Brenda Ann Madelly v Idp Education Australia Limited [1996] ACTSC 105 (25 October 1996)

SUPREME COURT OF THE ACT

BRENDA ANN MADELLY v. IDP EDUCATION AUSTRALIA LIMITED
No. SC 329 of 1995
Number of pages - 7
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HOGAN AJ

CATCHWORDS

Negligence - Employment injury - Repetitive Strain injury - Employer's knowledge of workers susceptability - no issue of principle.

Damages - Assessment - Personal Injury - Repetitive Strain Injury - No issue of Principle.

HEARING

CANBERRA, 13 August 1996
25:10:1996

Counsel for plaintiff: Mr G. Parker

Solicitors for plaintiff: Gary Robb and Associates

Counsel for defendant: Mr M.Cranitch SC

Solicitors for defendant: Deacons Graham and James

ORDER

THE COURT ORDERS THAT:
Judgment be entered for the plaintiff in the sum of $259,645.

DECISION

HOGAN AJ The plaintiff in this action seeks to recover damages for injury that she claims she sustained as a result of the negligence of her employer. She was not harmed by any sudden trauma, but claims to have sustained a work related repetitive strain injury, especially in her right forearm.

2. The plaintiff is a married woman, born in 1938. Although she began, but did not complete, formal qualifications in accountancy, she became very experienced and skillful in bookkeeping and accountancy. In 1983 she obtained a position as an accountant with the defendant, which then had its offices in Churchill House in Northbourne Avenue. The defendant administers the International Development Program of Australian Universities and Colleges.

3. By 1990 the activities of the defendant had greatly expanded, and much of the accounting work was done on computer. In 1990 the defendant moved its business premises to the Australian University Center at Deakin. The company was restructured, and new practices of management reporting were introduced. Part of the work that the plaintiff was required to perform was handled by an IBM mini computer, and part on a personal computer. It was necessary for her to spend a large part of her time working at two computer terminals, often under stringent time constraints. She informed her superior that she did not have the resources of people or time to do the work, but was told that the board of management required it to be done.

4. In December 1990 she noticed that her right arm became very swollen and very painful. She consulted her general practitioner. The clinical notes kept at that practice contained an entry as follows, "Dec. 1990- pain in right arm and hand. She had been doing a lot of keyboarding work. The findings were consistent with Repetitive Strain Injury." She was advised to rest the arm. She informed her personnel officer about the advice she had been given, and took two weeks recreation leave over Christmas.

5. The records of the defendant contain a file note dated 20 December 1990, which reads, "Brenda Madelly reported swollen, very sore right arm. Unable to use her hand. She has been keying in budget data constantly on the numerical keypad and yesterday lunch time the arm swelled. It has been sore before but not like this and has always gone down over night. Brenda is going to get a doctor to look at it. (Signature) (P.S. sore and swollen from fingers to elbow).

6. When she returned to work in mid January the swelling had gone down. She informed her superior, Mr. Pidgeon, that she had had a problem with her arm, but felt well enough to resume her normal duties. The note in the doctor's notes for January 1991 was, "improving".

7. The problem flared up again at the end of the financial year in June 1991, and again settled down, but it was necessary for her to carry her right arm in a sling and work with her left hand. Mr. Pidgeon asked her not to take time off work, because as long as she was there she could at least supervise other people.

8. At the beginning of 1992 a new system was introduced which required the preparation of financial records relating to the calendar year as well as the financial year. The plaintiff was required to spend a great deal of extra time at the keyboard. When her right arm swelled, she put it in a sling. Her first visit to Dr. McCluskey was in February 1992. Her note was, "my first involvement-further recurrence not specifically related to keyboarding. Settled."

9. In April 1991 the board of the defendant had decided that an additional member of staff could be employed from October 1991, but in fact there was no additional assistance until February 1992.

10. On 13 February 1992 the plaintiff informed a superior, Mr. Streat, that she was seeking medical attention for her right arm. The doctor had given her a certificate for absence from work from 13 to 24 February.

11. In April 1992 the plaintiff was given a different position, which did not require as much keyboard work. She was responsible for the work of four other officers. Work at a keyboard occupied about 40 percent of her time. She was able to cope without any complaint about her arm.

12. Over a particularly busy period of two or three weeks in January 1994 her right arm swelled up again. Dr. McCluskey noted a recurrence on 1 February 1994, slight improvement on 28 February 1994, and on 28 March 1994, "no further improvement and continuous difficulty since that time. Treatment for each episode has included non steroidal anti-inflammatory drugs, physiotherapy and rest." Her report dated 8 November 1994 commented, "Since February this year there has been no resolution despite all the above. We tried half days working, no keyboarding and now no working and when last seen on 12 October 1994 there was still significant discomfort and loss of strength in the right arm. The pain has extended to involve the neck now as well."

13. The defendant's insurer sought an assessment from Dr. Iansek, consultant neurologist, who examined her on 3 June 1994. He noted a history that when she stopped work her symptoms improved, but returned when she returned to keyboard and data entry. She had been treated with physiotherapy twice a week over 5 months. When she had used her left hand, she had developed similar symptoms there, although not as severe as those in the right arm. After an overseas trip she had returned to work every alternate day, and was coping. Dr. Iansek found no evidence of neurological dysfunction, and diagnosed chronic muscle pain, the onset of which was related to the performance of excessive keyboard work in her duties as an accountant. He suggested a graduated return to normal hours, as long as she was not required to perform repetitive arm movements. His prognosis was guarded.

14. The plaintiff was off work for about 3 months, and her superiors were anxious to know when she could return to full time work. She did not feel capable of returning to full duties. She did not return to work with the defendant after some time in September 1994.

15. The defendant's insurer sought an assessment from Dr. Kretsch, a consultant in occupational medicine, who examined her on 10 January 1995. She gave a history which was broadly consistent with the evidence. In his opinion she had sustained a work related repetitive strain injury involving both forearms as a result of her work activities around February 1992. She also had evidence of a work related cervical postural syndrome and a right T3/4 syndrome which was related to her original problem and past work activities. She also appeared to be developing some degree of chronic pain behaviour. He thought she was capable of returning to work in appropriate part time activities which would avoid any keyboard tasks or prolonged periods in a fixed position or repetitive use of either hand. He suggested active physiotherapy. He thought it unlikely that she could ever return to her pre injury work.

16. Her solicitors sought an opinion from Dr. Owen White, consultant neurologist. He examined the plaintiff on 19 January 1995. By this time she was complaining of constant right neck and shoulder pain, radiating to the arm and elbow, pains in the left forearm, weakness of the right hand, and extreme boredom and frustration. She was receiving physiotherapy. Anti inflammatory drugs caused stomach problems. He thought her history was entirely compatible with a diagnosis of regional pain syndrome due to industrial over usage. She was not fit to return to employment or to do any keyboard work. He thought that rehabilitation was possible but did not anticipate substantial improvement inside a year.

17. The plaintiff has continued to be disabled. Her arm gets very sore if she does any activity of a repetitive nature. She is restricted in her household activities, and can drive a car for only short periods. She resigned from employment with the defendant in February 1995. She has obtained occasional part time work coordinating the activities of international students.

18. She was reviewed by Dr. White on 9 March 1996. He thought that there had been significant improvement in her condition since he had last seen her in that, although she has constant cervical pain, the pain in her upper arms had reduced and was only proportional to her level of activity. When she worked full time her arms swelled, taking a month to recover, but she was able to cope with 5 to 10 hours a week. Physiotherapy was continuing. He expected her condition to continue much as it was then. He did not believe that she would ever be able to return to full time work.

19. Dr. Roth, consultant surgeon, examined her for the defendant on 15 March 1996. She complained to him of symptoms in the neck and both arms which he described as a regional pain syndrome, related to the work that she had been performing. That work had also precipitated symptoms from pre-existing degenerative disease in the cervical spine, which was demonstrated on x-ray. He discovered minimal abnormality on clinical examination. He thought she had largely recovered. Ongoing physiotherapy was not called for. He thought that she was fit for clerical work, although it would be necessary for her to avoid prolonged static neck flexion, and to avoid working with a keyboard for prolonged periods without frequent rest. His prognosis was uncertain so far as the neck was concerned, but in his view there was no permanent impairment of the upper limbs.

20. A report by Dr. McCluskey in April 1996 is much more consistent with the opinion of Dr. White than that of Dr. Roth. Dr. Kretsch re-examined her on 16 July 1996. The history that he was given and his observations on clinical inspection were unremarkable. He believed that the plaintiff would be capable of working 4 hours a day on light administrative and clerical activities which did not require prolonged periods of writing or any keyboard activities. On such a regime of light duties she could eventually work full time. He advised more active rehabilitation, with specialised physiotherapy and frequent, regular, home exercises. She would never be able to return to her pre injury work.

21. Of the medical practitioners whose findings and opinions were in evidence, the only one who was cross-examined was Dr. Owen White. He described the plaintiff as suffering from a regional pain syndrome due to industrial overusage. That is, pain which characteristically occurs after prolonged performance of repetitive rapid movements of various types, and which is well recognised in industrial settings. Medical science has not yet solved the puzzle of identifying the mechanism that causes it. It can settle down spontaneously over a period of time, and then flare up again, especially if there is further overuse. At the time of his first report there was little obvious swelling to be seen, and he had based his opinion on the history that he had been given. The plaintiff had seemed to be better when he had last seen her, in March 1996, but he still thought that she should not return to full duties of the type that she had been performing, or do anything that required typing more than 40 percent of the time.

22. In the way in which the case was conducted, there was no suggestion that the plaintiff was giving to the court, or had given to the doctors, anything other than as accurate a history and description of her symptoms as she could.

23. Evidence was also given by Dr Neil Adams, who is a consultant in industrial safety and accident prevention. His report referred to the controversy about the authenticity and causation of so-called repetitive strain injury, and to the evidence that, under identical working conditions, some people may be completely unaffected, while others may claim to be seriously disabled.

24. I think that it is consistent with his researches and opinion, and with common sense, that the overall circumstances of her work up to and during 1990 were such as to have had the potential to cause harm to her, but neither she nor her employer had any reason to be aware of any danger.

25. The initial pain that she suffered in December 1990, therefore, clearly arose out of and in the course of her employment, but was not the result of any negligence on the part of the defendant.

26. In the light of the clear notification to her superiors of that temporary injury, however, the defendant was thereafter, in my view, clearly subject to a duty to take reasonable steps to ensure that the injury would not recur, lest it might become permanent. These steps could have included the design of the work station and the organisation of her work patterns.

27. I do not agree that it was sufficient to have provided ergonomic work stations in 1990, and then to rely upon the absence of further complaint for a time. Certainly, by mid 1991, when pressures of work resulted in such discomfort that she had her arm in a sling, it was obvious that drastic changes in her work patterns were called for. Although additional staff was authorised in April 1991, there was no additional assistance until February 1992. It was at about that time that it should have been obvious that the plaintiff had already suffered serious harm. Although there was some remission during the second half of 1992, and during 1993, by early 1994 it was becoming clear that the condition was chronic, and attempts to alleviate it by part-time work during that year did not succeed. The permanent damage had already been done, in my view.

28. The defendant's failure to take the necessary precautions after the initial incident in December 1990, in my opinion, amounted to a failure to take reasonable care for the safety of the plaintiff and there will therefore be judgment for the plaintiff.

29. So far as the defendant is liable for damages, since mid 1991, the plaintiff has suffered intermittent periods of pain, first in her arms and later in her neck, which eventually forced her to give up her job that she had enjoyed, and at which she was obviously extremely competent. She will always be vulnerable to recurrent symptoms if she engages in the type of work that she is most competent to do. The problem is self limiting only in the sense that if she does very little the pain will not flare up. That situation brings its own frustration and disappointment. Both for her own self satisfaction and because of the financial circumstances of her and her husband she would be highly motivated to work. She might have expected about ten years of rewarding employment more than she has been able to have.

30. For her pain and suffering and loss of amenity, I award $25,000, of which $10,000 relates to the future. In lieu of interest on the past component, I award a lump sum of $1,500.

31. A claim was made in the particulars for damages pursuant to the principles in Griffith v Kerkemeyer, but no evidence was given in support of it.

32. The out of pocket expenses are agreed at $17,144.99. No claim is made for interest, as the accounts were paid by the Workers Compensation Insurance.

33. It is agreed that the plaintiff's earnings in the tax year prior to her ceasing work, that is 1993/94, were at the rate of $709 a week net. She ceased work on 12 September 1994. To the date of this judgment, her potential earnings were $77,990. Her actual earnings over the period have been of the order of $8,700. I award $69,000 for past wage loss. I award $12,000 for interest on past wage loss.

34. So far as the future is concerned, it is true that the plaintiff would be motivated to work, if suitable work were available to her. Her experience since September 1994 indicate that there is not much that is suitable that is available to her. The medical opinions tend to the view that light administrative work, which did not involve any substantial periods of keyboarding, is something that she should be physically capable of doing, eventually even full time, but in the only labour market reasonably available to her it is most unlikely that she will be able to find such a position.

35. At the time she ceased work, her earning capacity was of the order of $709 a week net. It might have increased somewhat since then. If in the future she were able to earn at a slightly higher rate than in 1995/96, which was $7,132 net, a figure of about $10,000 a year might indicate a realistic assessment of her future income earning capacity, which points towards a figure of the order of $500 a week net for future loss.

36. The present value of $500 a week for 7 years at 3% is $165,000. In addition to the normal contingencies, there must be taken into account the possibility that other health problems which she suffered might have affected her earning capacity, though the probability is not high that there would have been substantial interference from that cause. I would allow $135,000 for loss of future earning capacity.

37. The total award is therefore made up as follows:

Pain and Suffering $25,000
Interest $1,500
Out of Pocket Expenses $17,145
Loss of Earnings $69,000
Interest $12,000
Future Loss $135,000
TOTAL $259,645

38. I direct the entry of judgment for the plaintiff for $259,645.