Hodel v Transport Commission

[1989] TASSC 87

Serial No. B9/1989
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Hodel v Transport Commission [1989] TASSC 87; B9/1989

PARTIES:  HODEL
  v
  TRANSPORT COMMISSION

FILE NO/S:  WC 439/1986
DELIVERED ON:  31 March 1989
JUDGMENT OF:  Nettlefold J

Judgment Number:  B9/1989
Number of paragraphs:  32

Serial No B9/1989
File No WC 439/1986

HODEL v THE TRANSPORT COMMISSION

REASONS FOR JUDGMENT  NETTLEFOLD J

31 March 1989

1. I accept the substance of the evidence of the plaintiff. I use the word "substance" in the main because it is very difficult to relate with accuracy the details of the symptoms of an episodic illness suffered over a long period of time. With regard to his cigarette smoking habit, I conclude that the best indications of the extent of the habit is to be found in exhibit D3, Dr Salter's evidence, the history given to Dr Gibbs by the plaintiff and the evidence of Mr Rowbottom.

1. I accept the essence of the opinions of Dr O'Halloran and Dr Beattie and prefer that material to the opinion of Dr Gibbs. I find that some of the evidence of Dr Von Witt is valuable particularly the evidence about the toluene test, her observations of the plaintiff and her opinion that he was a quite severely affected allergic patient probably with multiple problems. Her assessment which incriminates chemicals at work as a cause of this condition is helpful. I qualify the acceptance of her evidence because she adopts a controversial view concerning the significance of candida, a view which is not accepted by many medical practitioners. The point I wish to make on that topic is simply that while the medical profession is deeply divided about it, it is not appropriate for a court to adopt her view. Or, at the least, it is not appropriate in the circumstances of this case to adopt her view because, among other things, it is rejected by another witness for the plaintiff, Dr O'Halloran, and there has not been sufficient examination of the reasons for the differences between them on the point. In the circumstances of this case no such examination was necessary.

1. Dr Von Witt's view about the solvent toluene is useful. She said that she was told that toluene was a constituent of the paint and that was the chemical which she thought would be likely to cause much trouble because it is a solvent and the problem of solvent toxicity is quite well known world wide.

1. Dr Von Witt felt that the plaintiff had become extremely sensitive to chemicals probably mainly through exposure at work. She felt that he was very severely sensitive to toluene. And she "expects" that he is sensitive to a large range of chemicals. She "thinks" that it is very likely that he is sensitive to petrol or car fumes and all related solvents like toluene, alcohol and benzene and "all those sorts of chemicals which are chemically related".

1. Dr Von Witt expressed the view that the plaintiff would never be fit to work as a painter. If he tried to work as a painter he would get extremely sick.

1. The essential material which leads me to favour the plaintiff's case is the opinion of Drs O'Halloran and Beattie and what I regard as the significant relevant history. I accept Dr Von Witt's evidence where it is consistent with that material.

1. Dr O'Halloran had seen the plaintiff four or five times. The plaintiff came to Dr O'Halloran "via the Transport Commission". He first saw him on 17 January 1986. The history Dr O'Halloran took was that the plaintiff had been working at the Transport Commission as a road painter for eight years. Previously the plaintiff had been a general painter who was self employed. Over the previous 12 months the plaintiff had had three episodes of pleurisy which had been treated with antibiotics. The plaintiff complained of frequent cold symptoms, headaches. tiredness, visual disturbance, tight breathing generalised over his chest followed by two or three days of chest pain and later typical pleuritic pain, pain with deep breathing. Each of these episodes lasted one to two weeks. The plaintiff described to Dr O'Halloran how he had been well over the Christmas holidays but on his return to work he had further episodes.

1. With that history, Dr O'Halloran got several tests done and sought a report from the Royal Hobart Hospital where the plaintiff's symptoms had been investigated.

1. Dr O'Halloran reviewed the plaintiff a couple of months later. He inspected the plaintiff 's work place and the van and saw the plaintiff working and Dr O'Halloran found that in all his work places the plaintiff was certainly exposed to fumes. "I could smell fumes everywhere, on the road, in the van, in his work place aromatic hydro–carbons all over the place, and you couldn't mistake it, it was quite strong everywhere".

1. Dr O'Halloran's evidence was that the plaintiff had been very precise and consistent with his description of his illness and no–one has really been able to get to the bottom of it with any tests. He found the question whether fumes affected the plaintiff's health difficult. Dr O'Halloran's conclusion was that the condition was probably work related and with the persistent symptoms he did not think that the plaintiff could keep on working in that environment. Dr O'Halloran wrote to the defendant on 5 March 1986 saying, among other things, "In summary I feel that Karl should be retired from painting duties because of recurrent pleurisy and asthma which is possibly work related".

1. During cross–examination Dr O'Halloran said that he thought that it was more probable than not that the plaintiff was sensitive to aromatic hydro–carbons, to one or more of them. He would have become sensitive during the time of his exposure to them and, had he not been exposed, he would probably never have had a problem. It is more likely that he developed his sensitivity when he was getting symptoms or shortly prior to that. There is an altered immune response, an immune response which is inappropriate to the stimulus. The fact that the plaintiff was a smoker made his symptoms worse when they developed but smoking was not the cause of his condition. Dr O'Halloran explained that he drew his conclusion basically from the plaintiff's history of symptoms after exposure, absence of symptoms when away from work, a consistent story of symptoms throughout the various histories and experience with this type of problem.

1. Dr R R Beattie is a specialist physician. He examined Mr Hodel in December 1985 at the Royal Hobart Hospital. The history given to Dr Beattie was one of recurrent respiratory problems. The plaintiff actually presented with what Dr Beattie regarded as pleuritic type pain in the chest. The plaintiff had produced a small amount of blood in his sputum. The plaintiff complained of occasional faints and nausea. The plaintiff told Dr Beattie that he had worked with toxic paints and that he was particularly concerned about the fumes in the van which was used at his work. The plaintiff also complained to Dr Beattie of headaches during the previous year, nausea and loss of appetite. Dr Beattie reached the conclusion that the symptoms were related to the plaintiff's work conditions and the paint fumes at work. Dr Beattie said that he felt that there was a very strong likelihood that Mr Hodel's exposure to paint fumes caused his symptoms. Dr Beattie felt in retrospect that attacks of pleurisy were in truth attacks of hypersensitive pneumonitis associated with the inhalation of toxic paint fumes. Dr Beattie expressed the opinion that the plaintiff should be advised to give up any contact whatsoever with the sensitizing substance due to the risk of developing the serious condition of fibrosis in the lungs which can be irreversible and cause chronic shortness of breath and poor health. "So that the only sensible and reasonable advice to give the patient was to give up painting". Dr Beattie said in evidence that he believed he advised the plaintiff that he should not continue working as a painter but he could not be sure what he said.

1. The condition basically is inflammation in the lungs due to an allergy. Coming in contact with the paint fumes has caused an allergy. He is likely to have the symptoms of this condition again if he goes back to the substance responsible.

1. The plaintiff was passed fit for work by the defendant's doctors in 1979, 1980, 1983, 1984 and on 22 May 1985. But on 22 April 1986 the plaintiff complained to an officer of the defendant that he was feeling unwell and had had two blackouts on the way to work that day. At the direction of the defendant's officers the plaintiff subjected himself to various investigatory medical procedures during that day. At 4pm that day the plaintiff was still feeling unwell and was allowed to go home. The next day the following memorandum was prepared by the defendant:–

"DIRECTOR (PERSONNEL AND INDUSTRIAL RELATIONS)

Mr Hodel's supervisor has been instructed not to let him remain on the job when he reports ill.

As discussed I would be willing to allow Mr Hodel 2 weeks special leave pending the resolution of his situation. It is understood that the Repatriation Hospital report will be available next Wednesday."

1. The plaintiff ceased to be employed by the defendant as a painter on 6 June 1986, the termination of employment being due to his health problems described above. He was advised by officers of the defendant to retire as it was too risky to keep him on as he may have a blackout while working on the road and cause an accident. He did retire and received payments from the Retirement Benefits Fund.

1. The position is then that there was a dramatic change in the plaintiff's situation after the medical examination of 22 May 1985. There is evidence that, at roughly about that time, there was some change in his conditions of work which may have increased his exposure to fumes which might have been sensitizing. Using the evidence of the defence witness Mr Rowbottom, at about the period 1984 or 1985 the defendant acquired an additional closed van to transport workers, including the plaintiff and their equipment and materials, to their work. Previously the defendant had available for this purpose one closed van and one utility which was open at the back and the plaintiff would travel to work sometimes in the closed van and sometimes in the open van. When the enclosed van was acquired it replaced the open truck. On that subject the plaintiff's evidence was that in about May 1985 there was a change in the way they travelled to work in that a van enclosed at the back replaced a truck open at the back and the workers were travelling in the enclosed space at the back of this van together with the paints and materials. The plaintiff also said that, at about that time, there was a further change in the relevant working conditions in that they got new materials to apply, some duco to be applied by brush and spray and a new glue to be applied to reflectorised studs. There was some conflict as to whether the plaintiff was ever obliged to apply the duco. The correct conclusion on that appears to be that he did apply it at least on some occasions. There were no spraying booths in which to apply it.

1. I should make some comments about the evidence of the defence expert, Dr Gibbs. He saw the plaintiff on one occasion only, namely, on the 26 October 1987. At that stage the plaintiff had been out of his employment with the defendant for over a year with little apparent significant exposure to toluene or other hydro–carbons in the meantime.

1. Dr Gibbs inspected the defendant's relevant work areas early in July 1988 but there was no evidence to link the conditions he observed with the conditions the plaintiff experienced at the critical time.

1. Dr Gibbs criticisms of Dr Von Witt's toluene test were not convincing. His theory that the habit of smoking cigarettes in substantial numbers caused the plaintiff's illness—as distinct from aggravating it—does not account for the symptoms of giddiness and blackouts. Nor does it account satisfactorily for the fact that his symptoms improved when he was away from work and got worse when he spent some time back at work.

1. I do not accept that the symptoms presented by the plaintiff to Dr Von Witt were more likely due to smoking than any other cause. The assertion that they were due to smoking gives far too little weight to Dr Von Witt's opportunity to examine the plaintiff and make inquiries and apply undoubted expertise in the area of allergies to the problem then present and in her area of responsibility. If those symptoms were due to smoking the case would have been a fairly common–place one and not the unusually difficult case which, I infer, Dr Von Witt found it to be and Drs O'Halloran and Beattie found it to be. With respect to Dr Gibbs, I have reached the conclusion that it is unconvincing to seek to brush aside the difficulties confronted by the other three doctors and the conclusions they acted on by reference to a common–place explanation of lung damage due to smoking cigarettes at a rate which I suspect is about average among established cigarette smokers. At one stage Dr Gibbs said "Well, I don't really think he's that badly knocked about by smoking. I think if he goes on he will be."

1. Dr Gibbs made one concession in the course of his evidence which was in the following terms: "If you found out that he was hypersensitive to toluene then I'd only be too happy to say right I don't think this man is fit to work in that industry".

1. I make the following findings:—

1While employed by the defendant as a painter the plaintiff suffered personal injury by accident arising out of and in the course of his employment in that he suffered a physiological change which rendered him hypersensitive to, or allergic to, the solvent toluene and other related hydro–carbons. The injury was caused by exposure to fumes in the course of his employment with the defendant.

2While employed by the defendant as a painter the plaintiff was disabled as the result of a disease arising out of and in the course of his employment. The "disease" consisted of "poisoning by other toxic gas" (see Workers' Compensation Act 1927 Schedule 2 p52 of the Act), namely, paint fumes. In reaching this conclusion I apply the dictionary meaning of the word "poison", namely, "a substance that when introduced into or absorbed by a living organism destroys life or injures health".

1. I turn to the question of the extent of the incapacity which results from the in jury and the disease.

1. I accept the conclusion of Dr Beattie that the plaintiff should not work as a painter. The fact that he has become allergic to toluene and other related hydrocarbons means that, if he returns to painting, there is an unacceptable risk that he will develop fibrosis and consequent serious damage to health.

1. The plaintiff, in effect, when in his fifties lost his trade. At his age and having retired from employment with the defendant on health grounds he will find it very difficult to get manual labouring type work, which is the other type of work he has done. Being allergic not only to toluene but related hydro–carbons means that he will be unable to work in situations where he will come into contact with these substances in significant quantities. He is likely to react adversely to even small concentrations of them.

1. I accept Miss Eadie's conclusion regarding his vocational potential which was that it "was relatively poor as far as finding future work is concerned" unless his allergy decreases. But there is no basis in the evidence for thinking that his allergy is anything but permanent. Hence, as I understand it, it is not right to speak of his allergy "decreasing" as Miss Eadie did.

1. I accept the plaintiff's evidence that dust and petrol fumes "affect" him in that they make him feel tired and sick. Burning plastic also affects him. Perfumed soaps irritate his skin and, hence, he washes himself with velvet soap. Detergents also irritate his skin. He also experiences irritation when passing the soap counter in a supermarket.

1. Because of limited education and language difficulties — he migrated to Australia as a young person — he does not have any prospect of obtaining clerical work unless he undergoes an extensive retraining programme. It seems unlikely that at his age he would be offered such a programme.

1. But he has had too short periods of employment since he left his employment with the defendant.

1. Mr Green contends that "he would be entitled to payment at the full rate for the periods when he's not working". And the particulars of claim are drawn on that basis.

1. I accept that he is entitled to medical fees listed in exhibit P4.

1. There remains the problem of the correct application of Schedule 1 of the Act to these finding. I wish to give counsel time to consider that question. The plaintiff can then apply for such judgment as his counsel finds appropriate.