WRULD Claims heard in Courts in England, Scotland and Wales

Hearing(s) - King - v - Virgin Atlantic Airways Ltd

Date	Court	Claimant(s)	Task	Injury	Judgment for
21 Oct 2005	Winchester County	King	Performing Shiatsu massage	Medial & Lateral Epicondylitis	Claimant

The Claimant worked for Virgin Atlantic Airways as a Beauty Therapist for about two years, when she was in her mid-20s. She provided a variety of beauty therapy treatments, including massages, manicures, pedicures, waxing and facials, as a complimentary service to passengers in the First Class Lounge of Terminal 3 at London Heathrow Airport. The Claimant's apparently undisputed evidence was that she worked four nine-hour shifts in each week followed by two days off and that she would treat up to 12 clients on any one shift, some pre-booked others simply showing up on the day of their flight requesting a particular treatment.

Nine times out of ten the treatment requested would be what is known as a Shiatsu massage that would take about 15 minutes. The clients did not undress as would normally be the case for such a massage and that meant that the amount of pressure required to get through to their body was much harder than it would otherwise have been. Moreover, because the massages were performed with the client seated, instead of lying down, the position of the therapist's arms was different and more stressful.

There were generally periods when the therapists could have a block of four Shiatsu massages, followed by a two-hour break with no clients, then a further block of four Shiatsu massage sessions. Sometimes there would be two or three blocks in a day, interspersed with other treatments, and the odd further Shiatsu massage. Not being able to spread the treatment out over the course of a whole shift meant that the therapists were constantly using significant pressure with their hands and fingers over short but intensive periods of time.

The Claimant first noticed a strained feeling in her left wrist towards the beginning of December 2000. She eased off the amount of back massages that she was performing at the airport and took painkillers, which seemed to result in the pain settling down, however as soon as she started performing the heavier massage techniques again the symptoms started. During the following two weeks she continued to notice a clicking sensation in her left wrist, and she also had an ache up the forearm. Approximately two weeks after she first noticed the symptoms she developed what she described as an almost instantaneous pain in her right wrist. This was whilst performing Shiatsu type massage on two large men and was also linked with the amount of other treatments that she had been required to give during that period.

The Claimant evidently took about a month off work. By early March 2001 the injury had started to settle, but she still had pain and discomfort. She returned to work but continued to experience symptoms when performing any type of massage. She decided to apply for an alternative position with the Defendant, which she obtained in September 2001. During the period from the beginning of April 2001 through to starting her new position in September 2001, she had gone back to work on a full rota performing the same level of massage and other treatments as before. She had begun to notice quite severe symptoms in her left elbow and forearm and had felt that the change of job was the only option open to her to resolve her condition.

While the medical expert instructed by the Claimant, a Consultant Rheumatologist, described the Claimant's injuries as tennis and golfer's elbow, the medical expert instructed by the Defendant, an Orthopaedic and Hand Surgeon, preferred to use the term myalgia as a non-specific term for musculo-skeletal pain with no recognisable diagnosis. However, they agreed they were describing the same phenomenon.

At the start of the hearing, Counsel for the Defendant evidently accepted that there had been a breach of duty, but it is not clear from the Judgment why this admission was made. Much of the Judgment in this matter is taken up with a review of the medical evidence and a discussion of the issues relating to the appropriate level of damages, the only issues at trial being causation and quantum.

The Honourable Mr Justice Tugendhat found the Claimant to be a reliable witness and had no hesitation in accepting her evidence and finding the Claimant's injuries were caused by the Defendant's admitted breach of duty. The Judgment refers to the Claimant being awarded total damages of £98,155, including: £12,000 for pain, suffering and loss of amenity; £16,852 for past lost earnings; £100 for miscellaneous expenses; and £60,203 for loss of future earnings. The press coverage of this claim refers to the airline being ordered to pay £109,252.53 in compensation plus costs.

This case turned on it own facts and is of no particular consequence, other than to the parties involved, but it illustrates that claims can arise from a wide variety of tasks. See also Evans -v- Virgin Atlantic Airways and Hindmarch -v- Virgin Atlantic Airways Ltd

V2.03

Last updated: 14/05/2013