WRULD Claims heard in Courts in England, Scotland and Wales

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

Date	Court	Claimant(s)	Task	Injury	Judgment for
10 Mar 2011	London High	Hindmarch	Performing Shiatsu massage	De Quervain's Syndrome, Diffuse Pain	Claimant

This was one of two very similar claims that were evidently heard in the High Court at the same time (see Evans v Virgin Atlantic Airways), but which resulted in separate Judgments. These two claims also have much in common with King v Virgin Atlantic Airways in which Judgment was given in the County Court in October 2005. As in the other two similar claims, breach of duty was evidently admitted, but it is not explained in the Judgment why this concession was made. Given that the only issues at trial were causation and quantum, most of the Judgment is taken up with a review of the medical evidence and an examination of the issues relating to the appropriate level of damages.

The opening paragraph of the Judgment refers to Michelle Hindmarch seeking damages in respect of injuries suffered and losses incurred as a result of a work-related upper limb disorder that she was diagnosed as suffering from during the course of her employment with Virgin Atlantic Airways Limited as a beauty therapist undertaking massage treatments for first class air passengers of the defendant Airline in Terminal 3 at Heathrow. It is claimed that the frequency of delivery of treatments, the mode of delivery, using a modified chair rather than a couch, the lack of use of massage oil, and the type of massage using hyper extended thumbs, led to the development of a soft tissue condition.

The Judgment records that the Claimant commenced working for the Defendant Airline on 5th June 2005 as a beauty therapist, having trained and having been employed as such since leaving education. In January 2006 she informed the Defendant that she was experiencing pain in her arms, wrists and elbows. She was referred to the Defendant's in-house occupational health team and she also saw her GP, who initially prescribed anti-inflammatory medication and the wearing of a splint. On 25th January 2006 her GP diagnosed bilateral RSI and tendonitis, and she was signed off work for three weeks. She then returned to work, but symptoms recurred in September 2006, and she was again signed off from work. A course of physiotherapy treatment was undertaken, but by January 2007 her symptoms were such that she was advised that she could not return to work as a beauty therapist, and in April/May 2007 she gave notice resigning from her position with the Defendant, with effect from 29th May 2007.

In a joint statement, the Medical Experts agreed Mrs Hindmarch had developed bilateral de Quervain's syndrome that was as a direct result of the massages she delivered during her time as a beauty therapist in the Virgin Lounge, and they agreed that there was no relevant past history. They noted that following the onset of symptoms there were elements that could fit other diagnoses such as carpal tunnel syndrome, but after considering all the clinical evidence they agreed, on the balance of probability, that the majority of the Claimant's disability was caused by de Quervain's syndrome.

However, the Claimant continued to complain of forearm pain. [The Claimant's Medical Expert], a rheumatologist, diagnosed this as 'diffuse upper limb pain' and was of the view that the symptoms being experienced by Mrs Hindmarch were of nuisance value and mildly disabling. He accepted that such diffuse upper limb pain could occur spontaneously and was not always work-related, but given the clear temporal link, the nature of the work, the fact that it responded to rest and came on with an increase in workload, he was of the view that in this case it was work-related.

[The Defendant's Medical Expert], an orthopaedic and trauma surgeon, was of the view that 'diffuse upper limb pain' was not a diagnosis and that only identifiable pathologies should be recognised. He was of the opinion that the ongoing symptoms in the Claimant's hand were caused by early degenerative change at the base of the first metarcarpal and, on the balance of probability, he would attribute this degenerative change to normal age-related processes. Having reviewed the medical evidence, HH Judge McKenna found that he preferred the evidence of the Claimant's Medical Expert.

The Judgment records the following awards: £14,500 for pain, suffering and loss of amenity; £5,000 for loss of congenial employment; £12,847.60 for loss of earnings; £667.80 for travel expenses; £444.50 for medical treatment; £4,278.87 for care and assistance; £200 for miscellaneous losses; and £28,840 for handicap in the labour market. The Solicitors acting on behalf of Michelle Hindmarch reported the total damages (presumably including interest) as £70,545.07

V1.02

Last updated: 14/05/2013