Surmon v Herald & Weekly Times

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

SCI 2010 02221

KIM SURMON	Plaintiff
v
HERALD & WEEKLY TIMES	Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATES OF HEARING:	9-11, 14-18, 21-24 November 2011
DATE OF JUDGMENT:	8 December 2011
CASE MAY BE CITED AS:	Surmon v Herald & Weekly Times
MEDIUM NEUTRAL CITATION:	[2011] VSC 628

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NEGLIGENCE – Breach of statutory duty – Employer – Safe system of work – Plaintiff suffering rare condition – Underlying susceptibility – Injury reported to defendant – Whether defendant breached duty of care or statutory duties in responding to report of injury – Damages – Occupational Health and Safety (Manual Handling) Regulations 1999 regs 13, 14, 15 – Occupational Health and Safety Regulations 2007 reg 3.1.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Richards SC and Mr M Walsh	Clark Toop & Taylor
For the Defendant	Mr R Stanley QC and Ms M Britbart	Minter Ellison

HIS HONOUR:

The plaintiff, Kim Surmon, claims damages for injuries, which she sustained in the course of her employment with the defendant, the Herald & Weekly Times, while performing duties as the finance librarian at the defendant’s Southbank premises between January 2003 and May 2009. The trial proceeded before a jury of six. However, after a period of deliberation exceeding two days, the jury was unable to reach a verdict on the issue of liability, notwithstanding that I had permitted the jury to return a majority verdict pursuant to s 47(2) of the Juries Act 2000. Accordingly, I discharged the jury without verdict.

After the discharge of the jury, Mr J Richards SC, who appeared with Mr M Walsh for the plaintiff, submitted that I should proceed to decide the case on the basis of the evidence which was presented before the jury. Mr R Stanley QC, who appeared with Ms M Britbart for the defendant, did not oppose that course. The central issue, on the question of liability, is one which, in my view, was quintessentially suited to be determined by a jury. That said, I did not consider that I could not determine it in a fair and appropriate manner. Accordingly, and particularly in light of the fact that the defendant did not oppose such a course, I directed that the case be heard and determined by me on the evidence called before the jury. I afforded to counsel the opportunity to make further submissions to me, to supplement their final addresses to the jury.

Background and issues

In the course of her duties as a librarian in the defendant’s finance section, the plaintiff was required to identify, cut out and file articles from four major daily newspapers, which related to significant Australian companies. She commenced that role in January 2003. In the latter part of 2003, she began to experience problems with the coordination of her right hand (which is her dominant hand), when she was attempting to write. In November 2003, she consulted the defendant’s company doctor, Dr Knight, in relation to those problems. A neurologist, to whom she was referred by Dr Knight, diagnosed that the plaintiff was suffering from dystonia. That condition is rare, and involves abnormally active muscle tone. The plaintiff’s condition progressed, and she commenced to suffer from pain and cramping in the right hand. In March 2004, she made a report of her injury to the defendant. She continued in her duties as a librarian. In the ensuing years, her condition deteriorated further, involving increasing pain and cramping to the right hand, and pain to the right arm. Ultimately, in June 2008, her duties were significantly modified, and her working hours were decreased. Subsequently, in May 2009, she accepted a redundancy package with the defendant.

It is not in dispute that the plaintiff suffers from dystonia, which involves her suffering from pain and cramping in the right hand and arm. She has persistent intermittent tremor of the right hand, and she lacks coordination on her right hand side for fine tasks. The medical evidence, which is not in dispute, is that the plaintiff suffers from a significant and permanent injury to her right hand and arm. As a result, she has also suffered psychologically, and she has been diagnosed as having an adjustment disorder with depression, for which she has received treatment.

The medical evidence indicates that the plaintiff’s condition is constitutional in origin, in the sense that she had an underlying pre-disposition to dystonia. According to the medical evidence, the plaintiff’s condition was triggered and/or exacerbated by the work, which she was required to perform in cutting and filing the newspaper articles, in the course of her employment with the defendant. In final address, Mr Stanley conceded that the plaintiff’s work was a cause of her injury.

The plaintiff based her claim in negligence and in breach of statutory duty. The latter claim was based on alleged breaches of regulations 13, 14 and 15 of the Occupational Health and Safety (Manual Handling) Regulations 1999, and regulation 3.1 of the Occupational Health and Safety Regulations 2007. The principal issue at trial was the question of liability, and, in particular, whether there was negligence, or breach of statutory duty, by the defendant in respect of the work, which the plaintiff was required to undertake, and which, it was conceded, was a cause of the plaintiff’s injury.

Evidence on liability

The facts in the case were substantially not in issue. The principal witness on the issue of liability was the plaintiff. At trial, no criticism was made of her credit. I formed the view that she was an honest and reliable witness. The plaintiff made appropriate concessions in cross-examination. I did not detect any conscious effort by her to embellish or exaggerate her case, either on the issue of liability, or in relation to the nature and extent of her injuries. Certainly, as the evidence relating to quantum reveals, the plaintiff has a genuine injury. There was, at trial, no dispute that the work, which she performed with the defendant during the relevant period, was a cause of her injury. Nor was there any suggestion that the plaintiff has in any way malingered, or shown any unwillingness to work. On the contrary, the evidence reveals that the plaintiff was a keen worker with the defendant, and, when her employment with the defendant ceased in 2009, she made every endeavour to find an alternative avenue of remunerative work.

The plaintiff was born on 20 January 1965. Having left school, she worked in a number of different positions, which I shall detail later. In 2000, she commenced employment as a casual employee with the defendant. She obtained that position through her sister, Debbie Baron, who was then (and still is) an office manager of the defendant. After a short period of time, the plaintiff obtained the position of personal assistant to the editor of the MX magazine. She remained in that position for two years. However, because of personal differences with the editor for whom she was working, she became stressed, and wished to find another position with the defendant. The plaintiff was aware that there was a position available in the business (or finance) section of the Herald Sun newspaper, in maintaining files of relevant articles in the finance section’s library. She applied for and obtained that position.

That role required the plaintiff to perform two principal duties. First, in the morning, the plaintiff was required to extract and file newspaper clippings, relating to any relevant information relating to major companies, from that day’s edition of the Herald Sun newspaper, the Australian newspaper, the Australian Financial Review and The Age. For that purpose, she was provided with four copies of each of those newspapers. She would peruse each of the newspapers, and mark, with a red texta pen, any relevant article, with the date and the initials, or abbreviation, of the source. Having completed that task, she would cut each of the newspapers in half, using a Stanley knife. She did this so she could use the front and back of each page of the newspaper. The plaintiff would then cut out the articles, which she had marked, again using the Stanley knife.

Having completed that task, the plaintiff would paste the articles onto paper, place them in alphabetical order, and convey them, on a trolley, to the files of articles, which were maintained in the finance section’s library. She estimated that there were about 3,000 files in that library. The plaintiff stated that, when she cut the newspapers down the centre, in order to divide them into half, she had to apply as much force as she could. She used a cutting board for that purpose. Every one or two days, she had to change the blades on the Stanley knife, in order to ensure that the blades were sufficiently sharp. She estimated that she would take approximately three hours to cut out the articles. The files, which had to be removed from the library shelves, were quite large. The cuttings, which she had derived from each day’s newspapers, were to be placed into these files. The plaintiff stated that each day she had to work flat out, in order to complete the tasks of cutting out the newspaper articles, and placing them in the files.

The plaintiff stated that, throughout her employment with the defendant, no risk assessment was conducted by the defendant of her work. She did not receive any instruction as to how she was to carry out the task. In particular, she was not told that she should conduct the task in a different manner. Nor was she advised that she should rotate her duties. For the first two years of her employment as finance librarian, she had assistance from a couple of casual employees for three or four hours a day. However, that level of assistance was gradually removed from her, for budgetary reasons. By the end of two years, she no longer had anyone to assist her in the task.

The second duty, which was performed by the plaintiff, was compiling what she described as “stock wraps” at the end of the day. The plaintiff conducted that task on two or three days each week. That work involved the plaintiff obtaining financial information at about 4.30 pm, when the stock markets and currency markets closed. She obtained that information from the computer, and hand wrote it onto two pages of A4 paper. The plaintiff would then enter that information into the computer. That task ordinarily took the plaintiff about two and one half hours to complete. There was some pressure attached to it, because it had to be completed in time for the deadline for the publication of the next day’s newspaper.

In about the middle of 2003, the plaintiff noticed that she had lost coordination when she wrote with a pen. On 9 September 2003, she consulted Dr Edwin Knight, who was the occupational physician employed by the defendant at its premises. In his evidence, Dr Knight stated that when the plaintiff presented, he noted a marked tremor in her right hand. He placed her on Inderal to control the tremor. Dr Knight saw the plaintiff on three further occasions. On the third occasion, on 14 October, he decided to refer the plaintiff to a neurologist, Dr Isla Williams.

The plaintiff saw Dr Williams in March 2004, and Dr Williams made a differential diagnosis of dystonia. Dr Williams referred the plaintiff to Dr Peppard, another neurologist, who has expertise in that particular condition. Dr Peppard commenced to treat the plaintiff with injections of Botox, which were designed to produce relaxation of the muscles. There was, however, some difficulty in determining the correct dosage of Botox to be injected. In March 2004, Dr Peppard “overshot” with the quantity of Botox injected, and as a result the plaintiff suffered some paralysis, particularly in the middle finger.

By that stage, the plaintiff had continued in her work with the defendant. Her condition was then progressing, so that, in addition to the lack of coordination and tremor, she commenced to suffer from pain and cramps in the hand. On 23 March 2004, the plaintiff completed a WorkCover Worker’s Claim Form (“the claim form”), which she handed to the Human Resources Officer of the defendant. The injury details on the claim form described the plaintiff’s condition as “hand writer’s dystonia” affecting the right hand. In answer to the question “what happened that caused or contributed to your injury/condition?”, the plaintiff, in the form, stated: “Repetitious cutting, pasting and filing”.

After submitting the claim form to the defendant, the plaintiff continued in her duties. She stated that the hardest part of her duties, at that stage, related to hand writing on the newspaper clippings. However, as time passed, she also suffered pain and cramping using the Stanley knife. Her symptoms, during that process, became more frequent, and the pain became stronger. She found that the tasks, involving the use of the knife, became more difficult as the years went by. In due course, the pain and cramping extended from the hand into the arm.

In September 2004, her sister, Debbie Baron, designed four stamps, which the plaintiff used to avoid having to write the date and source on each of the clippings, which she identified in the newspaper. Otherwise, no other modification was introduced to the plaintiff’s duties. Within eighteen months of her first consultation with Dr Knight (that is, early 2005), all her symptoms were becoming worse, and the pain and cramping were becoming more frequent. The pain was in her hand and her forearm, and extended into the fingers. She had not regained the ability to write properly. Her tremor in her right hand was becoming worse. The plaintiff demonstrated the tremor to the jury. It was most pronounced.

The plaintiff was also finding it difficult to handle the files, which she had to remove from the library shelves, in order to insert newspaper clippings into them. In 2005, Dr Knight visited her work station. In his evidence, Dr Knight stated that, on that occasion, he saw the plaintiff on 29 August 2005. She told him that she could write in the morning, but that she was having problems removing the files from the library, since she needed to use a strong gripping action to do so. Dr Knight carried out a work inspection on the following day, and advised her to use her left hand to remove the files, with the right hand supporting the files as they were removed from the shelf.

The plaintiff continued to perform the same duties until mid-2008. During that time, she was continuing to see Dr Peppard, and to receive Botox injections from him.

In September 2006, Dr Knight retired from service with the defendant. Dr Sleigh took his place as the occupational physician of the defendant. During Dr Knight’s tenure of that position from 1972 to 2006, he had acted as general practitioner to the employees of the defendant, and also as the occupational physician. However, Dr Sleigh was engaged only to provide occupational medical services to the employees of the defendant.

The plaintiff first saw Dr Sleigh in November 2007. In January 2008, he performed a work site assessment, and made some modifications to her work station, by adjusting the height of her table and chair. That modification helped to ease the plaintiff’s shoulder and neck pain, and headaches, which she was then suffering. However, it did not alleviate the symptoms in her right hand, which by then, were severe and constant. The tremor was becoming more pronounced, and she also commenced to experience involuntary movements to the right hand. The pain was quite severe by the time she had finished cutting out articles from the newspaper, and she found writing the stock wraps, at the end of the day, to be most difficult.

Ultimately, in June 2008, Dr Sleigh directed the plaintiff to take two weeks off work. She said that, by that time, she found it particularly difficult to cope with her work. She had persisted, because she had a secure job, which she enjoyed, and she liked being busy. When the plaintiff returned to work, Dr Sleigh spoke to the editor of the Herald Sun. Dr Sleigh directed the plaintiff to cease doing any task involving cutting, pasting and filing, and that she should only do a minimal amount of handwriting. Her working hours were reduced to four hours per day. They were later increased to five hours per day. At one stage, in January 2006, Dr Sleigh increased her hours to six hours per day, but, on review, he reduced them again to four hours per day. During that time, the plaintiff was putting away some newspapers, and doing a bit of filing. She continued to perform the stock wraps at the end of the day, which she found was very difficult. Ultimately, in May 2009, the plaintiff accepted a redundancy package from the defendant. She then opened a small giftware shop in Williamstown. However, that business was affected by the downturn in the economy, and she had to sell it in April 2011.

During the last two years, between 2006 and 2008, the plaintiff’s editor at the business section of the Herald & Weekly Times was Malcolm Schmidke. She regularly told Mr Schmidke about the difficulties which she was having with her job. She said that Mr Schmidke could see she was having trouble, and he tried to come up with solutions.

In cross-examination, the plaintiff agreed that, when she sought the position as the finance department librarian, she was aware of the tasks which she had to perform, since she had seen them being performed by other employees. She agreed that the system of work, which she used, had been engaged in by other employees of the defendant for a number of years.

In her evidence in chief, the plaintiff had stated that, for some time before commencing employment with the defendant, she had suffered from Graves’ Disease, which involves hyperactivity of the thyroid. Before she commenced to have problems with her right hand, she had been seeing Dr Knight relating to her thyroid problem, and he was in communication with the plaintiff’s physician, Dr Greenberg.

In cross-examination, she agreed that, when she first consulted Dr Knight concerning the problem, which she was having with her hand, he referred her to Dr Williams, who in turn referred her to Dr Peppard. At that stage, her symptoms were solely related to problems with handwriting. Dr Peppard confirmed that she had writer’s dystonia, and he gave her a fact sheet about it. When the plaintiff returned to work, she discussed the problem with Dr Knight and with her superiors at work. She showed those people the document, which Dr Peppard had given to her. She agreed that that document indicated that the only problem, which she had, related to the task of handwriting. She had no other problems with fine coordination, such as doing up the buttons on her clothing.

The plaintiff confirmed that, after she had clarified with her superiors the nature of her condition, her sister, Debbie Barron, provided her with the date stamps. She said that the stamps made it easier for her to perform her tasks. During this time, she was continuing to be treated by Dr Knight in relation to her thyroid problem.

The plaintiff agreed that, when she saw Dr Peppard in January 2005, she had a good response to the Botox, and her ability to hold a pen had improved. By that stage, she was still coping with full time employment, particularly as there was less handwriting involved in it. Subsequently, she experienced difficulty handling the heavy files in the library. Notwithstanding that she was using the stamps, instead of handwriting on the articles, which were to be cut out, she found that, as time went by, her condition gradually deteriorated. She said that shortly before she saw Dr Sleigh (in November 2007), her condition was getting worse.

The plaintiff agreed that Dr Sleigh endeavoured to assist her, first by adjusting her work station, and then by giving her two weeks off work. On her return, she was placed on restricted duties. Dr Sleigh developed eleven successive return to work plans in consultation with her. Those plans (which were tendered in evidence) described, in some detail, the duties, which the plaintiff was to perform, and set out her limitations.

The plaintiff agreed that, instead of cutting the newspapers down the middle with the Stanley knife, she could have cut them sequentially, by opening a few pages at a time. However, she found it just as easy to cut the newspapers down the middle.

The plaintiff stated that, on each day, she would mark and cut out between 100 and 150 articles. She said that there was little writing involved in that task. The cutting out of each article would take approximately one second, and it involved the use of minimal force.

The plaintiff also agreed that she was not required to work rigid times. She was permitted to have coffee breaks and smoking breaks, and she was allowed to use her own computer and telephone for personal purposes. She agreed that the working environment was relaxed.

In re-examination, the plaintiff stated that, although the environment was relaxed, nevertheless the work had to be completed, particularly the stock wraps. She said that, after she was given the stamps, she still had to write the stock wraps. She found that handwriting task difficult, particularly in the latter stages of her employment with the defendant.

The other principal witness, called on behalf of the plaintiff on the issue of liability, was Mr Mark Hennessy, a public health and safety consultant, who specialises in workplace ergonomics. Mr Hennessey interviewed the plaintiff on 21 December 2010, and attended at her former place of work with the defendant in July 2011.

Mr Hennessy commenced by outlining the facts, which had been related to him by the plaintiff, and on the basis of which Mr Hennessy expressed his conclusions. Those “assumed facts” included (inter alia) the following: the plaintiff carried out the work of cutting and filing the clippings between 11.00 am and 4.30 pm; in the process she would cut and file between 100 and 200 articles each day; she carried out that work on her own; the plaintiff used a “pincer grip” on the Stanley knife, which was identical to the grip which most people use to hold a pen when they write; after about six months, she commenced to have difficulty writing with her right hand, and, eventually, she experienced difficulty with the other actions requiring the “pincer grip”, including cutting with the Stanley knife.

Based on that information, and on his inspection of the defendant’s premises, Mr Hennessy concluded that the plaintiff had been placed at risk of injury in her employment with the defendant. He based that conclusion on the fact that the plaintiff was required to undertake frequent and repetitive fine motor tasks using a pincer grip with her right hand, including writing on newspaper articles with a pen, and cutting out the articles using a Stanley knife with a similar grip. He said that repetitive actions of a gripping nature are a risk factor for various musculoskeletal disorders.

Mr Hennessy said that, following the introduction of the first set of Manual Handling Regulations in 1988, a Code of Practice was published by the Victorian Government in 1992, specifically relating to Occupational Overuse Syndrome. The 1988 Regulations were replaced by the Occupational Health and Safety (Manual Handling) Regulations 1999. In turn, a Manual Handling Code of Practice was released in 2000. The Regulations and the two Codes of Practice were tendered in evidence.

Mr Hennessy expressed the view that, if the defendant had conducted an appropriate work assessment of the plaintiff’s work before she commenced her employment in the finance library, such an assessment would have identified some hazardous elements in the tasks, which she was to perform. In particular, the employer would have identified the repetitive nature of the tasks, involving the use of the knife and the pen, and the high amount of force, which was required to cut through the newspaper.

Mr Hennessy stated that information about the risks of musculoskeletal strain injury, together with advice concerning the control of risks and measures for strain injury prevention, had been widely available to Victorian employers for almost fifteen years before the plaintiff suffered her injury. The original Manual Handling Regulations, which were introduced in 1988, and the Code of Practice, were published in a booklet, and the Minister for Labour had advertised their publication on television. In addition, the Department of Labour had published a substantial amount of material and pamphlets about how risks should be assessed, and how they should be controlled. The Department conducted a wide range of seminars and workshops on that topic throughout Australia.

Mr Hennessy then outlined sixteen different measures, which the defendant could have implemented, to prevent the plaintiff suffering from injury. They included: carrying out an appropriate review of the work to be undertaken by the plaintiff; responding to the plaintiff’s difficulties by conducting a risk assessment as to her cutting and pasting duties; training staff in the identification of musculoskeletal risks involved in repetitive work; altering the plaintiff’s work condition after she had reported her injury; providing pens which required less force to grip; providing the rubber stamps earlier; rotating the plaintiff’s tasks; providing more time for the plaintiff to complete her tasks; advising the plaintiff to use a power grip rather than a pincer grip; fitting a pistol grip to the knife; computerising the newspaper articles; ensuring that the plaintiff took regular short rest breaks; providing assistance to the plaintiff; transferring the plaintiff to non-writing duties; encouraging the plaintiff to cut with her left hand; referring the plaintiff to a therapist to determine whether any particular aids could be used to assist her in her tasks; and reducing the workload on the plaintiff’s right hand, such as by reducing the weight of files.

In cross-examination by Ms Britbart, Mr Hennessy agreed that, when he first spoke to the plaintiff, he thought that the plaintiff held the Stanley knife and the pen with an identical pincer grip. When he visited the plaintiff’s work place in July 2011, he photographed the plaintiff holding the knife. It is clear that the plaintiff was not then holding the knife in a manner in which a person would hold a pen. In particular, the photograph, which was tendered in evidence, demonstrates the plaintiff’s right forefinger wrapped around the knife, with some support from the other fingers of her right hand. Nevertheless, Mr Hennessy adhered to his description of the grip, depicted in the photograph, as a species of a pincer grip. Mr Hennessy did so because, when he saw the plaintiff holding the knife, he formed the view that most of the force was being transmitted to the knife by the thumb and forefinger. However, he conceded, in cross-examination, that he only saw the plaintiff holding the knife in that way for a very short period of time, because the plaintiff’s hand commenced to be affected by tremor.

Mr Hennessy stated that, if in fact the plaintiff was not performing the tasks relating to the newspaper clippings between 11.00 am and 4.30 pm, but rather, was performing those tasks for two to three hours, that would have reduced the duration of the period in which the tasks were performed, but, on the other hand, it would have increased the repetitiveness and frequency with which she performed the tasks. Mr Hennessy also accepted that, if the plaintiff was writing between 100 and 150 articles over a three hour period, she would be writing on one article per minute. He agreed that, if he was assessing the task, not knowing that the plaintiff had suffered injury, he probably would not have been concerned about the frequency and duration of the writing component of that task, provided that she did not have any problems doing so.

Mr Hennessy was not aware at what particular stage the plaintiff commenced to have problems holding the knife. He stated that the risk assessment should, however, have been performed when she first started to develop problems with her handwriting. The risk assessment should not have been directed solely to the issues relating to her handwriting, but, rather, it should have been directed to any tasks, which involved the use by her of her right hand. This was particularly so, if the plaintiff had already commenced to experience tremors in the hand, which she was reporting to the defendant.

Mr Hennessy agreed that the simplest method of cutting the newspaper down the middle would be by cutting it in sections, which would require less force.

Mr Hennessy agreed that not all manual handling tasks are hazardous. The tasks, which are hazardous, are those which involve forceful repetitive movements, or which involve awkward postures. He said that if he had written his report before the plaintiff suffered injury, he would not have said that the plaintiff was exposed to risk because of the frequent and repetitive fine motor tasks, which she performed writing on the newspaper articles and cutting them out with the Stanley knife. However, Mr Hennessy wrote his report knowing that the plaintiff had suffered injury, and that those matters had caused her problems. Thus, he had taken into account the fact that the plaintiff had suffered symptoms conducting her work. He agreed, in cross-examination, that if he had conducted a risk assessment before the plaintiff suffered injury, and if she was not then experiencing problems with the task, he would have assessed it as a low, or no, risk task.

In re-examination, Mr Hennessy stated that, if he had been provided with the claim form in March 2004, he would have asked the plaintiff to demonstrate her work to him, and he would have discussed with her which parts of her work caused her difficulty. He would have modified her tasks, and monitored her closely, to ensure that her condition was not getting worse. He said that, as the plaintiff’s condition deteriorated between 2004 and 2008, it was not good management practice to leave her doing the same task, with the only modification being the introduction of the stamp.

The plaintiff also called medical evidence, which was relevant to the issues of causation and damages. Some of that evidence is also material to the issue of liability. In particular, the plaintiff called Dr Sleigh, who outlined the matters relating to his assessment of the plaintiff’s condition, and the steps which he took to reduce her tasks, after she consulted him in November 2007. Dr Sleigh stated that the plaintiff’s condition was a constitutional condition, which became symptomatic during the course of her employment with the defendant. He was unable to say whether or not the plaintiff’s work with the defendant made her condition symptomatic. However, once the condition became symptomatic, the duties, which she performed with the defendant, contributed to the development and progression of the condition. In particular, the repeated forceful use of the muscles of grip of her right forearm contributed to the way in which the condition progressed and developed.

In cross-examination, Dr Sleigh stated that dystonia is a rare condition. In 37 years of medical practice, he has only previously seen one other case of dystonia. Research indicates that about 70 people out of 100,000 are affected by it.

Dr Leslie Roberts, a neurologist, also gave evidence on behalf of the plaintiff. In August 2011, Dr Roberts was requested by the defendant to examine the plaintiff and report on her. Dr Roberts considered that it was very likely that the repetitive nature of the plaintiff’s work from 2003 was the trigger to the development of her condition. He considered that it was extremely likely that the work, which the plaintiff performed with the defendant, then exacerbated the condition substantially, and caused the progression of it. He stated that if, at an early stage, the plaintiff had ceased to do the repetitive work, he would have anticipated that the plaintiff’s condition would have stabilised and perhaps improved. In cross-examination, Dr Roberts considered that, on the balance of probabilities, it was unlikely that the plaintiff would have developed the dystonia, without performing the work, which she performed with the defendant, but he was unable to say that she would not have developed it.

The defendant called three witnesses, Dr Edwin Knight, Mr Ron Choo and Ms Wendy Mason, who were relevant to the issue of liability. Dr Knight commenced employment with the defendant as an occupational physician in 1972, and remained in that role until he retired in 2006. Since 2000, the defendant had two occupational health and safety committees, one for the production staff, and the other for the administrative and editorial staff at Southbank. In the latter years, Dr Knight chaired both committees, which met monthly. The issues, which were discussed at the committee meetings, related to claims, and also concerned matters raised by union representatives relating to issues of safety and the like. Dr Knight carried out many work inspections as a result of issues, which had been raised “from the shop floor”.

Dr Knight gave evidence, in some detail, as to various attendances, which the plaintiff had on him at his clinic from February 2001 until his retirement in September 2006. During that period, the plaintiff attended Dr Knight for a number of health issues, which were not related to her dystonia. He was first consulted about that particular condition on 29 September 2003, when the plaintiff complained of difficulty in writing, and that her hand felt uncoordinated. On that occasion, he noted that the plaintiff had a marked tremor in the right hand. He saw the plaintiff on three further occasions during that period, and in October referred the plaintiff to Dr Williams.

Subsequently, Dr Knight had some ongoing contact with Dr Williams and Dr Peppard concerning their diagnoses. Between May 2004 and May 2005, he attended to the plaintiff for other matters, which were not related to her dystonia. He next saw the plaintiff in relation to that condition on 29 August 2005, when she complained of difficulty extracting the files from the shelves with her right hand. She also described tingling in her right forearm. In the next day or two, Dr Knight carried out a work inspection. As a result of the inspection, he advised the plaintiff to use her left hand to obtain the files, in order to avoid using a strong grip between the thumb and forefinger of her right hand. At that time, Dr Knight thought that the plaintiff’s condition might have been related to that activity.

Dr Knight stated that he was familiar with the tasks, which the plaintiff performed when cutting, pasting and filing articles from daily newspapers. He was aware that those tasks were also undertaken in the defendant’s general library, as well as in its business library. During the whole of the period, in which he worked for the defendant, he did not have any case of an employee suffering from writer’s dystonia. Dr Knight confirmed that that condition is a rare occurrence, and he had never seen it during his forty-six years of practice.

Dr Knight saw the plaintiff for an unrelated condition in November 2005, but he did not see her again concerning her dystonia before his retirement in September 2006.

The defendant also called Mr Ron Choo, a journalist and sub-editor with the defendant. Mr Choo gave evidence concerning the “stock wrap” task. The gravamen of Mr Choo’s evidence was that that task was performed by writing figures onto one page. He described that function as being equivalent to writing out about two dozen telephone numbers.

Finally, the defendant called Ms Wendy Mason, who is the secretary to the business editor of the Herald Sun, to give evidence on its behalf. Ms Mason has been employed by the defendant for some 31 years. In the past, she has carried out the task of cutting, pasting and filing the articles from the newspapers, and, indeed, she filled in for the plaintiff, when the plaintiff was absent from work.

Ms Mason confirmed that the area of work, in which that task was performed, was quite relaxed, and that the employee performing the task was entitled to take breaks, if and when she saw fit. She demonstrated, in Court, how she performed the clipping task. In particular, she noted that, in performing that task, it was necessary to cut out from the Herald Sun, not only articles which might be of interest relating to financial matters, but also articles which appeared under the by-lines of journalists employed by the newspaper. Thus, on occasion, it was necessary to cut out the same article twice.

In her demonstration in Court, Ms Mason performed the task of identifying and cutting out articles in a manner which differed, to an extent, from that described by the plaintiff. When Ms Mason identified an article, which she would need to cut out, she would make the relevant notation on it, and then, using the Stanley knife, she cut out the whole page on which that article appeared. That page would be put on one pile. If it was a page of the Herald Sun containing an article under the relevant journalist’s by-line, she would also cut out that page out of another copy of the newspaper, and put it onto a separate pile. In that way, Ms Mason would work her way through a particular newspaper. She would then cut the articles out of the pages which she had extracted from the newspaper, and group them in piles as she cut them out.

Ms Mason stated that she was permitted to carry out the task, which she described during the course of the demonstration, at her own pace. She said that, in total, it would take her about two hours to two and one half hours, to complete the task of cutting out articles from the newspapers. The demonstration, which Ms Mason gave in Court, consisted of cutting out articles from The Age and the Herald Sun. After she had finished her evidence, she also, at her workplace, cut out the articles from the day’s Financial Review and The Age. It was common ground that, for the day on which Ms Mason conducted the demonstration (11 November), she cut out a total of 140 articles, which is consistent with the evidence of the plaintiff.

In cross-examination, Ms Mason stated that she had never cut the newspaper in half down the middle, and she had never seen anyone else do it that way. She stated that it would not make sense to attempt to divide the newspaper in that way, because it would require quite a substantial amount of force.

The plaintiff’s claim

As I stated, the plaintiff’s claim is brought both in negligence and for breach of statutory duty. In respect of the claim in negligence, the plaintiff alleged that, from the commencement of her employment as the librarian in the finance section, the defendant breached its duty of care to her. In particular, it was alleged that: the defendant failed to properly inspect, or conduct a risk assessment of, the work performed by her; there was no adequate supervision of her work; she was not provided with any proper instruction as to how she should perform her work, or any warning as to the risks associated with it; and she was not provided with adequate assistance to enable her to carry out the work without unduly stressing the musculoskeletal structures of her hand and arm. It was further alleged that, in light of the repetitive nature of the tasks involving her right hand, the defendant failed to provide adequate rotation of the plaintiff’s tasks and duties.

In final address, Mr Richards, on behalf of the plaintiff, focused principally on the period of the plaintiff’s employment after she had submitted her claim form on 23 March 2004, in respect of both the claim in negligence and the claim for breach of statutory duty. In particular, he emphasised that, notwithstanding the submission of that claim form, the defendant did not make any alteration to the plaintiff’s duties, or make any modification to the manner in which she performed them, other than to provide her with the stamps, which her sister, Debbie Baron, gave to her in September 2004.

The plaintiff’s claim for breach of statutory duty was based on regulations 13, 14 and 15 of the Occupational Health and Safety (Manual Handling) Regulations 1999 (“the 1999 Regulations”) for the period to 1 July 2007. On that date, the regulations were replaced by Chapter 3 of the Occupational Health and Safety Regulations 2007 (“the 2007 Regulations”). For the remaining period of her employment, the plaintiff relied on regulation 3.1 of the 2007 Regulations.

Turning, first, to the 1999 Regulations, the plaintiff alleged that the tasks performed by her, in cutting, pasting and filing the newspaper extracts, were “manual handling” as detailed in Regulation 5. Mr Richards contended that those tasks constituted “hazardous manual handling” under the definition of that term in Regulation 13(2)(a). In particular, he relied on sub regulation (i) (“repetitive or sustained application of force”) and sub-regulation (iii) (“repetitive or sustained movement”) of the definition of “hazardous manual handling”. Accordingly, he submitted that the defendant had failed, in accordance with Regulation 13(1) to ensure that the hazardous manual handling tasks, undertaken by the plaintiff, were identified. He submitted that, under Regulation 13(3)(a), the defendant was obliged to ensure that those tasks be identified, as hazardous manual handling, at the commencement of the plaintiff’s employment with the defendant. Further, he submitted that such an identification should have taken place, pursuant to Regulation 13(3)(e), upon the plaintiff reporting her injury to the defendant in March 2004.

The plaintiff further alleged that, because her work should have been identified as involving hazardous manual handling, the defendant was obliged, under Regulation 14(1), to conduct a risk assessment of her work. She alleged that the defendant had failed to conduct any such assessment at all. Further, the plaintiff relied on Regulation 14(3), which obliges the employer to ensure that any previous risk assessment, conducted by it, is reviewed (inter alia) upon the happening of any musculoskeletal disorder reported by the employee.

The plaintiff also relied on Regulation 15(1) of the 1999 Regulations, which obliged the defendant to ensure that “any risk of a musculoskeletal disorder”, affecting the plaintiff, be either eliminated, or, if that is not possible, be reduced so far as practicable. In a ruling[1], before final address to the jury, I held that Regulation 15(1) was not confined to risks arising out of “hazardous manual handling” tasks, but that the Regulation referred to any risks of musculoskeletal disorder, arising out of tasks involving manual handling. The plaintiff alleged that the defendant failed to ensure that the risks, involved in the repetitive work of cutting, pasting and filing the newspaper articles, were either eliminated or appropriately reduced.
[1]Surmon v Herald & Weekly Times (Ruling No 2) [2011] VSC 607.

In relation to the 2007 Regulations, Regulation 3.1.1 is the equivalent of Regulation 13 of the 1999 Regulations. Accordingly, the plaintiff relied on the ongoing failure of the defendant to identify her task as involving hazardous manual handling. Regulation 3.1.2(1) is similar to Regulation 15(1) of the 1999 Regulations, save that it requires the employer to ensure that only those risks associated with hazardous manual handling tasks are eliminated. The plaintiff alleged a breach of that regulation. Regulation 3.1.3(d) of the 2007 Regulations is to the same effect as Regulation 14(3) of the 1999 Regulations, requiring a review of measures taken to control risks in relation to musculoskeletal disorders, if an occurrence of a musculoskeletal disorder is reported by an employee. In this case, the plaintiff alleged that, in light of her reported injury in March 2004, the defendant, after 1 July 2007, failed to review the risks associated with the work performed by the plaintiff.

Submissions

As I stated, having discharged the jury, and directed that the trial proceed before me as a judge sitting alone, I gave counsel the opportunity to supplement their final addresses to the jury, particularly in relation to the issue of liability. The following summary of the submissions, made on behalf of each party, is a composite of the addresses which they made to the jury, and the supplementary submissions which they made before me.

On behalf of the defendant, Mr Stanley submitted that, at least until the plaintiff attended upon Dr Knight in late 2003, complaining of a difficulty with handwriting, the defendant had no reason to foresee that the work, performed by the plaintiff, constituted a risk of injury to her. The tasks, which were performed by the plaintiff, had been undertaken by other employees of the defendant, both in the financial library and in the general library, for many years. There had been no history of any problem of the kind, from which the plaintiff suffered, during the period of 34 years in which Dr Knight worked with the defendant. The plaintiff’s condition was a particularly rare condition. The plaintiff had sought out the role of finance librarian, and at that time she had considered that she would be capable of carrying out the work, which she knew that role entailed.

Mr Stanley further submitted that the response, which the defendant made to the plaintiff’s complaint of injury in late 2003, and her report of it in March 2004, was appropriate and adequate, and did not constitute a breach by it of its duty of care to the plaintiff. At that time, the defendant had an effective system of looking after the occupational health and safety of its employees. It employed a specialist occupational physician, who performed the role of providing health care to its employees, together with the role of supervising the occupational health and safety system within the defendant’s work place. When the plaintiff first consulted Dr Knight, her complaint was confined to a lack of coordination in handwriting. In cross-examination, she confirmed that, at the time at which she consulted Dr Peppard in early 2004, her symptoms solely related to handwriting. The defendant addressed that problem by providing the stamps to the plaintiff, in order to reduce the amount of handwriting, which she was required to perform. At that stage, the plaintiff said, in her evidence, that her condition then was moderate, as compared with the state of her condition in 2008. Thus, Mr Stanley submitted that the defendant had adequately addressed the problem, which had been identified both by the plaintiff, and by the medical practitioners, who were attending to her.

Mr Stanley further submitted that, in the ensuing period up to 2007, the only further report of any problem relating to the plaintiff’s hand was the report to Dr Knight in August 2005, of tingling in the arm. Dr Knight addressed that problem by advising the plaintiff to use her non-dominant left hand to remove the files. It was not until late 2007 that the plaintiff consulted Dr Sleigh, concerning the difficulty which she was having using the knife to cut out the newspaper clippings.

Mr Stanley submitted that the notation in the claim form of March 2004 – that the plaintiff’s problem had been caused by cutting, pasting and filing – must be read in the context of the evidence that the plaintiff’s problem, as reported to the defendant, and to the defendant’s medical practitioner, related solely to the difficulties involved in handwriting, which were appropriately addressed by the defendant. Mr Stanley submitted that the defendant had an appropriate system of supervising the issues relating to the plaintiff’s injury. In particular, Dr Knight, its employee, specifically had the role of overseeing her medical treatment and her condition. Mr Stanley pointed out that, during the trial, Mr Richards expressly disavowed any criticism of the management by Dr Knight of the plaintiff’s condition and its treatment. During the whole of the relevant period, the plaintiff was consulting Dr Knight on other unrelated matters. At the same time, she was receiving Botox injections from Dr Peppard. In those circumstances, there was nothing else, which the defendant could reasonably have been expected to have done, in response to the problems as reported to it, and as perceived by it, which the plaintiff was having.

Mr Stanley further pointed out that the plaintiff’s condition was progressive. Ultimately, in late 2007, it had deteriorated to the state at which she made a complaint to Dr Sleigh. In response, Dr Sleigh performed an assessment of her work place, and made adjustments to it. When that measure did not alleviate the problem, Dr Sleigh, ultimately, directed that she no longer undertake the task relating to cutting, pasting and filing of the newspaper clippings. Mr Stanley submitted that, before the plaintiff reported her difficulty to Dr Sleigh in late 2007, there was nothing else which the defendant could reasonably have been expected to have done in relation to the plaintiff’s problem. It would have been unreasonable for the defendant, during that period, to have forced the plaintiff to resign from her position.

Accordingly, Mr Stanley submitted that the plaintiff had failed to establish a breach by the defendant of its duty of care to her.

Mr Stanley also submitted that the defendant had not breached the Regulations relied on by the plaintiff. He submitted, first, that the Regulations did not apply to the work performed by the plaintiff, since the work did not constitute “manual handling”. Further, he submitted that, if the work constituted manual handling, it did not constitute “hazardous manual handling” under Regulation 13(1) of the 1999 Regulations. He submitted that, in any event, the defendant did undertake an appropriate risk assessment of the plaintiff’s work, after she had reported her injury to Dr Knight. That assessment revealed that the plaintiff’s problem was caused by hand writing, and appropriate steps were taken to address that problem. Mr Stanley further submitted that, by reason of the matters which he addressed in relation to the issue of negligence, the plaintiff had not established a breach of Regulation 15(1). In particular, he submitted that, in the circumstances, the defendant had taken all appropriate steps to ensure that any risk to the plaintiff of injury to her right hand was either eliminated or appropriately reduced.

In his final address before the jury, and in supplementary submissions before me, Mr Richards concentrated principally on the defendant’s response to the report of injury submitted by the plaintiff to the defendant on 23 March 2004. His basic submission was that, by the time that that document was submitted to it, the defendant knew that the plaintiff was suffering writer’s dystonia, and that the cause of it was repetitious cutting, pasting and filing. Despite that knowledge, the plaintiff was kept on the same task of repetitious cutting, pasting and filing. It was not until the plaintiff saw Dr Sleigh in late 2007, that he made some adjustments to her work station, and it was not until 2008 that the work, involving her right hand, was appropriately addressed by removing those tasks from the plaintiff’s duties. In the meantime, the only step, taken by the defendant to address the plaintiff’s condition, was to provide her with stamps. While that step addressed the issue relating to her handwriting, it did not address, at all, the cause of her injury, which the plaintiff had nominated, namely, the repetitious cutting, pasting and filing.

Mr Richards submitted that, in the meantime, the defendant, having been alerted to the plaintiff’s problem, should have conducted a proper risk assessment of the plaintiff’s duties. In doing so, the defendant should have advised the plaintiff not to cut the newspapers in half down the middle, but rather to do it in segments. If that advice had not assisted the plaintiff, then the defendant ought to have taken further steps to reduce, or eliminate, the amount of cutting, which the plaintiff was required to undertake, each day, using the Stanley knife. However, and by contrast, during the relevant period, the defendant in fact reduced the amount of assistance provided to the plaintiff, so that, after a two year period, she had no assistance at all. During the ensuing period, the plaintiff’s symptoms continued, and progressed. The defendant knew that the plaintiff was undergoing treatment for her condition, as it was paying Dr Peppard for the administration by him of the Botox injections. However, the defendant did not address the critical issue relating to the role which the cutting, using the Stanley knife, played in the development of her condition. Dr Sleigh, in his evidence, explained that, to undertake that task, it was necessary for the plaintiff to hold the knife with a full and firm grip. As a consequence, when the plaintiff cut with the knife, she had a forceful contraction of the flexor muscles of the forearm on a repetitive basis. It was for that reason that Dr Sleigh considered that the duties, in using the Stanley knife, contributed to the plaintiff’s condition.

Mr Richards acknowledged that, at the commencement of the relevant period, the plaintiff’s particular problem was handwriting. However, he pointed to the plaintiff’s evidence that, during that period, her condition progressed, so that the tasks, which she was performing, became more and more difficult. He reiterated that the defendant failed to take any step to address that problem, other than providing the stamps to the plaintiff in September 2004.

Mr Richards relied on the evidence of Mr Hennessy as indicating some of the steps, which the defendant ought reasonably to have undertaken to address the plaintiff’s problem as it developed. He submitted that the failure of the defendant, to take any appropriate steps, constituted a breach by it of its duty of care to the plaintiff.

In addition, Mr Richards relied on the regulations, to which I have earlier referred. As I have already stated, Mr Richards submitted that the work performed by the plaintiff was manual handling. He further submitted that the work involved “hazardous manual handling” under Regulation 13(2)(a). Thus, he submitted the defendant failed to undertake a risk assessment of those tasks, as required by Regulation 14. In addition, the defendant failed to comply with Regulation 15(1), in that it failed to ensure that the risks of musculoskeletal disorder to the plaintiff, arising from her work, be eliminated, or, at least, reduced as far as practicable.

Analysis

In determining whether the plaintiff has established that the defendant was liable to her for her injury, it is convenient, first, to address the claim made by the plaintiff based on a breach by the defendant of its duty of care to her.

The principles relating to the duty of care owed by the defendant, as the plaintiff’s employer, are well established and do not need any elaboration. In short, the defendant, as the plaintiff’s employer, owed her a duty to take reasonable care to avoid exposing the plaintiff to reasonably foreseeable risks of injury.[2] In addressing the issue whether the defendant had breached that duty of care to the plaintiff, the first question is whether a reasonable person, in the defendant’s position, would have foreseen that the work, performed by the plaintiff, involved a risk of injury to her. If it did, then the second question, which I must determine, is whether the defendant took reasonable steps, in the circumstances, to avoid exposing the plaintiff to such a reasonably foreseeable risk of injury.[3]
[2]Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, 25 (Dixon CJ, Kitto J).
[3]Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-48 (Mason J); Abalos v Australian Postal Commission (1990) 171 CLR 167, 180.

Mr Richards opened the case to the jury on the basis that, from the outset, the plaintiff’s work, as the defendant’s finance librarian, constituted a reasonably foreseeable risk of injury to her, because of the repetitive, forceful nature of the tasks, which she was required to perform with her hand. However, in final address, Mr Richards only made a passing reference to that aspect of the plaintiff’s claim. Based on the evidence which was adduced in the trial, it is understandable that Mr Richards took that approach in his final address.

The task, which the plaintiff was required to perform, in cutting newspaper clippings from the daily newspapers, was a task which had been performed by a number of different employees of the defendant, in the general library and in the finance library, for a significant number of years. The uncontradicted evidence was that those employees had performed that task without incurring any injury of the kind suffered by the plaintiff. Further, it was common ground that the plaintiff’s primary condition, dystonia, is a particularly rare condition. The plaintiff herself was unaware that she had an underlying susceptibility to that condition before she commenced her role as the defendant’s finance librarian. Further, the tasks performed by the plaintiff, and helpfully demonstrated by Ms Mason in the course of her evidence, would not, in my view, be reasonably expected to pose a risk of injury to a person, who did not suffer from any such underlying condition.

The only evidence adduced by the plaintiff, in relation to this aspect of the case, was that of Mr Hennessy. Mr Hennessy’s starting position was that, from the outset, the plaintiff’s work, and particularly the tasks which involved cutting, pasting and filing the clippings, constituted a risk to her, because of the repeated and forceful movements, which she was required to undertake in carrying out that work. However, in cross-examination, Mr Hennessy significantly retreated from that position. In particular, he accepted that, if he had observed the plaintiff performing the handwriting and cutting tasks, before the plaintiff was injured, and before the plaintiff made any complaint of experiencing difficulty in performing those tasks, he would not have assessed them as constituting any particular risk to the plaintiff.

In those circumstances, I am not persuaded that, before the plaintiff reported the difficulties with her right hand in late 2003, the defendant ought to have reasonably foreseen that there was a risk of injury to the plaintiff, arising from the tasks performed by her in cutting, pasting and filing the newspaper clippings. Thus, I would not accept the plaintiff’s claim, for negligence, up to the stage at which the plaintiff reported her injury to the defendant.

The more difficult question is whether the report, which the plaintiff made of her injury to the defendant, had the effect that the defendant was thereby on notice that the work performed by the plaintiff constituted a reasonable risk of injury to her, and whether, in the circumstances, the defendant took reasonable care to avoid exposing the plaintiff to that risk. That question is not one which admits of a simple answer. Indeed, it is understandable that, ultimately, the jury was unable to achieve agreement (even by a majority) in relation to that question. However, it now falls to me to determine that issue.

It is clear that, by March 2004, the defendant was aware that the plaintiff was suffering from the same condition of dystonia, which affected her right hand. In addition, the defendant was specifically informed, at least by the plaintiff’s claim form, that the work, which she performed in cutting, pasting and filing the newspaper clippings, had been identified as the cause of the activation of her condition. It was, therefore, at that stage, reasonably foreseeable by the defendant that the work, which the plaintiff was performing, was putting her at risk of suffering injury.

The duty of care, which the law imposes on the defendant, required it to take reasonable steps to address that foreseeable risk of injury, and to thereby prevent further injury to the plaintiff, as a result of the activities which had triggered her condition. This is not a case in which the defendant did nothing to address that risk. It did supply the plaintiff with stamps, which substantially reduced the amount of handwriting, that she was required to perform in her employment. In addition, the defendant made available to the plaintiff the services of Dr Knight, an experienced occupational physician, who attended to her condition, and referred her for specialist treatment. The critical question is whether, by those two steps, the defendant complied with its obligation to take reasonable care to protect the plaintiff from the reasonably foreseeable risk of injury, which had been brought to its attention.

In addressing that question, I am conscious that the law does not impose a standard of perfection on the employer. Further, it is important that I ensure that I do not resolve the issue with the benefit of the wisdom of hindsight. On the other hand, the standard of care expected of the reasonably prudent employer is by no means a low standard.[4] The verdicts of juries in this State have, for decades, consistently reflected the expectation by the law, and the community, that employers observe a standard of care which is commensurate with, and which reflects, the important responsibility of employers for work place safety, and which responds to the particular reliance, which the employee places on the employer for the provision of safe working conditions, including a safe system of work, safe and adequate plant and equipment, a safe place of work, and competent and appropriate fellow employees. It is for that reason that the duty of care, imposed by the law on the employer, is considered to be a non-delegable duty.[5] The nature of the standard of care, imposed on the employer, is reflected by the principle that the employer’s duty extends to taking reasonable care to guard an employee against a reasonably foreseeable risk that the employee might act negligently, carelessly or inadvertently.[6]
[4]O’Connor v Commissioner for Government Transport (1954) 100 CLR 225, 230 (Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ); Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, 308 (Mason, Wilson, Dawson JJ); Liftronic Pty Ltd v Unver (2001) 179 ALR 321, 343 [85] (Kirby J, dissenting).
[5]Kondis v State Transport Authority (1984) 154 CLR 672, 687-8 (Mason J).
[6]McLean v Tedman (1984) 155 CLR 306, 311-313 (Mason, Wilson, Brennan, Dawson JJ); Bankstown Foundry Pty Ltd v Braistina (above), 308 to 9 (Mason, Wilson, Dawson JJ); Bus v Sydney City Council (1989) 167 CLR 78, 90 (Mason CJ, Deane, Dawson, Toohey JJ); Czatyrko v Edith Cowan University (2005) 214 ALR 349, 353 [12].

The defendant, by providing the stamp to the plaintiff, addressed the difficulty, which had been identified by the plaintiff, in performing her work, as a result of her condition of dystonia. However, by doing so, the defendant did not take any steps to address the specific factors, which had been expressly nominated by the plaintiff, in her claim form, as the causes of her injury, namely the cutting, pasting and filing of the newspaper articles.

It is true that, in the twelve months following the submission by the plaintiff of her claim form, the main, if not sole, difficulty, which she was experiencing from her problem, was with handwriting. In February 2005, she told Dr Peppard, and confirmed to Mr Stanley in cross-examination, that that was the only problem, which she was then experiencing, and that it was being sufficiently addressed by the Botox injections. However, the plaintiff, in her evidence, also stated that the symptoms, arising from her condition, progressed over the period between 2004 and 2008. She was unable to provide a specific time line as to how her various symptoms developed and progressed. In her evidence in chief, she was asked about how her symptoms progressed relating to her use of the Stanley knife. She responded:

“… it was a progressive thing. I didn’t have too much trouble initially with that (using the Stanley knife). It was only over the period of time and over the course of the years that these things became more and more difficult for me to do. Initially it wasn’t too bad, it was the handwriting that I had the most trouble with.”

In answer to the next question, as to what happened to her symptoms relating to the use of the Stanley knife, she responded:

“Pain, cramping and these just became more frequent, the pain became stronger and it was – because it was such a slow progression I can’t say exactly when something happened but these tasks became more and more difficult as the years went by.”

In the meantime, the plaintiff was continuing to receive Botox injections from Dr Peppard, and the defendant was paying for those injections. Thus, the defendant was on notice that the plaintiff was, during the whole of the relevant period, receiving medical treatment, in the form of injections, to alleviate the symptoms relating to her condition. As I have set out earlier in this judgment, the plaintiff stated that, between 2006 and 2008, her supervisor was the editor of the business section of the Herald & Weekly Times, Mr Malcolm Schmidke. She regularly told Mr Schmidke about the difficulties, which she was having with her job. Mr Schmidke could see the problems which she was having, and indeed he tried to come up with solutions for her. However, no change was made to her duties, until Dr Sleigh intervened in June 2008.

It is clear, from the evidence of Dr Sleigh, that the ongoing performance by the plaintiff, of the task of cutting paper with the Stanley knife, was implicated in the progression and aggravation of her injury. Dr Sleigh described how it was necessary to hold the Stanley knife quite firmly, in order to ensure that it did not slip out of the user’s hand. While a knife is held with such a full firm grip, the movements, required to cut with it, involve a forceful contraction of the flexor muscles of the forearm. It was for that reason that Dr Sleigh expressed the view that the use by the plaintiff of the Stanley knife contributed to her condition, and, in particular, to the severity of it.

The ordinary reasonable employer is not, of course, expected to have the degree of medical knowledge which Dr Sleigh had. However, the defendant was on notice that the plaintiff suffered dystonia. As I stated, the plaintiff had advised the defendant that the tasks of cutting, pasting and filing had caused the activation of her condition. It was on notice that her condition was deteriorating, and that she was receiving treatment for the symptoms of it. At the same time, the defendant did not, in any manner, address at all the fact that the plaintiff was required, on a repetitive basis, each day, to use the Stanley knife in the manner described by Dr Sleigh. Certainly, during the last two years, in which the plaintiff performed that task, her supervisor was well aware of the problems and difficulties she was experiencing. Yet, notwithstanding that knowledge, the defendant did not conduct any assessment, or inspection, of the work, which she was performing using the Stanley knife. She was not given any advice as to any different method by which she should carry out her work, and she was not advised to rotate her duties.

In my view, the ordinary reasonably prudent employer, in those circumstances, would have conducted such an assessment and inspection of the plaintiff’s work conditions, in early 2004, and in the years following, particularly in light of the fact that the plaintiff’s condition was quite unusual. The defendant did not conduct such an assessment or inspection of the plaintiff’s tasks of cutting the newspaper. In failing to do so, it fell short of the standard of the ordinary prudent employer.

If the defendant, during that period, had made an appropriate examination of the work being performed by the plaintiff, at the very least the defendant would have advised her not to continue to divide the newspapers in half by one firm cut down the middle of the papers. Further, the ordinary reasonable employer would have undertaken the type of ongoing inspection and monitoring role, which Mr Hennessy spoke about in his evidence. Such an employer would have regularly monitored the plaintiff, to see whether that modification to the plaintiff’s work produced any positive results. If – which was highly likely – that modification alone did not assist, a reasonably prudent employer would have substantially modified the tasks, which the plaintiff was required to perform with the knife, or eliminated that aspect of her work altogether.

The defendant had been alerted to the problem suffered by the plaintiff by her claim form, which had ascribed, as the cause of her difficulty, the cutting, pasting and filing tasks she performed. Further, as Mr Hennessy pointed out, since the late 1980s, there had been a significant body of material published to employers, warning them of the risks of injuries associated with the performance of repetitive frequent tasks using a particular limb. The defendant is a substantial organisation, and has been a long standing employer. It was thus aware, both in a general sense, and, more specifically, relating to the plaintiff, of the risks associated with the type of work which she was performing, and which were, in the plaintiff’s case, actually activating her injury.

Notwithstanding that knowledge, the defendant kept the plaintiff performing the same cutting, pasting and filing duties, without any modification to those duties. The failure by the defendant to properly monitor the plaintiff’s work, and to respond to her difficulties by eliminating or, at least, significantly modifying, those tasks, was, in my view, a breach by the defendant of its duty of care to the plaintiff.

As I stated at the outset of this part of the judgment, the issue which I need to resolve is not simple. However, for the reasons which I have just stated, I am satisfied that the defendant failed to discharge the duty of care which the law imposes on it, by failing to undertake the steps, to which I have referred to in paragraphs 96 to 100, to address the plaintiff’s problem, and which, I consider, a reasonably prudent employer would have undertaken.

Before considering the question of causation, I shall turn, albeit briefly, to the alternative claim made by the plaintiff, for breach of statutory duty. I shall deal with that aspect of the plaintiff’s claim shortly, because it was not suggested that the resolution of the issues of causation or damages would be different, if the case were determined in favour of the plaintiff on the basis of the claim for breach of statutory duty, rather than on the basis of the claim for breach of the employer’s duty of care.

The first question, concerning the application of the 1999 Regulations, and the 2007 Regulations, is whether the work performed by the plaintiff could be properly characterised as “manual handling”. In the 1999 Regulations, “manual handling” is defined to mean “… any activity requiring the use of force exerted by a person to lift, push, pull, carry or otherwise remove, hold or restrain any object”. The definition of that term in the 2007 Regulations is identical, save that, in those Regulations, the term also is defined to include the verb “lower”.

The activity, involving cutting the newspapers in half, clearly required the use of force to push or move the Stanley knife; in addition, the task of removing the files from the library shelf would have involved the use of force to lift, pull and carry those files. With some hesitation, I also consider that the task of cutting out the articles could be appropriately characterised as falling within the definition of “manual handling”. However, I do not regard that any of the tasks, performed by the plaintiff, could be properly capable of being characterised as “hazardous manual handling” within Regulation 13(2) of the 1999 Regulations, or to be within the equivalent definition of that term in clause 1.1.5 of the 2007 Regulations. Accordingly, I do not consider that Regulation 13(1) and Regulation 14(1) of the 1999 Regulations applied to the tasks performed by the plaintiff.

As I have already indicated, Regulation 15(1) is not restricted to tasks involving hazardous manual handling. It applies to any task involving manual handling. For the reasons, which I have given in relation to the claim based on the defendant’s duty of care, I am satisfied that, after March 2004, the defendant did not comply with regulation 15(1) of the 1999 Regulations, in that it failed to ensure that the risk of musculoskeletal injury to the plaintiff, of which it had been made aware, was eliminated, or, so far as was practical, reduced.

As I have already noted, the 1999 Regulations ceased to operate on 1 July 2007, when they were replaced by the 2007 Regulations. Those Regulations are different from the 1999 Regulations in two material respects. First, Regulation 3.1.3(1)(d) required the defendant to review and, if necessary, revise, any measures, which it had taken to control risks in relation to musculoskeletal disorders, if an occurrence of musculoskeletal disorder in the work place was reported by or on behalf of the employee. It is arguable whether that regulation applies to an injury, which had been reported before the commencement of the regulations. However, as the regulations are intended to protect workers from injuries, they are not to be given a narrow interpretation.[7] Thus, in my view, Regulation 3.1.3(1)(d) did apply to the report of injury made by the plaintiff in March 2004. Further, the defendant did not, at least until November 2007, undertake any review of the steps, which it had previously taken in relation to the plaintiff, namely, the provision to her of the stamps. The defendant did not sufficiently revise the measures previously undertaken by it – by eliminating the repetitive cutting tasks from the plaintiff’s work – until June 2008. In that way, the defendant breached Regulation 3.1.3(1(d) of the 2007 Regulations.
[7]Butler v Fife Coal Co [1912] AC 149, 178-9 (Lord Shaw); Bull v Attorney-General (NSW) (1913) 17 CLR 370, 384 (Isaacs J); Matthews v Foggitt Jones Pty Ltd (1926) 37 CLR 455; Kinghott v Goodyear Tyre & Rubber Co (1987) 8 NSWLR 703, 715 (Kirby P); R v ACR Roofing Pty Ltd (2004) 11 VR 187, 203 [43] (Nettle JA); [2004] VSCA 215.

The other difference in the 2007 Regulations is that Regulation 3.1.2(1), which was the equivalent of Regulation 15 of the 1999 Regulations, only applies to risks associated with a “hazardous manual handling task”. As I stated, I do not consider that the task, performed by the plaintiff, could be properly described as a “hazardous manual handling task”. Thus Regulation 3.1.2(1) of the 2007 Regulations did not apply to the work performed by the plaintiff.

Causation

I turn, then, to the issue of causation. I have already referred to the evidence of Dr Sleigh and Dr Roberts. In short, Dr Sleigh was unable to say whether, in his opinion, the plaintiff’s work with the defendant caused her underlying constitutional condition to become symptomatic. However, once her condition became symptomatic, her work with the defendant contributed to the development, and progression, of it. Dr Roberts, on the other hand, considered that it was very likely that the repetitive nature of the plaintiff’s work was both the trigger for the development of the condition, and that it also aggravated the condition substantially, and caused the progression of it. The other medical practitioner, called on behalf of the plaintiff, was Dr Narvani, the general practitioner who took over the plaintiff’s care in March 2010. Dr Narvani expressed the view that, because the plaintiff’s condition became symptomatic six months after she commenced work as a librarian, while doing cutting and pasting, he considered that her condition was significantly related to the performance by her of that work.

Based on that evidence, I am satisfied that the negligence, and breach of statutory duty, by the defendant, was a cause of the progression, and the deterioration, of the plaintiff’s condition after March 2004. Indeed, Mr Stanley did not contend to the contrary.

I have found that the defendant did not breach its duty of care to the plaintiff, or breach the 1999 Regulations, before March 2004. Thus, the defendant is liable for the injury caused to the plaintiff during the period from 2004 to 2008. Based on the evidence, to which I have referred, the work, which the plaintiff performed with the defendant, significantly aggravated her condition. The defendant is only liable in damages in respect of the extent to which the plaintiff’s injury was aggravated after March 2004. The legal onus of proof rests on the plaintiff to establish the extent to which the negligence of the defendant caused the aggravation of her injuries during that period.[8]
[8]Purkess v Crittenden (1965) 114 CLR 164, 168 (Barwick CJ, Kitto and Taylor JJ).

In final submissions before me, Mr Stanley submitted that the evidence is insufficient for me to assess the extent to which the plaintiff’s injury was aggravated by the work which she performed after 2004. I do not accept that submission.

As I stated, the plaintiff gave evidence, which I accept, that, between 2004 and 2008, her condition progressively deteriorated. Dr Sleigh and Dr Roberts both expressed the opinion that the work, which the plaintiff was performing with the defendant during that period, was responsible for the aggravation of her injury. In his evidence in chief, Dr Roberts was asked whether, at an early stage, when the plaintiff’s symptoms were related solely to her handwriting, the plaintiff had ceased to do the repetitive work, what would have been the likely outcome in relation to her condition. In response to that question, Dr Roberts stated that if the plaintiff had ceased to do that work, he would have anticipated a stabilisation of the condition, and perhaps some improvement might have occurred.

In March 2004, and indeed until at least early 2005, the main problem, affecting the plaintiff, consisted of the difficulty which she was experiencing in handwriting. Her injury, at that stage, was significantly less severe than it had become by June 2008, and than it is now. Dr Sleigh expressed the opinion that the work, which the plaintiff was required to undertake, using the Stanley knife, played a significant role in the development of her condition. As I have already concluded, in my view the defendant was negligent in not taking appropriate steps to address the risks of injury to the plaintiff arising out of her use of the Stanley knife. If the defendant had complied with the duty of care, which it owed to the plaintiff, I am satisfied that the problems affecting the plaintiff’s right hand, as a result of her dystonia, would have been largely confined to the difficulty, which she had been experiencing in writing with that hand. I am satisfied that the negligence of the defendant, which I have found, caused the progression of the plaintiff’s injury to its current serious state.

As I shall later indicate, in assessing damages, it is necessary that I take into account the fact that, before March 2004, the plaintiff had an underlying susceptibility to dystonia, which, by March 2004, had already become symptomatic. Therefore, in assessing damages, and particularly damages for future economic loss, it is necessary to take into account the possibility that, if the defendant had not acted in breach of its duty of care to the plaintiff, her condition might, nonetheless, have deteriorated, at least to some extent. That factor is relevant in determining the appropriate discount, which should be applied, particularly to damages for future economic loss.[9]
[9]Seltsam Pty Ltd v Ghaleb [2005] NSWSCA 208, [103] (Ipp JA); Clark v Tieman Industries Pty Ltd [2011] VSC 500, [139] (Kyrou J); Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, 642-3.

Damages

There was no dispute that the plaintiff has a significant injury to her right hand and arm, comprising a severe case of focal dystonia. The condition is permanent, and it is not susceptible to any cure. In addition, the plaintiff has suffered a psychological reaction as a result of her disabilities, consisting of an adjustment disorder with depression. She has been, and continues to be, treated with medication, which alleviates her depression and anxiety.

When the plaintiff accepted her redundancy package from the defendant in May 2009, she used it to establish a small giftware shop in Williamstown. She managed to cope with the work, albeit with some difficulty. However, the global economic downturn adversely affected her business. She sold her house, in order to fund the losses sustained by the shop. Ultimately, she had to sell the shop. She stated that she did so, because of the financial losses, which were being sustained by it. Her partner, Max Desmond, expressed the view that, even if the shop had been a financial success, the plaintiff would not have been able to continue in it for in the long term, because she was obviously experiencing substantial pain and discomfort in undertaking the tasks which she was required to perform in the shop.

There was little dispute at trial as to the mathematical calculation of the plaintiff’s pecuniary loss damages. The plaintiff called an actuary, Mr Heath, to assist with those calculations. The plaintiff’s claim for past economic loss is based on the wage, which the plaintiff would have earned, if she had continued in her employment with the defendant between May 2009 and the present date. From that amount, Mr Heath subtracted the plaintiff’s redundancy package, the proceeds of the sale of the business ($25,000), and the small amount of drawings, which the plaintiff took from the business ($400). That calculation resulted in the sum of $60,276 as the plaintiff’s past loss of earnings. To that amount should be added the sum of $15,908, consisting of the superannuation contributions, which would have been made by the plaintiff’s employer, if she had continued in employment during the period from May 2009 to the present date. Thus, the plaintiff’s past pecuniary loss damages would be calculated in the amount of $76,000.

There was evidence that the plaintiff’s position of the defendant was gradually becoming redundant. On the other hand, the plaintiff was keen to remain with the defendant, and she would have been prepared to work in another position. However, it is appropriate to factor in a small discount in relation to the plaintiff’s past pecuniary loss damages of 5 percent, for the possibility that the plaintiff might not, in any event, have maintained her employment with the defendant, during the whole of the period from May 2009. Thus, I would award past pecuniary loss damages in the sum of $72,000.

Mr Heath also calculated the plaintiff’s future pecuniary loss damages, on the assumption that the plaintiff would have remained in employment to the age of 65 years. Mr Heath made the calculation of the net present value of the plaintiff’s loss, using the prescribed 6 percent discount rate, and basing it on a weekly net wage of $825 per week, which was agreed to be the current wage which the plaintiff would have been earning, if she had remained in employment with the defendant to the present date. That formula produces a net present day value of the plaintiff’s future loss of earnings in the sum of $489,680. Mr Heath calculated that, if the plaintiff had continued in employment to the age of 65 years, the present day value of the superannuation contributions, which would have been made by her employer, would be the sum of $56,536. Thus the plaintiff’s future pecuniary loss damages would be calculated in the sum of $546,000.

Mr Richards, in his final address to the jury, realistically accepted that that sum should be discounted for future contingencies. He submitted that a discount of 15 percent should be applied for the normal vicissitudes of life, and that a further 25 percent discount should be applied, to take into account the prospects that the plaintiff might be able to work in the future in any event.

In my view, a discount of 40 percent, of the plaintiff’s future pecuniary loss damages, is reasonable. Based on the evidence, I do not consider that there is a significant prospect that the plaintiff will be able to obtain and retain gainful employment in the future for any substantial period of time. However, some allowance must be made for that factor. In addition, as I have already mentioned, allowance should be made for the fact that the plaintiff did have an underlying susceptibility to the development of dystonia, which had become symptomatic by March 2004. Indeed, Dr Sleigh was unable to conclude whether or not the first manifestation of the plaintiff’s symptoms, while she was working with the defendant, was coincidental, or whether it was triggered by her work. Thus, some weight would need to be given, in the discount, to that factor. I do consider that it is appropriate to calculate the plaintiff’s future pecuniary loss damages on the assumption that she would have worked to 65 years. The plaintiff had a good work record before she joined the defendant. She was a keen worker with the defendant, and she is an enterprising individual. She clearly likes to work, and the doctors, who treated her, stated that she was highly motivated to try to remain at work.

Thus, in my view, a discount of 40 percent, in respect of the plaintiff’s future pecuniary loss damages, is reasonable. Applying that discount, the plaintiff’s future pecuniary loss damages would be calculated in the sum of $327,600.

Accordingly, the plaintiff’s past and future pecuniary loss damages would amount to the sum of $400,000. Standing back, and viewing that figure as a whole, I consider that it would constitute fair and reasonable compensation for the plaintiff’s past and future pecuniary loss damages. The plaintiff has sustained a very significant disability to her capacity to earn income. Before she was injured, she had proved herself to be a productive and consistent worker. She had used her earning capacity gainfully. In my view, damages in the sum of $400,000 would constitute fair and reasonable compensation for that component of the plaintiff’s loss.

I turn, then, to an assessment of the plaintiff’s damages for pain and suffering and loss of enjoyment of life. The plaintiff, before she was injured, was an active and gregarious individual. She enjoyed working, particularly when she was employed with the defendant. Indeed, when her symptoms began to cause problems, she valiantly endeavoured to cope with them at work. As I have already remarked, the medical evidence indicates that the plaintiff remained highly motivated to remain with the defendant, and the plaintiff was very disappointed to have lost her position with the defendant. Before the plaintiff was injured, most of her recreational pursuits related to physical activities, consisting of gardening, restoring old furniture, painting her house, ten pin bowling, and the like. She is now severely restricted from pursuing any of those previous activities. She is restricted in her housework, and has had to adjust her day to day routine to enable her to cope with mundane daily functions, such as brushing her hair and getting dressed. Because of her inactivity, she has become bored and depressed. In addition, when she accompanies her partner Max on social outings, she finds that she is embarrassed by her tremor, and she tries to conceal it by avoiding eating food in public which requires her to use two hands.

In final address to the jury, Mr Richards submitted that the plaintiff should be awarded general damages in the sum of $200,000 to $220,000 for her pain and suffering. Taking into account the matters, to which I have referred, I consider that damages in the sum of $180,000 would be fair and reasonable compensation for the plaintiff’s pain and suffering.

Accordingly, I assess the damages to be awarded to the plaintiff, as a result of the defendant’s negligence, and breach of statutory duty, as follows:

(a)Pecuniary loss damages $400,000.
(b)Pain and suffering damages $180,000.

Conclusion

I summarise the conclusions which I have reached in this judgment as follows:

(1)The defendant breached its duty of care to the plaintiff, and breached Regulation 15(1) of the Occupational Health and Safety (Manual Handling) Regulations 1999, and Regulation 3.1.3(1)(d) of the Occupational Health and Safety Regulations 2007, in respect of the work performed by the plaintiff after she had reported the injury to the defendant in March 2004, until June 2008.
(2)The defendant’s negligence and breach of statutory duty caused the aggravation of the plaintiff’s condition of dystonia to her right hand, and the adjustment disorder with depression, which resulted from that injury.
(3)Accordingly, I am satisfied that there was negligence and breach of statutory duty by the defendant which caused injury, loss and damage to the plaintiff.
(4)I assess the plaintiff’s damages as follows:
(a) pecuniary loss damages in the sum of $400,000.
(b) pain and suffering damages in the sum of $180,000.

Finally, I note that it was agreed between counsel that no mention would be made, to the jury, of the receipt by the plaintiff of compensation under the Accident Compensation Act 1985. It was therefore agreed that, if a verdict (or a judgment) was returned in favour of the plaintiff, the amount, awarded to the plaintiff for pecuniary loss damages, would have added to it an agreed amount of “Fox v Wood”[10] damages.
[10](1981) 148 CLR 438.

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8 December 2011