Damages - loss of future earning capacity - plaintiff employed - award to compensate for loss of value within labour market.

Anastasios Kondis v. State Transport Authority [1984] HCA 61; (1984) 154 CLR 672

Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438

Solicitors for the plaintiff: Gary Robb and Associates

There be judgment for the plaintiff in the sum of $48,775.92.

The plaintiff sues his employer for personal injuries arising out of the contracting of a condition of dermatitis on the hands as a result of working with and handling timber poles soaked in creosote in January or February 1983. The plaintiff was employed as a truck driver. His duties included loading, securing, delivering and unloading timber poles 20 metres or more long. The poles were loaded by means of a forklift and secured by the driver with chains, one chain at the front and one at the rear of the load. The poles were liable to shift during the journey and it was necessary, therefore, for the driver to stop and readjust them, sometimes every kilometre or so. The poles were stored in the defendant's yard at Kingston. They were impregnated with creosote before delivery to the yard by the supplier. Usually they were in a condition which the plaintiff described as "semi dry". The gloves with which he was supplied were of a cotton material and usually sufficient to prevent creosote getting on to his bare hands.

2. On the first of the two particular occasions in question in January or February 1983, the plaintiff was required to load about ten poles and transport them to Tidbinbilla. The poles were in a condition which the plaintiff described as "very very wet". At the end of loading the creosote had soaked through the cotton material of the gloves on to his hands. In any event, it was necessary to remove the gloves for the purpose of securing the chains to tie down the load. The chains had become covered with creosote from the poles. Whilst securing or tying down the load and whilst readjusting it during the journey, the plaintiff's bare hands were exposed on several occasions to the creosote on the chains. The plaintiff noticed during this journey that his hands had started to go black and became itchy. After the load was delivered, he washed his hands repeatedly, hoping that the itch would disappear. In fact the itch persisted and indeed grew worse, combined with a burning sensation.

3. A few days later the plaintiff had to take another load of the same lot of poles, this time only as far as Harman. He had another set of gloves but again the creosote soaked straight through on to his hands. It was necessary to stop three times during the journey to secure the load. When the journey was over he used Solvol to try to get his hands clean. After three or four days his hands were rid of the blackness but the burning sensation and itchiness persisted. Scratching caused them to bleed. They became very dry and started to crack. The plaintiff would wake up at night in bed finding blood all over his hands. He adopted the practice of using creams and wrapping his hands in bandages before going to bed.

4. Because of the lack of improvement, the plaintiff went to see Dr Renshaw, his local practitioner in Queanbeyan on 6 May 1983. According to the plaintiff, during 1983 his hands got worse, although he was not subject to exposure to creosote again. He came under the attention of Dr Renshaw's partner, Dr De Sailly, and then Dr Shephard, a dermatologist of Canberra. He saw other dermatologists, Dr Knyvett and Dr Morgan as well. All treating doctors prescribed various creams which provided temporary relief only. In late 1983 the plaintiff was taking time off work and then gave up work in the hope that his hands might improve. At his own request he returned to work in about August 1984 after seven months absence. He returned to his old duties as a truck driver, keeping his hands bandaged during the day whilst working and changing the bandages before going to bed. He found difficulties in driving long distances or in using his hands for anything that required pressure. The plaintiff continued in this way until 1988 when he was successful in obtaining a promotion within the Authority. He now has clerical and administrative duties with very little physical work. His hands improved somewhat after the change of duties, but he still complains of a feeling of heat and of irritation which makes him scratch from time to time causing the skin to break. He continues to use prescribed creams and a cream which is now supplied at work.

5. The plaintiff impressed me as a truthful witness and if his evidence needed corroboration, it was furnished by the evidence of his wife who remembered that in early 1983 before May, the plaintiff showed her his hands which were black and later over the next few weeks began to crack and bleed. Mrs. Reid had to put up with blood on the sheets nearly every night and she observed the plaintiff scratching his hands in his sleep. She said that his hands have never healed properly and that she noticed that when the plaintiff was back driving trucks or subjected his hands to any sort of pressure, the condition would observably worsen. She agreed that the hands are not subject to the same sort of cracking as they once were.

6. I observed the plaintiff's hands in their present condition and also saw some photographs taken on 11 August 1988. The present condition is an improvement, but only slight improvement on that shown in the photographs. The plaintiff has almost symmetrical depigmentation and cracking of the skin in both hands extending over about one quarter of the surface of the palm, closer to the thumb.

7. The defendant disputes that there is any causal connection between the plaintiff's handling of the creosote and any condition in the hands which persisted beyond a few months thereafter. There is, of course, the problem that although the exposure to creosote ceased, the condition persisted. I reject any suggestion, and it was barely raised, that the plaintiff deliberately or carelessly prolonged the conditon by scratching his hands. In my view, he made every reasonable effort to alleviate the conditon with the use of prescribed creams and bandages. It is true that he used Dettol, an antiseptic liquid, to help clean his hands and also in his bath water for a period of time and that Dr Kilpatrick (an industrial hygienist who disavows medical expertise) considered that that may have been an aggravating factor. However, a substitute antiseptic, Pinetarsol, and the discontinuance of the use of Dettol, has not rid the plaintiff of the problem altogether.

8. The defendant relied upon the evidence of Dr D.M. Clarke, a dermatologist of Melbourne, who supplied a report and who was questioned and cross-examined by telephone during the hearing. The transcript of the telephone conversation is to be treated as a statement under s.29 of the Evidence Ordinance 1971 (ACT). Dr Clarke thought that it was possible that the skin contact with creosote in 1983 initiated the dermatitis, which might have been aggravated by exposure to the sun, but that at the end of a 48 hour period that dermatitis ("contact dermatitis") should of its own accord settle down and disappear in a matter of weeks, especially if the plaintiff was under competent dermatological treatment. When Dr Clarke saw the plaintiff on 6 August 1990 he had dermatitis on his feet as well as on his hands and Dr Clarke thought that that latter factor was a strong indication of endogenous eczema and not contact dermatitis. When cross-examined, Dr Clarke denied that any continuity of symptoms would suggest that the plaintiff continued to suffer from the effects of exposure to creosote. He stressed that if the rash had persisted when the plaintiff was not exposed to creosote such persistence would confirm that the eczema was not occupational but constitutional, and atopic. Dr Clarke repeated many times that the fact that the plaintiff's condition did not clear up within weeks indicated that it was not contact dermatitis and therefore not related to the exposure to creosote. Dr Clarke initially expressed the view that no competent dermatologist would hold to the contrary but eventually under cross-examination he conceded that there are well qualified dermatologists who believe that dermatitis produced by work conditions may initiate persistent and subsequently permanent dermatitis. Dr Clarke does not belong to that group.

9. Dr David Scott Nurse, a dermatologist also of Melbourne who gave evidence on behalf of the plaintiff, belongs to the other group. Dr Nurse said that it is common for severe dermatitis to continue for a significant period, even indefinitely, as a result of an external cause and even although the external cause is removed. Continuous treatment with creams or ointments to reduce dryness of skin and cracking often alleviates the condition but does not cure it. Dr Nurse expressed the view that as far as the eczema on the plaintiff's feet was concerned, that was caused by the same stimulus which caused the dermatitis in the hands to continue. Dr Nurse considered that the plaintiff's condition was best described as a psoriasiform dermatitis, that is to say, dermatitis with the appearance and characteristics of psoriasis. He said that it is common for what is initially an irritant dermatitis caused by exposure to an external source to become psoriasiform dermatitis, for reasons which are not clearly understood. There are other forms of dermatitis such as allergic dermatitis, which is based upon slight exposure but over a considerable period of time, and Dr Nurse expressed the view that the plaintiff's condition was not of this type.

10. Dr David Kilpatrick (a Ph.D. in chemistry and not a medical practitioner) gave evidence which supported and supplemented that of Dr Nurse. Dr Kilpatrick has made a particular study into the effects on health of creosote in use in railway sleepers. Dr Kilpatrick describes himself as an industrial hygienist, and I am satisfied that he is qualified in a field of study and expertise which entitles him to give the expert evidence he did give relating to the relationship between industrial conditions and workers' health. I am quite convinced that in 1983 it was well accepted in industry that exposure to contact with creosote gave rise to a risk of damage to the skin of the kind experienced by the plaintiff. It was widely known that it is possible to reduce the harmful effect of any necessary exposure to creosote by the use of barrier creams. These were furnished to the plaintiff and his colleagues soon after he experienced his problems. It is also possible to supply employees in the position of the plaintiff with washing facilities and to equip the trucks accordingly. Whilst that might not have avoided the plaintiff's problems completely, it was likely to have reduced them, and was an inexpensive and simple protective measure. The gloves which were supplied to the plaintiff should have been impervious to creosote and, according to the plaintiff, gloves have now been made available which have adequate protective characteristics. Such gloves were available in 1983.

11. Above all, there was, in my view, a failure to take reasonable care for the safety of the plaintiff on the two days in question when the weather was hot and when the poles were so saturated in creosote that it was almost inevitable that the plaintiff's hands would come into prolonged contact with that harmful substance. Although the defendant may not have been aware that the poles delivered to its site were in an unusually wet and dangerous condition, it is unable to rely on its ignorance in order to escape liability, because the rule is now recognized that if an employer entrusts part of its undertaking to an independent contractor, there is a duty to ensure that the contractor exercises reasonable care for the safety of the defendant's employees: Anastasios Kondis v. State Transport Authority [1984] HCA 61; (1984) 154 CLR 672. There being no evidence called by or on behalf of the defendant I have little hesitation in drawing the conclusion that the delivery of the poles in such a saturated condition without warning involved a breach of reasonable care on the part of whoever supplied them, having regard to the risk which the poles would constitute to persons like the plaintiff who were required to handle them. There is no evidence that the poles were inspected upon delivery on behalf of the defendant. I have little hesitation in further concluding that the defendant failed to ensure that the contractor exercised reasonable care. In any event, I am of the opinion that the defendant was in breach of its personal duty to take care for the safety of the plaintiff by devising, instituting and maintaining a reasonably safe system of work, more particularly in its failure to supply protective creams, effective gloves and washing facilities.

12. I am not convinced that there was any lack of reasonable care on the part of the plaintiff which contributed to his injury. In the circumstances he had no practical alternative but to accept the situation as he faced it and to get on with the job.

13. I turn now to damages. The condition of the plaintiff's hands has been a substantial interference with his enjoyment of life and for some time with his capacity to carry out his work. He is fortunate in that he has been promoted into a position where he is able to carry out his work satisfactorily and with minimum discomfort and inconvenience. He did, however, lose a substantial period from work at one stage, and it is not really contested that it was reasonable for him to have stayed away from work during that period.

14. It is agreed that the plaintiff suffered a wage loss of $11,460. Out-of-pocket expenses are agreed at $736.49, and the Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438 component is agreed at $2,429.43. As far as the future is concerned, the plaintiff has not been shown as likely to suffer any periodic loss and it is inappropriate to approach the case as if he is or will be. On the other hand, the condition of his hands is such that he is unable to carry on the work of a labourer which he followed for many years, and he is not completely able to carry out full-time and unrestricted duties as a driver, his occupation at the time of the injuries. It is noted that at the present time the net weekly wage payable to a truck driver in a similar position to that of the plaintiff is just on $500 per week, but that can be of little guidance. What the plaintiff is to be compensated for in this regard is the loss of value he has sustained as a unit on the labour market. It is unlikely that the defendant will go out of business, but these days it is not unknown for public enterprises to dismiss employees, even employees of long standing, and if the plaintiff were to lose his present semi-managerial position, he might find it very difficult to find suitable work again. Doing the best I can on this aspect, I award the plaintiff the sum of $12,000.00 for loss of earning capacity in the future.

15. I have already spoken of some of the effects of the plaintiff's injuries on his domestic life. Prior to his injury he carried out the usual household chores for a man in his position, and in addition carried out a certain amount of maintenance on his own motor vehicle and the motor vehicles of immediate members of the family. He is restricted in this regard at the present time. He is also unable to play golf, but I am not convinced that it was likely that he would have continued to play golf even without his injuries. He sold his golf clubs, and it is not clear whether or not he sold them before the injuries occurred. Nevertheless, his condition is, on the probabilities, likely to continue into the indefinite future and disablement in both hands no doubt constitutes a substantial interference with the ordinary enjoyment of life. For this aspect of the case, I award the sum of $15,000.00 as to which I apportion $8,000.00 for the past. The plaintiff received gross worker's compensation payments of $10,999.06 on which he paid tax of $2,429.43, the net receipts of worker's compensation being just on $8,570, and the difference between that and the past economic loss being just on $3,000.00. Interest will be awarded on that difference and on the past component of pain and suffering at the usual rates and the result reduced by half. Interest on the past component of pain and suffering and loss of enjoyment of life is rounded out to $5,200.00 and on the component of past loss of earning capacity to $1,950.00 The award of damages is as follows:

Past economic loss $11,460.00

Future economic loss $12,000.00

Fox v Wood $ 2,429.43

Out-of-pocket expenses $ 736.49

Total: $41,625.92

16. The total of $41,625.92 appears to me to be an appropriate award of damages in all the circumstances. To that sum will be added the interest as calculated above and the plaintiff is to have judgment for $48,775.92.

17. Unless the parties wish to be heard, I propose to order the defendant to pay the plaintiff's costs on the full Supreme Court scale.