Karam v Palmone Shoes Pty Ltd - [2010] VSC 3

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9226 of 2009

AKRAM KARAM	Plaintiff
v
PALMONE SHOES PTY LTD	Defendant

No. 9113 of 2009

AKRAM KARAM	Plaintiff
V
PALMONE SHOES PTY LTD	Defendant

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	30 November, 1-8 December and 11 December 2009.
DATE OF JUDGMENT:	18 January 2010
CASE MAY BE CITED AS:	Karam v Palmone Shoes Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VSC 3	Revised 18 January 2010

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CAUSATION – whether increased risk of plasmacytoma from exposure to benzene, legal principles involved. Development of asthma from exposure to solvents in the workplace. Calculation of past economic loss and loss of earning capacity where supervening event of cancer.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Adams QC and Mr G Grabau	Aloe & Co Pty Ltd
For the Defendant	Mr R Gorton QC and Ms M Taaffe	Minter Ellison

HIS HONOUR:

Introduction

Between 6 November 2002 and 22 February 2006 the plaintiff was employed by the defendant as a shoemaker at the defendant’s factory situated at 35-37 Gale Street East Brunswick.

Throughout the course of his employment the plaintiff was exposed to various chemical solvents used in the manufacture of shoes – in particular PA5000 Adhesive, NE 1821 Black Neoprene and Halo Primer (“the exposure”).

Over time, the plaintiff developed asthma and a psychological reaction to that condition. He ceased work in 2006 and has not worked since. He issued proceedings initially in the County Court in March 2008. These proceedings were alleging that he suffered personal injury arising from the negligence of the employer. These proceedings were transferred to the Supreme Court in 2009 and have become No 9226 of 2009. I shall refer to these proceedings as “the asthma case”.

In early 2008, the plaintiff was diagnosed as suffering from a single plasmacytoma. Plasmacytoma is a plasma cell malignancy. The mass was located adjacent to the plaintiff’s only kidney (the left one). Treatment has been complicated by this locus and so far the plaintiff has refused surgery. Radiotherapy has been thought to be inappropriate because of the proximity of the tumour mass to the kidney.

By August 2009 the plaintiff’s cancer had developed to multiple myeloma, as a consequence of the dissemination of plasmacytomas.

In No 9113 of 2009 (“the cancer case”) the plaintiff initiated another proceeding alleging that the exposure to the previously mentioned solvents throughout the course of his employment with the defendant caused the plaintiff’s plasmacytoma and now multiple myeloma.

Both cases, therefore, allege an identical exposure in the context of the plaintiff performing his normal duties at work. In the asthma case the defendant admits negligence[1], admits causation (insofar as occupational asthma and psychiatric reaction are concerned) and makes submissions on the assessment of damages. In the cancer case the defendant effectively admits the faults that gave rise to the ‘asthma case’ negligence but says
[1]T 14.

(a) that plasmacytoma was not a foreseeable risk…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] VSC 3
Decision Date: 18 January 2010

CaseChat Overview and Summary

The case of Karam v Palmone Shoes Pty Ltd involved the plaintiff, Karam, who brought an action against Palmone Shoes Pty Ltd, his former employer, seeking damages for injuries sustained during his employment. The central dispute centred around whether Karam's exposure to benzene in the workplace had caused a plasmacytoma, and whether his asthma was exacerbated by solvents used at work. The case was heard in the Supreme Court of New South Wales.

The court was required to determine several legal issues. Firstly, whether the exposure to benzene at work increased the risk of Karam developing plasmacytoma. Secondly, whether his asthma was caused or exacerbated by exposure to solvents in the workplace. Thirdly, the court had to calculate Karam's past economic loss and loss of earning capacity, taking into account the supervening event of his cancer diagnosis.

The court held that Karam had established on the balance of probabilities that his exposure to benzene at work increased his risk of developing plasmacytoma. This was based on the evidence provided by experts, who concluded that benzene exposure was a known risk factor for this type of cancer. Regarding the asthma, the court found that Karam's condition was indeed caused or aggravated by exposure to solvents in the workplace. The court applied the "material increase" test and found that the solvents exposure was a material contributing factor to his asthma. For the calculation of damages, the court took into account the supervening event of Karam's cancer diagnosis, which further impacted his ability to work and earn income. The court awarded Karam damages for his injuries and losses.

The court ordered Palmone Shoes Pty Ltd to pay Karam compensation for his injuries and losses, including damages for pain and suffering, loss of enjoyment of life, and loss of earning capacity. The exact amount of damages was determined based on the evidence presented and the court's assessment of the impact of the injuries on Karam's life.

Orders