,000. Layout plans for both WP and DP areas
will be produced in an overall submission to the
partners. Removal of the partition screen from
the WP area will probably also be recommended."

Subsequently, Mr J prepared a submission to the partners which was approved by the executive committee on 14 February 1984 and later by the partners.

19. In the meantime, the week commencing 5 February was a particularly strenuous week for the plaintiff. On the night of Sunday the 5th she worked until late, on her evidence which in this respect was not challenged, from 4.30 pm to 1.30 am the next day to complete a job. She commenced work again on Monday the 6th at 8 am. In the afternoon she had such pain in her arms that she went to see a general medical practitioner, Dr Geoffrey Holt. On the following day, the plaintiff attempted to work but was unable to continue. On 9 February 1984, Dr Holt gave the following certificate:

"Margaret French is unfit for duty from 8/2/84 till
17/2/84 inclusive with tendosynovitis due to work
on keyboard."

The plaintiff presented that certificate on 9 February 1984. On 10 February 1984, the plaintiff lodged a claim for workers' compensation. It is interesting to note her shaky signature thereon. The claim form states,

"Injury occurred through continuous repetitious
keyboard operating, for long periods of time,
without a period of rest due to work pressure".

In his report to the insurer, Mr J described how the injury was sustained as follows, "Progressive development of pain and discomfort in fingers, hands and arms." and stated, "Ailment as described in claim form by employee . . ."

20. On 27 February 1984, Dr Holt gave the following report:

"(a) Margaret French first seen 6/2/84 with
history of pains & paraethesia volar aspects
of wrists, forearms with pain extending to
arms and shoulders, developing over recent
weeks. They improved over the long weekend
& relapsed on return to duty. She
complained of increasing work load with long
hours.
(b) Diagnosed as tendonitis due to work.
(c) Physio, disprin. Rest.
(d) NIL
(e) as above.
(f) Prognosis is impossible to state at this
time until her response to treatment is
seen. It appears to be a severe episode &
results tend to be variable."

The plaintiff was unable to return to word-processing and was dismissed as from 18 May 1984.

21. About the same time as these events occurred, another word processor operator, Annette Field, also went off work with tenosynovitis.

22. I turn now to examine some aspects of the facts in more detail. There is in evidence a selection of extracts from newspaper and journal articles during 1981, 1982 and 1983, with respect to tenosynovitis or repetition strain injury. In "The Age" newspaper for 12 March 1981, there was a report concerning a study to be undertaken by a Monash University research team and the Australian Public Service Association on tenosynovitis which, it was said, "can cripple the hands and fingers of workers who have to make quick, repetitive movements of their hands for long periods". The report stated, "Factory process workers have been worst affected, but with the introduction of new technology the disease has moved into offices.". In the April/May 1981 issue of the "APSA Review", put out by the Australian Public Service Association, there is a reprint of an article which had appeared in "The National Times" entitled "Risk in the Keyboard". A keynote headline was "Repetition injuries - a common one being tenosynovitis - have long been associated with the factory production line. Cases are now being recognised among clerical staff, particularly high speed keyboard operators". The two page article described problems arising from keyboard operation. An article which appeared in "The Financial Review" on 29 September 1981, was headed "Repetitive injury negligence claims will soar" and stated, inter alia, over four columns, that negligence actions mounted against employers by workers sustaining repetitive injury such as tenosynovitis were likely to rise dramatically. Similar statements about the increasing incidence of tenosynovitis appeared in "The Sunday Telegraph" of 25 October 1981 which commenced "A crippling disease normally associated with production line work is becoming a serious health problem within the Federal public service". On 3 May 1982, "The Sun" headlined the story, "New epidemic hits industry" and went on to state, "Tenosynovitis, a new epidemic sweeping Australian industry, now rivalled back injuries for the number of workers compensation claims." I take these to be simply examples of the information that was available prior to and during 1983.

23. That the problem was well-known medically in the Australian Capital Territory is indicated by the certificates for tenosynovitis which were given by general medical practitioners with respect to Miss Schoer and the plaintiff. Not much later, in June 1984, Dr Andrew Brook, a rheumatologist, reported of the plaintiff's condition.

"The diagnosis here is one of repetition strain
injury. The forearm findings being quite
characteristic of that seen in the dynamic type,
so frequently seen in keyboard operators. The
proximal findings have been called the static type
of repetition strain injury, but this not
uncommonly complicates the dynamic type. The rash
and the manubrio-sternal joint tenderness are not
seen in repetition strain injury and I would not
include these findings in the diagnosis. The
cause of the repetition strain injury is using
modern electronic keyboard equipment."

In the same month, Dr Arnold Mann, a consultant surgeon, reported,

"There is no doubt that Mrs French is suffering
from a repetitive strain injury, which for
medico-legal
purposes, is labelled tenosynovitis. This
is a descriptive title which is used for want of a
better one, as we know so little of the precise
mechanism of production of this condition,
excepting that it is associated to an alarming
extent with the use of word processors and other
electronic equipment."

24. Information obtained by Miss Schoer in October and November 1983, and which was handed by the plaintiff to Mr R, clearly described the general nature of the problem and what should be done. The problem was then being tackled by the Australian Public Service Association and by persons such as Mrs K.T. Tapsall, an occupational therapist. There was a body in the Australian Capital Territory entitled "ACT Tenosynovitis Support Group" which aimed to assist persons affected.

25. Mrs Tapsall, the occupational therapist, gave evidence that, during 1980 to 1983, she had a special interest in ergonomics. She said that keyboard clients commenced coming to her in Canberra in about April 1983 and by July 1983 she had six clients. There was a seminar in Sydney in July 1983 with respect to the problem. In late 1983, she put out an information sheet, one of the documents acquired by Miss Schoer and handed to Mr R. Mrs Tapsall said in evidence that the distinction between operating a word processor and operating a typewriter was that the operation of a word processor involved more movement in a static situation than did the operation of a typewriter. There was less variety in the tasks to be performed and word processor operators tended not to obtain natural rest and relaxation. Mrs Tapsall agreed in cross-examination that by the end of 1983 there was not much literature on the problem from classical or traditional sources.

26. Mrs P.M. Burton, the principal in Pamela Coward & Associates, solicitors, gave evidence that she had acquired word processors in 1978/79. She had then acquired a unit which included an ergonomic desk and had imposed time limits upon the periods during which an operator would use the machine. Mrs Burton's evidence demonstrates a point I believe to be correct, namely, that solicitors have understood that it is necessary to take an interest in the welfare of their employees, including those undertaking secretarial tasks.

27. Mr J.E. Gralton, solicitor, said that, in the early 1980's, he was Assistant Director of the Legal Aid Commission. During 1983 and perhaps earlier he collected information with respect to the growing complaint and in August 1983 sent a memorandum to the Director of the Legal Aid Commission on the subject. Mr Gralton produced a pamphlet entitled "A Safe and Healthy Job" which set out over many pages the Australian Public Service Association's policy for keyboard and screen environments. That pamphlet was published in April 1983 by the Association and set out desirable requirements for electronic keyboard workstations. I need not detail the other material which he produced, save to mention a publication of the National Health and Medical Research Council entitled "Approved Occupational Health Guide Repetition Strain Injuries". The guide was adopted by the Council in June 1982. Paragraphs 14 and 16 read:

"14. Muscle fatigue is a precursor of muscle
strain. The first signs are a feeling of
tiredness and possibly weakness and stiffness.
Movements are slower and less well co-ordinated.
With rest, the symptoms gradually disappear. With
repeated load and inadequate rest, the symptoms
increase and pain, tenderness, swelling and
restriction of movement become more obvious
(non-specific repetition muscle strain). The neck
and forearm muscles are most commonly affected but
the symptoms may occur diffusely throughout the
upper limb.
. . . . .
16. Repetition strain injuries can be prevented.
Prevention requires careful analysis of workplace
equipment, working posture, use of tools, and
design of tasks to reduce physically stressful
movements and postures. Design should seek to
include a variety of movements and postures in
each task to rest muscle groups, longer cycle time
and a mixture of gross and fine movements of the
hand, arm and shoulder. Evaluation of all the
elements involving muscular activitiy is needed,
including the correct dimensioning and positioning
of benches, tables, chairs, and controls in
relation to the worker's strength and size."

Preventative steps, including the early reporting of muscle pain and weakness, the maintaining of a rate of work found by experience to be within the capacity of the majority of trained workers, rest breaks and the instructing of supervisors and workers on the causes and prevention of repetition injury were recommended.

28. Mr K.D. Tasker, an occupational physiotherapist, gave evidence that he had been practising in ergonomics since 1979. He said that, by 1983, there was great awareness of the problem, though well-designed equipment did not become readily available until the early 1980's. He said in cross-examination, however, that it was not until September 1983 that he first advised an employer about the establishment of proper work practices and workstations for word processors. He said that adjustable desks were not in common use in 1983, though some equipment which Phipson's did not provide, such as footrests, was in use. He said that in 1983 there were many units such as the Wang units used by Phipson's. Mr Tasker said that keyboard operators have had a very high level of reported muscular skeletal problems, but it was not known how this discomfort translated itself into chronic incapacity. He said that there was debate whether the length of work contributed and that in 1983 the view was commonly taken that operators should have a rest for ten minutes every hour and work a maximum of four hours per day. Mr Tasker said there were conflicting views about keying rate and he believed it best for operators to have short breaks every twenty minutes or so. Mr Tasker said that psychological tension can contribute to muscle tension.

29. Dr. G.J. Graham, who specialises in occupational health and safety management, was one of the witnesses called on behalf of the defendant. Dr Graham has given considerable attention to RSI and did his thesis on "Job Satisfaction and RSI". In 1983, he commenced practice in the ASE Clinic in Adelaide. In 1984, he saw 1,600 patients with conditions broadly described as RSI. He said that the desks which are now available were in essence available in 1983, but in 1983 word processors were commonly placed on typewriter desks. He said that, in 1983, it was more common for keyboards and screens to be attached and now it is more common for them to be unattached. He said that gas adjustable chairs, footrests, document holders and the like are now commonly used. He said that in 1983 there was a difference of opinion as to the breaks that should be taken, some believing that there should be a strict break every hour and others believing that there should be rest when the operator found it desirable. Dr Graham believes that short, informal breaks are best. Dr Graham believes that job dissatisfaction arising from poor management or psychological cause is a contributing factor. He said that in 1983 it was thought that speed was likely to be a cause of upper limb pain but in fact there is no evidence that key-stroke rate is related. He said that the more work that an operator does, the more likely it is for there to be injury, though one study has found no connection. Dr Graham expressed the view that pressure is an important factor in the development of the problem and also stress, either within the work environment or outside it. Dr Graham is of the view that the importance of ergonomics is over-stated and that anger and job dissatisfaction are the most important factors.

30. I turn now to evidence given by the partners of Phipson's and by Mr J on the need for care with respect to their word processor operators. Mrs S gave evidence that she had not heard the term "ergonomic" until Mr J made his recommendation for the purchase of ergonomic furniture. Nor had she heard of the necessity for operators to take breaks. She had not heard of RSI or tenosynovitis before she saw Miss Schoer wearing a splint. Mr R gave evidence that, during 1983, he had very little knowledge of tenosynovitis. He had heard the word and knew it was being experienced by typists and keyboard operators. He had not heard the word "ergonomic" and had no knowledge of the use of ergonomic furniture by word processor operators. Nor had he any knowledge of the desirability of dividing keyboards from screens. Mr R learned more of the problem when pamphlets which Miss Schoer had obtained were given to him in late 1983 and also from press comments of which he then became more aware. He said that over the Christmas vacation he spoke to his sister, a physiotherapist, and found that she had researched the problem in Sydney and had put out a list of exercises to be undertaken by word processor operators.

31. Mr McA, a partner, gave evidence that he had a vague recollection of reading that tenosynovitis was a problem in the Australian Public Service in Canberra in 1983, but that his first involvement with the complaint came when he received instructions to act for the respondent in a claim in the case of Powell v Australian National University, which was to be heard in the Australian Capital Territory Court of Petty Sessions. Mr McA received telephone instructions about a week before 11 November 1983 and knew that the Powell case was to be regarded as a test case in the workers' compensation area.

32. Mr J gave evidence that he had earlier been an officer in the Royal Australian Navy and in that capacity had been a communications specialist and was familiar with keyboard work. He said that, during the year preceding Miss Schoer's injury, he had noticed mention in newspapers, advertising material and "Modern Office" of the problem of tenosynovitis and of the availability of ergonomic furniture. However, he had had no detailed understanding of the problem until he took steps after Miss Schoer's injury to obtain information from the Capital Territory Health Commission.

33. The general principles with respect to the duty of care which one person has to another were considered and enunciated in Wyong Shire Council v Shirt & Others [1980] HCA 12; (1980) 29 ALR 217. At p.221, Mason J, with whom Stephen and Aickin JJ agreed, said,

"A risk of injury which is quite unlikely to occur,
such as that which happened in Bolton v Stone
[1951] UKHL 2; (1951) AC 850; may nevertheless be plainly
foreseeable. Consequently, when we speak of a
risk of injury as being 'foreseeable' we are not
making any statement as to the probability or
improbability of its occurrence, save that we are
implicitly asserting that the risk is not one that
is far-fetched or fanciful. Although it is true
to say that in many cases the greater the degree
of probability of the occurrence of the risk the
more readily it will be perceived to be a risk, it
certainly does not follow that a risk which is
unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the
duty of care the tribunal of fact must first ask
itself whether a reasonable man in the defendant's
position would have foreseen that his conduct
involved a risk of injury to the plaintiff or to a
class of persons including the plaintiff. If the
answer be in the affirmative, it is then for the
tribunal of fact to determine what a reasonable
man would do by way of response to the risk. The
perception of the reasonable man's response calls
for a consideration of the magnitude of the risk
and the degree of the probability of its
occurrence, along with the expense, difficulty and
inconvenience of taking alleviating action and any
other conflicting responsibilities which the
defendant may have. It is only when these matters
are balanced out that the tribunal of fact can
confidently assert what is the standard of
response to be ascribed to the reasonable man
placed in the defendant's position.
The considerations to which I have referred
indicate that a risk of injury which is remote in
the sense that it is extremely unlikely to occur
may nevertheless constitute a foreseeable risk. A
risk which is not far-fetched or fanciful is real
and therefore foreseeable. But, as we have seen,
the existence of a foreseeable risk of injury does
not in itself dispose of the question of breach of
duty. The magnitude of the risk and its degree of
probability remain to be considered with other
relevant factors."

34. In the field of employment, it is often said that the employer is under a liability to the employee to provide safe equipment and a safe system of work. Lord Wright said in Wilsons & Clyde Coal Company, Limited v English [1937] UKHL 2; (1938) AC 57 at 78,

". . . The obligation is fulfilled by the exercise of
due care and skill. But it is not fulfilled by
entrusting its fulfilment to employees, even
though selected with due care and skill. The
obligation is threefold - 'the provision of a
competent staff of men, adequate material, and a
proper system and effective supervision'; . . .".

These are but aspects of the one duty of care, namely, a duty to take reasonable steps for the employee's safety. As Parker LJ said in Wilson v Tyneside Window Cleaning Co (1958) 2 QB 110 at p.116,

"The master's duty is general, to take all
reasonable steps to avoid risk to his servants.
For convenience it is often split up into
different categories, such as safe tools, safe
place of work, or safe system of work, but it
always remains one general duty. . . .".

Thus, Stephen, Mason, Jacobs and Murphy JJ said in Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181 at 209,

". . . The cause of action remained the failure to
take reasonable care for the safety of an
employee, however the failure might be
manifested. . . .".

Likewise, in Robertson v B.H. MacLachlan Pty Ltd [1985] HCA 21; (1985) 58 ALR 668 at 673, Wilson, Brennan and Dawson JJ, said,

"There was no dispute that the respondent was under
a duty of care to take reasonable steps for the
appellant's safety, having regard to the
relationship between them. . . .".

Accordingly, the principles enunciated in Wyong Shire Council v Shirt, cited above, are applicable to the present case, regard being had in addition to the identified obligations that an employer has to take reasonable steps to provide safe equipment and a safe system of work.

35. This duty plainly subsists between a solicitor and his employees, including his secretarial staff. Despite the fact that only recently there has developed what is called ergonomic furniture, nevertheless, the basic requirements have long been understood. There is nothing novel in the provision by solicitors of a suitable workplace or in the provisions of chairs, desks and machines that will enable keyboard operators to work most conveniently or in the provision of suitable lighting or in supervision that ensures that operators do not become over-stressed or in the installation of a safe system of work.

36. As is stated in "The Law of Torts in Australia" by Trindade and Cane, the rationale of the employer's liability is the control which the employer exercises over the employee's conditions of work. At p.461, the authors say, "The . . . employer . . . is still, in practice, often in a position to dictate to the worker what he will do, how, where, when and under what conditions." Therefore, it is the duty of the employer to institute a system of work which will avoid exposing employees to unnecessary foreseeable risks of injury. See Turner v The State of South Australia (1982) 56 ALJR 839 and McLean v Tedman & Ors [1984] HCA 60; (1984) 56 ALR 359. The employerHs obligation in this respect was said by Lord Tucker in General Cleaning Contractors Limited v Christmas (1953) AC 180 at 195, to be ". . . to take reasonable steps to provide a system which will be reasonably safe, having regard to the dangers necessarily inherent in the operation." The duty is to guard against unnecessary risks having regard to the likelihood of danger, gravity of injury and the means of avoiding it. See also Hamilton v Nuroof (W.A.) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18, Retsas v The Commonwealth (1975) 50 ALJR 104.

37. I draw attention to and adopt the exposition by Mustill J in Thompson & Ors v Smiths Shiprepairers (North Shields) Ltd (1984) 1 All ER 881 of the duty of care in a case where there are developments in technology and knowledge. At pp.888-9, his Honour said,

"There was general agreement that the principles to
be applied when weighing up allegations of this
kind are correctly set out in the following
passage from the judgment of Swanwick J in Stokes
v GKN (Bolts and Nuts) Ltd (1968) 1 WLR 1776 at
1783 :
'From these authorities I deduce the
principles, that the overall test is still
the conduct of the reasonable and prudent
employer, taking positive thought for the
safety of his workers in the light of what
he knows or ought to know; where there is a
recognised and general practice which has
been followed for a substantial period in
similar circumstances without mishap, he is
entitled to follow it, unless in the light
of common sense or newer knowledge, it is
clearly bad; but, where there is developing
knowledge, he must keep reasonably abreast
of it and not be too slow to apply it; and
where he has in fact greater than average
knowledge of the risks, he may be thereby
obliged to take more than the average or
standard precautions. He must weigh up the
risk in terms of the likelihood of injury
occurring and the potential consequences if
it does; and he must balance against this
the probable effectiveness of the
precautions that can be taken to meet it and
the expense and inconvenience they involve.
If he is found to have fallen below the
standard to be properly expected of a
reasonable and prudent employer in these
respects, he is negligent.'

I shall direct myself in accordance with this succinct and helpful statement of the law, and will make only one additional comment. In the passage just cited, Swanwick J drew a distinction between a recognised practice followed without mishap, and one which in the light of common sense or increased knowledge is clearly bad. The distinction is indeed valid and sufficient for many cases. The two categories are not, however, exhaustive, as the present actions demonstrate. The practice of leaving employees unprotected against excessive noise had never been followed 'without mishap'. Yet even the plaintiffs have not suggested that it was 'clearly bad', in the sense of creating a potential liability in negligence, at any time before the mid-1930s. Between the two extremes is a type of risk which is regarded at any given time (although not necessarily later) as an inescapable feature of the industry. The employer is not liable for the consequences of such risks, although subsequent changes in social awareness, or improvements in knowledge and technology, may transfer the risk into the category of those against which the employer can and should take care. It is unnecessary, and perhaps impossible, to give a comprehensive formula for identifying the line between the acceptable and the unacceptable. Nevertheless, the line does exist, and was clearly recognised in Morris v West Hartlepool Steam Navigation Co Ltd [1966] UKHL 1; (1956) 1 All ER 385, (1956) AC 552. The speeches in that case show, not that one employer is exonerated simply by proving that other employers are just as negligent, but that the standard of what is negligent is influenced, although not decisively, by the practice in the industry as a whole. In my judgment, this principle applies not only where the breach of duty is said to consist of a failure to take precautions known to be available as a means of combating a known danger, but also where the omission involves an absence of initiative in seeking out knowledge of facts which are not in themselves obvious. The employer must keep up to date, but the court must be slow to blame him for not ploughing a lone furrow."

38. Both the plaintiff and Miss Schoer gave evidence that they found the work stations uncomfortable because of the fixed screen and keyboard, the fixed height of the desk, the difficulty that, when the chair was raised to a height where the arms could comfortably use the keyboard, the operator's legs would not fit under the desk and the operator's feet would not rest comfortably on the floor. Expert evidence confirmed that the furniture and equipment would have been likely to give rise to physical problems for the operators. Mrs Tapsall said that the arrangement was likely to produce strain and muscle tightness, and that tenosynovitis or RSI is an over-use or strain problem. Mr Tasker gave evidence that the working conditions were undesirable and said that, if asked, he would have given the advice that Phipson's needed to decrease the workload and improve the work conditions. He explained the problem in this evidence:

"And in many occupations which require people to
move about and perform certain physical activities
during the course of the day, not only do they
feel fatigue at the end of the day, but they feel
some degree of discomfort?---I think the operative
word that you used there was move about, and one
of the problems in using a word processing unit
are the high static loads, muscle loads which are
generated and the loads which are generated on the
low cervical spine and high thoracic spine which
contribute to pain and fatigue which can be of
immediate onset and have delayed onset up to 36,
42 hours afterwards. There is a difference
between dynamic work and static loading."

39. From about the middle of 1983, Phipson's gave consideration to improving the conditions for their operators. Mr Grant, who was the supervisor of the data-processing area, had requested that some improvements be made. It was generally recognised that the cubicles in which the data and word processors were situated were rather unpleasant and at times hot and that the heat affected not only the operation of the machines but also the operators. Up-grading of the areas became one of Mr J's tasks when he was appointed office manager in August 1983. However, Mr J had first to familiarise himself with the overall functioning of Phipson's office and it was some time before he became significantly involved in the functioning of the word- and data-processing areas. No step had been taken in relation to furniture and furnishings prior to Miss Schoer's injury which occurred in late October 1983.

40. On being informed that Miss Schoer had suffered tenosynovitis, Mr J obtained information on the condition from the Capital Territory Health Commission. A number of witnesses called on behalf of the defendant, including Mr J, testified that Mr J acted promptly thereafter, that ergonomic furniture was ordered by December 1983 and that Mr J gave instructions to the operators to take regular breaks every hour. Mr J deposed:

"Now, you told us a couple of days after Miss
Schoer's injury you read these pamphlets and what
did you glean from them?---Well, I could
understand from them that an education campaign to
start with would be a wise move in order to bring
the attention of all keyboard operators to as much
information as I had on the risks involved. And
with that aim, I drafted an office memorandum in
quite comprehensive form, drawing attention to the
pamphlets, advising operators to do the exercises
that were illustrated in them every hour in a
break of 10 minutes after 50 minutes work.
All right, thank you. Now, the institution of the
break of 10 minutes after 50 minutes work, when
was that introduced?---Well, from the date of that
memorandum, and I am afraid I can only guess that
would be about four or five days after the
reporting of injury by Jenny Schoer.
All right. And would that memorandum have gone to
the plaintiff in this matter, Miss French?---It
should have. A copy was provided for every
keyboard operator in the firm and for all the
partners, and a copy of the Capital Territory
Health Commission pamphlet was provided with the
memorandum."

However, it became clear in the course of the hearing that Mr J did not act that promptly.

41. As to whether Mr J gave any instructions as to the taking of work breaks, I have some doubt, for work breaks were not specified in the memorandum, dated 20 February 1984, which I believe to be the only memorandum that Mr J issued to the staff. But whether any such instruction was given, regular work breaks were not taken and there was no proper supervision of the taking of regular work breaks.

42. Mr J said in his evidence that he considered it was the plaintiff's duty as supervisor of the word-processing section to ensure that work breaks were taken. However, I have concluded that the steps taken by Mr J were inadequate in this respect to ensure the institution and maintenance of a safe system of work.

43. At some stage, Mr J ascertained that it was desirable that the word processors be modified by separating the keyboard from the screen. Towards the end of 1983 he ascertained that there was a firm in Canberra which might be able to make the separation. During January 1984, one of the Wang machines had its screen and keyboard successfully separated. I believe that it would have been impracticable for Mr J to order ergonomic furniture until this step had been achieved. Obviously, furniture required for a fixed unit is different from that required for a unit in which the keyboard and screen can be placed at different levels. Towards the end of January 1984, Mr J, Mr Grant and the plaintiff visited a furniture showroom and formed a view as to what furniture would be suitable. At an executive committee meeting on 31 January 1984, attended by the two partners Mr S and Mr McA and Mr J, it was reported that the cost of outfitting each workstation with desk, chair and work support, plus modifying the Wang screen by separating the video display and keyboard, would be approximately $1,000, that an overall submission to the partners would be developed and that the removal of the partitions in the word-processing area would probably also be recommended. At an executive committee meeting held on 14 February 1984, attended by three partners Mr S, Mr W and Mr McA and Mr J, the report then submitted by Mr J proposing the provision of new furniture and accessories and the modification of the Wang equipment was supported and proposed to be submitted to the partners at an extraordinary meeting. When Mr J's report was placed before the partners in February 1984, it was adopted and the work of modifying the Wang equipment and the obtaining of the new furniture was undertaken.

44. On 20 February 1984, Mr J sent to the staff the memorandum entitled "Ergonomics and Stress Relief" which read, inter alia,

"1. Progressively during the next two or three
weeks a programme to improve the working
environment for keyboard operators will be
implemented. The programme comprises :
a. provision of ergonomically-designed
furniture and accessories for WP and DP work
stations;
b. modification of Wang screens to separate
keyboard and video display unit;
c. rearrangement of furniture and removal of
partitions around the WP section to provide
a more open atmosphere.
2. These measures are a significant contribution
towards efforts to reduce physical fatigue and
mental stress among keyboard operators, but for
substantial success in the avoidance of repetition
injury and promotion of personal well-being an
adequate level of operator understanding and
individual commitment is also necessary.
3. The attached document 'Ergonomics and the Work
Environment' provides a good general description
of the physical requirements of sound ergonomic
practice. Careful adherence by keyboard operators
to the measures discussed is highly recommended.
4. A schedule of simple work-relief exercises is
also attached. Ideally some or all of these
exercises should be performed once in each hour,
not necessarily at regular intervals but simply
whenever an individual feels a need for minor
relaxation. The time required is quite short, and
will be reduced further with practice."

45. I should pause at this stage to say that I would not find negligence on the part of Phipson's just because of the standard of equipment which had been provided for their operators or because of any delay in the up-grading of the equipment once the partners had become aware that better equipment was considered desirable. The equipment provided would certainly not now be regarded as suitable equipment for operators in a busy word-processing pool. However, there is no reason to think that it was regarded as unsuitable when the equipment was first acquired, prior to 1980. And for a number of years, no problems arose from its use. It was not well designed from an operator's point of view. The overall effect was that an operator could be placed under strain. Nevertheless, I do not find on the evidence that Phipson's knew or ought to have known prior to Miss Schoer's injury that furniture of this type was unsuitable and should be replaced. Indeed, there is no evidence that the plaintiff or any other employee complained prior to Miss Schoer's injury that the furniture and equipment was ergonomically unsuitable and should be replaced.

46. I accept that, after he was informed of Miss Schoer's injury, Mr J acted reasonably in obtaining advice as to the nature of the condition, as to its likely causes and as to the type of furniture and equipment that ought to be acquired. What was involved was a considerable refit. And the nature of what was to happen necessarily depended on ascertaining whether or not the Wang equipment could be successfully modified. The time taken for the refit was, in my view, not unreasonably long.

47. However, the provision of proper equipment and furniture is only one aspect of the matter. The more important aspect is the pressure both physical and psychological which was placed upon the word processor operators, particularly upon the plaintiff. That pressure increased rather than reduced towards the end of 1983 and early 1984. Mrs S said in her evidence, ". . . we were concerned to make the best use of our system because it was very expensive . . . we were concerned to use the system better and have less secretaries . . . More WP operators and less secretaries in a one to one situation with solicitors." Mr R conceded in cross-examination that one of the purposes of the word-processing group was to get larger amounts of typing through that group as fast as possible. It appears, accordingly, that Phipson's were concerned to increase the output of the word-processing unit, not to decrease it. Yet, the hours of work were much longer than was desirable. 8 am to 5.15 pm with half an hour for lunch was much too long for operators constantly working on a word-processing machine. Mrs Burton had limited the hours of such work to no more than five or six when she introduced her system in the 1970's and she subsequently reduced the hours of constant work to three. Mrs Tapsall, Mr Tasker and Dr Graham were all in agreement that long constant work on the word processors was undesirable. Likewise, Dr Graham gave this evidence:

"And if someone had said to you : Look, these
girls are typing from 8 am to 5.15 with half an
hour for lunch and no breaks and complaining about
pressure of work and saying that they are doing
too much urgent work; you would have said: I
think you ought to stop that system; would not
you? - - - You ought to make some changes to that
system, yes."

48. The plaintiff herself proposed an alteration to the hours of work. Mrs S said in her evidence that the alteration was thought to be a very good idea, but was not implemented because Phipson's could not obtain competent staff.

49. So here was another problem with which the plaintiff had to cope as supervisor of the word-processing unit, namely, lack of competent staff after Jenny Schoer and Patricia Stevens had left. Mrs S gave evidence that, from time to time, the plaintiff said that more operators were needed and that Phipson's were in fact looking for more competent operators like her. She said that when the operators were obtained, Phipson's found that sometimes the operators could not spell, they were unsuitable or disappointing. This, of course, would have raised further problems for the plaintiff who had to supervise the work of these inexperienced operators, train them and check the quality of their work. Mr R gave evidence that the plaintiff complained that there were not enough trained word processor operators employed by the defendant and that she had too much work to do to train them. He said that Phipson's had great difficulty in recruiting trained staff, and conceded that Phipson's had a reputation, which I infer he thought was not justified, for not paying well.

50. A further problem arose from the sheer volume of the work to be done and the pressure placed by partners to have that work done. Mrs S, in her evidence, agreed that one of the partners particularly was the subject of much complaint and that he put too much work on one tape instead of placing it on a number of tapes and also because of the way he dictated. She gave evidence that there was often too much work at the beginning of the week and at the end of the week and that users tended to have an unreal perception of the urgency of their work. Mr R gave evidence that some of the users did not allow for the competing demands for the production of work and that there were discussions with the plaintiff about the workload and about indiscriminate requirements of urgency.

51. The plaintiff was under strain therefore not only because of the operating pressure and the hours worked but also because she felt that she was unable to do her work satisfactorily as supervisor because she had to spend so much time as an operator. As supervisor, she had to train and oversee the other operators and to organise the library of precedents and to see its development so that it could be readily accessed and used, thereby reducing the quantity of first instance input. It is clear from the plaintiff's evidence and from the evidence of Mrs S and Mr R that the plaintiff complained a great deal about this matter and was dissatisfied with the situation. Her complaints, however, were not accepted, or at least in her time not acted upon.

52. It is a striking feature of the evidence-in-chief given by Mrs S, Mr R and Mr J and of some of the evidence given in cross-examination that the principal direction of the plaintiff's complaints was said to be that she wanted to be relieved entirely from work as an operator. The plaintiff denied in evidence that she had sought to cease operating but wished simply to have enough time to do her work as supervisor properly. Perhaps the explanation is that the plaintiff, in her distress, put her case too strongly. I believe that the partners and Mr J should have understood the substance of what she was saying. The substance of her complaints was, in any fact, accepted at the executive meeting attended by two partners and Mr J on 17 January 1984, though it does not appear that the necessary steps were taken to relieve the pressure on her.

53. From Mrs S's evidence, it is clear that the plaintiff made many complaints and became increasing emotional. Mrs S conceded, in cross-examination, that there were complaints about the volume of work, that she (the plaintiff) did not have time to train other word processor operators because she was spending so much time typing herself and that she wanted to supervise more and type less. Mrs S agreed that, by the end of 1983, the plaintiff became stressed, excitable and angry, but in the view of Mrs S, this was because the plaintiff wished to change her status in the organisation because she was ambitious. Mrs S's response to the complaints therefore was to consider whether the plaintiff should be retained in the employment. She agreed, in cross-examination, that she had seen the plaintiff in tears on two or three occasions, the tears being about her work and that she was clearly under stress. She considered that the complaints were about pressure of work. But Mrs S nevertheless thought that the plaintiff lacked the competence to cope with her position and was unduly ambitious.

54. Mr R's response to the plaintiff's complaints was that he agreed that it would be in the best interests of the word-processing section for the plaintiff to be able to type less and to supervise more. But he counselled her to approach the problem in a different way, to be more constructive rather than confrontationist. That may have been good advice but it does not appear that there was any change in the pressures which were the crux of the plaintiff's complaints.

55. Mr J recalled more of the specific complaints, including the complaint of lack of sufficient operators to do the work. His conclusion, however, was that there was a general state of antipathy between the plaintiff and the people she worked with and who used the word-processing facility and that he did not see any improvement being brought about while she remained in the employment. On 9 February 1984, he obtained the approval of the partners to terminate her services, but was unable to do so as she had already gone off work with tenosynovitis.

56. On this aspect of the matter, I think the facts were put correctly in the following evidence by the plaintiff:

"Right. What I am suggesting to you, and I gather
you are denying the suggestion, is that you came
to Mr (J), following your conversation with Mr
(R), wishing to change the nature of your duties
as they then existed? - - - If I went to him, at that,
trying to change anything, I was trying to improve
the working conditions of myself, which was I was
supervising, I was training, I was operating, I
was doing too many jobs at the one time, I could
not do them all. And I was saying to him, 'Take
one of them away, help me to balance the load. I
am doing the job of what looks like three people,
I cannot do three people's work.'
. . . . .
Yes. And would it be fair to say that your
relations with Mr (J) and some of the partners and
employed solicitors at (Phipson's) were, by the
beginning of 1984, not cordial? - - - No. I would say
it was more myself. I had reached the point where
I was becoming very tearful at anything that
happened, right. But on various occasions I burst
into tears and could not cope with the situation,
I had just reached such a bad level.
. . . . .
But you also had become increasingly aware that
your work relationships with partners and
solicitors and, indeed, the office manager, were
not good? - - - I would not have said that my
relationship with them was bad. I believe that we
reached a point where we were not communicating
any longer because I had repeated myself so many
times, resigned twice and nobody said anything
about it. I was then frustrated at that, no one
seemed to want to sit and discuss what was the
problem. They just seemed to think it is too much
work, it is all in Margaret's head."

57. I conclude that the plaintiff was placed under undue pressure, that she repeatedly stated the nature of her complaints to the partners and to Mr J and that it appeared to her that no one would give consideration to her complaints for, in fact, nothing was done to alleviate the situation. This was no doubt because, as I have already mentioned, the partners were anxious to increase the output of the word-processing unit, not to decrease it.

58. Another significant aspect of the matter is that the partners and Mr J did not show compassion towards the operators. They did not make any enquiry of Miss Schoer or the other operators as to how it had come about that Miss Schoer had developed tenosynovitis or any enquiry as to whether any of the other operators were suffering like symptoms. It is true, as Mrs S said in her evidence, that the plaintiff never complained to her about physical tiredness or physical strain. Yet one feature totally missing from Mrs S's evidence is any enquiry by Mrs S of Miss Schoer as to her condition or as to how her problems had developed, or any enquiry of the other operators as to how they felt or whether they had experienced like symptoms. There is no suggestion in the evidence of Mrs S or of any partner or of Mr J that the operators were told to report immediately any physical strain that they felt or to cease operating the word processors once they felt symptoms of strain. Mrs S had a particular association with the word processor operators for she had overseen their work for more than twelve months. Mr R had an office adjoining the word-processing room, so he knew the operators well. Indeed, he had discussions with Jenny Schoer in 1983 and had frequent discussions with the plaintiff. Yet he made no enquiry of Miss Schoer as to how her problems had come about. He said in evidence, "I would have felt uncomfortable about that. Others were looking at the matter." Probably, his attitude did not arise simply from discomfort about discussing a matter that was the subject of a worker's compensation claim. He does not appear to have adopted an open attitude to Miss Schoer's problems. In an answer to an interrogatory and in his evidence, Mr R denied that Jenny Schoer had reported that she had suffered tenosynovitis. He said she had reported that she had been diagnosed as suffering from tenosynovitis. Yet, it is beyond argument that when Jenny Schoer came into Phipson's with her arm in a splint and with the bundle of documentary material dealing with tenosynovitis and when she attempted to explain to Mr R and Mr J what caused tenosynovitis, she was reporting that she had tenosynovitis. In evidence, when asked why he did not enquire further as to how Miss Schoer had come to develop tenosynovitis, Mr R said that he was "Well not especially interested. I suppose, yes, I was interested, but I was not especially interested." Nor did Mr R, who was friendly with the plaintiff and saw her frequently, ask her whether she suffered any strain from operating the word processor or ask her to report any physical problems that she had. Mr J did not give evidence that he had taken any of these steps. I assume that he took the same view with respect to this as he did to the implementation of work breaks, namely, that it was the responsibility of the plaintiff to deal with such matters.

59. In the light of the attitude of the partners and of Mr J, the plaintiff would probably have been discouraged from mentioning any physical problems that she had. It was not only that the partners and Mr J did not encourage her to report the first signs of strain that she felt, they were discouraging the complaints that she did make and were considering whether she should be retained as supervisor. With such an atmosphere between the employer and employee, it is not surprising that the plaintiff's symptoms of physical strain were not reported.

60. On these facts, I conclude that Phipson's did not take reasonable care for the safety of their employee, the plaintiff. It is clear from the evidence of Mrs Tapsall, Mr Tasker and Dr Graham that the combination of factors - inadequate furniture and equipment, long hours, pressure of work and conflict between the partners and Mr J on the one hand and the plaintiff on the other - did not provide a proper system of work so far as the plaintiff was concerned. There was in place a system of work which could readily be changed but which, if not changed, had a tendency to lead to tenosynovitis or RSI, that is to say, a significant risk to the employee which was reasonably foreseeable. I am of the opinion that the partners and Mr J were unduly concerned to obtain the greatest production output possible from the operators of the word processing equipment and in doing so placed the plaintiff under undue pressure both physical and mental. It is agreed by all witnesses that they understood that, during late 1983, and January 1984, the plaintiff showed increasing signs of distress and of emotional upset. At times she was in tears or close to tears. She complained consistently about undue pressure. Her complaints were not heeded. Rather, the view was taken that the plaintiff simply could not do the job and should be replaced. In my opinion, Phipson's had clear signs that pressure of work was affecting the plaintiff. They had knowledge that work under pressure could lead to injury to a word process operator. Their response, not to enquire as to the plaintiff's state of health nor to take steps to decrease her workload and the pressure on her, but to consider her dismissal, was in my opinion not a response which satisfied the duty of care enunciated in Wyong Shire Council v Shirt, cited above.

61. The case for the defendant seems to be based upon the proposition that the partners and Mr J acted as they thought best, having regard to their then state of knowledge. But whatever may have been the situation before Miss Schoer developed tenosynovitis, it was the duty of the partners and Mr J, once alerted to the risk, to take adequate steps to ascertain what was good practice. Mr J turned his attention to furniture and equipment. But it was not sufficient to do that for it was known by November 1983 that matters such as pressure of work played a part. The enquiry made by Mr J of the Health Commission was not adequate. Enquiry of enlightened solicitors, such as Mrs Burton, and of the Australian Public Service Association, which was actively concerned with the problem of tenosynovitis in the Australian Public Service, would have given guidance. Enquiries ought to have been made of Miss Schoer as to how she thought it had come about that she had been disabled. Enquiries ought to have been made of the other operators as to whether they felt any symptoms of strain or pain. And, lastly, once one operator had left the firm with tenosynovitis, instructions ought to have been given that any other operator suffering like symptoms should report the symptoms to management. Such an approach would not have necessitated technical knowledge of tenosynovitis or RSI, which no doubt the partners and Mr J did not have, but simply a positive interest in the welfare of the employees.

62. For these reasons I am of the opinion that there was a breach of the duty of care by Phipson's to their employee, the plaintiff. The defence of contributory negligence was raised but, on my view of the facts, this defence must fail. In my opinion, the plaintiff constantly made it perfectly clear to the partners and to Mr J that she was under undue pressure. I believe that the atmosphere created by the partners and by Mr J was such as to discourage the plaintiff from mentioning any symptoms that she had. And, whether or not a system of breaks was instituted by Mr J, I accept the evidence of the plaintiff that the pressure of work was so great that it was impracticable to maintain any regime of regular breaks.

63. I should add that I see no factor outside employment with Phipson's which contributed to the plaintiff's problems. Nothing appears in the evidence which would suggest that there was any external matter which placed the plaintiff under pressure or would have given rise to any emotional crisis. No such matter was suggested in cross-examination. No one from the firm, either staff or partner, mentioned or suggested any such external factor. Nor in the plaintiff's activities since she became injured nor in her demeanour in court have I observed any sign which suggests to me that she may have had some psychological contribution external to her work at Phipson's. I have already mentioned evidence from Mrs S and Mr R that the plaintiff was a capable, conscientious and zealous employee. Like evidence was given by Mr I.L. Whitfield, the Canberra Manager of Fire Control Pty Limited, for whom the plaintiff has worked since the middle of 1986, who agreed in cross-examination that the plaintiff had been efficient and competent and a valuable member of his staff. The plaintiff is a stable person and has purchased her own home in Canberra. In my opinion, this is not a picture of a person who is a malingerer or who has external psychological problems which have contributed to the medical problems from which she suffers.

64. Evidence was given on behalf of the defendant that RSI, if I may call it that, does not exist as a medical condition. Dr K. McGonigal, an orthopaedic surgeon, reported on 19 June 1984 :

"Miss French presents a multitude of symptoms which
defy rational, anatomical or physiological
explanation and are without objective physical
signs or changes on X-rays available. Organic
disease is an unlikely cause of her symptoms."

In his evidence, Dr McGonigal said,

"Now, Doctor, in your report you make comment that
you could not find any objective physical signs or
changes which would coincide with the complaints
of disability made. That is so, is it not,
Doctor? - - - I cannot measure disability. I can only
measure impairment which is what I can
demonstrate, and I could demonstrate no
impairment.
. . . . .
And as far as fitness for work is concerned, at
the time you saw her on 24 May 1984, what was the
view you held, that is fitness for work as a
typist doing word processing work in a solicitor's
office? - - - Well, I demonstrated no evidence of
physical disease so that in my opinion she was
physically fit for work."

65. However, Dr McGonigal's explanation of the plaintiff's condition is not persuasive. He gave no explanation for the plaintiff's symptoms. Dr McGonigal did not express a positive view that the plaintiff was deliberately malingering or that her symptoms were imaginary, though he inferred some such situation. Alternatively, he inferred that the plaintiff's problems may have had a psychological basis but nevertheless said that the plaintiff was fit for work. Dr McGonigal conceded in cross-examination that he had seen many women who had been diagnosed by general medical practitioners and other doctors as having RSI from keyboard work and that the plaintiff's condition was characteristic of others in the group. He said that he would have seen perhaps forty to fifty women in this group over the last six years. Of the group of women who made complaints similar to those of the plaintiff, Dr McGonigal held the same view, namely, that there was no medical cause and they were fit for work. He gave the following evidence as to the characteristics of these women :

"What were the characteristics you noted in common
with these people, doctor? - - - Firstly that they
presented me with their diagnosis on arrival.
Secondly they had a wide range of symptoms which
were vague both in time and in location. Thirdly
they had no physical signs to accompany those
symptoms. Fourthly they were always relating this
to their work. Fifthly they made no response to
treatment of any sort and sixthly they were all
women."

I am not persuaded by the suggestion of a psychological condition which attaches to women. As many more women than men operate word-processing machines and as the constant operation of this equipment involves muscle use not encountered in ordinary life, it is not surprising that many women have complained of the problem and have related it to their work. Nor is the lack of a quick response to treatment a matter which tells one way or the other. Dr Holt's report of 27 February 1984, and the reports of Dr Brook and Dr Mann, to which I shall later refer, make it clear that the symptoms of this complaint can long subsist. To my mind, it is more important that the plaintiff is a highly motivated person and is gradually overcoming her disability.

66. The effect of Dr McGonigal's opinion is that women such as the plaintiff are either malingerers or have problems which are female psychological problems unrelated to their work. This explanation does not seem to me to be probable notwithstanding that Dr McGonigal is an honest, competent, experienced, orthopaedic surgeon who in the plaintiff's case and in many other cases can see no physical signs of any injury or disease and can not relate the symptoms complained of to any accepted injury or disease. I accept that Dr McGonigal's view is that the complaint of pain fits no pattern that he can explain on medical grounds.

67. Dr D.S. Sinclair, consultant physician in rheumatic diseases, gave like evidence to that given by Dr McGonigal, but gave his evidence in such extravagant terms that I do not accept it as reliable. Dr Sinclair reported on 29 April 1986 :

"She then gives a rather odd history of going to
her GP because of the symptoms and having a
diagnosis of 'RSI' made. I can't understand why.
Indeed, I can't understand why the diagnosis was
ever made because it is not found in any medical
textbooks, and has never been defined as any
single or group of patho-physiological entities.
It has been said that the diagnosis of 'RSI' is
the 'Clayton's diagnosis'. That is, the diagnosis
you present to the patient when you don't have a
diagnosis to make to yourself.
This certainly makes the doctor feel better, but
only serves to confuse the patient and all around
them.
The lady simply has no evidence that she is
suffering from a musculo-skeletal or
musculotendonous
disorder.
. . . . .
I think that this lady's anger is understandable,
she has lost her job and a considerable amount of
money because she has been given a diagnosis which
is misleading.
I hasten to say that I do not believe that she was
misled intentionally, I believe she was misled by
people who are well-meaning, but possibly
misinformed.
. . . . .
Miss French then has no (sic) suffered from any
accident, illness or injury which could even be
vaguely related to her work.
She may have a grievance because she was put off
work unnecessarily, this is the tragedy of this
socalled 'RSI' epidemic.
. . . . .
Thank you for referring Miss French. She
represents yet another case of iatrogenic fear and
anxiety."

68. Dr Sinclair's evidence was in like vein. The following is an example of the cross-examination:

"And I think you have said you have never read a
text or a medical article that acknowledges such a
syndrome in these people, is that right? - - - In
typists.
Well, or in process workers? - - - To cause constant
and unremitting pain lasting for years, no.
In process workers? - - - That is right.
Telegraphers? - - - The writer's cramp is a very
interesting story, the telegrapher's cramp.
I am just (asking) a question. I am not asking
for a statement about something else? - - - There was
an episode of cramp described in telegraphers
which is called losing your grip and the
interesting thing is it disappeared when they
replaced the morse key with a keyboard to send - - -
Because they were using a different thing. No
doubt it came back as something else later? - - -
Faster than an electronic machine.
Doctor, I know I seem to be complaining all the
time about it but, you see, it is not an answer to
what I was asking so let us go back and start
again. Have you ever read articles in which there
was discussion of this syndrome in typists? No.
- - - Discussion, yes.
Have you read articles that acknowledge the
existence of such a syndrome in typists? - - - When
you say 'acknowledge existence' I mean the people
have made this assertion now for some years.
It is a simple question. Have you read medical
articles that acknowledge the existence of this
syndrome? - - - I do not want to give you the wrong
impression because I do not want to be picked up
and misquoted.
Well, a minute ago you said no? - - - That is right.
That is why I am starting again at the same
basis? - - - I am trying to explain to you what I
mean. There is a difference between a properly
constructed epidemiological survey which has said,
'Look, there is evidence for this condition as
distinct from someone who writes to a journal and
says "I believe".' Now, I have seen a lot of 'I
believe' articles but there is no epidemiological
evidence to support those, I believe, articles."

Dr Sinclair opined that if the plaintiff suffered pain and discomfort as a result of exercise, the exercise which led to her condition was the exercise of jazznastics, which the plaintiff has undertaken several times a week. He also suggested that the plaintiff may suffer from degeneration in the cervical spine.

69. In my opinion, Dr Sinclair's evidence does not explain the evidence which the plaintiff has given and which I accept as to the gradual build-up of discomfort and pain and her evidence as to how, despite her desire to continue, she had such pain that she had to see Dr Holt. This is not to say that I would take the opinion of a general medical practitioner such as Dr Holt as against that of a specialist such as Dr Sinclair. It is simply to say that I am dissatisfied with Dr Sinclair's explanation as to what happened. I do not believe that the plaintiff's problems arose either from outside activities such as jazznastics in which she engaged or by reason of the communication to her of information as to the existence of the condition which was then called tenosynovitis. As I have said, I believe that the plaintiff was a motivated, competent person who was doing her best to perform. I see nothing in her outside activities, including her activity in sport such as basketball and in her frequent attendance at gymnasiums to engage in jazznastics, which was likely to cause her problems. Nor do I accept Dr Sinclair's suggestion that the plaintiff might have a problem arising from a degenerative condition in her cervical spine. Such a condition has not been diagnosed and I do not accept that that is the cause of her problems.

70. Dr F. Long, a general physician, likewise doubted the existence of RSI. In a report dated 17 February 1986, Dr Long said,

"Since there are really no objective signs of any
disease I believe that this lady could do anything
she wanted to. However, given her symptoms I
think it is most unlikely that she will ever
return to any kind of work which involves the use
of her hands. I do not feel that any further
examination or treatment is indicated. The fact
that she could be cured, at least temporarily, by
acupuncture suggests that there is not really any
organic basis for the symptoms.
My prognosis is that unless she wishes to get
better or something happens which convinces her
that she could and should get better she will
remain permanently unfit to use her hands."

However, in that report and in his evidence, Dr Long did not make any suggestion of malingering, but thought the condition might have a psychological base. The following is part of his evidence:

"Now, doctor, was there any other physical
complaint which you felt matched the history and
findings which you were able to make? - - - Well, it
was my view that the whole thing was much more
likely to have a psychological basis than to be a
physical disease.
. . . . .
And if she has pain only really she would
know? - - - Certainly, we cannot feel the pain.
And if she has got it you do not know the cause of
it? - - - That is true."

The difficulty I have with this evidence is that, not only do I see no psychological basis external to the plaintiff's employment which was likely to cause the plaintiff's complaint, but I believe that the plaintiff is a motivated person who is overcoming her disability as quickly as she can.

71. Dr Graham, a Fellow of the Australian College of Occupational Medicine, and a specialist occupational health practitioner, gave evidence that he considered RSI to be a real illness. He used the term RSI as an umbrella term to refer to a group of people with respect to whom there are no organic findings. In respect of those persons, he said,

"Well, I think we are getting closer to common
ground. In those people who do not have organic
findings, do you say that they are suffering from
a real illness or not? Certainly.
And it is a real injury? I do not know that it
is an injury, but certainly an illness."

72. Dr Graham also gave evidence as to the type of conditions which are likely to bring on this condition. Dr Graham gave this evidence:

"Well you would agree though, would you not, that
to put people under pressure in the sense of
requiring them to perform in circumstances where
they keep saying to you for a long time, say four
months, 'I cannot perform it' or 'I can't do it
that much. You are requiring me to do something I
can't do' is to invite illness in that employee,
is not it? - - - Yes.
And you would have given that advice in 1983,
would not you? - - - I would have given the advice
that your employee must be happy at work or else
you are likely to suffer the consequences."

73. Mrs Tapsall, the occupational therapist, and Mr Tasker, the occupational physiotherapist, who have both had considerable experience with RSI patients, accept the injury or disease as a real condition for which standard preventive measures should be taken and for which there are standard means of treatment.

74. Dr Holt, who saw the plaintiff on 6 and 9 February 1984, had no difficulty in making the diagnosis, tenosynovitis, which was then the term used, though he did not notice any physical symptoms. I need not refer to the evidence of Dr H.A. Berenson which I thought was not useful, save to say that both he and Dr C. MacDonald, a general medical practitioner, who reported on the plaintiff before she undertook work with Fire Control Services Pty Limited, accepted the existence of the condition as claimed.

75. Dr A. Brook examined the plaintiff on 12 July 1984, and on 16 July 1984 reported, inter alia,

"On examination Miss French gave a lucid account of
her symptoms and although clearly unhappy about
her condition could not give any signs of
suffering from important psychiatric disturbances.
. . . Turning to the locomotor system, the findings
were bilateral, symmetrical, but in general rather
more prominent on the right than the left. The
first, third and fourth flexors were tender in the
palm and the third was swollen. The third and
fourth extensors were tender and the third was
swollen. She was tender over the tendon sheaths,
both in front of and behind the snuff box on the
lateral aspect of the wrist, more prominent on the
right, the tendons being known as abductor
pollicis longus, extensor pollicis brevis and
extensor pollicis longus. She was tender over the
attachments of the extensor group to the lateral
epicondyle and over the radial head and the
attachments of the flexor group to the medial
epicondyle. The latter was particularly tender on
the right. She was tender over the insertion of
deltoid, the tendon of supraspinatus to a lesser
extent and diffusely in trapezius muscles.
Cervical spine was a little restricted in all its
movements. There was generalized hyporeflexia and
subject of loss of touch of a rather uneven
distribution in the fingers. There was no
neurological abnormality or vascular abnormality
on stressing the cervical spine or thoracic
outlet. She was tender over the manubrio-sternal
joint which is a little swollen.

The diagnosis here is one of repetition strain
injury. The forearm findings being quite
characteristic of that seen in the dynamic type,
so frequently seen in keyboard operators. The
proximal findings have been called the static type
of repetition strain injury, but this not
uncommonly complicates the dynamic type. The rash
and the manubrio-sternal joint tenderness are not
seen in repetition strain injury and I would not
include these findings in the diagnosis. The
cause of the repetition strain injury is using
modern electronic keyboard equipment.
. . . . .
In my opinion Miss French is totally incapacitated
for work of any form at the moment. It is
characteristic of repetition strain injury that
once severely established, almost all forms of
light manual activity are capable of producing
important pain. The prognosis is for the
condition to slowly settle, most cases having
settled within two years. I do not believe there
is any treatment that makes any substantial
difference. Certainly splints make the arms a
little more useful and she finds this so.
Physiotherapy, particularly directed to
maintaining the shoulder girdle muscles is often
helpful and this is being undertaken. It makes
the distal symptoms worse. Drugs, surgery and
injections, except for occasional relief of
specific pains, do not make any difference to
function."

76. On 29 June 1986, Dr Brook reported:

"The diagnosis that is that form of regional pain
syndrome which has come to be called repetition
strain injury is the same as in 1984. From the
history and the clinical findings the left arm has
improved greatly. The right arm has also improved
substantially. While the blocks seems to have
decreased the discomfort and improve the function,
she is still quite importantly disabled. The
attempts she has made to work give a reasonable
estimate of her limitations, for example 20
minutes of slow typing or three pages of writing.
From the effect writing of three pages has had on
her arm, it seems most unlikely she could do that
much writing each day. While she is fortunate to
have found employment it is clear that her ability
to find other jobs would be very restricted. She
is certainly not fit for keyboard work."

77. In Dr Brook's cross-examination as to the possible pathology of this condition, there is the following evidence:

"Yes. Now we have RSI. Doctor, is there any known
pathology which can be lumped under the head of
RSI, whether it be repetitive strain injury or
regional strain injury?" - - - (o.
. . . . .
Now, assuming that at the time when these problems
arose she was, say 29, and during those 14 years,
assuming that she had been engaged on a consistent
basis doing keyboard work, whether it be on a
manual typewriter, an electric typewriter - manual
meaning non-electric - electric typewriter or the
keyboard of a word processing unit, why would it
be that these symptoms emerged in late 1983 rather
than in 1978, for instance? - - - Well, the problem
is, to some extent, inexplicable and the
explanations are teleological, that is it is a
phenomenon that this problem has emerged and
therefore one looks for explanations that might
fit the bill. These explanations are not proven.
It is suggested and it is observed that people
have to support the arms more on electronic
keyboards than on mechanical keyboards, that they
move the fingers through a smaller excursion and
more quickly and that there is less bio-feedback,
if we can use the term loosely, from this and that
they do not stop - or frequently do not stop
because there is no need to stop, there is no need
to use the carriage return and no need to change
the paper, and so on. These have been proffered
as explanations and in order to fit in with that
explanation it is suggested that with the arms
kept in one position with the muscles contracted
the blood flow to the parts is reduced and this
upsets the nerve tissue in the arms. that remains
unproven. It is just a teleological argument.
. . . . .
Yes, yes. And as yet one that in your view has
not received scientific credence in the sense that
it is an acceptable hypothesis? - - - It is not
proven."

78. As to the existence of the condition of RSI and as to the plaintiff's symptoms, Dr Brook said:

"HIS HONOUR: I want to put to you, doctor. You
said to Mr Newman that the pathology of this
disease which, if I might call it RSI for
simplicity, you said that that was not proven, and
indeed I think you might even go further than
that. But it seemed to me from some of Mr
Newman's questions to you that he was putting the
proposition that the existence of RSI was proven.
Do you have any view about that? - - - I believe it
exists. That is a belief.

Yes. I gather that you treat a lot of patients
for it or see them? - - - Well, that is right, it is
based on listening to the story of an innumerable
succession of otherwise - of what seemed to be
normal people. At least they have got a long
history of stable work practices and stable
home-life and so on who become curiously disabled.
And while some of them may be crazy and - well
some of them may be malingerers. Well, I just do
not believe they all are.

And is it a disease that is generally accepted in
reputable medical circles or is it not, and is it
your own personal view about the matter, or is it
something now that is generally accepted in the
profession? - - - I think I am pretty boringly
mainstream, really. Just what should be included
is argued. But it has been described or - yes -
the problem in typists has been described by a
large number of people and the problem in
musicians has been described and recently a large
survey of professional musicians in Australia has
examined the problem. It seems indistinguishable.
Professional musicians are really very highly
motivated people and numbers of them are not able
to play their instruments. It is that sort of
evidence that I think convinces most people that
look at it that it is a real - and in that sense -
physical, not psychological phenomenon. But there
are some - there are still strong protagonists of
the opposite view. And in Australia particularly
there are two or three such strong protagonists;
men who are well trained and experienced in the
condition.

Was there anything about Miss French's condition
that you thought was unusual or took it out of the
ordinary pattern? - - - I did not really think so, no.
The second time I saw her it was very much on one
side rather than the other. But that is not all
that unusual, no. No, I do not think there was
really."

79. Dr Arnold Mann gave like evidence and in a report dated 12 June 1984, Dr Mann said:

"There is no doubt that Mrs French is suffering
from a repetitive strain injury, which for
medicolegal
purposes, is labelled tenosynovitis. This
is a descriptive title which is used for want of
better one, as we know so little of the precise
mechanism of production of this condition,
excepting that it is associated to an alarming
extent with the use of word processors and other
electronic equipment.

She is at the present moment quite disabled from
this form work. She was also disabled from using
a biro pen for long periods and I do not see how
she can do clerical work at the present moment.
Indeed I do not see what form of work one could
employ her to do without risking a claim for
negligence.
I would suggest that her condition be reviewed in
3 months at the earliest."

80. In a report dated 12 June 1986, Dr Mann said:

"Miss French seems to have improved considerably
since the last time I last saw her in 1984.
However, I think she is desperately doing the best
she can with her disability and it is therefore
not impossible that she is deliberately hiding
some of her symptoms in order to keep her job.
Her right arm and hand are still very weak and she
will need to watch very carefully for any
recrudescence of symptoms and to stop work if such
symptoms do recur. I think it is important to
stress to her that she must be honest with
herself, otherwise she could become very much more
disabled."

81. Dr Mann gave this evidence:

"Have you made a fairly in-depth study over the
last - over a number of years now of occupational
strains? - - - Well, I have had an intense clinical
interest. I have seen a large number of patients
probably numbering in the hundreds now over the
years, but of course that goes right back to the
mid-1960s. This is not a recent experience.

You in your first report referred to this lady in
the opinion as suffering from a repetition strain
injury which is labelled tenosynovitis. What is
your diagnosis at this stage? - - - Well, I think the
more accurate term is occupational strain injury
or occupational overuse syndrome. That is a more
accurate description, because repetition is not
the key factor.

What is? - - - Uninterrupted muscular contraction.
The women at the telephone exchange at Queanbeyan
type in approximately 50 key strokes in two
minutes, which is trivial, but what they do is
they keep their arms up in the praying mantis
position, and it has been known since 1939 that
muscle blood flow ceases when 30 per cent of the
maximum power of muscular contraction is
exercised, and that must be the root of the
problem because that is the only factor which is
common in all patients who have this group of
symptoms.
. . . . .

Doctor, do you believe that stress in terms of
pressure rather than physical stress has got any
part to play in this phenomenon? - - - You mean sort
of standing over someone and getting them to work
faster, is that what you mean?

Type of thing? - - - Yes, well, it makes things worse,
because obviously stress makes you tighten the
muscles that little bit more. It does not matter
whether the stress comes from someone standing
over you or the stress of any unhappy
relationship; it does not matter. It gives you
the same effect."

82. In my opinion, the views expressed by Dr Brook and Dr Mann are to be preferred to those expressed by Dr McGonigal, Dr Sinclair and Dr Long. The views of the former give a rational explanation to a well-known and widespread complaint. Moreover, it appears to be the view generally accepted in the medical profession, as Dr Brook said, notwithstanding that the underlying pathology is not understood.

83. After leaving Phipson's in February 1984, an employment from which she was dismissed as from 18 May 1984, the plaintiff was for a long time unable to undertake employment. She was restricted in the work she could do in her home, having pain in her neck and arms. She advertised and had a person live with her who was able to help her with the housework. She is still unable to undertake heavy housework, such as cleaning, vacuum cleaning and cleaning floors. Before the injury, the plaintiff had been active in jazznastics, jogging, swimming and basketball and has been unable to continue those. She has had to give up sewing. Previously she made many of her own clothes as well as curtains, coverings and the like for her home. Being unable to sew she now has to buy clothes and other items that previously she would have made. The plaintiff has had to purchase a number of aids because of lack of strength, such as a jar opener, a tap opener, a Breville sandwich maker, a chopper, a mixer and other aids.

84. For the first six months, the pain stayed at an intense level but has since become gradually better. At one stage she had acupuncture and it improved a little. The progress of the condition is described in the following evidence of the plaintiff:

"Well, did you have, at this time in 1984, any
problems cooking, peeling, gardening, ironing and
things like that? - - - In 84, yes. In 1984, yes.
And what was your problem shopping? - - - Lifting the
bags, it was quite painful to do that.
And holding cups and preparing meals and things
like that? - - - Yes.
What was the problem? - - - I would keep dropping
things.
Why? - - - I do not know. I thought I had a proper
grip of something and it would fall out of my
hand.
Well, how has the state of health of your arms and
shoulders and neck developed since you left
(Phipson's) in February 1984; have you got any
better or what? What were you like over the next
six months? - - - For the next six months the pain
just seemed to stay at a really intense level
which was almost unbearable. I went away on a
holiday and had a complete break and the pain
seemed to reduce a bit. I was not doing anything
and when I came back from the holiday it had
reduced to a bearable level. When I had to go and
do something with my arms the pain would increase
again, and that is up to about six months.
Well, after that six months what about the next
six months, to the end of 1984, the beginning of
1985? - - - It stayed at that level for a while and I
would say it got slightly better mainly because I
was learning, myself, what I could and could not
do. I had also been going to the support group
who were giving me hints on things, like do not
try and do all the things you want to do in the
one day, spread it out over your week. And things
like that were helping me to gauge it a bit better
and it was easier on my arms then.
Were you then beginning to cope better? - - - Yes.
Well, then in 1985 to 1986 how did you go, did you
improve more or not? - - - I would say slightly, yes,
I improved.
And then 86 right to the end of 1986, up until
now, how are you? - - - About the same. There has
been once or twice where I improved. For
instance, I got acupuncture and that helped, that
took the pain away, and then the acupuncture
stopped working."

85. As she improved, the plaintiff undertook a number of courses to increase her capacity for work, including a leisure and entertainment course, a conversational French course, a mathematics course and a personal management course.

86. For some time, the plaintiff sought employment through the Commonwealth Employment Service and agencies and by enquiry. In May 1986, she obtained a position in the office of Fire Control Pty Limited, engineers concerned with fire prevention and control. Mr I.L. Whitfield, the Canberra Manager of Fire Control Pty Limited, said that the plaintiff was the manageress in charge of the office and accounts. She attends to all the administration to do with the Canberra branch. He said, however, that the company is becoming more and more involved with computing, both for the purpose of estimating and for the purpose of accounts. Computer terminals have been installed to connect with a main computer in Sydney. He said that use of the computer is gradually building up and that, if the plaintiff is to continue with the company, she will in due time be expected to use the word- and data-processing terminals.

87. The plaintiff gave this evidence, which I accept, as to her present condition.

"Well, you have done these college courses and you
have this job with Fire Control. You have said
that you managed there; what exactly are your
duties, do you do typing? - - - Well, I am employed as
the office manageress and also I am doing the
accounts which basically means that cheques that
arrive for the company I allocate them to the
payment to the invoice that was allocated for
the cheque. The paper work involved usually is a
lot of searching for things. I do write cheques
How many a week? - - - Approximately 10, 15 at the
most I would say. That is over a week.
Can you manage those? - - - If they are all on the one
day, no, but I have made a system now where I
start them on the Tuesday and by Friday afternoon
I have got them finished.
Yes, what else? - - - I prepare time sheets, which
involve no writing. That is just gathering the
sheets together, checking the figures that are on
them and sending them to the Sydney office. I
also do chasing up debtors which is probably 50 to
80 per cent of my week - on the phone. And I am
trying to trace money that has not been paid and
make sure that gets paid.
. . . . .
Now, in addition to doing that work have you been
told that there is change coming in your
work? - - - Yes, they are going to computerise the
office.
Can you work a keyboard? - - - I have tried it. I am
not a typist any longer, I can do it one finger.
Well, if you have to do all your work on
computing, on a computer with your entering up all
the information that you are doing now on
computers, will you be able to cope with that or
not? - - - I would like to think that I would have a
go at it and try it.
Could you work a computer if you have to do
keyboard work, say, for an hour a day? - - - I would
like to believe that I could try that, yes.
If it is longer than that? - - - I may have problems."

88. Of the prognosis, Dr Brook gave this evidence:

"Doctor, what do you expect to be the future for
this woman, are you able to say? - - - I must confess
I am not able to say. It is my impression that
those cases which are still significantly, or
report that they are significantly disabled by
their pain after two years have a poor outlook.
As with most biological things they often improve
over the course of several months but when it has
gone as long as two years the outlook does seem
most uncertain. I am sorry to be so vague about
it but I have a large number of cases that have
gone for longer than two years and they really are
not making progress. Very few of them have
subsequently got better as yet. This is my
experience which goes back, I suppose, to about
the beginning of 1982 in large numbers."

However, the plaintiff has, I believe, a good and a positive attitude to her problems. She is gradually improving and seems likely to continue to do so, though whether her problems will ever be overcome wholly or substantially is impossible to tell on current knowledge. The plaintiff is still unable to carry out much of the housework in her home. Her ability to care for children would be much restricted.

89. I turn now to the question of damages. The plaintiff's wage loss was $30,973.19. I note that she received $22,224.94 in weekly payments of workers' compensation, leaving a balance of $8,748.25 on which interest should be calculated. On that sum, I allow 2 years' interest at the rate of 14% per annum, giving a figure of $2,449.51. The Fox v Wood ((1981) [1981] HCA 41; 148 CLR 438) component is $2,728.90.

90. The medical expenses are agreed at $4,079.00.

91. The plaintiff has had to purchase certain household aids. She will continue indefinitely to be able to sew and therefore to make her own clothes, curtains, etc. This item is difficult to quantify. I make a conservative estimate and allow $2,000 for past and future loss in this respect.

92. Future loss of earnings is equally difficult to quantify. The plaintiff is not likely to recover her previous ability to work as a word processor operator or typist : see the reports of Dr Brook and Dr Mann. However, the plaintiff is a resourceful person who is likely to be able to find employment in some form or another, though she will have more difficulty than a person who does not suffer from RSI and may well have periods of unemployment. I assume that over a period of time she will gradually develop other skills. It is impossible to know whether her future earnings will be less than they would have been if she had not succumbed to RSI. Indeed, it is impossible to determine whether and when she may have married and had children and what effect that may have had on her earnings. It is not known whether or not she will be able to continue in her present employment. In the circumstances, I have thought it proper to allow a sum calculated by reference to the limitation which the plaintiff's RSI places upon her capacity to undertake remunerative employment, that is to say, taking into account the limitation in the range of work available to her and the risk of future unemployment because of her medical condition. On this basis, I allow the sum of $33,500 for the diminution in her capacity for work. This is approximately 2 years net salary, though I have sought to fix a fair sum for the loss of capacity to earn rather than to adopt any specific basis for the sum. I do not reduce this sum for contingencies, for the plaintiff is more at risk now than previously she was likely to be.

93. As to general damages, it is to be remembered that the plaintiff has had a great deal of pain and discomfort and will continue to do so, perhaps for the remainder of her life. Her life has been disrupted. She is unable to undertake the physical and sporting activities she previously enjoyed. Her ability to manage her own home is impaired. She would have difficulty caring for children. However, the effect of the medical condition presently is rather to restrict the activities which the plaintiff can undertake than to cause her chronic severe pain. I do not wish to understate the pain and discomfort which the plaintiff still suffers but I regard the restriction in her lifestyle and the loss of enjoyment of life as the major factors. On this head of damage, and keeping in mind the necessity to avoid overlap with compensation for diminution of capacity for work, I allow the sum of $20,000.

94. The total sum seems to be an appropriate sum to compensate the plaintiff for her disability and the consequences thereof.

95. Interest at 14% per annum will be allowed on the past component of compensation for pain, suffering and loss of amenities of life, which I assess at $12,000. Such interest, calculated in accordance with the usual practice, amounts to $2,800.

The total damages therefore will be :

loss of wages $30,973.19
interest thereon 2,449.51
Fox & Wood component 2,728.90
medical expenses 4,079.00
past and future out of
pocket expenses 2,000.00
loss of earning capacity 33,500.00
loss of enjoyment of life 20,000.00
interest thereon 2,800.00
_________
$98,530.60

96. There will therefore be judgment for the plaintiff in the sum of $98,530.60. Counsel may address me with respect to costs.