Akram Karam v Palmone Shoes Pty Ltd
[2010] VSCA 253
•29 September 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2010 0009
S APCI 2010 0010
| AKRAM KARAM | |
| Appellant | |
| v | |
| PALMONE SHOES PTY LTD | Respondent |
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JUDGES: | MANDIE and HARPER JJA, BEACH AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 September 2010 | |
DATE OF JUDGMENT: | 29 September 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 253 | |
JUDGMENT APPEALED FROM: | [2010] VSC 3 (T Forrest J) | |
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ACCIDENT COMPENSATION – Serious Injuries – Claim against employer for damages – Trial judge not satisfied as to causal link between employment and injury (multiple myeloma) – Relevance of ss 82, 86 and 87 of Accident Compensation Act 1985 (Vic) – Whether damages for injury (asthma) correctly assessed.
APPEAL – Whether appellant had a reasonable opportunity at trial to appreciate the significance of a new development in the course of the trial – Whether the appellant sought an adjournment or elected to go on and take his chance – Consideration of application to produce fresh evidence on appeal.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondent | Mr R P Gorton QC with Mr J P Gorton | Minter Ellison |
MANDIE JA
HARPER JA
BEACH AJA:
Introduction
In 2009, two proceedings were brought in the Trial Division in which Akram Karam was the plaintiff and Palmone Shoes Pty Ltd (‘Palmone’) was the defendant. It is convenient to refer to those proceedings, as did the trial judge, as ‘the asthma case’ (no 9226 of 2009) and ‘the cancer case’ (no 9113 of 2009). The trial took place on 30 November, 1-4, 7-8 and 11 December 2009. Mr Karam was represented by senior and junior counsel. Mr Karam’s senior counsel was a very experienced senior counsel in this field.
On 18 January 2010, T Forrest J handed down reasons for judgment[1] in those proceedings.
[1][2010] VSC 3.
The proceedings involved claims for damages for personal injuries suffered by Mr Karam as a result of his employment by Palmone from 6 November 2002 to 22 February 2006. Palmone manufactures shoes and in the course of his employment Mr Karam was exposed to a number of adhesives and glues.
It was accepted that, as a consequence of Palmone’s negligence, Mr Karam had developed asthma and an associated psychological condition. The asthma case proceeded as an assessment of damages and the judge assessed Mr Karam’s damages.
Mr Karam had also developed plasmacytoma and subsequent multiple myeloma. The judge found that those conditions constituted a serious injury within the meaning of the Accident Compensation Act 1985 (Vic) (‘the Act’) but that Mr Karam had failed to prove that his employment with Palmone was a cause of or a material contributing factor of or to those conditions.
On 18 January 2010 the judge formally entered judgment for Mr Karam in the asthma case and for Palmone in the cancer case. Mr Karam’s damages in the asthma case were assessed in the sum of $244,296.
On 1 February 2010 Mr Karam personally filed notices of appeal against these judgments. The Court has before it those appeals for hearing together with a further application by Mr Karam, by summons filed 9 March 2010:
seeking leave to produce the following fresh evidence: to include documents in the appeal book, to include articles that had been shown and produced in the medical and experts reports, to produce new articles [in] the appeal, to produce analytical tests of [glues and adhesives] which were used by [Mr Karam] at the Palmone Shoes factory, to produce a written submission in relation to the industrial asthma and psychiatric injury due to failure of [counsel] to do so.
An application to amend the statement of claim
Shortly before the trial commenced, on 18 November 2009, at a time when Mr Karam was represented by other counsel (in circumstances not necessary to mention at this point), application was made to the trial judge on behalf of Mr Karam to amend his statement of claim in the cancer case. The contention underlying the amendments that were sought was that it was unnecessary for Mr Karam to prove causation (ie a work-caused injury) in his claim for common law damages by reason of the provisions contained in ss 82, 86 and 87 of the Act.
The trial judge refused leave to amend the statement of claim. In substance, his Honour said that ss 82, 86 and 87 were concerned with claims by a worker for compensation but had no application to common law claims brought through the gateway of s 134AB of the Act. The law as to causation at common law, his Honour said, was not modified by the provisions of the Act above referred to, dealing with no-fault compensation.
It will be necessary to return to this aspect when dealing with Mr Karam’s grounds of appeal.
The judgment below
The following facts and introductory matters appear from the judgment below:
(a)Mr Karam was employed by Palmone as a shoemaker between 6 November 2002 and 22 February 2006.
(b)Throughout the course of his employment Mr Karam was exposed to various chemical solvents used in the manufacture of shoes – in particular PA 5000 adhesive, NE 1821 Black Neoprene and Halo Primer.
(c)Mr Karam developed asthma and a psychological reaction to that condition; he ceased work in 2006 and had not worked since – the asthma case was commenced in the County Court in March 2008 and transferred to the Supreme Court in March 2009.
(d)In early 2008 Mr Karam was diagnosed as suffering from a form of cancer constituted by a plasma cell malignancy known as a plasmacytoma – a single tumour located adjacent to his only kidney – radiotherapy was inappropriate and Mr Karam had refused surgery.
(e)By August 2009 Mr Karam’s cancer had developed to multiple myeloma.
(f)In the cancer case Mr Karam alleged that the exposure to the various solvents throughout the course of his employment by Palmone had caused his plasmacytoma and multiple myeloma.
(g)In the cancer case Palmone said that the plasmacytoma was not a foreseeable risk in the circumstances and that Mr Karam had failed to prove that the exposure to solvents was a cause of his plasmacytoma or multiple myeloma.
(h)As the case for Mr Karam developed, it became clear that it was his exposure to the solvent benzene that was relied upon in order to establish a causal link to his cancer and that it ‘became clear that this causation issue was the predominant issue in the case’.
The judge then said:[2]
[Mr Karam] was given leave by an Associate Justice of this Court to bring the cancer case as permitted by s 135BA of [the Act]. The question of whether [Mr Karam] had suffered a serious injury within the meaning of s 134AB(38) was left to be determined at trial. [Mr Karam’s] plasmacytoma/multiple myeloma is obviously a serious injury within that meaning and [Palmone] did not contend otherwise. Insofar as it is necessary, I find that his cancer case injuries are serious from both a pain and suffering and a pecuniary loss perspective. With the consent of the parties I considered it appropriate to determine the issue of the relationship between [Mr Karam’s] work and the illness within the context of the trial proceedings, rather than in the context of s 134AB(38) proceedings.
[2][2010] VSC 3, [8].
The judge then went into more detail concerning the background facts. His Honour said that Mr Karam had never been involved in his previous jobs at other shoe factories that exposed him in any meaningful way to glue fumes. His Honour then described Mr Karam’s duties at Palmone and the gluing processes which he undertook. The judge found that for approximately 30 to 40 minutes every hour over an eight hour working day, Mr Karam was involved in the gluing process in his ‘breathing space’ between 20 to 30 centimetres from his mouth and nose.
The judge said that it was ‘a simple exercise to find that [Palmone] breached the relevant statutory duties and common law duties’. The issue was not whether Palmone had breached its duties of care but:[3]
(a)whether the consequence of the development of plasma cytoma/multiple myeloma was a foreseeable consequence of the actual level of exposure to benzene that [Mr Karam] encountered; and
(b)whether the actual exposure to benzene caused or materially contributed to the plasmacytoma/multiple myeloma.
[3][2010] VSC 3, [14].
His Honour then referred to the relevant legal principles citing Bennett v Minister of Community Welfare,[4] Naxakis v Western General Hospital,[5] Freidin v St Laurent[6] and Seltsam Pty Ltd v McGuinness,[7] and said:[8]
There is a clear issue in this case of whether [Mr Karam’s] exposure to benzene did increase his risk of developing plasmacytoma/multiple myeloma at all or in any meaningful way. Before [Mr Karam] could contend for the Naxakis inference, I would need to be satisfied that there was in fact this increase in risk.
[Mr Karam’s] case is that I ought to conclude on balance, that his exposure to benzene in the workplace between November 2002 and February 2006 materially contributed to or was a cause of him developing a plasmacytoma and subsequently multiple myeloma. [Mr Karam] says I can conclude this directly from the evidence or ‘if necessary’ the plaintiff relies on the degree of proof described by Chernov JA in Freiden v St Laurent … .
[4](1992) 176 CLR 408, 420-421 (Gaudron J).
[5](1999) 197 CLR 269, 278-279 (Gaudron J).
[6](2007) 17 VR 439, 446 [20] (Chernov JA).
[7](2000) 49 NSWLR 262.
[8][2010] VSC 3, [20]-[21].
His Honour referred to evidence from a chemical engineer (Mr Pinda) called on behalf of Mr Karam as to the presence of benzene in the glues and on the basis of that evidence found that benzene was present in the PA 5000 Adhesive to the extent of 40 parts per million and in the Neoprene Black to the extent of 80 parts per million. In a footnote, his Honour noted that the Halo Primer ‘was not found to have any measurable benzene content’. This was one of the matters taken up by Mr Karam on the appeal.
The judge next said that it was one thing to point to the amount of benzene in the glues but it was another to assess the actual benzene exposure that Mr Karam was subjected to. He said that benzene was a hydrocarbon like other solvents in the glues and that when the glues were applied to the shoes they gave off strong fumes. The judge noted that Mr Pinda had not conducted any simulated tests in order to measure the level of benzene that was ‘flashing off’ into the breathing space of an operator such as Mr Karam. His Honour referred to evidence by Dr Crank, a toxicologist called by Palmone, that the products had an extremely low benzene content and to evidence from Dr Sutcliffe, an occupational physician called on behalf of Mr Karam, that Mr Karam had sustained ‘excessive exposure of hazardous substances of solvents and glues during his employment at Palmone …’. The judge said that Dr Sutcliffe’s opinion was that Mr Karam was exposed to excessive quantities of benzene ‘in the absence of testing’ but that her estimate was that he was exposed to benzene in his breathing space in the range of ‘3 or 4, maybe 5 parts per million’ whereas the Australian standard for ambient air concentration for benzene was 1 part per million. He said that Dr Sutcliffe testified that measuring exposure to solvents could be done either by using volatile organic measure badges pinned to a person’s lapel or by collecting air from the breathing space, removing it to a laboratory and measuring the volatile substances on a chromatograph. The judge said that Dr Sutcliffe did not carry out or commission any such tests to ascertain the likely level of benzene exposure in Mr Karam’s working environment.
The judge noted that the Australian Standard for benzene exposure of 1 part per million (ppm) was expressed as an eight hour time weighted average (twa),[9] so, if a person was exposed to 1 ppm of benzene over an eight hour day his exposure could be expressed as 1 ppm/twa.
[9]The judge said that prior to 2003 the standard was 2.5 ppm/twa.
The judge then said that, in December 2007, Palmone’s solicitors had commissioned ‘occupational hygiene contaminant testing’ at Palmone’s premises. The tests were conducted by Mr Paul Addison, a partner of Noel Arnold & Associates, occupational hygienists. Mr Addison had practised in the field since 1987 and had a Bachelor of Science, a Diploma of Occupational Hygiene and memberships of professional bodies. The tests were conducted for the purposes of the asthma case as Mr Karam’s plasmacytoma had not at that stage been diagnosed. His Honour said that what, for the purposes of this appeal, will be referred to as the Arnold report, was tendered in evidence and the judge then described the tests and the results. The judge said that, in this simulated testing, it was found that benzene would have been in Mr Karam’s breathing space to the extent of 0.4 ppm/twa, that is, 60 per cent below the Australian Standard and approximately ten per cent of the exposure estimated by Dr Sutcliffe. The judge noted written submissions on behalf of Mr Karam that the Arnold test was ‘highly suspect’. We interpolate here that Mr Addison gave evidence and was cross-examined, that Dr Sutcliffe gave evidence concerning the Arnold report and, finally, that, although the judge gave Mr Karam’s legal representatives the opportunity to seek further time to deal with the contents of the Arnold report, they did not avail themselves of that opportunity. This aspect will be referred to again when dealing with Mr Karam’s submissions.
The judge concluded, based on the Arnold report, that he was not satisfied that the quantity of benzene in Mr Karam’s breathing space was excessive. His Honour stated his reasons on this aspect as follows:[10]
[10][2010] VSC 3, [51]-[58].
Ultimately, I am not satisfied that [Mr Karam’s] exposure to benzene was at the levels argued by [him]. The only proper scientific testing of the actual exposure was conducted by Mr Addison, who impressed me as a conscientious and impartial witness. Mr Addison conducted the tests, described by Dr Sutcliffe as the ‘correct’ ones to undertake, if tests be undertaken.
[Counsel for Mr Karam] criticised the testing in their submissions. They cited Dr Sutcliffe’s criticism of the testing – this was based on Dr Sutcliffe’s assertion that the photographs of the testing demonstrated that the shoe being glued was further from the breathing zone than as described in evidence by [Mr Karam]. An examination of the photographs suggests that the shoe component being glued was within 20 to 30 centimetres of the badge like ‘passive organic vapour monitor’, visible in those photographs. The ‘sorbent tubes’ and ‘sampling pump’ are not visible in the photographs, but both in examination-in-chief and in cross-examination Mr Addison stated that these devices were within the ‘breathing zone’; that is, within 30 centimetres of the nose, ‘somewhere on the lower lapel’.
I accept the proposition that no amount of simulation testing can ever duplicate the precise quantities and mixtures of solvents that [Mr Karam] was exposed to which, no doubt, themselves, varied on a day-to-day basis over more than three years.
Nevertheless, I am of the opinion that the Addison evidence provides the best evidence relating to the issue of the actual amount of benzene that was present in the breathing space of [Mr Karam] throughout the relevant period.
As I have observed, it is the only scientific testing of the exposure [Mr Karam] was subjected to. The evidence for [Mr Karam] was essentially an intuitive estimate by Dr Sutcliffe based on her experience and the history [Mr Karam] gave her. She did not express her estimate of 3-5ppm as a time weighted average but as an estimate of the exposure during the time [Mr Karam] was performing the gluing.
Accordingly, I find, on a time weighted average, that [Mr Karam’s] exposure to benzene was approximately 0.4 parts per million. I am not satisfied that it was much greater than this level and I find that it was not at the level of 1 part per million or more.
To put these findings into some perspective, all medical and toxicological experts in this case who offered opinions related to risk and/or causation, relied on epidemiological studies published in various journals. One meta-analysis that did find a link between benzene exposure and multiple myeloma was that conducted by Peter Infante. ... Infante considered a study by Fu et al which considered the mortality rates among a cohort of shoe manufacturers in Florence and which also concluded that there was a relationship between benzene exposure and multiple myeloma. Benzene was used by the Florentine workers the subject of that study from the early 1950s. ‘They estimated that 70% of the glue consisted of benzene before 1960. By the end of 1963 however, a national law required that the benzene content of glues be limited to 2% …’.
70 per cent benzene is 700,000 parts per million. Two per cent is 20,000 parts per million. The glue analysed by Intertek Probe returned the following results:
(a) PA5000 Adhesive 40ppm i.e. .0004%
(b) Neoprene Black 80ppm i.e. .0008%
By any measure, the quantity of benzene in the glues used at [Palmone’s] factory was low.
I am not satisfied of [Mr Karam’s] allegation that the quantity of benzene in [his] breathing space … was excessive. This is a finding limited to benzene only.
His Honour then turned to consider what he described as the evidence of risk and causation and dealt with each of the witnesses. He said that all of Mr Karam’s medical witnesses relied on the published epidemiological studies and meta-analyses that had investigated any link between benzene exposure and multiple myeloma and that those witnesses all concluded, on the basis of those studies, that there was an increased risk of contracting multiple myeloma after exposure to benzene but none offered any opinion as to what level of exposure to benzene was necessary in order to establish the increased risk.
It is unnecessary to detail the judge’s summary of the evidence of Dr Wassouf, Mr Akram’s GP, because the judge concluded that Dr Wassouf’s research and acquired knowledge was insufficient to allow him to accord his opinion any real weight. The judge noted that Dr Wassouf’s opinion was eroded to a very substantial degree by his failure to research ‘the negative side’ after researching ‘the positive side’.
The judge then considered the evidence of Associate Professor Wolf, Mr Karam’s treating haematologist and oncologist, whom he described as an impartial and impressive witness. The judge referred to Associate Professor Wolf’s evidence concerning a number of case studies that supported an association between benzene exposure and the development of multiple myeloma and his acknowledgment that there were other studies which offered a tenable medical view that there was no such association. The judge referred to Associate Professor Wolf’s testimony that he was not aware of the degree of exposure involved in the studies upon which he relied nor was he able to express an opinion on whether or not Mr Karam’s tumour came into existence before or after he had commenced employment with Palmone (‘the latency issue’). The judge then referred to exchanges between the witness and counsel (and the judge himself) relating to the probability of exposure to benzene having caused Mr Karam’s multiple myeloma and Associate Professor Wolf’s ultimate opinion that he could do no more than say that it was ‘highly possible’ that Mr Karam’s exposure to benzene was a cause of his plasmacytoma/multiple myeloma but could not say that it was probable.
The judge then referred to the evidence of Dr Helen Sutcliffe[11] who stated her criteria for considering that there was a relationship between benzene exposure and Mr Karam’s cancer condition. After analysing Dr Sutcliffe’s evidence the judge said:[12]
I consider that Dr Sutcliffe’s evidence provided some support for the proposition advanced by Associate Professor Wolf that there is a link between exposure to benzene and the development of multiple myeloma at a high exposure level. I do not consider that Dr Sutcliffe’s evidence assisted [Mr Karam], in any material way, in demonstrating that the actual exposure that I have found [Mr Karam] was exposed to led to his risk of developing multiple myeloma actually being increased, or to the conclusion that, on balance, that exposure was a cause of his multiple myeloma.
[11]See earlier references to her evidence in [17] above.
[12][2010] VSC 3, [62].
The judge then referred to the evidence of Professor Christopher Winder, a Professor of Toxicology and Professional Health at the University of New South Wales whose evidence supported that of Associate Professor Wolf but he was unable to express any opinion on the latency issue. The judge said that ‘Professor Winder was hamstrung by the relative lack of research on the area and could not assist on the issue as to what level of exposure to benzene actually increased the risk of development of multiple myeloma’.
The judge then turned to Palmone’s witnesses. Professor Richard Fox, Director of Research at St Vincent’s Hospital, had specialised in the field of clinical haematology and medical oncology since about 1971. Professor Fox said that he did not believe that Mr Karam’s tumour was work related. He analysed the various studies relied upon by Mr Karam’s witnesses and referred to other studies. He referred to a meta analysis (a review and combination of all published studies) which found that there was no increased association between multiple myeloma and benzene exposure or exposure to chemical groups that included benzene and that ‘[i]n toto the population based and hospital based (criteria) indicated benzene exposure was not a likely cause for multiple myeloma’. Professor Fox said that the average cigarette contained a similar level of benzene to that contained in the solvents and that ‘cigarette smoking is not associated with multiple myeloma but has an association with Acute Myeloid Leukaemia’ which Professor Fox said was a fundamentally different condition to multiple myeloma. Further, the judge indicated that Professor Fox considered that it was likely that the tumour pre-existed Mr Karam’s employment with Palmone although the judge rejected a particular argument that Professor Fox advanced on this aspect.
The judge said that Professor Fox referred to papers that did postulate an increased risk of the development of multiple myeloma from benzene exposure but that the Professor pointed out that those papers spoke of a latency period between ten to 20 years. Ultimately Professor Fox, the judge said, stated that there might possibly be a relationship between benzene and multiple myeloma ‘but the evidence does not get you to any form of probability’. The judge said that he regarded Professor Fox as an impartial, widely read and impressive witness.
The judge then referred to the evidence of Dr George Crank an expert toxicologist who expressed the opinion that the actual amounts of benzene in the two solvents were extremely low compared, say, with petrol.
The judge then expressed his conclusions. He was satisfied on the evidence that it was at least highly possible, if not probable, that occupational exposure to benzene in significant levels increased the risk of a person developing multiple myeloma but that, even if it could be concluded that very high exposures to benzene did increase the risk of developing multiple myeloma, he did not consider that Mr Karam had proved that his exposure to benzene increased his risk of developing the illness. His Honour said:[13]
[13][2010] VSC 3, [113]-[117].
As I have indicated earlier I accept that for 39 months [Mr Karam] was directly exposed to either PA5000 Adhesive or Black Neoprene Adhesive for approximately 5 hrs 20 minutes of an eight hour day. I accept that that exposure was to fumes from those adhesives entering his breathing space. I accept that the concentrations of benzene in those glues was 40 to 80ppm and that the presence of benzene in the breathing space was no less than 0.4ppm, but not as high as 1ppm/twa.
It follows that I consider that [Mr Karam’s] exposure to benzene was less (on a time weighted average) than that prescribed by the Australian Standard (1ppm twa for an 8 hour day) and at a level that, when compared to the Florentine shoemakers, can only be described as miniscule. The relevant glues used by [Mr Karam] were between 17500 and 8750 times less concentrated with benzene than the glues used by the Florence cohort (up until 1963).
There is no epidemiological evidence that there is any increase in the risk of developing of multiple myeloma at the levels to which [Mr Karam] was exposed, or at anywhere near those levels. The evidence is in fact to the contrary
‘Yes, but they failed to find (the risk) when they brought the concentrations down’.
Professor Fox when making this statement was referring to the three meta-analyses Bezabeh, Bergsagel and Sonoda.
Whilst not determinative in itself, the time taken between the employment period and the diagnosis of the plasmacytoma supports a lack of association between the benzene exposure and [Mr Karam’s] plasmacytoma/multiple myeloma. [Mr Karam] commenced work with [Palmone] in November 2002 and ceased in February 2006. His plasmacytoma was diagnosed in February 2008. Thus any potential latency period is between 2 years and 5 years 3 months. All witnesses were hamstrung by a relative lack of research on this issue (and on the broader issue of benzene/multiple myeloma risk generally) however [Mr Karam’s] treating haematologist/oncologist Associate Professor Wolf, considered that this latency period was at the extreme low end of the range even assuming that the tumour came into existence almost at the commencement of [Mr Karam’s] exposure.
I consider that [Mr Karam] has failed to prove that his risk of developing multiple myeloma was increased by his actual exposure to benzene in his workplace. It follows that no Bennett and Naxakis process of reasoning ought be undertaken, predicated as it is upon a finding of actual increase in risk to [Mr Karam].
The judge then turned to the asthma case and reference will be made to his reasons in that regard later below.
Mr Karam’s Submissions on the Cancer Case
The bases of Mr Karam’s attack on the judgment below in the cancer case can be found in his grounds of appeal and written submissions and were the subject of oral submissions. His oral submissions did not traverse the whole area covered by his grounds of appeal and written submissions although it is reasonable to think that his principal complaints were the subject of his oral submissions. It is therefore convenient to deal in the first instance with his oral submissions.
Mr Karam’s first submission was in substance that the question of causation was irrelevant. Mr Karam said that the judge should have simply determined whether his cancer was compensable or not. Mr Karam submitted that his cancer was deemed to be work-related by virtue of what was contained in certain express provisions of the Act. This is similar to the argument put by counsel, apparently on Mr Karam’s express instructions, that was rejected by the judge when refusing leave to amend the statement of claim.[14]
[14]See [8] and [9] above.
The argument appears to depend upon the following provisions of the Act:
82(1)If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.
…
(6)… , if a worker suffers an injury which occurs by way of a gradual process over time and which is due to the nature of employment in which the worker was employed at any time before notice of the injury was given, the worker … shall be entitled to compensation under this Act as if the injury were an injury arising out of or in the course of employment.
86(1)… , if –
(a)a worker is suffering from a disease within the meaning of section 5[15] which incapacitates the worker from earning full wages at which the worker was employed;
[15]The definition of ‘disease’ includes any physical ailment.
…
and the disease is due to the nature of any employment in which the worker was employed at any time prior to the date of incapacity, the worker … shall be entitled to compensation in accordance with this Act as if the disease were an injury.
87(1)The Governor in Council, after consultation by the Minister with the Authority, may by proclamation published in the Government Gazette from time to time proclaim diseases in relation to places, processes or occupations for the purpose of this section.
(2)Without derogating from section 86, if at the time a claim was made a proclamation under subsection (1) was in force and –
(a)the worker has been employed at any place or in any process or occupation proclaimed under subsection (1); and
(b)has contracted a disease specified in relation to that place, process or occupation –
then the disease shall be deemed to be due to the nature of the employment at such place or in such process or occupation unless the employer or the Authority or a self-insurer, as the case may be, proves to the contrary.
It was assumed by Mr Karam’s submission that some or all of the above provisions eliminated the requirement of proof of ‘causation’ in his claim in the cancer case.
Of course, s 82(1) is concerned with a worker’s entitlement to compensation under the Act (statutory compensation) the right to which depends on the worker proving the existence of an injury ‘arising out of or in the course of any employment’. What s 82(6) does is extend the scope of that concept in the case of compensation for an injury occurring by way of a gradual process. The injury still has to be due to the nature of some (‘any’) employment in which the worker had been employed before notice of the injury was given. The section does not assist Mr Karam because the main issue in the cancer case was, broadly speaking, whether Mr Karam’s cancer had resulted from his working conditions during his employment by Palmone and s 82(6) does not foreclose that question. Unless Mr Karam could establish that his cancer was due to the nature of his employment by Palmone, he could not establish Palmone’s common law liability to him as an employer.
Section 86(1)(a) extends the scope of the concept in the case of a disease that is due to the nature of some (‘any’) employment at any time prior to the date of incapacity as defined. Again, the section does not assist Mr Karam, because to establish Palmone’s common law liability as an employer, Mr Karam had to establish that his condition was due to the nature of his employment by Palmone and that question is not foreclosed by s 86(1)(a).
Section 87 also extends the concept by virtue of the deeming provision contained in s 87(2) but the operation of the deeming provision depends on the existence of a relevant proclamation pursuant to s 87(1). We note, in that regard, that there was no evidence at trial that any proclamation had been published proclaiming any disease in relation to any place, process or occupation that was relevant to Mr Karam’s claim in the cancer case and the existence of any proclamation does not appear to have been mentioned. Nor did Mr Karam in his oral submissions on appeal advert to any such proclamation. However in what is described on appeal by the appellant as an ‘additional court book’ there appears a copy of a proclamation[16] under s 87(1) of the Act proclaiming certain specified diseases in relation to certain specified processes and occupations. In a written submission dated 13 April 2010 Mr Karam points to this proclamation and to two diseases mentioned in it, namely ‘poisoning by benzol’ and its derivatives and ‘poisoning by the halogen derivatives of hydrocarbons’, in relation to any process or occupation involving their use (in substance). But of course Mr Karam’s cancer is not ‘poisoning’ in a literal sense and, at any rate and in any wider sense, it was the connection between benzene and his cancer that the trial judge found was not proven. It follows that, even if s 87 were otherwise applicable, it did and does not assist Mr Karam’s case.
[16]At pp 270-285, there is a copy extract from the Victoria Government Gazette dated 30 August 1985 containing this proclamation.
The key issue in the cancer case was whether Mr Karam’s plasmacytoma/multiple myeloma resulted from the working conditions of Mr Karam’s employment by Palmone (i.e. his exposure to benzene) and none of the above provisions dictate an answer to that question. If Mr Karam could not prove, on the balance of probabilities, that his said condition resulted from the working conditions of his employment by Palmone (ie his exposure to benzene), his loss and damage could not have been caused by Palmone’s negligence and his action had to fail. On the other hand, if Mr Karam had satisfied the Court, on the balance of probabilities, that his condition did arise out of his employment by Palmone (ie his exposure to benzene), then, negligence being conceded, his action would have succeeded.
Sections 135BA, 135A and 134AB are all concerned to govern actions for damages by workers who are entitled to compensation in respect of an injury arising out of or in the course of or due to the nature of employment but a connection between the injury and the employment by the employer being sued has to be proved, among other things, in order to recover common law damages against that employer. The submission by Mr Karam that ss 82, 86 and 87 of the Act in the circumstances of this case obviated the need to prove that employment connection must be rejected.
Mr Karam’s second submission was that the judge had exhibited bias by disregarding Mr Karam’s witnesses and relying on ‘an incredible witness’ Professor Fox who had tried to mislead the Court. The judge had also relied on Dr Crank who was an organic chemist not qualified to comment on medical issues. Mr Karam submitted that the judge had disregarded his witnesses and given weight to Palmone’s ‘incredible witnesses’.
That submission is rejected. It is clear that the judge, far from exhibiting any bias, gave all due deference and attention to all witnesses. He accepted the evidence of Mr Karam’s witnesses, with some qualifications, and likewise accepted some but not all of the evidence of Palmone’s witnesses. The judge carefully considered the evidence of each of the witnesses and Mr Karam’s submission is unsustainable.
Mr Karam’s third submission was that the judge had erred in taking into account the latency issue. Mr Karam submitted that s 135BA did not refer to ‘cause’ and that, in effect, it was irrelevant for the judge to consider the question whether the plasmacytoma may or may not have existed prior to the commencement of Mr Karam’s employment with Palmone. This submission must also be rejected. Having regard to what we have said in relation to Mr Karam’s first submission, the judge was entitled, in considering the probability of an association between Mr Karam’s employment and his cancer, to take into account evidence relating to the time that it might take for a plasmacytoma to develop after exposure to a toxic substance such as benzene.
Mr Karam’s fourth submission related to what he said was the unfairness of the procedure that had taken place in a claim that he had made (and that we understand is still pending) for compensation under the Act in the Magistrates’ Court. We were unable to discern that the submission had any relevance to this appeal.
Mr Karam’s fifth submission in part related to the introduction into evidence of the Arnold report. Mr Karam said that he only had 15 minutes to review the Arnold report and that he was taken by surprise by its introduction into evidence. Mr Karam pointed out that Palmone had not provided an Order 44 statement in relation to the Arnold report and the evidence by Mr Addison. Mr Karam added that he had received the Arnold report much earlier from an insurance company but he said that Palmone had contended that it was privileged and then produced it at the last moment. Mr Karam criticised Arnold’s testing methods and said that the prescribed method was not followed. Mr Karam said that the Arnold report was used to overcome all of his medical evidence.
It is necessary to refer to the transcript of the trial to put this submission into context.
On the morning of the fourth day of the trial, Thursday 3 December 2009, one of the witnesses for Mr Karam, Dr Sutcliffe, was recalled to continue her examination in chief. During the course of her cross-examination, she acknowledged that she had that morning read the Arnold report and apparently had a copy of it with her in the box. Dr Sutcliffe was asked whether the process of measurement described in the report was one of which she would approve. Dr Sutcliffe replied that Noel Arnold & Associates was a very experienced company. She said that she did not know the particular person involved whom she thought was Paul Addison or his current practice but that it would have been to apply a volatile organic collector in the breathing zone and to have a collection of the air in the breathing zone. Dr Sutcliffe said that this was a fairly standard strategy. Some question were then put to her about the test results when the following exchange between the judge and counsel occurred:
HIS HONOUR: Are you proposing to tender this, Mr Gorton?
MR GORTON: I am proposing to –
HIS HONOUR: If what you are getting is simply getting this witness to recite the results of testing done by someone else.
MRGORTON: I am proposing to tender it and/or call the author of it.
HIS HONOUR: Mr Adams, do you have any objection to its tender at this stage?
MRADAMS: If my learned friend is going to prove it and [waives?] the privilege –
HIS HONOUR: By calling the author, in other words?
MRADAMS: Yes, then that can be done and a convenient way is to tender it. I think for your Honour’s convenience we should number all the pages.
HIS HONOUR: Certainly … If you were proposing to call the maker of the document then I would allow you to tender it at this stage for … identification, subject to proof later on and it would make it easier for me to understand this cross-examination if it were so tendered …
MRGORTON: I am happy to do that your Honour [there was then reference to two numbers in the document which counsel said were patently absurd and that there was a corrected document. His Honour enquired whether Mr Adams had seen it and Mr Gorton said that he had seen everything but those corrected figures, as he understood it].
HIS HONOUR: I think if you are going to … waive privilege, hand him a document that has incorrect figures in it and then subsequently you come into possession of the corrected document, he is entitled to have a look at it.
MRGORTON: I agree with that your Honour. It’s only just now come into my possession.
…
HIS HONOUR: Mr Adams, it seems to me that before the cross-examination proceeds any further you ought be entitled to have a look at this document and for that purpose I am prepared to stand it down for as long as you need. I don’t think it will take very long but if you need time you have it.
MRADAMS: Yes thank you your Honour. I don’t think it will take long your Honour.
HIS HONOUR: We might stand the matter down for 10 minutes. If you need any longer, you contact my associate Mr Adams. Is that too long? Could you do this in five, do you think?
MRADAMS: Yes.
HIS HONOUR: You have a look at it. I will wait out the back and if you need longer than five minutes, tell my associate.
(Short adjournment)
MRADAMS: Your Honour, my learned friend tells me that he expects to be able to prove the document and on that basis … we will allow it to be tendered in evidence …
(Further discussion occurred. The document was admitted absolutely but Mr Adams made it clear that he needed to hear from the maker. His Honour also indicated that he would put the document out of his mind and also the cross-examination upon it if the author of the document could not be called and both sides indicated they were happy with that course. The Arnold report with the corrected figures was then tendered as exhibit D3.)
The cross-examination of Dr Sutcliffe then continued. She agreed that the process seemed to be the proper method for calculating what the actual exposure while using the glue products was. She pointed out that the process was for measuring volatile organic solvents and was not specifically for benzene. She acknowledged that various constituents of the solvents including benzene had been measured and said that ‘we have more accurate ways of determining benzene when we use a benzene charcoal collector, but that would be accurate in ball park figures’. After some further questioning, and discussion between counsel and the bench, another witness called for Mr Karam was interposed.
The next morning, Friday 4 December 2009, a document was substituted for exhibit D3 but so far as appears from the transcript the only differences were that the pages were numbered and it was also suggested by Mr Adams the previous document did not have ‘the morning shift’ in it. The cross-examination of Dr Sutcliffe then resumed on the topic of the results contained in the Arnold report. Dr Sutcliffe suggested that the results were ‘not appropriate to Mr Karam’s environment’ and gave reasons. While this was taking place, his Honour noticed what he described as ‘a bit of a commotion going on in Court’ behind Mr Adams. Mr Karam wished to speak and his Honour asked Mr Karam if he wanted a break to confer with his counsel for five minutes and he said that he did. After the adjournment Mr Adams informed the Court that Mr Karam now understood that after Dr Sutcliffe’s cross examination was completed, he would have a chance to ask questions in re-examination and his Honour added that he (Mr Karam) would understand too that the maker of the document, it is expected, would be called.
Dr Sutcliffe continued to give reasons why she would have expected a higher solvent contaminant score than was contained in the report. Dr Sutcliffe said that either the measurements were inappropriate or her expectation was wrong. Cross-examination continued on questions related to the way in which Mr Karam did his work, the nature of his breathing zone and the likely degree of accuracy of the measurements in the Arnold report. Re-examination was then conducted inter alia in relation to questions arising from the Arnold report. At the conclusion of Dr Sutcliffe’s re-examination, counsel for Mr Karam closed his case.
The trial resumed on Monday 7 December 2009 and witnesses on behalf of Palmone commenced to be called. Professor Fox was the first witness. Some aspects of the Arnold report were touched upon during the evidence of Professor Fox, but that was not a principal focus of his evidence.
After the luncheon adjournment on Monday 7 December 2009, Mr Addison, the author of the Arnold report, was interposed as a witness. Mr Addison said that he was an occupational hygienist and contaminant tester who had been employed by Noel Arnold & Associates for 25 years and that he had undertaken hygiene contaminant testing at the premises of Palmone Shoes on 13 December 2007 and was the author of the Arnold report. He said that he graduated as a Bachelor of Science and that in 1991 he obtained a Graduate Diploma of Occupational Hygiene at Deakin University. He had been consulted by the solicitors for Palmone concerning the effects of contaminants in relation to Mr Karam’s industrial asthma claim. He said that benzene was not specifically listed as a solvent product that they were going to assess but he became aware of it in the analysis results from the test laboratories and external laboratories shortly before preparing the report. Mr Addison described the information that they obtained on the production process as a preliminary to setting up the assessment procedure. He said that they used sampling pumps which were worn on the belt of the person conducting the task and that the samples were collected in a glass tube which contained activated charcoal which was run at a prescribed flow rate for a prescribed time. Solvents were absorbed by the charcoal and the laboratory desorbed it and a calculation was then made with the volume of air so as to work out the contaminant in milligrams per cubic metre. The glass tube was placed on the lapel of the operator in the breathing zone within 300 millimetres of the nose of the operator, Mr Addison said, ‘so it’s trying to simulate what the operator is actually inhaling in the operation of their tasks’. Mr Addison gave a detailed description of the whole procedure that was adopted over the day on which it happened and the environment at the premises in which it took place. He then explained the results.
Mr Addison said that he had converted the results to get parts per million, using a conversion calculator which locked in molecular weights. This had been done over the weekend and Mr Addison produced tables which Mr Gorton proposed to tender. The following exchange then occurred:
HIS HONOUR: Mr Adams, do you have anything to say about this tender?
MR ADAMS:I do, your Honour. I don’t know why we can’t have got this a bit earlier than just when the witness was called because I am incapable but in any event I am instructed by a scientist and I am representing a man of science and they can have a look at this and work it out but I am certainly not able to. It may be that we are not concerned about it your Honour. It may be that the figures are correct.
HIS HONOUR: It might be as simple as dividing what is contained within the relevant column in table 3 on page 7 of the original report, that is the benzene column. It might be as simple as dividing that by 3.8 and it is, I suspect, even for Philistines like us, Mr Adams, not beyond us. The bottom line is if you need time I will surely give it to you.
MR ADAMS:Your Honour will appreciate the comment that’s been made by the previous witness, her evidence in relation to the relativity of the various findings of solvents compared to benzene. I mean, if they are not going to go into that then that evidence stands. Apart from that, I can see what your Honour says, that if you make that division then you get to the parts per million content. If that’s all they are going to deal with, the benzene column, that’s simple.
HIS HONOUR: Why don’t I accept the tender at the moment. Let’s see how the evidence goes and if you need time you can have it. Is that convenient?
MRADAMS: Yes, your Honour.
The tables were then exhibited as exhibit D5 and evidence was given by Mr Addison on their content. Mr Addison was cross-examined. He said had he been specifically testing for benzene he would have used the same methodology but would have done longer term sampling due to the lower exposure standard. Mr Addison was asked in detail about the procedures that he had adopted and the information that he had been given about the production process which had been carried out during Mr Karam’s employment. At the conclusion of the cross-examination, Mr Addison was briefly re-examined and the Court adjourned for the day.
The evidence of Professor Fox was completed in the morning of Tuesday 8 December 2009. After some discussion between counsel and the judge as to a program for exchanging written submissions and then speaking to them, Mr Karam endeavoured to address the Court. The judge told him to speak to his counsel. The following exchange took place:
MRKARAM: Mr Adams no listen to me. There is an issue I want your Honour to know about.
MRADAMS: He wants to talk to you about the testing your Honour.
HIS HONOUR: This is the testing that was conducted by Mr Pinda?
MRADAMS: No.
MRKARAM: Yes.
MRADAMS: All the testing. I mean, the evidence is in. My learned friend and I agree we could both spend half a day or more of the court’s time or longer in relation to the tests done last week and it’s accepted that there is controversy about the way in which it was done and that’s a sufficient end to it.
MRGORTON: Just to make it clear, I would object to your Honour hearing anything further in relation –
HIS HONOUR: I would not propose to hear further evidence in the case from anyone.
His Honour then explained to Mr Karam the procedure being adopted in relation to submissions and then said to Mr Karam:
HIS HONOUR: … It’s very much in everyone’s interests but including yours that we try and move on with this case whilst hearing everything relevant as quickly as possible. You need to know and that’s why we have developed this timetable for Thursday and then Friday and if you have got comments or arguments that you wish to put on the basis of the evidence you can inform [your counsel] and put them in the submissions.
MR KARAM: Thank you.
In our view it is clear from the foregoing that Mr Karam’s legal representatives were given by the Court and had an adequate opportunity to consider and obtain instructions upon the Arnold report. Mr Karam, represented as he was by a very experienced senior counsel who also had access to scientific experts, did not object, indeed consented, to the admission of the Arnold report into evidence, and did not seek additional time either to obtain further instructions for the cross-examination of Mr Addison or to call additional evidence in answer to what was contained in the Arnold report or in answer to Mr Addison’s evidence. The failure to do any of those things, we must assume, was the result of due consideration by Mr Karam’s advisers, both legal and scientific, and was the result of forensic decisions made at the time. We cannot speculate concerning the many possible reasons and motivations for those forensic decisions.
We would add that there are of course numerous authorities on the question whether and when an appellate court will order a new trial on the ground that the appellant was taken by surprise by some new development – here the ‘new development’ was the tendering of the Arnold report. It is well recognised by the authorities that it is appropriate to ask: did the appellant have a reasonable opportunity to appreciate the significance of that new development and did the appellant either seek an adjournment or elect to go on and take his chance? We think in the present case the answer is that the appellant did have a reasonable opportunity to appreciate the significance of the Arnold report, did not seek an adjournment and did elect to go on and take his chance. Further, there is no showing that any additional evidence on the points covered by the Arnold report would have produced an opposite result at trial.
In the foregoing circumstances we do not consider that Mr Karam can properly complain, on appeal, of the process at trial that lead to the admission of Mr Addison’s evidence and the contents of the Arnold report and, it being open to the judge to accept such evidence, he made no error in so doing.
The other part of Mr Karam’s fifth submission related to the judge’s finding, or acceptance of the evidence, that the Halo Primer did not contain any benzene. Mr Karam complained that the correct brand of Halo Primer had not been tested by his expert and he criticised his counsel and solicitor for disregarding his wish to have further testing done. This complaint is probably reflected by what is recorded in the transcript at [54] above which, we think, shows Mr Karam to be protesting, at least in part, about the testing conducted by Mr Pinda and we would understand that to relate to the Halo Primer. The fault, if there is one, lies in the evidence led on behalf of Mr Karam and cannot be sheeted home to Palmone. The judge was not in error in accepting the only evidence concerning the Halo Primer that was available to him, or even if this was an error, the consequence would be that there was no evidence at all before the Court about the benzene content of the Halo Primer. The onus being on Mr Karam, he is not entitled to complain of this matter on appeal.
Mr Karam’s sixth, and final, oral submission related to his statement of claim. Mr Karam’s complaint was twofold. His first complaint was that his lawyers had made a mess of his statement of claim and were dishonest and not acting in his best interests (this related to the lawyers who had represented him prior to the commencement of the trial and whose retainer had been terminated before the commencement of the trial). His second complaint was that the judge’s refusal to grant leave to amend the statement of claim was in error. In our view, Mr Karam’s first complaint is unsubstantiated and irrelevant. His second complaint is answered by what we have said in relation to his first oral submission.[17]
[17]See [32]–[39] above.
Mr Karam’s written submissions in relation to the cancer case
We will now deal with Mr Karam’s written submissions in paragraph order.
Paragraphs 1 to 9 are introductory.
Paragraphs 10 to 24 are concerned with the question of the amendment of the statement of claim and issues of statutory construction. We have dealt with these matters in dealing with Mr Karam’s first oral submission.
Paragraphs 25 to 47 deal with the following topics:
·Level of exposure to benzene in glues and solvents.
·Benzene content in glues and solvents.
·Benzene concentration in the breathing zone.
These paragraphs attempt to advance a detailed factual argument based only in part upon the evidence at trial. A part of the contentions contained in these paragraphs constitutes an attempt by Mr Karam to advance detailed scientific argument in support of his appeal. In effect, Mr Karam is seeking to advance his own opinion evidence untested by cross-examination and for the first time on appeal. To the extent that Mr Karam’s argument is based on the evidence at trial, we deal with it in the next paragraph. To the extent that it is not, we cannot pay any regard to it.
Paragraphs 48 to 56 deal with the following topics:
·Evidences of the increased risk of myeloma cancer due to benzene exposure.
·Employer’s negligence contributed to contracting the cancer diseases.
·Rejection of the appellant’s medical and experts’ opinions were errored in law.
·Latency is irrelevant.
In these paragraphs Mr Karam seeks to re-argue the evidentiary bases of his case and to contest the judge’s findings and his conclusions about the evidence of each of the witnesses called on his behalf and on behalf of Palmone. Mr Karam also seeks to advance argument based on some of the published studies that were in evidence at trial. It is sufficient to say that we are satisfied that the conclusions of the trial judge in relation to each of the witnesses and the findings of the trial judge concerning their evidence were all open to him and that it does not appear to us that any of the said conclusions and findings were contrary to the evidence, unreasonable or otherwise vitiated by error.
Grounds of appeal in the cancer case
Having dealt with each of Mr Karam’s oral submissions and the substance of his written submissions, it is unnecessary to deal separately with Mr Karam’s grounds of appeal.
Application to produce fresh evidence
By summons dated 9 March 2010 Mr Karam sought leave to produce fresh evidence on the hearing of the appeal. The Court, on 11 June 2010, adjourned that application to the hearing of the appeal. It is probably the case that some of the submissions that we have dealt with above were posited on the assumption that leave would be granted to Mr Karam to rely upon fresh evidence. Strictly speaking, that application needed to be determined prior to considering the submissions, as we have done, above. However it is more comprehensible and convenient to deal with them now in the light of what we have already said.
Mr Karam did not advance oral submissions in support of his application but it was not abandoned. We have considered the affidavits in support of and in opposition to the application and the written submissions exchanged in relation thereto.
In Clark v Stingel,[18] the Court said:
[18][2007] VSCA 292, [25].
The Court has power to receive further evidence upon questions of fact by virtue of Order 64.22(3). The principles upon which the Court will grant leave to introduce fresh evidence upon an appeal are not in doubt. Leave should be given only if:
· By the exercise of reasonable diligence such evidence could not have been discovered in time to be used in the original trial.
· It is reasonably clear that if the evidence had been available at the trial, and had been adduced, an opposite result would have been produced.
· The evidence proposed to be adduced is reasonably credible.
We would respectfully adopt and apply those principles.
By paragraph 1 of his summons, Mr Karam sought leave to include in the appeal book what he describes as a serious injury certificate – it is in fact a letter dated 8 January 2008 from the solicitors for the Authority advising of a serious injury determination relating to Mr Karam. However, the document has no relevance to any ground of appeal.
By paragraph 2 of his summons, Mr Karam seeks leave to include in the appeal book ‘articles that had been shown and produced in the medical and experts [sic] reports’. Eleven such reports are listed in the summons. They were not tendered as evidence at trial on behalf of Mr Karam and they could have been if that had been thought appropriate. Nor is it shown that their use would have produced a different result.
By paragraph 3 of his summons, Mr Karam seeks leave to produce new articles on the appeal. The summons lists six articles. These articles could have been sought to be tendered or used at trial but were not. Nor is it shown that their use would have produced a different result.
By paragraph 4 of his summons, Mr Karam seeks leave ‘to produce analytical tests of glues NE 1821 Black Neoprene, PA 5000 adhesive and Halo primer solvent, which were used by the appellant at the Palmone Shoes factory’. We understand this application to be an application for the conducting of further tests on those solvents. Such tests could no doubt have been performed prior to the conclusion of the trial – at any rate it is not suggested otherwise. No request was made by Mr Karam’s legal representatives to the trial judge for these tests to be performed. Nor is it shown that any such further tests would have produced an opposite result at trial.
A number of documents are exhibited to an affidavit sworn by Mr Karam on 9 March 2010 in support of this application. In relation to many of those documents, the affidavit complains of the failure of Mr Karam’s ‘previous solicitor Lennon Mazzeo’ to include the documents in the Court Book at trial. In relation to others of the documents the complaint relates to alleged failures by Mr Karam’s legal representatives at trial. To the extent that any of these documents are different to those listed in his summons, it is apparent that the same difficulties in obtaining leave are presented. The documents were available at trial and, in any event, it is not shown that their use would have produced an opposite result.
For the above reasons, the leave sought is refused and the summons is dismissed.
Conclusion in relation to the cancer case
For the foregoing reasons the appeal in the cancer case will be dismissed.
The asthma case
Whilst the central issues in this appeal related to the cancer case, Mr Karam also made complaint concerning the asthma case. In the asthma case, the only issue was the assessment of Mr Karam’s damages. At trial, Palmone admitted negligence and causation in respect of Palmone’s occupational asthma and consequential psychiatric reaction. The trial judge assessed Mr Karam’s damages in the asthma case in the sum of $244,296.
The only ground of appeal relating to the asthma case was ground 8. Ground 8, which is reproduced below exactly as it appears in its original form, provides:
8.His Honour was in error by compensating the plaintiff for past economic loss between February 2006 and February 2008 only and disregarding:
(c)[19] The period between February 2008 and 5 September 2008 in which I was receiving a weekly payments from WorkCover insurance, due to the serious injury of industrial asthma.
(d)The period of 130 weeks (from February 2006 to September 2008) of total incapacity due to the serious asthma injury.
(e)The total incapacity period from September 2008 to 18 January 2010 due to a related and compensable injuries of asthma and multiple myeloma cancer which they both relevant injuries.
(f)The cancer tumour first diagnosed in May 2008 and the first certificate of incapacity due to the cancer disease issued in June 2008 when the first WorkCover lodged on 6 June 2008.
[19]There is no (a) or (b) in the notice of appeal.
Immediately one can see that ground 8 relates not only to the asthma case, but also to the cancer case. In any event, we take ground 8 (so far as it concerns the asthma case) to be a complaint concerning his Honour’s assessment of Mr Karam’s damages in the asthma case. Specifically, the notice of appeal seeks, amongst other orders:
5.Reassessment of past and future loss of earning (sic) in relation to the serious industrial asthma injury.
The asthma case arose out of Mr Karam’s exposure to various chemical solvents used in the manufacture of shoes during the course of Mr Karam’s employment with Palmone between 6 November 2002 and 22 February 2006.
In relation to the asthma case, the trial judge made the following findings of fact:[20]
[20][2010] VSC 3, [134].
·The plaintiff has suffered asthma as a consequence of exposure to fumes at his workplace.
·His asthma is now well controlled with medication, but no doubt it was unpleasant and debilitating from 2004 until after he ceased work in 2006.
·His asthma is permanent, in the sense that absent medication, or in the presence of fumes, extremes of temperature or dust it is likely to flare up.
·The plaintiff has suffered a significant psychiatric/psychological reaction to his asthma illness. This reaction is an ‘Adjustment Disorder with Mixed Anxiety State and Depressed Mood’.
·The plaintiff has been incapable of any form of work since February 2006, initially, and for a short time, as a direct result of his asthma. His mental state since about the middle of 2006 is such as to preclude him from any form of work.
·The plaintiff’s psychiatric state has obviously been affected by his cancer diagnosis, but I do not accept that it has been overwhelmed by it. ‘Aggravated’ is the word used by Dr Kaplan.
·The plaintiff will not work again.
No complaint is made about these findings in the notice of appeal. In paragraphs 57 to 59 of Mr Karam’s submission dated 21 July 2010, complaints are made about the trial judge’s assessment of damages and his Honour’s failure to assess damages in respect of certain matters. These complaints appear to include complaints about the way his Honour dealt with the asthma case, as well as complaints about the way his Honour dealt with the cancer case. Further, whilst there are a number of complaints made in paragraphs 57 to 59, again, no issue appears to be taken in respect of the specific findings of his Honour set out above. In any event, having considered the evidence, these findings are undoubtedly correct. Additionally, we should say for the sake of completeness that in his oral submissions, Mr Karam did not advance any submission that these findings were erroneous.[21]
[21]Indeed, no oral submissions were advanced seeking to impugn the assessment of damages in the asthma case.
The trial judge assessed Mr Karam’s pain and suffering damages at $150,000. Whilst we can identify no specific complaint in relation to this part of the assessment of Mr Karam’s damages in the asthma case, we should say, again for the sake of completeness, that there was nothing wrong with this assessment.
We turn now to the trial judge’s assessment of damages for economic loss. There were three components to this claim. His Honour assessed them as follows:
(a) Past loss of earning capacity - $73,753.
(b) Future loss of earning capacity - $13,000.
(c) Fox v Wood[22] damages - $7,543.
[22](1981) 148 CLR 438.
The Fox v Wood component was not in issue between the parties at trial. We do not understand any complaint to be made in respect of this item.
In calculating past loss of earning capacity, the trial judge allowed Mr Karam’s claim in full from the end of his employment with Palmone in February 2006 until February 2008, at figures agreed between the parties, in the sum of $50,878. His Honour then calculated Mr Karam’s loss of earnings from March 2008 to the date of judgment as follows:[23]
[23][2010] VSC 3, [150]-[152].
An assessment of past loss after February 2008 involves an assessment of the chance of [Mr Karam], absent his asthma and psychological sequalae, working on in the face of his cancer diagnosis. March 2008 to mid January 2010 is a period of approximately 98 weeks. In that time, had he have been able, [Mr Karam] would have earned $57,187 net made up as follows:
(a) 1 March 2008-30 June 2008
21.5 weeks at net $536.87 per week $11,542
(b) 1 July 2008-30 June 2009 52 weeks at $555.96 net per week $28,910
(c) 1 July 2009-18 January 2010
28.5 weeks at $587.18 net per week $16,735
Total $57,187
I have reviewed [Mr Karam’s] physical capacities in this period at para 148. I do not consider them to be of such magnitude that, in themselves, they would have prevented him working during this period. I do consider, however, that given the degree of psychological reaction to [Mr Karam’s] much milder illness of asthma, that the chances of him working much beyond February 2008 have to be tempered considerably by his vulnerability to bad news. Obviously the chances of a psychological reaction to cancer precluding [Mr Karam] from work increase as the months roll on from February 2008. It is impossible to quantify this chance by any more than impression and intuition. I think it is appropriate to discount [Mr Karam’s] past loss from February 2008 to 17 January 2010 by 60%. Accordingly, I allow [Mr Karam] 40% of $57,187 for this period.
I award [Mr Karam] $22,875 for the loss of the chance that he would have worked during the period February 2008 to date.
In total therefore I award the sum of $73,753 for past economic loss. This figure represents $50,878 total past loss to 28 February 2008 together with $22,875 for the loss of the chance of working since that date to the present.[24]
[24]Footnote omitted.
In summary, having allowed Mr Karam’s claim in full up to February 2008, the trial judge then discounted the claim for past economic loss from February 2008 to the date of judgment by 60% to reflect the prospect that Mr Karam would not have worked because of injuries unrelated to the injuries in the asthma case. February 2008 was picked as the time for the commencement of the reduction because Mr Karam was first diagnosed with plasmsacytoma in February 2008. To the extent that ground 8(f) contends that the cancer tumour was first diagnosed in May 2008, this assertion does not accord with either the evidence or the way in which Mr Karam put his case below.[25]
[25]See paragraph (a) of the particulars of injury under paragraph 3 of the amended statement of claim dated 5 October 2009 and the report of Dr Wasoof (part of Exhibit P9) dated 6 August 2009.
Far from disclosing any error, in our view, his Honour’s approach was correct and accorded with the evidence and findings of fact to which we have already referred. Mr Karam was diagnosed with cancer and developed psychiatric injuries consequential thereto after he ceased work because of his asthma and its consequences. Accordingly, his Honour was bound to reduce the allowance for economic loss by an amount reflective of the prospect that Mr Karam would not have worked in any event because of these conditions, which were unrelated to his asthma. As his Honour acknowledged, the appropriate discount is not capable of precise arithmetic calculation. We see no error in his Honour’s approach. If anything, his Honour’s approach was generous to Mr Karam.
His Honour then turned to the question of future economic loss, and dealt with the matter as follows:[26]
In discussion and encouraged by a question from the bench, Mr Gorton submitted that if there were to be any allowance for future economic loss (which [Palmone] opposed), it would be a modest amount awarded either for the loss of chance of future employment or to reflect the chance of less remunerative employment both as contemplated in Victorian Stevedoring v Pty Ltd v Farlow.[27] [Mr Karam] made no separate submissions on future loss of earning capacity relating to the asthma case.
I considered assessing this aspect on the more transparent Malec basis but am of the view that the number of contingencies that impact upon any return to the work force (absent asthma and psychological sequalae) taken in combination make such a calculation inordinately cumbersome and confusing. I am of the view that [Mr Karam], after treatment, may possibly have been able to work at least in a part-time capacity for 3 or 4 years, subject of course to his being able to deal with his cancer related psychological problems. I assess that loss of chance at $12,000, together with a further $1000 which represents the loss of chance to earn superannuation in this period.
Thus I assess damages for future loss of earning capacity at $13,000.
[26][2010] VSC 3, [154]-[156].
[27][1963] VR 594.
Again, we see no error in this approach. His Honour’s treatment of the issue, in our view, again accords with the evidence and findings of fact to which we have already referred. That evidence and those findings of fact mandated the loss of chance calculation performed by his Honour.
It follows that Mr Karam’s attack on the assessment of damages in the asthma case is not made out and his appeal will be dismissed.
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