Pacific Dunlop Ltd v Fraser

[1990] TASSC 49

Serial No 46/1990
List "A"

COURT:  SUPREME COURT OF TASMANIA (FULL COURT)

CITATION:              Pacific Dunlop Ltd v Fraser [1990] TASSC 49; A46/1990

PARTIES:  PACIFIC DUNLOP LTD
  v
  FRASER, Angela

FILE NO/S:  FCA 132/1989
JUDGMENT

APPEALED FROM:                   Fraser v Pacific Dunlop Ltd 61/1989

DELIVERED ON:  7 September 1990
DELIVERED AT:  Hobart
JUDGMENT OF:  Neasey, Wright and Crawford J

Judgment Number:  A46/1990
Number of paragraphs:  16

Serial No 46/1990
List "A"
File No FCA 132/1989

PACIFIC DUNLOP LTD v ANGELA FRASER

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

NEASEY J
WRIGHT J
CRAWFORD J
7 September 1990

Orders of the Court

1. Appeal dismissed

1. Cross-appeal dismissed

Serial No 46/1990
List "A"
File No FCA 132/1989

PACIFIC DUNLOP LTD v ANGELA FRASER

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

NEASEY J
7 September 1990

1. The appellant's business was that of manufacturer of textiles and textile products. The respondent, from May 1980, worked as an employee of the appellant. Her work involved a highly repetitive process of laying out in each five hour shift a great many lengths of cotton material of different measurements. In 1984, she began to get pain in her wrists, and consulted her general practitioner, who prescribed pain killers. Later on, the pain increased and a ganglion developed on each wrist. The pain would progress during the week at work, and would improve by rest over the week–end. In June 1985, the respondent was put off work until the following early July because of increasing pain, swelling and inflammation of the wrist tendons, and other symptoms. By the middle of July 1985 she was diagnosed as having a right carpal tunnel syndrome. On 9 August 1985, the respondent's doctor gave her a certificate stating that she was suffering from synovitis and right carpal tunnel syndrome consistent with an injury received at work, and put her off work for a week. She returned to work on 19 August 1985 and worked for two days. She was then directed to attend the appellant's medical adviser, and was told not to return to work until he approved. She went to see him, but he would not certify her as fit for work, and she never, in fact, resumed. She was by that time, as the trial judge found, experiencing constant pain in her hands and arms and could not perform simple household tasks such as vacuuming, ironing, hanging out washing, and the like. At the time of trial, the respondent still experienced pain and swelling, mostly in the neck and shoulder area. The wrist pain had not disappeared completely, but was only brought on by particular activities.

1. The respondent's medical practitioner continued to see her after she stopped work. In early 1986, she was complaining of pain and stiffness in wrists and shoulders, but had no inflammation of tendon sheaths. In August 1986, she was still complaining of symptoms including occasional pain in the wrists, and the doctor diagnosed the wrist pain as being caused by repetitive work injury. He saw her again in November 1988 and June 1989, and on both occasions considered that she was suffering from occupational over–use syndrome, though she was not on either occasion suffering from tenosynovitis. This medical practitioner said in evidence, however, that tenosynovitis might rapidly recur should the wrist tendons be subject to strain.

1. Two other medical witnesses, including a specialist orthopaedic surgeon, gave evidence at the trial. The learned trial judge set out the substance of this evidence in his reasons for judgment and analysed the effect of it. Having done so, his Honour found as follows:

"The medical evidence presents a confused picture and is indecisive in many respects, I do however find that as a result of repetitive tasks at her place of employment the (respondent) was and continues to be disabled from engaging in such work. Initially she sustained a condition which falls within the definition of a disease under the Act, namely inflammation of the synovial lining of the wrist joint and tendon sheath or, alternatively, inflammation of the synovial lining of tendon sheaths which although not exclusively was a substantial cause of her disablement from work. That condition, through rest and medication, became largely asymptomatic but was superseded by another chronic condition which can be described as occupational over–use syndrome which continued to disable her for her former work. The latter condition of itself is not a disease within the meaning of the Act, nor can it be described as an injury by accident."

1. His Honour then dealt with legal aspects of "injury by accident" and "disease of gradual onset", and then said:

"I think it is clear from the evidence that though periodically rendered asymptomatic by rest and medication, the disease I have found to be caused to the plaintiff by her work practices is a condition which is likely to recur on subjecting the wrists to the strain of such practices or ones of a similar kind and that it has in fact many times recurred."

Accordingly, his Honour held that the respondent was entitled to weekly compensation under the Act, on the basis that she had been disabled as the result of a disease arising out of and in the course of her employment.

1. The appellant concedes that if his Honour's finding was right that the respondent had established that a recurrence of disabling symptoms which would incapacitate her for work if she returned thereto was likely, then she would have established a disablement such as to entitle her to payments of compensation under the Workers' Compensation Act. In so conceding, the appellant cited Asioty v Canberra Abattoir Pty Ltd (1989) 87 ALR 385, which the learned judge had relied on, and also a previous decision of the High Court of Australia, in Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171. The appellant contended, however, that such a finding was not justified on the evidence, and the trial judge was wrong to make it.

1. There is no substance in this submission. In my view it is clear that the learned trial judge made his finding, that inflammation of the synovial lining of the wrist joint and tendon sheath or tendon sheaths was likely to recur if the plaintiff returned to the work she had been doing before or similar work, was made principally upon the basis of her work history and record as the appellant's employee, rather than upon the medical opinion expressed by the first medical witness. However, that opinion, cited earlier, would have confirmed that view in his Honour's mind. His Honour was clearly entitled to make the finding of probability of recurrence of the disabling disease if the respondent returned to work; and thus by the appellant's concession, which was correctly made on the basis of the abovenamed cases, the appeal must fail.

1. I pass then to the cross appeal, which is based upon the respondent's argument that the trial judge should have found that the respondent's occupational over–use syndrome amounted to personal injury by accident, arising out of and in the course of her employment, within the meaning of s5(1) of the Workers' Compensation Act. This contention was based upon certain of the medical evidence set out hereunder.

1. Mr Bye, the orthopaedic surgeon, gave evidence that the respondent's symptoms in March 1989 could be described "under the label 'occupational over–use syndrome', whatever that is, yes." He also agreed, in answer to a direct question, that one possible explanation of this condition which could be described as occupational over–use syndrome was micro–trauma to muscles over a period of time, but he said that was a theory which had been around for a long time, and which he personally found "fairly attractive", but there were no pathological data to support it. The other medical practitioner who gave evidence about "occupational over–use syndrome" was Dr Edwards, who, though not a specialist, had made a study of disorders of that kind while he was a medical officer with a large company. The learned trial judge dealt at some length in his reasons for judgment with Dr Edwards' evidence on this aspect. His Honour set out a number of passages from the evidence, which illustrated that Dr Edwards' opinion came down to the proposition that he had a "theory" or a "feeling", which he thought there was some evidence to support, that there are sensory fibres within muscle tissue, and that when a muscle is over–used the lactic acid concentration rises within it and certain other chemical changes occur within the muscle fibres. He said:

"It is possible that the presence of those metabolites and the presence of the changes within the muscle because of ..... anoxite, then those different sensory fibres are stimulated in such a way that it becomes an extraordinary challenge to the central nervous system. Now that extraordinary challenge to the central nervous system may be the trigger that pushes a person into an abnormal experience of pain",

but he added,

"that's pure supposition".

1. After reviewing this medical evidence from Mr Bye and Dr Edwards, his Honour characterised it in this way:

"In the present case, the evidence of Mr Bye does not persuade me to accept what he regards as merely a theory, namely that the repetitious nature of the plaintiff's work tasks has subjected her to micro– trauma effecting some discreet physical change which can be identified as part and parcel of her current pain disorder (cases cited). Equally Dr Edwards' theory of stimulated muscle fibre affecting the function of the central nervous system was not advanced sufficiently persuasively to enable me to be satisfied, on the balance of probabilities, that the plaintiff had sustained injury by a succession of accidents".

There is no doubt his Honour was entitled to make this finding about that medical evidence. That being so, and bearing in mind that the classification or description of "occupational over–use syndrome" was merely a label applied to the residual condition into which the respondent's disability had resolved while she was away from her former work as an employee of the appellant, there was no basis whatever left in the evidence as a whole which could support a balance of probabilities in favour of the respondent's disability amounting to "injury by accident". There is no definition of "accident" or "injury by accident" in the Workers' Compensation Act 1927, and so it is necessary to go to the common law cases to see how these concepts have been interpreted. The course of authority can be conveniently seen in the speech of Viscount Caldecote LC in Fife CoalCo v William Young [1940] AC 479, where (at p483) the following passage appears:

"The phrase 'injury by accident' as used in successive Workmen's Compensation Acts has been the subject of repeated and elaborate discussion, and in the course of the forty years or more which have passed since the first decisions under the Act of 1897 it is possible, as Lord Tomlin pointed out in a case which I shall mention, to trace a gradual but steady extension of its meaning. The early cases seem to have been decided on the footing that 'accident' was to be interpreted in the sense in which it was understood in policies of insurance as describing some event of a fortuitous and unexpected character. The first case that came to your Lordships' House was the case in which the workman had ruptured himself by an act of over–exertion: Fenton v Thorley & Co, Ld [1903] AC 443. The decision reversing the award of the arbitrator and the Court of Appeal was in favour of the workman. Lord Macnaghten came to the conclusion that the expression 'accident' was used in the Act 'in its popular and ordinary sense as denoting an unlooked–for mishap or an untoward event which is not expected or designed.' He disapproved the use of the word 'fortuitous' as a test, and, on the other hand, quoted with approval a passage from Lord M'Laren's opinion in Stewart v Wilsons and Clyde Coal Co, Ld (1902) 5 F 120: 'If a workman in the reasonable performance of his duties sustains a physiological injury as the result of the work he is engaged in .... this is accidental injury in the sense of the statute'. Lord Robertson understood 'accident' to be not a technical legal term with a clearly defined meaning. 'Speaking generally,' he said ([1903] AC 453), 'but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss'. These statements and the decision in favour of the workman opened the door to claims which up to that time had failed. It is easy to be wise after the event, but to–day Fenton v Thorley & Co, Ld seems a very clear case."

1. In the present appeal, the respondent certainly had sustained physiological injury, but, given the failure of the "theories" adumbrated by Mr Bye and Dr Edwards, there was nothing in the evidence which could show any unintended and unexpected occurrence which had produced the injury, or any other basis for establishing injury by accident. Thus, the cross–appeal too must fail.

   File No FCA 132/1989

PACIFIC DUNLOP LTD v ANGELA FRASER

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WRIGHT J
7 September 1990

1. I agree with the judgment of Neasey J and have nothing to add.

1. Both the appeal and cross–appeal should be dismissed.

   File No FCA 132/1989

PACIFIC DUNLOP LTD v ANGELA FRASER

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

CRAWFORD J
7 September 1990

1. I agree with Neasey J. that the appeal and the cross–appeal should both fail, and I adopt his reasons. However, I wish to make specific references to evidence which, in my view, supported the finding of the learned trial judge that disabling symptoms of the scheduled disease will probably recur if the respondent returns to employment.

1. The respondent's evidence showed that while she was in employment, the progress of the disease was such that towards the end of a working week her hand was weak and she would suffer more pain, but after a weekend's rest the pain would be better. It is clear from this that work caused the symptoms to worsen and rest caused the symptoms to subside. Having not worked since August 1985, her condition has improved. But if she uses one hand very often the symptoms occur again. For example, during the weekend prior to the trial, she iced a cake and swelling occurred. In cross–examination she said that the pain in her wrist stopped when she did not use her right hand very often, but if she used that hand the pain returned. Whereas at earlier times it was a constant pain, she now only received it with use. Taking into account that she was working five days each week, the obvious interpretation which can be placed on this evidence is that she would still be suffering from constant pain in her wrist if she was still in the employment of the appellant.

1. I next deal with the evidence of two medical practitioners. Mr Bye said that when he first saw the respondent, on 31 July 1985, she had inflammation of the tendon sheaths.

1. Dr Wakefield said that in June 1985, swelling of the tendon sheaths was plainly visible. He confirmed that it appeared that the symptoms appeared to settle over a weekend with rest but were then exacerbated by work. He saw the respondent on 6 August 1986 and said that there "would have been some fullness of the tendon sheaths ... a little bit of swelling and fullness, a little bulge just over the front of the wrist here ... this is due to inflammation, of fluid collecting in the sheaths". Although on 8 June 1988 he did not observe inflammation of the tendon sheaths, he saw her again on 9 August 1988 when there was such inflammation. He agreed that on 21 November 1988 and 28 June 1989, she was not suffering from the condition. But he was of opinion that the symptoms "may rapidly recur .... should you subject those tendons to strain".