Rybarczyk v Hallmark-Mitex Pty Ltd

[1997] QSC 212

IN THE SUPREME COURT

OF QUEENSLAND
  No. 2073 of 1990

[Rybarczyk v Hallmark-Mitex Pty Ltd]

BETWEEN:
  MARIA RYBARCZYK
  Plaintiff

AND:
  HALLMARK-MITEX PTY LTD
  Defendant

JUDGMENT - HELMAN J.

Judgment delivered 29 October 1997

The plaintiff is a pensioner and a former employee of the defendant company for which she worked for many years as a sewing machinist in its clothing factory at Wynnum. She alleges she suffered personal injury and other loss and damage as a result of the defendant’s breaches of the contract of employment between her and it, and alternatively as a result of the defendant’s negligence. The plaintiff began her action by a writ of summons issued on 21 December 1990. The defendant denies that it was guilty of any breaches of contract or of negligence, and has pleaded that the plaintiff’s action is statute-barred and that the plaintiff was guilty of contributory negligence. In pleading that the plaintiff’s action is statute-barred the defendant relies on s.11 of the Limitation of Actions Act 1974 which provides for a limitation period of three years from the date on which a cause of action in respect of personal injury arises.

The plaintiff is a married woman.  She was born on 2 December 1933 and married when she was nineteen years old.  She left her native Poland in 1940 when she was six, and from then until she was nearly fifteen she was in refugee camps in the Soviet Union, Persia, India, and South Africa.  She achieved an intermediate standard of education in the Polish language.  In 1948 she arrived in England.  She worked there for approximately three years as a machinist making men’s suits, for about two and a half years in a metal box factory, and for eight years as a machinist and supervisor in a factory making women’s underwear.  In 1971 she and her husband and their two sons migrated to Australia. 

The plaintiff was employed by the defendant as a machinist from 1971 to 1974.  Later she worked in a bacon factory for eleven months.  She returned to work for the defendant as a machinist in 1975 and remained in that employment until 30 June 1989.  She has not worked since.  In all then she was employed for twenty-eight years as a machinist, eleven in England and seventeen as an employee of the defendant.  In all of her jobs, as a machinist and in the metal box and bacon factories, she worked with her hands. 

There were thirteen sewing tasks performed by the plaintiff at the defendant’s factory:  making pocket flaps, plain and pleated pockets and cuffs; sewing on pocket flaps, pockets, cuffs, and badges; sewing the boxes of closed front shirts, hems, and back yokes; pin stitching on shirt fronts; and repairing faulty pockets.

The plaintiff’s work for the defendant required her to sit on a chair at her sewing machine which was on a sewing table for thirty-six and a half hours a week: from 7.30 a.m. to 4.20 p.m. with ten minutes each for morning and afternoon breaks and half an hour for lunch each Monday to Thursday inclusive - i.e., eight hours’ work per day; and from 7.30 a.m. to 12.10 p.m. with ten minutes for a break each Friday, i.e., four and a half hours’ work.  On Mondays to Thursday the first work period was two hours and fifty minutes, from 7.30 a.m. to 10.20 a.m., the second two hours and thirty minutes from 10.30 a.m. to 1.00 p.m., the third one and a half hours from 1.30 p.m. to 3.00 p.m., and the fourth one hour and ten minutes from 3.10 p.m. to 4.20 p.m.  The work periods therefore became shorter as the day progressed.  (The afternoon break was introduced towards the end of the plaintiff’s employment with the defendant.)  In addition to the scheduled breaks, other breaks were permitted: the plaintiff could go to the lavatory whenever the need arose and could leave her table for a drink of water when she wished. 

In conformity with the general practice in the clothing industry, from 1965 the defendant set times for the completion of sewing tasks, e.g. one minute for sewing on a pocket flap and one  and a half minutes for sewing on a single pocket.  The employees’ union made no complaint to the defendant about that practice at any time after 1965 - except on one occasion when a minor complaint was made and resolved.  As the defendant replaced old sewing machines with new improved ones from the early to middle 1980s, it became possible to do the sewing tasks faster than before.  In consequence production increased by eleven per cent.  The task timings were left as they had been before, but machinists were expected to produce eleven per cent. more work in a day - which translated to time comes to an extra fifty-three minutes in an eight-hour day.  The hours of work remained the same, but the machinists were expected to do in an eight-hour day tasks the times of which, when added up, came to eight hours and fifty-three minutes.  The union agreed to the change when it was introduced.  The defendant’s records show that the plaintiff was, apart from only rare occasions, able comfortably to exceed the daily quotas both before and after the change.  Furthermore, at least half of the machinists were able to produce more than the quotas. 

The plaintiff sat at the same sewing table for fourteen years until 1989.  The height could be adjusted to suit her.  The chair on which she sat for the same fourteen years could not be adjusted.  The plaintiff asserted in evidence that the height of each was unsatisfactory.  She claimed that she had asked the factory mechanic to adjust the table and he had refused, and that she had not been free to choose another, more suitable, chair.  I find the plaintiff made no complaint about the table to her supervisor however, and had she done so any necessary adjustment in its height would have been made.  I do not accept her evidence that she was not free to choose another chair.  I accept the evidence of Mrs Julie Morgenstern, who was employed by the defendant at the factory from 1979 to 1990 in various capacities including assistant manager, floor manager, and supervisor, that a machinist was free to change chairs if the one originally provided did not suit.  There were four or five types of chair available for the use of machinists in the factory.  Mr Ian Milburn, an ergonomist called for the plaintiff, said in a report prepared in early October 1996 (exhibit 7) that the “workstation” (i.e., table) conformed to accepted “ergonomic guidelines”, but that the seating was “less than optimal”.  Mr Milburn explained under cross-examination that in his opinion there should have been “some degree of height adjustment” adding that it was demonstrated that “if the operators were using cushions to elevate themselves that the seats are obviously not high enough”.  He later conceded, however, that the height of a seat could be adjusted satisfactorily “from the point of view of prevention of injury” by the use of cushions.  The plaintiff herself said under cross-examination that when she put a cushion on the chair she felt it “more comfortable”. 

I have mentioned the union in connexion with the task timings.  Union officials visited the factory four times a year on average from 1970.  The employees were free to speak to them out of the presence of the defendant’s management staff.  In addition to the union officials’ visits there were visits once a year by a Queensland Government inspector who had - as  Mr Arthur Hall then the managing director of the defendant described him - “real teeth” and who checked “absolutely everything”.  

The plaintiff alleges that as a result of the breaches of contract or negligence, to which I have referred and which I shall discuss in detail later, she has suffered and continues to suffer from chronic bilateral upper limb disability including median nerve compression and disturbance to both wrists, ulnar nerve compression and disturbance in both elbows and in the right wrist and damage to and constriction of tendons of both arms and hands. 

In January 1988 the plaintiff first began to feel numbness in the fingers of her right hand.  That continued for about four months after which she felt numbness in her left hand.  In about June 1988 she began to feel pain in her right wrist.  She then realised that she was “having some kind of problems”.  At about that time or a little later another employee of the defendant, Ms Tania Maher who had sat beside the plaintiff at her work, was receiving worker’s compensation.  She had had surgery to rectify carpal tunnel syndrome and visited the factory from time to time.  The plaintiff asked her what her symptoms had been before her operation and Ms Maher said that she had had numbness in the fingers in the beginning and then pain in the carpal tunnel.  The plaintiff knew of another employee, Ms Helen Penny, who had had “trouble with her carpal tunnel”.  The women who had had carpal tunnel syndrome did not return to work.  A cutter had had surgery on one wrist but later he had returned to work. 

The plaintiff’s symptoms gradually worsened.  She began to have pain in her left wrist.  In February 1989 she told Mrs Morgenstern, her supervisor, but asked Mrs Morgenstern not to tell anyone as she would see if there were any changes over some imminent holidays.  Mrs Morgenstern did, however, tell Mr Bob Foxcroft, the factory manager.  Mr Foxcroft then spoke to the plaintiff and suggested she was suffering from arthritis.  In April 1989 the plaintiff began four weeks’ holiday during which she had a complete rest, but the symptoms did not clear up during the holidays and persisted after she returned to work.  She told Mrs Morgenstern when she returned from her holidays that her condition was not much better, but that she would wait a while.

On 16 June 1989 the plaintiff consulted Dr Petra Smith.  Dr Smith referred her to Dr Peter McMeniman, orthopaedic surgeon, who found her cervical spine and wrists to have good ranges of movement.  Her neurological examination was normal.  Her wrist flexion test was positive.  Dr McMeniman diagnosed median nerve compression in both wrists (bilateral carpal tunnel syndrome) secondary to bilateral flexor synovitis (inflammation of the synovial membrane).  He referred the plaintiff to Dr John Cameron, consultant neurologist, for nerve conduction studies which were carried out on 26 June 1989 and which confirmed a severe median nerve disturbance  at the right wrist and a mild but definite median nerve disturbance at the left wrist. 

On 16 August 1989 Dr McMeniman performed bilateral flexor synovectomies and bilateral median nerve decompressions.  The wounds healed well.  When Dr McMeniman reviewed the plaintiff on 15 September 1989, the symptoms in the median nerve distribution had settled but she then complained of symptoms of ulnar neuritis.  When Dr Cameron saw her on 16 October 1989 she complained of occasionally waking at night with hand numbness, of sensory disturbance mainly affecting the ulnar side of both hands, and of discomfort at the right elbow over the ulnar nerve, and in her neck.  Dr Cameron recorded that she apparently had “some minor degenerative changes on her neck X-Rays”:  see his report dated 17 October 1989 (exhibit 20).

The median nerve passes through the carpal tunnel, which is composed of an arch of bones and a very strong ligament, and supplies sensation to the thumb, the index and middle fingers, the inside of the ring finger, and the adjacent side of the palm of the hand.  The areas innervated by the median nerve are shown in Figure 1 in exhibit 29 (T.J. Armstrong and D.B. Chaffin, “Carpal Tunnel Syndrome and Selected Personal Attributes”, Journal of Occupational Medicine, vol.21 no. 7, July 1979, p.481 at p.482).  Compression of the median nerve at the wrist as it travels with the flexor tendons through the carpal tunnel produces the symptoms of carpal tunnel syndrome.  The ulnar nerve passes through the wrist but does not pass through the same tunnel as the median nerve does.  It passes through a less restricted area outside the carpal tunnel and supplies sensation to the remaining one and a half digits and the adjacent side of the palm of the hand.  It also supplies the muscle on that side of the hand and a few muscles on the back of the hand.  Compression syndromes of the ulnar nerve present clinically with disturbed sensation in the ring and little fingers and adjacent side of the hand to a point just above the wrist.

On 11 December 1989 Dr McMeniman decompressed the plaintiff’s ulnar nerves in each elbow tunnel.  On 23 February 1990 the plaintiff told Dr McMeniman that her left arm had settled well although she still had some numbness in the region of the elbow.  Her right arm and hand still ached.  In addition, she had a trigger in her right thumb.  I accept however the opinion of Dr Geoffrey Bendeich, orthopaedic surgeon, that the trigger thumb was not related to her work:  see his report dated 31 May 1990 (exhibit 22).

On 16 July 1990 Dr Peter Millroy, orthopaedic surgeon, performed a further operation on the plaintiff to release the median nerve in the right carpal tunnel, the ulnar nerve at the right wrist, and the flexor tendon sheath of the right thumb at the metocarpo-phalangeal joint. 

On 23 April 1991 Dr Millroy again operated on the plaintiff.  He released both ulnar nerves at the elbows.  The right and left medial epicondyles were removed to allow the nerves to run in a straight line.  The flexor tendon sheaths of the right and left ring fingers were released in the distal palms to prevent the tendons catching there.  Post-operative recovery was satisfactory.

The plaintiff has been left with slight intermittent numbness in the left little and ring fingers and some slight ulnar nerve disturbance at the left elbow.  Her left hand is reasonably comfortable, as is her left elbow.  She still has pain in her right thumb around the metacarpal region and the basal joint of the thumb.  She has intermittent numbness in the right index, ring, and little fingers.  She is tender over the right ulnar nerve at the elbow.  She has pain at night in the right carpal tunnel region.  Elbow movements are full.  She has full mobility of both hands.  I accept Dr Millroy’s assessment of the plaintiff’s left upper limb disability as “minimal”.  I also accept his assessment of her right upper limb disability as permanent and “of the order of 10 to 15% loss of function” as a result of compression or scarring of the median nerve in the carpal tunnel and similar trouble with the ulnar nerve at the right elbow.  The plaintiff has been unable to continue working as a machinist since she gave up in 1989, chiefly I conclude as a result of her carpal tunnel condition. 

In my view Dr Cameron was the witness best qualified, from the study he has made of conditions like the plaintiff’s, to assess the probable causes of her conditions.  Although it is possible that her carpal tunnel condition was not caused by her work for the defendant, I conclude, accepting Dr Cameron’s opinion on the subject, that it is more probable than not that it was caused by the repetitious work as a machinist she performed for it.  I also accept his opinion that it is unlikely that her ulnar nerve condition was caused by that work.  It is more probable than not the plaintiff suffered the carpal tunnel damage well before the first symptoms appeared in January 1988.  It is not possible to be precise as to when the damage first occurred but it was probably about the middle of the 1980s, so that this is a case of the secret onset of an injury:  see J.G. Fleming, The Law of Torts, 8th ed. (1992), p.192.

As I have said I find that the plaintiff’s inability to continue working as a machinist was chiefly the result of her carpal tunnel condition.  The ulnar nerve condition would not I conclude have prevented her working after they were treated although they may have caused some discomfort.  On 6 October 1989 she told Dr McMeniman that she was unable to return to work because of her ulnar nerve symptoms; surgery has since considerably reduced their severity but has not eliminated them.

Another condition from which the plaintiff has suffered since the middle 1980s could possibly have affected her ability to continue working after she ceased work:  intermittent lower back pain and spinal stenosis.  From March 1985 she had been under the care of Dr Francis Chau for lower back pain which gradually became worse.  It was treated with acupuncture.  She had intermittent numbness in the left leg from 1985 or 1986 and that condition also worsened.  In 1991 she began to have anterolateral thigh pain which felt like an electric shock.  The pain was present when she sat.  There was associated swelling in the thigh.  In about February 1994 she began to have left heel pain and a slight ache in her left calf.  Standing and walking aggravated the pain in her thigh and heel.  Dr Smith referred the plaintiff to Dr Geoffrey Askin, orthopaedic surgeon, concerning her back.  Dr Askin first saw her on 10 October 1994.  A computerized tomographical myelogram confirmed spinal canal stenosis at L4-5.  He suggested a laminectomy, and on 31 January 1995 performed an L4-5 partial laminectomy. 

When Dr Askin reviewed her on 29 May 1995 her back condition and sciatica had improved although her rehabilitation had been interrupted by an injury to her right knee.  The plaintiff’s back condition continued to improve.  On 24 March 1997 Dr Askin found her back caused her no disability.  I should add that when Dr Askin first saw the plaintiff she gave a history of two other ailments which do not appear to be relevant to the issues in this case: a bladder condition with a recurrent bleeding, and reflux oesophagitis. 

When the symptoms of the plaintiff’s spinal stenosis were at their worst, sitting was more comfortable than standing or walking.  I accept Dr Askin’s opinion that her back condition would not have prevented her continuing to work as a machinist until she was sixty years old. 

On 17 February 1997 Dr John Fraser, orthopaedic surgeon, interviewed the plaintiff chiefly concerning her back.  The history she gave him was in certain respects at odds with the histories taken by Dr Askin.  She told Dr Fraser she was unable to sit for more than thirty minutes at a time from 1990 onwards and that she had severe left leg symptoms extending to the heel by 1990.  Whereas the histories she gave Dr Askin indicated the severe symptoms began in 1991 and worsened considerably in 1994, the history she gave Dr Fraser was of an earlier onset, in 1990.  I conclude the histories given to Dr Askin from October 1994 are more likely to be correct, being closer in time to the events in question than that given to Dr Fraser this year.  The plaintiff was by no means an entirely satisfactory witness and was in my view inclined to exaggerate the severity of her symptoms, even to the point in this instance of distorting the history of her back condition. 

The defendant in its amended defence admitted that it was an implied term of a contract of employment between the plaintiff and it that the defendant “would take and . . was under a duty to the Plaintiff to take, all reasonable precautions and exercise all reasonable skill and care to prevent the risk of harm to the Plaintiff in the course of her employment” (para.4 of the amended statement of the claim and para.1 of the amended defence).  Particulars of the alleged breaches of that duty are given in paras.5(a) to (g) of the amended statement of claim. 

In para.5(a) it is alleged that the plaintiff “was required to work whilst adopting and sustaining a posture which involved her arms being outstretched and raised for long periods of time each day and for long periods at a time”.  I am not satisfied that that particular has been made out because I find that the plaintiff sat close to her sewing table with her elbows bent and her forearms resting on it. 

In para.5(b) it is alleged that the plaintiff “was required to perform regular, unvaried and repetitious movements with her hands and arms continuously each day, and for long periods at a time”.  There was some variety in the plaintiff’s work because she performed thirteen different sewing tasks, but it is true that they were similar and in the main the performance of her duties required her to make the same movements with her hands and arms over and over again for long periods.  That was the essence of the work required of a machinist, and she and many others employed in the clothing industry did it for many years without mishap.  There were few opportunities for job rotation by a machinist like the plaintiff in the defendant’s factory at the relevant time, and what possibilities there were, were not suitable for the plaintiff.  She showed no aptitude for operating what “high tech.” machinery there was in the factory, and it is reasonable to conclude that she would have rejected any suggestion of rotation to lower paid work performed by juniors.  The only practical way to eliminate the risk of injury from carpal tunnel syndrome would have been for her to give up work as a machinist altogether - again something she did not wish to do and, I conclude, would not have done.  Taking into account the low risk of injury - a subject I shall return to later - and the difficulty of introducing a comprehensive rotation regime into the factory at the relevant time, I am not satisfied that the allegation in para.5(b) has been made out.

In para.5(c) it is alleged that the plaintiff “was required to perform the tasks enumerated above [presumably in para.5(b)] while continuously exerting force with her hands and arms”.  The plaintiff’s main tasks were with light cloth, although she did some work on dressing gowns.  The plaintiff held the pieces of cloth, turning them as she sewed.  The cloth slid easily on the base plate of the sewing machine and table top.  The force required to perform the plaintiff’s tasks was then, I find, negligible and so I am not satisfied that the allegation in para.5(c) has been established.

In para.5(d) it is alleged that the plaintiff “was required to perform the tasks enumerated above at a constant and rapid rate in order to meet hourly production requirements of the Defendant”.  The general practice of the industry was to set times for the various sewing tasks performed by employees.  The quotas implicit in the times set by the defendant were exceeded by at least half of the defendant’s employees.  The plaintiff was one of those who exceeded the quotas.  The union representing the employees made no complaint about the production times from 1965 onwards, except for one instance of no importance.  In those circumstances I am not satisfied that the defendant’s production quotas were too onerous and so the allegation in para.5(d) has not been made out.

In para.5(e) it is alleged that the plaintiff “was required to perform the tasks enumerated above without being allowed rest breaks of adequate duration or with adequate frequency”.  The plaintiff made no complaint about this matter to her union or anyone else.  Furthermore, she was free to go to the lavatory and to leave her work for a drink of water whenever she wished.  I am not satisfied that the rest breaks provided by the defendant departed from the industry standard; nor am I satisfied that on the evidence they have been shown to be inadequate in length or frequency.  Had the next breaks failed to conform to the industry standard or been inadequate the union officials and the government inspector would no doubt have notified the defendant.  There is no evidence of any such action by either.  That allegation also fails.

In para.5(f) it is alleged that the plaintiff was “required to perform the tasks enumerated above whilst seated on a chair, and at a table, both of which placed her in a position which exacerbated, or alternatively did not lessen, the effects which performing the tasks enumerated above had on her health”.  I am not satisfied that that allegation has been made out.  The heights of both the table and the seat of the chair could be adjusted, the latter by the use of a cushion.  The plaintiff did use a cushion to ensure her seating position was comfortable.  I am not persuaded that either table or chair played any part in causing any of her ailments.

In para.5(g) it is alleged that the defendant “failed to warn the Plaintiff of the risk of disability arising from musculo-skeletal or nerve conditions of the upper limb caused by the nature of her work”.  No such warning was given to the plaintiff by the defendant.

Carpal tunnel syndrome is “associated with individuals who knit or sew” as Dr Cameron agreed; and that has been known among the “medical community” since the condition first “became an entity”, probably for about eighty or ninety years.  It had been known by different names: acroparaesthesia, nocturnal hand pain, and acrodystrophy.  With the advent of electrical diagnosis after the Second World War it became possible to demonstrate the cause of hand discomfort in knitters and process workers.

It is difficult to explain how the knowledge of the connexion between carpal tunnel syndrome and repetitive work like knitting and sewing had not spread to those in the clothing industry before the 1980s, but nonetheless the evidence of a number of people from the industry was to the effect that little was known of the connexion until then.  Mr Hall gave evidence on that subject, as did Mrs Doreen Carney and Messrs Malcolm McNeilly, Warren Bray and Barry Dunn.  Mr McNeilly, the managing director of Lloyd Mason Pty Ltd, a competitor of the defendant, had played an active part in an industry organization of which Mr Hall was also a member.  Mr McNeilly was aware of the “RSI [repetitive strain injury] scare” in the early 1980s;  it was being “publicised quite a bit” in the industry by “[w]ord of mouth mainly”.  He said “later on very rarely did you hear about it and most of it was down south not in Queensland”.  Mr McNeilly said that the complaint was not “prevalent up in Queensland.  We didn’t hear much about it at all”.  (Carpal tunnel syndrome is a form of repetitive strain injury, now usually referred to in Australia as occupational overuse syndrome and in the United States as cumulative trauma syndrome.)  Mr Bray, the managing director of another clothing manufacturing company, said too that “all manner of RSI” had appeared to strike the south more than Queensland:  “There was a lot of concern in Victoria but we haven’t had a great deal of concern here in Queensland”.  There was, he said, a spate of claims in Victoria “some years back” - he would “have no trouble accepting” the early 1980s - which had the effect of “sending the workers’ compensation scheme to the wall”.  He said “industry people generally” were concerned because employees began civil actions “for all extraneous matters” and some of the cases were regarded, “from our end of things, frivolous at best”.  Mr Hall said that carpal tunnel syndrome became an “industry concern” certainly by 1986, possibly earlier in the 1980s , although he denied it appeared to be a “risk”.

There was on the evidence before me no practice in the clothing manufacturing industry in the 1980s of warning employees about injuries which could be suffered as a result of repetitive movements, so the defendant was in no way out of step with other manufacturers in failing to give the warning.  An employer’s following a common practice weighs in the employer’s favour in a case of this sort but is not conclusive on the standard of care called for: H.H. Glass, M.H. McHugh, and F.M. Douglas, The Liability of Employers in damages for personal injury, 2nd ed. (1979), pp.40-41, 106.  Where a danger not formerly recognized is revealed by new knowledge an employer must act reasonably and prudently in discharging his duty to his employees.  The employer cannot rely on an industry practice if he knew, or ought to have known, in the light of new general knowledge widely disseminated or of particular knowledge gained from his own undertaking, that that practice should be modified:  see e.g., Stokes v. Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 W.L.R. 1776 at p.1783; and Thompson v. Smiths Shiprepairers Ltd [1984] 1 Q.B. 405 at pp.415-416; and J.G. Fleming, op. cit., pp.508-509. 

In this case the defendant had both general and particular knowledge of the risk of injury from  repetitive movements.  It had the knowledge of the “scare” in the early 1980s made known in the industry.  In addition there had been three cases in the defendant’s own factory before the plaintiff’s symptoms appeared.  Ms Helen Penny had undergone an operation for carpal tunnel syndrome before 1988.  I have also mentioned Ms Tania Maher whose injury appeared just before the plaintiff’s did.  Both Ms Penny and Ms Maher were sewing machinists.  In addition there had been the case of the cutter, who successfully underwent an operation to eliminate carpal tunnel syndrome.  There may have been another case, that of Ms Cheryl Adderley, but the evidence concerning her is not as clear as that relating to the others.  I should mention in this context too that Ms Penny had a second job, as a bar attendant which could have played a part in causing her injury. 

The plaintiff’s action is framed in contract and tort.  It is convenient to discuss the delictual claim first.  The evidence would not support a conclusion that the risk of injury of the kind suffered by the plaintiff was great; Mr Hall said that out of “a probable 500 people we’ve employed over the years” five - including the plaintiff - had suffered from carpal tunnel syndrome, and evidence relating to other clothing industry employers was consistent with a low incidence of the condition.  The risk of injury was nonetheless foreseeable, not farfetched or fanciful.  From the middle of the 1980s the defendant either was, or should have been, aware of the risk.  The next step in deciding whether there was a breach of the defendant’s duty of care to the plaintiff is to determine what response would have been made to the risk by a reasonable person.  That must be done by balancing the relevant factors:  the magnitude of the risk and the degree of probability of its occurrence, as well as the expense, difficulty, and inconvenience of taking alleviating action and any other conflicting responsibilities which may exist:  Wyong Shire Council v. Shirt (1980) 146 C.L.R. 40 at pp.47-48 per Mason J., and Miletic v. Capital Territory Health Commission (1995) 69 A.L.J.R. 675, at p.677. Those factors did not call for any alteration in the organization of the work of the defendant’s factory, but a warning of the kind referred to the amended statement of claim should have been given to the employees in my view.

My conclusion is this case is similar to that of the trial judge in Thomas Borthwick and Sons (Australia) Ltd v. Stapleton (unreported decision of the Court of Appeal, no.255 of 1995, 14 June 1996), the case of a boner in a meatworks whose work caused him to suffer from carpal tunnel syndrome.  The warning referred to in the amended statement of claim would have been sufficient to alert the plaintiff to the fact that she had the first symptoms of carpal tunnel syndrome in January 1988.  It was not enough in this case, as it was not in the Thomas Borthwick case, for the defendant to rely on the plaintiff’s general knowledge about carpal tunnel syndrome - and she did have some, because she knew of the injuries suffered by other employees.  Anecdote and workplace gossip were however not adequate substitutes for clear warnings, repeated at reasonable intervals, from the authoritative source of the employer.  The warnings should of course have included sufficient detail about the symptoms of carpal tunnel syndrome, its known causes, and the course it could take if untreated.  The desirability of consulting a doctor as soon as the symptoms appeared and the benefits of early treatment should have been added.  The defendant was negligent in failing to give such a warning in my view.  It was also in the circumstances, I find, in breach of its contractual duty to the plaintiff.

The defendant will be liable to the plaintiff for its negligence only if the fact that she has suffered some damage as a result of that negligence has been established on the balance of probabilities:  see Sellars v. Adelaide Petroleum N.L. (1994) 179 C.L.R. 332 at p.351 per Mason C.J., Dawson, Toohey and Gaudron JJ. The resolution of the issue of causation of course turns upon the answer to the hypothetical question what the plaintiff would have done had she been warned. Proof to the civil standard is nonetheless required, but once damage has been established the principles explained in Malec v. J.C. Hutton Pty Ltd (1990) 169 C.L.R. 638 will be relevant in assessing its extent and the consequent magnitude of damages for negligence to which the plaintiff is entitled: Sellars v. Adelaide Petroleum N.L., at p.353.  The plaintiff’s damages for breach of contract will also be “ascertained by reference to the degree of probabilities, or possibilities” of her recovery had she been given the chance she should have been given:  ibid, p.349.

I am satisfied, on the balance of probabilities, that had the plaintiff been warned by the defendant, she would have sought and obtained treatment earlier than she did.  I am further satisfied on the balance of probabilities that had she adopted that course she would not have been as severely disabled as she is, although she may not have made a complete recovery.  I shall now explain how I have arrived at those conclusions.

The plaintiff was asked a number of questions in cross-examination concerning what she would have done had she been warned.  Mr Land, for the defendant, asked her whether she would have kept working if she had been warned about “developing carpal tunnel”.  She said she would not.  She denied that she would have ignored a warning that she might be “getting carpal tunnel”.  Later when asked what she would have done had she been warned in June 1988 that working as a machinist might cause her to develop carpal tunnel syndrome she replied, “Well, nobody never told me, so I don’t know what I would have done.  It depends.”.  Asked again, she replied, “If my hands were really severe pain, I would just tell them, “Well, I’m going to go to the doctor’s and check my arms, check my hands up.’”

One can readily understand the dilemma a warning may have presented to the plaintiff.  She is an intelligent woman in my assessment.  She would have seen the possibility of her being unable to work again should the carpal tunnel syndrome become serious.  On the other hand she may have reasoned that having worked for so long as a machinist without a mishap of that sort she was unlikely to be at risk.  She had been an industrious worker since her middle teens.  No doubt having survived - but not without great hardship - the horrors and deprivations of a world war, especially those inflicted on her native land, she had tried to make the most of opportunities that came her way in her later life.  In short, the plaintiff would not have wanted to stop work to get treatment had she been warned in January 1988 about the possible nature of her condition, but all things considered I conclude that reason would have prevailed over her determination to keep working and she would have sought medical advice.  It must be borne in mind that in 1989 she demonstrated no aversion to seeking medical advice, but unfortunately left it too late to avoid suffering permanent injury.

I should add that I see no possibility that the plaintiff would have given up work as a machinist before January 1988 had she been warned before then.  Her desire to continue working and the absence of any symptoms for so many years of work as a machinist would have ruled out such a course.  It follows that in my assessment the defendant is not liable to compensate the plaintiff for her suffering carpal tunnel syndrome in the first place, but is liable to compensate her for the extent to which the consequences of her condition were worse than they would have been had she been warned and undergone more timely treatment than she did. 

Why delay in treatment can result in more serious consequences than might otherwise be the case was explained by Dr McMeniman, whose evidence on this subject I accept.  The more severe the compression of the median nerve the less likely the success of the operation.  If the nerve is squashed too hard for too long, intraneural fibrosis can result and decompression will not cure that condition.  That is the most likely explanation for the failure of the plaintiff’s symptoms to resolve, i.e., some degree of intraneural fibrosis or scar formation around the nerve.  Decompression of the median nerve is a commonly performed operation which, when performed in time, allows most patients to go back to work usually performing the same tasks as caused the condition.

The defendant’s obligation to warn the plaintiff was a continuing one from the middle of the 1980s, I find, but her cause of action in tort accrued on my assessment of the facts of the case only after that failure resulted in the only damage on which she is entitled to rely in claiming compensation: the deterioration of her condition beyond the time when decompression could cure the defect.  That damage occurred at some time after January 1988 and before her first operation in August 1989.  It follows that the cause of action in tort is not statute-barred because it arose within the three years prior to the issue of the writ.

That conclusion concerning the plaintiff’s claim in tort is sufficient to meet the defendant’s plea that the action is statute-barred, but since the defendant’s obligation was a continuing one from the middle 1980s to warn the plaintiff and to repeat the warning at reasonable intervals there was a series of breaches of the same contractual obligation and the plaintiff may rely on those which occurred in the three years before she began her action:  see Chitty on Contracts, 27th ed. (1994), vol.1, para.28-022, p.1335.

The defendant has pleaded contributory negligence by the plaintiff.  It relies in essence on her delay in seeking treatment and in quitting work.  In the circumstances, given the incomplete information at her disposal, I conclude that she was not guilty of any contributory negligence.  Not only did the defendant fail to warn her about carpal tunnel syndrome but Mr Foxcroft’s suggestion - no doubt made without any ill-will - that she had arthritis aggravated the effect of the failure to warn the plaintiff.

The plaintiff has suffered a good deal of pain and discomfort as a result of her carpal tunnel condition and she will continue to do so in the future, because it is now permanent.  It has prevented her working at the only occupation for which she has any training or experience, and so has left her with no earning capacity.  It has interfered with her ability to perform household tasks and to follow recreational pursuits she enjoyed before she became disabled.  The carpal tunnel condition is, however, not the only condition that has affected, and will continue to affect, her well-being.  I have mentioned her bladder problem and her reflux oesophagitis, but, as I have said, they are not relevant to the issues in this action.  The ulnar nerve condition and her back pain are, however, relevant because they contribute to her pain, discomfort, and disabilities, though they were not caused by the negligence of the defendant.  In the same category is pain over her right shoulder about which she has also complained. 

The disability the plaintiff has in the left upper limb is minor.  Because it affects her left little and ring fingers and there is ulnar nerve disturbance at the left elbow, I conclude that all remaining disability of the left upper limb is caused by the condition of the ulnar nerve, for which the defendant is not responsible.  The chief cause of the disability in her right hand is the condition of her carpal tunnel, but damage to the ulnar nerve is also a cause of her right upper limb disability.  She is tender over the right ulnar nerve at the elbow and has intermittent numbness in the ring and little fingers. 

The plaintiff continues to suffer from back pain.  The partial laminectomy was performed on 31 January 1995 caused, as I have related, her back condition and sciatica to improve.  The pain did not, however, disappear completely.  From December 1995 until January this year Mrs Judith Simpkin, another employee of the defendant, from time to time saw the plaintiff and Mr Rybarczyk walking in the mornings along the foreshore at Wynnum.  The plaintiff told Mrs Simpkin she was walking to lose weight.  The plaintiff did not complain about her wrists or hands, but she did complain about her back.  Ms Lesley Stephenson, occupational therapist, who had seen the plaintiff on 15 October 1991 (see her report dated 6 November 1991, exhibit 14), interviewed her again on 26 September 1996 (report dated 1 October 1996, exhibit 15).  On the latter day the plaintiff reported “pre-existing constant lumbar back pain and numbness on the left lateral thigh” (p.4).  On 14 October 1996 Sister Doreen Omiros visited the plaintiff for the purpose of assessing her need for assistance and services.  In the resulting Domicare report dated 15 October 1996, exhibit 5, there is a passing reference - in connexion with the plaintiff’s wearing lace-up shoes - to “problems with her back” (p.3).  In evidence Sister Omiros said that the plaintiff had explained to her that cleaning such things as bathrooms and laundries was difficult because “the whole of her gait is affected, her bending”.  Later Sister Omiros said that the plaintiff had told her that she could not bend because of pain on bending.  On 17 February 1997 the plaintiff told Dr Fraser that she still “continues to have low back pain and buttock pain”: see his report dated 24 February 1997, exhibit 19, p.1. 

I accept the evidence of Ms Simpkin, Ms Stephenson, Sister Omiros and Dr Fraser, and from it I conclude that the plaintiff’s back is still painful, and, independently of her carpal tunnel condition, has caused some of her present disabilities. 

The plaintiff complained to Dr Millroy of pain over the front of her right shoulder and under the right clavicle on 6 June 1990.  It appears to have persisted because Ms Stephenson recorded that the plaintiff reported pain over her right shoulder on 26 September 1996 (exhibit 15, p.4).  That condition too plays a part, a minor one I find, in her present state.

On grip tests conducted by Ms Stephenson on 26 September 1996 the plaintiff was shown to have a functional grip strength deficit of 17.7 per cent. for the right hand, her dominant hand.  Dynametric muscle testing demonstrated a 23 per cent. averaged strength deficit of the right upper extremity.  She has difficulties with ordinary daily activities as a result of reduced strength and adroitness in her hands, particularly her right hand, and pain in her elbows and right arm.  She requires, and is given, assistance from her husband in dressing (fastening underwear at the back), washing her back, putting rollers in her hair, and cutting her finger-nails and toe-nails.  She cannot open some cans and bottles or reach objects on high shelves.  She cannot push shopping trolleys, lift or carry heavy objects, do vacuum cleaning, clean the bathroom or iron heavy articles.  Her inability to do heavy cleaning jobs is, however, partly the result of her back pain which makes bending painful, as Sister Omiros explained.  She is now unable to bake (because she cannot mix the ingredients), or to scrub pots and pans.  She cannot sew or work in the garden as she did before she became disabled.  Before she became disabled she was an active member of the Wynnum-Manly Orchid Society, helping with tea and sandwiches after meetings.  She still goes to the meetings but is unable to help as she did before.  She cannot turn train door handles.  She continues to go fishing with her husband as she did before she became disabled, but she is now a mere onlooker.  Writing letters to her two sisters in England is now difficult and painful.  Before she became disabled she enjoyed swimming and going to a gymnasium.  She can no longer enjoy those activities and has put on weight because she is less active than she was formerly.

Putting to one side the effects of the plaintiff’s suffering from carpal tunnel syndrome in the first place, the ulnar nerve condition, the painful back and right shoulder, and allowing for contingencies including the possibility that had the plaintiff had the first operation on her carpal tunnels earlier than she did a complete recovery may not have followed, I assess her damages for pain and suffering and loss of amenities at $27,500.00: $12,500.00 for the past and $15,000.00 for the future.

The plaintiff claims damages for loss of her earning capacity.  I find that had she not been disabled it is practically certain that she would have kept working for a number of years but equally certainly would have given up work in January 1992 when her husband retired, as she told Ms Stephenson on 15 October 1991:  see exhibit 14.  It is probable that after her retirement she would have continued sewing from her home for some years to supplement her income. 

Had the plaintiff not been disabled in any way her earning capacity since she ceased work to now would, if one ignores contingencies, have been approximately $45,000.00 in my assessment.  From 1 July 1989 to 21 April 1991 the plaintiff could have continued to earn at the same rate as she had been earning in the year ended 30 June 1989.  A group certificate which is part of exhibit 1 shows that in that year her income after the deduction of income tax was $12,700.45, or $244.24 per week.  There being 94.14 weeks from 1 July 1989 to 21 April 1991, the plaintiff’s earnings after the deduction of income tax could then have been $22,992.75 in that period.  Exhibit 18, a letter dated 14 October 1996 from the defendant’s solicitors to the plaintiff’s solicitors, shows that following that period to 9 September 1991 her weekly income after the deduction of income tax could have been $285.90.  Multiplying that weekly figure by 20.14, the number of weeks from 21 April 1991 to 9 September 1991, one arrives at an after-tax income of $5,758.03.  Exhibit 18 shows that from 9 September 1991 to 31 January 1992 the plaintiff’s weekly income after the deduction of income tax could have been $296.90.  Multiplying by the number of weeks, 20.57, one arrives at $6,107.23.  Adding the $22,992.75 to the $5,758.03 and the $6,107.23 one arrives at $34,858.01.  Allowing another $10,000.00 for income earned from sewing at home I arrive at the rounded-off figure of $45,000.00. 

In the period from 1 July 1989 to the present the plaintiff underwent five operations, only one of which can be regarded as the responsibility of the defendant.  That operation was the operation performed in July 1990.  The other operations were not operations for which the defendant is responsible because she would have had the original operation of August 1989 in any event, the operations of December 1989 and April 1991 were to relieve her ulnar nerve symptoms, and the operation of January 1995 was the partial laminectomy.  Allowing for the effect that the operations for which the defendant was not responsible would have had on the plaintiff’s earning capacity, and for the contingencies I have referred to, I assess her damages for loss of earning capacity in the past at $25,000.00. 

I am not persuaded that the plaintiff would have continued to work from now on and I therefore conclude she is not entitled to any damages for loss of earning capacity in the future.

The plaintiff claims damages for her needs, past and future, for voluntary assistance and services.  The quantification of this part of her claim is based chiefly on the Domicare report, exhibit 5.  The plaintiff’s husband has assisted, and will as long as possible continue to assist, her in the ways I have mentioned and in doing household jobs the plaintiff now cannot do.  He took time off after each of the first four operations:  two weeks for each of the first two, one week for the third, and one day for the fourth.  Extra attention was required in each of the periods of recuperation.  The defendant is however liable only in respect of the third operation, as I have explained.

Allowing for the assistance and services that would have been required for the initial stages of the carpal tunnel condition in any event, for the component of the assistance and services caused by other conditions, and for the contingencies I have referred to, I think it reasonable to assess her needs at two hours per week at $9.00 per hour for the eight and a third years that have elapsed since July 1989: $7,800.00 (8.33 x 52 x 18 gives 7,797, which I have rounded off to 7,800).  For the future I assess her needs as three hours per week at $11.20 per hour for ten years (the number of years contended for by Mr Redmond on behalf of the plaintiff).  Applying the three per cent. table to that figure I arrive at $15,200 (3 x 11.20 x 452 gives 15,187, which I have rounded off to 15,200; for the multiplier see the table in H. Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed. (1990), p.544).  I explained in Gaudry v. Pacific Coal Pty Ltd (No. 1092 of 1990, unreported, 9 November 1995) why the three per cent. table is appropriate for this item.  I assess her present weekly needs as greater than those of the past, which are expressed as a weekly average for the whole of the period from July 1989 to now.

The plaintiff claimed $1,973.41 in respect of income tax deducted from workers’ compensation benefits (see exhibit 2, a letter dated 3 October 1996 from the Workers’ Compensation Board to the plaintiff’s solicitors) on the principle explained in Fox v. Wood (1981) 148 C.L.R. 438. Mr Land submitted that only $200.00 under this heading, to cover the cost of the plaintiff’s recovering the tax, should be allowed. He referred to J. Dooley and A. Cassimatis, “Recovery of the ‘Fox v. Wood’ component in personal injury actions” (1997) 17 Qld. Lawyer 109. This is a case in which it appears that the plaintiff could recover whatever she is entitled to by lodging an objection to the relevant tax assessment, together with an application for extension of the time for lodging the objection.  In my view then there is merit in Mr Land’s submission and accordingly I shall allow only $200.00 under this heading.

The plaintiff claims special damages of $3,791.24:  $37.00 for anaesthesia, $280.00 for pharmaceutical expenses, $589.00 for hydrotherapy pool expenses, $2,751.80 for the expenses of travelling to and from the hydrotherapy pool, $30.24 for the expenses of travelling to and from the Belmont Private Hospital, and $103.20 for train fares incurred on visits to doctors.  The defendant admitted the quantum of each of the items except the $2,751.80, but did not admit liability for any of the items. 

The plaintiff claims $37.00 for fees paid for anaesthesia administered in the two operations performed by Dr Millroy:  $20.00 for the first and $17.00 for the second.  Since the first operation was for her carpal tunnel condition I conclude that that should be allowed, but since the second was for her ulnar nerve condition that is not the responsibility of the defendant.

The plaintiff is entitled to only part of the $280.00 for pharmaceutical expenses, since some of those expenses no doubt relate to conditions for which the defendant is not responsible.  I shall allow $175.00. 

The $589.00 for expenses, other than travelling expenses, incurred on visits to a hydrotherapy pool resulted from a recommendation by Dr Millroy.  The plaintiff went there twice a week from March 1991 to early 1996 with a break of six weeks beginning in December of each year.  I shall allow $450.00 of the sum for treatment for the condition for which the defendant is responsible. 

Although the defendant did not admit the quantum of the sum for travelling expenses incurred in going to and coming from the hydrotherapy pool, it did admit that the pool was six kilometres from the plaintiff’s house and that forty-two cents was a reasonable sum to award for each kilometre travelled.  The plaintiff’s figure is based upon 273 weeks (5.25 years) - 273 x 24 (km) x 42 (cents).  The number of weeks in the calculation should in my assessment be 230 (46 x 5), which gives $2,318.40 (230 x 24 x .42) of which I shall allow $1,770.00 using the same proportion as for the pool expenses proper.

The next item is $30.24 for travelling expenses to the Belmont Private Hospital which the plaintiff attended for her carpal tunnel and ulnar nerve conditions.  I shall allow $25.00 of that item. 

Finally there was $123.20 for train fares incurred in consulting doctors.  I shall allow $80.00 for that item.

Special damages will then be $2,520.00.

For the reasons I have given I assess the plaintiff’s damages at $78,220.00

I shall invite further submissions on interest, the sum for which judgment should be entered, and costs.