| 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 |
---
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 |
---
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.
---
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…
Keep reading for free
Create a free CaseChat account to read Karam v Palmone Shoes Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2010] VSC 3
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.