2000/112
26 pages
ROYAL COURT
(Samedi Division)
20th June, 2000.
Before: Sir Peter Crill, KBE, Commissioner
and Jurats Rumfitt and Bullen.
Between Iona Nicola McKay Hotchkiss Plaintiff
And Channel Islands Knitwear Company
Limited Defendant
Claim by employee against employer.
Advocate N. M. C. Santos-Costa for plaintiff
Advocate C. J. Dorey for defendant
JUDGMENT.
THE COMMISSIONER:
1. At the outset it should be made clear that this case is not about what is known as a "repetitive strain injury". It is a claim by an employee against her employer for breach of its common law duty towards her. As a result of that breach Miss Hotchkiss ("the plaintiff") claims that her medical condition was caused by that breach. That she has a painful and disabling medical condition that will prevent her in the foreseeable future from doing the same sort of work as she did for Channel Islands Knitwear Company Limited (the "defendant") is not disputed. By contrast, whether the nature of her work caused it, in whole or in part, certainly is. The defendant denies liability both as to the allegations that it failed to fulfill its obligations to its employee and as to the cause, extent and financial consequences of the undoubted condition (the "injury").
2. The plaintiff was born on the 7th December, 1964. She is therefore now aged 35. At the time of the injury about which she complains she was 30. The plaintiff graduated on the 23rd June, 1987 with a BA Honours degree in Industrial (Textile) Design. At the relevant time the defendant manufactured knitted clothes at its factory, Summerland, St. Helier. It is obvious that to do so satisfactorily it needed qualified textile designers. On the 1st September, 1987 the plaintiff began work for the defendant as an assistant designer. For this purpose she was accepted by the Housing Committee as a (J) Category resident largely as the result of a letter written by Mr. Vic Tinley (a director of the defendant and the immediate superior of the plaintiff). The relevant part of that letter reads:
"Our future prosperity and growth depends upon a commitment to continue to use "in house" designers to produce two ranges each year at our manufacturing unit here in Jersey.
Miss Hotchkiss is employed as a Senior Designer in Jersey, and her housing qualifications are based upon her being an essential employee. There is no alternative pool of designers in Jersey because of the specialist nature of the employment, and we inevitably have to recruit from outside the Island.
Miss Hotchkiss has the sole responsibility for producing our designer ranges on time, and as such she has to work far in excess of a normal 9 - 5 type employment, a considerable amount of work has to be carried out at her place of abode."
3. Because the case took longer than had been anticipated and the unavoidable gaps in continuing the hearing, as well as the difficulty of some witnesses from the United Kingdom fitting in time to testify, the Court (and counsel) had the benefit of the medical evidence being transcribed. Counsel also submitted their closing addresses in writing, although each counsel added to them orally.
In her closing speech Miss Dorey described the plaintiff thus:
"She was intelligent, articulate and hardworking. She was a talented Designer and an important member of the team".
4. She might have added that she was also ambitious and conscientious. One of the important factors in helping us to assess whether the plaintiff was under pressure from her employers was that the defendant could not afford to let the knitting machines lie idle. We heard nothing to suggest that the plaintiff took upon herself more work than she thought her duties to her employer required. The evidence of Mrs. Rosemary Blackmore, who was her landlady for a time, and the plaintiff's' then fiancé, Mr. C. S. Thomas, a detective constable in the States of Jersey Police Force, supports this conclusion as well as that of the plaintiff herself.
5. On the 5th December, 1989 she was made redundant because the defendant had insufficient work due to market conditions. On the 2nd February, 1992 she was re-employed as a full-time designer. With effect from April, 1994 she was promoted to senior designer and her salary raised to £27,500 (gross) per annum. She remained in that post until she resigned in February, 1995.
6. When the plaintiff rejoined the defendant in February, 1992 she worked with Mrs. Fiona Sangan who was the senior designer and who worked part-time but gave six months' notice in September and left in March 1993. To replace her the defendant employed Miss Sarah Boddy who was appointed as a full-time assistant designer with effect from September, 1992. Neither she nor Mrs. Sangan was called to give evidence for reasons that were not apparent to us. As much of this case turns on the way in which the plaintiff had to do her work and the condition of her work station, their evidence would have helped us on those contested matters.
7. According to the plaintiff, Miss Boddy was not computer literate and the plaintiff had to train her. In 1993 the range of ladies' wear was increased to include fashion and designer knitwear. According to the plaintiff Miss Boddy and she repeatedly asked Mr. Paul Tinley, the Managing Director, who denied it, for assistance. They also asked Mr. Vic Tinley who also was not called. It follows that where the evidence of the plaintiff is not contradicted then unless we consider it unreliable, we should accept it. We shall say more about this when we look at the evidence that does contradict the plaintiff's evidence and whether we should prefer hers or that of the opposing witnesses.
8. In September, 1993 Miss Boddy announced that she was pregnant and on the 1st March, 1994 began twelve weeks' maternity leave thus leaving the plaintiff as the sole designer. There is a dispute as to whether she was left in that position for two or for three weeks. The difference is not significant because whichever is correct, given the considerable increase in the defendant's range of garments, she was under great pressure. As we said earlier, the machines could not be kept idle.
9. The defendant's case in this context is that it was a responsible, caring employer. If that is so, it is strange that, unknown to the plaintiff, Mr. P. Tinley and Mr. Jonathan Sangan (another director) had begun to take steps to find a replacement for Miss Boddy in case she did not return, as indeed she did not, although Mr. P. Tinley said that the interviewing of a possible replacement was a precaution. Neither director had any design qualifications nor did they know in detail what computer aided designing entailed. She was replaced by Sally Marchant about whom we shall have more to say later.
10. It will be convenient at this point before resuming the narrative to look at what a designer using computer aided technique was required to do. A designer is expected to design each new garment from its inception in her head until the machines have been given the computerised design by the knitting manager so that they can begin manufacturing. The first phase is for the designer to draw the design in black and white requiring meticulous detail and then colour it. After the design has been approved by the defendant the designer has to transfer it onto the computer aided design screen monitor (CAD). Each new design took a long time to complete. It may be as well to say here that the plaintiff now does not claim that the drawing of the designs caused or contributed to her injury, but rather that the long hours spent at the drawing board added significantly to her workload and fatigue.
11. Putting the approved design into CAD involved using a computer mouse on a tablet. While doing so the plaintiff had to keep her eyes on the screen to ensure that the design, both as to the number of stitches, which were considerable, and the colour, were being accurately transferred. The layout of the plaintiff's work station was as follows: There were two individual desks of the same size but too narrow to set the CAD across them so that the operator would be able to sit directly in front of it. To get over this problem there was a square inset that covered the ends of the desks which were at right angles to each other. The desks were not produced because (a) all the machinery and office furniture had been removed some time before the trial and (b) the defendant said that notice of the intended action by the plaintiff was not received until November, 1996 after the removal of the machinery and furniture to Leicester where it had another factory. Likewise the chair could not be found. As the notice of the claim was in fact sent to the defendant within two years of the plaintiff leaving, it seems unusual that the company could not have found the desks and the chair. Reconstructing the work station with desks and a chair that could not be verified as being acceptably identical had very limited value.
12. The tablet and the mouse were in front of the CAD. On the left of the tablet were the VDU monitor and the sketch pad. The monitor was only used to gain access to the computer.
13. The plaintiff used her right hand to operate the mouse and to feed into the computer the directions for the knitting machines to be programmed. The first two desks had straight legs. The plaintiff worked at that station for four years before being moved upstairs where the desks had cantilevered legs. The plaintiff claimed that, in neither case, could she get her chair (which she said was an old three legged one with no arm rests and a rusty screw that prevented its height being adjusted) under the square inset so as to sit squarely in front of the table and the CAD. It followed, as she showed us, that in order to carry out her work she had to sit to the left of the CAD and her tablet, so that when using the tablet and the mouse and looking at the monitor screen her head was flexed forward and to the right. The angle and degree of flexing were disputed.
14. We resume the narrative. On the 6th June, 1994 the plaintiff was given a range brief for Pierre Sangan fashion. (We should add that, although the defendant had been founded by a member of the Sangan family, there had been a management buy-out some time previously) The next day she flew on company business to Paris where she suffered very severe pain in the neck and head. The first sign of a medical problem was when, on the 13th June, 1994 the plaintiff attended Dr. Haley, also not called, who diagnosed viral encephalitis.
15. For some reason, which is not material, there was a muddle over the receipt of one of the later medical certificates. Thus Mr. Paul Tinley, the Managing Director, was able to refute one of the plaintiff's claims which were that, whilst ill, she was either given work to do or sent on missions for the defendant.
16. On the 24th June the plaintiff was asked by a Mr. Cooke, a fellow employee, also not called, to make some alterations to the length of the garments in the ladies' range. As a result she had to work through her lunch hour. At that time she was off work but was told that if she did not come in the machines would stop. The plaintiff worked from the 27th June until the 4th July when Dr. Haley sent her to the General Hospital. She left Jersey to go to Glasgow where, on the 7th/8th July she attended Mr. Walker Naddell, a neuro-surgeon, who was not called. On the 11th July D. C. Thomas asked the wages clerk if the plaintiff could be given a period of rest as recommended by Mr. Walker Naddell. On the 13th July Sally Marchant took some designs up to the plaintiff's house in Scotland at the request of the defendant and went over them with her. On the 21st and 22nd July the plaintiff again saw Mr. Walker Naddell. On the 26th July Mr. Jonathan Sangan asked her for nine new designs. The defendant received two more medical certificates taking the plaintiff's sick leave to the 15th August. She spent the last fortnight of her sick leave with D. C. Thomas in Antigua where she had some relief but was not wholly free from some discomfort.
17. On the 21st August the plaintiff flew to Birmingham to attend the National Exhibition Centre where she manned the defendant's stall. In early November she saw Mr. Walker Naddel again. She returned to Jersey and on the 4th November was required to travel to the U.K. with two suitcases containing samples. She alleges that they were heavy. Mr. Paul Tinley says they were not. In the event she was allowed the use of a van to take her to the Airport as she was unable to drive. On the 14th November and again on the 2nd February, 1995 the plaintiff saw her GP who advised her to resign. She did so on 4th February. Having returned to Scotland the plaintiff consulted a chiropractor, Mr. Philip Sykes, and saw Mr. Walker Naddell again. Mr. Sykes was not called although a note he made at the time was put in and mentioned two minor car crashes involving the plaintiff and containing the word "whiplash?". In September 1995 the plaintiff had a MRI scan of her neck and a similar scan of her brain in May 1997. No abnormalities were found. It appeared that Dr. Ransford, who testified for the defendant, was unaware of these scans.
18. We should now look at the pleadings. Counsel for the defendant was critical of the Order of Justice where, she said, each and every allegation had not been supported by the evidence. That is a fair comment but in proceedings such as these turned out to be we had to ask ourselves whether the defendant knew what it had to meet and whether, in the round, we had sufficient evidence before us to enable us to reach a decision. We were able to answer both questions in the affirmative.
19. The final amended Order of Justice was filed, by leave, on the 4th October, some days into the trial. After reciting the background and the evidence as alleged by the plaintiff and which we have had to consider, the Order of Justice claimed (1) that the defendant was in breach of an implied term in the contract of employment (an earlier claim that it was in breach of its statutory duty was not pursued) that it would provide the plaintiff with a safe place and system of work, including safe and adequate plant and machinery (a rather grand description of the work station) and (2) negligence and/or breach of contract. Details of the defendant's failure to carry out its common law duties were set out. (3) The allegation about the equipment is as follows:
"Negligently and/or in breach of contract failed to provide for the Plaintiff safe and adequate plant and equipment in that:
(i) there were no arm rests to the Plaintiff's chair.
(ii) the Plaintiff's chair would not adjust either up or down.
(iii) the Plaintiff's chair was extremely old and in bad condition and only stood on three legs.
(iv) the Plaintiff's chair did not have a full length back rest.
(v) VDU and CAD monitor had no reflective screens.
(vi) the CAD design monitor was very old and it noticeably flickered and warped the designs and the colours were not sharp.
(vii) the Plaintiff used the same equipment since 1987 which equipment was purchased in 1986 second hand;
(viii) the equipment was never professionally maintained or serviced.
(ix) the Plaintiff's desks were not adjustable.
(x) the Plaintiff's keyboard was old and the keys were harder to depress than a new keyboard.
(xi) there was no Rest Room for nonsmokers.
Negligently and/or in breach of contract the Plaintiff's work station was so constructed that her head had to be always forward flexed and to the right hand side at all times."
The plaintiff's injuries were detailed thus:-
"Principle(sic) injury, pain and suffering
The Plaintiff suffered subluxation of the joints on the right side of her neck and upper thoracic spine in June 1994. The reason for the subluxation was the lack of satisfactory muscle support in her neck and upper thoracic spine and this lack of muscle support developed as a result of the nature of the work the Plaintiff was required to do for long uninterrupted periods at her workstation. Due to the above work, there was fatigue of muscles around the right shoulder girdle and base of the neck and upper thoracic spine tensed and this led to the muscles weakening. These joints then subluxed and in so doing over-stretched their supporting ligaments. Where the Plaintiff continued carrying out this sort of work in those conditions and for long periods of time, this imposed further pressure on these joints and ligaments, tearing the ligaments and, as part of the process of healing, scar tissue formed around the joints.
The scar tissue is principally responsible for her continued symptoms although where the scar tissue formed, secondary muscle spasm has also developed and part of her continuing symptoms also arise from the muscle spasms. Additionally there is slight swelling of the joint at the C7/T1 level with secondary nerve root irritation, causing pins and needles in her right ring and little fingers."
20. In brief, the defendant denies, or does not admit, the allegations of fact and, consequently it was not in breach of its duties at common law, in contract or tort. It denies, accordingly, that the plaintiff suffered the injuries as claimed as well as challenging the nature of them. It does not admit the figures forming the claim for damages.
21. We have approached this case by asking ourselves four questions:
1. Were the working conditions as alleged by the plaintiff true?
2. If they were, then was the defendant in breach of its common law duties as an employer?
3. If it was, did that breach cause the plaintiff's medical condition, in whole or in part?
4. If it did, then what should be the damages?
The evidence
22. We have divided the evidence into three parts, first the evidence of the lay witnesses, second, the medical and ergonomic evidence and, third, the evidence relating to damages and the likelihood of the plaintiff finding employment.
23. We start with the lay evidence.
24. The plaintiff gave a detailed description of her work station, her position (she demonstrated it as well as described it), her general working conditions and the number of designs and designers between 1992 and 1995. She was carefully and fully cross examined. The nub of her case was that whilst doing her sketches, either at the factory or at home, that did not, as we have said, of itself cause the problem, but contributed to her overall fatigue. It was the prolonged, static position at the CAD and which was not, in the main disputed, that caused the damage. In 1992 there were one and a half designers; herself full-time and Mrs. Fiona Sangan half-time. Even so, because Mrs. Sangan had an ailing child the plaintiff at times had to do some of her work even though Mrs. Sangan was the senior designer. From September they were joined by Sarah Boddy. In 1993 when Mrs. Sangan left there remained the plaintiff and Sarah Boddy until, as we have noted, in March Sarah Boddy left, leaving the plaintiff in sole charge. In May or June she was joined by Sally Marchant who had been sent on a course to Italy. The plaintiff claimed that it was the wrong course for a designer and was supported by the evidence of Mr. Jonathan Sangan although Mr. Paul Tinley disagreed. The plaintiff said that, because Sally Marchant was not fully trained she had to supervise a great deal of her work at the beginning. Mr. Paul Tinley denied that Sally Marchant was not a competent designer. We heard evidence of the number of designs that each was responsible for and a chart was produced. It seems to us that what matters is not the proportion of the plaintiff's designs compared with Sally Marchant's, but whether the plaintiff was overstretched. The plaintiff also said that her designs were of a higher standard. In 1994 she was exceptionally busy with new styles being demanded so that she had to work at the CAD for fourteen weeks at a stretch and working at week-ends. Mr. Paul Tinley denies this. The plaintiff said that she had asked Mr. Vic Tinley for a new chair and different desks but was refused. She said that she asked Mr. Lynch, the defendant's financial director, in a car park in Leicester in August 1994 for a new chair. He denied it but, strange to say, remembered, as did the plaintiff, discussing his wife's back. Why therefore did the conversation take place?
25. The defendant's case is that the plaintiff was not obliged to keep in the position at the side of the CAD but could take breaks. No doubt this is true, or would be for a less conscientious employee. There was a break mid-morning for fifteen minutes at 10.15 and an hour's lunch break between 1 and 2 p.m., but she said she often had to work through it. Sometimes she did not get home until 8.30 p.m. Again Mr. Paul Tinley denies this. D. C. Thomas supports her on this point. It is not disputed that her hours were changed due to one of the other employee's CAD being out of order. On some occasions she had to work shifts from 1 p.m. until 11 p.m. (two weeks) and from 4 p.m. until 2 a.m. (two weeks). She was refused peremptorily when after six months after being re-employed she asked Mr. Vic Tinley for new desks. He pointed to her desks and said "these are the desks". Again when she complained to Mr. Vic Tinley and asked for an anti-glare screen on the VDU she was told that there was nothing he could do. It is unnecessary to add further details about her equipment. We accept her evidence on this point and also about the number of trips away for the defendant. (This was not seriously questioned) Likewise we accept her evidence about her asking for different equipment and help. She said that she kept going out of loyalty to Mr. Vic Tinley's daughter whom she knew socially. Where her evidence was challenged by Mr. Paul Tinley we have unhesitatingly preferred that of the plaintiff.
26. In short, a clear pattern emerged during the hearing. She was a very conscientious, talented designer who was required to work long and sometimes unsociable hours, with little or no time off in lieu. Mr. Vic Tinley's remarks on one occasion that the defendant was running a business indicated to us that almost nothing was allowed to stand in the way of keeping the machines working, certainly not the welfare of the plaintiff. Her requests for help and better furniture were ignored and not one of the directors ever enquired after her health. Mr. Paul Tinley said that in 1994 he did not know she was ill with back trouble until November, yet Mr. Sangan said that he knew about this in August. We find it remarkable that the directors were so determined to keep up to schedule that they appeared to discount the staff. So much so, that in the summer of 1994 when she was off work, the plaintiff feared that if she did not return or work at home she would be sacked. Indeed she was threatened once by Mr. Vic Tinley who said that she had been redundant once and could be again. There is some evidence that she asked for a substantial rise in salary and was told, again by Mr. Vic Tinley, that she need not think that she had the defendant over a barrel. The question of redundancy was mentioned three times and that he wished he could take time off. To us this is hardly the action of a caring employer to hint that the plaintiff was malingering. We have to say moreover that the impression we gathered from Mr. Paul Tinley was that he too was determined to keep the machines working come what may.
27. The plaintiff said also that Mr. Jonathan Sangan knew what was happening. He told us that the work was hard for everyone. It seemed to us that of the two Mr. Paul Tinley was the stronger character and indeed the more senior. On one occasion the plaintiff said that she had been reduced to tears by Mr. Paul Tinley. D. C. Thomas corroborated. In short the plaintiff claimed that she had not been treated with proper consideration and on occasions was bullied.
28. It is interesting to look at the evidence of Mrs. Le Tiec who said that relations between the staff and the management were not as good as they should have been. We can well believe it. The plaintiff's determination to do as much of her work as she could even when ill and in pain is shown by the evidence of her brother-in-law who said that whilst she was staying with them in Scotland in 1994, although in great pain she completed the portfolios she had been asked to do. Mrs. Blackmore who, as we have noted, was her landlady for a time in Jersey, said that she used to come in drained.
29. We turn now to the defendant's lay witnesses. Mr. Lynch said that salaries were reviewed in February and back dated to the 1st January. A bonus scheme had been in force from the eighties. At that time it was about 10% but dropped to around 7 - 8% in the nineties. In 1993 the plaintiff rated in the junior management grade and in 1994 in the middle grade. No bonus was paid in 1997 and the management moved to Leicester in 1998. The manufacturing side of the defendant's business is now closed.
30. Mr. Jonathan Sangan agreed that he had no designer qualifications. He said that the plaintiff's job description included that of selecting staff. The course in Italy for Sally Marchant was to teach the method of codifying the drawings which neither she nor the plaintiff did. It was not the best course. He passed on to the other directors the plaintiff's request for help. As far as the proportion of designs was concerned from 1994 Sally Marchant did her own.
31. Mr. Paul Tinley had been the Managing Director for twelve years. He shared responsibility for production with Mr. Vic Tinley. He had good relations with the plaintiff with whom he had social contacts. He recalled only one occasion when the plaintiff worked late. He agreed with the plaintiff about the time when another employee's computer broke down and the plaintiff had to work shifts as she described them except he denied that she had had to work a shift from 10 p.m. until 6.00 a.m. He did not remember the plaintiff asking for an assistant in 1993. If she had done so he would have refused as the company was sufficiently manned. In 1993 the plaintiff was entitled to no more than three weeks' holiday as she had not accrued sufficient. He did not tell her not to take a holiday. The plaintiff could well have worked during her lunch hours. It was a fairly loose regime and he did not stand over the staff. In 1980 the defendant had bought totally new furniture. He considered that Sally Marchant's Italian course was the right one. He agreed that the plaintiff had given some training to Sally Marchant on the use of the Mecmore CAD. The designs were produced fifty-fifty between them. He agreed that, as we have noted, it was hard work for everybody. He agreed also that in 1994 the designs had increased from forty-five in 1989, when there were three designers, to ninety-five styles, when there were two designers, the plaintiff and Sally Marchant. Whilst she was training Sally Marchant the plaintiff put most of the designs onto the computer. He did not remember the plaintiff saying she was in pain in 1994 although he knew she had been ill. She told him about her neck and he denied, very strongly, that he had placed his hands around or on it as alleged by the plaintiff. He had asked the plaintiff how she was and denied saying to her, as she alleged, that it was not time to be ill. He agreed that it was not possible to identify the desks used by the plaintiff. In April the plaintiff had asked for a rise to £30,000. Instead she received, as we have noted, £27,500 and a higher bonus. He did not threaten her. We attach little importance to his behaviour after the plaintiff had given in her notice and was about to leave the Island. He was clearly incensed as he had had no warning until he found that the plaintiff had cleared her desk and removed some designs. He wanted the latter back and wrongly jumped to the conclusion that the plaintiff had stolen them when in fact she wanted to complete them at home. The irate letter he wrote to the plaintiff, after she left which was couched in very unpleasant terms, was not put to Mr. Jonathan Sangan to ascertain if he, as a co-director, agreed with it.
32. After careful consideration of the whole of the lay evidence we answer conditionally our first question in the affirmative.
33. But even if our reading of the situation is correct we understand the secondary line of defence to be that, nevertheless, the ergonomic evidence of Mr. Galer, which should be preferred to that of Mr. Baird for the plaintiff, showed that the working practice was acceptable.
34. Accordingly we now have to look at the ergonomic experts' evidence. We heard a great deal about head angles from Mr. Galer. We had already heard the evidence of Dr. Reardon concerning this aspect of the case. We prefer his evidence to that of Mr. Galer on this point. The important factor to be kept constantly in mind is that, even if the angle of the head in relation to the screen was possibly within an acceptable range it was the holding of the uncomfortable position (accepted as that by Mr. Ransford) that was the problem.
35. We were not impressed by the argument that, because some of the literature on working posture came out after the events that have led to this case, that thereby excused the defendant from realising that prolonged working in front of the work station provided by it, and in that particular posture, as claimed by the plaintiff and accepted by us, might well cause injury.
36. Like the medical experts the two ergonomists depended on the parties for the facts. Since we have accepted the plaintiff's version of the facts, the comments of Mr. Baird are very relevant to our decision.
37. Dealing with the work equipment at para 3.4 of his report of August, 1999, he said that the nature and configuration of the plaintiff's furniture and equipment were a major source of risk as it forced her to work with a compromised posture.
38. It was widely known in 1992 that designers, working at VDU terminals could be a risk of muscular-skeletal disorders. On 31st December, 1992, the Health and Safety (Display Screen Equipment) Regulations 1992 came into force in the United Kingdom following the European Directive (90/270EEC) on "minimum safety and health requirements for work with display equipment". These Regulations applied to the defendant's Leicester factory. Mr. Baird would have expected, and we concur, that the defendant although under no legal duty to do so, ought to have had a single Health and Safety Policy covering its Jersey factory.
39. In summary the Regulations required employers to:
Assess risks
Reduce risks
Monitor risks
Train and inform users, and
Plan daily work routines
40. There is no evidence that the defendant did any of these things in Jersey, whatever it may have done in the United Kingdom.
41. There are two further comments in the report which should be noted. The first is at page 142 and is as follows:
"Many musculo-skeletal problems, if spotted early and treated swiftly will settle with few long term complications. If however, causal conditions remain unchanged and people are forced to work through their pain, then chronic problems are likely with the potential for psychological complications."
42. His evidence on this aspect of the case coincides with the medical evidence. The second is at page 146 which reads:
"Expecting someone to work from home whilst signed-off sick, even after express concern raised by their GP, is disgraceful management showing no regard for the health, safety and welfare of employees."
43. His conclusion was that the main cause of the plaintiff's problems "prolonged poor posture caused by a combination of inappropriate workstation provision and excessive workloads." The defendant's response to the plaintiff's problems was wholly inadequate and added to her distress.
44. At the time of that report the reconstruction carried by Mr. Galer had not been done, and accordingly having seen it Mr. Baird prepared a second report. He commented on the fact (admitted by Mr. Paul Tinley in his evidence) that neither the furniture nor the equipment were used in the mock up and that the CAD could not be made to work. He, rightly in our view, said that (this combination) made it impossible to observe the plaintiff performing her designing tasks and that, consequently, it was impossible to observe a true working position. Moreover some of Mr. Galer's suggestions that the plaintiff's posture was not constrained confirmed his assessment of the cause of the plaintiff's neck problems as set out in his first report.
45. His oral evidence did not differ significantly from the opinions expressed in his two reports.
46. Mr. Galer made three reports. The first was mainly factual based on what the defendant told him and did not help us to any great degree. The second and third supplemental reports were based on experiments at the simulated work station using a model for the second report. As to the second supplemental report Mr. Baird had the following criticisms:
1. Was the chair in the correct position?
2. The model was not representative as she was not a designer.
3. Was her position a true "designer working posture"?
4. It was important to know the resting and working posture.
5. The screen did not show any designs.
6. In photograph 4 the tablet was in front of the model.
7. The position of the model would not be acceptable for long.
8. If her turning angle was more than 45 degrees it would be a poor working design.
9. A designer would look directly at the screen.
47. He added that frequent rests were important. Switching from sketching at the same work station would not be a rest. Photograph 4 showed significant head movement.
48. Before moving on to Mr. Galer's evidence we should say that we are satisfied that both ergonomists were masters of their profession and doing their utmost to assist us impartially.
49. The main points of his evidence in examination in chief may be said to be these:
1. He could see no reason why the chair legs could not have been arranged so as not to interfere with the desk. It would have been easier to do this with cantilevered legs.
2. He would expect the plaintiff's injury to hurt and there was no indication that it hurt before June 1994.
3. Her symptoms were not caused by the vertical legs. They developed during the time the plaintiff was doing a lot of sketching.
4. Students were taught to look at the critical features of a reconstruction.
5. He disagreed with Mr. Baird. The shoulders of the plaintiff would have turned as well as her head and one had to make a deduction in the angle by the amount the shoulders turned.
6. Sketching was unlikely to have caused the symptoms.
7. He had not come across a similar case before.
50. Because the reconstruction was flawed in a number of ways that have already been noted such as the workstation not being the original, the model not being a designer, the distance between the model and the computer not being the same as that of the plaintiff, (as we have said previously) we have not attached the same importance to the reconstruction as the defendant.
51. A number of matters emerge from Mr. Galer's first report. First he says that, overall, the attitude of the employers seemed not to have been reasonable. As we have found that the facts are substantially (so far as her working conditions are concerned) as the plaintiff claimed them to be, Mr. Galer's comments in his first report take on a greater significance. For instance the last point of his conclusions is as follows: "CIK does not seem to have acted reasonably in respect of at least some aspects of her situation following the commencement of sickness leave in June 1994."
52. Even if Mr. Galer were right in the matter of the head rotation angle, which is arguable, the point as we have had to stress throughout this case is that the angle is but one factor in the equation and a static rotated head posture for prolonged periods of time cannot be supported as good ergonomic practice.
53. Taking the ergonomic evidence into consideration with our conditional finding on the lay evidence we are satisfied that we may now, unconditionally, answer our first question in the affirmative.
Medical evidence
54. There were two medical experts. Because of the way the case ran we heard first the evidence of Mr. Ransford, MB BCh. FRCS. He was an orthopaedic spinal surgeon in the University College Hospital, London, the Middlesex Hospital, London and the Royal National Orthopaedic Hospital. He is also honorary consultant at the hospital for Neurology and Neurosurgery, Queen's Square, London. He is thus well qualified to advise on a case of this nature. However he only saw the plaintiff on the 2nd September not long before the case started. The intended witness for the defendant was unable to come over for the hearing. In the course of his evidence he said the injury was impossible to diagnose because she had not had all the tests, and that he could not rule out a cause without knowing what was wrong with her. Shortly after the case at the next available time when we could assemble, we invited counsel for the defendant to consider whether the defendant might wish Mr. Ransford to examine her further. That suggestion was not taken up.
55. Like Dr. Reardon, called by the plaintiff, he was dependent in ascertaining the facts on what the plaintiff told him as well as the medical records.
56. The following is a summary of the main points of his evidence in chief:
1. The plaintiff has a reverse cervical lordosis.
2. There is a tight little kyphosis in the mid-cervical.
3. Her posture would not cause her neck condition but would exacerbate it.
4. When she went into the General Hospital in 1994 she was very unwell.
5. He could not confirm that the plaintiff had viral encephalitis. He also said that her problem started at the time it was diagnosed.
6. He could not rule out a cause for the plaintiff's condition as he did not know what was wrong with her.
7. Pain from whiplash injuries usually comes on within twenty-four hours.
8. He had never heard of Mr. Walker-Nadell. (In fact we have not relied on his diagnosis.)
9. He was not surprised that the plaintiff's symptoms continued whilst she was away (in Antigua).
10. The x-rays showed that the plaintiff could not posture her neck in the correct position of flexion extension. It was highly abnormal.
11. The plaintiff would have had that condition irrespective of her work.
12. The term multiple sub-luxation was not a medical term but a chiropractic one. Chiropractic practice is the theory of manipulation. It was now very acceptable.
13. Paragraph 20 of Dr. Reardon's report of the 27th March, 1998 was pure supposition. It is as follows:-
"(20) I believe, from the history and my examination, that in June 1994 joints on the right side of Miss Hotchkiss' neck and upper thoracic spine subluxed (came out of position). I believe the reason for the subluxation was the lack of satisfactory muscle support in her neck and upper thoracic spine and I believe this lack of muscle support developed as a result of the work Miss Hotchkiss was required to do. I believe that, where she sat for sometimes very long periods, with muscles around the right shoulder girdle and base of neck and upper thoracic spine tensed, as in drawing or in using a computer mouse, this led to muscle fatigue and, in the absence of breaks and where the same work was carried out over many days the muscles weakened. I believe that these joints then subluxed and in so doing over-stretched their supporting ligaments. I believe that, where Miss Hotchkiss continued carrying out this work, this imposed further pressure on these joints and ligaments, that ligaments then tore and, as part of the process of healing, scar tissue or adhesions formed around joints and this scar tissue is responsible for her continued symptoms, at this stage three years since she last worked."
14. There was no way one can say that a small joint in the neck has been torn.
15. The plaintiff would have to find a way of living so that the condition of her neck was not aggravated.
16. The plaintiff was extremely tender over the right side of her neck over cervical facets. There had been some sort of whiplash, possibly during one of her blackouts. Some trauma or other had created that situation.
57. The main points in his cross-examination were as follows:
1. He found no evidence to support a trauma.
2. Her injury was an organic and relatively serious complaint.
3. How her neck sits was totally irrelevant. Her condition was unique.
4. He confirmed paragraph 6 of his report, which is as follows:-
"(6) It will be determined from the above that I am not of the opinion that her work has caused the present problem. I entirely agree (with Mr. Buckhill) that sitting at a computer with this sort of neck problem would make the symptoms worse but it was not the cause of them. If it is argued that all her neck problems are due to her work this is unique in my experience."
5. It would be very difficult to cure her. He would do nothing.
6. He could not say categorically that the pains she suffered from February to May and in June 1994 were not caused by her work.
7. He could not confirm that (in fact) the plaintiff had viral encephalitis. It was possible that she did not have it. We interpose here to point out that if this is so, then that is inconsistent with his earlier evidence that the plaintiff's problems started from that date.
8. He saw about one case a year with a similar kyphosis.
9. The plaintiff's case was a medical enigma.
10. It was very unusual for a whiplash injury not to get better after five years.
11. The particular articulation of the plaintiff had to start as a congenital thing.
12. It could have been caused by (as counsel put it) a very poor work station, a very poor posture and appalling working conditions.
13. He accepted that bones needed muscles to support them and agreed with paragraph 20 of Dr. Reardon's report of March 1998 up to the "and" after "the thoracic spine".
14. Medical subluxation is where the joints were half way dislocated. Chiropractic subluxation is when they are normal but the chiropractors think they are not sitting just right.
15. He did not accept chiropractic analysis. They picked it out of fresh air.
16. Scar tissue had no bearing on the symptoms.
17. The poor posture was the kyphosis.
58. We turn now to Dr. Reardon. He is a fully qualified doctor, MB, Bs, MRCP, and has been a consultant rheumatologist to Croydon in the NHS since 1981. It is clear that the disparaging remarks of Mr. Ransford and the questions of the defendant's counsel suggesting that, because Dr. Reardon appeared more for plaintiffs in similar cases, in some manner his evidence was slanted in favour of the plaintiff, have no justification. The main points of his evidence in examination in chief are as follows:-
1. He sees patients with a variety of musculo-skeletal problems.
2. He had seen many patients with trauma and non-trauma injuries.
3. He confirmed paragraphs 12,13 and 14 of his report of March 1998 which are as follows:-
"12 When I examined her neck, I noted tenderness over the base of the neck on the right side extending to the upper thoracic spine at the 3rd costotransverse level where ribs attach, with this tenderness being maximum around the C7/T1 level on the right. There was marked muscle spasm affecting the paravertebral muscles throughout this area, with similar muscle spasm affecting the right trapezius muscle and the right sternomastoid muscle. Tenderness was present over the right 2nd and 3rd costochondral joints over the anterior chest as well as the muscles between ribs, the intercostal muscles, over the upper chest on the right.
13 When I tested neck range of movement, there was a little restriction in lateral bending and rotation to both sides, these movements being accompanied by pain, and a "tight" sensation reported by Miss Hotchkiss towards the extreme of range of movement. There was no postural abnormality in the neck or upper back.
14 There were no abnormal neurological signs in upper limbs. Shoulder range of movement was unrestricted. There were no other abnormalities on examination."
4. He found no evidence of kyphosis. He looks for it all the time.
5. He confirmed what he meant by subluxation thus: ... "a joint had become what we call subluxed, which means that it partly comes out of alignment. If it comes further out of alignment then, of course, we say it dislocates. The term subluxation is less commonly heard."
6. He said that when it subluxes a joint is out of alignment which means that the ligaments holding the joint in place are torn and bleed.
7. The joints were stretched and therefore bled and scar tissue then developed.
8. In the plaintiff's case scar tissue contained the nerve which leads to referred symptoms such as pins and needles.
9. He was absolutely certain that her condition related to her work which caused it.
10. There was no evidence of any particular postural change.
11. He could not see any other reason other than her work causing it.
12. If she had kyphosis, which he did not find, her work would not have exacerbated it.
13. There was no distinction between medical and chiropractic subluxation. "Subluxation is subluxation".
14. He did not agree with Mr. Ransford that continuing to work as she did would make the pain worse but would not affect the pathology. It was more than a little pain one got from unaccustomed exercise.
15. If the plaintiff had had a traffic trauma she would have known about it there and then. He found no evidence of such trauma.
16. His report in August 1999 did not differ from his March 1998 one.
17. It was a very unusual case but if "unique" meant "one" he did not agree.
18. The plaintiff had not let the muscles rest enough, therefore tearing occurred.
19. The muscles would have no chance to recover if the plaintiff had returned to work. If she did they would cry "stop".
20. If the plaintiff had had viral encephalitis she could not have got out of hospital.
21. The scan showed a reverse cervical lordosis in the thoracic spine. It was a secondary problem.
22. The kyphosis mentioned by Mr. Ransford was lower down between the base of the neck and lower back.
23. If there is a problem in one area (the patient) will compensate by putting pressure onto another area.
24. If there had been a bone tumour the plaintiff would be dead.
25. The plaintiff's condition was not neurological.
26. Stacks of patients got better from whiplash injuries.
59. The main points of Dr. Reardon's cross examination may be said to be these:-
1. He saw about 2 to 2,000 patients a year. 20% had complex neck shoulder problems. His particular interest was in work problems.
2. His work covers the whole gamut of musculo-skeletal problems. He did not specialise in cervical spine matters.
3. Rheumatologists deal particularly with joint conditions, muscle conditions, diseases and injuries, ligament diseases and injuries.
4. He had not published much but was hoping to have a chapter in a book on work related to upper limb conditions. He was an honorary consultant at the Robens Institute at Surrey University.
5. He had prepared many medical reports but had appeared more for plaintiffs in the ratio of 100 to 2. He was involved in about 100 cases a year and prepared about 200 medical reports.
6. In about 55½ of them he advised there was no case.
7. At the time he examined the plaintiff in March 1998 he had not seen the scans or the x-rays.
8. An x-ray was a crude tool.
9. On reflection he must have seen the MRI report in 1998 but it was in Dr. Gibson's report.
10. Subluxation was the primary problem of what was going on in the neck.
11. It was easier to see postural changes to the thoracic spine than the neck muscles.
12. The weakening muscles because of her work opened up and the ligaments escaped and broke and bled causing scar tissue. That condition then led to the reverse cervical lordosis.
13. The muscle spasm was at the junction of C7.T1. The reverse lordosis was in a different site three inches away at C4/5.
14. The plaintiff was compensating lower down for not being able to use the whole of her neck.
15. You do not need to know if the head is turned 35, 40, 25, or 30 degrees if the plaintiff was in the posture as she described for any significant period.
16. Commonsense tells you you cannot do that hour after hour.
17. The head was designed to look straight ahead.
18. Prolonged static posture like the plaintiff's causes something more than just discomfort.
19. There was literature on the subject but he did not "dig them out". There was no current research because there were certain things that (we) know happen.
20. He had read (the pamphlet) Work Related Upper Limb Disorders issued by the Health and Safety Executive.
21. He agreed that a passage in that pamphlet describe the plaintiff's position. (The relevant parts of that passage read - "Prolonged tissue loading caused by static postures can however be harmful resulting in a diminished functional capacity".)
22. He could not quote a reference but accepted that experience led him to make associations and note certain things. He had been doing rheumatology for 25 years.
23. Work related upper limb disorders had nothing to do with the neck.
24. An enormous tear was not necessary to be clinically apparent.
25. The case was very uncommon.
26. He had no way of measuring the exact ligaments that were torn short of asking a surgeon to open up the neck.
27. His diagnosis of scar tissue had been rejected on occasions.
28. There was not a congenital lordosis at C.4/5 unless one of the bones at C/4 was out of shape which it was not.
29. He had not seen a reverse lordosis in whiplash cases.
30. It was very unusual for whiplash cases to drag on. He would have expected a bone fracture. It would have to have been quite an accident.
31. As regards Mr. Sykes there was no way the symptoms could start in December 1993 after an accident in March 1993.
32. One might accept symptoms after a couple of days or at most three, but not beyond.
60. There are a number of common matters linking the evidence of the two medical experts.
1. Each agrees that the plaintiff has a reverse cervical lordosis.
2. That that condition was not congenital.
3. That symptoms of a whiplash injury should show very soon afterwards.
61. We have also had to consider the ergonomic evidence in evaluating the medical evidence. In short, we were left with this position;
1. Mr. Ransford could not say positively that the condition of the plaintiff could not be caused by the working conditions. On the other hand he said that the plaintiff's condition was exacerbated by them.
2. Dr. Reardon had no doubt that the working conditions had caused the plaintiff's condition.
3. Mr. Galer thought that they would not have as he had not seen a similar case before.
4. Mr. Baird like Dr. Reardon attributed the plaintiff's condition to the working conditions.
62. In our view there is insufficient evidence to remove a doubt that the plaintiff had an existing condition, whether congenital or not, and, accordingly, we find that whilst her condition was not caused by the working conditions, they contributed and, indeed, exacerbated it.
63. Turning to the second question we must now ask whether the defendant was in breach of its common law duty as an employer. In our opinion the defendant did not supply the plaintiff with proper and adequate furniture and equipment suitable to the required lay-out and that failure was coupled to an excessive workload. However even if this is so, the likelihood of such a scenario causing injury, not necessarily of the same sort as that of the plaintiff, has to be considered. Since we have found that there was a static posture which was prolonged, coupled with the other matters mentioned above, the likelihood of possible damaging consequences to the plaintiff must have been apparent and, hence, foreseeable. See Stewart v West African Terminals Ltd. and another. Lloyd's List Law Reports 1964 vol. 3 at page 375 where Lord Denning, M.R. said this:
"It has been argued before us that this consequence was not reasonably foreseeable. It is said that since the case of The Wagon Mound [1961] AC 388; [1961] 1 Lloyd's Rep 1, the old doctrine of In re Polemis and Furness, Withy & Co., [1921] 3 K.B. 560; (1921) 8 Ll.L.Rep. 351, has gone and a person is not liable for the consequences of negligence except so far as they are reasonably foreseeable by him. That proposition must be taken subject to this qualification, that it is not necessary that the precise concatenation of circumstances should be envisaged. If the consequence was one which was within the general range which any reasonable person might foresee (and was not of an entirely different kind which no one could anticipate), then it is within the rule that a person who has been guilty of negligence is liable for the consequences. That appears not only from Hughes v. Lord Advocate, [1963] AC 837, but also from the recent case of Doughty v. Turner Manufacturing Company Ltd., [1964] 1 QB 518, in this Court."
64. The defendant shut its eyes to the welfare of the plaintiff and concentrated on keeping its production going. It is ironic that market forces have led to the closure of its Jersey manufacturing business as well as that in Leicester.
65. We answer our second question in the affirmative.
66. As regards the note of Mr. Sykes the chiropractor, we discount it entirely. The accidents were minor and the plaintiff did not consult a doctor at the time. After the medical evidence of Mr. Ransford the matter should not have been pursued.
Damages
67. Having found for the plaintiff, at least in part, we now must look at her claims under this head. We wish to say this at this stage. Because of unforeseen circumstances we were unable to begin consideration of the case until early this year. We then felt that we needed Arthur Andersen, the plaintiff's accountant to address the question of the plaintiff's ability to be retrained or at least to do some other work. Accordingly we met with counsel and asked Mr. Santos Costa if this were possible. There is a gap of some size on this point between that firm and Deloitte & Touche for the defendant. We were told that this would be done. After more than two months when we did not have the additional information and so had to proceed as best we could, we have now received it. Because, also, we felt that the parties should be told of our decision on liability we told counsel on the same occasion that we had concluded that the working conditions had exacerbated the plaintiff's condition, although we were not satisfied that they had caused it. It was implicit that a written judgment with our reasons would follow as it does now.
68. The plaintiff claims £53,285.28 special damages, general damages, with interest on both these heads and full indemnity costs.
69. There seems to be no argument over the special damages. We therefore have to decide the following matters:
1. When is it likely that the plaintiff could resume work and if so what sort of work?
2. What could her expectations have been had she been able to continue as a textile designer.
3. If there is a difference between the two calculations then if the plaintiff could have earned more as a textile designer than in a different post, she is entitled to that difference, properly discounted.
70. On the question of her employment prospects we heard two experts; Mr. David McNaught B.Soc Sci (Hons) Dip I.R. M.I.P.M. M.A.S.T.H. for the plaintiff, whose work including career counselling included 60 per cent design cases, said that the knitting industry was highly creative and technical and that good designers were in short supply. He had prepared a report dated 10th September, 1999 and confirmed it orally. He suggested that in 1999 the plaintiff's 1999 salary would have been between £30,000 and £41,000. We recall that the Jersey part of the defendant's business was moved to Leicester and designing has now ceased. The general damages claim includes damages for pain, suffering and loss of amenities, future loss of earnings, loss of earning capacity and damages for future medical treatment and expenses.
71. Although the figures for the specials have not been challenged the defendant quite properly makes the point that the plaintiff has to satisfy us that during the time for which she is claiming loss of earnings that was a total loss. She was in a remote part of Scotland where the main industries are agriculture and fishing (neither of which would be suitable for the plaintiff) with hotels and catering industries. She has looked for work in her area, and has been receiving a job-seeker's allowance, but according to Mr. McNaught, "reasonable and suitable vacancies within a reasonable distance appear to be in very short supply". We note in particular two paragraphs in the conclusion and summary of Mr. McNaught's report. The first is on page 17 and is as follows:-
"With an employment history of only 8 years from graduation and a future career of over 30 years, Miss Hotchkiss was in the early stages of her career development. Despite this she had achieved a senior and responsible position as a senior designer of a knitwear company before the age of 30. This would confirm Miss Hotchkiss as a well-above average performer in her field."
72. Mr. McNaught concludes that (with that background) her potential earnings could reach around £49,000. On page 18 he concludes that given her intellect and education the potential for future employment must be considered. He adds:-
"However, Miss Hotchkiss will not have the level of opportunity previously available to her, will experience a long-term loss of earnings, and will remain disadvantaged in the labour market."
73. He concluded that there was obviously very limited scope for someone of the plaintiff's talents within the limitations of her condition. She was intelligent and could be re-trained. She should move out of the commercial world and e.g. into the education field.
74. The second expert in this field was Miss Jill Cheeseman, B.Sc.Hons in Psychology, Licentiate of the Institute of Personnel and Development, of HJS Personnel Services. Like other witnesses she had prepared two reports. The first was on the 6th September, 1999 and the second on the 25th October, but, as Mr. Santos Costa pointed out the second report was submitted too late for it to be put to Mr. McNaught whose evidence had been given and who had since had left the Island. Like the other experts she was dependent on what the parties told her.
75. The main points of her first report may be said to be these:-
1. Scotland's economy has a relatively buoyant employment market, including Ayrshire.
2. An examination of the Drapers' Record indicated that whilst the plaintiff would have been unlikely to have achieved a similar salary in London an article in that journal in May 1988 showed that the earnings for designers in New York could be as high as (£45,000).
3. Had the plaintiff continued with the defendant her current earnings might be £31,166 per annum.
4. The plaintiff would benefit from some guidance in re-assessing her future employment prospects.
5. The plaintiff's experience, if she returned to an alternative career in the fashion industry, might allow her to earn between £17,000 and £20,000 per annum.
76. Her second report was written because of two additional pieces of information not previously known to Miss Cheeseman. The first was the address of the plaintiff and the second was that Miss Hotchkiss intends to consider future training as a teacher. Her first report was based on the plaintiff living in Maybole. Her second on the plaintiff's actual address in the Dunoon and Rothsay "travel to work" area. After analysing work opportunities in that area and noting that, although there is relatively high unemployment the trend during 1999 has been downward, she concludes that, given the plaintiff's educational background it was surprising that she had not been able to find work. As regards training to be a teacher, the earliest time the plaintiff, who will need to take a one year post graduate certificate of education (PGCE), the courses for which are available at a number of universities, can be enrolled will be September 2000. Once she had completed the course she would have to carry out a two year probationary period. After that, the plaintiff's commercial experience should enable her to progress up the salary scale. On the present information her salary as a teacher would be £20,796 gross per annum. In the meantime she should be able to find work at between £8,080 and £10,881 gross per annum. Miss Cheeseman does not appear to have taken instructions from the defendant about the plaintiff's future earnings. The main differences between the reports of Mr. McNaught and Miss Cheeseman lie in two respects. Mr. McNaught estimates that the plaintiff could earn part-time something between £4,000 and £5,000 per annum. Miss Cheeseman's figure, as we have noted, is considerably higher as is her starting figure for a teacher. As regards the employment figures since one set is based on half-time and the other on full-time there is not a lot of difference between them.
Loss of earnings
77. There is a dispute as to when that loss should start. The plaintiff claims that from the time she left the defendant's employment in February 1995 until 1999 the loss should be total. The plaintiff looked for work and had a job seeker's allowance but Mr. McNaughton suggested that she might have found a part-time job at a median salary of £4,329. In assessing her loss of earnings up to 1999 we have made an allowance for what she might have earned in and around her area where she was living. This loss is for past loss.
78. As to future loss we have considered the reports and supplemental reports of the two accountant firms and the evidence of Miss Cheeseman. We must also take into account our finding that, whilst the conditions of work did not cause the plaintiff's condition, it exacerbated it. We accept that, if the plaintiff were to be trained as a teacher in her discipline she could earn as a starting salary in 2001 £20,706 and that whilst waiting to be enrolled for training we think she could find work at a salary around £4,000 if her health did not improve as a part-time employee, or if it did and she was able, then at a salary around £9,000. We have taken the mean of the two. If she does not enroll then these figures must be those we shall have to use in assessing future loss of earnings. We also think it right to make a deduction for acceleration of her compensation. We are grateful to counsel for the defendant for reminding us at the last hearing that, when in January this year we asked the plaintiff's counsel to obtain a supplemental report from Arthur Andersen dealing with the future loss of earnings, that Deloitte & Touche would have the opportunity to comment on it. Accordingly we have paid as careful attention to Deloitte & Touche's supplemental report as we have to the supplemental report of Arthur Andersen.
79. In comparing the tables of Arthur Andersen with that of Miss Cheeseman we prefer the former as Miss Cheeseman's have less specific particulars. Where there is a conflict between the accountants on loss of earnings to date we have preferred the figures of Arthur Andersen but as regards future loss, in the light of the last report of Deloitte & Touche, we have made an adjustment which we think reflects a fair position.
80. We have had to decide when the plaintiff could resume work, what she might be paid for it and then the difference between that amount and what she might have earned as a senior designer, either with the defendant or elsewhere. We accept that both accountants who prepared the reports are well qualified to do so.
81. The main points of the plaintiff's accountant may be said to be these:-
1. It was prepared on a full liability basis and on the assumption that the plaintiff would be unlikely to return to any future employment.
2. The calculations were based on a hearing date of 13th September, 1999.
3. The Ogden tables were used. These are the United Kingdom Government actuarial tables.
4. The starting level for part loss of earnings to the date of the trial was £30,000 per annum less her net salary receipt for January 1995 of £2,223.13.
5. The bonus of 10% would have carried on through to 1998.
6. Within four or five years of her resignation the plaintiff would have been earning at least £40,000 plus the 10% bonus. The figures were based on posts in the trade journals.
7. Taxation and Social Security payments had been deducted.
8. The loss to trial was £142,626.96. Interest was calculated at 2% over base rate and amounted to £27,661.82.
9. For future loss of earnings the multiplicand was adjusted as for the actual loss by deducting tax and social security payments. After doing so it came to £34,913.92.
10. The calculations were based on the plaintiff being able to work until the normal female retiring age of 60.
11. The total of past and future losses came to £852,157.64.
82. The main points of Deloitte & Touche may be summarised thus:-
1. The report is not a valuation of damages.
2. It agrees with the two amounts to be decided i.e. actual loss and estimated future loss.
3. The basic salary would have been as £28,500 with effect from 1st January, 1995.
4. The calculations were divided into two parts: (a) had the plaintiff been subject to United Kingdom taxation from April 1998 and, (b) had she found another position in Jersey with the consequent tax advantages.
5. The salary range would have been between £31,998 for option (a) and £32,573 for option (b) with effect from the 1st January, 1999.
6. The losses to the date of trial were either £133,380 (option (a)) or £137,422 (option (b)). Interest was calculated at 19.39%.
7. As regards the multiplier the appropriate discount rate was 3% not 2% as used by Arthur Andersen.
8. The multiplier used was 17.51 based on a linear basis.
9. The plaintiff's potential earnings from alternative employment would be after tax and United Kingdom National Insurance deductions amounting to £13,037.
10. The losses to date of trial were £133,380 (option (a)) or £137,422 (option (b)).
11. Future loss of earnings amounted to £189,073 (option (a)) or £222,990 (option (b)).
12. The respective totals were, therefore, £322,453 (option (a)) and £360,412 (option (b)).
83. Neither accountant altered their respective reports to any significant degree in the witness box.
84. Before making our award we should repeat three important factors to which we have had proper regard. The first is that we cannot be sure that there was not a pre-existing condition before and that condition was, as we have found, exacerbated by the working conditions. The second is that we have made an appropriate deduction for the work we considered the plaintiff could have performed, even in her condition, after leaving the defendant's employment. The third is that we have discounted our award for future loss of earnings to reflect the acceleration factor.
85. Three further general remarks may be apposite. First the Jersey case of Thomas v Mark Amy & others (1975) JJ 233 is authority for awarding damages to cover future medical treatment. Secondly the bands of the type of injuries set out in Kemp & Kemp (vol. 2) refer to three categories in relation to back injuries: severe, moderate and minor. We consider that the plaintiff's case falls into the third section of the severe injuries. Lastly we have had regard to a passage in Thomas v Mark Amy at page 252 where the court said this:-
"In making it we have reflected on the words of May J. In Haggar v. De Placido, [1972] 2 All E.R. 1029, where he said at page 1034:-
"... Finally, remembering the judgment of Lord Denning M.R. in Fletcher v. Autocar and Transporters Limited, I stand back and look at this figure and say to myself: 'Is this fair; is there any duplication in respect of which any allowance should be made?' "
Or, as it was put by James L.J. in McCann v. Sheppard, [1973] 2 All E.R. 881 at page 891:-
"... It is the practice of Judges, when assessing Damages in this sort of case, to itemise damages under the different heads for Future Loss of Earnings; Special Damages, calculated up to the date of trial; General Damages, and so forth. This is not to say that in arriving at the sums itemised, Judges should not - or do not - look at the total sum 'in the round'. In assessing the figure for General Damages, there is an opportunity for 'scaling'. In order to achieve a fair total figure and one which is in proper perspective to other cases ..."
and - we would add - one that is fair, both to the plaintiff and the defendant."
86. We have proceeded on the basis that the plaintiff will be enrolled on a teacher training course in September 2000 and will start work as a probationary teacher a year later.
87. Accordingly our award is as follows:
Special damages £53,285.28 together with interest at appropriate
court rate
General damages (to include damages for pain, suffering and loss
of amenities)
£25,000
Loss of earnings (past loss to date of trial and on the basis that the
plaintiff relocated to the U.K.)
£128,396
Interest on past losses £24,896
Future loss of earnings £282,000
Future medical expenses £25,000
Total award £538,577.28 (plus interest on the special
damages)
Authorities.
Health and Safety (Display Screen Equipment) Regulations 1992.
Stewart-v-West African Terminals, Ltd & Anor (1964) 3 Lloyds List Law Reports 375.
Thomas-v-Mark Amy & Ors (1975) JJ 233.
McCann-v-Sheppard [1993] 2 All ER 881.
Stopher-v-Commodore Shipping Services (1982) & Ors (1985-86) JLR 219.
Ping & Ors-v-Esselte Letraset, Ltd (1991) 1 PIQR.
Mountenay (Hazzard) & Ors-v-Bernard Matthews Plc. (1994) 5 Med. LR 293.
Walker-v-Northumberland County Council (1995) 1 All ER 737.
Pickford-v-I.C.I. (8th June, 1996) TLR.
Alexander & Ors-v-Midland Bank Plc. (22nd July, 1999) Unreported Judgment of the Court of Appeal of England.
Kemp & Kemp: Quantum of Damages in Personal Injury and Fatal Accident Claims: Vol.1: pp.5006-7.
Ibid: Vol.2: 5506-7.
Ibid: p.55064: Salvat-v-Basingstoke & North Hampshire Health Authority.
Ibid: p.55413: Milbourne-v-William Press (Construction).
Ibid: p.55419: Re Watson.
Wells-v-Wells [1998] 3 All ER 481.
Stokes-v-Guest, Keen & Nettlefold (Nuts & Bolts) Ltd. (1968) 1 WLR 1776.
Draper-v-Hodder (1972) 2 QB 556; (1972) 2 All ER 210.
McSherry-v-British Telecoms (1993) 3 Med. LR 129.
Blamire-v-South Cumbria Health Authority (1993) PIQR.
Munkman on Employers' Liability (12th Ed'n): p.108.
Henderson-v-Wakefield Shirt Company Ltd. (1997) PIQR 413.
Grant-v-Australian Knitting Mills (1936) AC 85.
Withers-v-Perry Chain Company, Ltd. (1961) 1 WLR 1314.