Clark v Walter Mining Pty Ltd and CGU

[2011] VCC 1343

IN THE COUNTY COURT OF VICTORIA (Un) Revised

(Not) Restricted

AT WARRNAMBOOL
CIVIL DIVISION

SERIOUS INJURY

Case No. CI-11-00735

WILLIAM ALAN CLARK	Plaintiff
v
WALTER MINING PTY LTD	First Defendant
and
CGU WORKERS COMPENSATION	Second Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Warrnambool
DATE OF HEARING:	8 September 2011
DATE OF JUDGMENT:	29 September 2011
CASE MAY BE CITED AS:	Clark v Walter Mining Pty Ltd and CGU
MEDIUM NEUTRAL CITATION:	[2011] VCC 1343

REASONS FOR JUDGMENT

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Catchwords: Accident Compensation Act 1985 – s.134AB – application for leave in respect of pain and suffering damages only – reliance upon sub-paragraph (a) of the definition – dermatitis – plaintiff permanently allergic to various substances – whether burden of proof discharged – factors to be considered.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N R Bird with	Stringer Clark
Mr I R Fehring
For the Defendants	Mr P A Scanlon QC with	Lander & Rogers
Mr P B Jens
HIS HONOUR:

General background

1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave in relation to pain and suffering damages only. Reliance is placed solely upon sub-paragraph (a) of the definition of serious injury contained in s.134AB(37) of the Act.

2          The injury in question is to the skin, the plaintiff alleging he suffers from contact dermatitis in the form of a chromate allergy arising in particular from exposure to cement dust whilst in the course of his employment. The plaintiff commenced to suffer from the condition in the second half of 2008. It was very properly conceded by Mr Jens on behalf of the defendants that a skin condition such as this could be the subject of an application pursuant to sub- paragraph (a), and accordingly could be described as an impairment or loss of a body function. In other words, no technical or legal argument was to be advanced in relation to such a proposition. This was a very helpful concession.

3          Further, whilst there are two named defendants, their interests overlap entirely. Henceforth I shall refer only to “the defendant”, meaning Walter Mining Pty Ltd, by which entity the plaintiff was employed, and in the employment of which the plaintiff suffered the injury in question.

4          Mr N Bird of counsel with Mr I Fehring of counsel appeared on behalf of the plaintiff. Mr P Scanlon QC with Mr P Jens of counsel appeared on behalf of the defendant, with Mr Jens effectively having conduct of the defence.

5          The plaintiff was called to give evidence and was cross-examined. The balance of the evidence was documentary in nature and was tendered by consent. Accordingly, this application was able to be dealt with in an admirably prompt fashion.

6          I am familiar with the numerous decisions of the Court of Appeal which bear upon applications such as this, and shall endeavour to apply the principles set out in them in coming to a decision in this case. I shall not list such cases here, but shall refer to any cases which I consider to be specifically relevant in the course of this judgment. It was not argued but that the plaintiff bears the burden of proof.

Factual background

7          The following findings of fact are made for the purposes of this application, and are not intended to be findings which are in any way determinative in relation to issues such as negligence, the quantum of damages, entitlement to statutory benefits and the like.

(i) The plaintiff

8          I found the plaintiff to be an absolutely reliable and straightforward witness. Essentially no attack of any magnitude was made upon his credit. I regard him as being an accurate and reliable witness in all matters, and particularly in relation to the impairment, symptoms, restrictions and consequences of injury which he describes. He was an impressive witness.

(ii) The plaintiff’s education, background and training prior to the injury

9          As the plaintiff is seeking leave in relation to pain and suffering damages only, the amount of detail required under this heading is less than might otherwise be the case. Suffice to say that the plaintiff is now 30 years of age, having been born on 23 October 1980. After a limited education, he worked in a supermarket and then as a shearer. He also obtained a licence to drive trucks at the age of 24, and has worked for various companies. He also worked upon his parents’ farm, it being approximately 1000 acres. He resides with his parents in Stawell – the farm, which is a mixed one of sheep and crops, being some 15 kilometres out of that town. I accept that he has some crop on the farm and that the expectation is that he will eventually take over the conduct of it from his father. Whether it is a farm of sufficient acreage to provide a living without the addition of some outside income seems highly doubtful.

10        Having worked in a rural merchandise shop in Stawell for approximately nine months, the plaintiff then commenced work for the defendant as a cement- mixer driver on 14 July 2008. The work was comparatively well paid and, as it was carried out at the Stawell gold mine, was very conveniently located for the plaintiff.

The injury

11        Before working for the defendant the plaintiff had at some stage undergone a nose operation, had suffered from occasional back pain, and at times had elevated blood pressure. There is no suggestion that the plaintiff suffered from any skin condition prior to commencing work with the defendant. That work involved him in working 12-hour shifts, doing underground deliveries, and spending many hours in the mine. In so doing he was exposed to a lot of wet cement, cement additives and cement dust. He was also required to clean out the cement mixer before pouring in more concrete, and this involved him in further exposure. After some months he (and others) began developing a rash, and by approximately October 2008 such rash was on both forearms.

12        The plaintiff attended upon the Stawell Medical Clinic, at first being seen by Dr Fred Chan, who diagnosed contact eczema and prescribed an ointment containing a steroid. The rash then settled somewhat, and the plaintiff continued working. However, the rash recurred and indeed spread to his lower limbs. On 18 December 2008 he attended upon Dr Andrew Cunningham at the Stawell Medical Centre, and that doctor became, effectively, his treating general practitioner

13        Further treatment with ointment had no beneficial effect. The plaintiff again returned to work, with the rash now spreading to his trunk and face to the extent that he could barely open his eyes. He was certified off work for a few weeks. Dr Cunningham referred the plaintiff to Dr Rajagopalan, dermatologist, based in Ballarat. That specialist took an appropriate history and diagnosed contact eczema. Patch testing was carried out, and this revealed a positive reaction to the inner lining of the plaintiff’s work gloves, although it was considered unlikely that such an allergy could explain all the symptoms. Ultimately the plaintiff was referred to Dr Rosemary Nixon of the Occupational Dermatology Clinic at the Skin and Cancer Foundation, Victoria. Repeat patch testing found that the plaintiff was allergic to chromate, which is a component of cement and various other products, including paint and leather goods. The use of ointment continued. Dr Rajagopalan expressed the opinion that it would not be possible for the plaintiff to continue working in the mine and having contact with cement or cement dust.

14        The plaintiff attended at the Stawell Medical Centre in relation to his rash on only a couple of occasions in the years 2009 and 2010. He has continued with the use of various ointments. He has also seen a doctor at the Stawell Medical Centre recently. He has noticed that the condition flares up in conditions of heat or after any substantial driving. Strenuous activities that cause sweating also cause a recurrence and flaring-up of his rash.

15        The defendant has had the plaintiff examined by Dr Peter Berger, dermatologist. Dr Berger first reported on 25 November 2009. He implicated employment, having diagnosed a chromate allergy which is permanent, together with persistent post-occupational dermatitis which precipitates the condition under circumstances of heat and humidity. Dr Berger examined the plaintiff again on 5 August 2011. He expressed the opinion that the plaintiff’s problem was definitely exacerbated by his contact in the workplace with cement dust and associated products. He noted that the plaintiff had avoided all contact with chromates but still develops intermittent bouts of eczematous dermatitis, particularly on the backs of his thighs and on his forearms. He recorded that the plaintiff stated that there are exacerbations of the problem but that it is never completely clear. He had not been able to return to shearing. He is a qualified shearer, but the aggravation of his problem by the heat involved caused him to cease this activity. Sitting in a truck for lengthy periods also aggravated the plaintiff’s condition. The conclusions of Dr Berger were as follows:

“It is my opinion that William Clark suffers from a chromate allergy and more significantly now a persistent post-occupational dermatitis, a well recognised condition that affects some people who have a contact dermatitis.

Mr Clark does not have a current work capacity which would involve heat or chromate contact. This will last indefinitely, and the condition of his PPOD has not stabilised and is likely to persist indefinitely.”

16        On the day of the hearing, along with counsel I inspected the plaintiff’s forearms and upper legs. In the course of the occasional truck driving employment which he is now undertaking, the plaintiff had recently driven a truck from Sydney to Brisbane and return, and had then flown back to Melbourne, being picked up and driven to Stawell in order to then be in a position to drive to Warrnambool for the hearing of his case. Essentially this travel had all taken place during the preceding week.

17        Upon inspecting the plaintiff, I noted a particularly nasty-looking rash involving raised red spots and areas effectively circling his thighs and upper legs. He also had inflamed areas of rash upon his forearms.

18        There is little or no argument about the diagnosis in this case. I accept that of Dr Berger, examining on behalf of the defendant, that the plaintiff suffers from a contact dermatitis which is in the nature of a chromate allergy and from a persistent post-occupational dermatitis. That this injury was suffered in the course of the plaintiff’s employment with the defendant is not disputed. His claim for statutory benefits was accepted, and no argument was raised concerning the relationship with employment in the present application. There is no suggestion that what has occurred is the aggravation of a pre-existing condition or that any psychological or psychiatric factors are playing a role, although the plaintiff has suffered from some depression from time to time. That has occurred since the work in the mine.

19        There is also no argument but that the injury, impairment and consequences are permanent within the meaning of the Act. As stated by Dr Berger, the persistent post-occupational dermatitis is likely to persist indefinitely.

Other developments since the injury

20        In early 2009 the plaintiff became aware that the defendant was going to lose its contract at the Stawell gold mine. The defendant was apparently going to provide jobs elsewhere, and the plaintiff put his name down for a job at Singleton in New South Wales. However, he was informed by the defendant that, because of his injury, he was not going to be given further work and would be made redundant.

21        Since then he has done some work for a firm called Olsen Brothers in Sydney, principally driving a Kenworth truck on runs between Sydney and Brisbane, Sydney and Melbourne, and, less frequently, between Sydney and Adelaide. The work with Olsen Brothers is on a casual basis, either when that firm requires a driver or the plaintiff contacts them and finds out that work is available. I gather that the proprietors of that firm are friends of the plaintiff and his family. He had done occasional work for them prior to working with the defendant. In addition, the plaintiff has done occasional work driving for other entities, such as the Bailey company, apparently transporting grain, and last having done some work for them in January of this year. He has also done an occasional day’s work with Reppers Transport. He has also done some work on the family farm and recently sold some grain to his father. On the family property there are a number of silos, one of which he uses for storing grain which he has grown.

22        The plaintiff has continued to use some cream or ointment from time to time, although apparently he has been told not to use it continually because of some side-effect. The plaintiff has continued with some farming activity, and now has some 30 sheep on the property. Effectively he does not get paid for the work that he does on the family farm, although, as stated, he can sell crop which he grows. Whilst the plaintiff is an experienced shearer, outside labour has been brought in for shearing and cropping. He has not engaged in cropping in recent times because of his rash. Basically, however, the farm operates on the same basis as it has for some years. The plaintiff has also suffered from some depression, but continues to mix socially in the local community.

Ruling

23

I am of the view that the plaintiff has discharged the burden of proof in relation to pain and suffering damages. I have reached this conclusion for the following reasons which are not listed in order of importance or significance:

(a)	Inspection of the plaintiff’s upper legs and forearms revealed a rash that appeared to be inflamed and unpleasant. The plaintiff has sworn that the rash also extends to his neck. In his affidavit of 18 October 2010 he referred to the rash as being red, blotchy and unsightly, and my observations would confirm this. He has sworn that it is always present, is itchy, and made worse by activity such as working in an excessively hot or humid environment, as well as being worse in the warmer months. Apart from any other interference with employment or lifestyle, this strikes me as a most unfortunate and unpleasant condition to have to carry through life.
(b)	In this regard, the plaintiff is a young man aged 30 years. He has already been suffering the effects of this injury for almost three years. Whilst at some stage he may have had high blood pressure, there is nothing in the evidence before me to suggest that he has anything other than a normal life expectancy. It is probable that he will suffer from the relevant impairment and its symptoms and consequences for decades to come. His comparative youth is something which I can and do take into account – see Stijepic v One Force Group Aust Pty Ltd and Anor [2009] VSCA 181 at paragraph 43 and Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph 17.
(c)	Because of the condition from which he suffers, there has been substantial interference with the plaintiff’s working life and the enjoyment which he may get from it. This is particularly so in relation to his farming activities, and bearing in mind that it is the plaintiff’s intention ultimately to take over the conduct of the family farm. His evidence, which I accept, was that, for example, if he worked for a week as a shearer, he would be a mess. He stated that “The rash would just drive me crazy, the itching and – so – I just couldn’t do it.” Working as a rouseabout would create similar problems, and if he spent a week on the tractor he would “get a massive rash”. He has not put in a crop this year because he cannot sit in the tractor and do cropping. Reference to these matters can be found at T44 and elsewhere. It is to be remembered that he has worked as a shearer and is trained in that regard but, except on a very modified basis, this line of work is now closed to him.

In relation to interference with his work on the farm, he also gave the example of the fact that he made some hay feeders but was unable to paint them because the paint contains chromate. Of course, there is also interference with his ability to work as a truck driver. If he had to work two to three days back to back, he would begin to develop the inflamed rash which was evident. He can only work on a limited basis in this regard. In short, there is a whole range of farming activities from which the plaintiff is now effectively precluded, some absolutely and others on all but a brief or occasional basis – for example, he has sworn that even half a day’s shearing caused the rash to flare up badly.

For a young man working on the family farm and with the ambition and plan to ultimately take over the conduct of the farm, the above consequences seem to me to be serious indeed. That is leaving to one side the interference with other employment opportunities, and particularly the truck driving in which the plaintiff could engage in order to supplement his income. I appreciate that leave is not sought in relation to pecuniary loss damages but, as stated, the above interferences with lifestyle and the enjoyment of employment seem to me to be sufficient on their own to satisfy the statutory test.

(d)

There have been other consequences of the impairment of the plaintiff’s skin which are of very considerable magnitude. Prior to suffering the injury, he was a fit and active person who went regularly to the gymnasium. He now finds once he exercises and gets hot and sweaty, the rash gets worse. He has put on considerable weight. Because of the heat and humidity, he is no longer able to holiday in Queensland or to go there on fishing trips, which was something which he enjoyed. He has stopped jogging because the sweating involved provokes the rash. The rash is aggravated by such things as having a hot bath, hot shower or a sauna. These are problems which will remain for the rest of the plaintiff’s life.

(e)

The rash also causes difficulties with the plaintiff’s sleep, and particularly in warmer weather. The rash on various parts of his body flares up. It wakes the plaintiff at night because he scratches the affected parts and they are very itchy. Of course, interference with sleep can be a matter of great significance in an application such as this – see McKinnon at paragraph 45.

24        In summary, I am of the opinion that the impairment of the skin which the plaintiff has suffered is, when judged by comparison with other cases in the range of possible impairments, fairly described as being more than significant or marked, and as being at least very considerable.

Conclusion

25        The plaintiff is successful. He has discharged the burden of proof. Leave is given to him to bring proceedings in respect of pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.

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