PETKOVSKA v AUSTRALIAN TELECOMMUNICATIONS COMMISSION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, MAHONEY and CLARKE JJA 22 June 1993, 1 July 1993 [1993] NSWCA 210 APPEAL from Common Law Division — Employee of defendant sues for failing to provide safe system of work — Appeal dismissed. RSI type injury — Plaintiff claimed work was of the nature which caused strain producing RSI — Evidence based on claim that work was done quickly and under pressure — Claim not established on evidence. Plaintiff claimed that workers apt to adopt bad posture causing strain — Evidence established that plaintiff did not adopt bad posture — Claim not established on evidence. Gleeson CJ I agree with the orders proposed by Mahoney AP and with his Honour's reasons for those orders. Mahoney JA In 1973 the plaintiff commenced employment with the defendant, Australian Telecommunications Commission. She worked with it until 2 October 1984 when she ceased employment. On 18 July 1986 she commenced proceedings against the defendant claiming damages from it. Her claim was, in substance, that the defendant had failed to institute and maintain a safe system of work during her employment and that by reason of that failure she had suffered injury: Statement of Claim CL4. The proceedings came before Bruce AJ. On 3 August 1990 his Honour dismissed the plaintiff's claim. She has appealed to this Court against his Honour's judgment. Upon the hearing of the appeal, Mr O'Connor QC, counsel for the plaintiff, by consent obtained an amendment of the grounds of the appeal. They are now limited to two contentions: that his Honour erred in finding that the plaintiff's injury was not foreseeable; and that he erred in finding that there was no evidence of facts that would have alerted the defendant to a risk of injury. In order to consider the submissions made for the plaintiff, it is necessary to refer to the general nature of the plaintiffs claim. Her condition was described, inter alia, as a condition of "RSI'. As pleaded, her claim was that she suffered pain across the shoulders extending down the arms to the forearm or hand. As the case was put before this Court it was that this condition had developed as the result of what she had done in the employment of the defendant. The negligence alleged against the defendant was, before this Court, put on two bases. First, it was contended that the nature of the work which she was required to do was such that she was apt to develop and did develop tension or pressure on, inter alia, her shoulder girdle and that the maintenance of this tension or pressure was apt to develop and did develop a condition causing pains of that kind. Second, it was contended that, in the work, she was likely or apt to adopt a bad posture and that, absent instructions or training by her employer to prevent this, she was apt to develop the tensions or pressure and accordingly the conditions to which I have 2 UNREPORTED JUDGMENTS referred. The negligence alleged involved that the defendant, in discharge of its duty to set up and maintain a safe system of work, ought to have foreseen that, from the nature of the work the plaintiff was required to do, she would develop the tension or pressure and so the condition referred to; and/or that it should have foreseen that she was likely or apt to adopt a bad posture in doing the work, with the consequences to which I have referred. It is upon these two matters that the plaintiff's case on appeal has been put. The proceeding before the trial judge was developed at what his Honour described as "extraordinary length". Evidence was called from those claiming skills in occupational health and procedures and from a large number of medical practitioners. Opinions were expressed as to the effects of repetitive process work and, as I infer from the evidence, of the likelihood of the development in some cases of repetitive strain injury or other medical conditions. It is proper to record that, as the present case has been conducted before this Court, this Court is not required to consider whether work of such a repetitive nature can or is apt to produce injury of this kind or whether a condition of the kind in question is a syndrome recognised or to be recognised by medical practitioners or adopted by the courts. The present case has assumed that an injury of the kind in question may develop from inadequate work practices in work of the present kind. The issue - and, I think, the only issue - in the present case has been whether the plaintiff established that she had a condition which had derived from her work practices and that the defendant had been negligent in permitting that to occur. In considering the issue so posed, the learned trial judge saw his duty to be to consider, first, whether such an injury was "foreseeable". His Honour held that, on the evidence before him, such an injury was not foreseeable. His Honour indicated that he had reservations as to whether the plaintiff had in fact suffered the injury in question by reason of the work which she had carried out. However, he found it unnecessary to arrive at a final conclusion in that regard. He dismissed the plaintiff's claim upon the basis that "there was no foreseeable risk of injury to the plaintiff and accordingly the plaintiff's claim fails at the threshold...". In my opinion, in the sense to which I shall refer, his Honour's conclusion was correct. The nature of an employer's duty to institute and maintain a safe system of work has been discussed in, eg, cases such as Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301. In a context such as the present, an employer is obliged to consider whether it is foreseeable that, if the system of work is followed, the employee is apt to be injured. It is not necessary in this case to formulate precisely the degree of likelihood of injury which the employer must foresee. Stated generally, the employer may adopt a system of work if it is not relevantly foreseeable that it will involve, in this sense, the risk of injury: cf Waugh v Kippen (1986) 160 CLR 156. The plaintiffs first contention was that the nature of the work which she was required to do was such that it was relevantly foreseeable that it would cause the injury which she claimed to have suffered and that it had in fact done so. This involved an examination of the nature of the work she was required to do and whether an appropriately prudent employer would foresee that such work was apt to result in such injury. Subject to one matter, the nature of the work was not, before this Court, relevantly in dispute. Mr O'Connor QC, for the plaintiff, accepted that it was accurately described in the report and the evidence of Dr Johnn Olsen, a consulting occupational physician and consulting engineer, who had given evidence on behalf of the defendant. Her duties involved the assembly of test URETKOVSKA v AUSTRALIAN TELECOMMUNICATIONS COMMISSION (Mahoney JA) 3 panel equipment. It was manual light assembly work involving hand tools as well as work with the fingers without tools. It consisted, inter alia, of running fine electrical wires along a peg board that served as a template. It involved the installation of components and the wiring of cable forms to connectors which were "predominantly soldered with only a few clipon connectors on each test desk". The components were installed with small screws with the use mainly of a manual screwdriver or a pneumatic screwdriver. The majority of the wiring was "by soldered connections rather than "crew connections". The wire was stripped to expose the wire on a tag by the use of long-nosed pliers. The pliers were used to "bend the wire protruding through a small hole to retain the wire in position. The soldering iron and solder is then placed over the wire causing the soldered connection to take place." Dr Olsen, in his report said: "Parallel plugs were assembled on a small wooden and aluminium jig. The attachment of small single wires was performed, the placement of the wires onto the plug pin contacts was generally by holding the wire in the left or non-dominant hand. Then using the terminating tweezers to bend the end of the exposed wire over the pin. Then the pushing tool was used to push down on the wire. The wire was thus contained in position on the pin. The flow of work was that the wires would be placed into position of all the pins of one block consisting of 20 pins in all. These would then be soldered in position with a soldering iron and a small plastic sleeve placed over 4 individual bundles of the wires. The other ends were then pushed onto the pin connectors of a second block and finally that block was soldered also. " Evidence was given by a supervisor of the plaintiff's work, Mr Hastings. His evidence to an extent conflicted with that of the plaintiff. His Honour accepted the evidence of Mr Hastings in preference to that of the plaintiff. Mr Hastings said, inter alia, two things: that there was no fixed or standard way in which the work was required to be done and that the plaintiff had a degree of choice as to the way in which she was to do the work; and that the work was not done under any requirement of speed or time such as would impose relevant pressure on the worker or what was being done. Dr Olsen, in making his "human factors engineering assessment" said: "The work performed was monotonous and repetitive. The work also was associated with prolonged static or fixed posture. The speed of movement however, was very slow. For this reason the work cannot be described as rapidly repetitive. The forces required for exertion was (sic) very low and indeed quite insignificant. The reaches were not excessive either in direction or height. The furniture supplied was generally appropriate and suitable. The hand tools in use were simply standard and indeed the forcefulness of the hand tool use was low and with a slow repetition rate or long cycle time." His opinion was that the plaintiff's claim is "untenable as the work was neither forceful nor rapidly repetitive enough to cause any injury let alone the extreme range of injuries claimed". He considered the foreseeability of the injury alleged and said: "On examining the work I can find no particular hazard associated with that work. For this reason one would not be able to predict or foresee that any injury or illness could occur. The work simply does not rate highly in terms of repetition rate and the level of forces exerted. There were some postural defects associated with working on the large rack but these in themselves in my opinion would not 4 UNREPORTED JUDGMENTS constitute a hazard of a proportion that would lead one to predict that any excess risk of injury existed. I do not consider that medical or engineering analysis of the work yields any predictable risk of injury or occupational illness." The plaintiff in this regard relied substantially upon the evidence of Dr IR Coyle, an occupational health and safety consultant. Dr Coyle made a detailed report in relation to the plaintiffs work. Both Dr Olsen and Dr Coyle gave evidence at the trial. The court is informed that at the trial the learned judge was given demonstrations of the use of the equipment and of the work the plaintiff was relevantly to do. His Honour concluded "quite clearly" from the demonstrations and the evidence that "there was no work which was even slightly strenuous involved in the work which the plaintiff carried out nor was the rate at which the work was carried out such that it was done with any haste or speed". His Honour accepted the views expressed by Dr Olsen and concluded that there was no foreseeable risk of injury to the plaintiff. His Honour concluded that Dr Coyle's opinion that the nature of the work was such that injury was foreseeable depended upon or was influenced by the claim made by the plaintiff that in doing the work she was required to work rapidly. She had given evidence to this effect at the trial. This had been denied by Mr Hastings and Mr Hastings' evidence was, as I have said, accepted by the judge. His Honour inferred that if the work was not done quickly or under the pressures suggested by the plaintiff and referred to in Dr Coyle's report, then Dr Coyle's opinion that the work involved foreseeable injury should not be accepted. His Honour's assessment of Dr Coyle's evidence is, in my opinion, substantially correct. It was not contested by Mr O'Connor QC before this Court - at least, it is clear - that Dr Coyle's opinion in this regard was based upon the assumption of such speed or pressure. The inference was correctly drawn that if the work was to be performed slowly in the manner referred to generally by Mr Hastings, then a prudent employer would not foresee that such injury would be relevantly likely to occur. It is in concept possible to see, in the evidence in this regard, two things: either that, if the work was performed without unnecessary speed or pressure, the injury would not in fact occur; or that, if it was so performed, injury was so unlikely to occur that it was not foreseeable in the sense that a prudent employer would provide against it. Distinctions of this kind were not pursued in evidence and, I think, it was not necessary for them to be. It was sufficient that, if the nature of the work was as the judge found it to be, the defendant, as a prudent employer, would not foresee that the injury alleged would be apt to occur. The second basis of the plaintiff's case involved different considerations. It was, I think, on this that ultimately Mr O'Connor relied. The matter was put in different ways but essentially it involved that, whatever the precise nature of the work, an employee may adopt a defective posture in doing it and that certain postures, if habitually adopted, may produce the tension or pressure and accordingly the injury to which the plaintiff's claim referred. The suggestion was that, in work of the present kind, workers may adopt an "idiosyncratic work style" or posture of a kind which will produce such an injury. The submission was to the effect that it is the duty of a prudent employer to instruct its employees in such matters or otherwise ensure that bad work postures are not adopted by them. Matters of this kind were referred to in Abalos v Australian Postal Commission (1990) 171 CLR 167. URETKOVSKA v AUSTRALIAN TELECOMMUNICATIONS COMMISSION (Mahoney JA) 5 Both Dr Coyle and Dr Olsen referred to the possibility of "some postural defects associated with working on the large rack". Dr Olsen expressed the opinion that "... these in themselves in my opinion would not constitute a hazard of a proportion that would lead one to predict that any excess risk of injury existed". It is, perhaps, not completely clear whether it was the opinion of Dr Olsen that there was a real risk of such a posture being adopted or a real risk of injury from it but that the risk was so small that a prudent employer might ignore it. There was reference in argument to the extent to which a prudent employer was entitled to put aside a risk of injury provided that it was not "any excess risk" in the sense to which Dr Olsen referred. It is not necessary to determine that matter. The learned judge dealt with the matter in a different way. His Honour said: "Dr Coyle also propounded the possibility that the plaintiff adopted a idiosyncratic workstyle. However, there is nothing in the evidence to suggest that Mrs Petkovska adopted anything other than a normal work style consistent with the style adopted by other members of the staff who were engaged in identical or similar work. Mr Hastings gave evidence that there was nothing out of the usual in her workstyle and I accept his evidence. Dr Coyle gave evidence that in some of the work which the plaintiff was obliged to carry out, it would be very difficult for her to obtain a reasonable posture in that there would be load on the should girdle as the upper arms were abducted or winged out and extended to reach the component when referring to the wire looms. Dr Coyle gave evidence of the various steps which could have been taken to prevent injury to workers. However, in my view, such steps are entirely dependent upon the foreseeability that injury could be caused in the course of carrying out the work of the nature which was in fact carried out by the plaintiff." He went on to point out that in the evidence of Dr Olsen, which he had accepted, Dr Olsen had concluded that there was "no particular hazard associated with that work". His Honour saw that conclusion of Dr Olsen "to accord with common sense bearing in mind the description of the work given by the plaintiff and the Exhibits to which I have referred above and to the rate at which the work was carried out". To an extent, his Honour's rejection of this basis of the plaintiff's claim is based, not upon a conclusion that injury from improper posture was not foreseeable, but upon the fact that the evidence established that the plaintiff had not in fact adopted any bad posture and that accordingly she had not established that any injury she had suffered had resulted from a failure of the defendant in that regard. It is not necessary for the purposes of this appeal to consider the extent of the obligation of an employer to ensure that employees are instructed in proper posture or that they do not in fact adopt postures apt to cause injury. In some circumstances, the nature of the work may be such that posture is a factor to be taken into account by a prudent employer and accordingly his obligation extends to such a matter: cf the expert evidence given in Abalos v Australian Postal Commission: at 170 et seq. If Dr Olsen's assessment be accepted, the plaintiff's work in the present case was, in my opinion, probably not of this kind. But, however that be, his Honour concluded, in my opinion correctly, that the evidence which he accepted did not establish that bad posture was the cause of whatever condition the plaintiff had. 6 UNREPORTED JUDGMENTS The plaintiff gave evidence in relation to a prior injury. This was referred to for the purpose, inter alia, of suggesting that her injury and that of other workers should have alerted the defendant, as a prudent employer, to the possibility of injury of the present kind resulting from the plaintiff's work. There was before the court a document, relatively unexplained, recording an investigation undertaken in relation to workers employed by the defendant. It was suggested that it should be inferred from these that work which the plaintiff did had caused injuries to an extent that a conclusion of foreseeability should be drawn in the plaintiff's favour in this case. His Honour, in his judgment, referred to some aspects of this matter. It is, I think, not necessary to pursue the detail of it. The work which the plaintiff was doing was, as I think the learned judge concluded, different from that which she was doing at the time when she suffered the previous injury. And there was no such analysis of the work in fact undertaken by those who, according to the investigation, had suffered injuries so as to make it relevantly similar to that which the plaintiff complained of. I would not draw the inference that all of those referred to in the document as having suffered some kind of injury were doing the same work or work relevantly similar to the work of-which the plaintiff here complained. Nor would I infer that all of the injuries detailed were similar to those that the plaintiff complained of. There was reference to these matters in, eg, cross examination. But I do not find it such as to support the inference the plaintiff suggests should be drawn from it. The matter was pursued, at the trial, to no, or no significant, extent. Counsel did not suggest that it was, or how it was, put to the judge in argument. I do not see the evidence in question as being such as to warrant the inference which it is now suggested the court should draw from it. The plaintiffs appeal therefore should fail. It is proper to record, as I have indicated, that the fate of this appeal depends upon the state of the evidence given at the trial and the conclusions of the learned judge in relation to it. It was not established that the learned judge in any relevant respect misused or failed to use the advantage that he had in seeing the witnesses before him. These conclusions do not exclude the possibility that in other cases it may be possible to establish that the work done caused or was apt to cause injury of a kind similar to that complained of by the plaintiff. The appeal should be dismissed with costs. Clarke JA I agree with Mahoney JA. Appeal dismissed with costs. Counsel for the Appellant: CE O'CONNOR QC/TJ WILLIS Instructed by: FLANNERY MURA and COSTELLO Counsel for the Respondent: DF JACKSON QC/PS JONES Instructed by: AUSTRALIAN GOVERNMENT SOLICITOR