Jessop v Central Sydney Area Health Service

[2004] NSWSC 692

CITATION:	Jessop v Central Sydney Area Health Service [2004] NSWSC 692
HEARING DATE(S):	20/10/03 - 24/10/03; 02/02/04 - 06/02/04; 09/02/04 - 12/02/04; 16/02/04 - 20/02/04; 23/02/04 - 26/02/04
JUDGMENT DATE:	23 August 2004
JUDGMENT OF:	Dowd J at 1
DECISION:	Verdict for the Plaintiff; all matters not determined herein reserved; liberty reserved to the Parties to approach the List Judge to assign a judge to complete the orders made on any matter yet to be completed; Defendant to pay the Plaintiff's costs of and incidental to the proceedings
CATCHWORDS:	Workplace injury - unsafe system of work - failure to follow direction to provide light duties - accumulation of injuries - compensation threshold
LEGISLATION CITED:	Workers Compensation Act 1987
CASES CITED:	Heuston v Yore Contractors Pty Limited, unreported NSWSC, 9 March 1992 Makita v Sprowles (2001) 52 NSWLR 705 R v Turner 1975 QB 834
PARTIES :	Su Ju Jessop Central Sydney Area Health Service
FILE NUMBER(S):	SC 20091/02
COUNSEL:	Plaintiff: Mr G B Hall, Mr C J Whitelaw Defendant: Mr J Poulos, Mr C Butler
SOLICITORS:	Plaintiff: Neville Wyatt Lawyers Defendant: PW Turk & Associates, Solicitors

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DOWD J

Monday, 23 August 2004

20091/02 SU JU JESSOP v CENTRAL SYDNEY AREA
HEALTH SERVICE
JUDGMENT

1 DOWD J: The Plaintiff originally commenced proceedings in the District Court by way of Ordinary Statement of Claim against the Defendant as a body incorporated by statute, having the control of premises known as the United Dental Hospital (“UDH”) at 2 Chalmers Street, Surry Hills, where the Plaintiff was employed by the Plaintiff as a dental assistant.

2 The proceedings were transferred to the Supreme Court, and after several attempts at resolution of the matter, came before me on 20 October 2003 on the basis that there would be a two week hearing. Although it is often the practice for the District Court proceedings to be relied on, it was agreed that it was necessary for a new Statement of Claim to be filed. This occurred on the morning of Wednesday, 22 October 2003. The following day, I granted the application to file the Amended Statement of Claim subject to later amendments which may be sought.

3 The amended Statement of Claim pleaded on behalf of the Plaintiff that the Plaintiff was employed by the Defendant, the manager of the UDH, as a dental nurse assistant. It alleged that the Plaintiff, having commenced at the UDH in June 1995 as a trainee, was at that time free of injury. The Statement of Claim alleged that, as a trainee, the Plaintiff would work beside a dental chair, assisting dentists. At chair side, it was necessary for the Plaintiff to use a “Ketac” gun to prepare fillings for patients. The Plaintiff’s duties also included working in the sterilisation room of the Restorative Dentistry Department.

4 It was alleged that the Plaintiff experienced some numbness in the fingers and wrist of her right hand, but that those symptoms subsided towards the end of 1996. Additionally, it was claimed that the Plaintiff experienced stiffness in her neck and shoulders.

5 The Statement of Claim further alleged that in carrying out her duties in the sterilisation room, the Plaintiff found that she had difficulty removing baskets of instruments from a sterilisation autoclave, and because of her size, it was difficult to extend her body to lift baskets onto a trolley. It was alleged that she complained about this to her team leader, who refused her permission to visit a doctor, and that she decided to put up with the pain and apply self-help remedies. Eventually, pain caused the Plaintiff to seek treatment for numbness in her hands and stiffness in her neck.

6 In December 1997, the Plaintiff was required in the course of her duties to carry a number of heavy boxes, after which she again consulted a General Practitioner, complaining of worsening neck pain, and sought treatment from a rheumatologist. She returned to work in February 1998 in the sterilisation rooms, which obliged her to again carry heavy boxes. After a further consultation with the doctor, the Plaintiff undertook a course of remedial massage which alleviated the neck, shoulder and hand symptoms, and the condition no longer troubled her.

7 It was alleged that the Plaintiff continued to have difficulty with opening the autoclave door of the sterilisation room at work.

8 It was further alleged that during the August 1998 contaminated water supply problems in Sydney, the UDH had to purchase bottled water, but for a period of four to five weeks the Plaintiff was obliged to boil and carry water to sterilise utensils. By September 1998 the Plaintiff experienced a return of pain in her neck and right shoulder, and numbness in her hand radiating into her palm. In November 1998, the Plaintiff experienced an increase of pain in her neck and numbness in her right hand, but after employing domestic assistance, she experienced improvement in her symptoms.

9 The doctor issued the Plaintiff with a certificate requesting light duties at work until 11 March 1999. A Worker’s Compensation Claim was submitted to the Defendant on 16 February 1999. The Plaintiff undertook further physiotherapy treatment and by the end of February 1999, the neck, shoulder and hand symptoms had again subsided.

10 The Statement of Claim further alleged that on 3 March 1999, at the close of a shift, the Plaintiff experienced pain in her lower back whilst trying to remove an instrument requested by a dentist from a cupboard, at a time that she was fatigued and on light duties. As the Plaintiff pulled out a tray, it caught on the edge of a cupboard. That night, the Plaintiff woke up to intense pain in the neck and shoulders.

11 It was alleged that the Defendant accepted the Worker’s Compensation Claim on 3 March 1999, backdating it to commence on 3 November 1998. On 4 March 1999, the Plaintiff suffered severe neck pain, had difficulty swallowing food, and suffered from headaches, dizziness and pain behind her eyes. On 12 April 1999, the doctor certified the Plaintiff fit to return to light duties. The Plaintiff was assessed by a Commonwealth Rehabilitation Service provider, who, it was alleged, caused the Plaintiff considerable pain during her assessment. In June 1999 the doctor certified the Plaintiff fit for only light duties.

12 On 15 June 1999, the Plaintiff ceased work at the UDH, and has not worked either there or anywhere else since.

13 The Plaintiff alleged breach of duty of care owed to her by the Defendant, in requiring the Plaintiff to perform work tasks that exposed her to significant injuries to her hand, neck and shoulder, specifically: having to manually open and close a stiff autoclave door, which required the Plaintiff to open the handle; and requiring a person of the Plaintiff’s height, being 153 cm, to unload baskets from the autoclave using a trolley that was too high and unstable because it could not be braked to provide stability.

14 The Plaintiff further alleged that the Defendant breached its duty of care to her, and exposed the Plaintiff to risk of injury, by obliging her to use amalgam preparation guns which were too stiff for repetitive squeezing for someone with a small hand and grip; by obliging the Plaintiff to carry heaving boxes; by exposing the Plaintiff to serious injury and to risk of aggravation of existing injury by requiring the Plaintiff to lift a multi-cooker heater with four to five litres of boiled water into a steel bucket, the lip of which was 122 cm above floor level over a period of four to five weeks; by exposing the Plaintiff to injury by failing to heed a complaint made to her work supervisor concerning the unloading of baskets from the autoclave; by exposing the Plaintiff to risk of injury or aggravation for failure to provide a safe system of storing dental instruments; and for failing to ensure that when she was on light duty she was not required to perform a duty that might aggravate or exacerbate her neck injury.

15 It is further alleged that the Defendant failed to implement satisfactory workplace risk assessment to prevent injury or aggravation caused to the Plaintiff’s body, and failed to rotate the Plaintiff more frequently between different work tasks. The Plaintiff further alleged negligence in failure to provide trolleys of appropriate height, failure to provide appropriate mesh baskets to prevent the instruments catching, and failure to provide suitable equipment and height of shelves.

The Plaintiff’s Case

16 The Plaintiff’s evidence was given largely through an interpreter, although there were some considerable difficulties in this because the Plaintiff has a reasonable understanding of English, and many discussions occurred as to whether the interpreter had correctly interpreted parts of the evidence. This did not assist in the precise understanding of some of the issues raised.

17 The Plaintiff was born on 27 October 1948 in Shanghai, China, and completed her high school in China until the Cultural Revolution, when, in 1968, she went to work on a farm where she worked for some ten years. The Plaintiff married in 1972 and gave birth to a child in 1973. She resumed her education in 1978 until 1986, studying Chinese Literature and then Chinese Law, and after which she studied Environmental Science. In China, the Plaintiff had been a consultant to local government in Environmental Law regulations.

18 The Plaintiff came to Australia. After the Tianannamen Square demonstrations, the Plaintiff asked her husband, who had remained in China, to come to Australia, but he did not want to and he therefore divorced the Plaintiff. In 1990 the Plaintiff worked in a knitting factory in Redfern, at which time the Plaintiff studied English. On 18 January 1992, the Plaintiff married Robert Jessop in Sydney and thereafter the Plaintiff took up employment at the Prince of Wales Hospital as a ward cleaner.

19 In 1992, the Plaintiff consulted a psychiatrist, Dr Wong, for problems relating to jealousy of her husband, arising, according to her evidence, from the cultural differences of a Chinese society where people did not have as much body contact with each other and Australian society in which men and women hug each other more readily. After advice from Dr Wong, the problem resolved.

20 At the Prince of Wales Hospital the Plaintiff’s duties involved assisting with patients and carrying out other non-medical tasks. She said she experienced at that time pain in her right elbow which she treated with Chinese medicine, being a condition that arose before she commenced working at the UDH.

21 The Plaintiff commenced work at the UDH, assisting dentists by using an instrument to suck fluid and water from a patient’s mouth, which work she described as being easy. The Plaintiff said that in 1996 she commenced studying a Dental Nursing course at the TAFE operated on the upper level of the United Dental Hospital, which she completed in June 1999.

22 The Plaintiff described the instruments which, in her work in the Restorative Department, were to be placed in the sterilising autoclave as being laid in small plastic trays which were laid in a larger tray, and which then went into an open metal basket which was placed in the autoclave. The photographic evidence showed the autoclave and the autoclave door, which the Plaintiff claimed to have difficulty opening. The Plaintiff said that she would put between 11 and 13 baskets of instruments through the autoclave each day. The trays of instruments were quite heavy.

23 The Plaintiff said that she complained to her supervisor, Oronza Caus, “Enza”, about the height of the trolley, and said that Enza had told her how to lift the trolley, but that when the Plaintiff complied, the trolley nearly fell out of balance and that that activity made her neck more sore. The Plaintiff said that she had told Enza about pain in her body and that she, the Plaintiff, would like to go and see a doctor. She said that Enza said that she had pain too and that the Plaintiff should take a painkiller. The Plaintiff continued to suffer pain in her neck and shoulder as a result, and in October 1997, the Plaintiff said that she went to see a Dr McIntyre, a General Practitioner who practiced near the UDH.

24 The Plaintiff gave evidence that one year after she had started work at the UDH in approximately December 1997, there was a movement of departments within the UDH, and as a result she was obliged to take on work which involved carrying boxes, some of which weighing more than 3kg to 5kg, and some of which weighing 10kg. The Plaintiff said that she experienced at this time a pain in her neck, and numbness in the middle, ring and little finger of her right hand.

25 After being away from work for three weeks in February 1998 the Plaintiff started working in the sterilisation room in the Restorative Department on a permanent basis, her duties being located primarily in the sterilisation room. She gave evidence that while in the sterilisation room she was obliged to push boxes that were too heavy for her to carry into the corridor outside to the sterilisation room.

26 The Plaintiff said that she worked in various departments from when she started there in 1996. The Plaintiff worked sometimes as a dental nurse, and sometimes in the sterilisation room of the Restorative Department sterilising instruments. In September 1998, when finishing sterilising instruments in the sterilisation room, the Plaintiff said she that she experienced sharp pain in her neck which she could not bear and that she was not able to hold the sucking instrument or Ketac gun in the course of her duties assisting dentists because of that pain. The Plaintiff described the use of the Ketac gun, which is used to mix a porcelain substance to be added to teeth.

27 The Plaintiff gave evidence that she could put up with the pain in her neck and shoulders because she used a Chinese medicated patch and tablets and that after seeing Dr McIntyre, she had physiotherapy treatment at the Prince of Wales Hospital between 27 March 1998 and 7 May 1998. From 27 April 1998 to 27 May 1998 the Plaintiff took three weeks off work because she said she was tired and wanted to improve her condition. After finishing the physiotherapy treatment and after the time off, she said that she no longer had any pain and she then went back to work until August 1998.

28 The Plaintiff gave evidence that in August 1998 she worked in the sterilisation room for four weeks because she was given extra work boiling water due to Sydney’s water contamination problem at that time obliging all water to be boiled before use. The Plaintiff’s evidence was that there was a period of some four or five weeks before the hospital started to buy water in five litre containers. The Plaintiff said that she had to use a 5 litre multi-cooker to boil the water, which was an open bowl with a heating device within it. The Plaintiff said that she had to carry the water from the sterilisation room to a bench outside the room and then tip the water from the multi-cooker into a steel bucket. The Plaintiff said that she was obliged to lift the multi-cooker some 11 to 13 times a day and that it gave her pain in the neck and shoulders.

29 In addition to the water boiling the Plaintiff had to do her usual job sterilising instruments in the autoclave. The Plaintiff took some three days off work from 31 August 1998 because of the pain in her neck and right shoulder, which caused her to lose sleep at night. The Plaintiff also had intermittent pain in her right hand. The Plaintiff self-medicated using a gel and a Chinese medicated patch.

30 The Plaintiff gave evidence of an incident late on the afternoon of 3 March 1999 when a dentist asked her to find a particular instrument, at a time when the Plaintiff was on light duties. The Plaintiff knelt down, took out a number of trays and found the instrument in the fourth tray. That night, the Plaintiff woke up at midnight with pain in her lower back, under her lower back and under her shoulders, as well as greater pain in her neck and shoulders.

31 The Plaintiff went to the hospital the following day to report the injury and to ask for leave, having not reported it the day before because everyone had already left on the afternoon of 3 March 1999. Enza, the team leader who she spoke to said, “no one can replace you this morning. You can’t go and see the doctor”. The Plaintiff said that she endeavoured to work but that the pain was too great and that even though she took pain killers and analgesics from her locker she still had considerable pain. Without asking for leave, the Plaintiff left and went to see Dr McIntyre, who put her off work from that afternoon.

32 Subsequently to leaving her employment, the Plaintiff saw that the shelves where the instruments were kept had been altered so that there were racks for each tray of instruments. However, at the time of the Plaintiff’s injury there was a shelf with a number of trays stacked on top of the other.

33 Dr McIntyre referred the Plaintiff to an orthopaedic specialist, Dr Woo, as a result of which the Plaintiff started to wear a neck brace. The Plaintiff continued to have a problem with pain and with swallowing food such as hard rice and beef. She was only able to eat the Chinese dish, congee and fish. In addition, the Plaintiff had soreness in her shoulders and in her hand, wrist and palm. On 12 March 1999, the Plaintiff started to wear a neck brace for use on public transport.

34 The Plaintiff said that in about October 1999 she started to study English at TAFE, some ten hours per week, but found at times that she could not stand up. She found a numbness below her right knee and a “pulling kind of pain” behind her left knee and that she was unable to walk at times. The Plaintiff said that in mid-1999, whilst at a lecture, she had a headache and experienced pain in her chest and found difficulty in breathing. The Plaintiff found that she suffered sufficient pain that she was prevented from continuing her studies at TAFE.

35 The Plaintiff’s evidence was that at this stage she was experiencing pain every day, for which the she took a lot of pain killers and underwent physiotherapy treatment. The Plaintiff also had a series of tests done in relation to a problem of internal bleeding, and had acupuncture and hydrotherapy. The Plaintiff said that she continued to experience pain in her neck at a point close to her head, as well as at the end of her cervical spine, in respect of which she said that

”the big bone there was painful”. The Plaintiff said that she would have pain three days out of six primarily on her right side but also sometimes on her left.

36 The Plaintiff’s evidence was that in early 1993 she experienced a pain which went down from her hip to her leg, as a result of which she had to spend two weeks in a wheel chair. The Plaintiff said that with sleeping tablets she could sleep for seven hours but that this caused stomach bleeding. She said that she was provided with pearl powder for pain, which meant that she only needed to take sleeping pills four times a week and could otherwise sleep.

37 On 19 April 1999, the Plaintiff then went to see an assessor called Caroline from the Commonwealth Rehabilitation Service for assessment. In the course of that assessment, the Plaintiff was subjected to a series of physical examinations and tests which, on her evidence, caused her considerable pain of such intensity as to cause the Plaintiff to sweat. On the following day, the Plaintiff went to see Dr McIntyre who referred her to a Dr Youseff, and then had an ultrasound performed by a Dr Scott. The Plaintiff then went back to see Dr Woo.

38 Dr Youseff gave the Plaintiff a cortisone injection in the right arm and shoulder which alleviated the pain for about one month. The Plaintiff said that she continued to have headaches and pain in her chest, and that she suffered from vomiting from the pain. She said that the pain in the back of the head and behind her eyes was painful, but not too painful.

39 On 8 June 1999 the Plaintiff resumed light duties but she gave evidence that because of the pain, the Plaintiff had to lie down on a dental chair, and after vomiting for half an hour, the Plaintiff was given a Cabcharge docket to go home.

40 The Plaintiff called Dorothy Duncan a collaborator with the Plaintiff, whose evidence was somewhat shaken by cross-examination, but I accept her evidence that she did receive complaints of numbness from the Plaintiff, and that she was able to support the Plaintiff’s injuries on 3 March 1999.

41 The witness Severina Bondoc who was called by the Defendant presented with a demeanour antagonistic to the Plaintiff’s case and was an unimpressive witness. I reject her evidence that there were no problems with the autoclave door – clearly there were problems, and clearly there were problems for the Plaintiff. Her evidence that the trolley was the same height as the autoclave is to be rejected.

42 The evidence of the dental assistance Oronza Caus, who says that she had no recollection of the conversation with Ms Gharakhan as to the trolley, and no recollection of complaints by Ms Duncan, came across as an impartial witness, and I reject her evidence so far as it conflicts with the Plaintiff’s.

43 I find some difficulty with the evidence of Angela Papadopoulos who remembers something of a conversation. I do not accept that the Plaintiff was offered any employment which could be described as light duties. I make no criticism of the Defendant as to the late production of the autoclave records. It is difficult, however, to accept the evidence of Ms Papadopoulos, in that she was not told of the incident of 3 March 1999. I prefer the evidence of the Plaintiff and that of Dr McIntyre to that of Ms Papadopoulos in this respect.

44 The ergonomic evidence of Dr Olsen called for the Defendant was that a work system must be designed for the particular worker, and his evidence was that lifting more than 10 kg from the autoclave presented a risk of injury which could have been modified by adjusting the trolley. His evidence as to how the Plaintiff may have lifted the trays in the autoclave is no cause to reject the evidence of the Plaintiff as to how she in fact used it. It was the Plaintiff who was using the autoclave under the supervision of the other staff in the hospital.

45 I note that although there was substantial challenge to the evidence of Dr Coyle called for the Plaintiff, I accept his evidence as to the unsafe nature of the work, and in that respect, his evidence supported by Ms West and Ms Whitney, whose evidence was accepted and unchallenged, I accept in preference to that of Dr Olsen.

46 I have dealt below with some of the medical witnesses, but I note that a significant number of the Plaintiff’s witnesses were not cross-examined, and particularly, the range of medical and rehabilitation witnesses set out under the heading of “Medical Evidence” below. The Defendant also did not require the occupational therapist or a number of witnesses in relation to the injuries sustained.

The Medical Evidence

47 The report of Dr Andy Garfagnini of Sydney X-Ray, opined that on an examination of the cervical spine, there was a mid-line disc protrusion at the C3/4 level, and that a minor mid-line bulge of the C4/5 disc was present. The remaining cervical disks appeared to be intact. Localised ossification of the posterior longitudinal ligament at C6 was found. Dr Garfagnini’s opinion was that there is was minor mid-line protrusion of the C3/4 and C4/5 discs and that no other significant abnormality had been demonstrated.

48 In her report of 22 April 1999, Dr Helen Scott, also of Sydney X-Ray, found the supraspinatus tendon swollen and that there was moderate subacromial and subdeltoid bursal effusion. Dr Scott opined that the visual bony structures showed no evidence of degenerative change and that there was no fluid in the shoulder joint. The comment made was that there was a probable partial tear of the right supraspinatus tendon and queried the possibility of a partial tear of the infraspinatus tendon near its insertion.

49 In her report of 8 July 1999, Dr Scott found that the supraspinatus tendon was thickened anteriorly and had heterogeneous echotexture but found no other abnormalities, her comment being that the findings were suggestive of tendonitis of the supraspinatus tendon with impingement.

50 Dr McIntyre referred the Plaintiff to Dr Alex Woo, Orthopaedic Surgeon who was provided with a history of numbness of the Plaintiff’s right hand from September 1997, with her condition improving after physiotherapy. In October 1998, the numbness recurred and the Plaintiff complained of neck pain radiating to the right shoulder. Dr Woo said that the Plaintiff was working light duties until March 1999 when her neck pain deteriorated and she was unable to work.

51 Dr Woo found a tenderness over the lower cervical spine and right shoulder muscles with 70 percent of normal range of movement and pain on extension. He found tenderness on the right shoulder. In relation to the CT and MRI scan examinations, he stated that the cervical spine showed disc protrusion at C3/4, C4/5 and C5/6 but with no nerve compression. He found that the Plaintiff had cervical spondylosis and radiculopathy of the right arm. He recommended physiotherapy and return to light duties. When she returned to see him some month later, her neck pain was improved but he found numbness in the right middle, ring and little fingers and that an ultrasound demonstrated partial rupture of her supraspinatus tendon. She was not then fit for work.

52 On 30 June 1999 the Plaintiff again went to see Dr Woo, complaining of numbness of the right ring and little fingers and high shoulder pain in the left shoulder. Dr Woo found tenderness over the acromio-clavicular joint of the right shoulder and found that external and internal rotations were restricted. When the Plaintiff returned on 31 July 1999 complaining of similar pain, an X-Ray found the left shoulder to be normal, but an ultrasound examination showed supraspinatus tendonitis requiring further examination and physiotherapy.

53 In May 2000 the Plaintiff continued to complain of pain in both shoulders, and in December of that year complained of headache, neck pain, back pain, and numbness in both arms and legs. On 21 April 2001 a MRI examination showed a disc bulge at L2/3. The Plaintiff was at that time experiencing pain in both shoulders, neck and back.

54 After a further examination in May 2001, Dr Woo said that the Plaintiff had a multiple strain injury to her neck, back and both shoulders, with a rotator cuff tear in her right shoulder, and had been under prolonged treatment for physiotherapy, hydrotherapy, acupuncture, massage and analgesics. Dr Woo’s opinion was that she would continue to have pain in her neck, back and both shoulders in the long term. He found that she was not fit to return to her pre-injury work as a dental nurse assistant, and was totally incapacitated for work, with a poor prognosis, and that it was unlikely that she would find a suitable job considering her physical condition at the time of the examination.

55 Dr Woo said that he would not recommend surgery and that the Plaintiff would need to continue treatment with physiotherapy and other pain-relieving treatment options, such as massage and acupuncture twice a week for the following six months. She had multiple problems affecting her neck, back and both shoulders and his opinion was that she should have support for taxi services in order to visit her doctors.

56 As expressed in June 2001, Dr Woo’s opinions were that the Plaintiff injured her neck, back and shoulders during the course of her employment as a dental nurse assistant from 1995-1999, and that she had:

15 percent permanent impairment of the neck;

25 percent permanent loss of efficient use of the right arm at or above the elbow, including any loss below the elbow;

10 percent permanent loss efficient use of the left arm at or above the elbow, including any loss below the elbow;

15 percent permanent impairment of the back;

10 percent permanent loss of efficient use of the right leg at or above the knee, including any loss below the knee; and

10 percent permanent loss of efficient use of the left leg at or above the knee, including any loss below the knee.

and that the cause of the impairment was entirely work related.

57 In October 2001 Dr Woo recommended long term physiotherapy, hydrotherapy, acupuncture and massage.

58 In April 2002, after a gastroscopy, the Plaintiff was found to have gastritis and was advised to stop medication of analgesics and similar treatments. Dr Woo found at that time that the Plaintiff’s back and right shoulder had deteriorated, and considered that the treatment of once a week which was allowed was not enough, as the Plaintiff in his opinion needed physiotherapy and acupuncture twice a week to relieve her pain. Dr Woo continued to treat similar complaints and made similar findings, and in January 2003 found that the Plaintiff was totally unfit for work, unable to do her housework, and in need of 14 hours of domestic assistance per week.

59 Adduced on behalf of the Plaintiff was evidence of a radiologist Dr J. Kwan, who was treating the Plaintiff, of a MRI which showed disc protrusions causing minor anterior indentation of the spinal cord at C5/6, a mild broad-based posterior disc protrusion causing mild mass effect. There was no evidence of nerve root impingement and no intrinsic cord abnormality detected.

60 The evidence of Dr P.F. Teychenne, a treating neurologist was that the Plaintiff may have compression of her right ulnar nerve, possibly at the elbow but could also be at the level of the cervical spine. CT scans showed disc protrusions at C3/4 and C4/5. An MRI showed indentation of the spinal cord at C5/6. Examination showed that the Plaintiff had a significant slowing in conduction through the right ulnar nerve compared with the left ulnar nerve, although sensory action was normal.

61 Dr Teychenne opined that the Plaintiff may have compression of the right ulnar alert nerve, possibly at the level of the elbow although this could also be at the level of the cervical spine. CT scans and MRI show focal and midline disc protrusions at C3/4 and C4/5 with a broad based posterior disc protrusion causing a mild effect at C5/6. Dr Teychenne suspected that the Plaintiff had right cervical radiculopathy with compression of the right C7 nerve root, which forms a major part of the right ulnar nerve. He also opined that the decreased recruitment pattern within the right deltoid muscle is due to the lack of effort on the Plaintiff’s part, due to the restrictions she feels secondary to the pain in the right shoulder. Further to an examination on 11 August 1999, Dr Teychenne repeated his findings and noted that the Plaintiff was taking Zoloft and she noted pain over the lower lumbar spine, extending across the left and right buttock and down the right hip. The Plaintiff also advised that she was taking Voltaren. The opinion of Dr Teychenne on 19 August 1999 was that he believed that the Plaintiff had lumbo-sacral radiculopathy. This was confirmed by Dr Sam Gerber, radiologist, in August 1999.

62 In December 1999, the Plaintiff gave Dr Teychenne a history of carrying a 10kg steel box as a result of which she developed pain over the lower lumbar spine extending to the buttocks. A CT Scan of the lumbar spine showed a broad-based central disc protrusion at L5/S1, which would potentially compress the L1 nerve root into both legs. Dr Teychenne found evidence of radiculopathy and continued to treat the Plaintiff for the conditions as he found.

63 In March 2001, Dr Teychenne found that the Plaintiff gave a history of numbness in the right leg. This was consistent, he found, with her injuries.

64 A Dr Tanchum, radiologist, found a tear in the right supraspinatus tendon was demonstrated, showing a slightly greater length causing minor thickening of the sub-deltoid bursa.

65 In July 1999, the Plaintiff was treated by a psychiatrist Dr Richard Wu who opined in his report dated 13 July 1999 that the Plaintiff suffered from major depression, characterised by depressed moods, frequent crying, loss of pleasure, loss of concentration and memory, social withdrawal and insomnia. Richard Wu found her outlook to be quite hopeless and that she was uncharacteristically irritable towards her family. His opinion was that the Plaintiff’s depression had reached clinical proportions since April 1999 in the context of experiencing worsening pains. She expressed herself to Dr Wu as having a good relationship with her son and in her marriage, with no prior history of depression and that she described herself as being naturally optimistic. Dr Wu opined that this depression evolved as a result of her degree of functional restriction, and that the Plaintiff was in need of psychiatric care particularly because of the chronic pain and the lack of gainful employment.

66 The opinion of surgeon Dr W Patrick confirmed the disc injury at L5/S1 and probably L5 nerve root irritation but opined against surgery. He noted that there were psychological and emotional aspects to the Plaintiff’s situation but he did not believe that she was conscientiously exaggerating.

67 Psychiatrist Dr T Clark in February 2001 opined that there was an obvious psychological and emotional aspect to her situation where she and her second husband had been very happy and affectionate together, but that this had changed, and he said he no longer loved her and she felt at a loss and paranoid. He found that the Plaintiff suffered a major depression; and that probably work-related injuries were the cause. Further, he found that she was sufficiently depressed that she could not cope with domestic activity and was totally unfit for work.

68 A treating radiologist Dr Robert de Costa did an MRI of the Plaintiff’s left shoulder. There was found a 3 x 3mm tear in the leading edge of the critical zone of the supraspinatus.

69 Dr Jerome Goldberg, a specialist shoulder surgeon said that there was soft tissue injury involving the Plaintiff’s neck, chest wall and upper limbs and concluded that there was little prospect of it improving, and that there was further the requirement for ongoing treatment of the Plaintiff at a pain clinic. The opinion expressed by Dr Goldberg was that there was a fifty percent chance that arthroscopic examination of the Plaintiff’s shoulder would improve the shoulder but not her neck and that surgery could worsen her position.

70 Vocational psychologist Raynor Landa did not believe that the Plaintiff would find employment in the future. It was noted that her employment in Australia has involved heavy manual work for which she is now incapacitated and her language difficulties would not equip her for clerical work and her upper body injuries would preclude such work. Rehabilitation Professor Erlich found that the Plaintiff displayed considerable disability. Her right arm was in a sling and she was barely able to move it and there were restrictions on her left arm, neck and back. He found the Plaintiff quite depressed and in such condition that she was unable to cope with domestic duties. She would need assistance four hours a day, seven days a week.

71 Dr Stephen Buckley, Rehabilitationist found that with the injuries she has suffered, the Plaintiff would need: six visits annually; an orthopaedic surgeon visit, once annually; rotator cuff procedures, two per year, revisio,n two per year; physiotherapy, once monthly; review for the next three years six treatments, annually; occupational therapy. four hours annually to be reviewed; handyman, three hours a week; housekeeper, fourteen hours a week and that she was unemployable on the labour market as a result of her disabilities.

72 Orthopaedic Surgeon Dr Fred Blake opined that the Plaintiff suffered injuries during the course of her employment with the United Dental Hospital, suffering multiple jarring and strains to her neck, shoulders, right hand and lower back, superimposed upon pre-existing constitutional degenerative changes in her neck, shoulders and lower back. His opinion was that the cause of her injuries related mainly to the nature and conditions of her work, and her duties in the restorative department sterilisation room. The cause of her injuries therefore were work-related and the multiple injuries have resulted in residual disability since her employment ceased in about June 1999. His opinion was that in general the injuries and strains aggravated and brought to light pre-existing degenerative changes in her neck, shoulders and back involving three levels of the cervical spine which had been repeatedly jarred and strained during work manoeuvres in the sterilisation room.

73 In view of the structural changes the prognosis of Dr Blake was for continuation in her present state during the short to medium term. Dr Blake then agreed with the opinions of the Plaintiff’s previous doctors as to the demonstrated injuries.

74 Thereafter Dr Blake expressed the opinion that the Plaintiff was a relatively intense, highly motivated and well-intentioned woman of considerable intelligence. Following her problems at work, she appeared to have developed over-reaction with abnormal illness behaviour in the nature of a chronic pain syndrome which magnifies her perception of the organic disabilities present. He did not consider that there was a case for continuing physiotherapy after several years since stopping the aggravating work injuries. Occasional short courses of physiotherapy or other physical therapies such as acupuncture would be reasonable for aggravations. His advice is that she must avoid heavy use and strain of her shoulders.

75 The Plaintiff’s GP Dr Helen McIntyre produced a number of reports, some of which were relied upon by the defendant and tendered on its behalf against the Plaintiff. Dr McIntyre treated the Plaintiff in October 1997 for paresthesia of the tips of the right 3rd, 4th and 5th fingers and advised the Plaintiff to try to avoid resting her elbow on the chair. Over the months treating her, the Plaintiff complained of and the doctor diagnosed the Plaintiff as having a tender right trapezius. In February 1999, Dr McIntyre treated the Plaintiff who claimed of right neck pain when driving, some intermittent paresthesia for her right hand. She advised her to continue with her physiotherapy and treated her with Voltaren Gel, massage and heat exercises, and ordered that work duties be modified. She diagnosed occasional pain with cervical flexion.

76 On 26 February 1999, Dr McIntyre opined that the Plaintiff’s “…work is a contributing factor in her symptoms and I have put restrictions on her work as I do not consider that she is fit for her normal duties…”.

77 On 4 March 1999, Dr McIntyre treated the Plaintiff for a recurrence of neck pain and paresthesia in her right hand. The history given by the Plaintiff was that the Plaintiff had tried to help a dentist. On 5 March 1999 Dr McIntyre took a history from the Plaintiff that she “…had lifted heavy metal baskets into a steriliser filled with instruments. She tried to look for an instrument and pulled them out in a rush. One basket stuck and pulled. Suddenly left lower back pain. No neck pain. Woke up with increasing pain in the left neck. Although it had been stiff by the end of the day, now the left lower back pain was better two days after the incident in the steriliser room, stiffness of neck”. Dr McIntyre found the right trapezius more tender than the left.

78 On 9 March 1999 on further examination Dr McIntyre found cervical pain more severe on the right, that paresthesia has gone from the right third fingers but that was still there in the first and second fingers. She found very limited lateral movements and extension.

79 On 22 March 1999, Dr McIntyre found slight lower right cervical pain. The Plaintiff complained of paresthesia in the fourth and fifth right fingers, that she had good lateral movement but sore right trapezius. Dr McIntyre referred the Plaintiff to Dr Wu, an orthopaedic specialist.

80 On 7 April 1999, Dr McIntyre reported a discussion with J. Schmidt of the Commonwealth Rehabilitation Service that there were no suitable light duties for the Plaintiff as her English was not adequate and that a physical assessment was required.

81 On 20 April 1999, Dr McIntyre reported that the Plaintiff was subject to a work conditioning program, but was unhappy with the person the previous day who had pushed the Plaintiff too far and the Plaintiff had developed a headache and sore arm, although the pain had improved. She found substantial limitation on right shoulder because of tendonitis.

82 On 23 April 1999, Dr McIntyre treating the Plaintiff found that at the right shoulder a probable tear with the right super tendon and partial tear of the infraspinatus near its insertion. She noted that the Plaintiff had lifted a heavy tray in the sterilisation room but with a shoulder movement only. The neck had been more painful but was improving.

83 Dr McIntyre continued to treat the Plaintiff for the conditions she had diagnosed until June 1999, when the Plaintiff sought other medical advice.

84 Dr Stapleton who was retained by the Defendant considered that the Plaintiff suffered from a degenerative condition that may have occurred place without any specific injury. His comment was that he did no believe that the Plaintiff was untruthful, that she has disc prolapses in various parts of the spine with evidence of calcification and generalised degeneration of tissues. He found that her prognosis was very bad and found that she would never go back to chair side work, although he did not consider the problem was caused by chair side work. His opinion was that with physiotherapy, the Plaintiff could be fit for light duties but that she has a genuine disability in the shoulder joint which will not improve unless the torn rotator cuff is attended to.

85 Dr James Vote was retained by the Defendant to examine the Plaintiff. He found that she had rotator cuff tear on her right side and that her back symptoms became worse when she undertook a course in English which involved prolonged sittings. He opined that the Plaintiff does not have a typical picture of disc injury. His view was that there was no direct causal relationship between her current symptoms and her work and that her work had been a significant contributing factor to her right arm symptoms and that twenty per cent permanent loss of the use of the right arm was largely the result of her work practise since 1995 and that she should be provided with the assistance of one hour a day as she has an adult family that can help to some degree was the view expressed by him.

86 Dr Vote obviously did not have the amount of time with the Plaintiff as the witnesses qualified by the Plaintiff. His evidence, where it contrasts with Dr Woo, and the other unchallenged evidence should not be preferred to the evidence of Dr Woo, Dr Blake, and Dr Teychenne. His evidence, however, does support the case for the Plaintiff in relation to the degeneration of her right shoulder. Dr Vote considered her shoulder injury to be work related and said that it would be difficult to find work for the Plaintiff.

87 The Plaintiff was examined by Dr Lovell, Psychiatrist who opined that she had symptoms consistent with chronic pain disorder but that he could not obtain a clear history of major depression and considered that the depressive symptoms were secondary to the pain. His view was that she had been over-serviced in terms of psychiatric care and could be managed by a General Practitioner.

Credibility of the Plaintiff

88 The Defendant was able to demonstrate in cross-examination and by evidence of video shown to the Plaintiff that the Plaintiff was in fact more fit than she made out to the Court. The video evidence showed her shopping and attending Court and in her ordinary daily routine to be restricted in her movements, but to be able to move more freely than she made out, particularly in the Court itself. I consider that there is some degree of exaggeration of symptoms.

89 The various medical witnesses have considered the Plaintiff genuine in her presentation. I accept the Plaintiff’s submission that her exaggeration reflected a chronic pain disorder, and that the Plaintiff considers that she is disabled, and lives that life. I do not consider that it is appropriate at this stage to deal with the Defendant’s submissions on the Plaintiff’s credibility. I do not accept the Defendant’s submission that the injuries to her cervical and lumbar spine and to the tissues of her shoulder joints were the result of work during the Cultural Revolution. There is no evidence of any nexus between whatever work she then did and the injuries she later sustained, and there was also a gap of very many years.

90 The Defendant says that the Plaintiff’s depression relates to the breakdown of her marriage. I consider that it is more the reverse, that the marriage has broken up because of depression.

91 The Defendant says that the foundation of the opinions of the medical and ergonomic witnesses is the evidence of the Plaintiff particularly in medical evidence as held by Lawtom LJ in R v Turner 1975 QB 834 at 840. The Plaintiff refers to the obiter dicta of Heydon JA in Makita v Sprowles (2001) 52 NSWLR 705, at 731.

92 The Plaintiff was a most unfortunate and ill-controlled witness. The Plaintiff varied in the accounts which she gave to her solicitors, and in some cases to the doctors who she saw, and in various accounts she gave about incidents that occurred. The Plaintiff was prone to exaggeration of her symptoms, and the inference can be drawn that she did the same in part to the various medical witnesses that gave evidence in these proceedings.

93 Although I consider the Plaintiff to have exaggerated some of her conditions, and clearly presents herself as someone who is seriously injured, it is clear that, particular with the supportive independent medical evidence of radiologists, in relation to the injuries actually sustained, the Plaintiff in fact is believed. It is noted that several of those doctors, including those qualified by the Defendant accept the truthfulness of the Plaintiff’s version of the particular facts that she related to them.

94 There is no medical evidence that any of the disabilities of the Plaintiff were in evidence prior to her employment at the dental hospital on 26 June 1996 and no demonstrated causal connection with the assault incident between the Plaintiff and her husband and the Plaintiff and the work she carried out in China in the Cultural Revolution.

95 On 27 November 1998, an incident which occurred on the bus on the way to work and constituted a jarring of the Plaintiff’s neck demonstrates no medical evidence that a fresh injury occurred. It appears to me none other than an incident of pain resulting from jarring of the Plaintiff’s body where injury had already been sustained.

96 In the nature of the identity of injuries involved in the Workers’ Compensation claim and the fact that payments were backdated to 1998, the Plaintiff is entitled to reply upon the acceptance of the workplace injury and the payments made until date of trial as evidence of admission that the Plaintiff has suffered a work-related injury which has disabled her for the periods of her sick-leave and beyond: see Hunt CJ in CL in Heuston v Yore Contractors Pty Limited (unreported NSWSC, 9 March 1992).

97 There is no issue as to the Defendant owing the Plaintiff a duty of care in the provision of a safe system of work and safe workplace.

98 The Plaintiff contended that the Defendant was negligent in failing to carry out an appropriate risk assessment, particularly as the Plaintiff was a very small woman who in the course of her duties was required to carry out heavy tasks in the sterilising room and during the water contamination crisis in mid 1998; and further, for creating an unsafe system for opening the door of the autoclave and in the provision of an unsuitable trolley for use with the autoclave. The Plaintiff further contended that the Defendant failed to take heed and to take action in relation to complaints by the Plaintiff and in relation to the use of a Ketac gun; and further, for providing an unsafe system for carrying boxes and adopting an unsafe system for putting away stores.

99 The Plaintiff alleged the Defendant adopted an unsafe system for boiling and moving water during the Sydney water contamination crisis in 1998 and also adopted an unsafe system of storing trays of sterilised instruments, as a result of which the Plaintiff sustained back injuries and aggravated other injuries. The Plaintiff further alleged that the Defendant failed to provide such light duties when the Plaintiff was directed to be on suitable light duties and continued to oblige her to carry relatively heavy trays of sterilised instruments.

100 The Plaintiff’s case was that there is a clear causal relationship between the Defendant’s negligence and the Plaintiff’s injuries, which were related to the work that she performed, and thus the Plaintiff is now permanently unfit to resume work as a dental assistant and, because of the physical and psychological injuries is permanently unfit for any work in the future.

101 It was submitted by the Plaintiff that the Defendant must take the Plaintiff as it found her, and any special susceptibility to injury does not reduce, but increases the damages which may be recovered by the Plaintiff in applying the egg-shell skull rule.

102 The Defendant submitted that a transfer of an interest in the property, was done to protect assets from an order for costs, and goes to the credibility of the Plaintiff. That is not a matter which impinges upon the matter before me. The Plaintiff is entitled to rearrange her assets as she wishes unless bankruptcy issues arise.

103 The Plaintiff’s former husband gave evidence in support of the Plaintiff’s case. The evidence shows him to be a very supportive of the Plaintiff and he has used his skills to assist the Plaintiff in the preparation of her case.

104 There was a physical altercation in 1 August 1997 between the Plaintiff and her then husband. The Plaintiff denies that she was assaulted by her husband and said that she assaulted him. He said he observed no sign of physical injury afterwards. During the course of the incident, Mr Jessop lifted the Plaintiff and carried her into the bedroom where she may have struck her head as he carried her. When she attended hospital, she was found not to be injured and was discharged.

105 It is difficult to determine what in fact occurred in this incident but there is no medical or other evidence that would enable the Court to conclude that a cervical injury was caused on that day, although a history was later given to Dr Wong, which shed some light on the incident.

106 The incident in the bus where the Plaintiff’s neck was jolted, causing her neck pain, was noted by Dr McIntyre, whose evidence is referred to more fully below. I do not find that this is a “whiplash” injury as contended by the Defendant, but an incident of pain suffered by the Plaintiff as a result of the work injuries sustained by her by way of damage to her neck and shoulder region. In my view it was an event which caused no material aggravation of the Plaintiff’s neck injury.

107 The injury sustained in the incident of 3 March 1999 occurred late in the day at a time when the Plaintiff was fatigued. This was at a time when the Plaintiff was supposed to be on light duties when clearly, her duties were not light and she had to lift heavy, awkward trays under circumstances of urgency, and any misjudgement on her part did not constitute negligence which would absolve the Plaintiff from its duty of care and did not constitute contributory negligence on her part. The risk of injury could have been inexpensively eliminated, as was demonstrated by what occurred subsequently.

108 The actual physical condition from which the Plaintiff suffered at the time of her retirement from employment is not so much in issue in between the parties as are the issues of causation, duration and the consequences of the injuries sustained.

Injuries to the Plaintiff

109 In the period 1995 to 1996, the Plaintiff had difficulty with the trolley and the autoclave and the heavy autoclave door. The Plaintiff noticed problems in 1996 and through 1997, during which year the Plaintiff continued to experience symptoms in three fingers of her right hand with spreading numbness in her right arm. As a basis of her Worker’s Compensation claim, the Plaintiff described her injuries as pain and numbness in her neck, right shoulder, palm and fingers of her right hand. This was the subject of complaint to Dr McIntyre who treated her during late 1997 into 1998. In 1998 when the Plaintiff was assisting with the removal of boxes of stores, she obtained treatment in relation to pain in her neck and shoulders. During the Sydney water contamination crisis, the Plaintiff again experienced pain in her shoulders and neck and complained to her husband of fatigue. Clearly the injuries were sustained by the very heavy carrying with arms inevitably extended, causing further injury.

110 I consider that the overwhelming evidence of the Plaintiff, which is supported by the objective evidence of the MRI and CT scans, is that she has received injury of the cervical spine and the trapezius and serious damage to the supraspinatus tendon. I find that the Plaintiff injured herself at the base of her spine in L5/S1 cervical discs as a result of extending herself whilst bending over and stretching forward to carry heavy trays to obtain the tray of instruments as described on 3 March 1999. I accept the evidence of Dr Wu in his report of 23 September of the CT Scan showing disc protrusion at L5/S1.

111 I note that the Plaintiff was examined by a Dr North on behalf of the GIO, but that no report has been served. I find that the assessment by the CRS constituted an exacerbation of her injury. The Plaintiff now suffers from serious damage of the rotator cuff in the area of the left supraspinatus tendon.

112 Dr McIntyre, whose reports were tendered by the Defendant, substantially supports the medical case for the Plaintiff in her opinion that it was probable that sustained postures maintained in the Plaintiff’s work as a dental advisor were partly causal of her neck symptoms and that although Dr McIntyre thought it unlikely that the rehabilitation assessment had caused the right should rotator cuff injury, that it was possible that this had exacerbated them.

113 I find that the Plaintiff has a painful neck injury with evidence of protrusions at C3/4, C4/5 and C5/6. She has a rotator cuff tear and full thickness tear of the supraspinatus tendon on the right side and a tear of her left supraspinatus tendon, leaving her with painful shoulders. Both of these are overwhelmingly supported by the medical evidence. The Plaintiff has a lumbo-sacral disc protrusion at L5/S1 and suffers continuing back pain. The Plaintiff has a painful right hand and suffers from major depression, as evidenced by each of the psychiatric specialists called by the Plaintiff.

114 The effect of this is to completely interfere with the whole of her life and results in a need for ongoing care. The Plaintiff is unable to obtain employment at her age in her condition.

115 The Defendant’s failure to devise a safe system of work, which resulted in the injuries to the Plaintiff is demonstrated by the failure to provide a suitable trolley and to take into account the awkward nature of the reaching out that was required. The Defendant had an obligation to carry out a risk assessment before the Plaintiff was assigned to the tasks in the sterilising room and the carrying of boxes. There is a need, with repetitive strain functions, for rotation of workers carrying out those functions, particularly where a worker is of a diminutive size, such as the Plaintiff.

116 The failure to appropriately deal with the autoclave door was manifest, there being many alternative systems which could have been worked out. The witness Caus conceded that there had been a number of complaints. The carrying of water and the heavy lifting that had to be done in the sterilisation rooms are both examples of failure to assess risks for a worker.

117 I do not consider the Plaintiff has failed to mitigate her damages, as she in fact tried improve her English skills, which would have increased her earning capacity.

118 I do not consider that the injuries to the Plaintiff were caused by the use of the Ketac gun, used for mixing substances for filling teeth. It may have been difficult for the Plaintiff to use the gun, because of lack of strength, but it is more likely that her difficulties were exacerbated by the nerve root pain, and deterioration in her right arm.

Breach of Duty

119 I consider that the breach of the Defendant’s duty of care as an employer in the total system of work which manifested itself in the various activities set out above causing the injuries that the Plaintiff has sustained. I reject the contention by the Defendant that the Plaintiff may not plead this as a single cause of action.

120 The Defendant attacks the creditability of the Plaintiff and the evidence called by the Defendant attacks her credibility. I will deal with the issue of the Plaintiff’s credibility as a separate item below.

121 The Defendant says that her duties were changed when her injuries were sustained. The sad part from the Plaintiff’s point of view is that there were no light duties available and whoever in the UDH was responsible for the allocation of duties succeeded in providing anything but light duties for the Plaintiff. Almost all of the work described by her, particularly the work in the sterilisation room, fell outside what could clearly be described as light duties. This succeeded in exacerbating the Plaintiff’s condition.

122 I find that whatever the propensity for degenerative damage that the Plaintiff may have had, the injury she sustained in the workplace performing the duties allocated to her by the Defendant caused the physical injuries I have set out above and in addition to this, the psychiatric condition as outlined by the Plaintiff’s expert evidence an almost inevitable consequence of the physical injuries that she sustained.

Workers Compensation Act

123 Section 151G of the Workers Compensation Act 1987 (the “Act”) established a threshold for any award of non-economic loss, for which an applicant must adduce evidence sufficient to establish that the level or extent of their injury exceeds that threshold. It was submitted on behalf of the Plaintiff in this matter that “…an appropriate award of damages in respect of the injuries sustained by the Plaintiff will exceed the bar imposed by S151H [of the Act]…”.

124 Further, s151H of the Act also establishes a threshold for any award of economic loss, for which an applicant must adduce evidence sufficient to establish that the level or extent of their loss exceeds that threshold.

125 On behalf of the Defendant it was submitted that the Plaintiff had failed to overcome the threshold set out in s151G of the Act and if the Court was to find that the threshold was overcome, then it was further submitted that the Plaintiff “…would only barely make 17.6% of a most extreme case…”. This is particularly so as it is submitted on behalf of the Defendant that each separate and discrete incidents alleged by the Plaintiff, if they give rise to any injury sustained by the Plaintiff result in a separate and discrete injuries to her. These injuries, it is submitted, should be considered by the Court as separate matters and not “rolled up” to form an overall basis for injuries and disabilities as alleged. The Defendant further submitted that if each of the injuries are considered as a separate matter, then “…the effect of the work is only a limited duration…”.

126 It was also submitted on behalf of the Defendant that the Plaintiff has to establish that her loss exceeds 23.5% of a most extreme case, such loss to include loss of earning capacity, out-of-pocket expenses and domestic (gratuitous and paid care) assistance. It was acknowledged by the Defendant that if the Court were to assess the Plaintiff as meeting or exceeding the 32.5% of a most extreme case, then the Plaintiff is entitled to be awarded damages for economic loss.

127 The description of the Plaintiff’s injuries as set out in the various medical evidence and reports available to me demonstrates that the Plaintiff sustained the injury to her shoulder. The accumulation of symptoms manifesting and requiring treatment were evidence of a serious failure to provide a safe system of work. The lifting of any heavy object, particularly at a time when the arms are extended, as against lifting objects held close to the body, require ergonomically quite substantial effort.

128 Considering the light frame of the Plaintiff and her diminutive stature, the work required to be done over a period of time cause the injuries of which she suffered. It is a wrong approach to say that each little or greater incident has to be looked at on its own. It was the system of work which, day after day, hour after hour, generated the injuries which the Plaintiff sustained, whether it be the damage to the supraspinatus tendon, the infraspinatus, the lower back injury, the continuous injury to the right hand and the damage to the shoulders. This has induced the reactive depression for the Plaintiff, from which she now seriously suffers.

129 I consider that the various orthopaedic injuries sustained by the Plaintiff were incurred by her in the cause of her employment and as a result of the failings or actions of the Defendant, who caused the Plaintiff to suffer that damage. This is particularly so given that the Plaintiff was required to perform duties described as being “light duties” for which she was required to complete heavy lifting and movements which were not appropriate in the circumstances and caused her further and additional pain and suffering and injury.

130 I therefore think it appropriate that as well as accepting that each of the orthopaedic injuries sustained by the Plaintiff were caused by the Defendant, the totality of the injury to the Plaintiff as listed by the doctors above should be “rolled up” and the Plaintiff should be awarded 50 percent of a most extreme case, which becomes the sum of $120,000, which satisfies the requirements of s151G of the Act.

131 Further, given that I consider that the injuries sustained by the Plaintiff are in a proportion which exceeds the threshold of 23.5% established in s151H of the Act, I consider that the Plaintiff ought be awarded an amount for economic loss to reflect her injury, loss and damages as claimed.

132 I do not consider that the Plaintiff contributed to her injuries, except through ignorance or inadvertence. I do not consider that she would have been able, unless provided with guidance and assistance, to prevent the injuries that she sustained. I find that the Defendant was guilty of the breach of the duty of care that it owed to the Plaintiff.

Damages

133 I consider that the injuries have been demonstrated as resulting from the negligence of the Defendant. I find a clear causal relationship between the physical injuries and the depression from which the Plaintiff now suffers.

134 For the purposes of calculations, I note that the Plaintiff was born on 27 October 1948 and will be 56 in October 2004. The period to age 65 is 9.25 years, and at the 5% rate is therefore 388.4. The life expectancy of a 56 year old woman is 28.58 years. The 5 % rate for 28.5 years = 803.2

135 The Plaintiff was on sick leave on 31 October 1998 and finally ceased work on 15 June 1999. The period from 15 June 1999 to the date of judgment is 5.63 years. The current weekly net wage of a comparable employee has been agreed by the parties at $500.00 per week.

136 I allow the Plaintiff the out-of-pocket expenses as agreed to date of trial in the sum of $156, 892.00.

137 For future out of pocket expenses I would allow for medical, and physiotherapy, hydrotherapy and acupuncture the sum of $150 per week. I would allow for medical and for physiotherapy and hydrotherapy and acupuncture the sum of $150.00 per week.

138 As to gratuitous and paid care, I note that the Plaintiff has had some care previously but now requires additional care both in cooking and food preparation as well as heavy house cleaning and I would therefore allow 15 hours per week at $15.00 per hour. I consider that this condition will continue and therefore will allow 15 hours per week for future gratuitous and paid care at $15.00 per hour. These are supported by the evidence called by the Plaintiff.

139 For economic loss to the date of trial, I would allow the agreed amount of $500.00 per week, less workers’ compensation payments I would allow that sum multiplied by the figure calculated by the Plaintiff as the average interest rate of 3.64 for 5.16 years.

140 I allow monies deducted for weekly payments of compensation for income tax agreed at $13, 694.00.

141 I allow future economic loss as agreed, allowing $500.00 per week for 9.25 years, being $165,070.00.

142 I allow the figure calculated by the Plaintiff’s witness, which is unchallenged at $49,740.00.

143 I reserve my judgment for any matters not determined by me in this judgment and for any matters between the end of trial and judgment. In view of my unavailability after today, I reserve to the parties the right to approach the List Judge to obtain a further hearing date to complete the matter.

144 In light of the success of the Plaintiff I order that the Defendant pay the Plaintiff’s costs of these proceedings.

Orders

145 As the Plaintiff has succeeded in its claim, the Defendant should pay the costs. I therefore make the following orders:

i. Verdict for the Plaintiff;

ii. I reserve all matters not determined herein;

iii. Liberty reserved to the Parties to approach the List Judge to assign a judge to complete the orders made on any matter yet to be completed;

iv. Defendant to pay the Plaintiff’s costs of and incidental to the proceedings

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Last Modified: 08/23/2004