New South Wales Court of Appeal CITATION : Coles Supermarkets Australia Pty Ltd v Taylor [2004] NSWCA 347 HEARING DATE(S) : 5 August 2004 JUDGMENT DATE : 29 September 2004 JUDGMENT OF : Handley JA at 1; Stein AJA at 47; Gzell J at 95 DECISION : 1. Appeal allowed in part.; 2. Judgment for the plaintiff in the District Court for $464,982.66 set aside except as to costs.; 3. In lieu thereof substitute judgment for the plaintiff for $252,584.41 with effect from 12 August 2003.; 4. The respondent is to pay one-third of the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951. CATCHWORDS : NEGLIGENCE - safe system of work - recognised risks of overuse injury - worker not advised of risks - worker not told to use safer methods of work - employer in breach of duty - ND LEGISLATION CITED : Workers Compensation Act 1987 H G v The Queen (1999) 197 CLR 414 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 CASES CITED : Moran v McMahon (1985) 3 NSWLR 700 Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 The Owners - Strata Plan 156 v Gray [2004] NSWCA 304 Wyong Shire Council v Shirt (1980) 146 CLR 40 PARTIES : Coles Supermarkets Australia Pty Ltd (Appellant) Colleen Taylor (Respondent) FILE NUMBER(S) : CA 40780/03 COUNSEL : J E Maconacchie QC/H Halligan/M McFadden (Appellant) J L Glissan QC/A R Reoch (Respondent) SOLICITORS : Hicksons (Appellant) John Dowling (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT DC 8251/02 FILE NUMBER(S) : LOWER COURT Graham DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40780/03 HANDLEY JA STEIN AJA GZELL J 29 SEPTEMBER 2004 COLES SUPERMARKETS AUSTRALIA PTY LTD v COLLEEN TAYLOR CATCHWORDS NEGLIGENCE – safe system of work – recognised risks of overuse injury – worker not advised of risks – worker not told to use safer methods of work – employer in breach of duty FACTS The respondent worked as a night filler in one of the appellant's supermarkets. Because she was quite short and suffered from asthma and emphysema she was normally rostered on aisles where the work was relatively light. Night fillers worked intensively during their shift, without a break, and were expected to stack at the rate of approximately 40 cartons an hour. On 30 December 1998, after finishing her normal work, she was rostered in an aisle where she was expected to stack cans of dog food weighing 1.2 kg each. She lifted them from an upright position by grasping the top with her right hand. She worked in this aisle for no more than 45 minutes and only for part of this time on stacking these large cans but experienced increasing pain and was found subsequently to have suffered a frank injury in the form of right lateral epicondylitis. As a result she had to give up work and became unemployable. The trial Judge accepted expert and epidemiological evidence that the high grip force required to lift the large cans of dog food and the rapidity and repetition of the worker's movements while stacking the large cans on a shelf created recognised risks of an overuse injury. Accordingly he found for the plaintiff and awarded damages. On appeal by the employer HELD : (1) The trial Judge was correct in finding the respondent's work in stacking the large cans involved recognised risks of injury; (2) The employer had not warned the respondent of the risk of overuse injury and she had not been advised to use simple alternative methods for grasping and lifting the large cans which would have avoided the risk of injury; (3) The Judge's finding on liability was therefore correct; (4) The award of damages was excessive and the Court of Appeal should reassess. ORDERS 1. Appeal allowed in part. 2. Judgment for the plaintiff in the District Court for $464,982.66 set aside except as to costs. 3. In lieu thereof substitute judgment for the plaintiff for $252,584.41 with effect from 12 August 2003. 4. The respondent is to pay one-third of the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40780/03 HANDLEY JA STEIN AJA GZELL J 29 SEPTEMBER 2004 COLES SUPERMARKETS AUSTRALIA PTY LTD v COLLEEN TAYLOR Judgment 1 HANDLEY JA : This is an appeal by an employer from a decision of Graham DCJ who awarded the respondent damages of $464,982.66 for right lateral epicondylitis sustained as a result of occupational overuse of her right arm while working for the appellant. 2 The respondent, who was 40 at the time of her injury on 30 December 1998, left school at the age of 15 and left the paid workforce when she was 21 when she had her first child. She returned to the paid workforce in August 1998 working for the appellant as a night filler at its Kings Langley supermarket. 3 The respondent was given safety training before she started work for the appellant which emphasised the risks of back injury, but was not limited to such risks. She was only 5 foot 1 inch in height and suffered from both asthma and emphysema which were aggravated by her smoking 35 cigarettes a day. Consequently she was given lighter work in aisle 6 which contained pasta, pasta sauces, rice, oils and similar items and in aisle 8 which contained nappies, baby food, other baby requisites and similar items. 4 Her normal shift was four hours in the early morning but she often worked overtime. The four hour shift was worked without a break but there would be a 15 minute break before overtime was worked. The work was constant, and fillers such as the respondent were expected to stack the contents of approximately 40 cartons each hour. 5 The respondent did extra shifts, on a casual basis, at the appellant's Winston Hills store over about a fortnight during November 1998. Prior to 30 December she had not experienced problems at work and had had no pain. 6 On 30 December, as the Judge found, the respondent worked for only three hours between 4.57 and 8.02 am. She initially worked in aisle 8 but when the work there was finished she and two other women were directed to work on aisle 14. She and her colleagues had to stack the shelves with bags of charcoal, birdseed and dry pet food, and with small, medium and large cans of dog food. The respondent worked in that aisle for between half an hour and 45 minutes (black 25D) before she and the others finished. 7 The goods to be stacked on the shelves in that aisle included about 45 cartons of tinned dog food, large, medium and small. The respondent said that she unloaded between 18 and 22 of these (black 24G). The rest of the time in that aisle was spent stacking bags of birdseed, charcoal and dry pet food. 8 During her work in this aisle the respondent experienced pain at and below her right elbow which she related to stacking the large cans of dog food which weighed 1.2 kg each (black 37). These had to be stacked on the bottom shelf (27I). She used both hands to stack bags and stacked small and medium sized cans with each hand (31Q, 36), but used her right hand to stack the large cans (30D, 31N). She had a few days off work but when she returned to work after the break she experienced the rapid onset of pain and weakness when doing the light work in aisles 6 and 8 and after a few days she found she could not continue. The Judge found that she suffered a frank injury in the form of right lateral epicondylitis on 30 December. 9 The respondent stacked each of these large cans by grasping it across the top in her right hand, putting it on the shelf, and pushing it into position filling from the back. She then rotated the can so that the appropriate part of its label faced the customer. 10 Dr Adams, an expert in ergonomics and safety management was called in the respondent's case. The Judge admitted his two reports over the appellant's objections and the witness gave additional oral evidence and was extensively cross-examined. Mr Maconachie QC, who appeared for the appellant in this Court, but did not appear below, submitted, with some emphasis, that his evidence did not meet the criteria established in H G v The Queen (1999) 197 CLR 414 and Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. 11 Parts of Dr Adams' evidence were not supported by evidence given by the respondent and a number of his assumptions were not proved. He thought that on 30 December the respondent had worked a full shift of four hours and a further hour of overtime. Some of his assumptions about the respondent's arm movements when stacking the large cans were inconsistent with her evidence. He assumed she would be carrying the full weight of the can on her right arm while she placed it on the back of the shelf but she said she pushed it across the shelf. He also assumed that the large cans were stacked on a higher shelf involving a greater lift and a longer period of weight bearing. 12 These matters undoubtedly devalued parts of Dr Adams' written and oral evidence, but other parts were not affected. He said that the grip force required to lift an upright can weighing 1.2 kg by gripping it between the thumb and fingers was 3.5 to 4 kg (black 162). This was a high force carrying a greater risk of an accumulative injury disorder such as the epicondylitis which the respondent suffered on 30 December (156). He said (162N-Q): "With any cumulative injury, it's the function of the proportion of time that the muscles and tendons are stressed towards their maximum voluntary capacity. When they are so stressed, and if they are frequently stressed, then all of the components that involve those muscles and tendons, the points of attachment to bones, and the passages through which they pass, such as the carpal tunnel, are exposed to greater risk of damaging and accumulating wear that aggregates towards actual injury." 13 He said that two stacking movements a minute were highly repetitive, but the respondent was doing between 6 and 9 movements of these large cans a minute (167). 14 Dr Adams identified a number of Australian Standards dealing with the risk of occupational overuse injury (blue 2/366) dating from between 1981 and 1994. He annexed to his first report a risk identification check list (2/368) from the National Code of Practice for the Prevention of Occupational Overuse Syndrome (1994). This listed 11 aspects of a task which would increase the risk of occupational overuse injury and Dr Adams identified 9 as present in the respondent's stacking of these large cans. That evidence was not devalued or discredited by his cross-examination, or by the respondent's own evidence. 15 The Court can confidentially accept these parts of Dr Adams' evidence because the appellant qualified a Dr Virginia Pascal as its expert in this field, and served her report. However it did not tender her report or call her to give oral evidence. 16 The various Australian Standards establish that the risk of occupational overuse syndrome was well recognised long before December 1998. The steps which a responsible employer needed to take to prevent this type of injury were also well recognised. 17 There were two very simple procedures which the respondent could have adopted which would have prevented this injury. Dr Adams said that large cans should be laid on their side before being lifted because this required much less grip force than that required to lift an upright can (black 155P-Q). This procedure was well known to Mrs Murphy one of the two supervisors on duty during the respondent's shift on 30 December. She used this method herself when lifting large cans or bottles (black 226). 18 The other procedure involved using both hands to lift each large can. Mrs Murphy knew of this procedure and used it herself (black 220, 227). The respondent did not use either of these simple procedures, she had not been instructed earlier to do so and was not given that instruction on 30 December. 19 One's immediate response to this evidence is to think that the use of either or both of these procedures was a matter of commonsense that any adult woman should be able to work out for herself. However this would not be the appropriate response. The appellant employed a large number of night fillers across the country and should have been well aware of the risks of occupational overuse syndrome. There is nothing to indicate that the respondent had any idea of the risks she was running that morning picking up these cans from an upright position with her right hand. If she had been warned of the risks of injury there is no reason for thinking that she would have ignored such a warning. If she had received instruction in the use of the methods of lifting large cans safely there is no reason for thinking she would not have used them. 20 The evidence of Dr Adams that has been referred to, and the decision of the Judge on liability are supported by the epidemiological evidence. Kumar "Biomechanics in Ergonomics" 1999 stated that "the rapid increase of upper limb repetitive strain injury … or cumulative trauma disorders … has been largely attributed to the loads of posture, force levels, and repetition of posture and/or force application. Industrial jobs involving low force and little repetition had the fewest cases of cumulative trauma disorders and those involving high force and frequent repetition had approximately 30 times greater morbidity which indicated an interactive behaviour of the risk factors" (blue 2/381-2). 21 Some of the scientific papers cited by Kumar were also in evidence. These included Silverstein "Hand-wrist cumulative trauma disorders in industry" British Journal of Industrial Medicine 1986. Silverstein found (blue 2/475) that high force and high repetitiveness were positively associated with hand-wrist cumulative trauma disorders and that irrespective of other factors the combination of high force and high repetitiveness increased the magnitude of association substantially more than either factor alone. 22 Ohlsson "Self-reported symptoms in the neck and upper limbs of female assembly workers" 1989 Scandinavian Journal of Work Environment Health noted that women above 35 (2/484) may rapidly suffer pain when exposed to work which imposed an unacceptable risk of occupational disease (487). 23 Chaing and others "Prevalence of shoulder and upper-limb disorders among workers in the fish-processing industry" 1993 Scandinavian Journal of Work Environment Health noted (blue 2/481) that high repetitiveness and highly forceful movements were two important ergonomic factors associated with musculoskeletal disorders of the hand and upper arm. The combination of these two increased the magnitude of association substantially more than either factor alone. 24 The risks associated with rostering women for the heavy work in the dog food aisle were recognised by the respondent's supervisors. Mrs Murphy said that the work on this aisle was mainly done by men, and if men were not rostered for the shift this work would normally be left for trainee male staff who came on duty after 8 am (black 211). They knew that this arduous work was not suitable for female staff. Mrs Murphy agreed that it was not appropriate for the respondent to be rostered for this aisle because the work was "very heavy" (221). 25 The supervisory staff took an unjustified risk in rostering the respondent for this heavy work, especially when they failed to give her simple instructions on the safest ways of doing it. Duty and reasonable foreseeability were clear, and so was breach and causation. Those acting on behalf of the appellant could easily have avoided this risk either by not giving the respondent this work, or by instructing her in the use of safe work practices. In doing what they did, and failing to give appropriate instructions to the respondent the supervisory staff took risks which they recognised. There is no evidence of other injuries of this type and some evidence that there had been none at Kings Langley for some years beforehand. 26 The respondent may have been peculiarly susceptible ("egg shell skull"), but known risks were taken on 30 December which led to her injury even though her two colleagues were not affected. She was entitled to be protected from those risks. I would uphold the trial Judge's decision on liability and reject this part of the appeal. 27 The appeal on damages challenges the Judge's awards for non-economic loss, future economic loss, loss of superannuation, gratuitous services and future treatment. 28 The Judge awarded damages for non-economic loss on the basis of 40% of a most extreme case. The appellant contended for an award of between 20 and 25%. The respondent had been injured in a motor vehicle accident in 1986 which significantly affected her right knee and moderately affected her back. She had had five laparoscopies and in 2003 she had an operation for the removal of some loose bone from the knee. She continued to experience some pain and difficulty in walking (black 2-4). She also had ongoing problems with pain and restriction of movement in her lower back (black 4, blue 129M, 162L). In May 2000 she had a migraine headache and continued to suffer these attacks from time to time (blue 166). She also had asthma and emphysema. 29 The Judge accepted the respondent as a witness of truth. He comprehensively reviewed the medical evidence given only in report form and preferred that given by the respondent's treating doctors, particularly Dr Kirsh, who operated on the respondent's right elbow on 6 April 1999. He had treated her since 17 March 1999 and was still seeing her every three months. The Judge found (red 51-2): "… the plaintiff has an ongoing and apparently permanent problem with pain in her right elbow, and associated pain in other parts of her right arm, her shoulders, her left elbow and her neck. … she has had psychiatric problems flowing from these injuries of a quite significant kind, including severe depression, and has developed an unwillingness to leave her home … she remains in constant pain and has been prescribed very strong medication for it, with no light at the end of the tunnel, and with her life expectancy of some 40 years. The plaintiff … suffered very significant injuries … [and] is entitled to a substantial verdict, in terms of non-economic loss …" 30 The combination of pain, the loss of the effective use of her right arm at or above the elbow of 30% or more, the loss of the efficient use of her left arm at or above the elbow of 10% and the problems in her neck and shoulders involved major restrictions. These combined with her pain and psychiatric problems constitute significant injuries which have had a major impact on the respondent's life. In my judgment the award for non-economic loss on the basis of 40% of a most extreme case, although high, cannot be disturbed. 31 The Judge found that the respondent had been unemployable since March 1999 and his award for past economic loss has not been challenged. For the future he awarded $198,254. This was based on $350 a week, which was 50% of average weekly earnings, for a period of 20 years discounted by 15% for contingencies. Since the respondent was nearly 45 at the date of the trial the award assumed that she would have worked until 65. 32 The respondent returned to the paid workforce in August 1998 after 20 years out of it. Between August and December 1998 her average weekly earnings were only $207.49 net. She had left school at 15 and worked as a process worker in factories until she was 21. She had only a basic education and no qualifications. She had started a five-day a week nail technician course at Broadway in February 1998 but left in April to seek casual work and earn some money. The course continued until July. She said she planned to finish the course later and was guaranteed a job if she qualified. 33 Following her injury the respondent made no attempt to finish the course although the work of a nail technician appears to be very light indeed and within her reduced physical capacity despite the difficulties caused by her pain. The respondent had attended the course on a so-called scholarship so that it cost her only some $90 in fees. She also had to pay for her own materials and meet the cost of fares and lunches. She only completed some two months of the five month course and there is no evidence of any move by her to rejoin the course prior to her injury. 34 In my judgment the Court is not entitled to find that, but for her injury, the respondent would have qualified and secured continuing employment in this occupation. There was no evidence about the level of earnings of nail technicians or the prospects of retaining gainful employment in that occupation until 65. 35 In the light of this evidence I am unable to accept that 50% of average weekly earnings was a suitable basis for the award of future economic loss and I would adopt the figure of $207.50 based on her average weekly earnings immediately before her injury as the appropriate starting point. 36 The Judge found on the probabilities that the respondent would have entered relatively fulltime employment for a period of up to 20 years. In view of her health problems which pre-dated the injury and the demanding nature of work as a night filler in my view it was most unlikely that she could have continued in that work until she was 65. Indeed I see no realistic basis on the evidence to support the Judge's finding of continuous employment until that age. Given her asthma, emphysema, her other problems and her continued heavy smoking it would really have been surprising if she had been able to continue working as a night filler beyond 55. 37 In my judgment the appropriate award for future economic loss should be based on her working, if uninjured, until 60. The contingencies associated with her lack of education, poor skills, and her other health problems mean that the allowance for vicissitudes should be increased to 50%. On the 5% tables this supports an award for the future of $56,792.75 which I would substitute for that made by the Judge. There must be a consequential adjustment to the award for loss of superannuation which should be reduced to $9500. 38 The Judge awarded $15,000 for the cost of future treatment. In view of the award of $32,939.36 for the past, which was not challenged, I can see no basis for disturbing this part of the award. 39 The remaining elements of the award under challenge are those for past and future gratuitous assistance. The award for the past was based on 10 hours assistance a week for the first year, and thereafter 5 hours a week. This was also the basis for the award for the future. 40 The assistance was provided by Ms Reidyk, a friend of the respondent. She said that she would visit the respondent, help her with her housework and wash her hair (black 112, 115). She said in her evidence in chief that she did this on an average once a week for about two hours (115). She would generally stay for about four hours in all talking and having lunch or coffee (129). She also accompanied the respondent whenever she left home to go shopping or visit her doctor or solicitor (113, 116-7). 41 At the time of the trial Mr Reidyk was in receipt of a disability pension (118). She said that she would have spent time with the respondent anyway even if she had not been injured (118). 42 On this evidence there is no basis for an award for domestic assistance for more than two hours a week after the first year. I would not accept the appellant's argument based on s 151K(3) of the Workers Compensation Act 1987 that the services provided on average for two hours a week would have been provided even if the respondent had not been injured. There is no suggestion that Ms Reidyk washed the respondent's hair and did housework for her prior to her injury. 43 The Judge allowed $17 an hour for the past and $18 an hour for the future. The difference was challenged but I can see no basis for disturbing the rate for the future. I would affirm the Judge's award for the first 12 months and substitute an award for the next three years and 32 weeks up to the trial based on two hours a week. I would therefore award $15,232 for past domestic assistance and on the same basis would substitute an award of $33,033 for future domestic assistance. 44 I would therefore allow the appeal on damages and substitute a verdict for $307,014.11 made up as follows: Non-economic loss $92,960.00 Past economic loss $48,777.00 Fox v Wood component $2,780.00 Future economic loss $56,792.75 Past out of pocket expenses $32,939.36 Future out of pocket expenses $15,000.00 Loss of superannuation $9,500.00 Past domestic assistance $15,232.00 Future domestic assistance $33,033.00 TOTAL $307,014.11 45 $54,429.70 for workers compensation payments must be deducted from this verdict. Accordingly a judgment for $252,584.41 should be substituted for that entered by the trial Judge. 46 Most of the time on the appeal was taken up with the question of liability on which the appellant failed. Accordingly I would order the respondent to pay one-third of the appellant's costs of the appeal. The following orders should be made: 1. Appeal allowed in part. 2. Judgment for the plaintiff in the District Court for $464,982.66 set aside except as to costs. 3. In lieu thereof substitute judgment for the plaintiff for $252,584.41 with effect from 12 August 2003. 4. The respondent is to pay one-third of the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951. 47 STEIN AJA : Introduction 48 This is an appeal by Coles Supermarket Australia Pty Ltd against a judgment of his Honour Judge Graham given in the District Court on 12 August 2003. His Honour found a verdict and judgment for the plaintiff (respondent) Colleen May Taylor in the sum of $464,982.66. The appeal concerns the issues of liability and damages. Facts and judgment below 49 The respondent commenced work with the appellant in August 1998 as a night filler at its Kings Langley store. She generally worked from 5am to 8am but on frequent occasions did overtime. Her job was to fill the shelves. She averaged around 4 hours per shift. 50 On 30 December 1998, after having completed her job, she was required to do overtime in aisle 14, which contained dry pet food and pet food cans. She had not lifted dog food tins before that day. 51 The respondent was required to lift, hold and stack heavy produce for extended periods of time without a break. This involved twisting, pulling and pushing at low levels and also at heights at or above her shoulder. 52 The respondent principally worked in aisle 6 (pasta, rice and oils). The work system was that goods were brought on a trolley and placed onto the floor. They were then picked up from the floor by the filler and taken to a position near to where they were to be placed onto the shelf. The respondent, a 5'1" 41 year old woman, could not reach the top shelf but used a step. Even with the step she could not reach the back of the very top shelves. The respondent was required to pull cans and bottles forward turning them with her wrist. The work was performed at a fast rate. 53 The work in aisle 14 was usually performed by men since it involved large tins of dog food weighing 1.2kg. 54 Putting the dog food on the shelves involved the following: pick up and bring back a box of dog food to the area for packing. This involved bending to ground level, picking up the box with both hands, moving it about four feet and putting it on the ground. There was no trolley to lift or access the box to waist height. the box was cut in half with a blade. the respondent had to extend her right arm fully down to pick up the dog food can with her arm at 180, pick up the can and pull it to her chest. this involved a twist to the left or right. the tins had to be pushed all the way to the back of the shelf, involving extending the right arm to the full extent as the shelves were empty. This involved pushing her body forward. She gripped and pushed the tins back by pushing. once in position each tin had to be "faced" to the front by the use of the wrist. when reaching for the higher shelves the respondent had to extend her arm fully to reach the back of the shelf, as well as facing tins while her arm was fully extended. 55 The respondent was given no training or instruction as to the correct manner of work in lifting the 1.2kg tins of dog food at intervals of greater than two per minute. There was around 45 boxes of dog food plus bird seed, BBQ charcoal and dry cat and dog food which the respondent was required to stack in one hour. She worked in this aisle for around 45 minutes to one hour. 56 While dealing with the large cans of dog food the respondent noticed pain in her right arm. 57 According to the evidence of Dr. Adams the grip force required to be exerted to lift a 1.2kg tin of dog food by the thumb and fingers was 3.5kg to 4.0kg. 58 There was evidence (including in the appellant's case) that the fillers were to work to a quota of 40 cartons per hour and work was at a fairly fast pace. The work was highly repetitive. 59 The respondent had never done this type of work before August 1998 and was shown a training video and assigned a "buddy" for her first day in the lolly aisle. None of the training provided any instruction with regard to the safe use of her arms or the risk of occupational overuse syndrome. The video was primarily directed to protection of backs. 60 As a result of her work the respondent suffered a severe right lateral epicondylitis. This either occurred on 30 December 1998 or manifested itself within a few days in early January 1999. His Honour said: There is no doubt that on the 3rd or 4th of January 1999, the plaintiff complained of pain in relation to her right arm when she was back at work. Not only did she complain to people at work, but on 3 January she attended her general practitioner complaining of pain on that day in her right forearm. Her evidence was that she felt significant pain in her right arm on 30 December 1998; it appeared to have improved over the weekend, but re-emerged when she returned to work on 3 January. The doctor's notes indicate that she had complained of the pain having started on 30 December 1998. The doctor also recorded the general nature of her employment and recommended physiotherapy and medication. On the following day, 4 January, he noted that x-rays were satisfactory and that she was to start physiotherapy on that day. She went to see the general practitioner again on 10 January and indicated some difficulties still with her elbow and he apparently certified that she was unfit for work for the following week. 61 The respondent saw an orthopaedic surgeon in early February 1999 and recounted her experience on 30 December 1998. His Honour accepted her description of the events of that day. 62 Over objection his Honour received the evidence of an expert witness Dr. Adams. Of this evidence the Judge said: The evidence of Dr Adams in my view, firmly established that there was a clearly foreseeable risk of significant injury, particularly by way of injuries such as epicondylitis or other arm injuries, inherent in the filling work required to be performed by the plaintiff and that that foreseeable risk of injury was substantially heightened in relation to the heavier aisles such as aisle 14, where the large cans of dog food were to be moved. He established also that there were reasonably practicable measure available. 63 His Honour addressed the issue of the provision of training, supervision and equipment as said as follows: It seems to me that the provision of training, supervision and equipment along the lines outlined by Dr Adams, would very likely have eliminated the risk of the injury which I am satisfied the plaintiff sustained by virtue of the repetitive nature of her work and the significant forces involved in carrying it out, given the nature of the work she was performing on 28 December, the sudden onset of pain in the course of that work and Dr Adams' evidence as to the way in which her performance of the work of moving the heavy dog food cans would have produced a significant force, well in excess of the 3 kilogram force which is the benchmark in the expert literature. Whilst I am satisfied that the epicondylitis she suffered was as a result of her work and that is the case whether it be the work performed specifically on 30 December or the general nature of her work over a period of months, as between the two likely mechanisms of production of this injury, the more likely of the two is that there was a frank injury sustained on 30 December 1998. 64 The judge found the appellant had acted negligently and that there was an absence of contributory negligence by the respondent. 65 The appellant attacks the judgment on a number of bases. These are that Dr. Adams' report should not have been received into evidence. Further, that Dr. Adams should not have been permitted to give oral evidence of the grip force necessary to be exerted by the respondent to lift a 1.2kg can of dog food. (grounds 1 and 2). Second, that there was no breach of duty (grounds 3-5). This is put on the basis that his Honour failed to consider, as required by Wyong Shire Council v Shirt (1980) 146 CLR 40 at 46, the reasonableness issue. Third, the respondent was guilty of contributory negligence (ground 6) and lastly the appellant disputes the quantum of damages assessed. Dr Adams' report (Grounds 1 and 2) 66 The respondent argues that Dr Adams' report should not have been received into evidence on the basis that the facts and assumptions he relied on in his report had not been proved. Further, that the report did not sufficiently disclose the process of reasoning. In addition, there was no evidence that trolleys such as suggested by Dr Adams were available or used in supermarkets. 67 However, the evidence of the events of the 30th December 1998 and the rates of work were broadly consistent with those in Dr Adams' reports. The facts do not have to be identical but must be sufficiently like those proved in evidence to render the expert evidence of value (Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 at 846). The quota of 40 cartons per hour was confirmed by witnesses for the appellant. While the evidence lacks exactness and is in part contradictory, it seems that the respondent worked in aisle 14 for between 45 minutes and one hour. It is reasonable to assume that she spent around one half hour of that time lifting and handling the large dog food cans. 68 In my opinion, the report disclosed a proper process of expert reasoning in reaching conclusions and the facts on which those opinions were based are facts forming a proper foundation for the conclusions. The report was in my view admissible. In any event, it was admitted, as was his supplementary report and he gave oral evidence and was cross-examined. 69 The appellant also objected to the oral evidence of Dr Adams relating to the grip force necessary to grip a 1.2kg tin of dog food and the training evidence. Allowing this oral evidence by the expert was a discretionary matter. If there was prejudice an adjournment could have been sought. No application for an adjournment was made. The appellant had an expert report from a Dr. Pascall, which had been served. It was not tendered, nor was she called to give evidence. The inference may be drawn that her evidence could not have assisted the appellant. 70 I can see no error in the discretionary decision to admit the grip force evidence from Dr. Adams. The evidence of the grip was sufficiently raised in his written report and the oral evidence merely provided the exact gripping strength required. The type and volume of work (Grounds 3-5) 71 These grounds take issue with the facts assumed by the respondent's expert. In particular, the grounds are directed to the number of hours that the respondent was required to work being in fact less than assumed. 72 However, that the risk of the injury in fact suffered by the respondent was reasonably foreseeable was established by the combination of the epidemiological evidence, the uncontested evidence of Dr. Adams and the lack of relevant training, equipment and supervision. In addition, there was evidence from a supervisor, Mrs Murphy, that is was inappropriate for the respondent to work in the pet food aisle as this was heavy work and usually done by men and the respondent had not been instructed as to the correct technique for lifting heavy tins. Reasonableness 73 As indicated earlier, the appellant contends that his Honour did not consider the issue of the reasonableness of the appellant's conduct. It is said that his Honour moved from foreseeability to preventability without considering reasonableness from the perspective of the appellant as required by Shirt. On behalf of the appellant Mr Maconacbie QC points to a number of facts which he submits provide strong evidence in support of reasonableness by the employer. 74 In my opinion the submission should not be accepted. As his Honour found, there was an absence of proper training. The principal thrust of the training was protection of the back and not the arms or this type of occupational overuse syndrome. In my view the first step to reasonableness by the appellant fails because of the inadequacy of the training regarding protection of the arms. 75 Moreover, there was an alternative safe system of work which was to use two hands on the task when moving the larger heavier dog food cans. The respondent gripped the cans with one hand exerting considerable force according to Dr. Adams (3.5kg to 4.0kg). One of the respondent's supervisors, Mrs Murphy, did not check on how the respondent was doing the job or tell or show her how to do it safely. She agreed that the respondent should have lifted the cans with two hands. Mrs Murphy, and also Mrs Watt, used two hands to do the job safely. 76 Another issue which goes to reasonableness is the evidence of the Codes of Practice. The appellant must have known about them and they provide a relevant guide to practice. These include a series of risk factors regarding lifting which the training regime failed to address. 77 Further, the respondent relied on epidemiological evidence which assisted her case. It was persuasive (although general) and it is not to be ignored. 78 The speed of work was rapid requiring a high rate of repetitive force and a grip of between 3.5kg and 4.0kg. 79 There was clearly an unsafe system of work which permitted his Honour to conclude as he did. The combination of weight, movement and repetition contributed to an unsafe system, see in particular Dr Adams at Black AB 166-167. An alternative system was available and it was open to the appellant to have a proper training regime in place to use both hands to move the large cans in a safe fashion as performed by the supervisor Mrs Murphy, and also Mrs Watt. Contributory negligence (Ground 6) 80 The plea of contributory negligence seems to be limited to the availability of assistance to the respondent if she had called for it. I can see no error in the judgment in relation to contributory negligence. Future economic loss (Grounds 7 and 8) 81 His Honour allowed one-half of average weekly earnings for up to 20 years of full time employment, $350.00 per week. The appellant contends that the respondent's work history was spasmodic and her skills limited. Further, that she could pursue work as a nail artist. On balance, it was submitted that it was likely that she would remain away from work for long periods of time. 82 The trial judge found that the respondent was totally incapacitated for work. She had become an invalid and was likely to remain so for the indefinite future. She had no residual earning capacity. 83 The deduction of 50% of average weekly earnings (together with the usual 15% deduction for vicissitudes) is a significant discount. However, in my opinion it fails to adequately take into account the respondent's lack of work skills and prior job history, as well as other negative health factors. The respondent's prior work history, personal problems and pre-existing incapacities leads inevitably to the conclusion that his Honour was overgenerous. Fifty per cent of Average Weekly Earnings was more than was probable given the respondent's myriad of pre-existing problems. 84 The appellant submits that a cushion of $50 pr week for 10 years totalling $22,5000 would be adequate. This should be rejected as inadequate. The respondent earned an average net income of $207.49 at the time of her accident. It is my view that an allowance of $200 per week would make due allowance for her poor work prospects prior to the accident particularly if taken to age 60 years with a 15% allowance for vicissitudes. 85 The reduced damages for future economic loss and superannuation should be recalculated by the parties for the purpose of bringing in short minutes of order. Gratuitous services (Ground 9) 86 The appellant's case appears to be twofold. First, the gratuitous services were provided by a friend and second, they were of ten hours per week while his Honour allowed 5 hours per week at the rate of $18.00 per hour for the future. 87 His Honour was well aware that Mrs Reitdyk was a friend but was satisfied that the assistance provided reflected the level of care provided. He was satisfied as to the need. I do not see that we should interfere with his Honour's decision in this regard. The past gratuitous services should be left as found by his Honour. 88 His Honour found that the respondent required "at least five hours a week" assistance for the future. Given the medical evidence, this was a conclusion which was plainly open to the judge and I do not see that this court should intervene. Non-economic loss (Ground 10) 89 His Honour awarded 40% of a most extreme case. The appellant submits that an award of 20-25% should have been made. 90 However, his Honour's award was justified given the following injuries suffered by the respondent. (a) Severe right upper limb lateral epicondylitis required an operative procedure on 6 April 1999 and leading to 30% permanent impairment of right arm. (b) Tendon synovitis to left upper limb. (c) Gross soft tissue injury to ligaments and muscles and aggravation of pre-existing degenerative changes to cervical spine. (d) Severe post traumatic depression, anxiety and stress. 91 The clinical reactive depression is significant and, together with chronic pain, has caused the respondent's life to be drastically affected to the extent of becoming reclusive, agoraphobic and unfit for any work. 92 In my opinion 40%, although generous, was within the discretionary range for non-economic loss and ought not be interfered with by this court. Continuing treatment 93 His Honour awarded $15,000 for continuing future treatment and this is contested. Given that the past out of pocket expenses for medical, hospital, pharmaceutical, physiotherapy and other treatment was around $33,000, and given the severe ongoing physical and psychological injuries, the award was modest. Orders 94 The appeal should be allowed in part and the appellant should pay the costs of the respondent. The amount of the verdict should be set aside and recalculated by the parties, who should bring in short minutes of order reflecting this judgment within 48 hours. 95 GZELL J : I agree with Handley JA. In my view the trial judge's determination of the respondent's non economic loss at 40% of a most extreme case was excessive. However, an appeal from an assessment of damages by a judge sitting without a jury raises the same principles as when an appeal is brought from the exercise of discretion by a trial judge: an appellate court must be satisfied that a wholly erroneous estimate of damage has been made by the trial judge ( Moran v McMahon (1985) 3 NSWLR 700) or that the assessment is so unreasonable and plainly unjust that it must be inferred that in some way the trial judge failed properly to exercise his or her discretion ( The Owners - Strata Plan 156 v Gray [2004] NSWCA 304 at [41]). In my view the excessive component of his Honour's determination was not such as to invoke those principles. ********** Last Modified: 09/29/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.