Else Marie Mcgahey v Australian National University [1987] ACTSC 57 (18 August 1987)

SUPREME COURT OF THE ACT

ELSE MARIE McGAHEY v. AUSTRALIAN NATIONAL UNIVERSITY
S.C. No. 691 of 1984
Negligence - Employee - Damages

COURT

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

CATCHWORDS

Negligence - employee plaintiff allegedly injured through system of work - no "injury" in ordinary sense of word - plaintiff's condition allegedly arising over a period of years - no suggestion of unusual susceptibility to spinal injury - no prior complaint of discomfort by plaintiff - reasonably foreseeable risk of spinal condition developing from repetitive activity at work - means of avoiding risk - not unreasonable of defendant to have failed to adopt obviating measure - no new matter of principle.

Employee - allegedly injured through system of work - no "injury" in ordinary sense of word - plaintiff's condition allegedly arising over a period of years - no suggestion of unusual susceptibility to spinal injury - no prior complaint of discomfort by plaintiff - reasonably foreseeable risk of spinal condition developing from repetitive activity at work - means of avoiding risk - not unreasonable of defendant to have failed to adopt obviating measure - no new matter of principle.

Damages - no "injury" in ordinary sense of word - alleged work conditions over a number of years led to plaintiff suffering disc protrusion in lumbo sacral spine, entrapment of lateral cutaneous nerve, cervical and neck problems and depression - no evidence of organic relationship between cervical pain and nature of work or disc operation - finding that depression substantially caused by disc operation and its aftermath and that depression aggravates pain in cervical area - disc operation necessitated by working conditions over a number of years - no prior complaint of discomfort by plaintiff - not unreasonable of defendant to have failed to adopt obviating measure - no new matter of principle.

HEARING

CANBERRA
18:8:1987

ORDER

Judgment for the defendant.

DECISION

This is an unusual action for damages by an employee against her employer, the Australian National University, alleging negligence on the part of the employer which has resulted in an incapacitating and debilitating physical and psychological condition in the employee. It cannot be described as an action arising from personal injury, because the plaintiff has not sustained any injury in the ordinary sense of that word. The essential thrust of the plaintiff's claim is that she was obliged over a period of years to carry out her duties for such periods and in such conditions and necessarily adopting such posture that she eventually suffered from symptoms attributable to a disc protrusion in the lumbo sacral spine. It is further alleged that the work conditions also gave rise to entrapment of the lateral cutaneous nerve, and to cervical and neck problems and depression. It is alleged that the system of work to which the plaintiff was required to submit in order to carry out her duties of employment constituted a failure on the part of the employer to take reasonable care for the safety of the plaintiff in that there were alternatives available to the employer for the carrying out of the task in hand and that it was unreasonable for the employer not to have adopted those obviating measures.

2. The plaintiff was born on 5 September 1950. She gained qualifications as a biological research technician after she commenced working for the defendant as a laboratory technician in 1969. She married in 1970 and left the employ of the defendant after she became pregnant with her first child. She gave birth to her second child and did not resume work with the defendant until February 1977. She continued in full-time employment as a laboratory technician in the Molecular Biology area until 16 April 1980. She was then transferred to the Population Biology section, but she worked part-time only, on each day from Monday to Friday for about a total of twenty-five hours per week. Her job was to look after the plant and stock in the grasshopper room. During the first twelve months or so there was another employee working with her in the grasshopper room, but thereafter she worked on her own, without assistance and, so it would appear from the evidence, with little or no supervision.

3. The dimensions of the grasshopper room are unknown. A sketch plan however shows that it was taken up by three rows of glass cabinets in which were kept the grasshopper cages. There was a space, like an aisle, less than a metre wide between the rows of cabinets. Each of the twelve cabinets contained four to five cages. Each cabinet had its own micro-climate whereby the humidity temperature and light could be controlled. The cages were of two sizes, large and small. The large cages were about 50 cms high, about 35 cms wide and deep. The small cages were about 38 cms high and about 25 cms wide and deep. They each had a plywood base in which circular holes about 6 cms in diameter were cut. Into each of those was inserted a plastic pot (referred to repeatedly in evidence as a "pod") containing water, grass or sand. The large cages could contain as many as 50 grasshoppers. The walls and roof of the cages were of fine insect proof mesh. The plywood door had a cloth sleeve opening whereby access could be gained for replenishing the pots and cleaning the cage.

4. The cages within the containers were at two levels, supported on a wire rack. Mostly the small containers were placed on the lower level and the larger ones on the upper level.

5. The plaintiff's duties included the replenishing and cleaning of the pots, the cleaning of the cages and the disposal of waste material from the cages. To clean the cages at the lower level the plaintiff adopted the technique of half kneeling and half sitting on the floor. It is clear that there was a great deal of stooping bending and squatting. There was also a substantial amount of lifting, as the cages had to be lifted out of the cabinets for the purpose of cleaning them. They were cleaned on two days of each week. Furthermore, the waste material had to be tipped into a tray and bin on a trolley and carted off to be burned in an autoclave, a sort of steriliser.

6. Prior to the second half of 1982 the plaintiff had enjoyed reasonably good health, although she had undergone an operation of a gynaecological nature and also an operation on the gall bladder. The latter operation was in 1981 and it had been discovered shortly after that operation that she had a venous problem manifested by the clotting of blood within the veins of the left leg. The pain and swelling associated with this problem had been controlled by the use of a special stocking and there is no suggestion that it continued to occasion any symptoms in the left leg between about July 1981 and the events of which I now speak. According to Dr Berenson the clotting problem only became evident after operative procedures.

7. At some time in 1982 the plaintiff started to notice a cramplike pain in her right leg, a pain which was greater than that which she had previously felt in her left leg and which steadily increased. She did not associate the pain in the right leg with her work until, according to her evidence, she was advised of that possibility by Dr Andrews. The advice would not have been received before May 1983. In cross examination she conceded that she may not have complained earlier because she did not want to jeopardise her position at work.

8. The first time the plaintiff consulted any doctor concerning her right leg was on 12 October 1982 when she went to Dr Berenson complaining of pain in both legs and aching in the right hip. When she returned on 4 November 1982 she was referred to Dr Stubbs, an orthopaedic surgeon. There is no report and there was no evidence from Dr Stubbs, but according to Dr Berenson's report, Dr Stubbs could find no apparent cause of the pain.

9. The plaintiff continued to feel pain down her right leg and when next seen by Dr Berenson on 20 January 1983 she was complaining of tenderness in the lower spine. She was referred to Dr Andrews who considered that there was possible nerve root irritation at the lumbo sacral level, and x-ray investigation at that stage indicated probable disc lesion at that level. Dr Andrews referred the plaintiff to Dr Chandran, a neuro surgeon. Dr Chandran operated on 21 February 1983. Operative findings confirmed the existence of a bulging of the disc at L5/S1. Part of the disc was removed. According to both Dr Chandran and Dr Andrews the operation was as successful as might be expected. After her discharge from hospital the plaintiff then convalesced for about six or seven weeks at home, returning to her former work with the defendant some time in April 1983. She was not clear in her evidence as to whether at that stage she associated the condition in her back and right leg with the work conditions. The implication from the evidence is that she returned to the range of duties that she was performing prior to the operation. Some time in May 1983 the plaintiff began to experience pain in the left leg and it became clear that this was associated with the venous condition. That condition itself had a congenital origin, but I find that the symptoms and incapacity which asserted themselves in May 1983 would not have occurred without the operation for removal of part of the disc in February 1983.

10. According to the report of Dr Chandran of 20 August 1984, the plaintiff had already been treated for the venous problem when he reviewed her in April 1983. At that stage the plaintiff had no sciatic pain, although she "talked of an itchy sensation in the leg". She was, however, complaining of neck pain of three weeks duration and was wearing a collar prescribed by Dr Berenson. Dr Berenson's report states that the pain in the neck was localised at the C2 level and caused parasthesia in the scalp and a little pain. The plaintiff was admitted to hospital again.

11. The venous problem seems to have over-lapped that of a painful feeling in the right thigh which manifested itself. The pain in the right thigh was found to be caused by the entrapment of the lateral cutaneous nerve, a condition separate and apart from that caused by the disc prolapse and the venous problems. Medication for the nerve entrapment conflicted with medication for the venous problems. The plaintiff continued to complain of pain in the left sub-occipital region of the neck, but with full movement. Electrical studies failed to disclose any nerve root compression in the area of the lumbo sacral operation, but confirmed the compression of the lateral cutaneous nerve of the right thigh. Dr Chandran operated in October 1983 to decompress that nerve. Subsequent to that operation and consequent upon it, the plaintiff developed a large haematoma in the area of the right hip and groin.

12. In the meantime the plaintiff had returned to work on 23 May 1983, although Dr Andrews had recommended to her that she should not persevere with the type of work that she had been performing. It appears that she went off work again on 7 June 1983, and it is not in dispute that she has not worked since then. She began receiving physiotherapy treatment in October 1983 for the post operative haematoma in the right groin, but two weeks after that the physiotherapist began to treat her for occipital headaches, crawling sensations in the head, and cervical pain. The opinion of the physiotherapist expressed in a report was that the "neck prognosis" was poor because of her "lumbar spine condition" and it was felt that she would require physiotherapy for her cervical spine indefinitely. On 31 July 1984 Dr Berenson referred the plaintiff to a psychiatrist, Dr Lee. Dr Lee made a diagnosis of chronic pain syndrome with reactive depression, treated her with a combination of various anti-depressant medicines as well as hypnotherapy and psychotherapy, with five sessions of the latter between July 1984 and May 1985. During that period also she attended the rehabilitation clinic at the Woden Valley Hospital where it was concluded that she was unable to tolerate sitting because of pain in the back and legs, pain sufficient to prevent her from undertaking employment of a sedentary nature. Consideration was given to her carrying out some tasks in the geriatric unit of the hospital, but the conclusion was reached that the plaintiff was unable sufficiently to assist in the movement of the geriatric patients for her to be of any use.

13. A CAT scan taken in January 1984 suggests that adhesions had developed in the lumbo sacral area as a result of the disc operation, and the medical opinion is undisputed that those adhesions are capable of giving rise to the sort of condition which would cause symptoms such as those of which the plaintiff still complains in her lower back and in her right leg.

14. Dr Mann, consultant orthopaedic surgeon, who saw the plaintiff on one occasion for the defendant, considered that the entrapment of the lateral cutaneous nerve was due to the employment conditions. The treating surgeons, however, Dr Chandran and Dr Andrews, are not prepared to put the connection between the employment and the cutaneous nerve entrapment as high as a probability and, in my view, the plaintiff has not discharged the onus on this aspect. As far as the neck and cervical problems are concerned, there is no evidence which enables me to conclude on the balance of probabilities that there is anything organic in the cervical region which can be traced to the nature of the plaintiff's work or to the operation performed in February 1983. I do accept, however, that the depression from which the plaintiff has suffered has been substantially caused by that operation and its aftermath, including post operative adhesions, consequent lumbar pain and restricted movement and associated depression. I am further convinced on the balance of probabilities that the depression aggravates or brings about the perception of aggravation of pain in the cervical area. I am convinced that the depression would not have occurred without the operation of February 1983 and that the necessity of the operation would not have occurred unless the plaintiff had been subjected to the working conditions that she had followed over a couple of years involving prolonged stooping, bending, squatting, kneeling, associated with lifting and twisting whilst in a bent position.

15. The question then arises as to whether the plaintiff's condition has been brought about by any negligence on the part of the defendant. It was not suggested in evidence that the plaintiff has in fact had an unusual susceptibility to spinal injury, and furthermore it is clear that she made no complaint of the cramplike feelings in her legs to her employer at any time prior to February 1983. Indeed it appears that she did not associate her work and her symptoms until May 1983 at the earliest. I am not able, therefore, to conclude that it was within the defendant's actual or constructive knowledge that there was any substantial likelihood that the plaintiff would suffer the sort of condition she did in fact suffer, namely a disc prolapse. On the other hand, it seems to me that as a matter of common sense the possibility that the working conditions would give rise to spinal problems in an employee of ordinary strength and build was not an unreal or fanciful one. Therefore, the risk that the plaintiff might in due course, from repetitive activity of the nature I have described, suffer a disc prolapse, would have to be regarded as a foreseeable risk. It is unreal in the present case to talk of that risk in terms of risk of injury, and if it were necessary to fix a date or time on which any such injury or injuries was or were sustained, I should not be able to do so. However, it is not necessary to so precisely fix any such occurrence or occurrences. What is clear in my view is that by the time the plaintiff submitted to operation in February 1983 the damage had been sustained. It is likely, in my view, that the plaintiff's working conditions, again as I have described them, materially contributed to the spinal condition which necessitated operation in February 1983. I think therefore that the plaintiff has proved not only the casual connection between that condition and the system of work but that she has established that the spinal condition was a reasonably foreseeable risk.

16. The particulars of the acts and omissions relied upon were (omitting particulars of a general and formal nature only):

"(e) Failure to provide sufficient room and benches

on which the cages could have been placed at a
more comfortable level, thus avoiding the need
for the Plaintiff to squat and lean forward in a
position likely to cause the Plaintiff injury;
(f) In so far as the Plaintiff had to lift some of
the said cages and carry same, failure to
provide the Plaintiff with sufficient numbers of
trolleys and other plant and equipment suitable
for lifting and moving them;
(g) Failure to provide the Plaintiff with assistance
with other persons fit and strong enough to help
the Plaintiff to lift and move the said cages;
(h) Failure to warn the Plaintiff that she must not
try to lift and move the said cages on her own;
(i) Failure to warn the Plaintiff that she must not
try and perform her work on the said cages while
the same were at a level which required the
Plaintiff to squat and lean forward;
(j) Failure to instruct the Plaintiff that before
performing her duties in relation to those of
the cages as may have been at floor level, she
should have obtained assistance from someone
strong enough to lift them to higher position."

17. I am satisfied that with the exception of (f) adoption of one or more of these measures, which the defendant clearly did not carry out, would be likely to have obviated the risk of injury to the plaintiff.

18. However, to say that there is a foreseeable risk and that there was a means of avoiding the risk does not mean that the plaintiff necessarily succeeds on the issue that it was unreasonable of the defendant not to have utilised the obviating measures. There was some evidence from a Mr Cameron that in another part of the University there were some grasshopper cages which were installed or kept at waist level and accordingly it was not necessary for those who had to use and clean the cages to stoop, bend, squat and so forth in the manner required of the plaintiff. However, it is a difficult question to decide whether, in view of the relative magnitude or otherwise of the risk, it was unreasonable of the defendant to set out the grasshopper cages in the Population Biology section so that up to one half of them at any one time were below waist level, thus requiring the plaintiff to stoop, bend and squat in order to clean them and lift them. The evidence does not persuade me that the dimensions of the grasshopper room were such that there was sufficient space for all the cages to be laid out so that stooping and bending could be obviated. Indeed, the evidence is to the contrary and leads to the conclusion that if the cages were to be laid out at such a level then it would have to be in another room of larger dimension. There is no evidence that there were other rooms available for that purpose at the time. Perhaps there were, but I am not prepared to draw that inference, even bearing in mind that no evidence was called on behalf of the defendant. It is possible that the defendant could have set aside or constructed another grasshopper room for that purpose somewhere on the campus, or indeed elsewhere. It is also possible that the defendant could have closed down some other operation upon the campus or elsewhere and transferred the grasshopper breeding activities there. Alternatively, the defendant could have simply shut down the grasshopper breeding activities until space became available somewhere whereby it was possible to lay out the cages so that they could be cleaned and moved without the need for stooping or bending. Yet another alternative would have been to reduce the size of the grasshopper breeding operations so that fewer cages were in use and all those in use could be accommodated within the room in current use at waist level.

19. After careful consideration of all the aspects, I am not convinced on the balance of probabilities that it was unreasonable of the defendant to have failed to adopt one of these obviating measures. I bear in mind in particular that no complaint had ever been made by the plaintiff or any other employee about discomfort, and although I appreciate that Dr Andrews and Mr. Cameron said that when they adopted the position that the plaintiff said she adopted in order to move the cages, they felt uncomfortable or painful in the spinal area, that of itself does not in my view mean that it was unreasonable for the defendant to fail to take any of the obviating measures. It is well known that in many occupations prolonged bending and stooping and squatting is required and whilst it may be feasible to avoid prolonged stooping and so forth by simply instructing the employee to desist after a certain period, or to employ the employee on other activities after a certain period, there is no evidence as to what these particular periods would have been. Reliance was placed on French v. Phipson Nominees Pty. Limited (unreported 9 June 1987 per Davies J.) but that was a case decided on its own facts and there is no principle of law established by that case which attaches liability on the facts of the present case to the defendant.

20. Although there must be judgment for the defendant on the issue of liability, the plaintiff was a convincing witness and it may be of assistance to the parties if I state briefly my findings on damages. Some of those findings have already been incorporated into what I had to say on the issue of liability. Only at one stage in her evidence did the plaintiff appear to me to be exaggerating somewhat. I think that this was probably explained by her prolonged period in the witness box and a tendency towards exasperation under cross-examination. Dr Corry makes mention of an apparent inconsistency between her present attitude that she is unemployable and her prior partly successful efforts at the rehabilitation centre to follow activities which, if not income generating, were at least personally satisfying. There is also something of a paradox in the plaintiff's present routine of spending most of the day in bed, yet when she gets up she exercises by walking and swimming. However, whilst the plaintiff's medical condition has been and continues to be a complicated one, there is not really much dispute about its nature. She has suffered a seriously debilitating condition contributed to partly by the aggravation by her working conditions of disc disease in the lumbar region, the continuing effect of post-operative adhesions in the same general area, post-operation venous complications which have ceased to have effect at this stage, and cervical spinal problems which are not due to injury but which are aggravated by psychological factors, and continuing depression. The plaintiff was formerly a bright, out-going person, active in the organization of her family and social affairs. She carried out work as a laboratory technician with enthusiasm. The overall medical prognosis is that she is unfit except for part-time duties of a clerical nature which do not require prolonged sitting. She sees this, understandably, as a proscription on all forms of employment, and that affects her self-esteem. At home she is substantially restricted in her ability to carry out a range of activities which are now performed by her husband or children. Her otherwise bed-ridden existence is a further factor in her low self-esteem. However it is not a totally bleak existence. She spends a few hours out of bed each day getting exercise by swimming and walking. She and her husband intend to move to the coast where she expects that the warmer weather will be kinder to her. Her husband intends to go into a small business of some description where it might be that the plaintiff could find some worthwhile activity within her scope. If those circumstances do occur, then it might be that what Dr Lee, the psychiatrist, described as "the continuing support and encouragement to break this vicious cycle and to find a more constructive direction in life" might be achieved. I note that last year the plaintiff and her family spent six weeks touring Europe, and although she said that it was necessary for her to increase her medication during this period in order to cope, I think that that is a fair example of what she might achieve given proper motivation. However, for the purpose of assessing loss of earning capacity from 24 August 1983 (when she was last paid salary or wages) to date, I think that the plaintiff should be regarded as having been totally incapacitated and the agreed figure should be nominally discounted for contingencies to $40,000. For future loss of earning capacity, I think that there should be a substantial discount for possible incapacity from the degenerative spine condition in any event, whether cervical or lumbar or both, and for the venous problems which would be likely to assert themselves in the event of any operative treatment becoming necessary for treatment of the spinal conditions. I am not convinced that there was any substantial likelihood of the plaintiff achieving promotion during the rest of her working career, but the possibility that it might have occurred should be taken into account. So should also the possibility still open that the plaintiff might achieve a modest income-earning capacity at some time in the future in order to supplement the family finances. If she does, then her general psychological state and to some extent her perception of pain are likely to improve. I would allow $219 net per week to age 60 and applying the 3% discount tables and reducing the total by 25% for contingencies award a figure of $140,000.00. Out-of-pocket expenses are agreed at $13,401.62. The exact Fox v. Wood component is not clear, but it is apparently just over $9,000. Future out-of-pocket expenses are likely to be incurred by the plaintiff, but it is inappropriate on the evidence to fix on any continuing loss on a firm basis. I would allow $1,000 for out-of-pocket expenses in the future. For pain and suffering and loss of enjoyment of life I would award $40,000.00 and apportion $25,000.00 for the past. For the purpose of interest I note that the plaintiff has received worker's compensation payments of $36,208.26 and I would award interest on past economic loss at 14% per annum on the balance of approximately $3,800 and on the $25,000 component of pain and suffering for the past, reducing the end figure by half.

21. Nevertheless, there will have to be judgment for the defendant. Unless the plaintiff wishes to be heard, I propose to order that she pay the defendant's costs.