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Accident Compensation Cases

Whelen v Board of Trustees of Hagley Community College (EMC, 08/02/99)

Judgment Text

PALMER J (reserved):
The issues 
Ms Elaine Whelen contends that she was unjustifiably — and repeatedly in an ongoing sense — very significantly disadvantaged in her employment situation by the board of trustees of Hagley Community College during 1995, 1996 and 1997. At all material times which the applicant’s proceedings concern she was employed by the first respondent as the head of department for social sciences at Hagley Community College, Christchurch. 
The college comprises a mixture of new and old buildings. The original building is known as “the main building”. It had originally comprised the two-storeyed brick building visible from Hagley Park. A two-storeyed wing to the main building stretched back on its southern side. 
During late 1993 and throughout 1994 the main building at Hagley was gutted, rebuilt and refurbished. The southern wing was demolished and replaced by a new three-storeyed wing stretching back from the old main building. This gutted and rebuilt part of the main building has been since identified and called block A and the new three-storeyed wing has been called block B. Throughout this judgment I shall so describe them. 
Prior to demolition and reconstruction, the social sciences department had been based in the old block B wing to the main building. Following redevelopment the social sciences department was to be based in the new block B comprising the entire second floor of the new wing. The English department was to be sited on the first floor and the third floor was to be occupied by the maths department. These intended departmental sitings of the social sciences, English and mathematics departments duly occurred following the construction of the new block B. Each of the departments are effectively self-contained with their own resource room/s which contain virtually all the resources necessarily associated with that department. 
Following redevelopment the ground floor of block A has become the administrative base for Hagley containing the principal’s office, and office and service facilities for senior administrative staff. The second floor of block A comprised teaching facilities which were, and have since been, allocated out to the three core departments (social sciences, English and mathematics) occupying block B. Quite independently of the main building, Hagley has numerous other buildings of both a permanent and relocatable character. Diagramatically, the building layout at Hagley is conveniently depicted at p 1 of the respondents’ exhibits. Additionally, at a very late stage of the hearing the Court, by arrangement with counsel, took a “view” of material aspects of Hagley, extending to block A and the social sciences department occupying the entire second floor of block B, including room 203, which was Ms Whelen’s allocated classroom, and the department’s resource room/office comprising room 205. 
The main building at the college was seemingly entirely ready for use at the commencement of the 1995 academic year, as had been planned by the board of trustees and the Ministry of Education, which caused the rebuilding work to be undertaken pursuant to the overall and ongoing supervision of its architects and property consultants. 
Understandably, as Ms Whelen confirmed, the main building (including block B) had the obvious smells of a “new” building which had been recently painted, carpeted and the like. Ms Whelen returned to Hagley in late January 1995, about a week before the college year was due to start. There was very considerable preparatory work which was then necessarily undertaken, including shifting resource materials into the resource room of the department of social sciences, and teachers within the department were readying their classrooms for the forthcoming year commencing on 1 February 1995. 
Ms Whelen taught all her classes in her classroom and used resource room 205 regularly on a daily basis. In addition to having normal teaching resources within the resource room, it also held the department’s and the applicant’s filing cabinets, computer, telephone, and materials such as stationery. Given that it was purposefully set up as Ms Whelen’s office as the departmental head, she used it accordingly. 
The applicant’s initial and sudden ill health at Hagley 
In Ms Whelen’s personal experience in her teaching/head of department role at Hagley, nothing untoward occurred in 1995 until 29 March. During the lunch break on this particular day Ms Whelen, having stepped outside preparatory to walking around the college grounds in a supervisory capacity, then experienced a sudden onset of severe pain in her head and blurred vision. These symptoms, and indeed the entire experience, were so debilitating to the applicant — who considered she was about to faint — that she immediately sought assistance from the school nurse (Ms Anne Doolan). Ms Whelen was required by the nurse to lie down in the sickroom and remain there for the ensuing 2 hours. Ms Whelen contended that throughout this period she “continued to experience blurry vision and [her] head continued to feel [acutely] uncomfortable and not right”. She also experienced feelings of nausea and skin itchiness. 
It will suffice for me to now say that Ms Whelen contended that on 29 March and in an ongoing way she continued to experience headaches and/or a “tightness” in her head of differing levels of intensity, to the point that at times she felt her head “was going to explode”; ongoing blurred vision and a related sense of malaise wherein she could neither read nor concentrate properly, and said she was unable to actively teach her classes. During the ensuing weekend Ms Whelen said the pain in her head was “intolerable”. She was admitted to Christchurch Public Hospital on Monday, 3 April 1995. Throughout the following 3 days she confirmed that in an exploratory/investigative way she was evaluated by two neurologists, Dr Anderson and Professor Donaldson, and upon their direction underwent a series of tests including a CT scan, chest x-ray, ECG, and blood tests. According to the applicant these investigative tests all produced a normal range outcome. Ms Whelen was discharged from the hospital with a diagnosis of “probable migraine”, notwithstanding that the evaluating specialists were uncertain in their expressed opinions as to the accuracy of this diagnosis, given that there was no family history of migraine and the centrally-sited pain which Ms Whelen experienced in her head was certainly not typical of migraine which, she was informed, was typically sited to one side of the brain. 
Ms Whelen confirmed that during the late afternoon of 29 March she urgently attended upon her general practitioner (Dr Jean Herron) who arranged for her to immediately attend upon an eye specialist (Dr Ian Dallison). Ms Whelen confirmed that Dr Dallison examined her eyes for malfunction and/or disease on the evening of 29 March and, following his evaluation, he informed her that she was not suffering from any visual malfunction or disease impairing her eyesight. It was against this immediate background that the intolerable ongoing symptoms she was experiencing occasioned the neurological and cardiovascular testing which was undertaken during the 3 days commencing on Monday, 3 April 1995, when she was admitted to Christchurch Public Hospital. 
Ms Whelen remained off work because of the severity of the symptoms — and especially the headaches — she continued to experience and which seemingly the medical intervention of Dr Herron and the specialists she consulted could not arrest. Ms Whelen said that over the next 3 months she continued to experience headaches which “consistently, day and night, [were] causing great distress and disruption to [her] life. Dr Herron continued to alleviate the pain with various medications. [She] went to a physiotherapist, a dermatologist and an optometrist to try and remedy the problem” (para 38 of her brief of evidence). Included in the symptoms which Ms Whelen contended she suffered from from 29 March was itchiness to her skin, which a dermatologist she later consulted was unable to causally explain. Ms Whelen acknowledged that her skin disorder/itchiness which she experienced on 29 March was not a symptom on which she sought immediate expert advice and that when she somewhat belatedly sought advice from a dermatologist in June 1995 concerning further skin itchiness, the dermatologist was not then able to “pinpoint a cause and it happened that by the time she was looking at [her] skin the itchiness was not as bad as it had been originally” (para 39). 
As to the blurred vision which Ms Whelen experienced on 29 March and subsequently, she was prescribed glasses by the optometrist she consulted and found she could then avidly read again as she had in the past. She stressed that she had not previously “ever needed glasses” until subsequently to the onset of the symptoms which she experienced on 29 March of a wide-ranging character, including significant visual difficulties. 
Indeed, Ms Whelen strongly emphasised that in the ensuing weeks following the onset of her symptoms in late March, “none of the health professionals [she consulted] was able to give [her] any cause for the symptoms” comprising — she in substance contended — a medically credible cause. 
Ms Whelen explained that wholly unbeknown to her at this time other staff members at Hagley — and especially the principal (Mr Brent Ingram) and his administrative assistant/secretary (Ms Sheryl Murphy) — were experiencing quite severe physical symptoms consistent, she contended with her now informed advice and awareness, with sick building syndrome (“SBS”) which — the applicant alleges — both block A and block B significantly suffered from during January 1995 onwards. Ms Whelen said she became deeply concerned by her then imperfect and uninformed understanding of why she was suffering the symptoms she continued to suffer from. Ms Whelen said she “became concerned that if there was no medical reason that could be pointed to, [she] might be perceived as having stress related problems which could in turn jeopardise [her] future chances of promotion” (para 41). 
Ms Whelen’s structured approach towards her illness 
The applicant discussed her situation fully with her union field officer, Ms Diane McCarthy, of the Post Primary Teachers Association (“PPTA”) about a fortnight following the commencement of the applicant’s ongoing sick leave from 29 March 1995. Ms Whelen said that, in consultation with Ms McCarthy, she decided, because of the impact that the unexplained symptoms “when acute” would have on her teaching duties and career prospects, her best interests would be served by applying for long-term leave without pay for the second and third terms of 1995. Ms McCarthy accordingly wrote to the principal of Hagley on the applicant’s behalf seeking such leave on 12 April 1995. As is apparent from p 22 of the applicant’s exhibits, the “acute episode” from which Ms Whelen was then suffering, and which was “being monitored”, was described by Ms McCarthy in her letter as “most likely being migraine”. The medical certificate submitted under cover of that letter was “for paid sick leave [to which the applicant was then entitled, which had accrued due to her but had not been taken] up until 10 May [sic — 13 August] 1995 when Elaine will be re-assessed”. Ms McCarthy further confirmed that the applicant’s general practitioner (Dr Herron) would continue to give medical certificates as required during the period of anticipated sick leave where a sick leave entitlement existed, and such leave not covered by any sick leave entitlement by Ms Whelen would comprise leave without pay and would commence in due course. 
Ms Whelen said that to seek such sick leave and leave without pay, effectively comprising unpaid sick leave, throughout the whole of the 1995 academic year was “a huge step” for her to take because of its immediate and obvious implications of discontinuity and all that this entailed upon and affecting her teaching career and the ongoing financial needs of herself and her children. 
In para 22 of his brief of evidence, Mr Ingram acknowledged his “surprise” at the extreme option which the applicant elected to take as her primary preferred option through taking immediate paid sick leave and then continued leave without pay for the remainder of 1995. As a less preferred alternative the applicant also sought approval from the principal and the first respondent for longer leave encompassing the first term of 1996, if her primary preferred option of long-term leave throughout 1995 was not approved. It will suffice for me to say that Mr Ingram and the board of trustees approved the preferred option sought by Ms Whelen in Ms McCarthy’s letter dated 12 April 1995. Mr Ingram said he had discussed, upon Ms McCarthy’s initiative, the primary and alternate leave courses of action sought by Ms Whelen through Ms McCarthy in advance of receiving her letter to him of 12 April. Mr Ingram said that he had purposeful discussions with Ms McCarthy in advance of her letter because he was very concerned by his perception of the extreme course of action Ms Whelen was taking upon account of the health problems which then affected her, rather than the more flexible course of action which she might have taken of simply taking a short period of sick leave in “the expectation that [Ms Whelen] would return on the remission of symptoms” of a work disabling character. 
The board of trustees and the principal of Hagley duly approved the preferred course of action sought by Ms Whelen, that is to say ongoing sick leave until her accrued sick leave entitlement was exhausted, followed by leave without pay for the remainder of 1995. During her period of leave without pay Ms Whelen was not required to provide medical certificates. 
Mr Ingram was adamant that he did not then relate the health problems experienced by Ms Whelen on 29 March, and prospectively in an ongoing way up to and beyond her sick leave and then leave without pay which she was authorised by the first respondent to take for the remainder of 1995, as being caused by or contributed to by any environmental hazard/deleterious condition inherent in the rebuilt and refurbished college, and more particularly the main building at Hagley in either — or both — A or B blocks. 
The applicant’s case is that she progressively ascertained, after commencing her formally approved sick leave, that Hagley, as rebuilt/refurbished, had become a “sick building” in an environmental sense as this syndrome/phenomenon has become known, that is to say the sick building syndrome, and as it is now copiously documented in scientific and specialised medical circles and also in the literature of other related disciplines/fields of expertise such as valuation. 
In opening Ms Whelen’s case Mr Osborne emphasised in para 5.4 that block B, which was to encompass upon its three floors the social sciences and other departments (English and mathematics), was newly constructed. As counsel characterised the situation: 
“The whole building was subject to the results of actions such as painting and gluing and susceptible to chemical problems such as excessive volatile organic compounds; about which Elaine Whelen knew nothing in February 1995 but has progressively had to learn a great deal. ”
(The emphasis is mine.) 
Additionally, independently of, but in reactive combination with, gaseous chemical emissions from volatile organic compounds (“VOCs”) and from formaldehyde are the influential contributing effects of humidity, temperature, and the extent of air ventilation/air exchange to the chemical cocktail equation through the gassing off which occurred in the refurbished building and its separate spaces/room components. 
As Mr Osborne has also appropriately emphasised, I have previously addressed sick building syndrome in both the abstract and as arguably affecting Hagley College in my interlocutory judgment delivered to the parties on 26 April 1996. 
Plainly — and certainly neither the first nor second respondent disputes this — Ms Whelen, and the doctors/specialists immediately concerned with her medical care and evaluation following the onset of the acute symptoms which struck her down at Hagley on 29 March 1995, did not attribute, either wholly or in part, her unfortunate condition to the contended disabling effects of chemical fume ingestion as comprehensively affecting her in differing ways. The specialist neurological evaluation — doubtfully, according to the applicant, in the specialist’s perception as advised to her — was that her acute ongoing headache was migrainous in character. I accept Ms Whelen had informed the principal at Hagley at this material time that she believed she might be suffering from a brain tumour and that her ongoing headaches were possibly attributable to this very serious disorder which Ms Whelen suspected she might be suffering from. 
Ms Whelen contended that from 29 March and “through April, May and June” she was “left in a position of total uncertainty regarding her health, being advised on the one hand there was a diagnosis of ‘probable migraine’ but also being told that her symptoms were inconsistent with migraine”. As Mr Osborne also contended during his opening at para 5.6 Ms Whelen: 
“was effectively required to remain off work while at the same time feeling a professional obligation to return regularly to the school to assist those involved with the ongoing administration of the Department and education of her students. ”
In para 5.7 of his opening Mr Osborne further developed this aspect of the applicant’s case thus: 
“What Elaine Whelen did not know and was never told during that period, was that from a very early point, apparently almost at the [very] start of the school year, staff had been complaining, apparently to the College administration, of headaches, sinus, nose irritations and irritated eyes to such an extent that scientific testing had been implemented as early as 27 February 1995 (a full month before Elaine Whelen’s first experience of the symptoms) and it was soon known that recent renovations were a possible cause of elevated chemical levels. The reaction of particularly sensitive people to lower levels was also recognised. ”
Ms Whelen contended that she personally instructed Dr Bill Glass, whom she had identified as an occupational medicine specialist in Christchurch, to evaluate her medical condition and the situation in an occupational health setting materially pertaining to Hagley as it had been rebuilt and refurbished. It is timely to now emphasise the very significant extent of the rebuilding and refurbishing that was undertaken at the college from late 1993 until January 1995. The redevelopment of Hagley Community College was — as Mr Kevin Beardsley, the Canterbury district property manager for the Ministry of Education, confirmed — “a major project with an estimated overall cost of approximately $5M” (para 3 of his brief of evidence). Furthermore, as Mr Beardsley stated, careful and purposeful planning undertaken in advance of the commencement of the building contract for redevelopment of the college in late 1993 “was preceded by the establishment of a village of relocatable buildings to house the students and administration functions while the major work was underway”
It was and is Ms Whelen’s case — which the first and second respondents adamantly contested for reasons they separately and jointly particularised — that the college and the ministry were, in their approach to the alleged sick building issues affecting Hagley, unreasonably procrastinating and that, in colloquial terms, both respondents “sat on their hands” rather than purposefully addressing and ameliorating significant identified concerns in an occupational health setting which exposed Ms Whelen and other staff and students to avoidable health risks which should have been much more diligently and urgently identified and addressed — but were not so addressed — with time being of the essence. It was Ms Whelen’s case that no time line was devised and worked to by the respondents within which acceptably appropriate remedial action would have ensured Ms Whelen’s risk-free resumption of her employment as the teaching head of the social sciences department, appropriately working with her colleagues and having, when required, spontaneous access to them within the department’s classrooms on the second level of block B, extending to her office/resource room (room 205). 
In the result, however — and I am now focusing upon Ms Whelen’s fundamental contention — the resumption of her career within the main building at Hagley appropriately rendered devoid of risk to her physical health never eventuated, as she contended it certainly should reasonably have eventuated, appreciably prior to the end of the 1997 school year. Ms Whelen contended it was both imperative and reasonably achievable, without the advantage of hindsight, that had Hagley, in efficient collaboration with the Ministry of Education, purposefully addressed the matters at issue in an occupational health/sick building setting affecting the college, then the identified causes of the problems would have been constructively addressed and eliminated/neutralised. 
In due course I shall address material aspects of the contentious issues as between the parties concerning: 
How and why Ms Whelen alleges there were disadvantaging consequences to her through the process of unjustifiable time-consuming delays by the respondent which occurred in identifying and addressing the alleged sick building/occupational health issues; and 
How and why, in the developed common argument of both Hagley and the ministry, there simply was and is no substance in these particular arguments advanced by Ms Whelen. 
At this point it is timely to recognise that the sick building/occupational health issues in contention between the parties in this immediate setting are obviously, I hold for reasons which are plainly established by the evidence, complex issues. In my view the identification of the problems actually requiring remedial action at Hagley and the forms that such correction/remedial action should take, both through appropriate evaluation/testing and then re-evaluation/retesting following the application of remedial action addressing an identified problem, required a measured and very thoughtful approach which was inherently time-consuming. I shall further enlarge upon these contentious issues in due course. 
The redevelopment of the main building at Hagley 
The Ministry of Education was not Ms Whelen’s employer. Inarguably, this was the situation at all material times which this hearing concerned. The first respondent — and only the first respondent — was the applicant’s employer throughout. 
The Crown, however, through the Ministry of Education, is the owner of Hagley Community College. Furthermore, the ministry pays to the first respondent, as part of an operational grant, an annual payment for routine maintenance. The ministry itself undertakes necessary major maintenance and construction work at Hagley. 
It is now timely to remark that the development (first stage) of Hagley, at the aggregate cost/contract price estimated by Mr Beardsley of $5 m, was the responsibility of the second respondent as the redeveloping owner of the college. The first respondent had no responsibility concerning this major redevelopment, as it has no property rights/proprietary interest in the college and was certainly not a party to the redevelopment contract. 
Stage 1 of the redevelopment project encompassed the refurbishment/ modernisation and strengthening of the main building of the college comprising blocks A and B. I have earlier described this phase of the redevelopment as it was completed, rendering the main building available for reoccupation in January 1995. 
The occupation by Hagley of the land, buildings and other facilities at the college, which is situated at 510 Hagley Ave, Christchurch, is permitted by the Ministry of Education pursuant to the terms of a property occupancy agreement dated 6 April 1991. A copy of this occupancy agreement was produced as p 2 of the respondents’ exhibits. This occupancy agreement proscribed Hagley undertaking any capital works which are not authorised by the ministry. There is no funding within the modest operational grant, comprising a maintenance grant paid to the college by the second respondent, to undertake any major capital work. A “small” administration or maintenance grant is made within normal operational funding but that grant, as Mr Ingram confirmed during his evidence, is limited to day-to-day maintenance items. Indeed Mr Ingram stressed that the mean average of this maintenance grant since 1994 comprised $73,365.50 and the mean average of the amount granted for minor capital work annually over the same period comprised $9,057 (para 13). 
When the Ministry of Education decided that Hagley should be redeveloped as part of the ministry’s capital works programme, total control of all aspects of that project were vested in and remained with the ministry. The first respondent “had no input into the design or structural aspect of the works” (para 16), but was “consulted in respect of ‘cosmetic’ type issues such as colour preferences”. The materials for incorporation in stage 1 of the redevelopment of the college were chosen by the ministry and its consultants. Mr Beardsley confirmed that the Ministry of Education contracted consultants experienced in their fields to provide professional services on the redevelopment project. The ministry’s architects were Sheppard & Rout of Christchurch, and the ministry’s project manager was Whitehouse Associates, building and property consultants, acting through its director, Mr Jack Whitehouse. Mr Beardsley confirmed that the contractual arrangements concluded between the ministry and its project manager required Mr Whitehouse to produce to Mr Beardsley, as the district property manager for the second respondent, monthly post-event reports. These reports were generally hand-delivered to Mr Beardsley’s office by Mr Whitehouse and discussed between the project manager and Mr Beardsley immediately following their receipt. Many of these reports, which are material to certain of the issues in the present proceedings, have been exhibited during the hearing. 
Mr Beardsley has confirmed that there “were no unusual features or materials used on the project. The nature of the work was comparable to a number of other refurbishment or redevelopment projects undertaken within the education sector in recent years” (para 4). In para 6 of his brief Mr Beardsley confirmed that: 
“The building is externally of permanent construction (concrete and brick). Internally, there are considerable areas of painted surface, composite board joinery fittings, display boards, wool carpets and vinyl in wet areas. Adhesives were widely used. Many of these commonly used modern products emit chemical and odours in varying quantities during the curing process. Good ventilation is essential, particularly during the early period of occupation of new or remodelled buildings, to reduce the effects. As in most school buildings ventilation is achieved naturally by opening windows. Mechanical ventilation is rare in schools. ”
I accept there was no design feature and/or recourse to particular specified materials which would place the second respondent, through its consultants, upon notice that the redeveloped main building, when it was essentially completed and occupied by the college in late January 1995, would suffer from sick building syndrome and/or comprise any problem in an occupational health setting. 
The redeveloped main building was essentially reliant upon natural ventilation, that is to say the opening of windows as appropriate. Mechanical ventilation was not favoured at the college in its redevelopment, except for a small number of internal rooms in the administration area of block A. 

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