Breach of duty causative of injury
83 The trial judge instructed himself in accordance with the well-known statement by Windeyer J in Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319:
For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or to adopt a means reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.
84 The passage shows that the issues of breach and causation are inter-related in that a plaintiff must establish on the probabilities that the omission complained of was unreasonable and would have prevented the injury.
85 Windeyer J's reference to measures "reasonably open … in all the circumstances" reminds that at the end of the day the court must be positively satisfied that the defendant's conduct was unreasonable judged in the light of the factors highlighted in the Shirt calculus (Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8). Simply because a foreseeable risk comes home does not establish unreasonableness.
86 What is reasonable in the employment context must not lose sight of the contractual arrangements (cf Koehler v Cerebos (Aust) Ltd [2005] HCA 15, 214 ALR 355). This does not, however, mean that an employer is freed of tortious responsibility merely by pointing to the injury or illness being a product of the employee's contracted workplace tasks.
87 The contest focussed upon whether the respondent established that her employer unreasonably failed to give effect to the recommendations of the Working Party in the Guidelines.
88 The NIOSH alert, the Guidelines and the evidence of Dr Katelaris were at one in counselling a latex-safe, as distinct from latex-free, work environment. The medical evidence never suggested that the respondent was always so sensitive to latex that she would have developed latex allergy regardless of any precautions being taken at the Hospital.
89 It was never the respondent's case that sensitivity to latex in January 1999 meant that she should not have been offered employment at the Hospital. Neither did the appellant contend for this proposition, although its pleaded case of contributory negligence edged close to it (see further below).
90 Furthermore, neither side complained or asserted that it was legally inappropriate for the respondent to have continued working after September 1999 under the modified conditions recommended by Dr Mills. The parties may have had opposing forensic motives in adopting this stance in relation to this period, but that is ultimately neither here nor there. The respondent's verdict depends on a finding that negligence causative of loss occurred between January and September 1999.
91 The findings as to breach and causation were:
177. The phrase "in all the circumstances" used by Windeyer J in Vozza should be explored. Evidence has been led which places a contextual setting in which the Plaintiff's injury occurred and which impacts upon the concept of what was required of the Defendant as a reasonable response. The uncontested context evidence is that 8% - 12% of healthcare workers have some level of sensitisation to latex. It was also uncontested that at least since 1995 latex allergy had been an emerging problem for healthcare workers. The bulk of the Defendant's employees were healthcare workers. Research had revealed by 1998, and probably 1996, that nurses were particularly vulnerable. Many of the Defendant's employees were nurses. Further, the uncontested evidence established that latex allergy arises upon exposure to latex, coupled with sensitisation to latex. Dr Mills, then an employee of the Defendant, and no doubt others within the Defendant's personnel, knew that with the onset of time the immune response mounted by those with a predisposition to latex allergy could become greater and greater with the same exposure of latex. In its most dramatic form, the response can be fatal.
178. It is to be remembered, that the Defendant ran institutions, including the Plaintiff's hospital, whose task was to be competent in knowledge of modern illnesses, including latex allergy. This knowledge while it may have been essential for the hospital's medical treatment of patients with latex allergy, was not to be shielded from its employees, or its work-place treatment of its employees.
179. Two important publications, namely the NIOSH alert and Dr Katelaris's Working Party Guidelines had highlighted the dangers to a clearly measurable group of healthcare workers of continuing exposure to latex and had offered useful advice on best practice for reducing risk to them.
180. The NIOSH alert had postulated the following propositions, which might be thought to constitute "best practice":
• Latex allergy should be suspected in anyone who develops certain symptoms after latex exposure, including nasal, eye or sinus irritation; hives; shortness of breath; coughing; wheezing or unexplained shock.
• A physician should evaluate any worker who experiences these symptoms.
• Once a worker becomes allergic to latex, special precautions are needed to prevent exposures during work as well as during medical or dental care. Complete latex avoidance is the most effective approach.
• Provide workers with non-latex gloves when there is little potential for contact with infectious material - in the food service industry.
• Where latex gloves are chosen, provide reduced protein, powder-free gloves to protect workers.
• Ensure that workers use good housekeeping practices to remove latex-containing dust from the workplace.
• Identify areas contaminated with latex dust for frequent cleaning (upholstery, carpets, ventilation ducts, and plenums).
• Make sure workers change ventilation filters and vacuum bags frequently in latex-contaminated areas.
• Provide workers with education programs and training materials about latex allergy.
• Periodically screen high-risk workers for latex allergy symptoms. Detecting symptoms early and removing symptomatic workers from latex exposure are essential for preventing long-term health effects.
• Evaluate current prevention strategies whenever a worker is diagnosed with latex allergy.
181. The NIOSH alert also contained what might be called "best practice" recommendations for workers, which would reduce exposure and risk for the development of the allergy. These recommendations would no doubt have formed the basis of employer education programs and training materials about latex allergy.
[1-6, set out at par 51 above]
7. Follow your physician's instructions for dealing with allergic reactions to latex.
182. The Working Party Guidelines spoke of good preventative strategies to minimise further latex sensitisation including:
• The introduction of powder-free gloves universally throughout medical facilities as immediately minimising sensitisation via the inhaled route.
• Purchasing only low allergen-containing gloves to minimise the risk of sensitisation through compulsory glove wear.
• The identification of high risk individuals in the health care setting so that specific counselling may be undertaken to lessen the individual's risk of sensitisation.
183. The Working Party commented:
There are many gloves on the market and it is no longer acceptable to buy a glove because it costs less or an individual believes it feels better on their hands. There are Australian standards for both sterile and procedural examination gloves which address design.
184. The recommendations from NIOSH alert and the Working Party Guidelines make it clear that there were several reasonably inexpensive and non-disruptive measures that could be taken by, and means reasonably open to, the Defendant in all the circumstances to combat the proliferation of latex, a very real health hazard to nurses (including the Plaintiff) in its hospital.
185. At very least the hospital should have provided their nursing staff with education programs and training materials about latex sensitisation and latex allergy. Those programs and training materials should have identified for nurses, situations in which latex sensitisation could occur, the easily recognisable symptoms of latex irritation and sensitisation, and finally the potential consequences of latex sensitisation. Nurses should have been encouraged to report symptoms early. Those nurses who reported symptoms or were otherwise at high risk should have been counselled as to the dangers of sensitisation to latex and available alternatives. The hospital should have provided periodic screening of high-risk employees, including nurses exhibiting symptoms. Symptomatic workers should have been removed from latex exposure. The hospital should also have provided powder-free gloves to all staff to reduce air-born particles of latex. Employees involved in the preparation and service of food, and those employees involved in cleaning and environment type duties, wont to wear gloves, should have been encouraged to wear non-latex gloves.
186. Although the Plaintiff upon her return to the hospital in January 1999 began to re-experience her symptoms, and experience new ones almost immediately, she did not recognise the source or danger of her symptoms until mid-1999. Had there been a training or education program in place her situations may very well have been different. By June 1999 the Plaintiff was exhibiting a strong pre-disposition to latex allergy, the dimensions of which became more clearly apparent in August 1999. I am satisfied by June of 1999 senior employees at the hospital were aware of the Plaintiff's sensitisation to latex. In that month she had requested power-free gloves because of her reaction to the latex powder. In August 1999 the Director of Nursing at the hospital referred the Plaintiff to Dr Mills. The significance of those symptoms has been reviewed above. On 16th September 1999 Dr Mills advised the hospital of his diagnosis of latex allergy. Senior staff at the hospital must, or at very least ought, to have known that further exposure to latex from June 1999 could have very serious health risks for the Plaintiff. Yet she continued to work in a latex-laden environment for a further nine months, and a further six months after diagnosis.
187. Moreover, the precautions to which I have referred above may have resulted in an earlier identification of the Plaintiff in January or February 1999 as a high-risk employee - that is, more than a year before her March attack. Counselling would have brought into focus the dangers to her of on-going exposure to latex. Further, the significance of the recurrence and worsening of her symptoms would have had much more meaning to her and the Defendant. Had the small selection of proposals recommended by the NIOSH alert and the Working Party Guidelines listed above, been implemented, they would have protected the Plaintiff from - or at very least minimised - the dangers of exposure to latex.
188. While there is no evidence before me, as a matter of common sense, the measures referred to above could have been implemented into the hospital with very little cost and not much more inconvenience to the Defendant. Given that 8% to 12% of health care workers, and perhaps higher percentages of nurses are at risk of becoming sensitised to latex at some level, it is astounding that the Defendant did not seek to implement these measures.
189. The Plaintiff relied upon Paris v Stepney Borough Council [1951] AC 367 as setting the appropriate standard of care owed by the Defendant to the Plaintiff:
… a workman suffering, to the employer's knowledge, from a disability which, though it did not increase the risk of accident while he was at work, did increase the risk of serious injury if an accident should befall him, the special risk of injury was a relevant consideration in determining the precautions which the employer should take in the fulfilment of the duty of care which he owed to the workman.
190. The overwhelming evidence from the doctors establishes that continued exposure to latex is more likely to aggravate the immune response. The Plaintiff's case is that a request for non-powdered gloves in June 1999 put the Defendant on notice of her sensitisation to latex. Certainly by August 1999 there was clear medical evidence that her symptoms were worsening on continued exposure to latex and in September 1999 there was a diagnosis of latex allergy. In those circumstances there is some merit in the Plaintiff's argument that the potentiality for risk of serious injury is a relevant consideration in determining the precautions the Plaintiff's employer should have taken in fulfilment of its duty of care to her.
191. On either of the defendant's test, or of the Plaintiff's test, the defendant has breached its duty of care to the Plaintiff. I'm also satisfied the Plaintiff's injury was caused by the negligence of the defendant. Three of the particulars of negligence pleaded by the Plaintiff have been established.
192. The Defendant's primary duty of care was to prevent injury to the Plaintiff. Had the procedures recommended in the NIOSH alert and Working Party Guidelines been followed from January-February 1999 it is unlikely the Plaintiff's sensitisation levels would have reached their current parlous state. Further, in August and September 1999, given the nature of latex allergy and latex sensitisation, the only practical way injury could then have been curtailed, was to remove the Plaintiff from exposure to the levels of latex prevalent in the hospital. In almost Alice in Wonderland absurdity, the Defendant sought to remove the latex from the Plaintiff. The evidence establishes, not surprisingly, that was a futility. Familiarity with the NIOSH alert would have made that obvious to the Defendant. Interestingly enough on the 19th March 2000 the Defendant felt obliged to remove the Plaintiff, not only from the latex particles, but also from her employment. The procedures recommended in the NIOSH alert and Working Party Guidelines were a practical alternative option.
Challenges as to breach findings
92 The appellant first submitted that this reasoning elided physical possibility and reasonable practicability. It was said that the reference to the NIOSH alert having postulated propositions that amounted to "best practice" showed that his Honour set the standard too high. The reasoning as a whole was also challenged for confining itself to foreseeability and failure to advert to the check list of factors required by the Shirt calculus prior to a conclusion of unreasonable conduct amounting to negligence.
93 I reject these criticisms of the trial judge's reasoning. The findings at J182-185 show that his Honour focused upon widely publicised and reasonably open practicalities in forming his dispositive conclusion as to breach.
94 The appellant submitted that the opening statement in J188 showed that the judge went beyond the evidence. I do not agree, although the judge's expression is unfortunate. A plaintiff bears the onus of establishing want of due care. But when there is proof of unreasonable failure to adopt measures that would probably have prevented injury, an evidentiary onus may shift to the defendant to indicate some particular reason why they were not practically available in the particular circumstances. This may be the case, for example, where matters are peculiarly within the knowledge of the defendant (cf Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 at 214, McLean v Tedman (1984) 155 CLR 306 at 314, Laybutt v Glover Gibbs Pty Ltd [2005] HCA 56 at [37]).
95 J188 does not stand in isolation. Earlier, the judge had summarised the information disseminated in the Guidelines, including the information about the significant percentage of healthcare workers at risk of becoming sensitised to latex at some level, and the risk of very serious injury, including death, to which some were prone through exposure to latex being used within the hospital system at the levels of the mid-1990s. The Working Party had made specific recommendations about the creation of a "latex safe" hospital environment and measures for detection and prevention for the safety of patients and staff. This would include patients and staff whose sensitivity had risen to the level of being such that they required a latex-free environment. These went beyond recommendations about the means of responding to patients and employees who already knew they were at risk.
96 I read the opening sentence of J188 as a statement to the effect that the defendant had advanced no direct evidence about the cost or inconvenience of taking the type of measures that it omitted to take before September 1999 in relation to the respondent. This was a true and significant observation. One would have expected such evidence to have been forthcoming from the employer if it was to be relied upon.
97 The recommended measures were not suggested or shown to be impractical. The evidence of Dr Katelaris was to the contrary. The steps taken at the Hospital on the advice of Dr Mills after September 1999 were obviously available and reasonably practical. The respondent's complaint is that the damage had already been done by that time. Likewise, the provision of the information package provided by Dr Mills in August 1999 and the provision of powder-free gloves after June 1999 were available and reasonably practical, though belated measures.
98 The issue of redeployment was barely explored in the evidence. But such as it was, it pointed to the employer having means at its disposal if things had not been allowed to get to the level of danger presented by September 1999. In this regard, it is relevant to observe that the appellant's responsibilities cover a very wide geographic and functional area (see Health Services Act 1997). Dr Mills obviously considered redeployment an option when he reported to the respondent's general practitioner in December 1999 (Blue 32). This was part of his duties (Blue 9-10).
99 Nor has the appellant established the ground of appeal contending that the judge erred in concluding that the employer had unreasonably failed to provide a safe working environment. The practicality and probable effectiveness of the standards recommended by the Working Party were established by the testimony of its convenor, Dr Katelaris. She was not challenged on the following evidence given in a report dated 24 April 2003 (Blue 159):
Once a health care worker is diagnosed with latex allergy, certain strategies must be put in place. There are a number of guidelines to direct institutions and employers regarding this. The NSW Health Department has such a guideline which is now applicable in Public Hospitals. The sensitised worker must be provided with a "latex-safe" environment. The cornerstone of this policy is the removal of powdered latex gloves from the immediate workplace. Other workers in the vicinity should wear powder-free gloves but if there is any contact with the sensitised individual, then they too should don latex-free gloves. A latex-safe environment implies that there is no movement to within that area of any person or any objects which have the potential to be contaminated with latex allergens via contamination with glove powder. While the employers of Mrs Dell moved her to the A&E Department, which was said to be "latex-free", there was no control over movements into the Department where there was a possibility of contamination with glove powder and therefore a risk of further exposure to latex allergen for Mrs Dell. Thus, if the facility did not have the capacity of ensuring a latex-free environment, then the worker should be moved out of that particular facility. The word "latex-free" is used in this circumstance and it is the term preferred by those knowledgeable in the field because it is virtually impossible to ensure a latex-free environment, nor is it necessary. For instance, rubber backing under carpet is not a risk to latex allergic individuals and does not need to be removed for their safety.
Once the realisation occurs that the individual has a latex allergy both from the clinical history and from in-vitro or in-vivo testing, then it is reasonable to assume that further latex exposure places her at risk of some degree of allergic reaction. As stated above, it is possible that continuing exposure will also increase the level of sensitisation.
If latex allergy is to be called an irreversible injury, then from what I have said above, one would apply this term to Mrs Dell's condition in that latex allergy is usually of a long-lived nature and at least of an indefinite duration. The severity of the latex allergy may fluctuate with time with perhaps some lessening with the removal of continuing exposure. Mrs Dell was exposed to latex for many years after the first clinical evidence of her sensitisation back in 1995. Whether it was the continuation of exposure from 1995 to 1999 or further exposure from 1999 on, which led to her present state of sensitisation, is impossible to differentiate. Suffice to say this woman had many years of continuing exposure prior to the diagnosis. I do not date the onset of her problem to 1999 when the diagnosis was finally made but on historical grounds this woman's latex allergy in a clinically relevant way began in 1995 with her first reaction. Even the most exquisitely sensitised individuals can function normally providing they do so in a latex-safe environment described above. Thus, providing such an environment is achieved, there is no reduction in the capacity to work and function. I have personally looked after many allergic individuals who continue to carry on a productive life despite the incapacity of latex allergy but the limitation is that this needs to be carried on in a latex-safe environment.
I am not in disagreement with Dr Kaufman's statement that further exposure to latex may cause increasing sensitisation. This is particularly so with the evolution of asthmas in such an occupational setting.
100 I cannot accept the appellant's submission that this should be read as speaking only as at 2003. The evidence is entirely consistent with the Guidelines of the Working Party of which Dr Katelaris was the convenor. I read the report as Dr Katelaris' application of those Guidelines to the situation disclosed in the evidence. It is her confirmation that the particular circumstances of the respondent and of the hospital at Milton/Ulladulla were such as to have made significant and sufficient amelioration available before September 1999.