Hallmark-Mitex Pty Ltd v Rybarczyk
[1998] QCA 254
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- Hallmark-Mitex Pty Ltd v Rybarczyk[1998] QCA 254
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Hallmark-Mitex Pty Ltd v Rybarczyk[1998] QCA 254
Hallmark-Mitex Pty Ltd v Rybarczyk[1998] QCA 254
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 11009 of 1997
Brisbane
[Hallmark-Mitex P/L v. Rybarczyk]
BETWEEN:
HALLMARK-MITEX PTY LTD
A.C.N. 010 920 091
(Defendant) Appellant
AND:
MARIA RYBARCZYK
(Plaintiff) Respondent
Pincus JA
Demack J
Chesterman J
Judgment delivered 4 September 1998
Separate reasons for judgment of each member of the Court; each concurring as to the orders made.
APPEAL ALLOWED. JUDGMENT BELOW SET ASIDE AND IN LIEU THEREOF JUDGMENT ENTERED FOR THE APPELLANT. RESPONDENT TO PAY APPELLANT’S TAXED COSTS OF ACTION AND OF APPEAL.
CATCHWORDS: NEGLIGENCE - personal injuries - employer liability - failure to warn of possibility of carpal tunnel syndrome - whether risk of injury foreseeable - whether appellant should have warned respondent of such risk - causation - whether respondent would have acted pursuant to such warning - whether respondent’s condition pre-dated appellant’s breach of duty of care - whether warning would have avoided injury.
Turner v. The State of South Australia (1982) 56 ALJR 839
Overseas Tankship (UK) Ltd v. The Miller Steamship Co Pty (The Wagon Mound (No. 2)) [1967] 1 AC 617
Inverell Municipal Council v. Pennington (1993) Aust Torts Reports 81-234
Sellars v. Adelaide Petroleum NL (1994) 179 CLR 332
Wilsher v. Essex Area Health Authority [1988] AC 1075
QANTAS Airways Limited v. Cameron (1996) 66 FCR 246
Green v. Chenoweth (Court of Appeal, unreported, Appeal No. 10998 of 1996, judgment delivered 11 November, 1997)
Ellis v. Wallsend District Hospital [1989] 17 NSWLR 553
H v. Royal Alexandra Hospital for Children (1990) Aust Torts Reports 81-000
Thomas Borthwick & Sons (Australasia) Ltd v. Stapleton (Court of Appeal, unreported, Appeal No. 255 of 1995, judgment delivered 14 June, 1996)
Counsel: Mr J A Griffin QC, with him Mr P O Land for the appellant
Mr F W Redmond for the respondent
Solicitors: Heiser Bayly & Mortensen for the appellant
Crawford Law for the respondent
Hearing Date: 11 June 1998
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 11009 of 1997.
Brisbane
Before Pincus J.A.
Demack J.
Chesterman J.
[Hallmark-Mitex P/L v. Rybarczyk]
BETWEEN:
HALLMARK-MITEX PTY LTD
A.C.N. 010 920 091
(Defendant) Appellant
AND:
MARIA RYBARCZYK
(Plaintiff) Respondent
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 4 September 1998
I have read the reasons of Chesterman J. in which the nature of the case is fully explained; I am in general agreement with those reasons. The learned primary judge discussed the time at which the respondent’s cause of action in tort arose. His Honour said :
"The defendant’s obligation to warn the plaintiff was a continuing one from the middle of the 1980s, I find, but her cause of action in tort accrued on my assessment of the facts of the case only after that failure resulted in the only damage on which she is entitled to rely in claiming compensation: the deterioration of her condition beyond the time when decompression could cure the defect. That damage occurred at some time after January 1988 and before her first operation in August 1989. It follows that the cause of action in tort is not statute-barred because it arose within the three years prior to the issue of the writ". (emphasis added)
There is a question whether the evidence supported the view which is embodied in this passage: that between January 1988 and August 1989 the respondent’s condition deteriorated in such a way that surgery could not cure it. In the course of submissions on behalf of the appellant, Mr Griffin Q.C. agreed that the trial judge did not make a finding as to the time (which I shall call "the critical time") after which operative intervention was too late; Mr Griffin contended that fixation of that time would have been very difficult, in the light of the medical evidence.
In truth, as the passage I have quoted indicates, his Honour was satisfied that the critical time - after which operative intervention would be too late - fell between January 1988 and August 1989. The significance of January 1988 is that the judge saw "no possibility that the [respondent] would have given up work as a machinist before January 1988 had she been warned before then". The significance of August 1989 is that it was on 16 August 1989 that Dr McMeniman performed an operation, including nerve decompression.
I have noted that the learned trial judge did not refer to any evidence supporting the view that the critical damage - the deterioration of the respondent’s condition from an operable to an inoperable state - occurred within the period of time I have mentioned. The condition developed over some years; the judge thought its onset was "probably about the middle of the 1980s". If the critical time was before January 1988 then the respondent had to fail, on the basis of the finding that there was "no possibility" that she would have given up work before that time, even if properly warned by the appellant.
The question of when the respondent’s condition deteriorated to the point at which surgery would be ineffective was, obviously, a technical matter. None of the doctors was asked about it, perhaps because it was assumed they would be unable to help. Dr McMeniman, who performed the operation of 16 August 1989, explained that permanent damage would be caused if the nerve in question was "squashed too hard for too long", causing fibrosis. He was asked, in effect, whether he saw anything at operation which indicated that the decompression might be unsuccessful. In answer, the doctor referred to a note he had written about the time of the operation; he said that if the nerve had "significant fibrosis" that would have been noted and, implicitly, that it had not been; Dr McMeniman also said there was no "obvious reason at the time of the operation as to why it did not work". He explained that it was possible that there was fibrosis present at the time of the operation which caused it to fail, or that the operation itself caused fibrosis. What appears to be a third possibility emerges from the evidence of another orthopaedic surgeon, Dr Millroy: a recurrence of compression after the operation.
There are two related difficulties. There was no evidence on which to base the finding that the critical date - the date at which the nerve damage was too great to be corrected by operation - occurred during the period found by the judge; secondly, there was no evidence on which it could be found that it was fibrosis before operation which brought about the failure of the operation.
In short, there was, with respect, no evidence to support the judge’s view that damage making surgical treatment ineffective occurred at some time after January 1988 and before the respondent’s first operation in August 1989. It was essential to the respondent’s case based on absence of warning to show that it was the fact that she worked during that period which made the difference. Putting the matter in that way rather understates the problem, for the date at which the respondent would if warned have sought medical help might, consistently with the judge’s finding which I have quoted, have been quite close to the time when she in fact did so.
I agree with the order proposed by Chesterman J.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 11009 of 1997.
Brisbane
Before Pincus J.A.
Demack J.
Chesterman J.
[Hallmark-Mitex P/L v. Rybarczyk]
BETWEEN:
HALLMARK-MITEX PTY LTD
A.C.N. 010 920 091
(Defendant) Appellant
AND:
MARIA RYBARCZYK
(Plaintiff) Respondent
REASONS FOR JUDGMENT - DEMACK J.
Judgment delivered 4 September 1998
- I have had the advantage of reading the reasons for judgment prepared by Chesterman J. I agree with his opinion that there are two questions for this Court:
- whether, had the warning been given, the respondent would have sought medical advice earlier than she did i.e. June 1989, and
- what would have been the outcome of earlier medical intervention?
- I would not interfere with the trial judge’s finding that "reason would have prevailed over her determination to keep working and she would have sought medical advice". While this is a finding about what would have happened in the past and thus it is to be proved on the balance of probabilities: Mallett v. McMonagle (1970) A.C. 166, 176, it is an event which never occurred because of the defendant’s failure to give the necessary warning. Consequently, the impact of that warning upon the plaintiff’s conduct must be given weight "because following the instruction would be the course which a reasonable person mindful of his own safety would take": Dugvelshaff v. Cathcart & Richie Ltd. (1973) 47 A.L.J.R. 410, 419. It may even cause a complete change in an employee’s work practice: Sheen v. Fields Pty Ltd. (1984) 51 A.L.R. 345, 350.
- However, Dr McMeniman’s evidence to which Chesterman J. refers does not permit a finding that, because the operation was delayed, Mrs Rybarczyk was materially worse off. The appeal should be allowed.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND Appeal No. 11009 of 1997
Brisbane
Before Pincus JA
Demack J
Chesterman J
[Hallmark-Mitex P/L v. Rybarczyk]
BETWEEN:
HALLMARK-MITEX PTY LTD
A.C.N. 010 920 091
(Defendant) Appellant
AND:
MARIA RYBARCZYK
(Plaintiff) Respondent
REASONS FOR JUDGMENT - CHESTERMAN J
Judgment delivered 4 September 1998
- On 7 November, 1997 the appellant was ordered to pay $78,988.59 to the respondent who had sued to recover damages to compensate her for injuries she alleged she suffered as the result of the appellant’s negligence.
- The appellant is a clothing manufacturer. It employed the respondent as a sewing machinist for about fourteen years, from 1975 until June, 1989, when she was unable to continue working because of physical disability. She was then fifty-five years of age.
- Only one of the disabilities which affected the respondent is relevant to the determination of the appeal. This is a condition known as carpal tunnel syndrome which results from a compression of the median nerve in a canal formed at the wrist by a ligament bridging a U-shaped bone formation. The flexor tendons controlling finger movements pass through the canal, or “tunnel”. So does the median nerve which sits immediately below the ligament and above the tendons. In a percentage of the population, of which the respondent is included, the cross-sectional area of the carpal tunnel is smaller than average so that if the tendons swell the median nerve is compressed. This nerve enervates the large muscle at the base of the thumb and supplies sensation to the thumb, index, middle and part of the ring fingers.
- Symptoms of carpal tunnel syndrome are sensory disturbance in the hands and pain in the wrists. The syndrome is a condition which occurs commonly in the community. It is more frequently found in middle-aged women, especially housewives. About 20 per cent of all persons who develop this syndrome do not work for remuneration. However, working in an occupation which calls for repetitive use of the hands, such as operating a sewing machine, may cause the onset of the syndrome. Such an occupation does not, inevitably, or even as a matter of probability, cause the condition. There are many, disparate, causes of the condition, pregnancy being one.
- Delay in seeking treatment for the syndrome can result in more serious consequences than if earlier surgical intervention is sought. The trial judge accepted the evidence of Dr McMenamin and explained:
“The more severe the compression of the median nerve the less likely the success of the operation. If the nerve is squashed too hard for too long, intraneural fibrosis can result and decompression will not cure that condition”.
- The respondent suffered from bilateral carpal tunnel syndrome, that is, both hands and wrists were affected.
- She first developed symptoms in January, 1988 when she felt numbness in the fingers of her right hand. Four months later she felt similar numbness in her left hand. In June, 1988 she had pain in her right wrist. Some time later pain developed in her left wrist. In June, 1989 the respondent consulted Dr Smith, a general practitioner, who referred her to Dr McMenamin, an orthopaedic surgeon. He diagnosed the respondent as suffering from bilateral carpal tunnel syndrome and referred her to Dr Cameron, a consultant neurologist, with a request that he perform nerve conduction studies. These confirmed severe median nerve disturbance in the right wrist and a less severe disturbance in the left wrist.
- In August, 1989 Dr McMenamin operated to remove the median nerve compressions in both wrists. Initially it appeared that the operation had succeeded but early hopes were disappointed. The respondent developed other, unrelated disabilities. She underwent surgical treatment for these disabilities. In July, 1990 Dr Milroy performed further surgery to release the median nerve in the respondent’s right carpal tunnel in addition to operating on some of the respondent’s other disabilities.
- In the end, the trial judge found that the respondent has been left with minimal disability in her left arm but has between 10 and 15 per cent loss of function in her right arm as a result of compression or scarring of the median nerve in its carpal tunnel.
- The respondent, the trial judge found, had been unable to return to work since June, 1989 when she first sought treatment. This inability is “chiefly ... a result of her carpal tunnel condition”.
- The trial judge accepted Dr Cameron’s professional opinion that the respondent’s carpal tunnel syndrome was caused by the repetitive manual work she had performed for many years.
- The respondent alleged that the appellant was liable to pay her damages for her contraction of the syndrome which caused pain and deprived her of earning capacity. It was her case that the appellant owed her a duty to take all reasonable precautions and exercise all reasonable skill and care to prevent the risk of harm to the respondent in the course of her employment. The appellant conceded it owed such a duty. Seven particulars of breach of the duty were identified. The respondent succeeded in establishing a breach of duty in respect of only one of the particulars. This was that the appellant “failed to warn the (respondent) of the risk of disability arising from musculo-skeletal or nerve conditions of the upper limb caused by the nature of her work”. The other particulars which the respondent failed to establish concerned the manner in which the appellant required the respondent to perform her work.
- The trial judge found that the appellant should have given a warning, repeated at regular intervals:-
- giving sufficient detail about the symptoms of carpal tunnel syndrome;
- setting out the known causes of the syndrome; and
- stating that:-
- if untreated the syndrome could lead to permanent disability;
- it was desirable to consult a doctor as soon as the symptoms appeared; and
- early treatment for the syndrome usually led to complete recovery.
- It appears to be common ground, certainly the trial judge so found, that no warning of the type contended for was given by the appellant.
- The trial judge concluded that, as a result of the lack of warning, the respondent had suffered loss in that she had delayed seeking medical treatment. Because of delay the treatment was inefficacious. Damages were awarded in the sum already mentioned.
- The appellant challenges the judgment on two bases. Firstly, it is argued that it was not unreasonable for the appellant not to give the warning so that its absence did not constitute a breach of duty. Secondly, it was submitted the respondent did not establish that the lack of a warning caused her any damage.
- In support of its first submission, the appellant points to and relies upon the following considerations:-
- Between 1970 and 1988 (the year in which the respondent first experienced symptoms of her condition) the appellant employed, on average, seventy-five sewing machinists per year and, of that whole number, only three became victims of the condition.
- In the same period of eighteen years the appellant employed about five hundred people from whom only five (two of them being sewing machinists) developed carpal tunnel syndrome.
- Statistically, the incidence of carpal tunnel syndrome in the appellant’s workforce in that period of eighteen years was about one per cent.
- Clothing manufacturers in Brisbane, Australia and overseas did not regard the onset of the syndrome by employees as a risk.
- Giving a warning in the terms contended for could reasonably be expected to lead to an increase in the number of complaints of the syndrome wrongly attributed to the appellant’s system of work, thus leading to disruption, inconvenience and unnecessary expense in investigating those complaints and, perhaps, defending claims.
- The trial judge found that medical practitioners had known about the syndrome and that it was “associated with individuals who knit or sew” since about the first decade of this century. This knowledge, that there is a connection between carpal tunnel syndrome and repetitive manual work, did not reach clothing manufacturers, who employ large numbers of people to perform such work, for many years. The connection became known to those manufacturers some time between 1980 and 1986.
- The trial judge said, having referred to the fact that clothing manufacturers as a class did not warn their employees of the possibility that they might develop carpal tunnel syndrome:
“... so the defendant was in no way out of step with other manufacturers in failing to give the warning. An employer’s following a common practice weighs in the employer’s favour in a case of this sort but is not conclusive on the standard of care called for ... Where a danger not formerly recognized is revealed by new knowledge an employer must act reasonably and prudently in discharging his duty to his employees. The employer cannot rely on an industry practice if he knew, or ought to have known, in the light of new general knowledge widely disseminated or of particular knowledge gained from his own undertaking, that that practice should be modified...
In this case the defendant had both general and particular knowledge of the risk of injury from repetitive movements. It had the knowledge of the “scare” in the early 1980s made known in the industry. In addition there had been three cases in the defendant’s own factory before the plaintiff’s symptoms appeared”.
- The trial judge referred to the very low incidence of carpal tunnel syndrome occurring in the appellant’s workforce and went on to say:
“The risk of injury was nonetheless foreseeable, not farfetched or fanciful. From the middle of the 1980s the defendant either was, or should have been, aware of the risk. The next step in deciding whether there was a breach of the defendant’s duty of care to the plaintiff is to determine what response would have been made to the risk by a reasonable person. That must be done by balancing the relevant factors: the magnitude of the risk and the degree of probability of its occurrence, as well as the expense, difficulty, and inconvenience of taking alleviating action and any other conflicting responsibilities which may exist: Wyong Shire Council v. Shirt (1980) 146 CLR 40 at pp 47-48 per Mason J ... Those factors did not call for any alteration in the organization of the work of the defendant’s factory, but a warning of the kind referred to (in) the amended statement of claim should have been given to the employees in my view”.
- The appellant’s submission, in essence, is that it was entitled to ignore the risk of its employees developing carpal tunnel syndrome because the magnitude of the risk was negligible and because the syndrome had many causes not related to work. Counsel for the appellant does, however, accept that the risk that repetitive manual movements might bring on the syndrome was foreseeable in the sense that it was not fanciful or far-fetched. Unless, therefore, the response to the risk put the appellant to disproportionate expense, difficulty or inconvenience, it was unreasonable for it not to respond.
- The only factor pointed to is the chance that giving a warning might have precipitated “hysterical” claims for compensation, thereby involving the appellant in expense and inconvenience defending them. The evidence relied upon for this point does not, it seems to me, establish it. That evidence relates to the proliferation of claims for compensation for repetitive strain injuries which occurred, particularly in Victoria and New South Wales, in the early 1980's. Many of the claims were said to be the product of imagination or invention by the claimants. But there was no evidence that any spurious claim was precipitated by a warning that repetitive work might bring on an injury.
- In these circumstances the position appears to be that there was a foreseeable risk that the repetitive tasks performed by the appellant’s machinists might cause carpal tunnel syndrome. A warning of that chance and that early medical attention might prevent or alleviate permanent damage from the syndrome may have been effective in preventing such permanent damage. The warning could have been given without expense, difficulty or inconvenience to the appellant. Not to give the warning was, therefore, a failure to take reasonable care for the safety of the appellant’s employees.
- In Turner v. The State of South Australia (1982) 56 ALJR 839 Gibbs CJ said (at 840):
“Where it is possible to guard against a foreseeable risk which, although perhaps not great, nevertheless cannot be called remote or fanciful, by adopting a means which involves little difficulty or expense, the failure to adopt such means will in general be negligent”.
In Overseas Tankship (UK) Ltd v. The Miller Steamship Co Pty (The Wagon Mound (No. 2)) [1967] 1 AC 617 Lord Reid said (at 643-4):
“If a real risk is one which would occur to the mind of a reasonable man in the position of the defendant’s servant and which he would not brush aside as far-fetched, and if the criterion is to be what that reasonable man would have done in the circumstances, then surely he would not neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage, and required no expense”.
- Speaking of this passage Clarke JA said in Inverell Municipal Council v. Pennington (1993) Aust Torts Reports 81-234 (at 62,405):
“In the second place it put forward the view that if it was simple to guard against the risk then a reasonable person would not neglect to do so no matter how unlikely it was that an injury might occur”.
- The risk might have been small; the chance that a warning might obviate it may be slight. The warning could, however, have been given without expense or inconvenience. On the authorities it was unreasonable not to give the warning. The approach of the trial judge to this point cannot be criticised.
- The second submission is more difficult.
- In dealing with the question of causation, whether the respondent had suffered damage because the appellant had not given such a warning, the trial judge said:
“The (appellant) will be liable to the (respondent) for its negligence only if the fact that she has suffered some damage as a result of that negligence has been established on the balance of probabilities: see Sellars v. Adelaide Petroleum NL (1994) 179 CLR 332 at 351 per Mason CJ, Dawson, Toohey and Gaudron JJ. The resolution of the issue of causation of course turns upon the answer to the hypothetical question what the plaintiff would have done had she been warned. Proof to the civil standard is nonetheless required, but once damage has been established the principles explained in Malec v. JC Hutton Pty Ltd (1990) 169 CLR 638 will be relevant in assessing its extent and the consequent magnitude of damages for negligence to which the (respondent) is entitled...”.
- This approach is, with respect, quite correct. Causation (which is a shorthand way of saying that a defendant’s breach of duty to take care has occasioned injury or damage to a plaintiff) is, in this sense, a question of fact to be proved by the plaintiff to the requisite standard. It is only after a plaintiff has proved that, more probably than not, he or she has suffered damage by reason of the defendant’s negligence that the court moves on to assess damages. The assessment takes into account the hypothetical question of what the plaintiff would have done in the past, or would do in the future, had it not been for the injury. The comparison between the plaintiff’s situation in fact and the hypothetical situation is the basis for the award. The assessment is adjusted to reflect the degree of likelihood that the hypothesis would have occurred in reality.
- In Sellars v. Adelaide Petroleum NL Mason CJ, Dawson, Toohey and Gaudron JJ said (at 353):
“It may be that Sykes, Gates and Norwest are to be treated as cases which turn primarily on the issue of causation which is ordinarily governed by the general civil standard of proof. The distinction between proof of causation and damages was emphasized in Hotson v. East Berkshire Area Health Authority. There Lord Ackner stated that the first issue that fell to be determined was that of causation. This was to be determined on the balance of probabilities. Once liability was established, the assessment of the plaintiff’s loss could proceed, taking into account any reductions arising from the uncertainty of future events. When the issue of causation turns on what the plaintiff would have done, there is no particular reason for departing from proof on the balance of probabilities notwithstanding that the question is hypothetical”.
- At 355 their Honours said:
“On the other hand, the general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has sustained loss or damage. Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage”.
- The House of Lords has expressed the same conclusion. As well as Hotson, which was referred to by the High Court, in Wilsher v. Essex Area Health Authority [1988] AC 1075 there was no doubt about the hospital’s negligence, but the blindness of a prematurely born baby might have been caused by a number of factors, only one of which was the negligence. The trial judge there had said:
“It seems to me that it follows from McGhee (v. National Coal Board [1973] 1 WLR 1) that where there is a situation in which a general duty of care arises and there is a failure to take a precaution, and that very damage occurs against which the precaution is designed to be a protection, then the burden lies on the defendant to show that he was not in breach of duty as well as to show that the damage did not result from his breach of duty”.
- This was rejected by the House of Lords as being “counter to the unanimous and emphatic opinions expressed in Bonnington Castings Ltd v. Wardlaw [1956] AC 613 to the contrary effect”. McGhee was explained, it being said of that decision that it
“laid down no new principle of law whatever. On the contrary, it affirmed the principle that the onus of proof of causation lies on the pursuer or plaintiff” ([1988] AC 1075 at 1090).
- In a case of negligence based upon an alleged breach of duty to warn it is necessary to prove that it is more probable than not that if the warning had been given the loss or injury alleged would not have been suffered. See QANTAS Airways Limited v. Cameron (1996) 66 FCR 246 at 293-4 and 298.
- The decision of this court in Green v. Chenoweth (Court of Appeal, unreported, Appeal No. 10998 of 1996, judgment delivered 11 November, 1997) compels the same conclusion. Pincus JA said:
“The foundation of the Malec doctrine is the distinction between proof of liability and proof of damages; as to the former, Malec does not affect the well established position that facts must be proved on the balance of probabilities ... so that, if the court thinks it possible, but unlikely, that an event occurred which, if established, would have made the defendant liable the plaintiff simply loses the case and is not entitled to an assessment of damages.
...
where what is complained of is bad advice, or lack of advice, the plaintiff cannot succeed without showing, on the balance of probabilities, that some relevant consequence ensued from the wrong; that consequence would ordinarily be that the plaintiff did or refrained from doing something”.
- McPherson JA said:
“...a plaintiff in an action for damages for negligence continues to be bound to establish that the defendant’s negligent act or omission caused the injury complained of, or at least that it materially contributed to it...I do not consider that this conclusion is affected by the decision in Malec v. JC Hutton Pty Ltd (1990) 169 CLR 638, which was concerned with the different, if not always wholly unrelated, question of assessing the quantum of damages for a contingency once an injury is proved to have been caused”.
- The trial judge found that had the appellant given a warning of the kind he described the respondent would have sought and obtained treatment earlier than she did. His Honour also found that had she obtained earlier treatment she would not have been as severely disabled as she is, though she might not have made a complete recovery. His Honour said:
“In short, the (respondent) would not have wanted to stop work to get treatment had she been warned in January 1988 about the possible nature of her condition, but all things considered I conclude that reason would have prevailed over her determination to keep working and she would have sought medical advice. It must be borne in mind that in 1989 she demonstrated no aversion to seeking medical advice, but unfortunately left it too late to avoid suffering permanent injury.
I should add that I see no possibility that the plaintiff would have given up work as a machinist before January 1988 had she been warned before then. Her desire to continue working and the absence of any symptoms for so many years of work as a machinist would have ruled out such a course. It follows that in my assessment the defendant is not liable to compensate the plaintiff for her suffering carpal tunnel syndrome in the first place, but is liable to compensate her for the extent to which the consequences of her condition were worse than they would have been had she been warned and undergone more timely treatment than she did”.
- His Honour then found that the only damage on which the respondent could rely to claim damages was the deterioration of her condition beyond the time when decompression would cure the defect. That, according to the findings of the trial judge, occurred some time between January, 1988 and before her first operation in August, 1989.
- The appellant did not specifically challenge this finding but argued that the conclusion reached by the trial judge that a warning would have led the respondent to seek treatment in sufficient time to avoid permanent disability is not reasonably open on the evidence. It is, it is submitted, a misapprehension of the facts sufficient to entitle an appellate court to interfere.
- In a case such as this, where the respondent’s condition was not caused by the appellant’s negligence but it is claimed that the injury is worse by reason of the appellant’s failure to give a warning, it is necessary to focus attention on the “damage” the respondent claims to have suffered by reason of the failure and whether that damage has been caused by the failure.
- The damage is not the respondent’s syndrome. She developed that condition without fault on the part of the appellant. The appellant’s failure was in not warning that the condition might be caused by her work and that early medical intervention might remove or reduce its symptoms. The relevant damage is, therefore, that the condition, or its symptoms, is materially greater than it or they would have been had the warning been given.
- Thus it is only if the respondent has established on the balance of probabilities that she is materially worse off than she would have been had the warning been given then she proves that she has suffered damage.
- To determine whether this is so, the court must consider:-
- whether, had the warning been given, the respondent would have sought medical advice earlier than she did, that is, June, 1989; and
- what would have been the outcome of earlier medical intervention?
- The trial judge did not address these questions in terms. His Honour found only that she had suffered deterioration in her condition beyond the time when decompression could have cured the syndrome and that that occurred some time between January, 1988 and the date of her first operation, August, 1989.
- It is obviously a difficult question to determine when, as a matter of probable hypothesis, the plaintiff would have done something she did not do in response to an event which did not occur. The test to apply when making the determination is to ask what the respondent would subjectively have done, rather than what a reasonable person in her place would have done. See Ellis v. Wallsend District Hospital[1989] 17 NSWLR 553 at 579-582. Consequently, the respondent’s own assessment of what she would have done in the assumed circumstances is relevant and admissible evidence. The weight accorded to the evidence is a matter peculiarly for a trial judge. The evidence may be viewed with caution because of the likelihood that it has been influenced by hindsight. See H v. Royal Alexandra Hospital for Children (1990) Aust Torts Reports 81-000 at 67, 551. The court may infer from all the relevant evidence, including the plaintiff’s subjective assertion of what he or she would have done, what would have happened had the hypothetical fact (the warning) been given. As Williams J said (Fitzgerald P and McPherson JA agreeing) in Thomas Borthwick & Sons (Australasia) Ltd v. Stapleton (Court of Appeal, unreported, Appeal No. 255 of 1995, judgment delivered 14 June, 1996):
“There is often a difficulty in clearly demonstrating what would have happened in the absence of the employer’s negligence. All a court can reasonably do is draw an inference as to the likely response of the employee to an effectively communicated instruction and warning”.
- The trial judge found that the respondent was not “an entirely satisfactory witness” who was “inclined to exaggerate the severity of her symptoms”. Nevertheless on this point she appears to have been quite frank. When cross-examined she said:-
“Had you been warned that you might be getting carpal tunnel you would have ignored it, wouldn’t you?-- No.
What would you have done?-- I didn’t know symptoms of this - I never experienced anything like this, so I didn’t know what it was. I didn’t have no idea what symptoms I been going through.
Had you been warned that you might be developing carpal tunnel, you would have ignored the warning. You would have continued to work?-- No.
But Mrs Rybarczyk, that is, in fact what you did. You kept on working until June, 1989 didn’t you?-- I had it mild. In ‘88 the symptoms came from my fingers from one hand. There wasn’t enough pain in that to say anything - to complain..till my symptoms started to develop slowly...
What would you have done had you been warned? Supposing you had been warned in June, 1988 that you carrying out this work as a machinist might develop carpal tunnel syndrome? What would you have done?-- Well, nobody never told me, so I don’t know what I would have done. It depends.
I’m asking you to think about it now, you see. What would you have done had you been told in June, 1988 that you may be at risk of developing carpal tunnel syndrome? What would you have done?-- If my hands were really severe pain, I would just tell them “Well I’m going to go to the doctors and check my arms...”.
Had you gone to a doctor in June, 1988 and the doctor told you after carrying out some tests that you had carpal tunnel syndrome in each of your wrists what would you have done?-- Sorry, I can’t answer that question because I haven’t been to the doctor, so I don’t know what would I say when I haven’t seen the doctor. I don’t know, I can’t answer you that”.
- The respondent’s evidence is therefore of no assistance in deciding whether she would have sought earlier treatment had she been given a warning that the discomfort and sensory disturbances in her hands may be due to carpal tunnel syndrome which would probably benefit from early medical attention.
- It is necessary then to consider the evidence of what she did, in the light of what she knew, to draw the inference of what she would have done had she been warned.
- In January, 1988 the respondent first experienced numbness in the fingers of her right hand. She continued to work and did not seek medical advice. In about May, 1988 she experienced numbness in the fingers of her left hand. She continued working and did not see a doctor. In about June, 1988 she suffered pain in her right wrist. At this time she realised she had some sort of medical problem. She continued to work and did not seek medical treatment.
- Then, or a little later, a co-worker took time off to be treated for carpal tunnel syndrome, paid for by workers compensation. This lady visited the appellant’s factory during her convalescence. When questioned by the respondent about her symptoms she described features which were identical to those experienced to that time by the respondent.
- The respondent continued to work and did not seek medical advice. She was concerned that if she reported her hand problems to the appellant she would lose her job. She was an industrious and conscientious worker. Late in 1988 the respondent’s husband suggested that she see a doctor because the symptoms in her hands was worsening. She did not do so. In February, 1989 the respondent told her supervisor of the discomfort she was experiencing in her hands. She requested the supervisor not to tell anyone else in the appellant’s organisation. In about March, 1989 the respondent went on leave and hoped that her discomfort would disappear with rest and the cessation of work. She was disappointed and on her return to work the respondent informed her supervisor that her symptoms persisted. In May, 1989 the respondent reported her condition to the appellant and sought medical attention in June.
- As well as the co-worker I have mentioned, the respondent was aware of another machinist who “had trouble with her carpal tunnel”. She, too, left the factory on compensation. Neither of these women returned to work. The respondent was fearful that if she left work to obtain medical treatment she would lose her job. She gave evidence:
“...when the girl had gone on the compensation I never seen them again. So in my mind I used to thought, well, I’m 55 years old, if I go to - got the symptoms, I’m finished, too...so there was another girl...she went on the compensation...she had the surgery and she used to come to factory wanted to have her job back...next time she came in she says Mr Hall told her we’re very slack, we haven’t got much work...so she finds somewhere else to work...so after all them girls never came back so I thought, well, they’re a lot younger than me, I don’t think I’ll have a job when I’m going to have this surgery. So when I started this in 1988 it went through nearly 12 months...I started...after Christmas...I worked till February and the pain was that bad...So I realise I have to do something about it because if I’m not going to report it I won’t be able to carry on with the work because it was really severe pain”.
- On this evidence it was not reasonably open to find that the plaintiff would have sought medical treatment earlier had the appellant given the warning thought reasonable by the trial judge. She had a particular reason not to seek such treatment. She was afraid that if she left work to obtain medical treatment she would not be re-employed. In the second half of 1988 the respondent was actually aware of all the information which the warning would have contained except, perhaps, that part which intimated that delay in treatment may make the condition less amenable to successful treatment. But the respondent was well aware that at least one other employee had seen a doctor complaining of symptoms identical to hers and had undergone surgery. She must have realised that the doctor had recommended that course. Given her strong aversion, for the reason she advanced, to taking time off work to seek medical treatment it was not open to conclude that she would have sought that treatment earlier than she did.
- The trial judge concluded, as may be seen from the passage of the judgment last quoted, that “reason would have prevailed” and that the respondent would have sought medical advice because “in 1989 she demonstrated no aversion to seeking medical advice...”.
- Two things may be said about this finding. The first is that his Honour did not find when, prior to June, 1989, the respondent would have consulted a doctor had she received the warning. The evidence does not allow such a finding to have been made.
- The second is that the respondent sought medical assistance only when her pain and disability were so severe that she could not undertake her work as a machinist. It was not that reason overcame her aversion. Necessity did so. She could not continue to work.
- The second inquiry poses equal difficulties for the respondent. If the respondent had sought earlier treatment, would that earlier treatment have materially improved her condition?
- The evidence does not appear to me to allow an affirmative answer.
- The trial judge found that the respondent suffered carpal tunnel damage well before the first symptoms appeared in January, 1988. The exact onset could not be fixed with precision but was probably “about the middle of the 1980's”. I have already set out the trial judge’s explanation of why delayed treatment may be unsuccessful. The trial judge did not find, and could not on the evidence have found, the point in time after which surgery would not completely remove the symptoms because intraneural fibrosis had occurred. No doubt the longer the syndrome goes untreated the more likely it is that fibrosis will occur but when the essence of the respondent’s case is that, had she been warned, she would have obtained treatment before intraneural fibrosis had occurred, she must establish, in order to succeed, at least the approximate date of onset of the fibrosis and the time when she would have sought treatment. The evidence does not establish either point of time.
- There is a further difficulty. The trial judge found that the most likely explanation for the failure of the respondent’s symptoms to resolve was that the nerve had been severely compressed for a long period. The duration of the syndrome was therefore the reason why surgery was not effective. The evidence of Dr McMenamin, which the trial judge accepted, does not, in fact, support this conclusion.
- It is true that Dr McMenamin said that, as a general rule, the more severe the compression of the nerve the less likely the success of the operation. He went on to explain that in the respondent’s case the persistence of symptoms “was due to some degree of intraneural fibrosis or scar formation around the nerve”. The fibrosis could have been present prior to the operation which failed to decompress it. The scar tissue could have been formed as a result of the operation which did succeed in achieving decompression.
- These were “the two possibles”. Dr McMenamin did not express a preference for either one. He did, however, remark that his surgical notes did not record an observation of fibrosis. Normally he would note the presence of significant fibrosis if he saw it when operating.
- Upon the evidence, it is possible that the respondent’s symptoms have persisted because her median nerve was compressed severely for such a period of time as to cause fibrosis within the nerve. It is also possible that her symptoms have persisted because competently conducted surgery to alleviate the condition caused scarring of the nerve. There being nothing in the evidence to allow the court to express a preference for one or the other, the respondent failed to establish that she is materially worse off by reason of not having surgery earlier than she did.
- For these reasons, it is my opinion that the respondent did not establish that the appellant’s failure to warn her in the manner described caused her any compensable damage. The appellant was entitled to a verdict.
- The appeal should be allowed. The judgment in the respondent’s favour should be set aside and there should be judgment for the appellant.