Illawarra Area Health Service v Dell

[2005] NSWCA 381

CITATION:	ILLAWARRA AREA HEALTH SERVICE v DELL [2005] NSWCA 381
HEARING DATE(S):	16 September 2005
JUDGMENT DATE:	9 November 2005
JUDGMENT OF:	Mason P at 1; Handley JA at 133; Young CJ in Eq at 134
DECISION:	Appeal dismissed with costs.

CATCHWORDS:	NEGLIGENCE – employer’s duty of care – unreasonable delay in implementing a safe system of work – nurse working at a country hospital – progressive allergic reaction to latex – anaphylactic reaction – limitation defence – aggravation of existing condition – occurrence of a new injury – latex allergy as a distinct illness – available preventative measures – latex-safe work environment – whether impractical – contributory negligence. (ND)
CASES CITED:	Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR(NSW) 120 Cartledge v E Jopling & Sons Ltd [1963] AC 758 Czatyrko v Edith Cowan University [2005] HCA 14, 214 ALR 349 Koehler v Cerebos (Aust) Ltd [2005] HCA 15, 214 ALR 355 Laybutt v Glover Gibbs Pty Ltd [2005] HCA 56 McLean v Tedman (1984) 155 CLR 306 Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 Paris v Stepney Borough Council [1951] AC 367 Scarcella v Lettice (2000) 51 NSWLR 302 Vozza v Tooth & Co Ltd (1964) 112 CLR 316 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES:	ILLAWARRA AREA HEALTH SERVICE Mary Patricia DELL
FILE NUMBER(S):	CA 40817/04
COUNSEL:	Appellant: J E Maconachie QC/ P N Khandhar Respondent: M Joseph SC/ H Wall
SOLICITORS:	Appellant: Turks Legal Respondent: Whyburns Legal

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 11820/01
LOWER COURT JUDICIAL OFFICER:	Nicholson DCJ

CA 40817/04
DC 11820/ 2001

MASON P
HANDLEY JA
YOUNG CJ in Eq

Wednesday 9 November 2005

ILLAWARRA AREA HEALTH SERVICE v Mary Patricia DELL

The plaintiff/respondent was a nurse who worked at the Milton/Ulladulla Hospital up to 1997 and from January 1999 to March 2000. Over this latter period, she developed an increasing sensitisation to latex, which developed into an illness called “latex allergy”. In March 2000, she suffered a serious anaphylactic incident, after which she was no longer employed by the Hospital. She commenced proceedings against the appellant, her employer, for breaching its duty of care to protect her from injury and to provide a safe working environment.

The respondent was successful at trial. The trial judge found that the appellant had unreasonably delayed in implementing a safe system of work that was practically available and that this failure caused the respondent to contract latex allergy some time after her recommencement at the Hospital in 1999.

In the Court of Appeal, the appellant contended, as a limitation issue, that the respondent’s pleading tendered a single cause of action that did not embrace the possibility of a condition that arose earlier but was exacerbated by tortious conduct in 1999. It further challenged the trial judge’s finding that there was an unreasonable failure to protect the respondent, contending that nothing could reasonably have been done by the Hospital to prevent the respondent suffering the injury diagnosed. Lastly the appellant submitted that the respondent had contributed to her injury by failing to warn her employer.

HELD:

Per Mason P (Handley JA and Young CJ in Eq agreeing):

1. The trial judge was correct in concluding from the medical evidence that a distinct injury arose in 1999 and correctly rejected the limitation defence submitted by the appellant.

2. The trial judge’s findings on the appellant’s unreasonable failure to provide a safe working environment and on the causation of the relevant injury in 1999 demonstrated no appellable error.

3. The respondent was not contributorily negligent for failing to alert her employer that she had previously suffered from latex glove irritation in 1997.

4. The damages award was not excessive given the severity and extent of the relevant injury caused by the appellant’s negligence.

ORDERS: Appeal dismissed with costs.

IN THE SUPREME COURT

CA 40817/04
DC 11820/ 2001

MASON P
HANDLEY JA
YOUNG CJ in Eq

Wednesday 9 November 2005

ILLAWARRA AREA HEALTH SERVICE v Mary Patricia DELL

JUDGMENT

1 MASON P: The potentially pro-active nature of the employer’s duty of care is recognised in a recent formulation by the High Court. In Czatyrko v Edith Cowan University [2005] HCA 14, 214 ALR 349 the Court said (at [12]):

An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.

2 The verdict under appeal effectively turns on a finding that the appellant unreasonably delayed in implementing a safe system of work that was practically available, the failure causing the respondent to contract an illness called “latex allergy” and/or exacerbating that condition.

Primary facts

3 Few of the primary facts remain in issue.

4 The respondent is an enrolled nurse who has spent much of her adult life working in that profession. She was born in 1953.

5 In 1986 she worked for about 12 months at the Milton/Ulladulla Hospital (the Hospital). This establishment is controlled and operated by the appellant. The respondent returned to the Hospital between 1990 and September 1997. Her third period of employment there was between January 1999 and March 2000.

6 The Hospital is a 20-bed country hospital having a Director of Nursing, a Deputy, two registered nurses and three enrolled nurses on day shift, and one registered nurse and one enrolled nurse on night shift. Nurses are usually required to work in each area being theatre, maternity, accident and emergency.

7 Latex gloves were introduced into the Hospital in 1994-1995. Nursing staff were required to wear powdered latex gloves when dealing with patients. In a day’s work a nurse might be gloved 20 or 30 times.

8 After the introduction of latex gloves, the respondent noticed sinus irritation with symptoms such as runny nose and sore eyes. She also experienced itchy hives on her hands. This was intermittent, but she gradually became more sensitive to latex gloves.

9 The respondent’s general practitioner since May 1997 was Dr Paul Rothe. She saw him on 1 September 1997, presenting with symptoms of itchy eyes and runny nose suggestive of a diagnosis of sinusitis. At around this time she stopped working at the Hospital because of the sinus irritation. She returned to home-care nursing duties with the Ulladulla Nursing Agency after recovery from a hernia operation.

10 In January 1999 she recommenced work at the Hospital in a two-day permanent part-time position. During this period she was averaging about 20 hours work per week, sometimes performing her two days work consecutively. Initially she worked in all areas of the Hospital, using surgical equipment (latex gloves in particular).

11 By mid-1999 the sinus irritation began to return and the respondent noticed a dermatitis-type condition, which she described as “like hives” on her hands extending up her forearm. She associated this condition with the wearing of latex gloves (ie due to direct contact with the gloves). Her face would swell at areas she touched after wearing the latex gloves and the whites in her eyes would turn yellow.

12 In June 1999 she asked the Acting Deputy Matron to order non-powdered gloves. A form was filled out to order non-powdered gloves, but these were slow in being provided (Blue 38).

13 In August 1999 the respondent’s condition was such that the Director of Nursing referred her to Dr Mills. He is a consultant physician in occupational medicine employed by the appellant. He first saw the respondent on 12 August 1999 as part of what was described as the appellant’s Early Injury Management Program (Blue 30). The history she gave him was recorded as follows:

Mary describes having a 2-3 year history of progressive allergic reaction to latex. Initially, this was described as hives to both hands and runny nose/eyes when wearing latex gloves. Powdered gloves produce more problems than non-powdered.
Over the last 6 months, Mary’s symptoms have been getting slightly worse. She currently develops a runny nose/eyes plus conjunctival oedema on exposure to latex dust and as soon as she walks into Milton-Ulladulla Hospital. She gets itchy hands on wearing latex gloves and recently her eyelid has puffed up after having touched it.
In addition to the above, Mary described having a cough and wheeze for the past 3-4 months. She gets a nocturnal wheeze which is associated with increased exposure to latex at work. She never gets this when she hasn’t been at work.
There is no history of asthma, eczema or dermatitis, although she does have mild right sided teneapedis.
There is no history of food reaction and Mary has never blown up a balloon.

14 On examination, the respondent presented with an oedema to the left lower eyelid due to having touched it with a gloved finger earlier that day.

15 Dr Mills explained to the respondent the potential severe consequences of latex allergy. He recommended that the respondent wear non-latex gloves and that, as much as possible, she should avoid working in the hospital areas of high latex gloves concentration. He also organised for her to wear a “Medic Alert” bracelet, stating that she has latex allergy (Blue 251).

16 Dr Mills provided the respondent with a package of information that included the NIOSH alert (discussed below) and two fact sheets explaining the NIOSH alert in non-scientific language (Black 118).

17 In his report to Dr Rothe, Dr Mills observed that the Hospital was due to change to powder-free latex gloves in the near future. His assessment was:

Mary’s history is highly suggestive of her having latex allergy. I have explained to Mary the potential severe consequences of this and have thus organised for a RAST test to be performed for a further diagnosis. Whilst we are awaiting this, I have recommended that Mary wear non-latex gloves. As much as possible, she should avoid working in the areas of high latex gloves concentration.

18 On 16 September Dr Mills reviewed a blood test referred to as a RAST (Latex) test. The test had come back as “high” and led Dr Mills to confirm the diagnosis of latex allergy. He certified the respondent “fit for permanently modified duties” from 16 September 1999 onwards. She was to avoid significant exposure to latex or latex dust and not to wear latex gloves (Blue 2). This information was obviously passed to the employer.

19 Dr Mills did not advise the respondent to give up her employment.

20 The employer responded to Dr Mills’ diagnosis by endeavouring to minimise the respondent’s contact with latex. Nicholson DCJ found (J17):

The Director of Nursing and the Deputy Matron tried to make the Accident & Emergency ward a latex-free area. The walls and ceiling of the Accident & Emergency (A&E) ward were scrubbed down. Latex gloves and some other items containing latex, including anaesthetic masks were removed from that area. The plaintiff was told by the hospital not to wear latex gloves, she was given an Epi-pen and required to fill out a form so as to receive a medical-alert bracelet. The A & E ward was a 4-bed ward located at one end of the rectangular hospital building. A plastic curtain was erected between A & E and the corridor leading to other areas of the hospital so that latex particles would not be blown from the corridor into the A & E ward. The plaintiff was to work only in this area. She no longer wore powdered gloves. Silicone anaesthetic masks and airways were introduced.

21 Dr Mills reviewed the situation on 21 December 1999. The respondent reported an improvement in symptoms, but she continued to have ongoing puffy face and continuing rhinorrhea. She needed to take antihistamines every time she went to work. She got wheezy and short of breath on walking to the ward and on an occasion when exposed to balloons at a party. By that stage Dr Mills was starting to think that re-deploying the respondent to another work environment might be necessary (Blue 32).

22 Despite the changes in the A & E ward to which the respondent was generally confined, there was continuing contact with latex. It was found (J17-19) that the A & E ward had a residue of items such as tubes and catheters containing latex that the respondent was required to use when treating patients. That ward was also busy with nurses coming from other parts of the hospital, and doctors from their surgeries when needed. There was also movement of patients from A & E to other wards or areas of the hospital. While powdered latex gloves were not permitted in the A & E ward, they were worn in other parts of the hospital.

23 The respondent’s symptoms continued to worsen. She experienced swelling of the face, runny eyes, runny nose, asthma-like symptoms and tightness in her throat.

24 On 19 March 2000 there was a serious anaphylactic incident that required an adrenalin injection. The A & E ward was fairly busy. Nurses had come from other wards to help and a doctor was there also. They had apparently been using powdered latex gloves in their own wards. The respondent had only been at work for half an hour when she had an anaphylactic reaction – she felt hot and flushed, she was red in the face and warm to touch. She felt as though she was having a bad asthma attack and her throat was starting to close over.

25 The respondent recovered after three days, to discover that the Hospital would not let her return to work. The Director of Nursing phoned to tell her she was no longer employed because of her allergy.

26 Since then the respondent has been in receipt of workers compensation.

Key factual and legal issues

27 The respondent’s case is that the employer was negligent in its failure between January and September 1999 to take steps to minimise latex exposure, steps that would probably have prevented her contracting latex allergy during that period. The respondent does not contend that her sensitivity to latex before September 1999 had risen to such a degree that employment at the Hospital was out of the question. Nor does she complain about the steps taken after September 1999. She contends, with justification, that her continuing employment between September 1999 and March 2000 under stricter controls was a reasonable response to the advice of Dr Mills. It was no part of the respondent’s case that the employer had a duty to dismiss her.

28 The appellant accepts the diagnosis of latex allergy and that it was impossible for the respondent to continue her employment after the anaphylactic incident in March 2000. Indeed, from a forensic point of view, it embraces these propositions in that one of its contentions is that the respondent had a predisposition to this form of serious attack from January 1999 onwards, with the result that (with the benefit of hindsight) it was never practical to employ her at the Hospital.

29 It can be seen from this brief review that the issues of breach, causation and damages are largely dependent on the outcome of the medical issues as to the aetiology and preventability of the respondent’s condition as diagnosed in August-September 1999.

30 In her statement of claim filed in the District Court on 19 November 2001 the respondent alleged that the employer breached its duty of care to protect her from injury and provide a safe working environment. Relevantly it was pleaded:

5. The Plaintiff developed a life-threatening sensitivity to latex whilst in the employment of the Defendant [ie after January 1999].

6. The injury suffered by the Plaintiff was caused by the negligence of the Defendant and/or its servants and agents.

PARTICULARS OF NEGLIGENCE

It is alleged that the Defendant was guilty of negligence in that it;

…

ii. Knowing that she was becoming sensitive to latex failed to properly treat her and properly provide safe working environment.

…

vi. Failed to properly rehabilitate the Plaintiff so that she had minimal exposure or no exposure to latex particles.
…
viii. Failed generally in its duty of care to the Plaintiff to provide a safe work environment to prevent her developing or aggravating her allergy to latex.

[These are the particulars of negligence found established in the judgment under appeal.]

31 The grounds of defence invoked the limitation defence provided by s151D of the Workers Compensation Act 1987. The appellant accepts that it bore the onus of establishing this defence.

32 In this Court, the parties were at odds as to whether the pleadings had committed the plaintiff to a case that required her to establish that latex allergy arose for the first time in 1999. She did in fact establish this, to the satisfaction of the trial judge.

33 However, the pleadings were in my opinion broad enough to encompass a claim that that condition was aggravated at the workplace in 1999. The possibility of a case based upon aggravation of an existing condition is reflected in the pleaded Particular of Negligence viii (above). Paragraphs 9 and 10 of the Defence, invoking the limitation plea, were also framed in terms that address the possibility that some but not all of the plaintiff’s allergic reaction to latex may have occurred within the limitation period. This was consistent with the medical evidence that the disease is dose-related and may progress in varying degrees of seriousness, triggered by more intensive or prolonged exposure (Dr Mills at Black 64).

34 With a disease such as this, where there is a material aggravation of an existing condition within the limitation period, injury and damage stemming from that aggravation is actionable (Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR(NSW) 120).

35 The pleadings did not commit the plaintiff to a case that was doomed merely because sensitisation to latex was experienced in the mid-1990s (whether or not the sensitisation evidenced latex allergy strictly so called). There was in any event no attempt on either side to prove negligence prior to 1999.

Latex: its uses and dangers

36 Latex is a component of many medical devices. It has been used for disposable gloves and in catheters, dressings, bandages, intravenous tubing, syringes, stethoscopes and airways. It is regarded as a significant protector against immunodeficiency viruses.

37 It is no part of the respondent’s case that latex should be removed entirely from the hospital environment. Her claim is that latex presents particular dangers for a sizeable class of healthcare workers, including herself, that required the employer to take greater measures for her protection during the vital period of January to September 1999.

38 Her case is that the employer was negligent in 1999 by failing to heed the warnings and implement the recommendations of two inquiries that investigated latex in the late 1990s.

39 In June 1997 the National Institute for Occupational Safety and Health (NIOSH) formulated a 21 page alert, warning employers and employees alike that workers exposed to latex gloves and other products containing natural rubber latex may develop allergic reactions ranging from skin rashes to shock. The warning was published in July 1997 and had been disseminated through the world wide web by 25 September 1998. I do not understand it to be in dispute that it came to the employer’s attention before January 1999.

40 Judge Nicholson held (at J46-7) that the NIOSH alert was:

... a detailed, informative paper identifying latex laden products – which included inter alia a list of equipment and hospital supplies. Three types of reaction to latex products were listed: - irritant contact dermatitis, allergic contact dermatitis (delayed hypersensitivity) and latex allergy, which was described as potentially more serious than either of the others. There was information given as to levels and routes of latex exposure; workers who were at risk – including healthcare workers based in hospitals who frequently use latex gloves or other latex-containing medical supplies.

A section of the NIOSH alert was devoted to diagnosing latex allergy. It contained the following observation,
Latex allergy should be suspected in anyone who develops certain symptoms after latex exposure, including nasal, eye, or sinus irritation; hives; shortness of breath; coughing; wheezing; or unexplained shock. Any exposed worker who experiences any of these symptoms should be evaluated by a physician, since further exposure could result in a serious allergic reaction.

41 Later (at J155) his Honour held that:

The NIOSH alert referred to three types of reaction occurring in persons using latex products – irritant contact dermatitis, allergic contact dermatitis (delayed hypersensitivity) and latex allergy. It described the first of these as “not a true allergy”.

42 The NIOSH alert observed that reports in the scientific literature indicated that from 1% to 6% of the general population and about 8% to 12% of regularly exposed healthcare workers were sensitised to latex. In arriving at those figures, NIOSH relied inter alia on a published article by Dr Connie Katelaris.

43 In June 1998 a Working Party of the Australasian Society of Clinical Immunology and Allergy published Guidelines for the Management of Latex – Allergic Individuals in Health Care Facilities and for the Minimisation of Continuing Latex Sensitisation (Blue 58). Dr Katelaris was the convenor.

44 The Guidelines observed that over the previous decade there had been a marked increase in reports of the development of latex allergy in certain at-risk groups. This coincided with the great increase in latex glove use. There had been reports of problems with latex gloves in the workplace for many decades. The commonest problem was that of an irritant dermatitis, caused by sweating or irritation of the glove with its powder residue or from irritation from frequent washing.

45 A second grouping, known as contact dermatitis, was described as a Type 4 immune response where sensitised lymphocytes reacted to the chemical additives in the gloves.

46 A third grouping of symptoms were described as latex allergy. These were immediate hypersensitivity reactions caused by latex as a consequence of contact or inhalation of allergenic latex proteins which became absorbed in the glove powder. The Guidelines noted that a full range of allergic symptoms, including allergic rhinoconjunctivitis, urticaria and angioedema, asthma, anaphylaxis and death had been “well documented as a result of sensitisation to latex”. Healthcare workers were among groups that had been “recognised as being at risk for developing latex allergy”.

47 The Guidelines stated that:

… latex allergy is likely to become a significant occupational health issue in Australian healthcare workers.

48 Under the heading “Public Health Issues”, the Guidelines stated:

From a public health perspective, there is now overwhelming evidence that the impact of latex allergy on latex-allergic health care workers and, indeed, good preventative strategies to minimise further latex sensitisation, can be achieved by the following measures.
1. The introduction of powder free gloves universally throughout medical facilities will immediately minimise sensitisation via the inhaled route.
2. Move to purchasing only low allergen-containing gloves to minimise the risk of sensitisation through compulsory glove wear. This strategy requires the co-operation of industry and the insistence on declaration of allergen content on glove products, to allow the rational purchase of such low-allergen gloves.
3. The identification of high risk individuals in the health care setting so that specific counselling may be undertaken to lessen the individual’s risk of sensitisation.
There are many gloves on the market and it is no longer acceptable to buy a glove because it costs less or an individual believes it feels better on their hands. There are Australian standards for both sterile and procedural examination gloves which address design, properties and labelling (AS 4179-1994, AS 4011-1995). There is a need to evaluate manufacturers’ information on latex, non-latex and vinyl gloves in the areas of barrier protection and durability.
Other strategies were recommended.

49 There were guidelines and information sheets addressing the problem of latex allergy in a number of settings. These included guidelines for hospital management with reference to operating and ward procedures, the preparation of a “latex safe environment” and latex allergy information for new employees (Blue 64-84). These repeated the message again and again that some patients and health workers were “high risk” both in the sense of being prone to symptomatic reactions and in the sense that some were at risk of very serious consequences.

50 The Guidelines provided the following information about the aetiology and symptomology of latex allergy.

Who suffers from latex allergy?
People most at risk of having or developing a latex allergy are those who have other allergies (such as hay fever) and regularly use natural rubber latex products (such as latex gloves) in their everyday occupation (eg physicians, nurses, dentists, dental hygienists and dental assistants).
What are the symptoms of latex allergy?
Latex allergy often begins with a rash on the hands when using natural rubber latex gloves. Other symptoms include hay fever type reactions such as itchy swollen eyes, runny nose and sneezing. Some patients may develop asthma symptoms such as chest tightness, wheezing, coughing and shortness of breath.
How are latex and rubber allergies identified?
People at risk or with symptoms of possible latex allergy should be tested with a latex skin prick test by an allergy specialist or undergo a blood test which will detect specific antibodies to latex.
Can my latex allergy get worse?
There is evidence that the more you are exposed to latex, the more allergic you may become. If you only have a minor latex allergy, you should minimise your exposure to latex so that you do not risk becoming more sensitive.
Can a latex allergy be life-threatening?
While it is uncommon, some latex allergic individuals can suffer a potentially life threatening allergic reaction (called anaphylactic shock) when they come into contact with natural rubber latex. Some situations in which anaphylactic shock can occur include, when blowing up a balloon, during dental surgery or any other surgical procedure, when using a condom, during the examination of the vagina, rectum or colon, and the administration of an enema.
Anaphylactic shock occurs within minutes of exposure, especially following direct tissue contact with natural rubber latex products. It is characterised by generalised hives, breathing difficulties and low blood pressure. The reaction may be fatal and must be promptly treated by adrenalin injection.

51 The last page of the Guidelines provides Latex Allergy Information for New Employees. The following steps are recommended to be taken by healthcare workers to protect themselves.

1. Use non-latex gloves for activities that are not likely to involve contact with infectious material (food preparation and housekeeping etc).

2. Appropriate barrier protection is necessary when handling infectious material. If you choose latex gloves, use powder free with reduced protein content: such gloves reduce exposures to latex protein and thus reduce the risk of latex allergy (although symptoms may still occur in some workers).

3. Use appropriate work practices to reduce the chance of latex reactions. When wearing latex gloves, do not use oil-based hand creams or lotions unless they have been shown to reduce latex problems. After removing latex gloves, wash hands and dry thoroughly.

4. Take advantage of all latex allergy education and training provided by your employer, and learn to recognise the symptoms of latex allergy.

5. If you develop symptoms avoid direct contact with latex products and see a physician experienced in latex allergy. Carefully follow your physician’s instructions for dealing with allergic reactions to latex.

6. If you have latex allergy: avoid contact with latex products; avoid areas where you might inhale powder from latex gloves worn by others; tell your employer that you have a latex allergy; and wear a medic-alert bracelet. It must be stressed that it is best to treat early to prevent the sensitisation to latex becoming too severe.

This was adapted from recommendations of NIOSH. It presents as information for new employees, but is obviously highly relevant to the discharge of the duty of care of a hospital employer. It will be seen that several of the recommendations were not followed by the appellant when the respondent recommenced employment at the Hospital in January 1999.

52 The NIOSH alert and the Guidelines must have been known to the appellant by January 1999. Dr Mills also implied that implementation of the NIOSH recommendations were part of his brief as a Staff/Senior Staff Specialist employed by the appellant between March 1998 and November 2001 (Blue 9-10, 13ff).

53 The information and warnings in the NIOSH alert and the Guidelines were not provided to the respondent when she commenced employment at the Hospital in January 1999. (Black 18, J186).

54 As indicated, Dr Mills first diagnosed latex allergy in the respondent on 16 September 1999.

55 With its limitation defence firmly in mind, the appellant sought to establish through the cross-examination of Dr Mills that the symptoms experienced by the respondent between the mid-1990s (when latex gloves were introduced) and September 1997 when the respondent stopped working at the end of her second period of employment at the Hospital showed that she was then suffering from latex allergy. This proposition was resisted by Dr Mills, who distinguished “three different types of pathologies” (Black 60) involved in allergic reactions to latex gloves. These three different situations are also documented in the NIOSH alert and the Working Party’s Guidelines as referred to above.

56 Based on this and other evidence the trial judge found that there are three categories of sensitisation to latex:

• irritant dermatitis
• contact dermatitis
• latex allergy.

57 As to the distinguishing features of the most serious condition (latex allergy), his Honour held (J152-154):

152. There is one particular feature which appears to distinguish latex allergy from the two forms of dermatitis. Therefore latex allergy constituted its own unique injury. While it may be that a person passes through one or both of the forms of dermatitis to achieve latex allergy, I am not convinced this is always so.
153. The particular feature distinguishing latex allergy from the other two is the response of the body organs to latex allergy as a remembered or mnemic response. It would also seem that another feature not shared by irritant or contact dermatitis is that the sensitisation to latex can be triggered not only by contact by also by inhalation. Responses to identical levels of exposure, even though mnemic, may increase in intensity from earlier responses.
154. There is a feature of latex allergy the may be shared by other forms of sensitisation to latex. It would appear that the organs or areas of the body that respond as a consequence of stimulation to latex sensitisation can exceed the areas of direct latex contact whether by surface contact or inhalation (in latex allergy situations).

58 I do not understand these findings to be in dispute. They are amply supported by the testimony of Dr Mills who drew a firm distinction between allergic sensitisation to latex and the clinical condition of latex allergy.

When did the respondent first develop latex allergy?

59 Dr Mills’ diagnosis of latex allergy in September 1999 was not in dispute. The respondent endeavoured to establish that that condition arose in consequence of the working conditions experienced in 1999. By contrast, the appellant sought to establish that the condition was present by 1997 at the latest, albeit undiagnosed at the time.

60 The trial judge was satisfied on the balance of probabilities that the respondent developed latex allergy some time after her recommencement at the hospital, in January 1999, and before August 1999 (J164, 198).

61 His Honour recognised the abovementioned clinical distinction between less serious levels of allergic reaction to latex, generally described in the evidence as irritant dermatitis and contact dermatitis, and the more serious, distinctive pathology known as latex allergy. This first step in the reasoning was not, I think, disputed on appeal. The conclusion was well open on the evidence of Dr Mills, the NIOSH alert and the Guidelines. The distinctiveness of the three different types of pathologies is not affected by recognition that each condition may be dose-related and that those who suffer from one condition may be prone to develop a more serious latex condition.

62 The real issue, at trial and on appeal, was when the respondent’s condition first manifested itself as one of latex allergy. Senior counsel for the appellant is correct to point out that this is not the same as asking when the condition was first diagnosed.

63 The trial judge did not, however, fall into this trap. He was perfectly aware that Dr Mills first provided the respondent with a diagnosis of latex allergy in August 1999. He nevertheless found that that illness had first arisen about six months earlier that year.

64 The following passage reveals the analysis of the medical evidence that led his Honour to conclude (1) that the symptoms that emerged in 1997 did not establish that the respondent was then suffering from latex allergy; and (2) that the symptoms emerging in 1999 established that latex allergy arose during the period of employment between January and August 1999:

157. The symptoms that the plaintiff reported experiencing in the mid-1990s were limited to hives on hands, sinus irritation manifest by symptoms such as running nose and sore eyes. In this earlier period the symptoms were intermittent responses to her use of latex gloves. In 1997 the plaintiff was still experiencing sinus irritation, rashes and itchy feelings on hands in the areas where she had been wearing gloves. She was experiencing the symptoms all the time she was at work, but was relieved of the symptoms when not at work.
158. True she was self-medicating with antihistamines during this period, but the plaintiff had a history of sinusitis prior to the introduction of latex gloves to the hospital, and no doubt had used antihistamines on those occasions. The plaintiff gave to Dr Mills what he described as a “2-3 year history of progressive allergy to latex”, by which I understand Dr Mills to be implying the early history of symptoms were consistent with something less than true latex allergy.
159. There is in 1999 a noticeable aggravation of latex-caused symptoms by contrast with the plaintiff’s condition when she left work in 1997. In his report of 16th August 1999, Dr Mills noted some significant factors – over the previous six months the plaintiff’s symptoms were getting worse – that is there was an ongoing deterioration; symptoms were both external (eg itchy hands, puffy eyelids) and internal (eg runny nose, nocturnal wheeze); symptoms were impacting upon the plaintiff’s breath supply; and symptoms were now lasting longer than an hour after work – indeed into the night.
160. It is to be remembered that Dr Mills diagnosed the latex allergy as existing in about January 1999. It would seem that Dr Mills regarded the history of progressive allergy as describing the situation of the plaintiff passing through irritant dermatitis, contact dermatitis to latex allergy. It is to be noted that it is only after 1999 that the plaintiff has serious responses to latex outside the hospital. I have inferred the latex available in those situations was less than she had been experiencing in hospital between January and September 1999.
161. Dr Harvey’s assessment was that the plaintiff acquired latex allergy in 1996. Dr Harvey’s assessment needs to be viewed against his further opinion that the plaintiff was atopic. Dr Katelaris is of the opinion that the plaintiff was not atopic. No other doctors suggested she was. I prefer the evidence of Dr Katelaris. Dr Katelaris recognises the first clinical evidence of sensitisation as occurring in 1995. What is important to note about Dr Katelaris’s assessment is that she avoids putting a date on the clinical diagnosis of latex allergy, but takes a holistic approach to the sensitisation history of the plaintiff. She says:
Whether it was a continuation of exposure from 1995 to 1999 or further exposure from 1999 on, which led her present state of sensitisation, is impossible to differentiate. I do not date the onset of her problem to 1999 when the diagnosis was finally made, but on historical grounds this woman’s latex allergy in a clinically relevant way began in 1995 with her first reaction.
162. But the “first reaction” cannot equate with latex allergy in a clinically diagnostic sense because it would not be a remembered response. The timeline of reaction to latex, and the overall exposure of a patient to latex of course, are clinically relevant. But in a situation where the law requires a determination of the date upon which the “injury” was received, it is important to remember the historical period covering exposure to the cause of an injury is not necessarily the same as the historical period of the injury itself.
163. I have already rejected Dr Lobel’s opinion, given after the hearing of this matter had commenced, upon the basis that it was based on a false, or at very least, an overstated premise. Likewise I have highlighted Dr Kaufman’s response to the question of when the plaintiff first developed latex allergy. His reply was that she first “developed symptoms in relation to latex” sometime in 1995/96. If by that answer Dr Kaufman was indicating a clinical diagnosis of latex allergy was appropriate sometime in 1995/96, then I prefer the opinion of Dr Mills. However it seems to me that Dr Kaufman is taking an approach similar to Dr Katelaris.
164. I am satisfied on the balance of probabilities that the plaintiff developed latex allergy sometime after her commencement at the hospital, in January 1999 and before August 1999. In those circumstances, issues earlier referred to relating to s151D Workers Compensation Act 1987 are now otiose.
165. [In the event that this finding did not survive an appeal, I should indicate implicit in my findings are that the level of disability prior to January 1999 was consistent with sensitisation to latex at a level that results in intermittent experiences of hives and rashes, and intermittent experiences of watery eyes and runny nose as a result of direct contact with latex. Recovery from the consequence [sic] body response to the latex sensitisation was usually achieved within an hour of leaving the hospital. There was no experience of major reaction, nor in the absence of further exposure was there ever likely to be any such reaction.]

65 In this Court, the appellant re-agitated the factual issues addressed by his Honour in this passage. Particular reliance was placed on the unchallenged report of Dr Katelaris, the relevant portion of which is set out in J161. (A fuller extract from the report is set out at par [99] below).

66 In my view, the judge did not err in his acceptance of Dr Mills’ evidence and his interpretation of Dr Katelaris’ evidence.

67 When Dr Katelaris spoke of “this woman’s latex allergy in a clinically relevant way [beginning] in 1995 with her first reaction” she appears to have been referring to the first symptoms of clinically relevant sensitisation to latex exposure.

68 In the respondent’s submission, this was a statement about the aetiology of what became the disease diagnosed by Dr Mills in late 1999, but it was not a statement that the distinctive disease existed at the earlier time. I agree.

69 This was similar to Dr Mills’ reference to a “2-3 year history of a progressive allergic reaction to latex”, an accurate description of the respondent’s worsening condition that is not inconsistent with his evidence elsewhere that three distinctive phases are discernible in some cases.

70 Dr Katelaris’ reports about the respondent (Blue 151-160) do not contradict the material in the Guidelines from the working group of which she was the convenor. She accepted that further exposure may cause increasing sensitisation (Blue 159).

71 Dr Katelaris’ statement that:

Whether it was a continuation of exposure from 1995 to 1999 or further exposure from 1999 on, which led her present state of sensitisation, is impossible to differentiate. I do not date the onset of her problem to 1999 when the diagnosis was finally made, but on historical grounds this woman’s latex allergy in a clinically relevant way began in 1995 with her first reaction.

does not in any event assist the appellant in making out its limitation defence, because the doctor’s agnosticism in the first sentence just quoted leaves the appellant’s onus of proof unsatisfied. I repeat my observation that no one ever suggested that the appellant was negligent towards the respondent in 1997.

72 It was open to the trial judge to be satisfied from Dr Mills’ evidence that the disease of latex allergy first manifested itself measurably after the respondent returned to work at the hospital in January 1999.

73 Nicholson DCJ said that Dr Mills diagnosed the latex allergy as existing in about January 1999 (J160). It would be wrong to read this as a finding that such allergy was part of the respondent’s condition before her return to the hospital. In fact, Dr Mills’ report following the consultation on 12 August 1999 (above) used the expression “over the last 6 months” as the period of worsening of symptoms.

74 It will be seen from J161, that an issue had arisen as to whether the respondent’s latex allergy was work-related or atopic. There was also a suggestion that the respondent’s illness derived from some encounter with latex during the operative procedure undergone in 1998. The overwhelming weight of medical opinion supported the conclusion that the condition was work-related and had arisen directly from the respondent’s exposure to latex in the hospital environment (see J166-170). This in itself is no longer in dispute.

The limitation defence

75 The appellant correctly accepts that it bore the onus of establishing the limitation defence that it raised, invoking s151D(2) of the Workers Compensation Act 1987. That sub-section provides:

A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.

76 The respondent sued in negligence, identifying the relevant damage as being that:

The Plaintiff developed a life threatening sensitivity to latex whilst in the employment of the Defendant.

The respondent’s case was that this occurred in 1999, ie within the limitation period for proceedings commenced on 19 November 2001.

77 In this Court, the appellant submitted that this pleading tendered a single cause of action that did not embrace the possibility of a condition that arose earlier but was exacerbated by tortious conduct in 1999. I do not agree, although nothing turns on this because the trial judge was correct in finding that the relevant “injury” first arose in 1999.

78 The appellant correctly points out that a cause of action for personal injuries of this nature is perfected when the plaintiff first suffers actual loss or damage that is “measurable” (Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 531) in the sense of going beyond what can be regarded as negligible (see generally Cartledge v E Jopling & Sons Ltd [1963] AC 758 at 772, Scarcella v Lettice (2000) 51 NSWLR 302). Time starts to run when such damage accrues, even if the plaintiff is not aware of it.

79 The limitation defence raised in the pleadings threw up the issue whether the symptoms of latex sensitivity experienced in 1997 were indicative of latex allergy or were otherwise such as to set the s151D clock running as regards the cause or causes of action sued upon. As indicated, the trial judge found that the respondent first developed the disease of latex allergy in 1999 and that this was a pathologically distinctive and much more serious illness than that of latex irritation experienced during employment at the hospital in the period 1995-1997. His Honour recognised that some of the symptoms experienced in the two periods of employment were the same and that exposure to latex was the root cause. But the nature and extent of the respondent’s symptoms amply supported the conclusion that a problem of a different order was encountered for the first time in 1999, albeit that it developed from the conditions of latex irritation and sensitivity first encountered in 1995-1997 that recurred in 1999 before progressing into the more serious illness.

80 The evidence showed that the risk of developing latex allergy was dose-related in the sense that longer and/or greater exposure could increase the risk of contracting the more serious condition.

81 The respondent may well have been sensitised to latex in consequence of extended periods of high exposure as a health worker before September 1997. Indeed, this is the gravamen of her complaint concerning the employer’s failure to heed the warnings in the Guidelines from the outset of her return in early 1999.

82 It does not matter that the symptoms that led the respondent to give up hospital work in 1997 may have qualified her for compensation. It is not law that a worker who suffers one injury can never recover compensation and/or damages for a separate injury or an aggravated form of that injury suffered later in the employment. Paris v Stepney Borough Council [1951] AC 367, cited by the trial judge, recognises that an employer may have heightened responsibilities with respect to employees that it knows or ought to know may have special vulnerabilities. These can include employees whose susceptibility to injury was increased during an earlier period of employment, whether or not due to negligence. Undoubtedly, there will be some conditions that represent the same injury, albeit that later events may be said to have exacerbated that injury. The findings in the present case show that a categorically distinctive injury was suffered in 1999. It follows that the primary judge correctly rejected the limitation defence.

Breach of duty causative of injury

83 The trial judge instructed himself in accordance with the well-known statement by Windeyer J in Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319:

For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or to adopt a means reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.

84 The passage shows that the issues of breach and causation are inter-related in that a plaintiff must establish on the probabilities that the omission complained of was unreasonable and would have prevented the injury.

85 Windeyer J’s reference to measures “reasonably open … in all the circumstances” reminds that at the end of the day the court must be positively satisfied that the defendant’s conduct was unreasonable judged in the light of the factors highlighted in the Shirt calculus (Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8). Simply because a foreseeable risk comes home does not establish unreasonableness.

86 What is reasonable in the employment context must not lose sight of the contractual arrangements (cf Koehler v Cerebos(Aust) Ltd [2005] HCA 15, 214 ALR 355). This does not, however, mean that an employer is freed of tortious responsibility merely by pointing to the injury or illness being a product of the employee’s contracted workplace tasks.

87 The contest focussed upon whether the respondent established that her employer unreasonably failed to give effect to the recommendations of the Working Party in the Guidelines.

88 The NIOSH alert, the Guidelines and the evidence of Dr Katelaris were at one in counselling a latex-safe, as distinct from latex-free, work environment. The medical evidence never suggested that the respondent was always so sensitive to latex that she would have developed latex allergy regardless of any precautions being taken at the Hospital.

89 It was never the respondent’s case that sensitivity to latex in January 1999 meant that she should not have been offered employment at the Hospital. Neither did the appellant contend for this proposition, although its pleaded case of contributory negligence edged close to it (see further below).

90 Furthermore, neither side complained or asserted that it was legally inappropriate for the respondent to have continued working after September 1999 under the modified conditions recommended by Dr Mills. The parties may have had opposing forensic motives in adopting this stance in relation to this period, but that is ultimately neither here nor there. The respondent’s verdict depends on a finding that negligence causative of loss occurred between January and September 1999.

91 The findings as to breach and causation were:

177. The phrase “in all the circumstances” used by Windeyer J in Vozza should be explored. Evidence has been led which places a contextual setting in which the Plaintiff’s injury occurred and which impacts upon the concept of what was required of the Defendant as a reasonable response. The uncontested context evidence is that 8% - 12% of healthcare workers have some level of sensitisation to latex. It was also uncontested that at least since 1995 latex allergy had been an emerging problem for healthcare workers. The bulk of the Defendant’s employees were healthcare workers. Research had revealed by 1998, and probably 1996, that nurses were particularly vulnerable. Many of the Defendant’s employees were nurses. Further, the uncontested evidence established that latex allergy arises upon exposure to latex, coupled with sensitisation to latex. Dr Mills, then an employee of the Defendant, and no doubt others within the Defendant’s personnel, knew that with the onset of time the immune response mounted by those with a predisposition to latex allergy could become greater and greater with the same exposure of latex. In its most dramatic form, the response can be fatal.
178. It is to be remembered, that the Defendant ran institutions, including the Plaintiff’s hospital, whose task was to be competent in knowledge of modern illnesses, including latex allergy. This knowledge while it may have been essential for the hospital’s medical treatment of patients with latex allergy, was not to be shielded from its employees, or its work-place treatment of its employees.
179. Two important publications, namely the NIOSH alert and Dr Katelaris’s Working Party Guidelines had highlighted the dangers to a clearly measurable group of healthcare workers of continuing exposure to latex and had offered useful advice on best practice for reducing risk to them.
180. The NIOSH alert had postulated the following propositions, which might be thought to constitute “best practice”:
• Latex allergy should be suspected in anyone who develops certain symptoms after latex exposure, including nasal, eye or sinus irritation; hives; shortness of breath; coughing; wheezing or unexplained shock.
• A physician should evaluate any worker who experiences these symptoms.
• Once a worker becomes allergic to latex, special precautions are needed to prevent exposures during work as well as during medical or dental care. Complete latex avoidance is the most effective approach.
• Provide workers with non-latex gloves when there is little potential for contact with infectious material – in the food service industry.
• Where latex gloves are chosen, provide reduced protein, powder-free gloves to protect workers.
• Ensure that workers use good housekeeping practices to remove latex-containing dust from the workplace.
• Identify areas contaminated with latex dust for frequent cleaning (upholstery, carpets, ventilation ducts, and plenums).
• Make sure workers change ventilation filters and vacuum bags frequently in latex-contaminated areas.
• Provide workers with education programs and training materials about latex allergy.
• Periodically screen high-risk workers for latex allergy symptoms. Detecting symptoms early and removing symptomatic workers from latex exposure are essential for preventing long-term health effects.
• Evaluate current prevention strategies whenever a worker is diagnosed with latex allergy.
181. The NIOSH alert also contained what might be called “best practice” recommendations for workers, which would reduce exposure and risk for the development of the allergy. These recommendations would no doubt have formed the basis of employer education programs and training materials about latex allergy.
[1-6, set out at par 51 above]
7. Follow your physician’s instructions for dealing with allergic reactions to latex.
182. The Working Party Guidelines spoke of good preventative strategies to minimise further latex sensitisation including:
• The introduction of powder-free gloves universally throughout medical facilities as immediately minimising sensitisation via the inhaled route.
• Purchasing only low allergen-containing gloves to minimise the risk of sensitisation through compulsory glove wear.
• The identification of high risk individuals in the health care setting so that specific counselling may be undertaken to lessen the individual’s risk of sensitisation.
183. The Working Party commented:
There are many gloves on the market and it is no longer acceptable to buy a glove because it costs less or an individual believes it feels better on their hands. There are Australian standards for both sterile and procedural examination gloves which address design.
184. The recommendations from NIOSH alert and the Working Party Guidelines make it clear that there were several reasonably inexpensive and non-disruptive measures that could be taken by, and means reasonably open to, the Defendant in all the circumstances to combat the proliferation of latex, a very real health hazard to nurses (including the Plaintiff) in its hospital.
185. At very least the hospital should have provided their nursing staff with education programs and training materials about latex sensitisation and latex allergy. Those programs and training materials should have identified for nurses, situations in which latex sensitisation could occur, the easily recognisable symptoms of latex irritation and sensitisation, and finally the potential consequences of latex sensitisation. Nurses should have been encouraged to report symptoms early. Those nurses who reported symptoms or were otherwise at high risk should have been counselled as to the dangers of sensitisation to latex and available alternatives. The hospital should have provided periodic screening of high-risk employees, including nurses exhibiting symptoms. Symptomatic workers should have been removed from latex exposure. The hospital should also have provided powder-free gloves to all staff to reduce air-born particles of latex. Employees involved in the preparation and service of food, and those employees involved in cleaning and environment type duties, wont to wear gloves, should have been encouraged to wear non-latex gloves.
186. Although the Plaintiff upon her return to the hospital in January 1999 began to re-experience her symptoms, and experience new ones almost immediately, she did not recognise the source or danger of her symptoms until mid-1999. Had there been a training or education program in place her situations may very well have been different. By June 1999 the Plaintiff was exhibiting a strong pre-disposition to latex allergy, the dimensions of which became more clearly apparent in August 1999. I am satisfied by June of 1999 senior employees at the hospital were aware of the Plaintiff’s sensitisation to latex. In that month she had requested power-free gloves because of her reaction to the latex powder. In August 1999 the Director of Nursing at the hospital referred the Plaintiff to Dr Mills. The significance of those symptoms has been reviewed above. On 16th September 1999 Dr Mills advised the hospital of his diagnosis of latex allergy. Senior staff at the hospital must, or at very least ought, to have known that further exposure to latex from June 1999 could have very serious health risks for the Plaintiff. Yet she continued to work in a latex-laden environment for a further nine months, and a further six months after diagnosis.
187. Moreover, the precautions to which I have referred above may have resulted in an earlier identification of the Plaintiff in January or February 1999 as a high-risk employee – that is, more than a year before her March attack. Counselling would have brought into focus the dangers to her of on-going exposure to latex. Further, the significance of the recurrence and worsening of her symptoms would have had much more meaning to her and the Defendant. Had the small selection of proposals recommended by the NIOSH alert and the Working Party Guidelines listed above, been implemented, they would have protected the Plaintiff from – or at very least minimised – the dangers of exposure to latex.
188. While there is no evidence before me, as a matter of common sense, the measures referred to above could have been implemented into the hospital with very little cost and not much more inconvenience to the Defendant. Given that 8% to 12% of health care workers, and perhaps higher percentages of nurses are at risk of becoming sensitised to latex at some level, it is astounding that the Defendant did not seek to implement these measures.
189. The Plaintiff relied upon Paris v Stepney Borough Council [1951] AC 367 as setting the appropriate standard of care owed by the Defendant to the Plaintiff:
… a workman suffering, to the employer’s knowledge, from a disability which, though it did not increase the risk of accident while he was at work, did increase the risk of serious injury if an accident should befall him, the special risk of injury was a relevant consideration in determining the precautions which the employer should take in the fulfilment of the duty of care which he owed to the workman.
190. The overwhelming evidence from the doctors establishes that continued exposure to latex is more likely to aggravate the immune response. The Plaintiff’s case is that a request for non-powdered gloves in June 1999 put the Defendant on notice of her sensitisation to latex. Certainly by August 1999 there was clear medical evidence that her symptoms were worsening on continued exposure to latex and in September 1999 there was a diagnosis of latex allergy. In those circumstances there is some merit in the Plaintiff’s argument that the potentiality for risk of serious injury is a relevant consideration in determining the precautions the Plaintiff’s employer should have taken in fulfilment of its duty of care to her.
191. On either of the defendant’s test, or of the Plaintiff’s test, the defendant has breached its duty of care to the Plaintiff. I’m also satisfied the Plaintiff’s injury was caused by the negligence of the defendant. Three of the particulars of negligence pleaded by the Plaintiff have been established.

130 The respondent’s ability to find work is severely restricted. The “cushion” award of $180,000 with respect to future income loss proceeded on the basis that the respondent’s actual working opportunities are likely to be about one-third of what they previously were. I see no error in this assessment.

131 If, as I have concluded, the findings on liability stand, then the appellant’s submission that the award for domestic assistance should be reduced from $6,500 to $5,000 should be rejected as a quibble unsupported by any argument beyond an invitation to visit the issue afresh. The submission to reduce the allowance for future out-of-pocket expenses from $18,000 to $5,000 is more substantial in amount, but not in weight.

132 The appeal should be dismissed with costs.

133 HANDLEY JA: I agree with Mason P.

134 YOUNG CJ in Eq: I agree with Mason P.

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