Stock v Exalso Pty Ltd & Anor No. DCCIV-98-314 Judgment No. D89

STOCK v EXALSO PTY LTD & ANOR
[1999] SADC 89

Acting Judge Taylor
Civil

The plaintiff brings these proceedings claiming that he has suffered injury to his hands and as a result of that injury he has sustained a loss of working capacity and it has also adversely affected his enjoyment of life. In his statement of claim he states as follows:
“1..... At all material times the plaintiff was undergoing a training course in detailing motor vehicles.
2.At all material times the defendant was a company carrying on the business of car detailing at 109 Angas Street, Adelaide in the State of South Australia (“the premises”).
3...... On or about the 28th day of August 1995, the plaintiff commenced to be trained in car detailing (“the training”) by the defendant at the premises.
4.As a part of the training of the plaintiff by the defendant, an employee of the defendant, whose name is unknown to the plaintiff, taught him what chemicals to use to clean different parts of motor vehicles.
5...... In or about the beginning of October 1995, after washing a motor vehicle at the premises, the plaintiff put his hand into what he thought was a bucket of water (“the bucket”) which in fact was acid solution (“the accident”).
6.The accident was caused by the negligence of the defendant.

PARTICULARS OF NEGLIGENCE
7.The defendant was negligent in that it:-
7.1... failed clearly or at all to label the bucket indicating that it was
dangerous;
7.2... failed to label the bucket clearly or at all that it contained acid;
7.3 failed adequately or at all to supervise the plaintiff in his training as a car detailer;
7.4... failed to warn the plaintiff that the bucket contained dangerous acid solution.
8...... As a result of the accident the plaintiff sustained injuries.

PARTICULARS OF INJURIES
9...... The plaintiff was born on the 26th day of August 1964.
9.1    The plaintiff sustained injuries including burning of his hands.
9.2... Subsequently, he developed blisters, swelling and redness of
the hands.
9.3... As a result of the accident the plaintiff suffered hand dermatitis. Subsequently, he developed a drying and peeling of the skin of the hands. The plaintiff was treated at the Casualty Department of the Queen Elizabeth Hospital with oral promethazine and topically applied hydrocortisone cream.
9.4    The plaintiff continues to suffer itchiness and peeling of the hands and continues to require indefinitely into the future topically applied hydrocortisone cream.
9.5... The plaintiff’s enjoyment of the amenities of life have been adversely effected in that he cannot involve himself in any past time or sport which involves his hands becoming wet or involving the use of chemicals.
9.6    The plaintiff has suffered a loss of working capacity. In particular, he is unfit for any occupation involving the use of chemicals.
9.7... As a result of the injuries he sustained, the plaintiff has incurred special damages, details of which will be supplied prior to trial.
AND the plaintiff claims damages.”

The plaintiff is aged 34 years and he was educated at Parks Community Centre to first year at age 15 years.
From about the age of 18 years until he was 28 years of age, he has had a history of criminal offending and convictions such as receiving, break enter and larceny, illegal use, and some offences relating to marijuana. He has served various times in custody over the years.
In between at times he has been employed for varying lengths of time from 12 months to a few weeks and until recently received unemployment benefits most of the time.
At about the age of 28 years he decided to turn his back on his old life and make a fresh start. Unfortunately some years after that decision he was convicted of driving a motor vehicle while under the influence of alcohol and he lost his licence for a period. He was then convicted for driving whilst under suspension on at least two occasions and spent a further time in gaol for those offences.
Generally his employment history has been as follows.
At age 15 years worked for his grandfather’s furniture factory puttying up little holes and then left as effected by fumes from the lacquer sprays and he stayed there for about two months after which he spent a term in gaol.
At age 18 he worked for Pacific Salts at Dry Creek, Port Adelaide and he was working an electric hand truck loading salt and with a forklift in the store for a while and worked there for about six months after which, again, he spent a period in gaol.
In his early 20s he obtained a job sandblasting on large projects at a factory and stayed there for three months and then spent a further period in gaol.
Before 1989 he did some grape picking and hay baling. He also had some work at Christan Car Cleaners in about March or April of 1995.
In 1995, the plaintiff was unemployed for most of the time and his case worker was at the CES at Kilkenny.
It was decided at the CES that some long term unemployed would be offered the chance for work experience. To achieve this, the CES entered into an agreement with Keith L Reynolds & Associates Pty Ltd to make all the arrangements.
For the matters I am concerned with in this trial I will only cover the work arrangements and the work carried out by the plaintiff.
Mr Keith Reynolds of Keith L Reynolds & Associates Pty Ltd had had discussions with Mr Alfred Hassan who was the managing director of “Exalso” and that company traded under the names of “Adelaide Tru Seal” and “Nordic Car Care” and of course it was through Adelaide Tru Seal that the plaintiff was working.
They had these discussions as a precursor to placing trainees with the manager of Tru Seal, Mrs Newton, and they for that purpose underwent a safety instructions course.
Two unemployed were offered these courses both the plaintiff and a person called ‘Tony’.
Before going to work they had to undergo a safety and industries course conducted by Keith L Reynolds and Associates.
The plaintiff commenced the course on the 17th August, 1995, by attending the first course of safety and other matters conducted by Keith L Reynolds & Associates.
By noon of that day the plaintiff stormed out of the session when he learned he would have to wait payment until he had finished his first week of the course and he then went to the CES demanding that he receive his usual CES payment that day. This was arranged for him to receive the payment and the work for the plaintiff was to be with ‘Tru Seal’.
The Nordic group of companies were in Angas Street generally, at that time, under the control of Mr Hassan. In that group of companies was one Exalso Pty Ltd and that company traded under trading names both in a large group of shed type buildings at 109 Angas Street as ‘Adelaide Tru Seal’ and ‘Detailers’.
Those two trading concerns were within the same shed, but at different ends of the premises and they were separate entities and had their own employees and had different functions.
Tru Seal dealt mainly with new cars or cars for sale by undersealing the body and panels with rust proof and Tru Seal procedures treat the seats with Tru Seal products and Tru Seal products onto the body work. It also dealt with systems of window tinting.
The larger of the two companies was the Nordic Detailing. It treated cars for any customers mostly fairly new by detailing them, that is to bring them up to as near new a condition as possible.
The manager of that section was Mr Emery and he had been in that position for some twelve years.
In that division they ‘buffed cars’ and if cars had almost microscopic rust marks on the paint work, ie from being near railways lines etc, these embedded particles were removed by first washing the paint work with an oxalic acid wash.
This wash was prepared by mixing about a cup full of crystals in a bucket of warm water.
The car would be washed with this solution using gloves; sometimes the technician would have holes in his gloves and the acid wash would run down his glove or sleeve and after finishing the wash he would rinse off the parts of himself where the oxalic acid wash had touched.
The wash apparently had some form of detergent in it as it froths to start with, but then became an almost opaque brown colour with a distinct odour.
Generally only the detailing division did the acid wash.
It was not often required in the Tru Seal division where the plaintiff and Tony were employed.
The plaintiff started in the Tru Seal division on 28th August, 1995.
His duties were to assist the permanent operators in the division under Karen Newton. The plaintiff was mostly required to coat the fabric seats with a Tru Seal procedure and he objected to the fumes given off by that product and asked for masks.
I find that there were adequate masks and gloves available within the two divisions and the plaintiff subsequently after treating the seats say he got used to getting high on the fumes. He also helped to dismantle the door lining to allow Sal Delgaudio to spray inside the panels with Tru Seal.
The plaintiff says that he noticed a black mark on the paint work after some work he had done, that is I presume putting the Tru Seal product to seal the paint work, and he had decided to wash it off. He picked up a sponge from the bench, plunged the sponge into what he believed was a bucket of water, wrung the sponge out with both hands and then noticed a burning sensation on his hands.
The plaintiff said that Sal Delgaudio, the undersealer, nearby said “you must have put your hands in the acid wash” and said “wash it off under the tap”. The plaintiff said he did.
Sal Delgaudio tells a different story.
Sal describes the incident as follows. He says that he was giving a car an acid wash with the oxalic acid and that Mr Stock knew quite well what he was doing in performing the wash with the acid on the car and after leaving the wash on for some ten minutes the plaintiff was then to wash it off with a hose. Sal says that Mr Stock then put his hand in the same red bucket of acid wash thinking to wash off the acid with that mistaking it for a bucket of water.
There is no evidence that buckets of water were there for that purpose although Sal does accede to that proposition when it is put to him. His evidence is as follows. Sal did not mix the granules in with the water. He knew of the red bucket containing the oxalic acid wash and knew where that was kept and used it on the occasions when it was necessary for him to remove the residue from the car that required such a wash. He acknowledged that the bucket of wash had a distinct smell about it even although it might be slight and anyone walking up to the bucket would be able to tell just by the smell that it was the acid wash and not water. When he was asked had the plaintiff been told of the acid wash and its effect on skin, although mild on most of the people’s skin, he said:
“A.... All I know is that I would have told him to be careful of the acid, yes.
Q.So you told him.
A...... I’ve told him, yes..
Q.And you would have told him right from the start when he started to work for you, correct.
A...... I would have told him when we did an acid wash, yes.
Q.The bucket that we are talking about is a bucket that you were using at the time, correct.
A...... Correct.
Q.And had you finished applying the acid wash to the car.
A...... Just about, yes.
Q.You told us that it was sensible, or I don’t think you used that word, or it was desirable to wear gloves when you applied the acid wash.
A...... Yes.
Q.And the procedure if you did happen to get any of the liquid acid wash on your skin was simply to go and rinse it under a tap, wasn’t it.
A...... Correct.
Q.And I suppose, from time to time, in applying acid wash to cars you did get some on your skin.
A...... Yes.
Q.And would you then just go and rinse it under a tap.
A...... Yes.
Q.And there would be no difficulty,
A...... For me, no.”
He confirms that it is necessary to wear gloves when applying the acid wash, but he said for the other work that Mr Stock was performing that is spraying on the Tru Seal products to clean the fabric of the seats the floor mats or the protective coating on the paint work there was no need to wear gloves or any face masks and it was only necessary to wear a face mask for him when he was spraying on the underseal.
Mr Delgaudio also explained that the purpose of putting the acid wash on the car was that occasionally cars came out with little dots of grit stuck within the paint and just rubbing them off does not work so an acid wash is applied and left on for a few minutes to dissolve those little spots after which you wash it off and put your paint protection on and the wash does not affect the paint. That is the wash is applied to the exterior of the car to remove those little metallic particles and that after the wash is applied you leave it for a few minutes and then rinse it off with water and we have evidence from Mrs Newton who was in charge of the area saying that washing off was done by a hose.
Mr Delgaudio continues to explain the incident we are concerned with and he says:
“Q.... Mr Stock was not helping you to do acid washing at the time, was he.
A.     No, I was doing that.
Q.     That was your job alone, wasn’t it.
A.     Yes, with one pair of gloves, yes.
Q.     Did you say with one pair of gloves
A.     Yes.
Q.     You want to emphasize that, do you.
A.     Well that’s all there, for acid washing.
Q.     What was his job meant to be at the time.
A.     To help me.
Q.     Not acid wash.
A...... Well, once I finished the acid wash, yes, he could help me wash it down, yes. Not to acid wash, no.
Q.Who else was around in the workshop at the time that this incident occurred.
A...... From my recollection there was myself, there was Mr Stock, there might have been one of the other girls working in the other section and Michael, which was the boss of the other section.
Q.So Michael, is that Michael Emery.
A...... I think that’s his second name, I’m not sure.
Q.He was the boss of the other division under the same roof, wasn’t he.
A...... Yes.
Q. He was in charge of the car detailing section, wasn’t he.
A...... Yes.
Q.And although the section in which you worked and his section were separate, you were all under the same roof.
A...... Yes.”
After Mr Stock put his hands in the acid wash Mr Delgaudio told him to wash it off under running water, which he did. The plaintiff complained to Mr Delgaudio of a sort of “burning” sensation. Mr Delgaudio further gave as his evidence that Mr Stock knew that Mr Delgaudio was acid washing the car at that time and he was watching him do it and waiting for him to finish to help with the water to wash it down afterwards. He said he knew that he was to be helping with the detailing of the car afterwards and he confirmed that Mr Stock was waiting for Mr Delgaudio to finish the acid wash and was just standing around waiting until it was time for him to wash it off. He confirms that he had communicated to Mr Stock that after he had finished the acid wash he wanted help with the rest of the car, that is washing the acid off the car with water. He confirmed that there was nothing else for Mr Stock to be doing except simply waiting for him to finish the acid wash which took about ten minutes. After he had completed the acid wash he carried the bucket around with him and he said he left it at the side of the car and proceeded to put the sponge in to wash the car around and that he always returned to the bucket to rinse the sponge and to then apply it to the car and that the red bucket remained in the one spot the whole time that is for the ten minutes and he kept coming back with the sponge and ringing it out and to the best of his knowledge Mr Stock was simply watching him and waiting for this all to finish. He said:
“A.... I was reapplying, like, the front bonnet a particular spot which was being hard to dissolve. I just reapplied a little bit there and he was - I think I - well, again speculation. To the best of my recollection I told him to commence at the back washing the car down.
Q.So you had effectively finished the acid wash of the car, all but for an extra wipe at the front.
A...... Yes.
Q.Do you say you then told him to start washing the car down.
A...... Yes.
HIS HONOUR
Q...... With the water bucket.
A.Yes.
XXN
Q.And do you say it was after that that this incident then occurred.
A...... The incident occurred as he went to get the water he stuck it in the wrong bucket.
Q.He stuck what.
A...... His hands in the wrong bucket.
Q.Both hands.
A...... One hand, but he wrung the sponge as he took it out.
HIS HONOUR
Q...... Could you see any reason why he put his hand in the wrong bucket.
A.No. Probably the only possible reason I can think of was lack of time, no time left, that we had to hurry.”
Mr Delgaudio knew that Mr Trestrail was Mr Stock’s case manager. Mr Delgaudio went on to say:
“Q.... You used to follow a practice particularly with things like acid wash always doing it the same way.
A.Yes.
Q...... You used to make sure people around you knew what you were doing.
A.Yes.
Q...... I also understand that your practice involved keeping the bucket in the same place at all times.
A.Yes.
Q...... And you did that so that anybody around would know that not only is it the red acid wash bucket but you were doing the acid washing because you had your gloves on.
A.Yes.
Q...... The bucket was in the same place.
A.Yes.
Q...... You were the guy who was good at the acid washing, they knew that’s what you were doing.
A.Yes.
Q...... You had your bucket there, gloves on, and you were following your standard practice.
A.Yes.
Q...... You told Mr Stock about that when you were briefing him early in his work experience.
A.Yes.
Q...... I also understand that you weren’t full-time at Tru Seal.
A.No.
Q...... You were casual and called in when they perceived they needed you.
A.Yes.”
Sal’s evidence is the only evidence that there was a bucket of water there for rinsing off the acid from the red bucket, but all the other evidence is that the acid was washed off by a hose.
I accept the evidence of Mr Delgaudio as to his description of how the incident with the acid happened and reject the evidence of the plaintiff’s explanation. I accept the evidence of Karen Newton, Mr Emery and Mr Hassan of the practice and the circumstances of the set-up of the business. I find that, relying on the evidence of Mr Delgaudio, the plaintiff knew full well even if he was only a trainee that it was an acid wash that Mr Delgaudio was using and without gloves and apparently without any consideration for his own safety and with no way to prevent him doing such a thing he put his hands in that solution. There is an explanation given by Mr Delgaudio as suggesting that he may have done it because he was in a hurry and had forgotten momentarily, I suppose, what he was doing but I believe in all the circumstances that it would have been impossible to protect the plaintiff from doing something foolish that he knew full well at the time was something that could cause a problem.
To do as he did would cause no problem for most people.
As the technicians who used the solution need to do from time to time and nobody knew and probably including the plaintiff that his skin was more susceptible to the chemical than others and I suppose he may have been aware from his past experience which has been referred to as the pigsty incident.
Although my findings in this matter are on the facts, it is necessary for those findings to be considered in the framework of the applicable law.
In Woods v Durable Suites (1953) 2 All E R Lord Morris said at page 391:
“The obligation of an employer towards his servants includes an obligation to exercise due care and skill, to provide a proper system of work, and to provide effective supervision. If an employer allows safety precautions to lapse and to fade away into desuetude, it may well be that, on the facts of a particular case, there may be proof that there has been a failure to exercise due care and skill and to provide a proper system of work, but each case must depend on its own exact facts.”

But in Maloney v Commissioner for Railways (1978) 18 ALR 147, Barwick CJ said at page 148:
“It is, in my opinion, proper to remark at the outset that the respondent’s duty was to take reasonable care for the safety of his passengers. It is easy to overlook the all important emphasis upon the word “reasonable” in the statement of the duty. Perfection or the use of increased knowledge or experience embraced in hindsight after the event should form no part of the components of what is reasonable in all the circumstances. That matter must be judged in prospect and not in retrospect. The likelihood of the incapacitating occurrence, the likely extent of the injuries which the occurrence may cause, the nature and extent of the burden of providing a safeguard against the occurrence and the practicability of the specific safeguard which would do so are all indispensable considerations in determining what ought reasonably to be done. Of all these elements, evidence is essential except to the extent that they or some of them are within the common knowledge of the ordinary man. The fertile but unqualified imagination of counsel or judge can never be a substitute for such evidence. Further, in all these essential respects the plaintiff can only be allowed to succeed according to the case which has been alleged as well as proved: the breach of duty must be specifically alleged at well as proved.”
That case was referred to in Toutounji v Waldorf School and Girl Guides Association (SA) Inc District Court judgment No D3765 of the 26th February, 1998, and the appeal in the judgment of the Full Court, (1998) 200 LSJS 197. In that case they refer to Chicco v City of Woodville (1987) 150 LSJS 89 at 94 and 95:
"..... With any equipment, in any situation, there is always some risk of injury to someone. One can't guard against every risk of injury. Children can't just be wrapped in cotton wool and told to be good. How far do we go in protecting ourselves against ourselves? .... There must be a balance between guarding against risk and being fool hardy in building play equipment. If the balance be tilted too far in favour of guarding against risk either no equipment at all is built or at least the equipment is so dull that there is no fun for anyone in playing on it. On the other hand, for example, the platform could have been built twice as high so that the risk of injury from jumping or falling off the platform was the greater and the flying fox whizzed down the wire faster, again making the risk of injury greater. That would have been foolhardy! Those are extremes. In between there must always be some risk of an accident. .... a child (or adult) could fall off the platform and be hurt. One hopes that will not happen. There is a risk of it but it is a risk which must be accepted if there is to be a flying fox at all - or a swing or a roundabout for that matter."
I am satisfied and I so find that the defendant’s employee could do no more than he did that is to warn the plaintiff of the acid wash; to watch that person use it and then to do the very thing that any reasonable person would not do - there being no failure of duty of care by the defendant, having given due weight to the plaintiff being a trainee there is no question of contributory negligence to be considered.
The defendant was not new at car maintenance and detailing car maintenance was almost a usual interest to him.
Counsel for the defendant put the matter cogently when he said:
“If I then relate that back to the facts, and in particular, the pleaded case. The case that we were to meet was four points of negligence. The first one is that the defendant failed to clearly, or at all, label the bucket. I may stand corrected, but I do not recall any evidence about labelling of the bucket from anyone, but even if your Honour was to find there was no label at all, you have to balance against that, the red bucket in the same place used for the same purpose with a proper safety briefing. I would submit there is no, based on Chief Justice Barwick’s test, there is no evidence to satisfy that.
7.2 of the claim was the allegation that we failed to label the bucket clearly or at all, that it contained acid. We know that it’s a red bucket that contained acid. There was a brief to Mr Stock. In my submission, there can be no doubt we are dealing with an acid bucket.
The allegation in 7.3 is that we failed to adequately or at all supervise the plaintiff in his training as a car detailer. There is no suggestion, in my submission, that we were inadequate in our training and, if we were, where is the evidence to suggest what the proper training would have been? All the safety equipment was there contrary to Mr Stock’s evidence. On-the-job training was given and by Keith Reynolds & Associates.
I would submit that the case for the plaintiff can really only come back to para.7.4 which is, ‘The defendant was negligent because it failed to warn the plaintiff the bucket contained dangerous acid solution’. Firstly, there is no proof about the danger or otherwise of this solution. We have all called it acid wash. We have all gone down the path of knowing the plaintiff must have put his hands in it. There is no proof this is a substance that is dangerous to most human beings and I will submit later, this may be a case somewhat like the old underpants case that your Honour might not have but I learnt at law school: The man bought some underpants from Australian Knitting Mills and put them on and had a rare skin condition which caused him to suffer. Firstly, there is no proof it’s dangerous. Let’s accept it may have caused some difficulty for Mr Stock. If your Honour accepts that, the plaintiff still has to prove we failed to warn him and against that we have Mr Delgaurdio’s evidence they were using the red bucket in the same place, in the same method where gloves should have been worn and they were acid washing a car. There was a warning. There had been on-the-job training and a specific warning at the time. If the man decides to put his hands in the bucket, there is nothing a reasonable employer could do.”
My findings cover all of those points.
After the incident his hands felt hot and itchy and he consulted a GP and received a certificate for one day off work. He returned the next day but was told not to start work until his hands were better as he had described them and in fact he never recommenced work again. Eventually he saw Dr Hanna, a skin specialist, and his opinion of the plaintiff’s condition was that he believed the plaintiff was born with a predisposition to trigger off dermatitis and that any minor domestic use could cause it. He also said his condition was a minimal disability and that his hands were of mild dermatitis and possibly psoriasis.
He was prescribed the cream application but acknowledged that they are a little better now than previously.
I accept the evidence of Dr Hanna that his hands should remain dry for work purposes and he will need to wear gloves.
It is of benefit to look at this incident in the context of his short term employment as a trainee at Tru Seal.
On his first day of training he disrupted the class.
I find that from then on he adopted a complaining attitude to his employers asking for masks, gloves, and complaining of fumes. I am satisfied that all safety equipment was available at all times.
I accept the evidence of Mrs Newton when she describes the attitude which the plaintiff had in respect of his work. She said:
“A.... I got the impression he felt he was being exploited for his work. Can I just add to that that he had the feeling that Adelaide Tru Seal and Keith Reynolds were getting lots of money for him being there, and he was only getting a very, very minimal wage.
Q. Did he say that to you.
A. Yes.”
At one stage he asked Mrs Newton if he could buy some samples of the Tru Seal fabrication and protective chemicals for use on a friend’s car.
I accept the evidence of Mrs Newton that in fact he took those chemicals to a Mr Markos of the Labour and Industries Department complaining to him that they were chemicals which he had to use which were detrimental to him and others and that the industry should be inspected.
I accept the evidence of Mrs Newton that in fact Mr Markos of that department inspected the chemicals and made no recommendations whatsoever.
Mrs Newton when referring to the incident of the use of the acid wash as described by Mr Stock she says that he showed her the effect and all she noticed was a redness on his forearms and did not notice or was shown anything about his hands.
I find that in his initial attitude to his work he was cooperative, helpful and performed his work satisfactorily, but this diminished over time to such an extent that as Mrs Newton said some of the work went out and had to come back to be done again and this flowed from his diminished interest in the work. I accept her evidence that he had time off from time to time for no obvious reason.
Mr Trestrail, an employee of Keith Reynolds, was required by Keith Reynolds to observe how the trainees were performing and for that purpose brought the trainees together from time to time for a ‘feedback’ session. This being for all the trainees from many and various employers.
On the first feedback session of the 9th October, 1995, the plaintiff, Mr Stock, arrived late. He disrupted the whole session by bringing samples of the chemicals he was required to use. I find he was abusive so that the session had to be abandoned. I accept the evidence of Mr Trestrail that the plaintiff was at most times aggressive and that he threatened to harm Mr Trestrail and his family.
The plaintiff later after the incident attended at the Queen Elizabeth Hospital and was prescribed a cream and was given a certificate for one day off as from 11th October, 1995. There is various evidence as to when the actual bucket acid wash incident occurred. I accept that the plaintiff told Dr Hanna with some certainty that it happened on the 21st September, 1995.
In his statement of claim for these proceedings he put the date again as the 21st September, 1995.
On the first day of this trial he amended that date to be “in or about the beginning of October”.
Mr Stock made an industrial complaint of the condition of work to Mr Trestrail and that complaint was investigated by an inspector, Mr Markos.
For that complaint, the plaintiff made a signed statement dated the 12th October, 1995, as follows:
“My name is Daryl Charles Stock. I am unemployed, but I am involved in a work experience program conducted by Keith Reynolds and Associates. Approximately, nine weeks ago I went into the C.E.S. at Kilkenny and spoke with a Case Manager whose name is Alexandria. I cannot remember her last name. During a discussion with her, she organised some training and work experience with Keith Reynolds and Associates at 83-87 Fullarton Road. The training started on the 21st August, 1995 and the Course Manager was Joyce Southern. The training lasted for one week and finished on the 25th of October, 1995. The training that I received over this week involved Occupational Health and Safety. During the weeks training I was advised by Joyce Southern that I would be performing work experience at Adelaide Truseal. The work would involve car detailing. I commenced work at Adelaide Truseal on the 28 August, 1995. I was shown the process of detailing cars and what chemicals I was to use by Lola and Karen, who are now clerical people but use to conduct this work. Approximately one week after doing the car detailing work and using the chemicals, Trufab, Truetex, Truglo which contain acid wash. 1.1.1. trichloroethan, liquid hydrocarbons and petroleum distillates. I started feeling sick. I could taste the chemicals after using them, as if the chemicals were in my system. My hands are itchy all the time, I suffer headaches and a general feeling of being unwell, because of this, I approached Ian from Keith Reynolds and Associates and showed him the chemicals I was using. This occurred on the 9th of October, 1995 at a feedback session. I said to Ian that, I am unhappy using these chemicals without any protective equipment and that I would like some protection while doing this type of work using chemicals. Ian said that he would supply me with some protective equipment on the 10th of October, 1995. He said he would pick me up from Truseal and take me to get some protective equipment. Ian did not turn up on the 10 October, 1995, so I went and seen Karen from Truseal and told her what happened. I continued to work the day out, but I was still feeling sick, I am not happy continuing this way, considering I raised the issue of protective equipment approximately six weeks ago. My Case Manager Alexandria from the C.E.S. told me that the C.E.S. provided money to Keith Reynolds and Associates to provide protective equipment and for our pay. I am going to see a Doctor because I feel sick and I think that the chemicals have caused the problem. I expected that there would not be any of these problems when I agreed to perform this type of work.
This statement consisting of two pages, witness by inspector Ian Markos is true and accurate to the best of my knowledge and belief.”
That statement makes no mention of the accident incident with the bucket of acid wash.
He describes as if he believes “acid wash” is contained in the Tru Seal products he applied.
Before the subject accident he had one day off from Tru Seal for his grandfather’s funeral and there is a certificate for that day off, the 4th September, 1995.
It is uncertain when and if the incident occurred as described by the plaintiff.
Mr Delgaudio says he saw it happen despite his warning Mr Stock of acid wash but Mr Delgaudio does not know the date.
The plaintiff commenced work on the course of Tru Seal on the 28th August, 1995. The course was intended to last for six months.
I find that Tru Seal were lenient with him both before and after the acid incident, but after some altercation when he returned on the 18th October, 1995, he left the course in his words “he was not allowed on the premises”. I refer to various correspondence to explain that situation.
A letter from Mr Stock to the Manager of Adelaide Tru Seal dated the 18th October, 1995, as follows:
“I am writing to you in response to as I see it my “unfair dismissal” and as to your reasons for this.
Please reply within 7 (seven) days.”
A second letter from Mr Stock to the Manager of Adelaide Tru Seal dated the 18th October, 1995 as follows:
“I am writing to ask you as to who was/is responsible for the supply of the saftey equipment needed for my job as car detailer at Adelaide Truseal. Repeated requests were made and went unanswered. I last approched Ian at a talk back meeting on the 9/10/95 and asked again for the equipment and he said he would prick me up at Adelaide Truseals to go and get it but he didn’t show up. As a result of this I have now been retrenched as of 13/10/95.
Please reply within 7 (seven) days.”
Notes of Mr Trestrail of Keith L Reynolds & Associates as follows:

“Notes Re: Daryl Stock
NWO Participant
1.     Daryl was placed on the program by the CES on 21st August 1995.
2.     On the first day he was disruptive in the classroom when the paperwork requirements of the placement were being explained. He initially refused to sign the work placement agreement. Later in the day he relented and finally signed it.
3.     25th August 1995 - Whilst undergoing training at Northern Skills Centre, a visit was made by Joyce Southern and Ian Trestrail (Keith Reynolds and Assoc.) to the group in which Daryl was inducted to give final information regarding starting times and addresses for their work placement. Daryl became extremely aggressive and became rude and offensive towards Joyce. He stormed out of the training session (Elizabeth) and began walking to the Woodville Park CES. He was offered a ride twice but refused with unprintable adjectives. This matter concerned his pay which would not have been due for two weeks. He was expecting a cheque before working even 5 days. He eventually got his way and a cash cheque for one weeks pay was delivered to him at the Woodville Park CES at 4.00pm that day.
4.     1st September 1995 - Site visit to Truseal (work placement area) by Joyce Southern and Ian Trestrail. Reception from Daryl and other trainee (Tony) was quite aggressive and abuse. Ian’s physical well-being was threatened.
5.     5th September 1995 - Site visit to Truseal by Ian Trestrail and Enzo and Alexandra (CES). Again further aggression and abuse was given by the trainees. It was also stated by Daryl that he wanted no further contact with Joyce Southern.
6.     Week ended 6th October 1995 - Daryl plunged his hands in a bucket of acid wash which he thought was soapy water. He was aware that various substances were being used throughout the workshop which needed to be handled with protective equipment but did not identify the substance before plunging his hands in same. Prior to going to Truseal he was put through an Occupational Health Safety and Welfare course.
7.     9th October 1995 - Daryl attended a feedback session arriving some 30 minutes late. With him he brought some substances which he claimed he used in his work place and proceeded to take over the session with an explanation/demonstration of the products and their danger to him. This went on for over an hour with him being aggressive and rude throughout. At this session it was stated that he would be picked up and taken to a supplier to obtain the equipment that he needed to carry out his work safely. This did not occur.
8.     13th October 1995 - Daryl rang Keith Reynolds and Associates asking for Ian Trestrail. Ian was out and Daryl said he would ring back at 12.30pm. At 12.50 he had not rung back and Ian had to leave the office for another appointment. Daryl rang half hour later and when told that Ian was out he hung up on the receptionist.
9.     13th October 1995 - Daryl rang at 4.00pm and spoke with Ian regarding the situation with his hands. He was advised that he should take time off to allow his hands to heal. He became abusive and hung up before the conversation was finished.
10.    13th October 1995 - Received a copy of a medical report from QEH regarding his hands (dermatitis).
11.    16th October 1995 - Received a doctors certificate for one day (11/10/95) able to resume work on 12/10/95.
12.    18th October 1995 - Received fax from Daryl through the CES in which he asked for clarification of who was responsible for the supply of the safety equipment and in which he stated that he had been ”retrenched”.
NOTE:      Truseal responsible for supply of protective equipment. They have sufficient safety equipment available for the processes that require it.
13.    Daryl contacted the Department of Industrial Affairs regarding his situation. Ian Markos of the Department inspected Truseal as a result and recorded Daryl’s case as an incident only. According to Mr Markos the incident was not serious enough to warrant a written report.
14.    Daryl returned to Truseal where Karen Newton spent some time convincing him that he should not return to work until his dermatitis was healed. Daryl has interpreted this as him not being welcome at Truseal and has expressed this to CES, DSS, Industrial Affairs, a solicitor and others.
15.    Daryl has since been troubling a Truseal employee in an effort to get support. The employee now feels threatened by the continual phone calls that he is receiving.
16.    25th October 1995 - A meeting was held between Daryl, Paul Hesselschwerdt, Steve Docherty (CES) and Ian Trestrail (Keith Reynolds and Assoc.) to determine Daryl’s future. Daryl emphasized his dissatisfaction with Keith Reynolds and Assoc. and the CES and the Program. He dwelt on the safety equipment aspect and referred to notes from the OHS&W course that he did before going on the job. He covered many of the previous incidents outlined above and could not provide any options to solve the situation that he is now in. He began the meeting in a calm state but later became agitated and uncomfortable with the situation before standing and leaving. Prior to leaving he was advised that he would be taken off the program to which he replied “Take me off.”

Discussions which followed between Paul, Steve and Ian led to an agreement that he should be ceased from the program. Ian was asked to write to Daryl informing him of the cessation and suggesting that he contact the CES to reapply for their assistance.”

A letter from Mr Hesselschwerdt, Programs Manager of the Woodville Park Region of the CES dated the 11th April, 1996, as follows:
“At your request, I am writing to clarify some issues regarding New Work Opportunities and the decision to cease you from your placement with Keith Reynolds and Associates as of 26th October 1995.
New Work Opportunities is a six month program to assist Long Term Unemployed Case Managed job seekers obtain work experience and training. It is a CES program, not employment.
The decision to refer eligible job seekers for New Work Opportunities placements rests with the Case Management Organisation. Similarly, before anyone is ceased from the program, it must have the endorsement of the Case Manager.
In your particular placement, there were a number of issues of conflict between yourself, CES, Keith Reynolds and Associates and Truseal.
A meeting between yourself, Ian Trestrail (Keith Reynolds and Associates), Steve Docherty (Case Manager) and Paul Hesselschwerdt (CES Programs) was held on 25th October 1995 to attempt to resolve the issues. A high level of continuing conflict was evidence at this meeting, and as a result, it was mutually decided by Paul, Steve and Ian that in the best interest of all parties concerned, your placement on the New Work Opportunities Program with Keith Reynolds and Associates should cease. This occurred on 26th October 1995.”
A letter dated the 25th October, 1995, from Mr Trestrail to Mr Stock as follows:
“Re: New Work Opportunities Program
Further to our meeting of the 25th October 1995 between yourself and representatives from the CES and Keith Reynolds and Associates, I advise that as from the 26th October 1995 your involvement in the above-mentioned program has ceased.
On advice from the CES, I suggest that you contact your case manager for further discussion regarding your future.
Any pay owing to you up to the 26th October will be paid into your bank account in the normal manner.”
Having regard to that evidence and the whole of the evidence I find that the ultimate cause of the work experience coming to an end was the aggressive and uncooperative attitude of the plaintiff and also in the words of Mrs Newton he should not return back until he was satisfied that his hands were clear.
These proceedings are taken against Exalso Pty Ltd trading as Adelaide Tru Seal the employer where the plaintiff was placed. He was placed there by Keith L Reynolds & Associates Pty Ltd and the defendant has joined them as a third party. On the last day of these proceedings after a long adjournment that was unavoidable I was advised:
“I am pleased to advise your Honour that the only matter you now need to determine is the plaintiff’s case and the defence of that case. All issues between the defendant and third party are now resolved.”
I was then told:
“I have been instructed to continue the conduct of the defence in this matter, and the only order that I would ask in that respect, is that your Honour accept Mr Trestrail’s evidence as part of the defence case.”
I made that order.
I accept the evidence of Mr Hassan of the relationship of the various companies and trading name such as Tru Seal. His evidence is that Keith Reynolds (who he knew personally) had a conversation with him about placing trainees in one of Mr Hassan’s businesses.
It was agreed that he would take two of the trainees on the following conditions:
It would cost no money and this is common ground.
That he or his company would not have any liability for any accident or any other matter that may happen to the trainees.
The issues between Exalso as the defendant and Keith L Reynolds & Associates as the third party have been settled. It is not necessary for me to determine the issues raised between them as to indemnity. I find, having regard to all of the above reasons, particularly not accepting the evidence of the plaintiff and accepting the evidence of all of the other witnesses, that there has been no negligence proved against the defendant and I dismiss the plaintiff’s claim.
If I am wrong as to liability I proceed to assess the question of his loss.
The plaintiff ceased the trainee employment on the 13th October, 1995. He was then unemployed until he gained employment at the TMC Abattoirs at Bordertown in about June 1996 on the meat floor and then in about May 1997 he changed his function at the abattoirs to cleaning.
He enjoyed the work and wore gloves for his hands.
In October 1997, he was involved in a motor vehicle accident and a pedestrian was killed whilst he was driving with his licence suspended. On January 1998, he served four weeks’ imprisonment for that offence.
The plaintiff says he left the abattoirs employment because he was hassled by people who knew of the pedestrian who had died.
Since his release from custody he has been unemployed. Of his whole history of employment it is significant that the longest time he has been employed has been at the abattoirs since the accident which he complains of and it seems to me that he succeeded in that employment by wearing gloves and as I say worked for a significant and much more extensive period of time than he had ever worked in his history before.

100 I accept the evidence of Dr Hanna as to the effect of the contact dermatitis although others may not be effected but we have to take the plaintiff as he is. I accept that he cannot take occupations where his hands will be in chemicals or get wet, but as I say before, he managed well the abattoirs job and it is possible he would have still been there but for his motor vehicle accident.

101 Looking at his whole history he has had so little work between being in custody and periods of unemployment it is an unusual exercise to identify what working capacity has been lessened by this incident.

102 His intolerant and aggressive manner, as comes through during his time at Tru Seal, he seems to be his own worst enemy.

103 He said he wanted to put his traumatic past behind him.

104 I accept that was his intention but it seems his intention does not always succeed, eg his offence of 1998.

105 I find his answers on the whole equivocal that he has given up marijuana.

106 Nevertheless with all of the drawbacks he has one more even as a minor one according to Dr Hanna and this has a cumulative effect on his capacity to obtain employment as it limits the fields open to him.

107 I also have to have regard to the fact that he only worked for very short periods in his history.

108 I can do no more than fix a figure that I believe will do justice to the plaintiff.

109 It is impossible to fix years and relate to rates of pay especially as he is so susceptible to contact dermatitis. He will continue to be at risk from other contacts and he will therefore use gloves not only for this case but for present new contacts.

110 I find that there has been no past loss of earning capacity.

111 I find that for loss of future earning capacity I fix a sum of $40,000.

112 For his non-economic loss I fix a sum of $8,000.

113 Special damages are agreed at $338.71, making a total sum of $48,338.71.

[1999] SADC 89

12 July 1999