Saeedi v Western Staff

[2002] NSWCA 341

CITATION:	Saeedi v Western Staff [2002] NSWCA 341
FILE NUMBER(S):	CA 40487/00
HEARING DATE(S):	6 September 2002
JUDGMENT DATE:	6 December 2002
PARTIES :	Habib Saeedi v Western Staff Services Pty Ltd and Telstra Corporation Ltd
JUDGMENT OF:	Handley JA at 1; Heydon JA at 23; Gzell J at 24

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 1217/98
LOWER COURT JUDICIAL OFFICER :	Delaney DCJ

COUNSEL:	Appellant - In Person Respondent 1 - L T Grey Respondent 2 - G M Watson/Kelly
SOLICITORS:	Appellant - In Person Respondent 1 - Vardeniga Roberts Respondent 2 - Sparke Helmore
CATCHWORDS:	NEGLIGENCE - SAFE SYSTEM OF WORK - NO QUESTION OF PRINCIPLE
CASES CITED:	Abalos v Australian Postal Commission (1990) 171 CLR 167
DECISION:	Appeal dismissed with costs

40487/00
DC 1217/98
HANDLEY JA
HEYDON JA
GZELL J


6 December 2002

HABIB SAEEDI v WESTERN STAFF SERVICES PTY LTD & ANOR

NEGLIGENCE – SAFE SYSTEM OF WORK – NO QUESTION OF PRINCIPLE

The appellant was employed by the first respondent and assigned to work for the second respondent on a data entry project. This required the appellant to operate a computer from a workstation. The appellant sued the respondents for failing to provide a safe system of work. The trial Judge dismissed the action. The appellant contended that the trial Judge erred in his findings as to the reliability of the appellant’s evidence and the conditions at the workstation.

HELD : The appellant had failed to displace the primary findings of fact by the trial Judge.

ORDER

Appeal dismissed with costs.

40487/00
DC 1217/98
HANDLEY JA
HEYDON JA
GZELL J


6 December 2002

HABIB SAEEDI v WESTERN STAFF SERVICES PTY LTD & ANOR

Judgment

1 HANDLEY JA: This is an appeal by Mr Saeedi whose action for damages for injuries allegedly sustained at work was dismissed by Delaney DCJ. He represented himself on the appeal but had been professionally represented at the trial. The appellant, an employee of the first respondent, was assigned to work for Telstra, the second respondent, from 31 October 1995 until 23 February 1996, on a data entry project for its computer storage system. He worked on the night shift from 3 pm to 11 pm Monday to Friday at Telstra’s Parramatta premises.

2 The work was done at workstations which comprised a desk and a computer. Mr Saeedi is a tall man who claimed that the combination of desk, chair and computer at the workstations was not suitable for a person of his height. In order to operate the electronic pad and mouse for the computer he had to stretch to his right, but had to remain focussed on the monitor and this strained his neck. He claimed to have experienced a pins and needles sensation in his neck and later pain and to have suffered permanent injuries.

3 In October 1998 he sued his employer and Telstra in the District Court alleging that they had failed to provide him with a safe system of work.

4 Mr Saeedi claimed that he could not adjust the desk and chair at the workstations to an appropriate height. An expert report by an ergonomist, Dr Emerson, was tendered in the plaintiff’s case. This criticised the poor ergonomic design of the workstations and their components, including the desk, chair, keyboard, electronic pad, mouse and monitor. He criticised the chairs because the height and back rest were not adjustable and he also criticised the failure to provide foot rests.

5 Dr Emerson was not consulted until September 1998 and was not able to inspect the workstations where the plaintiff had worked because the layout had changed. He was dependent on a history obtained from the plaintiff and a photo of him sitting at a workstation, which became exhibit K. He was told that the plaintiff had inadequate breaks and had complained to management about the workstations and their effect on his neck without result.

6 The statement of claim alleged the plaintiff had suffered injuries to his cervical spine, his back and both arms. Mr Saeedi was extensively challenged in cross-examination and no corroborating evidence was called in his case. The medical evidence on both sides was given in report form.

7 Telstra called a Mr Butigieg, who had been a supervisor on this project between April 1994 and February 1996 when it closed down. There was a sharp conflict between his evidence and that given by Mr Saeedi. Mr Butigieg said that the plaintiff had only complained once about his working arrangements. The problem was solved by raising the height of the monitor with phone books. He said that there were more workstations than staff on the night shift and employees could work at any unoccupied workstation. There were 10 minute breaks at 5pm and 9pm, and a 20 minute break at 7. Staff also got up and moved about to obtain fresh material to work with.

8 Mr Butigieg could not recall Mr Saeedi complaining that he could not adjust his desk or chair. The monitor and the electronic pad and mouse could both be moved and the electronic pad had enough cable to allow it to be moved in front of the monitor, which was where the witness had his. He denied a suggestion that the electronic pad was attached by a second cable to the network which restricted its movements. He said that anyone having difficulty with a workstation could go to another, log in, and continue doing what they were doing.

9 He could not recall any further complaint from Mr Saeedi after the height of the monitor had been adjusted. He said that it was news to him that the plaintiff could not get his legs under the desk. He agreed that exhibit K showed a brace at the front of the desk which supported the top but said he had enough room to put his legs under the desk. The transcript does not reveal the height of this witness, but the Judge could compare him with the plaintiff. Mr Butigieg recalled an occasion when Mr Saeedi made “some sort of complaint” and was told to use another workstation.

10 Telstra tendered, without objection, a statement by a Mr Gosling, a qualified ergonomist, who had been employed by it in that capacity between 1985 and 1999. He was familiar with the premises at Parramatta where the plaintiff had worked, had inspected them in the course of his duties and was familiar with the work carried out by staff employed there. His statement concluded:

“Overall, I considered the ergonomics of the workstations present in the … premises to be consistent with the ergonomic standards of the day. Each of the workstations were of modern design with height-adjustable chairs and desks. The chairs also had adjustable backrests and each of the workstations were provided with footrests”.

11 There were also major conflicts in the medical evidence which the Judge had to resolve.

12 The Judge noted the many complaints of disability that Mr Saeedi attributed to his work for Telstra. By the time of the trial these expanded to include his legs and feet and included constant fatigue, insomnia, muscle spasms in his legs during the night, constant headaches, significant weight gain and severe depression.

13 The Judge found that although Mr Saeedi truly believed what he said in evidence he was not “an accurate historian” and events before and since “have led him to a conclusion that it is appropriate to blame sitting at the workstation at Telstra for the whole of his life’s problems”.

14 The Judge said that he could not accept Mr Saeedi’s recollection as accurate either as to the events at Telstra or the development of his physical and psychological conditions.

15 He said he had considered the medical evidence and referred specifically to that given by Dr Abraham, Dr Matheson and Dr Fearnside. The plaintiff saw his general practitioner, Dr Abraham, in December 1995. A C/T scan taken on 9 January 1996 showed a C5 disc prolapse with no obvious impingement of the adjacent nerve roots and bilateral degenerative changes throughout the cervical spine, more marked in the C5/6 area. Dr Abraham said in his report of 12 August 1999:

“Hence the diagnosis was one of degenerative arthritis of the cervical spine with a small central disc protrusion at C5/6 not causing any irritation of the adjacent nerve roots”.

16 The Judge accepted Dr Matheson’s opinion in his report of 24 June 1999, which was:

“This is simply a contrived illness. His neck changes are no more than one would expect for his age. Simply operating a mouse on a computer could not have produced this pattern of pain. If he had had some arm or neck discomfort as a result of such activity it would have ceased when he ceased that activity and this has not been the case. His signs are all faked, such as his power loss and his sensory loss and inconsistent straight leg raising. There is nothing genuine in this man’s presentation … He has minor continuing disability as far as his lumbar spine is concerned. It is unlikely that the C5/6 disc lesion in his neck is producing any symptoms at all. He is fit for his pre-injury duties”.

17 The Judge referred extensively to the evidence of Associate Professor Fearnside in his reports of 21 May and 18 December 1998, which he evidently accepted although he did not say so in terms. In the earlier report the doctor stated:

“The low back pain would not seem to be related to the nature and conditions of his work. He has steadily deteriorated over the last two years such that when seen most recently [he] had total spinal pain. One is reliant upon him for any estimate of a disability but it is unusual that he should deteriorate in this way when he is not working”.

18 In his later report he stated:

“I think it would be worth having Mr Saeedi seen by a neurologist to exclude a peripheral neuritis. I am unable to find a cause for his symptoms in the neck. He does have some mild cervical spondylosis which might cause some neck pain but I doubt would cause the burning pain of which he complains in his hands and feet and a deterioration in walking. He also has low back pain and is unable to sleep or sit”.

19 The plaintiff was later seen by Dr Coulston, a neurologist, but his report did not suggest that the problems were work related.

20 The Judge concluded that Mr Saeedi had many symptoms and many problems which he had superimposed on this one period of employment at Telstra, which, he found, “did not in any way cause his condition”. He said that the system of work at Telstra provided “appropriate and normal and acceptable ergonomic conditions which were … a reasonable response to the risk of injury [of] the plaintiff … [and that Telstra] in providing the workstation, the seating, the adjustable desk and the computer equipment which it did … discharged that duty. I find there was no breach of the duty of care owed by second defendant to the plaintiff”.

21 The medical evidence tendered at the trial on behalf of Mr Saeedi was based on the history and complaints given by him to the doctors and depended for its validity on the reliability of his evidence. The expert evidence given by the ergonomist, Dr Emerson, was in the same position. Like a stream this body of evidence could not rise higher than its source in the plaintiff’s own evidence. When that evidence was rejected by the trial Judge, the expert evidence in the plaintiff’s case ceased to be relevant and became of no use to the plaintiff.

22 The Judge’s findings about the reliability of the plaintiff’s evidence, and the conditions at the Telstra workstations were based, expressly, on his assessment of the plaintiff, particularly during cross-examination. This Court is bound by such findings by a trial Judge, who has seen and heard the witnesses, and we are not entitled to make different findings on the basis of our own examination of the transcript and the exhibits. See Abalos v Australian Postal Commission (1990) 171 CLR 167. There are limited exceptions to this principle but none are relevant in this case. In my judgment the appellant has entirely failed in his attempt to displace the primary findings of fact by the trial Judge and these findings must stand. In those circumstances the plaintiff’s appeal becomes hopeless, and this Court has no alternative but to order that it be dismissed with costs.

23 HEYDON JA: I agree with Handley JA.

24 GZELL J: I agree with Handley JA.

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