Larkins v G-Force Recruitment Pty Ltd
[2015] VCC 1097
•8 July 2015
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-04465
| DANIEL LARKINS | Plaintiff |
| v | |
| G-FORCE RECRUITMENT PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 6, 7 July 2015 | |
DATE OF JUDGMENT: | 8 July 2015 | |
CASE MAY BE CITED AS: | Larkins v G-Force Recruitment Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1097 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – allergic contact dermatitis
Legislation Cited: Accident Compensation Act 1985, s134AB(37) and (16)(b)
Cases Cited:Clark v Walter Mining Proprietary Limited & CGU Workers’ Compensation [2011] VCC 1343; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Forsyth v RLA Polymers Pty Ltd [2013] VCC 1777
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A E A Macnab with Ms R Dal Pra | Slater & Gordon |
| For the Defendants | Mr R H Stanley QC with Ms M S Tait | Wisewould Mahoney |
HIS HONOUR:
1 This is an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The plaintiff seeks leave in relation to pain and suffering damages only. Reliance is solely placed upon sub-paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act. The impairment in question is to the skin, the plaintiff alleging he suffers from allergic contact dermatitis in the form of an allergy arising particularly from exposure to epoxy resins.
2 The impairment of the skin was the subject of some discussion by counsel in submissions. Leading counsel for the plaintiff tendered in evidence an extract from Chapter 13 of the AMA Guides, Part IV, for Permanent Impairment with respect to the skin. Leading counsel for the defendant made no particular submission with respect to the applicability of the impairment of the skin for this particular injury.
3 It is noted that in a decision of his Honour Judge Bowman in the matter of William Clark v Walter Mining Proprietary Limited & CGU Workers’ Compensation[1] dated 29 September 2011, it was conceded by counsel for the defendant that in a case of allergic contact dermatitis, impairment of the skin is the appropriate heading. In any event, the extract recites as follows:
“13.3 Structure and Functions
The components of the skin and its functions are shown in Table 1. The functions of the skin include (1) providing protective covering; (2) participating in sensory perception, temperature regulation, fluid regulation, electrolyte balance, immunobiologic defenses, and resistance to trauma; and (3) regenerating the epidermis and its appendages.”
[1][2011] VCC 1343
4 I this particular case, I consider it appropriate that the function of the skin is to participate in immunobiologic defences.
5 Further, that extract recites:
“Permanent impairment of the skin is defined as any anatomic or functional abnormality or loss that persists after medical treatment and rehabilitation and after a length of time sufficient to permit regeneration and other physiologic adjustments. A permanent impairment is unlikely to change in the near future. Impairments may relate, for instance, to immunobiologic defenses against microorganisms or to alterations of sensory perceptions because of systemic disorder. … .”
6 There seems to be no contention in this case that the injury of allergic contact dermatitis is in fact a systemic disorder. Further, the Table appended to the particular chapter recites that “the epidermis of the skin provides a barrier against ... chemicals” and that its “perturbations” include “contact dermatitis”.
7 “Perturbation” is defined as:
“A deviation of a system or process from its regular or normal state or the path caused by an outside influence.”
8 In my view, the concession by counsel in the case of Clarke was appropriately made, and I intend to proceed on a similar basis in this matter.
Legal Principles
9 In order to make out “serious injury” within paragraph (a) of the definition in s134AB(37) of the Act, the plaintiff must establish that he has suffered a permanent serious impairment or loss of a body function, and relevantly, that the consequences to him in terms of pain and suffering when judged by comparison with other cases in the range of possible impairments or losses of a body function are fairly described as being “more than significant or marked” and as being “at least very considerable”.
10 The Court must consider the impairment of a body function suffered by the particular applicant, but the test also requires an objective comparison between the impairment suffered by the applicant and the range of possible impairments. On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment.
11 In submissions advanced by both counsel, it was postulated that a contact dermatitis case would not satisfy the tests with respect to pain as set out in the well-known principles of Haden Engineering Pty Ltd v McKinnon[2] and the case of Kelso v Tatiara Meat Company Pty Ltd.[3] In the former, it was stated that the pain and suffering consequences of injury encompass the plaintiff’s experience of pain and the disabling effect of the pain on the plaintiff’s physical capabilities, including capacity for work, and enjoyment of life. The intensity and frequency of the pain must be assessed in the light of the plaintiff’s evidence which may be affected by the Court’s assessment of the plaintiff’s credibility, the treatment received and the medical evidence and the objective evidence about the disabling effect of pain.[4]
[2](2010) 31 VR 1
[3][2007] VSCA 267
[4]Haden Engineering Pty Ltd v McKinnon (supra) at [71]
12 Further, generally, the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a very considerable consequence”.[5] However, the whole of the evidence before the Court should be considered, not just the medical evidence.[6]
[5]Kelso v Tatiara Meat Company Pty Ltd (supra) at [99]
[6]Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605 at paragraph [18]
13 Apart from the capacity for work, assessing the extent to which pain interferes with the ordinary activities of life will generally involve consideration of its effect on the plaintiff’s sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[7]
[7]Haden Engineering Pty Ltd v McKinnon (supra) at [16]
14 It was advanced by leading counsel for the defendant, and I accept, that some weight must be given when considering the pain and suffering consequences of the plaintiff’s impairment are at least very considerable, to the adverb “very”.[8] Each case has to be determined in the light of its own facts.
[8]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [44]
15 Further, it was submitted by leading counsel for the defendant, and I also accept, that the significance of what the plaintiff has lost which bears upon the seriousness of consequences may be informed to an extent by what is retained.[9]
[9]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
The issues
16 Leading counsel for the defendant has submitted that the relevant threshold has not been met in this case because, at best, the debilitating, acute episodes of dermatitis occur four to five times per year, with recovery taking approximately four to five days per episode.
17 Counsel then further submits that apart from these approximately 20 to 25 days of debilitation, that the rest of the plaintiff’s life is basically normal and he has retained a capacity to enjoy a wide range of social and professional activities, including design for his current employer, Powercor, and engaging in sports such as snow skiing, et cetera.
18 Leading counsel for the plaintiff, on the other hand, contends that the pain and suffering consequences are not limited to the acute episodes referred to, but involve the considerable loss of enjoyment of life that the plaintiff has to endure because of avoidance strategies with respect to the permanent underlying condition.
The medical evidence
19 The defendant has had the plaintiff examined by two dermatologists, being Dr Berger on or about 14 April 2014, and Dr Segal on or about 11 November 2014. Both reports of those dates were tendered in evidence by the plaintiff.[10]
[10]Exhibits J and K
20 Dr Peter Berger, in his report, took a history that the plaintiff had worked for around three years as an apprentice electrical fitter for Bob White Electrix. His work included fabricating generators and involving himself in mixing epoxy resin and hardener in a bucket whilst wearing disposable latex gloves. He also needed to take rotors apart and balance them. At that time, he developed rashes on the flexor aspect of both forearms and the periorbital skin on the face. At the consultation, the plaintiff stated that he still developed episodes of mild rashes, for example when he passes a panel beating shop or somewhere where a property might be being renovated.
21 If he develops a rash, he takes a combination of oral steroids and antihistamines which settles things down quite quickly. He claims to have had about five episodes in the last twelve months. His other concern is that he has erythema of the upper eyelids which persists. In the course of the hearing, I was invited to examine the plaintiff’s eyelids and I can confirm that to the lay eye there is an underlying, mild inflammation of the eyelids. Mr Berger examined the plaintiff and confirmed that he had mild erythema of both upper eyelids.
22 At that time, he considered the condition was stable and it was appropriate to assess him for permanent impairment, as a consequence of the injury. Dr Alan Segal, the dermatologist, took a history on 11 November 2014, consistent with the evidence in the case. He noted that, despite intermittent treatment, the problem recurred and the plaintiff finished his apprenticeship in July 2008. He noted that, for one year thereafter, he was unable to obtain employment; however, since 2010, he had been working for Powercor as a technical officer, mainly in the office, but about ten per cent of the time carrying out surveys of electrical fittings.
23 When he carries out this latter work, he is in the proximity of epoxy resins and a flare-up of his skin condition occurs. Even when he is not in his work environment, he related to Dr Segal that he has constant irritation of his eyelids when he is exposed to an epoxy resin. Exacerbation of his condition occurs outside his work environment when he comes in contact with epoxy, such as when passing industrial sites and also walking into a Bunnings store. His main problem appears to be itchiness around his eyelids. He describes as having flare ups of his condition about four to five times per year, which lasts four to five days.
24 The plaintiff also described that, occasionally, stressful times cause a mild flare-up of his condition. He further recited that, during Australian holiday times, not much of an improvement had been noticed. Once again, on examination, Dr Segal noted a moderately severe eczema around his upper and lower eyelids and some mild eczema in the right axillar. The plaintiff also related that the visual appearance had subjectively diminished his self-confidence and has caused some embarrassment in social situations. Dr Segal further stated:
“There is … [no] doubt that epoxy in his current work environment is widespread and he does find difficulty in avoiding epoxy resins in the general community.”[11]
[11]PCB 73
25 He further stated:
“From … [the plaintiff’s] description it may be very difficult for him to completely avoid epoxy resins in his work environment unless he completely avoided contact with these. Some improvement might be achieved by not doing the onsite inspections but from his description of his work environment it may be difficult to completely avoid epoxy resins.”[12]
[12]PCB 73
Consequences
26 The plaintiff is currently aged twenty-seven, having been born on 15 February 1988. He is married to Sally Forman and together they have a young child. The plaintiff completed Year 11 at Corio Bay Senior College before commencing an apprenticeship with Bob White Electrix between January 2005 and July 2008. He had been offered this apprenticeship prior to completing school and he was impressed by the proprietors of the business for their passion and interest in the job. The apprenticeship was in armature winding which included servicing, repairing, overhauling and testing electrical generators and motors.
27 The plaintiff said in evidence that he loved this particular job and he had ambitions of developing expertise in larger electrical engines involving, in particular, the mining industry and wind turbines. It appears that he was a highly valued employee and the employer, Mr Michael White, was highly complimentary of his application during that period. In particular, when asked how the candidate would be remembered by the company, he stated:
“Good kid, shattered that he left. We would of definitely kept him on after his apprenticeship.
And further:
“[He] left as he developed an allergy to epoxy resin. Although we tried to keep him through various different avenues … [this was not successful].”[13]
[13]Exhibit A, reference from Bob White Eletrix
28 The plaintiff, for his own part, stated in his affidavit,[14] and also in cross-examination, that he was devastated by the loss of his job. Under a searching cross-examination, he conceded that he was earning in excess of $90,000 per annum in his current job, but he had been deprived of the hands-on field work that had been involved in that industry and is, in fact, curtailed in his present industry. Previous to his disability, he had ambitions of moving on into more complicated electrical systems involving heavy mining equipment and wind turbine equipment.
[14]Exhibit C, affidavit of the plaintiff affirmed 23 May 2014 at paragraph [13]
29 After finishing his apprenticeship prematurely in July 2014, he unsuccessfully sought alternative employment. In approximately January 2009, he obtained labouring employment with an organisation. He then decided to undertake further education and enrolled in the advanced diploma in electrical technologies at RMIT, Epping campus. He combined this with part-time casual employment.
30 It was during this time he took up a traineeship in distribution design with Powercor. He discontinued his electrical technology studies and undertook a traineeship. He commenced with Powercor in around January 2010. That period of training took approximately three years and he continues to be employed by Powercor as a distribution designer.
31 As recorded, the plaintiff stated that he had gained tremendous satisfaction from his earlier hands-on training, and although he has found satisfactory alternative employment in the remunerative sense, he states he does not get the same sense of satisfaction he did carrying out his armature winding work, both in the workshop setting and on various job locations. I accept this evidence.
32 Further, he stated that if he is exposed to epoxy based materials, he suffers a significant worsening of his condition and experiences a painful and itchy rash on his arms and face and which can spread to his chest and back. When this happens, he takes medication, including antihistamines, steroids and cortisone cream.
33 The plaintiff states he experiences a constant irritating light itch in both his eyelids which can turn into a very painful condition on exposure to epoxy based products. He even finds perspiring caused by exercise can worsen the condition in his eyes. In evidence before me, he stated that the acute irritation feels like ants biting his eyes. His wife, in her affidavit,[15] stated that when the plaintiff is suffering an acute exacerbation, he describes the pain to her as “he wants to scratch his own eyeballs out because he can’t stand the pain they are in”. The plaintiff’s wife was not required for cross-examination and I accept her evidence in this and in other matters.
[15]Exhibit D, affidavit of the plaintiff’s wife affirmed 19 December 2014
34 The plaintiff has further sworn that as a result of his injury, he has to be careful of exposure to epoxy based products and this has included various household products, glues and automotive products. He finds that any form of inadvertent exposure will result in a worsening of his symptoms. Apart from the medication he requires from time to time, he continually uses a range of moisturising creams and skincare products to try and repair the damage to his skin.
35 Further, he states that the injury has caused him to suffer a “very considerable lessening of self-confidence”. Prior to his injury, he said he was looking forward to continuing his career in the electrical industry and a very positive approach to life in the future. He says he is now far less confident about his future and worries about the symptoms leading to further restrictions in the future.
36 In particular, in comparing what has been lost to that of what has been retained, he stated, without contradiction, that prior to suffering his injury, he had been a very hands-on person. He was only about twenty when he suffered the injury. At that stage, he enjoyed working on cars and had plans to undertake building and renovation type work in the future, in addition to his normal work. As a result of suffering the injury, he has not been able to pursue these hobbies and interests, and his ability to undertake basic home maintenance and painting is now very limited.
37 The plaintiff is constantly having to undertake risk assessments of the environment that he is entering and whether he is likely to be exposed to any sort of resin, paints or glues. He states he needs to avoid going to places like Bunnings, as when he does, he “generally suffers from a flare-up”.
38 In particular, in recent times, he had to move out of the family home for a few days after a room was painted for his first unborn child. He states that prior to suffering injury, he would have undertaken the painting himself. It upsets him that he is not able to do this, and he further notes that even though the paint was dry when he returned to home, he still suffered from a flare-up.
39 Further, in his present job, he is not able to be involved underground, because there is a risk of him being exposed to the resin-based joints of electrical cables. This activity causes a flare-up, such that he suffers severe eczema around his eyes and down his cheeks. He also suffers from fatigue and sleeplessness when he experiences those flare-ups. He also finds difficulty working due to the suffering from a flare-up and he has a subjective belief that people think he may have been using drugs or suffering from a hangover when he is at work.
40 In particular, the plaintiff swore that on Saturday, 4 July 2015, he was giving a niece of his a cuddle as she was wearing a plastic tiara. He learned later that that tiara had previously broken and had been repaired using Super Glue. Later that night, he began to experience painful itching in his eyes. By the following Sunday morning, as well as the painful itch, the eyes had swollen and became inflamed.
41 Further, he states at the start of that day, he had difficulty in opening one of his eyes. He considers the only substance he could recall having been exposed to was in fact the Super Glue used to repair the tiara. The following Monday, 6 July 2015, photographs were taken of his eyes and exhibited to the affidavit sworn the same day. In my view, the photograph appended thereto corroborates the plaintiff’s assertions.
42 The plaintiff’s wife, in her affidavit, stated that she has known the plaintiff since high school and that they started dating around 2005. They were married in October 2012. She states that the couple have had to change their lifestyle to accommodate his allergy. They cannot use normal household and maintenance products like glue, paint stripper, paint and varnish. She states that that meant that every time something needs fixing around the house that the plaintiff could have carried out himself prior to his chemical exposure, they now have to pay someone to get it fixed and vacate the house while the work is done. She further noted that when they wanted to get the house floors replaced, they had limited options, as most floors are laid using glue which is, of course, anathema to the plaintiff.
43 The plaintiff’s wife further notes that when he experiences a flare-up of his condition, he suffers from migraines, sweating, dizziness and mood swings and he breaks out with acne over his back. She states that these symptoms were never present before the injury. She states that he cannot attend other people’s garages or pick up work vehicles from workshops or mechanics. She confirms that, when walking into a Bunnings store, it puts him at risk of suffering an allergic reaction. Further, she stated that, during their wedding ceremony, he had to wear make-up, because he had suffered a flare-up of his condition at that time.
44 The plaintiff’s wife cites other examples, including attending a day at the car races where she and the plaintiff were given pit lane passes. She noticed that her husband had to stay well away from the pits all day, because his eyes had started to itch. By the end of the day, she stated he was in agonising pain, simply as a result of a two-minute look at the pit garage entrance. She was unable to enjoy the experience with her husband. Further, she states that the plaintiff tends to not complain and, “He suffers in silence”.
45 The plaintiff’s wife states that often he will put up with pain and discomfort so he does not experience the side effects of his medication. She states it is horrible watching him to be in pain:
“… I feel so helpless and even guilty for not being able to make the pain stop. I can’t even give him a hug to try and make him feel better because I risk things like a bit of my hair accidentally tickling his eyes which aggravates the pain even more. … .”[16]
[16]Exhibit D, affidavit of the plaintiff’s wife affirmed 19 December 2014, PCB 28
46 Further, she states that he is a different person when he takes the medication. It causes him to be depressed and, at times, moody. She further states that the medication also causes acne breakouts over his back, which is uncomfortable and unsightly, and he is upset and embarrassed by this.
47 The plaintiff was treated by Dr Rosemary Nixon, dermatologist, who stated, on 14 January 2014:
“Epoxy resins are usually easy to avoid as they are not generally part of day-to-day life exposures. I would have expected that the prognosis for his dermatitis was excellent, as his skin had already improved by the time he attended the clinic.”[17]
[17]Exhibit H, PCB 57
48 However, she also stated in the same report:
“I would expect that he would have no capacity for pre-injury work because he was allergic to epoxy resins which were difficult to avoid in that workplace.”[18]
[18]Exhibit H, PCB 58
49 Appended to her report was a printout from the Occupational Dermatology Research and Education Centre in Carlton. That publication recites:[19]
“Unfortunately, no de-sensitisation is available for this type of allergy. Avoidance is the key.
...
If a person cannot work without developing the rash, then either job modification or a change of duties is recommended.”[20]
[19]Exhibit H, PCB 65
[20]Exhibit H, PCB 65
50 It is further stated:
“[He] will probably remain allergic indefinitely or at least for many years.”[21]
[21]Exhibit H, PCB 66
51 More telling, in my view, is the prevalence of the epoxy resins as quoted in the document. It is recited therein as follows:
“Epoxy resins may be found in:
1.Adhesives and glues: - particularly glues needing 2 tubes like AralditeÔ.
There are many uses in industry, like:
-gluing metals; - ceramics; - waterproofing; - flooring; - fibreglass; - shoes.
...
2.Paints and varnishes: come in one or two parts - consult label or manufacturer for details.
●used to coat hard surface (like ships);
●as a rust-proof primer;
●some powder coatings (resin), which are often cured by heat.
3.Other surface coatings, which usually require mixture of a resin and a hardener – e.g.:
●industrial floor coatings, especially used for chemical-resistant services.
●aircraft coatings and
●automotive body repair;
●re-coating old bathrooms (bath, tiles, wash basins, etc);
●pipe, tank or drum linings;
●bridge coatings;
●flame retardants;
●marine equipment.
4.Electrical insulation materials: - epoxies used to prevent conduction of electricity:
●widely used for transformers capacitors, coating electrical motors and coils;
●pre-impregnated (‘prepreg’) glass fibre used for electronic circuit boards;
●mostly relevant in industry, but electronics hobbyists may be at risk.
Construction and other industrial uses:
●athletic equipment (eg ski poles, bows, fishing rods);
●laminates (structural, electrical, fibrous reinforcements);
●epoxy cements, mortars and road building materials for quick drying and strength;
●for mending cracks in concrete;
●flooring and wall materials - often prefabricated (also in some anti-slip steps);
●epoxy with fibreglass or wood – eg boat building;
●carbon fibre composite manufacture, eg for aircraft manufacture;
●tool handles, tooling and die casting.
5 Medical equipment:
…
6. Other:
● artificial fingernail hardeners;
● printing inks (some)
● some spectacle frames;
●PVC (vinyl) products – eg handbags and plastic necklaces, plastic panties, watch straps (epoxy resins used as a stabiliser and plasticiser in making PVC film);
●gemstone polishing;
●artistic work and sculpting;
●neutron shielding materials.”[22]
[22]Exhibit H, PCB 66 and 67
52 The publication goes onto say how most glove products are inadequate for the purpose.[23]
[23]Exhibit H, PCB 66 and 67
Findings
53 I accept that the frequency and severity of the pain does not fit the formulae perfectly set down by Haden and Kelso; however, I note in other decisions of this Court, in particular, the matter of Clark mentioned earlier, and in the matter of Forsyth v RLA Polymers Pty Ltd[24] of 18 November 2013, that this Court has approached an allergic contact dermatitis as qualifying for the very considerable test on a factual situation where there is a large degree of avoidance of the precipitating irritant.
[24][2013] VCC 1777
54 In particular in this case, I accept that the plaintiff has been precluded from his preferred choice of occupation, that of being involved with electric motors to the extent of the sophisticated equipment used in mining and in wind turbines.
55 I accept that he has been prevented from engaging in normal household activities such as maintenance and refurbishment that a young husband with a young child could normally be expected to participate in, and in particular, for this particular plaintiff, as attested to by himself and his wife.
56 I accept that he is precluded from engaging in a wide range of hobbies to do with motor vehicles and with all matters of environments that relate to mechanical activity. In all the circumstances, I consider that he has satisfied the very considerable test laid down by statute and leave will be granted accordingly.
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