JUDGMENT No. +10 7 8%... CATCHWORDS NEGLIGENCE - personal injury - no general principle. Brunskill v. Sovereign Marine & General Insurance Co. Ltd. (1985) 62 A.L.R. 53 Warren v. Coombes (1979) 142 C.L.R. 531 at pp.552-3 Wyong Shire Council v. Shirt (1980) 146 C.L.R. 401 Mount Isa Mines Ltd. v. Pusey (1971) 125 C.L.R. 383 Caltex O11 (Australia) Pty. Ltd. v. The Dredge "Willemstad" & Anor. (1975-76) 136 C.L.R. 529 at p.574 Jaensch v. Coffey (1984) 54 A.L.R. 417 Chapman v. Hearse and Another (1961) 106 C.L.R. 112 Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Pty. and Another (1967) 1 A.C. 617 Gronow v. Gronow (1979) 144 C.L.R. 513 Moran v. McMahon (1985) 3 N.S.W.L.R. 700 PHIPSON NOMINEES PTY. LIMITED v. MARGARET MUIR FRENCH ACT G45 of 1987 Coram: MORLING, PINCUS & MILES JJ. Canberra 19 July 1988 IN THE FEDERAL CGURT OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) ACT G45 of 1987 GENERAL DIVISION ) ON APPEAL PROM THE SUPREMC COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: PHIPSON NOMINEES PTY LIMITED Appellant AND: MARGARET MUIR FRENCH Respondent MINUTES OF ORDER CORAM; MORLING, FINCUS & MILES dd. DATE OF ORDER : 19 JULY 1988 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. the appeal be allowed; 2. the respondent pay the appellant's costs of and incidental to the appeal, to be taxed; 3. the judgment of the Honourable Mr Justice Davies be set aside; 4, the action be dismissed; >. the respondent pay the appellant's costs of and incidental to the action, to be taxed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTI:ALIA ) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) ACT G45 of 1987 GENERAL DIVISION ) ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: PHIPSON NOMINEES PTY LIMITED Appellant AND: MARGARET MUIR FRENCH Respondent CORAM: MORLING, PINCUS & MILES Ju. DALE: 19 JULY 1988 REASONS FOR JUDGMENT MCRLING & PINCUS JJ. This is an appeal against an award of damages in a sum of $96,530.60 for negligence causing repetitive strain injury. The plaintiff's case was that she sustained such an injury and that 1t was caused by her being caused or forced to work too hard as an employee of the service company of a firm of solicitors. Her work involved a great deal of word processing using electronic equipment and it was held, in effect, that she was required to work too long and too fast without adequate breaks. Much of what is to be found in the reasons of the learned primary judge is summarised in the reasons of Miles J., which we have had the advantage of reading. That makes ait unnecessary to reiterate the content of those reasons, although certain aspects of them are explained in detail below. The learned primary judge held that the appellant was guilty of negligence causino the injury mentioned. It has camplained in this appeal that the finding of negligence was unreasonable and that during the period when (according to the fandings made below) the appellant behaved negligently, it was not reasonably foreseearle thai the respondent would sustain such an injury as that of which she ultimately complained. It was also contended that 1f was not proved that the acts and omissions found t» have been negligent were capable of causing, or dic cause, the injury. The questions involved in the appeal apoear to be purely factual and it is necessary to keep in mind the weight of the burden on the appellant in di:slacing the conclusions reached below: Brunskill] v. Sovereign Marine & General Insurance Co, Ltd (1985) 62 A.L.R, 52. In this case, the appellant's task 1s not made any e@asicr by the circumstance that neither the accepted medical evidence nor the findings of the learned prinary judge made it clear precisely what was wrong with the respondent. The label "R.S.I." was applied to it, but that appears to cover a variety of ailments. WJ Whatever its nature, the disability was, on the tindings, a serious one, It caused the respondent to leave her employment with the appellant in February 1984. The learned primary judge founc that the appellant was thereafter unable to undertake any employment for a long time. fhe was restricted in doing ordinary housework, could not sew and would drop small items such as cups because of absence of grip. For the first six months (presumably, until August 1984) the pain was, in accordance with the respondent's description, "really intense wee alwost unbearable". It subsequently improved. She was, however, at the date of the trial, held to be still unable to carry out much of the housework an her home. Yis Horour was of the view that "indefinitely" she would continue tc be unable ta sew. She said that ii she used a keyboard for as little as five minutes her hand became claw-like, closed up and could not be straightened out. Most. importantly, his Honour held that: "The plaintiff ig not likely to recover het previous ability to work as a word processor operator or typist ..." which finding, read in its context, appears to be one of permanent incapacity to do that work. I{1s Honour also said that the plaintiff (now respondent) would continue to have a "great deal of pain and discomfort... perhans for the renainder of her life". As has been pointed out, ait is a curiosity of the case that these serious consequences have been ascribed to no precise cause, in a physical sense, although they were treated as being organically caused. Some attention must be directed to that topic, to enabie a conclusion to be reached as to whether the respondent can support the finding made that the particular condition was due to certain acts and omissions on the part of the appellant; ats counsel argued that there was no medical or other evidence on the basis of which it coujd reasonably be held that the condition was caused by such acts and omissions. The respondent saw a number of doctors for the purposes of examination. Their opinions as to the nature of her condition varied, and not only in the usual sense, that those called by one side failed to agree with those called by the other. Medical men who gave evidence on behalf of the respondent and who were accepted hy the learned primary judge were net agrecd as lo the cause of the respondent's problems. The learned primary judge accepted opinions expressed by Drs Brook and Mann ag giving a "patiornal explanation to a well-known and widespread complaint". His Honour aise described their view as being "generally accepted in the medical profession". Dr Brook saw the respondent in duly 1984, during the six month period referred to as heing that in which Lhe respondent's pain was intense to the point of being almost unbearable. The respondent told Dr Brook that in December 1983, there was a vaque onset of heavy discomfort acress the back of her neck and in her shoulders, with some altered sensation in the arms and pain in the wrists, fingers and right elhow. She complained of fainting attacks, nausea and a rash, but said that when she went away for Christmas holidays, the fainting and nausea settled down. On return to work, the pain and numbness' worsened. She had had anti-depressive drugs s-nce she stopped work, and unsuccessful treatment for her skin rash. The doctor examined her and formed the apinion that there was tenderness and some swelling in her hands and some tenderness in the arms and shoulders. Dr Brook thought the respendent was totally incapacilated for work of any kind, and attributed most cf her ailments to a condition he described as "repetition strain injury". He saw her again in 1986, when she said there had been very slow improvement, and complained of trouble with both left and right arms. He could then find nothing wrong with her Jeft arm, but did find some tenderness in the right. In his oral evidence, he said he did not know what was the cause of the revpondent's pain, that there was no demonstrable damage to nerves or tendons, ani that he did not prescribe any treatment. He acknowledged that there was a difference of medical Qpinioan as toa whether such conditions as that from which the respondent suffered were physical or psychological, but he favourec the former opinion. Dr Mann, the other medical witness accepted below, first saw the respondent shortly before Brook dad. He caulid find no welling, so that it appeared that the swelling Brook found = must have come about during the brief interval between the two examinations. Mann again saw the respondent about the same time as Brock did in 1986, and recorded no complaint at all about the left hand or arm, but some complaint about the right side. Mann found on examination that there was "still tenderness in the right extensor srigin and the grip with the right hand 1s quite poor". Mann thought that the respondent's condition was caused by a pericd of uninterrupted muscular contraction in the arms impairing blood fiow and causing the muscles to be under-supplied with nutriments. This view as to the nature of the respondent's problem was strongly criticized in the evidence and described as "bizarre" by senior counsel for the appellant. Whether or not 1t merited that description, it was not one which accorded with that of any other doctor called and Brook regarded it as unproven. Mann put the blame on the bodily position necessarily adopted at the keyboard by such persons as the respondent, which he described as the "praying mantis position". He said repetition was not the key tactor and mentioned that some employees who worked at a "trivial" rate had the same problem, The learned primary judge appears not to have been correct in speaking of the views of Erook and those of Mann as if they coincided and gave "a rationai explanation to a weli-known and widespread complaint". Brook did not claim tao know what caused the trouble, although he advanced hypotheses. Mann said it was caused by the adoption of a certain position, a view which, if accepted, made the respundent's principal complaint - that she was forced to work tor intensely - of little significance, if not Lotally irrelevant. It should be added that, insofar as his Honour described "the view" of Brook and Mann as being "generally accepted in the medical profession", he appears to have fallen into error. There 1s nothing to suggest that Mann's view was so accepted. Brook did not claim that he had a view as to the explanation ol the complaint which wa. generally accepted. What he said, in effect, on that subject was that there was no known pathology which could be called R.S.I., that theories could be put forward as to the cause of such conditions, but they were "teleological", a word the doctor seemed to use as equivalent to "speculative". His Honour rejected such explanations of the respondent's condition as were advanced by doctors called on behalf of the appellant. He did not suygaest, however, that their accounts of events at examinations conducted by them were untrue, and it 1s necessary to make some reference to that cubject. Dr McGonigul saw the respondent an June 1984 when she complained of (to put it summatily) trouble with her hands, arns, chest and shoulders He could fand nothing wrong with her cn examination except that she reported that sensation in the right arm was less than in the left and that she teported tenferness in the right arm and in each wrist. Dr Leng saw ier a little later, when = she complained of severe pain in the back, pain in the breastbone and in the wrist and fingers. He thought her symptoms "extraordinarily diffuse". Dr Sinclair saw the respondent in 1996, when she said that 1f she used her hands she qot a shooting cramp and her neck was sore to turn. She also complained of pins and needles and a swelling feeling in the fingers. He could find nothing wrong with her on examination except for tenderness in the spine, particularly marked in the cervical spine. De Sinclair discussed the matter with the respondent and says that she understood that there could not possibly be an injury which lasted for years without any signs. To the question: "What 1s the condition which has been found to have been caused by the appellant?" ait is not, in this case, satisfactory to answer "Whatever she is suffering from." The onus was upa:. the respondent to adduce evidence from which it might properly be held that the permanent incapacity for her former work was caused by some identified negligent acts or omissions. The respondent's complaints were remarkably variatle and by 1986 no examining doctor claimed to discover significant sians of any physical trouble which could account for them. That onus therefore appears tu have been difficult +o discharge in this case: as the evidence of Dr Mann illustrates, identification of a cause of the condition may exclude, or make very unlikely, the theory that some particular conduct on the part of the appellant wae to bliame. The respondent worked for the appellant from late 1°81 until February 1984. During that period she did a great deal of word processing work, bul had other duties. The primary judge thought that tne respondent was reguired to work too hard, and to perform too much overtime work, that being due to pressure from people who wanted work done and to lack of other competent staff. Towards the end of 1982, she showed sians of distress, according to the findings. At weekly meetings with representatives of her employer, she was often angry and appeared excited. She was thought to be ciose to tears at one such meeting in January 1994, and by ¢ February 1984, the respondent felt unable to carry on. Counsel for the appellant argued that, on the findings, the negligent conduct found to have caused the respondent's 'D condition began in November 1983, and not earlier. Although the precise date may be a matter of dispute, that 1s broadly correct. The primary judge appears to have taken the view that, for a number of reasons it 1S unnecessary to discuss, by November 1983 the appellant should have been aware of precautions needed to he taken to protect the respondent against the risk of contracting R.S.1. In our vespectful opinion, not all of the particular findings of negligence can be supported His Honour held that there was a failure on the part of the appellant to make enquiry of a Miss Schoer as to how 1t had come about that she had developed tenosynevitis. She was ancther employee of the appellant, who presented a medical certificate about the end of October 1983, asserting that she suffered fron tenosynovitis. There was no evidence, however, as ta what Miss Schoer's condition actually was, and no evidence that Lhe respondent had tenosynovitis. Dr Brook said he could not find evidence of it. Further than that, a3t would seem unlikely that Miss Schoer's opinion as to the cause of her complaint would have been of great assistance; one thing the evidence made cleur 15 that there 1S no conseusus, even amona the professed experts in the subject, as to what gives rise to such conditions. His Honour was of the view that the appellant was negligent in failing to direct such persons as the respondent "to report immediately any physical strain that they felt or to cease operating the word processors once they felt symptoms of strain". LO. Tt does not appear to have been established that such advice would have been beneficial. There was evidence to support the opinion that giving people cause to worry unduly about their physical condition can be harmful. Apart from that, the evidence disclosed that the respondent was a lady who complained vociferously about the working conditions; she twice, during the period when the appellant was found to have been negligent, resigned or threatened to resign on account of them. She kept on talking about R.S.I., until discouraged. We think the view that there was negligence on the part of the appellant in failing to attempt to elicit more complaints cannot, with respect, be supported. Then, it was held that the appellant placed toc much Fressure on the respondent toa produce work from her word peocessor. The evidence was that the office was very busy and the appellant had been unable to engage enough competent people to do ~he wor available without haste. The learned primary judge thought it negligent of the appellant not to reauce the respondent's workload. The respondent never complained to the appellant until February, 1984, of any physical disability. The pressure of work in legal and other offices varies greatly, as does the response of individuals to such pressure. Here was an employee who found the volume of work required of her much too great. She said other employment was available to her; in that, presumably, the work would have been less intense. The evidence was that she threatened resignation, but apparently preferred (despite her distress) to continue on with the appellant. She gave her employers the impression that she wished to cease altogether working a word processor. The primary judge criticised ll. the appellant for considering the dismissal cf the respondent, but it is difficult to understand how that could have been negligent; it was u solution to the problem, as, of course, was resignation. Whatever may be the position where an emrloyec 1s forced hy circumstances to vontinue an work which ais found to be too arduous, it surely cannot, in general, constitute neqiigence on the part of an employer merely to have a very busy office requiring considerable effort from the personnel to keep up with the work. The primary judge wa, of the view that the appellant should have made enquiries in November 1983 to determine what should be aone to reduce the ri:s of tenosynovitis. His Honour remarked. "Enquiry of enlightened scoliciters, such as Mrs turter, and of the Australian Public Service Acsaciation, which was actively concerned with the prohlem of tenosynovitis in the Australian Public fervice, would have given guidance." The basis of this view 1s that 1t was "known by Novemrer 1983 that matters such as pressure of work played a part". His Hoenour''s use of the word "known" 43s, in the light of the medical evidence, inappropriate. As we have observed, one of the two doctors whose explanation of the respondent's cond.tion was accepted thought it to be caused by adoption of a certain posture, and attributed no importance to the activity undertaken while in that posture. The other (Dr Brook) said that the respondent was not suffering from tenosynovitis and he did know what was the cause of the pain of which she complained. It was true that others held different views. For example, the Australian Public Service Association which, according to the findings, should have been consulted, issued material emphatically ascribing the problem to rapid repetitive work. There was no foundation, in our respectful opinion, for the view that 1t was negligent on the part of the appellant not to canvass inexpert opinions as to the cause of the "epidemic" of R.3.1I. whach, according to the evidence, had become manifest in the Australian Capital Territory, or that it would have been negligent of the appellant not to have acted upon = such Opinions. It would have been more reasonable to have consulted such a man as the wilness Graham, a doctor who had made a special study of the problem, and who gave evidence that he thought work rate had not been proved to be related to the incidence cof R.S.I. The problem had been extensively examined in some large scale surveys in which 1t was not found that limiting the pace of work had any effect on complaints of R.S.1. As 1s explained in the reasons of Miles JV., the respondent urged upon the primary judge the view that there was negligence on the part of the appellant ain failing to supply eurtable furniture and other equipment. That, which appears to have been the respondent's main case, failed, but the respondent succeeded below on the basis of a series of lesser matters. Not all of these have bi om dealt with above: for exumple, his Honour held that one of the partners in the firm of solicitors served by the appellant had not adopted an "open attitude to Miss Schoer's problems" and held that the partners failed to show compassion, It 1S unnecessary to discuss these more general findings in detail, as we have been unable to agree with certain principal conclusions reached by the primary judge on the issue of negligence. It remains to be considered whether the ultimate conclusion, namely that there was a relevant lack of reasonable care, can stand. S2nce we cannot concur in some important premises, it 1s proper that we should give effect to our' own conclusions. We think that what Gibbs A.C.d., Jacors and Murphy JJ. said in Warren v. Coombes (1979) 142 C.L.R. 531 at pp.552-3 as Particularly relevant 1n a case such as the present. Their Honours there said: "J., we can Fee no justification for holding that an appellate court, which, after having carefully consicered the judgment of the triat judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error whach has been demonstrated would seem to us a complete denial of the purpose of the uppellate process. The duty of the appellate court ais Lo decide Lhe case - the facts as well as the lav - for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But it the judges of appeal consider that in the circumstarces the trial judge was in na better position to decide tke particular question than they are themselves, or aif, after giving full weight to his decision, they consider that 1t was wrong, they must discharge their duty and give effect to their awn judgment. Further there is, in our opinion, no reafzun in logic or pulicy to regard the question whether the facts found do or da not give rise to the inference that a party was negligent as one which should be treated as peculiarly within the province of the trial judge. Qn the contrary we should have thought that the trial judge can enjoy no significant advantage in deciding such a question. The only arguments' that can be advanced in favour of the view that an appellate court should defer to the decision of the terial judge on such a question are that opinions on these matters very freguently differ, and that. it is in the public interest that there should be finality in litigation. The fact that judges differ often and markedly as to what would in 14. particular circumstances be expected of a reasonable man seems to us in itself to be a reason why no narrow view should be taken of the appellate function. The resolution of these questions by courts of appeal should lead ultimately not to uncertainty but to consistency and predictability, besides being more likely to result an the attainment of justice in individual cases. The interest of the community in the speedy termination of litigation might, no doubt, be an argument in faveur of the complete abolition of appeals, although that would be far too high a price to pay merely for finality. However, if the law confers a right of appeal, the appeal should be a reality, not an illusion; if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct 1t." In uur respectful opinion, once the question of furniture and fittings is left out of account, nothing of sonsequence was proved aguinst the appellant other thar. that ait worked its employees a four day rather than five day week, that there was a great deal of work to do and difficulty in attracting competent staff, and that, although 1t ordered the taking of rest breaks, that requirement was not rigorousiy enforced. Had the appellant been of the view, even absent the slightest complaint of a physical difficulty from the respondent, that her word processing work exposed her ta a risk of permanent injury, no doubt it should have stopped her doing that work, wholly or partly. But we cannot accept that the appellant was obligeu to ascertain and act upon the alarmist views about f.5.I. repre ented by some of the puhlications tendered below. As the primary judge recognised, those views are, and were in 1983, inconsistent with much competent opinion. We do not agree with his Honour's conclusion that from November to the end of the respondent's service the appellant's conduct, considered as a whole, was negligent. It as further submitted on behalf of the appellant that 1t should not have been held that the injuries (1f that is the right description) were, or could have been, caused hy the negligent acts and omissicns found. There was no direct evidence that working in a busy office somewhat harder than usual for a few months would be likely to cause such a drastic consequence as his Honour held to ensue, namely permanent incapacity. In some an.tances, a plaintiff may succeed in obtaining a finding of causal connection between conditions at work and a medical proplem without expert evidence attributing the problem to those conditions. Here, however, 1t would be somewhat surprising, looking at the matter broadly, tc find that such a period of excessive work interrupted by two or three-day weekend breaks, as well as a twa week Christmas breal., would render an ctherwise healthy and active young woman incapable of performing such work agian. Dr Mann said it was during the Christmas holidays that the respondent first noticed pain in her arms, and the evidence was that she engaged in much strenuous activity outside her work. Counsel for the appellant emphasised the ditficulty created for the respondent by the brevity of the period in relation to which the appellant was held to have behaved culpably. Of the accepted doctors, Brook said nothing to support the notion that 1t was the excessive work done in that short period wnich made the difference, and Man's evidence was epposed to the theory that the intensity of the work was causative In those circumstances, the respondent's problem 1s. not solved by pointing to the absence of any evidence or finding that 16. the condition was due to circumstances external to work. The onus was on the respondent to show that the negligent acts and omissions found caused her condition. In our apinion, she failed ta do so. The conclusion that the case was not proven may be thought unsatisfactory; the mand tends to require a definite answer to the question: what caused the various symptoms of which the respondent complained? Simply t> say that it was not shown that the appellant caused them leaves that question unanswered. Theories as ta possible contributing causes are suggested by perusal of the evidence. For example, the respondent said she was told hy a so-called "suppurt group" that if she did not present tc ner employer a certificate saying that she had ""tendosynovitis" Csicld she would be crippled for life; she must have been upset by that. Again, the respondent said there was an R.S.I epidemic, which seemed to be passing by word of mouth, that everyone was getting it suddenly and that "nobody had got R.S.T. for years ane suddenly everybody had it". Confirming, to some extent. the respondent's impression, there was other evidence that complaints of R.S.I. appear to be particularly prevalent in Canherra. For all one knows, the real truth may be that the respondent's condition is Jargely psychogenic. It is unnecessary to speculate about that, since the case which the appellant had to meet = and which was found against it was that the disability was real and organic. Since there was no evidence that the respondent suffered from such a condition as Mann and Brook found at the beginning of the period during which the appellant was held to be negligent, no question of aggravation of a pre-existing condition arises. What 17. the respondent had tu do was adduce evidence to support the rather imp: obablie conelusion that a permanently disabling condition with widely vacying symptoms was cauted by about two-and a-half months over-activity in word processing. Tt as necessary to make two further peints. One is that much of the oral argument presented to us related ta the question whether such an outcome as that of which the respondent complained was a reasonably foreseeable consequence or the appellant's action or anaction It is unnecessary toa reach a&@ conclusion on that point. The second is that these reasons do net express or imply any general conclusion as to whether, ana if sv to what extent, weoikaing very hard and for long hours at word processing or sSiiiliar work can cause sort tissue or oather injury. To resolve the problems im the appeal, 1t 1s necessary only to have regard to the svidence advanced and the findings made ain the dlitigation ain question. Other plaintiffs might adduce evidence from whi-h it could properly be inferrei that permanent injury nas been caused by word processing work. The appeal should be allowed with costs. The judgment of the learned primary judge should be set aside andin jlieu thereot it shculd be ordered that the action be dismissed with costs. fi certify that this and the preceding /™@ pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Morling and the Honourable Mr Justice Pincus Anat Mrecty, Associate Date: }4 | &N Ww a . Counsel for the appellant: Solicitors for the appellant: Counsel for the respondent: Solicitors for the respondent: Dates of Hearing: Mr J.L. Sher Q.C. and Mr J.A Riordan Sly & Russell Mr. P.L. She1ls Q.C. and Mr. h.d. Marshall Pamela Coward & Associates 16 & 17 March 1988 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY ) ) ) ) No. ACT G45 of 1987 DISTRICT REGISTRY ) ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: PHIPSON NOMINEES PTY. LIMITED Appellant AND: MARGARET MUIR FRENCH Respondent CORAM: Morling, Pincus and Miles JJ DATE: 19 July 1988 REASONS FOR JUDGMENT MILES J. This 1S an appeal by an employer aqainst a finding of negligence in the Supreme Court of the Australian Capital Territory (Davies J.) in an action for damages for personal injury brought by an employee, the respondent to the appeal. His Honour referred to the respondent and the appellant as the plaintiff and the defendant (or Phipson's) respectively. I shall adopt that course for convenience. The plaintiff was employed in the word-processing section of Phipson's. She claimed that she had by reason of negligence of the defendant sustained an incapacitating and -~2- painful condition which was referred to in the case as RSI or repetitive strain injury. Phipson's was the service company which administered the practice of a firm of Canberra solicitors, Messrs MacPhillamy Cummins and Gibson. The plaintiff commenced employment with Phipson's as a word-processor operator in November 1981. In July 1982 she was promoted to the position of supervisor of the word-processor unit. At that stage there were four full-time operators and a part-time operator to operate the four Wanq word-processing machines. There was some turnover in the word-processing staff and the plaintiff was at all times required to operate the word-processor machines in addition to carrying out her duties as supervisor. From the time of the plaintiff's appointment as supervisor, a word-processing committee met weekly. Initially 1t consisted of one or more partners as well as the plaintiff. One of the partners had overall responsibility for the work of the unit. On 4 July 1983 Phipson's appointed an office manager, a Mr. Josephs. He became a member of the word-processing committee. By November 1983 Mr. Josephs had assumed responsibility for overseeing the word-processing unit. From the time of her appointment as supervisor the plaintiff complained to the partners and to Mr. Josephs about a number of matters relating to the working of the unit. She complained about the amount of work that had to be done, about the way in which it was delivered and about the adequacy of the staff and the equipment. Her complaints about the office -3- furniture related mainly to its effect upon the efficiency of the word-processing unit. Until October 1983 there were no complaints that the workload or the equipment or the furniture caused symptoms of pain or discomfort to any of the operators. In particular the plaintiff did not complain of any physical symptoms experienced by her until she went off work on 9 February 1984. Before October 1983, whether in response to the Plaintiff's complaints or otherwise, Mr. Josephs started to qive consideration to renewing some of the office furniture, in particular the chairs. At about the same time, and by about September 1983, the plaintiff began to feel pains in her arms, shoulders and neck. Because of the workload and the lack of a sufficient number of operators, or sufficiently competent operators, the plaintiff spent substantial periods of time at the keyboard instead of restricting herself to supervisory duties. The duties that she carried out were in this respect in contrast to the duties that were formally allocated to her by way of a statement of duties which was in evidence and which restricted her role to a supervisory one. In about mid-October the plaintiff complained to Mr. Josephs that the excessive workload was putting strain upon her and that she felt that she was unable to cope with it. She threatened to resign. She suggested that the hours of work should be altered so that instead of working from 8 a.m. to 5.15 p.m. with half an hour's break for lunch four days a week, the word-processor operators should work shorter working days -4- spread over five days a week. The proposal was unacceptable to the defendant, but an articled clerk was assiqned to assist the plaintiff by taking over some of the keyboard work. Meanwhile, in July or Auqust 1983 one of the word-processor operators, Ms. Jennifer Schoer, had beqan to notice tiredness and aching in her arms and fingers which occurred with increasing frequency as pressure of work mounted. She did not make this known to the defendant. On 26 October 1983 Ms. Schoer ceased work because of these symptoms. On the following day she presented to the defendant a medical certificate from Dr Henry Berenson. It stated that she was suffering from mild tenosynovitis in both hands. It recommended that she be given no typing for four weeks and thereafter be placed upon "qraded activities", The presentation of the certificate by Ms. Schoer was an event of considerable significance in the case. Before dealing with the events after 27 October 1983, 1t 1s desirable to say something about tenosynovitis and about repetitive strain injury or RSI. There waS a great deal of evidence both written and oral on this subject Matter. The evidence given by some of the doctors on behalf of the defendant to the effect that RSI does not exist was rejected by his Honour. There was abundant evidence which enabled his Honour to take that view, particularly from Dr Arnold Mann and Dr A. Brooke, who gave evidence on behalf of the plaintiff, and from Dr Geoffrey Graham, who aqave evidence on behalf of the defendant. Their views did not exactly coincide either as to the nature or as to the -5- aetiology of the condition. However, there was sufficient common qround, 1n my view, to make it unnecessary to reconcile their differences or to choose between them. In summary, the view of the plaintiff's doctors was that RSI 1s associated with frequent and repetitive small movements, particularly of the wrists and fingers. Dr Graham's view was that RSI 1s more closely associated with psychological factors such as job dissatisfaction. Tenosynovitis, properly so called, is only one example of RSI, but one which 1s frequently encountered. It involves inflammation of a tendon sheath or tendon sheaths within the wrist. In the more severe cases of tenosynovitis the condition 1s clinically observable by crepitus on movement of the wrist. However, 1n many cases of tenosynovitis, and in many cases of other types of RSI, there are no features observable upon clinical examination and the diagnosis 1s dependent upon history and symptoms. The Approved Occupational Health Guide on Repetition Strain Injuries adopted in June 1982 by the National Health and Medical Research Council was referred to by his Honour in his reasons for judgment as an authoritative source on RSI. In the introduction to the Guide 1t 1s stated that "because repetition strain injury is commonly associated with manual activity, this Guide 1s concerned with such injuries affecting the upper limbs." Tenosynovitis and an associated condition known as peritendinitis are defined as follows: "Strain injury of a tendon or group of tendons about the wrist causes inflammation of the tendon sheath (tenosynovitis) or inflammation of the muscle-tendon junction above the sheath (peritendinitis). These conditions comprise the Majority of cases of repetition strain injury Ln -6- the reqion of the wrist joint and most commonly affect the muscle-tendon complex which abducts the thumb away from the hand. There 1S pain over the muscle-tendon structure on the back of the wrist and forearm, which is aqqravated by movement of the thumb. In the more severe cases there 1S swelling and tenderness, and a creaking or crunching sensation can be felt in the affected area on movement of the thumb." In relation to "non-specific repetition muscle strain" the Guide states as follows: "Muscle fatique 1S a precursor of muscle strain. The first signs are a feeling of tiredness and possibly weakness and stiffness. Movements are slower and less well co-ordinated. With rest, the symptoms qradually disappear. With repeated load and inadequate rest, the symptoms increase and pain, tenderness, swelling and restriction of movement become more obvious (non-specific repetition muscle strain). The neck and forearm muscles are most commonly affected but' the symptoms may occur diffusely throughout the upper limb." In its recommendations for prevention of repetition strain injuries the Guide recommends that "design (of workers' tasks) should seek to include a variety of movements and postures in each task to rest muscle groups, longer cycle time and a mixture of gross and fine movements of the hand, arm and shoulder." In addition to the medical evidence there was evidence from an occupational therapist, an occupational physiotherapist and a trade union industrial officer as to the state of knowledge of RSI and methods for its prevention prior to the end of 1983. The evidence established that tenosynovitis and RSI have been tlonq known to those interested in occupational health. However, until the -7-~- widespread use of word-processors the condition was generally thought to be confined to the factory. It was thought to occur only rarely amongst office workers. It was the increase in use of word-processors in offices in Australia and the consequent increase of complaints consistent with RSI that led to the adoption of the National Health and Medical Research Council Guide in 1982. During 1982 and 1983 a gqrow1nq amount of literature became available in Australia on the incidence of RSI and measures to prevent its occurrence. At the same time, because of the difficulties experienced by word-processor operators, manufacturers of word-processors beqan to assemble the visual display unit separately from the keyboard so that each component could be placed in the position most comfortable for individual operators. Also at the same time so-called ergonomic furniture beqan to become available from office equipment and office furniture suppliers. This furniture also was adjustable to suit the comfort of individual operators. These matters were but dimly perceived and appreciated by the defendant prior to the day on which Ms. Schoer handed in her medical certificate. It 1S not contended on behalf of the plaintiff that there was any failure on the part of the defendant to take reasonable care for the plaintiff prior to that date. What was alleqed at the trial on her behalf and what 1s pressed on this appeal 1s that, after that date, and having become aware of the fact that Ms. Schoer had contracted RSI, the defendant should have ~B8- taken steps to avoid or at least minimise the risk of the Plaintiff similarly contracting RSI. At the trial it was alleqed on behalf of the plaintiff that the defendant was negligent in two respects, first, that 1t failed to provide ergonomic furniture and, secondly, that 1t failed to reduce the plaintiff's workload at the keyboard to the extent that the risk of RSI could have been avoided. As to the first, his Honour found that there was no lack of reasonable care in the steps taken by the defendant either before or after 27 October 1983 to provide suitable furniture and equipment. As to the second, his Honour found that the defendant failed to take reasonable steps after that date to ease the pressure of work upon the plaintiff and that that failure was a material cause of her injury. His Honour found that the plaintiff was under strain not only because of the operatinq pressure and the hours worked, but also because she felt that the time she had to spend at the keyboard prevented her carrying out satisfactorily her work as supervisor. His Honour found further that the suggestion by the plaintiff ain about November 1983 that reqular work breaks of ten minutes in each hour ought he taken hy the word-processor operators, including herself when she was working at the word-processor, was not heeded. Whilst there was some evidence that instructions were given to the plaintiff and to the other word-processor operators to take such breaks, his Honour found that the steps taken on behalf of the defendant to enforce the observance of work breaks were -9- inadequate. I think that his Honour was entitled to come to that conclusion, and indeed it has not been arqued on the appeal that we should hold otherwise. As soon as the plaintiff understood that Ms. Schoer had been incapacitated by RSI, the plaintiff went about informing herself about the nature and incidence of the condition. There was no shortage of such information in Canberra. The plaintiff obtained a number of pamphlets relating to the condition and in November in the company of Ms. Schoer, who was by then off work, presented them to the defendant. Over the course of the next few months she informed Mr. Josephs or one or more of the partners that other word-processor operators who were taking time off work or leaving the employ of the defendant were suffering from RSI. She warned, with some degree of accuracy in her prognostication, that unless the pressure of work upon her was relieved, she herself might well become a victim of the condition. The pressure of work did not grow less. The Plaintiff hoped that over the Christmas break she would experience some amelioration of her symptoms, but this did not occur. When exactly she returned to work after Christmas 1s unclear, but it may be expected to have been no later than the middle of January. Upon her return the pressure of work resumed at the same level. A minute of a meeting of the executive partners of the defendant of 17 January 1984 records the need "to redirect the emphasis in Margaret's activities towards supervision, although she will still be required to act as an operator from time to -10- time to overcome traffic peaks and meet urgent requirements". The minute qoes on to record that reqular in-house operator assistance would initially be provided and that "an February Marqaret will reassess requirements on the basis of a normal workload with two experienced part-time operators available". However, as his Honour found, no assistance was provided, either in-house or otherwise, which un fact reduced the amount of time the plaintiff had to spend at the keyboard. Her workload continued unabated. The week commencing 5 February was a particularly strenuous one, with the plaintiff working on the Sunday from 4.30 p.m. to 1.30 a.m. and recommencing on the Monday at 8 a.m. The pain in her arms was such that on that day she consulted her general medical practitioner, Dr Holt, with complaints of "pains and paraesthesia volar aspects of wrists, forearms with pain extending to arms and shoulders, developing over recent weeks." Dr Holt issued a certificate of unfitness due to "tendosynovitis (sic.), due to work on keyboard". On 10 February 1984 the plaintiff lodged a claim for worker's compensation in which she stated "injury occurred through continuous repetitious keyboard operating, for long periods of time, without a period of rest due to work pressure". After his careful review of the evidence and stating his findings of fact, of which the above 1S a summary, his Honour went on to state his conclusions on the issue of whether the defendant had failed to take reasonable care for the safety of the plaintiff. This 1s what his Honour said: "On these facts, I conclude that Phipson's did not take reasonable care for the safety of their employee, the plaintiff. It 1s clear from the -~11- evidence of Mrs. Tapsall, Mr. Tasker and Dr Graham that the combination of factors - inadequate furniture and equipment, long hours, pressure of work and conflict between' the partners and Mr. J on the one hand and the plaintiff on the other - did not provide a proper system of work so far as the plaintiff was concerned. There waS in place a system of work which could readily be changed but which, if not chanqed, had a tendency to lead to tenosynovitis or RSI, that 1S to say, a significant risk to the employee which was reasonably foreseeable. I am of the opinion that the partners and Mr. J were unduly concerned to obtain the greatest production output possible from the operators of the word-processing equipment and in doing so Placed the plaintiff under undue pressure both physical and mental. It is agreed by all witnesses that they understood that, during late 1983 and January 1984, the plaintiff showed inereasing siqns of distress and of emotional upset. At times she was in tears or close to tears. She complained consistently about undue pressure. Her complaints were not heeded. Rather, the view was taken that the plaintiff simply could not do the job and should he replaced. In my opinion, Phipson's had clear Siqns that pressure of work was affecting the plaintiff. They had knowledge that work under pressure could lead to injury to a word-processor operator. Their response, not to enquire as to the plaintiff's state of health nor to take steps to decrease her workload and the pressure on her, but to consider her dismissal, was 1n my opinion not a response which satisfied the duty of care enunciated by Wyong Shire Council v. Shirt, cited above. The case for the defendant seems to be based upon the proposition that the partners and Mr J acted as they thought best, having regard to their then state of knowledge. But whatever may have been the situation before Miss Schoer developed tenosynovitis, 1t was the duty of the partners and Mr. J, once alerted to the risk, to take adequate steps to ascertain what was qood practice. Mr. J turned his) attention to furniture and equipment. But 1t was not suffic- 1ent to do that for 1t was known by November 1983 that matters such as pressure of work played a part. The enquiry made by Mr J. of the Health Commission was not adequate. Enquiry of enlightened solicitors, such as Mrs. Burton, and of the Australian Public Service Association, which was actively concerned with the problem of tenosynovitis in the Australian Public Service, would have given quidance. Enquiries ought to have been made of Miss Schoer as to how she -12- thought 1t had come about that she had been disabled. Enquiries ouqht to have been made of the other operators as to whether they felt any symptoms of strain or pain. And, lastly, once one operator had left the firm with tenosynovitis, instructions ought to have been given that any other operator suffering like symptoms should report the symptoms to management. Such an approach would not have necessitated technical knowledge of tenosynovitis or RSI, which no doubt the partners and Mr J did not have, but simply a positive interest in the welfare of the employees." The citation for Shirt's case 1s (1980) 146 C.L.R. 401. The defendant raises three issues on the appeal. The first is that 1t was not reasonably foreseeable to the defendant that the plaintiff would suffer the type of injury that she did in fact suffer. The second 1s that the alleged breach did not cause the plaintiff's injury. The third is that the precise conduct on the part of the defendant which his Honour found to constitute neqligence did not involve a failure to take reasonable care. In relation to all three grounds the defendant relies upon the principle in Warren v. Coombes and Another (1979) 142 C.L.R. 531 that, apart from making primary findings of fact, the trial judge enjoyed no particular advantage over this Court and that this Court 1s aS well placed as the trial judge to arrive at 1tsS own conclusions in relation to all the issues. The first issue may be restated within the context of the facts. Was it reasonably foreseeable to a firm of solicitors in a similar position to that of the defendant to foresee that between the end of October 1983 and the beqinning of February 1984 the plaintiff would suffer from RSI? Counsel for Phipsons submitted to this Court that the -13- test was whether the plaintiff had shown that the defendant should reasonably have foreseen that "stress" could cause RSI in three months. It was submitted that the test should be limited to the foresight of the consequences of stress, because His Honour found that there was no failure to supply reasonably safe plant and equipment in the form of erqonomic furniture. Two points, I think, need to be made about this particular submission. On the one hand, as the extract from his Honour's judqment indicates, his Honour did not find that 1t was simply stress of an emotional or mental nature which was the key factor. His Honour referred in his Judgment on many occasions to "work pressure" and "pressure of work". I take his Honour to mean in context that these terms include both the physical workload (which may be measured objectively) and the plaintiff's perception of the pressure or stress which was placed upon her (which 1s a subjective phenomenon). On the other hand, it was not,1in my view, encumbent upon the plaintiff to prove that it was foreseeable that stress alone could "cause RSI in three months". What the plaintiff had to prove was that the defendant, aware aS 1t waS 1n a vaque sort of way of concern in the community that keyboard operators were at risk of being subjected to RSI, should have realised, once 1t became more precisely aware of the incidence of RSI amongst its own employees (initially Ms. Schoer and subsequently others), that 1f the plaintiff continued to work under the conditions about which she was so vehement in her complaints, then there was a real possibility that she too would fall a victim to RSI. -14- Proof of foreseeability 1s relevant both to the existence of a duty of care and to breach of the standard of care. There 1S no question that an employer owes a duty of care to an employee. The duty is to take reasonable care for the safety of the employee. The factual matrix in which allegations of breach of the duty of employers have been alleged commonly involves allegations about safety of the system of work, the plant and the premises or any one or more of the three, so that there 1S now recognised a principle that an employer 1S under a duty to provide a reasonably safe system of work, reasonably safe premises and reasonably safe plant and equipment. Nevertheless, the standard of care required to discharge the duty will vary from case to case and in every case the injured worker who alleges negligence on the part of the employer must succeed on the issue of foreseeability. When Shirt's case was in the New South Wales Court of Appeal (1978 1 NSWLR 631) Glass J.A. distinquished the factual considerations relevant to the breach question from the factual considerations relevant to the question of a duty of care. His Honour went on to say at p.639: "The conduct relevant to the breach inquiry 1s the foreseeability of harm resulting from the acts or omissions of the defendant, or its servants, proved to have occurred." Although the distinction has been held not to exist (eg. Mount Isa Mines Ltd. v. Pusey (1971) 125 C.L.R. 383 at pp.389, 397, 413, Caltex O11 (Australia) Pty. Ltd. v. The Dredge "Willemstad" & Anor. (1975-1976) 136 C.L.R. 529 at -15- p.574) it was recoqnized in Jaensch v. Coffey (1984) 54 A.L.R. 417. In any event, in my respectful opinion, the statement of Glass J.A. is of assistance in another way insofar as it defines the enquiry as to foreseeability on the question of breach as extending to those relevant acts and omissions of the defendant which have been "proved to have occurred" and does not confine the enquiry to those acts and omissions (1f any) which are held to constitute a want of reasonable care. This principle 1s, I think, consistent with other and allied principles which have been frequently enunciated on the question of foreseeability as it relates to breach of the duty of care. For instance, it 1s not necessary to show that the precise manner in which the plaintiff's injuries were sustained was reasonably foreseeable; it 1s sufficient 1f injury to a class of persons of which he 12s one might reasonably have been foreseen as a consequence: Chapman v. Hearse and Another (1961) 106 C.L.R. 112. In Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Pty. and Another (1967) 1 A.C. 617, Lord Reid at p.643 said that the test was whether the reasonable person would realise that "there was a real risk of the 011 on the water catching fire in_some way" (my emphasis). On this issue the defendant must be in a position to foresee the sort of injury that befell the plaintiff as possibly occurring by some act or omission on the part of the defendant. It 1s not necessary that in order to achieve that foresight the defendant contemplate the exact act or omission on the part of the defendant upon which the -16- Plaintiff may rely as constituting lack of reasonable care. It 1s sufficient that there be within the range of foreseeability some act or omission of the kind relied upon by the plaintiff. Hence the test of foreseeability 1s simply whether the defendant should have foreseen that the sort of act or omission on the part of the defendant on which the plaintiff relies would lead to a real possibility that the plaintiff would sustain the sort of damage which the plaintiff in fact sustained. Whether the act or omission is ultimately found to involve a want of reasonable care 1s another issue. In the present case 1t 1S too narrow a test of foreseeability simply to ask whether it was foreseeable on the part of the defendant that the plaintiff would suffer RSI between October and February because of stress. The proper question 1s whether it was foreseeable that there was a real possibility of her suffering that sort of harm by reason of that sort of system of work and that sort of plant and equipment which was provided by the defendant. The plant and equipment itself consisted of furniture which would give rise, 1n my view, to a real possibility of RSI on the part of an employee like the plaintiff subjected to a system of work. She was required to work long hours, many of them at the keyboard, without substantial breaks and in which she found herself increasingly frustrated and angry to the knowledge of the defendant. There can be little question, in my view, that soon after the end of October 1983 and before the beqinning of February 1984 the risk of -17- injury to the plaintiff was reasonably foreseeable by an employer in the position of the defendant. I pass on to the issue of whether the defendant's conduct constituted a failure to take reasonable care. I postpone discussion of the issue of causation. In order to evaluate the reasonableness or otherwise of the defendant's failure to take avoiding measures, it 1S necessary to take unto account amonast other things the magnitude of the risk of injury: Shirt's case. The magnitude 1S measured by assessing, first, the degree of the probability of the occurrence or incidence of the risk and, secondly, by assessing the possible seriousness of the consequences. In the light of the material that was made available through Ms. Schoer and the plaintiff after 27 October 1983, 1t should have been apparent to the defendant that the risks of the word-processor operators sustaining injury was high whilst the current furniture remained in use and whilst the operators continued to work lonq hours without takinq the breaks that should have been enforced. The consequences for the operators were obviously serious. Those who went off with complaints of RSI or RSI type symptoms appear never to have returned. The one exception was the articled clerk, Ms. Fierravanti, and she was permitted to return on condition that she did not resume duties as a word-processor operator. Replacement of the furniture clearly required expense and time but, as already indicated, his Honour found that the positive steps taken to replace the furniture -18- Meant that there was no lack of reasonable care in this particular regard. What becomes more pertinent 1S to evaluate the "expense difficulties and inconvenience" (in the terms of Shirt's case) of alternative alleviating measures which miqht have been implemented pending the replacement of the furniture. The measure that called for consideration most clearly was the insistent suggestion of the plaintiff herself that she should be relieved substantially of word-processor operating duties. His Honour found that the failure of the defendant to relieve the pressure of work on the plaintiff in this way amounted to lack of reasonable care. I find it aimpossible to conclude that his Honour was wrong in so finding. Although his Honour accepted the evidence that Phipson's had great difficulty in recruiting trained staff, that evidence did not disclose much in the way of efforts made to recruit staff. The defendant did not call any evidence as to the direct cost of engaging temporary word-processor operators through an employment agency nor as to the indirect cost or inconvenience to it of reducing the work output during such time as the plaintiff needed to be replaced on the word-processor. There was no evidence that the work required to be carried out by the plaintiff over the period from February to October was particularly urgent or important. His Honour made a specific finding that the defendant was "unduly concerned" to maximise production and that this Placed the plaintiff "under pressure both physical and mental". His Honour stated that a siqnificant aspect of the matter was that the partners and office manager did not show -19- compassion towards the operators in that no enquiry was made of Ms. Schoer as to how she had come about her condition of painful wrists and no enquiry was made of the other operators including the plaintiff whether they suffered Similar symptoms. The reference to compassion may be a little misleading. Lack of compassion does not necessarily amount to lack of reasonable care and the exercise of compassion does not necessarily exclude negligence. However, the view that the defendant lacked compassion may be regarded as a valid element in the process of legal reasoning which led his Honour to his ultimate conclusion, because 1f£ the defendant lacked compassion towards its employees then the inference might be more readily drawn that its conduct involved a lack of reasonable care. I do not think that the reference to lack of compassion displays error. Counsel for the defendant on the appeal laid emphasis on the failure of the plaintiff to make any mention of her aches and pains to the partners or the office manager (or indeed to her fellow employees) prior to qoingq off work on 7 February 1984, This 1S a matter which was given full consideration by the trial judge who concluded that the defendant discouraged the plaintiff from makinq-= such complaints and that the plaintiff had qood reason in her own mind at least for declining to make such complaints because she was reluctant to place her job in jeopardy. Be that as 1t may, the evidence of the plaintiff was that she told the partners that she was likely to be afflicted with RSI like -20- the other operators unless she was relieved of word- processor duties. His Honour, consistently with his other findings, must have accepted that evidence in which case I do not think that the plaintiff's fallure to make complaints of physical symptoms should be regarded as of qreat importance. It seems that Ms. Schoer had suddenly presented the defendant with her certificate of tenosynovitis without prior complaints of aches and pains. Other operators were going off work complaining of similar symptoms. When the plaintiff kept drawing these matters to the attention of the defendant, one of the partners warned her against behaving like a union representative. There 2S no qreat difficulty in concluding that, once the plaintiff made the dire prediction to the defendant that she too was a candidate for RSI, failing to enquire along the lines suqqested by the trial judge involved a lack of reasonable care. In this respect I do not think that the trial judqe's reasons for judqment should be read too literally for I doubt whether the plaintiff's condition resulted simply from a failure on the part of the defendant to enquire. What might have been expected on the part of the defendant if enquiries had been made, was that the work practices of Ms. Burton and the Leqal Aid Commission would have been adopted and the risk to the olaintiff minimised. It 1S appropriate now to discuss the evidence relating to alternative systems of work. The plaintiff called Ms. Pamela Burton, a _ solicitor in private practice in Canberra, and Mr. John Gralton, a solicitor practising with -21- the ACT Leqal Aid Commission. Each gave evidence of the recognition well before 1983 of the danger of RSI among word-processor operators in solicitors' offices and of the measures taken by late 1983 in their own offices of avoiding the risk of injury to their own employees. Essentially the measures taken were by way of providing ergonomic furniture but they extended to limiting the hours spent by the operators at the word-processor keyboard and to providing a variety of tasks to be performed by the operators in addition to keyboard activities. Ms. Burton installed word-processors as early as 1978 or 1979 and beqan installing ergonomic furniture by about 1980. By that time she had introduced and enforced a practice whereby the word-processor operators were limited to four to five hours a day on word-processing with no more than three hours at any one sitting. Ms. Burton conceded that between 1979 and 1983 an operator might have spent five to six hours at the keyboard on rare occasions when there was urgent work. Since about 1983 word-processor operators have been restricted to a total of three hours per day at the keyboard with a maximum of two hours in any one continuous session. That of course does not go to the reasonableness of the defendant's conduct as at late 1983 and early 1984 but it as relevant to the magnitude of the risk. Mr. Gralton became aware of tenosynovitis and RSI in about 1982 when keyboard operators in the Public Service consulted him in his capacity as a solicitor wanting advice ~22~ as to what to do about their aches and pains. By August 1983 he was quite concerned about the risk of word-processor operators in the legal aid commission contracting RSI. Mr. Gralton arranged for erdqonomic furniture to replace that which was tn use, although the new furniture does not appear to have arrived until some time in 1984. However, he also qave some evidence that the tasks of the persons operating the word-processors were varied so that they did not have to spend protracted periods at the keyboard. The evidence of Ms. Burton and Mr. Gralton was unchallenged. The defendant called no evidence to say that what those practitioners had done in relation to reducing the risk of RSI was uncommon or unique. The defendant called no evidence to the effect that what 1t had done was in accordance with the common practice amongst solicitors. There waS no evidence that there was any significant difference in the nature of the practice conducted by Ms. Burton or at the Leqal Aid Commission and that conducted by the defendant. Furthermore, the evidence of Ms. Burton and Mr. Gralton established that nobody at the Legal Aid Commission came down with RSI and that apart from one operator who had a short period away from work the same applied in Ms. Burton's office. His Honour was entitled to treat that evidence as eloquent of want of reasonable care on the part of the defendant and of the causative link between that negligence and the condition of RSI sustained by the plaintiff. -23- Moreover, it has to be remembered that the plaintiff does not have to prove causation in any scientific sense, and that she has to prove her case only on the balance of probabilities. Where the alleqed negligence of the defendant lies in an omission or failure to act, rather than in a positive act, proof of the causative link between omission and injury involves considerations similar to those going to prove that the suggested alleviating measures would have avoided, or at least minimised, the risk of injury. Once again, the submission on behalf of the defendant that the plaintiff had to prove that the defendant "caused RSI between October 1983 and February 1984" must be rejected as posing too narrow a test. The defendant had to accept the plaintiff as she was at the end of October 1983. Whether or not she was by then suffering from RSI, if her condition was aqqravated by the defendant's neqligent conduct thereafter, that is sufficient for the plaintiff's case on liability. On this issue it is irrelevant whether RSI was "caused" before or after 27 October 1983. By way of general submission it was arqued on behalf of the defendant that consistent with the decision in Warren v. Coombes this Court was 1n as qood a position as the trial judge to draw its own conclusions, assuming the facts to be as they were found by his Honour on the three issues raised on the = appeal, namely foreseeability, causation = and reasonableness or otherwise of the defendant's conduct. For the reasons already advanced I am prepared to say that I would find positively and independently for the plaintiff on —-24- the first two issues. However, I think that the ultimate question of whether the conduct of the defendant involved a want of reasonable care 1s in a different category. It must be accepted that 1f matters relating to the assessment of witnesses are of no significance then an appeal court must evaluate for itself the reasonableness or otherwise of the defendant's conduct and if necessary substitute 1ts own view on that issue for the opinion of the trial judge. The decision in Warren _v. Coombes makes 1t clear that although the question of whether qiven conduct 1s reasonable or unreasonable is a question of fact alone and one which involves a value jJudqment, it 1S to be contrasted with a discretionary judqment, where a court makes a decision as to what sort of relief is to be qranted upon facts as found, as for instance, in making a decision about who should have the custody of a child (Gronow v. Gronow (1979) 144 C.L.R. 513) or what damages ought be awarded for pain and suffering and loss of enjoyment of life (Moran v. McMahon (1985) 3 N.S.W.L.R. 700). But before the principle in Warren v. Coombes can be applied, the appeal court must decide for itself that the trial judge was in no better position than 1t. I am of the view that in the present case the trial judge had a distinct advantage over this Court. The trial was lengthy and wide-ranging questioning extended over many days. Not everything 1s clear from the transcript. For instance, 1t 1s not clear why his Honour preferred the evidence of the Plaintiff and her witnesses over that of the defendant's -25- witnesses, particularly where there was conflict over conversations had and observations made several years previously. There are some conflicts in the evidence which are not expressly resolved in his Honour's reasons' for judaqment. But the trial judge did not apply a wrong principle of law or maisapprehend the facts as_ found. Central to the case 1S an evaluation and assessment of statements and conduct on the part of the persons involved, in particular the complaints by the plaintiff relating to the working conditions and the response to those complaints by certain of the partners and the office manager of the defendant. The ultimate question of whether the conduct of the defendant was reasonable depends upon that evaluation. I am of the view that the trial judqe in seeing and hearing the witnesses waS in a superior position to make that evaluation and that his finding that the defendant was negligent should not be disturbed. I would dismiss the appeal with costs. nace rere nares 1, Tecerufy that this and the o Y Precudin.g pages are e tine coo. of the Reasons for Judame.t hereta of his Howour, the C hel Justice, Mr Justice J A Miles R. thle Associate Died /9. 7.79 ee | are eee FEDERAL COURT OF AUSTRALIA f wee Canblcead prsratce ROGISTRY No of Action ACT.CHS, of LIFT... TITLE OF ACTION Chipauer: . enmcnkta Abe dv. MéegeaceR. Meter. y web, Date(s) of hearing WAC YO. Mbeck. GE rato judgment delaverea./7: ACE Counsel and Solicitors for Counsel and Solicitors for Pa Naane Toate Team tame Tame Tae Me NB Mer OS iy ard UM A: seeae A. SAIGNC? 60 ee LOOT Tae ewww ee eee eee ees (Associate) Dates ALTE... (NOTE: To be despatched to Principal Registry, Sydney for on-forwarding to law publishers)