Christine Joy D'Amico v Calvary Hospital Auxiliary Inc
[2013] ACTSC 259
CHRISTINE JOY D’AMICO v CALVARY HOSPITAL AUXILIARY INC
[2013] ACTSC 259 (19 December 2013)
NEGLIGENCE – personal injury – claim by employee against employer – injury to right arm – thoracic outlet syndrome – injury caused by nature and conditions of employment – plaintiff barista operating coffee machine – required to hold milk jug under steam nozzle without support repetitively – plaintiff complaining to manager - inadequate steps taken by manager – unsafe system of work – breach of duty of care established
DAMAGES – personal injury – injury to arm caused by nature and conditions of employment – thoracic outlet syndrome – static load and overuse claim – total loss of earning capacity
Occupational Health and Safety Act1989 (ACT), s 87
National Code of Practice for the Prevention of Occupational Overuse Syndrome
No. SC 445 of 2008
Master Harper
Supreme Court of the ACT
Date: 19 December 2013
IN THE SUPREME COURT OF THE )
) No. SC 445 of 2008
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: CHRISTINE JOY D’AMICO
Plaintiff
AND: CALVARY HOSPITAL AUXILIARY INC
Defendant
ORDER
Judge: Master Harper
Date: 19 December 2013
Place: Canberra
THE COURT ORDERS THAT:
judgment be entered for the plaintiff in the sum of $593,700.00
the defendant pay the plaintiff’s costs.
the costs order be stayed for 14 days.
If either party within 14 days notifies the Court and the other party of an intention to apply for a different costs order, the costs order be stayed until further order of the Court.
This is an action for damages for personal injury by an employee against an employer, the injury arising not out of a single incident but out of the nature and conditions of her work.
The plaintiff’s evidence
The plaintiff was born in 1961 in Canberra, and was about 45 at the time of the onset of her symptoms of injury. She is now 52. She grew up and went to school in Canberra, leaving during year 11. As an adolescent she suffered from Guillain-Barre Syndrome, which has left her with some unsteadiness of gait and numbness in her hands and feet.
She married at the age of twenty and had a son and two daughters, now all adults, and all living in Canberra. Her husband left her shortly before the birth of the third child. She later married her present husband and had another daughter and son, who are now in the their early twenties. She lives with her second husband in a house in a northern Canberra suburb. He manages a supermarket.
When the plaintiff first left school she worked as a casual telephonist for a brief period. She was accepted into the Commonwealth Public Service, and at the age of twenty she commenced as a clerical assistant with the Department of Foreign Affairs. She gave up work to look after her children. In 1998, she rejoined the workforce, as a shop assistant at a cafe in the Canberra Centre. Her duties included making coffee and sandwiches. She completed a course in coffee preparation and presentation conducted by Lavazza Caffe Espresso at the Italo-Australian Club. She worked in that employment for about two years.
During 2000, she changed jobs, working as a housekeeper at an apartment block. Both of these jobs were limited to school hours.
In late 2002, the plaintiff gave up work at the apartment block to help her mother look after her terminally ill father. He died in July 2003. The plaintiff went back to work at the apartments for a few months.
In February 2004, she started work for the defendant at Madeleine’s Cafe at Calvary Hospital. The defendant is a non-profit body associated with the hospital. At the time it operated a kiosk on the ground floor of the hospital, and Madeleine’s Cafe on the first floor. The defendant Association was managed by a board of volunteers including retired hospital staff.
The plaintiff was employed as a shop or sales assistant. Her duties included customer service, making coffee, making sandwiches, replenishing stock and cleaning tables. She started work at 8:00 am and worked until 3:30 pm on weekdays. The cafe opened for business at 8:30 am. During her first half hour the plaintiff would go down to the kiosk to pick up milk, sandwiches and other stock. She would open the grille barriers to the shop, turn on or turn up the coffee machine and the pie maker and generally set the shop up. She worked alone until another employee, Robyn, came in at 10:00 am. Robyn had been working at the cafe for a few months before the plaintiff started, and worked on until about 5:00 pm each day.
The plaintiff and Robyn shared the coffee-making duties. There were busy periods from about 8:30 until 11:00 am, and from about 11:30 am until 2:00 pm. The plaintiff and Robyn each had a lunch break for half an hour.
The plaintiff would make coffee as required from 8:30 am until at least 10:00 am. If she was working at the coffee machine when Robyn arrived at 10:00, she would stay on the coffee machine. If she was doing something else, for example making a sandwich, Robyn would attend to the coffee machine, and stay with it, making coffee as required.
Most coffee orders were for coffee made with hot milk. There were some orders for black coffee, and some orders for tea or hot chocolate, but white coffee in some form represented the great majority of orders.
Some white coffees were made with skim milk or soy milk but most were made with regular milk. The milk came in two-litre plastic bottles. Part of the task involved heating the milk in a stainless steel jug. The method used was to fill the jug to just above the bottom of the spout, and to hold the jug under a steam nozzle attached to the coffee machine, then to press a button releasing steam into the milk. This would heat the milk and also froth it. A jug was tendered as an exhibit. The plaintiff’s evidence was that this was the jug she had used at the coffee shop. She had been lent it for the purposes of the case by the new proprietor. Smaller jugs, not in evidence, were used for soy milk and skim milk.
The plaintiff was asked in chief to demonstrate how she held the milk under the steam nozzle. She held the jug by its handle in her right hand. Initially she held her left hand under the base of the jug, but explained that she did so in court because it was heavy for her arm to hold. She moved her left hand to the side of the jug and said that she touched the side of the jug to monitor the heat of the milk. Her manager, Vicky Riddle, had insisted that the milk must be heated to a temperature where it would burn your hand on the side of the jug. The customers apparently required, or at least preferred, the milk to be as hot as that, to improve the taste of the coffee. This was rather hotter than the plaintiff had been taught to make coffee at the course she had attended during her earlier employment.
The coffee machine was on a bench or counter, some fifteen to twenty centimetres above the bench to allow for a drip tray under it.
The plaintiff was 5’3’’ or 5’4’’. She demonstrated that the top of the coffee machine was quite a lot higher, requiring her to reach up for cups which were kept on top of it. The plaintiff was required to stand at the coffee machine during this procedure. She demonstrated the position she adopted to heat the milk at the steam nozzle. Her demonstration showed the upper arm vertical against her body, with the forearm a little higher than horizontal, that is to say with the hand higher than the elbow. The plaintiff explained that there were three heads for the coffee, each operated by a button which she needed to press. These were nozzles under which she placed the cups or mugs. She said that it could take up to a minute to heat the milk in the jug, and that she would get perhaps three mugs of coffee from a single jug of heated milk. Some coffees were in cups of china or something similar, to drink in the cafe, and others were in cardboard or polystyrene containers, to be taken away. She said that considerably more orders were in takeaway containers than in cups and mugs. During the busy earlier morning period there were regular orders from the operating theatres and the emergency department of the hospital. These would be placed by telephone or in person. They were large orders, up to twenty cups, and they were prepared in takeaway containers on a tray.
Robyn left the Auxiliary at some point and was replaced by Polly. Polly was unable to cope with the large number of customers queuing out the front of the cafe. The queue would extend well outside the cafe itself. After Robyn left and Polly started, the plaintiff made all of the coffees. Polly did not make coffees during the busy periods. The plaintiff said that she did not mind this. She enjoyed making coffee but on some days it was stressful. Someone from the emergency department would come into the cafe and leave a list, returning in ten minutes to collect the coffees. The plaintiff found the pressure of this stressful at times. It made her tired. She spoke to her supervisor, Ms Riddle, who worked downstairs in the kiosk. The kiosk was smaller than Madeleine’s. At the kiosk, they also made coffee and sold food. Another employee, Noelene Carr, worked at the kiosk with Ms Riddle.
The plaintiff said that she often rang Ms Riddle for help in the mornings after Polly started there. She would ring down and ask for help. Ms Riddle engaged Caroline, who came in from 11:00 am until 2:00 pm to help. Caroline packed the dishwasher and looked after customer service and table service.
As time went by, the plaintiff found that she had pain in the elbow and down to the wrist of her right arm. She had trouble holding the milk jug. Her oral evidence was that this started in about April 2006. The plaintiff went to see her general practitioner, Dr Demilio, at the Northside General Practice, O’Connor. He prescribed anti-inflammatory medication and gave the plaintiff exercises with the right arm, holding a can of baked beans. She did not find the exercises helpful. She continued with her work. Her recollection was that during the middle of 2006 the cafe was becoming busier and she was required to prepare more coffees each day. The pressure was constant between 8:30 am and 11:00 am. Her arm got worse. As the months went by during 2006 she had pain from the shoulder to the wrist, and her hand and forearm were swollen and turning blue. She reported this to Ms Riddle, to Noelene Carr and to Helen Forster who had by then replaced Polly at Madeleine’s. The plaintiff’s recollection was that Polly left at the end of 2005 and was replaced immediately or soon afterwards by Helen Forster.
In about September 2006, the plaintiff came to the view that she could not cope with coffee making at the same level of intensity because of her right arm problems. At the end of her shift she went down to the kiosk and spoke to Ms Riddle. Ms Riddle said that she would arrange for someone to help with coffee-making. After this Ms Riddle arranged for university students to help at Madeleine’s. The students looked after customer service and making sandwiches, but the plaintiff was left with the responsibility for making coffee. She was still able to do this but said that she was struggling to hold the jug. She was unable to carry cups of coffee to the customers at the tables. This was looked after by Helen Forster or Caroline, or one of the students. The plaintiff was busy at the coffee machine during the peak periods.
The students were given the opportunity to make coffee but this did not work out. Customers complained. Sometimes the coffee was too cold. Sometimes the milk was burnt. Customers wanted the plaintiff to make their coffee, and the students did not want to continue with these attempts. As this went on, and after September 2006, the plaintiff’s right arm symptoms got worse. In November 2006, she went back to Dr Demilio. She had severe pain down her arm, which she described as like a toothache. The arm was blue and the fingers were swollen. Her left arm was unaffected.
Dr Demilio told the plaintiff that he suspected that she might have a blood clot in the right arm. He sent her to Calvary Hospital. This diagnosis was confirmed as a possibility, and the plaintiff was sent home to rest. She returned the next day and was admitted under the care of Dr Hardman. He sent the plaintiff to Canberra Hospital for tests, and she was admitted there on 24 November 2006. She underwent a venogram, which involved an injection of dye. She was put on a heparin drip for about a week, and spent four nights in hospital. When she was discharged, she was by that time on annual leave but could not, she said, have gone back to work. The day after her discharge she saw Dr Demilio who recommended a further venogram.
The plaintiff went back to see Dr Hardman. He diagnosed a thoracic outlet syndrome and told the plaintiff that she required surgery in the form of removal of the first rib on the right side. She was admitted to Canberra Hospital on 17 January 2007 where the surgery was carried out. She went back to work about a week later on light duties. Being January it was quiet, and she did not have to make coffee.
When she woke up in hospital after the anaesthetic wore off, she was in pain and sick. She was on morphine which did not agree with her. She spent four or five nights in hospital, with her shoulder bandaged. The surgical approach had been under the right arm. The arm was painful and stiff. The bandage was in place for a couple of weeks. On discharge, she went to stay with her mother who looked after her. She was unable to do up and undo buttons but could put on and take off a loose T-shirt. During this period her husband looked after her family at home.
She had physiotherapy which improved the movement in the right arm. The pain reduced but the arm remained swollen and blue.
She went back to work about four weeks after the operation, on light duties. Her recollection was that from February 2007 she dropped to three days a week at work. She could not work the previous long hours because of her arm. She worked three days a week for some months, probably until May 2007, when she resumed working five days because the cafe was short-staffed. During those months she returned to some coffee-making.
On 1 July 2007, the defendant Association ceased to operate the kiosk and the cafe at the hospital. The running of these commercial operations was taken over by a Sydney-based company, Zouki. The plaintiff was employed from that date by Zouki. She continued to work full-time. Her recollection was that she was required to work from the date they took over, from 8:30 am until 4:00 pm.
Zouki made some changes. They moved the coffee machine. They introduced a steamer, and much smaller jugs. The new jugs were about half the size of the large jug the plaintiff had previously used. The new steam nozzle was longer. It meant that the person making the coffee did not need to hold the jug, because the steamer came down to the jug. The jug was balanced on a cup placed beneath it upside down.
There was also a change in personnel. Kevin was a barista from Melbourne. He would open the cafe in the mornings and do most of the coffee-making during the early and the later busy periods. The plaintiff made coffee from time to time and continued with the other work of sandwiches and customer service. She was coping but her arm was becoming sorer. Another employee, Gillian, came to the cafe in about August 2007 and made coffee. Kevin stayed until December 2007. In that month, the plaintiff went to hospital for operative treatment for an ovarian cyst and was off work for some time. The operation was at about the end of November 2007 and she was off until about the beginning of February 2008. As 2008 progressed, her arm did not improve.
In October 2008, she was referred by her solicitor to a psychologist, Georgia Tayler, whom she saw for a few sessions.
In November 2008, the plaintiff was at work, having opened the shop at about 8:00 am. Soon afterwards, she pulled out a bookshelf to place it against a wall. The bookshelf was full of magazines. There was a lip on the floor which the plaintiff was unaware of. Apparently carpet had recently been re-laid and the plaintiff did not realise this. The bookshelf was on wheels and became stuck against the metal strip or lip. It fell on her and she injured her left shin. She was unable to hold it up because of weakness in the right arm. The injury caused bruising and some loss of blood. The plaintiff was helped by a passer-by and taken in a wheelchair to the emergency department. She was given a certificate for time off work. She made a decision to resign from her job at the cafe. She did not feel that she could do the job properly because of her right arm. She gave written notice, and ceased employment on 21 November 2008.
Early in 2009, she was referred by her general practitioner, Dr Demilio, to a Dr Bradshaw who arranged a further venogram. She was then referred to a vascular surgeon in Sydney, Dr Daly. At about this time she made an attempt to go back to work at the cafe but found that she could not cope because of her arm. She worked for about five or six weeks, in April-May 2009. Dr Daly referred the plaintiff for an MRI scan and referred her to Dr Colin Andrews, a Canberra neurologist. He recommended physiotherapy, but the plaintiff did not accept his advice in that regard. He referred her to a Sydney neurosurgeon, Dr Jeffree. During all this time there was no improvement in the plaintiff’s right arm. She was having difficulty with everyday tasks at home. She avoided lifting anything heavy.
Dr Demilio referred the plaintiff to another neurosurgeon, Professor Davis in Melbourne. She travelled to Melbourne to see him but the consultation was quite unsatisfactory from her point of view. She said that she was in his room for no more than ten minutes, during which time he had a telephone call and told her that he had to go and move his car.
She was then sent by her general practitioner to another vascular surgeon in Sydney, Dr Neale at Royal North Shore Private Hospital. He told the plaintiff that he could undertake a surgical procedure but with only a 50% chance of any benefit and that her arm would not ever improve to 100% of its original condition. He referred the plaintiff to another neurosurgeon, Dr Grschwind, if I have the spelling of her name correct. She talked to the plaintiff about operating conjointly with Dr Neale to decompress the thoracic outlet. This would have involved a cut from the neck across the shoulder. The plaintiff decided against this surgery. She thought that there were too many risks involved. She was informed by Dr Grschwind that there were major nerves and arteries in the neck and that there was no guarantee of success.
Her right arm became weaker. It was still blue and swollen. Late in 2011, she developed cramping in the fingers of the right hand, with sharp pain. She found that she could not move her fingers when once or twice a week this happened. The sensation would last for one or two minutes, after which she could move her fingers again although they remained stiff.
The plaintiff’s problems with her right arm affected her capacity to undertake domestic tasks. She could not clean the shower. She could not lift a heavy tray out of the oven. She struggled to lift heavier pots and pans. She had help from her husband and her daughters with these tasks. Her son James was 19 at the date of trial and still living at home. He helped with some things around the house, although his father in subsequent evidence was a little critical of him in that regard. Her daughters both lived in the suburbs of Canberra and came home to help from time to time. All five of her children were still living in Canberra at the date of the trial.
The plaintiff said that she coped with hanging out washing. With towels, she would walk out to the clothesline two or three times, taking a couple of towels at a time. She found that hanging them up aggravated the pain in her arm, and her husband usually helped with hanging out the towels.
The pain in her right arm was not there all the time. It was episodic. She had pain in the arm which she described as toothache pain a couple of times a week, and this was severe. She took Panadeine Forte to alleviate this. She still had blueness and swelling in the arm much of the time. The arm was weaker as to holding and gripping, as well as carrying. An illustration of this difficulty was that she had broken a number of glasses and bowls at home. She managed generally with over-the-counter medication such as Panadol, Neurofen and Aspro, but also took Panadeine Forte once or twice a week.
She was asked in chief whether she thought she was capable of going back to work. She did not think that she could undertake clerical work. She had a computer at home and typed emails using two fingers. She had previously been able to type using all fingers on both hands. She had no intention of having any further operative treatment, and indeed, I take it, had decided not to have further surgery.
The plaintiff was cross-examined by senior counsel for the defendant at considerable length. The effect of the cross-examination was that the plaintiff was shown to be a person with a vague recollection of precise dates during the period she was being asked about. This is probably not surprising: the cross-examination took place in 2012, between five and eight years after the events. The plaintiff’s truthfulness as a witness was not challenged, but there was a challenge to the reliability of her memory. It seemed to me that her memory was generally reasonably accurate as to the sequence of events, but unreliable as to dates or even months when particular events happened during the period from 2004 to 2007.
The plaintiff’s recollection was that she reduced her shifts from five days a week to four in July 2006, and that this was because of her arm.
The further lay evidence
The plaintiff’s evidence was corroborated by her husband. He had a clear recollection that the plaintiff had begun to complain of right arm symptoms during 2006, well before her forty-fifth birthday (6 October). He said that she used to complain every day that her arm was sore from making coffee. He found this difficult to accept, seeing coffee making as much lighter work than he was engaged in as a produce manager at that time. He continually told her to report this to the “Auxiliary ladies”, over a period of, from his recollection, eight or ten weeks. She did not want to complain, apparently out of loyalty to her employer. Eventually she told him that she had informed her supervisor, Vicky Riddle, about the problem, but she had not told anyone on the Board. He said that he and his wife used to argue about this. She seemed to get worse and worse during the year, and complained more frequently about her arm problems. Eventually he told her to go and see her doctor, which she did.
The plaintiff’s husband gave evidence generally consistent with that of his wife about tasks around the house with which she had required, and continued to require, assistance.
Evidence was given in the plaintiff’s case by Noelene Carr. She had worked at the kiosk at the hospital from August 2003. Her duties had included making coffee. She worked on weekdays from 8:00 am until 3:00 pm. Ms Riddle also worked in the kiosk and was the manager. On occasions, Ms Carr was asked to go up to the cafe on the floor above for a few hours to assist. She said that there was a lot more coffee- making upstairs.
The plaintiff had started at the cafe about a year after Ms Carr. They became good friends. Her recollection was that the plaintiff, from 2005, would call by telephone for assistance. This would happen a couple of times a month, usually at about 9:00 am when the cafe was particularly busy. Ms Carr would report the request to Ms Riddle if she was there. Sometimes Ms Riddle would go upstairs. Once or twice Ms Carr went up to help. On most occasions they were busy themselves and not able to assist.
Ms Carr’s memory was that the plaintiff began complaining to her about problems with her right arm from about the end of 2005. She complained that the arm was sore. It was visibly discoloured and blue, and limp. The plaintiff and Ms Carr would go for walks together during their lunch break. The plaintiff told Ms Carr that the painful arm was caused by coffee-making. Ms Carr recalled a couple of occasions when she was present and the plaintiff complained to Ms Riddle about her arm, but she could not remember precisely when this was. She recalled the plaintiff saying to Ms Riddle that her arm was sore, and showing her the discolouration.
In the course of cross-examination, Ms Carr produced a statement she had made for the plaintiff’s solicitors during 2009, and conceded that she had said in the statement that she had noticed the plaintiff’s forearm and hand being blue and swollen from about November 2006. She conceded that that was what she had said in her statement, but said that she thought it had been much earlier than that, at about the end of 2005. She agreed that a statement she had made three years before trial was more likely to be accurate than her recollection at trial.
For my part, I am not sure whether Ms Carr’s recollection about dates would have been particularly reliable in 2009, as to events between two and four years earlier. I accept that the plaintiff complained to her of pain, swelling and discolouration in the arm but I cannot be sure from Ms Carr’s evidence when the complaints were made.
Helen Forster was also called in the plaintiff’s case. She had worked at the cafe from late 2005, on weekdays between 10:00 am and 5:00 pm. The plaintiff was already working there when Ms Forster started. By the time of trial she was working as a ward clerk at Calvary Hospital.
During Ms Forster’s time at the cafe the plaintiff had mostly been on the coffee machine. Ms Forster had been on the till, washing up or toasting sandwiches. She preferred the till work.
She was asked her recollection about another employee, Helen Seo, working at the cafe. Her recollection is that Ms Seo had started several months prior to the plaintiff going to hospital in November 2006.
Ms Forster was asked whether she herself had known anything herself about the plaintiff’s right arm problems before November 2006. Her response was that she had known from quite early in 2006 that the plaintiff was battling pain in her arm. She had observed that the plaintiff was favouring the right arm, and stopping to rub the arm. She could tell by the plaintiff’s body language that she was in pain, although they did not initially talk about it. She recalled an occasion when it was discussed. The plaintiff asked her whether she had any painkillers, and she gave the plaintiff some medication. Her recollection was that she had observed that the plaintiff was having a problem with the right arm prior to Ms Seo starting employment at the cafe, probably one to two months before that.
Ms Forster said that she noticed that the plaintiff was having trouble with coffee-making. Sometimes Ms Forster helped out on the coffee machine, but not often, because customers, being generally the staff at the hospital, did not like coffee prepared by anyone other than the plaintiff. The same thing had happened when Ms Seo had started at the cafe. She made coffee on some occasions but there were complaints and thereafter she was not allowed to make coffee.
Ms Forster agreed in cross-examination that she was unable to remember precise dates of these events of some five or six years earlier. She accepted that the coffee she made was unsatisfactory to the customers. She agreed that she would have been happy to make coffee if she had been asked to do so, but thought that there might have been no customers left if she did so.
Ms Seo by the time of trial had changed her name and moved to Melbourne. She was by then Ms Moon, had completed medical studies and was an intern at a hospital in Victoria.
She had worked at the kiosk from 2005, her last year at school in Canberra. She had got the job by walking in and speaking to the manager, Ms Riddle, and asking for it. She worked initially at the kiosk downstairs, making coffee and selling sandwiches and pies. Initially she worked only on weekends.
She took the year 2006 off from study. Early in that year she moved to the cafe upstairs. Because she had the year off and more time available, Ms Riddle told her that she was creating a position for her, if she wanted it, at the cafe upstairs, because the plaintiff was having trouble. After she commenced working with the plaintiff, she noticed that the plaintiff had a sore right arm. The plaintiff sometimes talked about it, and Ms Moon saw her massaging it and trying to protect it.
Ms Moon worked initially from 8:00 am until 12 noon on weekdays. Her recollection was that there was discussion about the plaintiff’s arm from early on in her employment. The discussion included Ms Riddle, the plaintiff and Ms Carr. The discussion generally took place early in the morning, downstairs at the kiosk where it was necessary for the staff to meet to collect keys, float money, and stock.
Her evidence was that although all of the staff sometimes made coffee at the cafe upstairs, most coffees were made by the plaintiff because the customers wanted her to do that. There were complaints that other staff tended to burn the milk.
Ms Moon confirmed that the jug in evidence was generally used to make coffee with regular milk, and that most of the coffee made was in that category. Smaller jugs were used, for example, for soy milk. There were far more orders for regular milk, and it was necessary to use the larger jug because of the volume of coffee to be produced.
She also said that she had felt some discomfort herself in her right arm after her shift, which she blamed on using the big jug, and having to hold it in an awkward position. She remembered the plaintiff telling her that her arm hurt, and that she also blamed it on making coffee. On numerous occasions Ms Riddle was present when the plaintiff made these complaints. She recalled Ms Riddle asking her to help out more with coffee-making. This happened on a number of occasions, early on in the plaintiff’s employment during 2006. Sometimes she did what she could to help but regular customers specifically asked that the plaintiff make the coffees.
Contemporaneous written records of the defendant confirm that Ms Moon, then Ms Seo, started at the cafe during May 2006. She conceded that her recollection of particular dates and times would not necessarily be reliable, but that she had a good recollection of the sequence of events.
Ms Moon’s recollection was that at the cafe there were typically something like 250 cups made a day, some of tea or hot chocolate but the vast majority of coffee. Most of these were in takeaway containers, with a minority being in cups to be consumed at a table.
Ms Moon had stopped working at the cafe in January 2007.
Patricia Graham gave evidence for the defendant. She is a former president of the Auxiliary. She joined as a volunteer in 1999, and became a member of the executive in 2002. The Auxiliary apparently performed a number of functions, which included the running of the retail outlets, the kiosk and the cafe, at the hospital. Ms Graham and the other members performed their roles voluntarily. Her evidence was that whilst they employed Ms Riddle as manager, members of the executive interviewed and employed all of the staff. She had previously had a career in nursing over many years, retiring as a nurse manager. She had tended to be at the hospital most days. She had no particular system in place for communication with the staff about any problems, but rather relied on staff members to inform her of such matters.
Ms Graham said that in about September or October 2006 a staff member had mentioned to her that the plaintiff’s hand was discoloured. She went to see the plaintiff, and became aware that there was a problem with her hand. It was blue and mottled. The plaintiff had some time off during November 2006. Ms Graham visited her in hospital, and was told that she required surgery to remove a rib.
Ms Graham was unaware that there was any claim for compensation or damages until she received a letter from a solicitor in January 2008. This was after the new contractor, Zouki, had taken over the running of the cafe and kiosk.
Ms Graham recalled a discussion with the plaintiff in about June 2006. The plaintiff approached her and asked to reduce her hours to have more time with her family. Ms Graham suggested a three-month trial. This was eventually confirmed in September 2006 in writing.
Ms Graham said that the system was that Ms Riddle trained new staff. Some already had some experience in coffee-making but some had not. Nearly all staff were trained by Ms Riddle to make coffee if they had not had previous training.
Ms Graham had a conversation with the plaintiff in January or February 2007, after her operation, which was, to her recollection, the first time that the plaintiff had mentioned that coffee-making or any other aspect of her work had caused any pain or discomfort.
Ms Graham thought that Ms Riddle had started with the Auxiliary in about 2002, as supervisor of both the kiosk and the cafe. By 2006 there were some ten or twelve employees at the two establishments, including casuals. She was asked whether there had been allegations affecting Ms Riddle’s honestly as an employee. Her response was that there had been some problems among the staff but that these were always difficult. Without proof it was hard to say one way or the other. Often the allegations were hearsay. It was hard to prove, but “we had suspicions”. At some point the plaintiff might have made a complaint about Ms Riddle.
If she had been told that the plaintiff had complained of pain in the arm while making coffees she would have taken that seriously and done something about it, causing an investigation as to what the problem was and how to resolve it. She would have had a workers’ compensation claim form completed and lodged with the insurer. She would have asked the plaintiff for information about what advice her doctor had given. She said that the Auxiliary never had any indication from medical certificates about any restricted duties.
Ms Riddle did not give oral evidence. A signed statement she had made in November 2008 was tendered, accompanied by a medical certificate and a letter from a general practitioner, Dr Karen Pahlow. Dr Pahlow did not give evidence either. Dr Pahlow practises at Evatt, a Canberra suburb. Ms Riddle in her statement gave a residential address at Charnwood, a Canberra suburb near Evatt. The certificate signed by Dr Pahlow in March 2012 gave an address for Ms Riddle at Surfside, a suburb of Batemans Bay in NSW. A letter she wrote in May 2012 gave an address at Bawley Point, also on the South Coast of NSW. The March certificate stated that in Dr Pahlow’s opinion Mr Riddle was medically unfit to attend Court on 20 May 2012 to give oral evidence due to an anxiety disorder. The May 2012 letter went into a little more detail, saying that Ms Riddle suffered from acute adjustment disorder with severe anxiety and reactive hypertension due to workplace difficulties. She was on specified medication and unable to work. She was, Dr Pahlow said, unable to attend Court to give oral evidence due to the severity of her anxiety. Symptoms included shakiness, teariness and forgetfulness.
After submissions on behalf of both parties I decided to admit Ms Riddle’s report, noting that senior counsel for the plaintiff would have cross-examined her if that opportunity had been available, affecting the weight of the evidence.
Ms Riddle said in her statement that she had been born in 1958. She had worked as a supervisor for the defendant for five years, from 2002 until 2007. She had mostly worked in the kiosk where she had made coffee and served customers. She had also had the responsibility of banking, rosters and ordering. She did not work with the plaintiff, who was employed in the cafe upstairs. She saw the plaintiff in the mornings, when she collected stock. She also visited the cafe two or three times a day, for about ten minutes at a time. She sometimes saw the plaintiff making coffee. She recalled three stainless steel jugs, a large one and two small ones. The large one contained about a litre. She described the manner in which she saw the plaintiff holding the jug to the steam nozzle. She was unable to say how many cups of coffee the plaintiff prepared each day. She said that the plaintiff always had the option of calling her at the kiosk for help. She recalled a time, but not the date, when the plaintiff came in one morning and one of her hands was blue. The plaintiff, she said, had not noticed it. When an operation was scheduled the plaintiff laughed and said that she would not have known about the medical problem if not for Ms Riddle. After the operation Ms Riddle told her that she should concentrate on the till and let others make the coffee, but as far as she knew the plaintiff continued making coffee. Other staff were trained to make coffee and there was no reason they could not have done so. Ms Riddle did not recollect any time that the plaintiff had come to her to talk about the system of work or to ask for further help.
Until May 2006, the plaintiff had been alone at the cafe, making coffee from about 8:30 am until 10:00 am. In May 2006, Ms Seo had been employed from 8:00 am to 11:30 am and had been available to make coffee. From the end of June 2007 when the Auxiliary ceased to operate the cafe, the plaintiff continued to work there with the new owner, undertaking the same duties and using the same coffee machine and jugs.
The weight which I can give to the statement by Ms Riddle is greatly reduced by her unavailability for cross-examination, particularly in circumstances where her statement is at variance from the evidence of the plaintiff and some of her corroborative witnesses, and where there is some evidence of her animosity towards the plaintiff.
The engineering evidence
The plaintiff’s solicitors qualified an expert witness, Mark Dohrmann. Mr Dohrmann is a professional engineer with postgraduate qualifications in ergonomics. He has practised for some 25 years as an adviser on workplace safety issues with particular emphasis on strain injuries to the back and arms. He defines ergonomics as the science of adapting work processes, environments and products to human abilities and limits.
Mr Dohrmann was provided with background documentation including a copy of the statement of claim and copies of a number of medical reports. He had an opportunity to interview the plaintiff on two occasions. The information provided to him was broadly in accordance with the evidence in the plaintiff’s case. He accepted medical evidence that in the early part of 2007 the plaintiff had been diagnosed with extensor tendonitis in the right arm, and epicondylitis. He was told that she had been diagnosed as having a thoracic outlet syndrome affecting her right arm. She told him that she had never been given any training, warning or advice about overuse strain injury.
In September 2010, Mr Dohrmann came to Canberra and had the opportunity to inspect the cafe. The evidence is that there had been some changes to its layout since the defendant handed over its management in mid-2007. The counter, however, was the same height (89 cm), with a lower counter on the serving side of 77 cm, and a higher ledge about the counter for cups and purchased items to be placed, 25 cm wide and 25 cm above the main counter.
Mr Dohrmann made reference to the National Code of Practice for the Prevention of Occupational Overuse Syndrome. The code seems to have had its genesis in Victorian subordinate legislation. It became part of the law of the Australian Capital Territory when approved and notified as an instrument by the then responsible minister under s 87 of the Occupational Health and Safety Act1989 (ACT), in June 1994. It appears that the code is no longer in force in the Territory, but that it remained in force until 2010. Mr Dohrmann says that the code provided employers with useful insights into the identification of injury risks arising from various types of work, including strategies for the prevention of injury. The code, he says, was freely and widely available, and makes explicit mention of the risk of occupational overuse syndrome in a number of occupations including kitchen workers. The code, as he says, provides a well-illustrated and down-to earth recitation of the steps needed to identify and assess the risk of overuse injury in a task, and deals with what measures should be taken to control or minimise these risks. Risk control options are dealt with in some detail. The code deals with redesigning tasks, modifying workplace layout, changing equipment, and task-specific training. The code also deals with task duration and frequency, and draws attention to the critical nature of peak demand, and the role of proper work breaks. The code also deals with such issues as work surface height, handle design and limb support. It concludes with a detailed check list designed to assist people in workplaces to identify and assess overuse strain risks for themselves.
The code specifically refers to the difficulty associated with maintenance of constrained or awkward postures in the workplace. It is noted in the code that muscles when used repeatedly or required to hold a position for any length of time will fatigue, increasing the risk of injury. It is also stated that the application of force when used to hold a posture requires muscular effort, and that an employee should not be required to exert forces which feel uncomfortable.
The code specifically states that it is important to consider the employee’s posture in attempting to reduce the risk of injury. The risk of injury is increased where the work height varies significantly from the optimum level, where the employee is required to maintain a single posture for a lengthy period, and where the employee is required to hold a fixed body posture unsupported. For most work the optimum working height, the code states, is at elbow level.
The code focuses on the responsibility of the employer to carry out a risk assessment in relation to these matters.
Mr Dohrmann’s opinion is that a prudent employer aware of symptoms of pain or soreness in the arm should investigate the manual tasks being performed with a view to making adjustments and changes to the system. He had little doubt that a requirement that the plaintiff continue to support a jug weighing something approaching 2 kg put her at risk. There was a risk of epicondylitis or tennis elbow. He said that information about the risk of strain injury, and advice on the control of risks and measures for injury prevention, had been widely available to employers through publications in trade, industrial and general media, for at least twenty years prior to the occurrence of the plaintiff’s injury. A prudent employer would have encouraged employees to report symptoms of pain and discomfort, and trained supervisors to elicit such information sympathetically (without causing employees to feel anxious about the consequences of reporting symptoms). In the particular case involving the plaintiff, it should have been possible to develop a system where the milk jug was rested on a support under the steam nozzle. It was clearly possible for the steamer pipe to be extended. This measure was taken by the new operator, Zouki, shortly after taking over. Steps could and should have been taken to rotate the plaintiff to other tasks, and to provide closer supervision.
Mr Dohrmann was later informed that the jug being used by the plaintiff had weighed 520 g empty and 1.86 kg when filled with milk. It remained his opinion that such a jug weight exposed the plaintiff to a risk of injury which a prudent employer should have anticipated and dealt with.
The medical evidence
The plaintiff’s general practitioner, Dr Demilio, prepared a number of reports which were tendered, and gave oral evidence. He had been the plaintiff’s treating GP since 1995. He extracted entries from his notes, copies of which were also in evidence.
The first relevant note was of a consultation on 5 April 2006 when the plaintiff complained of right elbow and wrist pain for the last month. She was tender over the lateral epicondyle and the flexor tendons. The anterior capsule of the right shoulder was also tender. The fingers were tender and mildly swollen. Dr Demilio prescribed an anti-inflammatory.
He saw her a week later. She had improved but complained of continuing pain in the right elbow and extensor tendons. He had the impression that she was suffering from chronic extensor tendonitis with tennis elbow. He did not record in his notes anything about a connection with the plaintiff’s work, or indeed anything about causation of the symptoms.
She saw him about an unrelated illness in September 2006. Her next attendance about her right arm was on 22 November 2006. Her right hand was blue with signs of swelling of the veins. Dr Demilio was concerned that she might have a thrombosis and referred her to the accident and emergency department of a hospital for review. He noted that investigation at hospital had failed to disclose the underlying cause.
He saw her again on 29 November 2006 with continuing cyanosis (blueing) and swelling of the hand. Her symptoms, including the development of pain, were aggravated by certain physical activities. He referred her for a venogram which was performed on 7 December 2006. This showed a tight narrowing of the clavian vein overlying the first rib, with complete occlusion of the vein when she raised her arm above her head. The findings were consistent with a muscular or fibrous band resulting in thoracic outlet syndrome and venous occlusion. In the light of these findings Dr Demilio referred the plaintiff to Professor Hardman, who advised surgical removal of the first rib to decompress the thoracic outlet (the region through which blood vessels flow between the upper arm and the chest). This surgery was carried out in January 2007.
Dr Demilio saw the plaintiff about a week after her discharge from hospital. She still had pain in the right arm, from the shoulder to the hand, with paraesthesia affecting the hand. She still had cyanosis and swelling in the hand. Physiotherapy led to some improvement in symptoms, but not to full recovery. Dr Demilio referred the plaintiff to Dr Garth Eaton, a Canberra occupational physician, in April 2007. The plaintiff continued to suffer from the symptoms complained of, with pain in the right elbow and wrist being worse when she was required to work above shoulder level. She told Dr Demilio about how she made coffee at work, and her difficulties using the milk jug. His opinion was that her duties at the cafe were likely to have aggravated the overuse component of the forearm. He said that there was evidence linking thoracic outlet symptom to work where the arms were used repeatedly at or over shoulder height. He suggested an assessment of the workplace by an occupational therapist. He thought that the plaintiff had probably had a pre-existing tight thoracic outlet which contributed to the development of the syndrome.
In a report in December 2008, Dr Demilio expressed the opinion that it was highly probable that the plaintiff would have long-term partial incapacity. She did not want to have further surgery. In November 2008, she had developed globus, something which she had experienced previously in her life. This was an experience of a fullness akin to food being stuck in the back of the mouth and the throat.
In November 2008, he saw the plaintiff following the incident where a bookcase fell on her at work causing minor injuries to the left leg, and triggering her resignation. He counselled her about the risk of development of depression. She continued to experience colour and temperature changes in the right elbow, forearm and hand. She complained in particular of pain on carrying a heavy weight, and pain on raising her right arm above the shoulder, for example in brushing her hair or housework.
Dr Demilio reported to the plaintiff’s solicitors again in August 2010. Her symptoms continued, and her diagnosis remained the same – thoracic outlet syndrome, caused by an underlying anatomical abnormality, and aspects of her work at the cafe. Her condition had deteriorated and would probably continue to do so. She was unfit for her previous occupation. He thought that further surgery would lead to reasonable improvement but not full resolution of all her symptoms.
Dr Demilio’s final report to the solicitors before trial was in January 2012. Her condition seemed to have stabilised. She was unlikely to improve, and remained unfit for her previous work. Her symptoms interfered with her normal day-to-day activities at a significant level and at times her pain required moderate levels of analgesia.
It was put to Dr Demilio in cross-examination that the plaintiff had not mentioned the use of the milk jug at work to him as a possible causative factor, until 14 March 2008. He agreed that this was the first record in his notes of mention of the milk jug but he said that the plaintiff had mentioned the use of the jug at work on a number of occasions over the years. He could not recall when she had first mentioned it. It was undoubtedly the case that she had mentioned it on occasions when he had not recorded it in his notes. He agreed that in his entry of 5 April 2006 the patient had not given a history of any provocative activity.
Dr Eaton prepared four reports for the plaintiff’s solicitors, which were tendered, and also gave oral evidence. He first saw her in February 2008. He agreed with the diagnosis of thoracic outlet syndrome, with associated constriction of the subclavian vein. He also diagnosed occupational overuse injury, with probably tendinosis and musculo-ligamentous strain of the right elbow, forearm and hand. The prognosis was guarded. The plaintiff was likely to have continuing pain and disability associated with the injury. His opinion was that the heavy repetitive use of her right arm in the course of her employment had materially contributed to the development of the condition. There was no evidence available to him that the cervical rib had caused any previous problems. The plaintiff’s working capacity had been significantly compromised by the injury.
Dr Eaton saw the plaintiff again in February 2009. He thought that her condition had stabilised, with no prospect of significant improvement or likelihood of deterioration. He remained of the view that her work activities had made a significant contribution to the development of the condition of her right arm.
He saw the plaintiff again in August 2010. She continued to complain of symptoms in the right shoulder and arm, including swelling and discolouration, accompanied by pain and sometimes pins and needles in the right hand. He noted that she had resigned from her employment in May 2009 and had not worked since. Dr Eaton confirmed that the plaintiff was unfit for her earlier employment, and for any employment requiring repetitive use of the right arm, or raising the arm above shoulder level. There had been some atrophy of the right arm due to disuse.
Dr Eaton reviewed the plaintiff in February 2012, shortly before trial. Her condition had remained much the same. She appeared emotionally flat. Her symptoms were suggestive of complex regional pain syndrome, and she had associated symptoms of stress, anxiety and depression. No other medical treatment was indicated.
Dr Eaton was asked in cross-examination whether he agreed that the plaintiff was fit for some forms of light work. His response was that any repetitive work, including computer work, would be very difficult for her.
The plaintiff was referred by her solicitors in October 2008 to a clinical psychologist, Georgia Tayler. Ms Tayler saw the plaintiff on three occasions, and had her complete a depression inventory and a personality assessment inventory. Her opinion was that the plaintiff was suffering from depression and anxiety of moderate degree, secondary to chronic intermittent pain. She noted that the plaintiff had had a prior history of generalised anxiety, but said that her arm injury and its effects had substantially contributed to the worsening of her anxiety and the development of her depression. She saw these as directly caused by the injury to her arm. Ms Tayler did not give oral evidence.
Dr Gregory Leslie is a vascular surgeon practising in Sydney. He saw the plaintiff on one occasion, in May 2009. He took a history and conducted a physical examination. He thought that further surgery in the form of exploration of the brachial plexus with excision of the scalene muscles should be seriously considered. However, there had been considerable damage to the brachial plexus, and he expected improvement of only about 50%.
Dr Leslie expressed the opinion that the plaintiff’s arm symptoms were compatible with repetitive strain injury suffered during her work at the cafe. He did not think that she would improve any further without surgery. She was in his opinion fit for work which did not involve repetitive use of the right arm or weight-bearing by the right arm.
Dr Leslie gave evidence by telephone. He confirmed his opinion that the plaintiff’s right arm problems were related to repetitive strain in the course of her employment. He agreed that repetitive use of the right arm would have provoked the thoracic outlet syndrome, and that an activity which the patient associated with the pain would be the most likely activity to have provoked the syndrome.
The plaintiff was referred in August 2011 by her solicitors to another psychologist, Dr Maureen Blane-Brown. She diagnosed the plaintiff as suffering from an adjustment disorder with mixed anxiety and depressed mood. The prognosis was poor and her psychological problems impaired her ability to obtain employment in the future. She might benefit from a number of treatment sessions by a psychologist, in the form of supporting psychotherapy aimed at assessing occupational rehabilitation. Dr Blane-Brown did not give oral evidence.
The plaintiff was referred by her solicitors to Dr Ron Brooder, neurologist. Dr Brooder saw her twice, in February 2010 and August 2011. His opinion was that there was a causal relationship between the nature and conditions of the plaintiff’s employment at the cafe and the injury to her right arm. She had a 40% partial loss of efficient use of the arm. There was a reasonable prospect that surgery might lead to some improvement in her symptoms. The surgery would involve neurolysis of the right brachial plexus and should be carried out by a neurosurgeon.
Dr Brooder’s diagnosis was a right thoracic outlet syndrome associated with neuro-vascular complications including intermittent obstruction of the right subclavian vein and involvement of the right brachial plexus. There had been no specific injury. The plaintiff’s symptoms were more probably than not related to the nature and conditions of her work activities. She was not fit for work involving prolonged heavy or repetitive use of the right arm and hand. She had had a pre-existing propensity to develop a right thoracic outlet syndrome, by reason of her anatomic configuration around the right side of the neck and the shoulder girdle. The nature and conditions of her employment at the cafe had substantially contributed to the onset of the thoracic outlet syndrome.
On the second occasion Dr Brooder saw the plaintiff, her condition had remained much the same, as had his opinion. He accepted that she was reluctant to undergo further surgery. In those circumstances her condition had essentially stabilised and it was unlikely that there would be further significant improvement.
Dr Brooder gave oral evidence at the trial. He confirmed the opinion in his reports, and maintained it under cross-examination. He accepted that the plaintiff was fit to undertake activities, including work, predominantly of a sedentary nature using her left rather than her right arm. The evidence was that the plaintiff was generally right-handed for most activities, but used her left hand for handwriting. It was a proviso that whatever she was doing with her right arm did not aggravate her pain.
The workers’ compensation insurer for the defendant had the plaintiff examined by an orthopaedic surgeon, Dr David Bornstein, in February 2008. He confirmed in his report that his speciality was appropriate for the conduct of the assessment, although I note that there was no orthopaedic surgeon involved in the plaintiff’s treatment or qualified in her case, and that it seems to have been agreed among the other medical practitioners that her problems were more within the province of neurosurgeons and vascular surgeons.
Dr Bornstein expressed the opinion in his report in February 2008 that the plaintiff was suffering from a thoracic outlet syndrome. He said that the condition was congenital, due to structural abnormalities. He said that he accepted that certain activities would bring the condition to the fore and would be less appropriate for her, but that it was clear that the activities themselves had no bearing on causing her problem.
He accepted that she was “relatively unfit for the type of work she was required to do”. She had undergone decompressive surgery but residual compression remained. She was likely to continue experiencing the symptoms of which she complained. The problem with her right arm had been exacerbated by the nature of the activity she was required to carry out at work.
To my mind inconsistently with this, he also said that her employment had not been a significant contributing factor to her condition. I take him to have meant that the employment had not been a factor contributing to her congenital condition. He went on to say that her structural abnormality had been present from birth. He thought that she might benefit from further surgery but that such surgery could be associated with significant risk. He thought that she should change her occupation to avoid exacerbating the problem. There was little point in specifying restrictions in her duties and hours in her work at the cafe, when it was the specific activities and movements she was required to put her arm through which were causing her problems. Without further surgery her condition was likely to persist. Her symptoms were primarily of pain and obstruction of blood vessels. Dr Bornstein finished the report by saying, perhaps inconsistently with his opening remark, that the plaintiff had not sustained any orthopaedic injury and that it was inappropriate to assess her from an orthopaedic viewpoint.
Dr Bornstein gave evidence at the trial by telephone. He accepted that a person with the anatomical abnormality which the plaintiff had could go through life without ever suffering any symptoms. He said that the pain she complained of was a protective sensation, and that one would expect that a person suffering pain would desist from the activity causing it and refuse to do that activity in the future.
He agreed that as an orthopaedic surgeon he would not have contemplated operating on thoracic outlet syndrome although he was aware of some orthopaedic surgeons who would have done so.
His attention was drawn to an opinion expressed by a neurosurgeon, Dr Gordon Stuart, who had examined the plaintiff for the solicitors for the defendant in May 2010. Dr Stuart had said that he considered that employment had been the significant factor in the development of the plaintiff’s symptoms. Dr Bornstein said that if it was accepted that the plaintiff had not experienced any symptoms prior to that work and that she had experienced symptoms with that work, then he agreed with Dr Stuart’s expression of opinion.
Dr Stuart’s report was tendered but he did not give oral evidence. He diagnosed the plaintiff as suffering from right brachial neuralgia due to thoracic outlet syndrome. She was in his view unfit to resume her previous employment as a barista. That incapacity was permanent. Recreational and social consequences had been significant. She had difficult driving. She steered with the left hand. She vacuumed with the left hand. She was unable to do gardening or lawn mowing. She could not hold her granddaughter, 18 months old when Dr Stuart saw her, with her right arm. Rehabilitation was unlikely to improve the position. Her prognosis was poor for any return to work. Dr Stuart accepted that repetitive use of the right arm brought on the plaintiff’s symptoms. The cause was her congenital thoracic outlet syndrome, which was aggravated by her work activity. Her employment was the significant factor in the development of her symptoms. So far as Dr Stuart was aware there was no further treatment likely to be of benefit to her. He found the plaintiff to be genuine and straightforward in her presentation.
The solicitors for the defendant sent the plaintiff to a psychologist, Dr John McMahon, in October 2011. His report was tendered. He was not required to give oral evidence. He did not think that the plaintiff met the criteria for an acute mental disorder or condition. She displayed personality features including repression and denial defences, general fearfulness and rigidity, and anxiety. She had an avoidant personality. She was likely to remain psychologically stable and was unsuitable for psychological therapy. Hence she did not require any treatment, although she might benefit from a course of assertiveness training. This was unrelated to her injury and due to her pre-existing personality style. Dr McMahon accepted that in 2008 when the plaintiff saw Ms Tayler she had suffered from some symptoms of anxiety and depression. By the time he saw her she was not, he said, suffering from any psychological illness or disability. He disagreed with the opinion expressed by Dr Blane-Brown and was somewhat critical of her techniques.
Other documentary evidence
Senior counsel for the plaintiff tendered the defendant’s time, pay and wages book which showed that Ms Moon (then Ms Seo) commenced employment on 27 April 2006.
Also tendered was a report by an occupational therapist, Glen Dwyer, who conducted a vocational assessment of the plaintiff, at the request of her solicitors, in December 2010. Mr Dwyer noted that the plaintiff had not by that time been offered any occupational rehabilitation services, which might have been useful if they had been offered earlier, although it was questionable whether they would have resulted in durable employment. The plaintiff had limited formal education and no vocational qualifications other than as a florist and as a barista. Extensive retraining would have been required to qualify her for an occupation with low physical demands. Her clerical and administrative skills were insufficient for work of that nature by 2010. She had only basic computer skills, limited to a capacity to send and receive emails, access social networking sites, and search the internet. She had very little experience with Word and no experience using Excel. Her capacity to type on a keyboard was affected by her injury, and this would limit her capacity to produce assignments associated with courses of study. She was, at the time of his assessment, aged 49 and had not attempted any formal assignment or examination for more than thirty years.
Regardless of any consideration of the theoretical existence of suitable occupations, if she attempted to find a job she would need to be successful in the labour market. This would provide the only real test of her ability to find employment. She would in that context be compared with other applicants. She would need, to get a job, to be considered by the employer to be the preferred employee. It was difficult to identify aspects of her vocational circumstances which were likely to be preferred. Because of her injury she would not present positively to a potential employer. An employer might be expected to take into account the possibility that her physical condition might deteriorate; that she was unable to work full-time let alone overtime; that her productivity might be reduced because of her right-arm restriction; and that she might need to take time off work for medical treatment. In addition, sometimes there was a stigma attached to people with a disability or people who had been involved with compensation. In a competitive economic environment even the most altruistic of employers would be bound by an imperative to maximise productivity. It was difficult to identify anything about the plaintiff which was likely to see her as preferred by a potential employer. In Mr Dwyer’s opinion her prospects for securing and sustaining employment in the future were poor to negligible.
A printout produced by the workers’ compensation insurer confirmed that the plaintiff had settled her claim for workers’ compensation in September 2010 for $135,000.00, in addition to a Medicare refund of $15,000.00 and a Cabcharge expense of $22.33, a total payment by the insurer of $150,022.33.
Consideration of the evidence as to liability
I accepted the plaintiff as a truthful and honest witness. I take account of the fact that she was giving evidence about events which had taken place some five to eight years before trial, and that she was relying on her memory rather than any notes or other contemporaneous written records. I would accordingly not be prepared to accept without question her evidence about dates or even months when events happened, but I was satisfied that her memory was generally reliable as to the sequence of events and as to most of the detail of the events themselves.
She came across to me as a person who felt a considerable degree of loyalty towards the Auxiliary and its board. She was reluctant to complain, which had led to arguments with her husband. After first seeing her solicitor she was minded not to take her claim any further because of, as she saw it, the possible negative impact on the Auxiliary. She came across to me as a fairly simple person without a great deal of sophistication. I am not sure when she became aware that her real opponent in these proceedings was an insurance company and not the Auxiliary itself, or whether she ever fully understood this. I did not have the impression that she embellished her evidence in any way, nor was it suggested to her in cross-examination that she had done so, in relation to matters which went to either liability or quantum or damages.
Her husband was not really challenged and I accept his evidence.
The plaintiff’s evidence about what had happened at the cafe during her employment there was generally supported by other witnesses who had worked there: Ms Carr, Ms Forster and Ms Moon. There was no real inconsistency with any evidence given for the defendant by Ms Graham. The only clash was with the statement of Ms Riddle, which was tendered but without any opportunity for cross-examination. I take into account the evidence of some animosity between the plaintiff and Ms Riddle, and the inconsistency between elements of Ms Riddle’s statement and the evidence of supporting witnesses called in the plaintiff’s case. I prefer the plaintiff’s evidence to the factual assertions contained in Ms Riddle’s statement, where there is an inconsistency.
There was an issue at trial as to when the plaintiff first complained to Ms Riddle about physical symptoms in her right arm and hand. I am satisfied that she saw her general practitioner, Dr Demilio, about these symptoms as early as April 2006. I think it more likely than not that she complained to Ms Riddle at about that time or soon afterwards, and that Ms Riddle did not bring her complaints to the attention of members of the executive of Auxiliary. I accept that Ms Riddle tried to do something practical about the problems, for example engaging Ms Seo and sending her to the cafe to help the plaintiff, but I am not satisfied that Ms Riddle took any steps to reduce the amount of time the plaintiff spent making coffees.
I understand that the cafe was run by the Auxiliary, a non-profit body with a board of unpaid members who, I have no doubt, should be applauded for the time they gave voluntarily to activities associated with the hospital which might otherwise have cost a great deal more money. Having said that, it does not seem to me that the nature of the body or its non-profit status, or the fact that board members were unpaid, alters the duty the defendant owed as an employer to the plaintiff as an employee. This may be seen as harsh when a small non-profit employer is held to account to the same standard as a large corporation or government instrumentality, but the law focuses on the rights of the employee rather than the size or financial position of the employer. An employer owes a non-delegable duty to take reasonable care for the safety of every employee. What is reasonable must be influenced by current community standards, and seen in the light of legislative requirements as to workplace safety. It is the obligation of an employer to provide each employee with a safe place and a safe system of work, eliminating unnecessary risk of injury.
The defendant was not to know that the plaintiff had an anatomical vulnerability to thoracic outlet syndrome. But an employer much take each employee as it finds him or her. In the present case, I am satisfied that the employer, through its employed manager and supervisor, Ms Riddle, was aware by April 2006 or soon after, that the plaintiff had developed symptoms of pain, swelling and discolouration in the right forearm and hand, and that the plaintiff blamed her condition on the manner of making coffee required of her, and in particular on having to hold a full milk jug in her right hand under a steam nozzle, and not being permitted to rest the jug on a surface below the nozzle. The defendant should have done something about this. If it had, the injury to the plaintiff might have been arrested before her disability became permanent. I must take account of the possibility that it might have already been too late and that some permanent damage might have already been done. That is a matter to be taken into account in the assessment of damages.
In relation to liability, all of the medical evidence seems to me to be one way. Medical practitioners will sometimes see causation in a different light to the way lawyers see it. For example, Dr Bornstein would not agree that the plaintiff’s work was a factor in the development of her symptoms because he saw her congenital condition as the cause. The legal test is different. It is clear on all of the medical evidence, including that of Dr Bornstein, that the work was a cause of the plaintiff’s injury, symptoms and continuing disability. It does not help the defendant that the congenital condition was also a cause. It is clear on the evidence that people with that congenital condition can go through life without ever developing any symptoms or disability.
I accept, also, although there is no evidence about it, that it is more probable than not that neither Ms Riddle nor any of the members of the board were aware of the National Code of Practice for the Prevention of Occupational Overuse Syndrome or of its provisions. But as an employer the defendant should have been aware of it. It was in place to help employees and prevent injury, but also to help employers in operating a safe system and place of work. The task of making coffee using the machine at the cafe was very much the sort of task which the code required employers to focus upon and think about.
It is understandable that a small and not particularly well resourced employer like the defendant might be unaware of the code but that does not avail it in these proceedings.
I am satisfied that the defendant, as employer of the plaintiff, failed to provide her with a safe system and place of work, and that that failure was a major cause of her injury and disabilities. I am satisfied that the failure was a breach of the duty of care owed by the defendant to the plaintiff.
Damages
As to general damages, senior counsel for the plaintiff seeks an award of about $120,000.00. Counsel for the defendant suggested, in the event that I found in the plaintiff’s favour, a range of $60,000.00 to $80,000.00. I take account of the high level of pain and disability the plaintiff has gone through, and the fact that she has had surgery without success. In the defendant’s favour I take into account the possibility that by the time Ms Riddle became aware of the plaintiff’s problems with her right arm, some damage might already have been done. It seems to me on reflection that a proper figure to compensate the plaintiff for her pain and suffering and loss of enjoyment of life, taking account of the factors on both sides, would be $100,000.00, and I award that amount. I apportion that figure equally between past and future. The past component attracts interest which I calculate at $8,000.00, weighting the past figure a little towards the earlier period after the injury became apparent.
Treatment expenses were agreed to the date of trial at $25,114.05. To take account of the period since trial I award $26,000.00 for past expenses. There is no claim for interest on that component.
In relation to future treatment, I accept that the plaintiff needs to take over-the-counter medication from time to time and less frequently prescription painkillers, for which she will need to see her general practitioner. She does not seem to have seen specialists other than for the purposes of the case for some years. She is now 52. Senior counsel for the plaintiff concedes that this is not a component which lends itself to mathematical calculation. I am persuaded that some allowance is justified. I allow $10,000.00 for future treatment expenses.
Senior counsel for the plaintiff makes a claim for past loss of earnings at the rate of $481.00 net per week. This was calculated to the date of trial at $114,580.00. It is necessary for me to take that figure up to the date of judgment, but I discount it to recognise the possibility that damage already done by the time the plaintiff put Ms Riddle on notice of the problem might have led ultimately to some interference with earning capacity in the future, and the small chance that the plaintiff’s pre-existing anatomical abnormality might have played a part in some future injury. I accept that the plaintiff would by now, if it had not been for her injury, and if she had remained in the same employment, have been earning about $640.00 net per week. For past loss of earnings I allow $140,000.00.
That component attracts interest at commercial rates, but must be offset against the workers’ compensation redemption figure of $135,000.00. That figure was presumably inclusive of legal costs. I propose to allow interest on a past loss figure of $30,000.00, spread notionally over the period from late 2006 to date, and to adopt an interest rate of 9% per annum. For interest on past loss of earnings I allow $9,500.00.
For loss of earning capacity for the future, senior counsel for the plaintiff seeks a figure calculated to age 65, based on a total loss of earning capacity. I am satisfied on the evidence that the plaintiff has no measurable retained capacity to earn income, and that the reality is that she will not do so in the future. As I have said, she is now 52. The multipliers, using the 3% tables, for a woman of her age are now 367 to age 60 and 550 to age 65. It seems reasonable to adopt a figure of $650.00 net per week as the current measure of the plaintiff’s pre-injury earning capacity. Before reduction for vicissitudes, the range would therefore appear to be $238,500.00 to $357,500.00.
The evidence seems to me to justify applying a greater percentage than the conventional 15% for vicissitudes, to take account of the other factors I have previously mentioned. I adopt a midrange figure of $300,000.00 as representing the full value of the plaintiff’s present earning capacity had it not been for the injury. After applying a discount factor I allow $240,000.00 for loss of earning capacity for the future.
For loss of superannuation benefits I allow 9% of the amounts awarded for past and future loss of earning capacity, that is $12,600.00 for the past and $21,600.00 for the future.
I am satisfied that an allowance is justified for a component to cover the notional commercial value of services provided gratuitously to the plaintiff by her family. The hourly rate is probably now about $25.00 and was closer to $20.00 seven years ago. For past services I allow $12,000.00 plus interest of $4,000.00. For the future I allow $10,000.00.
Conclusion
The individual components of the award of damages are as follows:
General Damages
$100,000.00 – interest on past component
$8,000.00 Past treatment expenses
$26,000.00 Future treatment expenses
$10,000.00 Past loss of earnings
$140,000.00 – interest
$9,500.00 Loss of earning capacity – future
$240,000.00 Loss of superannuation benefits – past
$12,600.00 – future
$21,600.00 Griffiths v Kerkemeyer – past $12,000.00 – interest
$4,000.00 – future
$10,000.00 __________
$593,700.00
Upon consideration that amount seems to me a proper reflection of the effect of the defendant’s negligence upon the plaintiff. There will be judgment for the plaintiff for $593,700.00. The defendant is to pay the plaintiff’s costs. I shall order that the order for costs be stayed for fourteen days in case there are considerations of which I am unaware which might justify a different costs order. Application may be made through the Master’s associate by a party wishing to ask for a different costs order. Notice of intention to make that application may be made informally by email to the Master’s associate with a copy to the other party. If such notice is given within fourteen days of judgment, the costs order will be stayed until further order.
I certify that the preceding one hundred and forty five (145) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.
Associate:
Date: 19 December 2013
Counsel for the plaintiff: Mr R L Crowe & Mr W L Sharwood
Solicitor for the plaintiff: Maurice Blackburn
Counsel for the defendant: Mr S G Campbell SC & Mr A R Muller
Solicitor for the defendant: Moray & Agnew
Date of hearing: 20-22 February, 21 May 2012
Date of judgment: 19 December 2013
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