Case v Commonwealth of Australia [1994] QSC 250

IN THE SUPREME COURT OF QUEENSLAND No. 2453 of 1988 Brisbane Before the Honourable Mr Justice W C Lee [Case v. Commonwealth of Australia] BETWEEN: JENNIFER ANN CASE (Plaintiff) AND: THE COMMONWEALTH OF AUSTRALIA (Defendant) JUDGMENT - W C LEE J Judgment delivered 21/09/1994 CATCHWORDS MASTER AND SERVANT - safe system of work - defendant operator of pathology laboratory - plaintiff exposed to toxic chemicals - whether safe work environment - whether adequate ventilation - whether plaintiff contracted occupational asthma as a result of defendant's negligence - extent of injury Counsel: S Williams QC with him J. McDougall for the plaintiff K Bolton for the defendant Solicitors: T K Delaney & Co. for the plaintiff Australian Government Solicitor for the defendant Hearing dates: 19-22, 28-29 October 1993 -- 1 of 79 -- IN THE SUPREME COURT OF QUEENSLAND No. 2453 of 1988 BETWEEN: JENNIFER ANN CASE (Plaintiff) AND: THE COMMONWEALTH OF AUSTRALIA (Defendant) JUDGMENT - W C LEE J Judgment delivered 21/09/1994 The plaintiff's claim against the defendant is for damages for personal injuries arising out of her employment with the defendant in a pathology laboratory appended to the Rockhampton Base Hospital. The defendant operated that laboratory at all material times. Her principal claim is that she contracted occupational asthma and associated conditions which are said to be permanent, rendering her commercially unemployable. These conditions were said to have been contracted as a result of exposure in the laboratory over a number of years to highly toxic chemicals and other substances in an unclean, inadequately ventilated, environment. The case was fought closely and at length on all issues concerning liability. There were some 105 documentary exhibits and numerous witnesses were called on each side, lay, technical and professional. After a great deal of expert evidence both led by the defendant and adduced in cross-examination of the plaintiff's witnesses designed to show that the plaintiff did not suffer from asthma, the defendant in the end did not oppose a -- 2 of 79 -- 2 finding that the plaintiff had asthma. Rather it alleged that the plaintiff's condition was mild and not disabling, that it was controlled by medication, and that she also suffered from a condition affecting her upper respiratory tract which was referred to as "multiple chemical sensitivity". It was said that the latter condition was her principal complaint and had nothing to do with the asthma which affects the lower respiratory tract. It was also said that both conditions developed spontaneously or were contracted away from or independently of the work environment and not caused by it. Also, it was said that even if they were so caused, the defendant, in its management of the laboratory, was not negligent. It was further said that in any event, neither condition warranted a finding that the plaintiff is commercially unemployable. The defendant has not alleged contributory negligence. The plaintiff was born on 15 August 1952. She is now 42 years of age and was 41 years of age at the date of trial. She was educated to junior standard and left school at age 15. She completed three years of a four-year hairdressing course but did not qualify. She was unemployed for 18 months then undertook nursing training for one year. After a short period of unemployment she commenced employment with the defendant as a laboratory assistant on 18 July 1973 when she was about 20 years of age. She was continuously employed by the defendant in that capacity until the time of her enforced retirement by the defendant on medical grounds as from 20 January 1989 when she was -- 3 of 79 -- 3 36 years of age. She in fact ceased effective work on 11 February 1988 after various periods of absences from 20 October 1986 on account of ill health (ex. 1). She had no technical or formal qualifications for the position and simply learnt the job from experience gained primarily with the help for about 18 months or so of a former employee named Mr W Clark. After retiring from his position, Mr Clarke suffered a stroke and this prevented him from giving evidence. Her claim is formulated in para. 5 of the statement of claim. She alleges that she suffered personal injuries as a consequence of her exposure to dangerous chemicals, gases and other hazardous substances in the course of her employment and/or alternatively, as a consequence of being required to work in an unclean atmosphere generated by a heavily polluted ventilation system during 1986. Particulars of her personal injuries are alleged as follows: a) The erosion of the surface of her teeth; b) Emphysema; c) Acute airways obstruction; d) Allergic Rhinitis; e) Ulceration of the throat; f) Asthma; g) Pharyngitis; h) Obstructive pulmonary disease. In para. 7 the plaintiff claims that these personal injuries were suffered as a consequence of the defendant's negligence and/or breach of duty, particulars whereof are as follows: "(a) failing to warn the plaintiff as to the toxicity of the chemicals, gases and other materials she handled; (b) failing to warn the plaintiff as to the hazardous nature of her employment; (c) failing to properly ventilate the plaintiff's work -- 4 of 79 -- 4 environment so as to remove noxious gases and hazardous dust from her work environment; (d) failing to provide adequate safety equipment for the plaintiff's protection; (e) failing to provide a proper method for the disposal of hazardous substances; (f) failing to provide adequate protective masks; (g) failing to instruct the plaintiff and her fellow employees as to the proper disposal of hazardous chemicals and other hazardous substances; (h) failing to ensure that the air conditioning ducts and system to the plaintiff's place of work were kept free from a build up of hazardous chemicals and other substances including dust, bacteria and fungus." After a preliminary skirmish as to whether the plaintiff was claiming in respect of certain damage, in particular with respect to her teeth, which was said to have arisen more than 3 years before the issue of the writ on 13 June 1988, (thus, it was said, requiring an amendment to para. 5 of the pleading which relied only on damage occurring during 1986, and giving the defendant the opportunity then to plead the statute of limitations), the matter was resolved. Counsel for the defendant subsequently informed the Court that there was no point taken with regard to the statute of limitations in respect of any part of the plaintiff's claim. Of significance is the layout of the pathology laboratory at the relevant times. It was located in two buildings. The main laboratory, general office and administration centre, consisted of the ground floor of a building illustrated in ex. 64. In 1989, after events relevant to this action, the laboratory also acquired the upstairs floor of that building. The ground floor section contained ducted air conditioning with circular vents in the -- 5 of 79 -- 5 ceiling. This system had been installed prior to the plaintiff's employment with the defendant. At some time after she became ill, the vents were changed. See exs. 95 to 98. This occurred in 1987-1988. That section of the main laboratory also contained the steriliser room and biochemistry sections. It was thought to contain a "clean air environment" as compared to other sections of the laboratory. The balance of the laboratory is shown in ex. 63 and is referred to as "Animal House". It is situated 25 yards from the main building. It has two floors. The evidence shows that it acquired that name because it was its previously used for housing rats and other animals for experiments. It is a double-storey brick building that was not specifically designed as a laboratory. The upstairs floor was also used at one time for tuberculosis purposes and at some unspecified time, the whole building was converted into and became part of the laboratory. The ground floor contains the male toilet, two rooms occupied by the haematology section, two rooms occupied by the microbiology section and two rooms occupied by the serology section. The officer-in-charge and second-in-charge of microbiology, who were the superiors of the plaintiff, were located on this floor. The plaintiff worked upstairs in the media section of microbiology continuously between 1978 and October 1986. Apart from the initial 18 months or so when Mr Clarke, her predecessor, was also present, she was usually on her own. The upper floor is the section directly relevant to this case. A stairwell provided access from the ground floor to this floor. -- 6 of 79 -- 6 There was a corridor from the top of the stairs giving access to the female toilet and rest rooms to the right, and to the histology and balance of the microbiology sections to the left. Apart from a small room not directly relevant, the first main section near the stairwell and off the common corridor was the histology section. It consisted of two rooms in which toxic chemicals, formalin and xylene, were in constant use. The next section along the corridor was that part of the microbiology section called the "media" room in which numerous chemicals and other substances such as agar powders and certain constituents were used on a daily basis by the plaintiff. This is the room in which the plaintiff worked. That room is in the left hand corner and has a common wall with the histology room. To gain access to the media room, the plaintiff was required to mount the stairwell, traverse the corridor past the histology rooms and then enter the media room. Other staff also used this corridor when required. To use the rest rooms throughout the day as well as to visit other parts of the laboratory and particularly the balance of the microbiology section downstairs, the plaintiff was required to traverse the corridor back past the histology room and go down the stairwell. The door to the histology room was usually left open. The door to the media room was usually, but not always, closed. A fire door had been installed at the back of the media room as an emergency exit in the event of fire. It was required to be kept closed. The ground floor contained a ducted air conditioning system, installed before Mr C J Morgan commenced his role as -- 7 of 79 -- 7 Administration Officer in 1973 and before the plaintiff commenced work with the defendant. Mr Morgan held that position continuously until 1989. The upstairs floor was air conditioned only by through-wall room air conditioners ("R.A.C.") about which much complaint has been made. The evidence shows that the laboratory rooms in both buildings were required to be sealed and all experts agreed that it was of the utmost importance that there be an efficient air conditioning and ventilation system to get rid of fumes from noxious and volatile chemicals and other substances regularly in use, particularly those in use in the histology and media rooms. Indeed, this was clearly recognised by Dr G H Aiken, a specialist pathologist, and second-in-charge to Dr Jamieson from February 1979 to 30 June 1985. When Dr Jamieson retired, Dr Aiken then became pathologist-in-charge of the overall laboratory and has remained in that position to the present time. The defendant, in answer to interrogatories (ex. 5) said that the media room was ventilated by air conditioning units. This meant that there was no other ventilation in use such as exhaust fans or the like to extract fumes to the outside atmosphere or to create cross-ventilation for that purpose. There was also an exhaust fan in a large fume cupboard in the media room which, on the evidence, was not efficient for the purposes of removing dust and fumes etc, while the cupboard was in use by the plaintiff. This was replaced with a larger and more powerful fan some time after 1987, after the plaintiff had become ill. A fan in the small fume cupboard in the media room was inoperative. Also, in the histology room, Dr Aiken said there was an extractor fan -- 8 of 79 -- 8 fitted to a window that was operational at one time and would have been so in the early 1980s up to about 1986, but this, he said, provided a very poor draft with respect to extracting fumes. Dr Aiken said that most of the ventilation in histology was provided by the room's air conditioning unit. He agreed that with noxious fumes hanging around in the air, the air conditioners would to some extent simply recirculate the fumes and make them a little bit cooler without extracting them and removing them from the room to the outside atmosphere. This was also the situation with respect to chemicals and other substances in the air in the media room. The layout of the media room is portrayed in exs. 43 and 63. Photographs 44 to 57 show various aspects of that room and the equipment in it at the time the plaintiff last worked in that section in the latter part of 1986. There were desks or benches, a sink, two fume cupboards (one large and one small), an autoclave and a room air conditioner in that area, and a further room air conditioner in another room some distance away. The air conditioner in the area where the plaintiff mostly worked is portrayed in exs. 45, 48, 56 and 57. Exhibits 56 and 57 clearly show a build up of scum or fungus in the vents and soiled filters, as described by the plaintiff, about the time she became ill in 1986. The small fume cupboard in which she stored various chemicals is shown in ex. 49. That had never been used as a fume cupboard and the plaintiff had never been instructed to do so according to Dr Aiken. As indicated, its fan was inoperative. Exhibit 50 shows the interior of the large fume cupboard as it was -- 9 of 79 -- 9 at that time. It was the fume cupboard used by the plaintiff for measuring out agar powders and various constituents several times daily. Exhibits 67 and 68 also show certain equipment. Exhibit 67 again shows the small fume cupboard with chemicals stored therein and to the right of that photograph is portrayed the large fume cupboard with certain alterations made to it after the plaintiff became ill. Notably the gas burners, on which solutions containing agar powders and other constituents were boiled, were relocated inside that fume cupboard. Previously the gas burners were situated on an open bench. That photograph also shows the sliding hood or door to the fume cupboard which was capable of being lowered when the fume cupboard was in use for measuring out agar powders and their constituents, or other processes, the purpose being to prevent fumes or dust coming back to the face of the operator and also assisting in creating a draft which would aid an efficient exhaust fan in extracting fumes out of the cupboard and away from the operator. The photographs generally depict what appears to be a fairly old terrazzo type floor in the media room. Of importance is ex. 46 which shows an open vent or grate on the floor of the media room close to the wall which divides the media room from the histology room. It was situated below an open bench and next to the sink. The evidence shows (and this is not in dispute) that the drainage system from the sinks in the histology room and the sink in the adjoining media room was common to both rooms. The open vent or grate shown in ex. 46 may also have served to dispose -- 10 of 79 -- 10 of floor waste in the media room but it also acted as a vent to the common drain. Whether that was its original design is not clear but that was its effect. Any substances discharged down the sink from the histology room proceeded down the common drain. The evidence shows that odours from toxic chemicals used in the histology room frequently permeated into the media room from the floor vent as well as from the passageway itself through the door. These fumes were from formalin and xylene. The defendant admitted that those fumes permeated into the media room from the histology room through that vent inside the media room but denied that they were of such a nature as to be oppressive or likely to cause harm to an employee in the media room as opposed to a person who came into direct contact with those substances in the histology room. A reasonable inference is open that the drainage system and vent were of very long standing. It may be that they were installed at a time when Animal House was used for purposes other than as a laboratory. It may have been adequate with no potential danger to allow the escape of fumes, when that floor was used for those other purposes. If its purpose was to act as a vent, no attempt had been made to install a piped vent from that opening out through the ceiling so that any fumes could be discharged to the outside atmosphere. This may have been due to the fact that that opening was also to serve as a floor grate into which fluids from the floor in the media room would drain when, for example, the floor was being washed. In any event, its precise use or purpose does not matter in this case. The plaintiff said she -- 11 of 79 -- 11 attempted without success to plug up the vent at different times with tissues to stop fumes penetrating into the media room. When she developed severe symptoms in 1986, the plaintiff assumed that the main cause was from agar powders which she mixed up daily, although she said she was a lay person and did not know precisely at the time what was causing her problems. This is quite understandable. She had no technical qualifications. When the plaintiff commenced work with the defendant in 1973, she spent about 7 months in serology which was on the ground floor of Animal House. After 7 months or so in serology, she was transferred to the sterilisation section which was in the main biochemistry building, 25 yards away. She was there for about 4 years. As indicated, that area was sealed and had a ducted air conditioning system. During that period, she said that glacial acetone acid which she used from time to time irritated her eyes. This was used quite often in the mornings. She said that it affected her nose and throat to a lesser degree but did not cause any permanent trouble. She thought nothing more about it. Dr Coral Verene Ann Winter, a scientist at the University of Queensland Department of Biochemistry and manger of the Protein and Nuclear Acid Research Centre, said that it was an irritant. It provided a temporary irritation to the plaintiff when she was in the sterilisation section prior to going to the media section. As will later appear, the ducted air conditioning system and vents in that section were clogged with mould, dust, scum etc, which obviously prevented the efficient operation and removal of fumes. -- 12 of 79 -- 12 In 1978 the plaintiff was transferred to the media section of microbiology which, as indicated, is situated on the upstairs floor of Animal House. She remained there until late 1986 when, after she became ill, her general practitioner Dr Young recommended that she work in a clean air environment. As a result, she was transferred to biochemistry in the main building in which she had worked previously in sterilisation from 1974 to 1978. She claims she was still affected by solvents used daily for cleaning. She complained about the air conditioning in biochemistry which had fouled ducts and vents. After various absences from work due to ill health (ex. 1) she ceased work on 11 February 1988 and was retired totally due to incapacity by the defendant on 20 January 1989. The plaintiff said that the air conditioners in the media room were not replaced while she was there. She said that the ventilation from the air conditioners was not very good. She agreed that they cooled the air and that if she stood in front of them she could feel the air but further out she could feel no air movement at all. As indicated, Dr Aiken said that air conditioners to some extent at least merely recycled the fumes inside the room rather than extracting them from the room. The plaintiff's principal function in the media room was to prepare agar powders for working with culture media for bacteriology. She made up about 20 litres a day of the different media. She would autoclave them and then petrimat them. She was required to handle very large numbers of toxic substances. These included chemicals, acids, chemical agents, gasses, agar powders -- 13 of 79 -- 13 and the like. A very large list is set out in answer to interrogatory 2 (ex. 4). This included hydrochloric acid and other chemicals and poisons, as well as a very large quantity of different dehydrated culture media and supplements which, according to the plaintiff's case were the real danger when she worked with agar powders. The plaintiff said that there were 25 different agar powders. She used the appropriate powder depending upon the medium she was attempting to create. She used the agar powders on a daily basis. Some of the powders were regular and some were of a special kind. She was never informed of any danger associated with the use of agar powders and the various constituents used. She was given no warning or instruction with respect to the dangers associated with any chemical or other substances, or with respect to any precautions which should be taken whilst she handled them or came into contact with them. She had no technical knowledge or qualifications such as would enable her to know of potential dangers. In preparing agar powders she used the large fume cupboard for weighing them out on a set of scales. The agar powders were very fine. When being transferred from container to scales they produced a misted powder. On average, she measured out agar powders in the large fume cupboard about five times daily. When using the fume cupboard she turned on the motor mechanism to activate the exhaust fan but said that she did not notice the mist or fog produced by the powders being drawn up by the apparatus. There was no upward draft. The extractor device was then not operating correctly. I find accordingly. As -- 14 of 79 -- 14 indicated, after the plaintiff became ill in 1986, a large and more efficient exhaust fan was installed in that fume cupboard. The plaintiff never lowered the sliding door or hood of the fume cupboard whilst measuring out agar powders and constituents. It always remained fully open. She had never been told about the use of the door or whether it should be drawn down during the weighing process, or indeed even its purpose. She simply followed the procedure used by Mr Clarke. When performing that task, she came into contact with agar powders. She said that being so fine they came back like smoke and came into contact with her nose. She said some of the agar powders were irritating and some of them were worse than others. The worse ones she described as the DCL's, the XLD's and the TCB's. She said she got a dry cough, and that it would really catch her. She would sneeze. She got irritated eyes from the powder. She was really unaware of the content of the various powders, a fact used which is understandable. She used the DCL powders on average about twice weekly, the TCB powder about one per week, and the XLD powders about twice per week. She said that it was mainly those particular agar powders which affected her. She said she did not cough with the other powders notwithstanding that the mist from all the powders used to come back at her. Any mist or smoke used to settle on the actual scales. After the plaintiff measured out the agar powder, she took it out and put it in a stainless steel container which usually had 4 litres of distilled water in it. That operation occurred on an open bench. She sprinkled the powder over the water with her left -- 15 of 79 -- 15 hand and stirred it with a wooden spoon, i.e. she hydrated it. She did not do this in the fume cupboard, although this appears to be the system put into operation after she became ill. During the hydration process, she said that a smoke, gas or vapour came back at her "because there wasn't any fume cupboard over where I boiled the agar solution". As indicated, the gas burners were then on a bench. After she became ill in 1986, they were relocated to the large fume cupboard where the whole procedure was then performed. After hydrating the powder the solution was boiled on the bench. She then poured it into steel containers, placed the lids on them and autoclaved them in a steam autoclave. She described the autoclave as being like a large pressure cooker. After the containers were removed from the autoclave, they were placed on the table near the air conditioner to cool. After cooling she attached a sterilised tube to the machine which was inserted into the solution in the container. From this she said she would petrimat the liquid onto plates which would then be cooled. After this she would take them downstairs to bacteriology and stack the plates in the fridges. This again involved traversing the common corridor and stairwell on several occasions throughout the day. In the course of her duties, she also prepared chemical agents. This involved contact with various chemicals and dyes, antibiotics, yeasts, peptones and proteins etc, which were used in conjunction with the agar powders. The plaintiff's principal complaint hinged around the use of these constituents. There was much technical evidence with respect to them. Some of the chemicals were liquid and some were powders. The dyes apparently -- 16 of 79 -- 16 were in powder form. She was also required to use hydrochloric acid. It was stored in a glass bottle under the sink. This caused a reaction to her from the fumes. She used to feel the fumes in her nose and eyes. She said, "It just felt like the lining on my nose was being stripped. It was just a strong fume". The anaerobic culture media were prepared when she sat at a table near the door. They consisted of distilled water with different agar powders. They were boiled in a flask. This process also involved the measurement of agar powders in the way already described and the mixing, boiling and cooling of the solution. She also used the autoclave for other purposes such as for the disposal of hazardous waste from various laboratory sections. The waste was stored in stainless steel buckets which were lined with hazardous waste bags. Other sections would bring it to her section to be autoclaved. At other times she autoclaved the waste from the media room. The bags were generally open. On opening the door to the autoclave, she noticed a putrid smell, although she could not identify it. The plaintiff was mainly on her own after Mr Clark left. She had virtually no help or supervision, although there was sporadic assistance at times. The entire procedure she used was that adopted by Mr Clarke. She had never been told to change it or to use any other procedure. She said she had complained to Mr Clarke and others about the effect on her health of what she thought were agar powders. When dealing with any of the procedures, she did not wear a -- 17 of 79 -- 17 mask because it was not required. However, she said that towards the later stages of her time in the media section she used to wear a mask to try to counteract the different smells as well as the effect of agar powders. She wore such a mask during procedures when she weighed out the DCL's, XLD's and TCB's, and even when she was working with hydrochloric acid. It was a tissue paper mask (ex. 59) and not a surgical type mask. This was entirely a result of her own decision to use it. No instruction was even given. She said that the particular mask she used did not have much effect because the fumes from acid still affected her. She obtained this mask from the store room at the main building. It provided some assistance in preventing her inhaling the agar powders that "came back at" her. When wearing the mask she would still cough when exposed to DCL's and TCB's. She said they were very strong. She did not know what was in them but there was something particularly strong in them. She said that a lot of the agar powders had offensive smells, as did the hazardous waste. She said that on arriving at work each day and when passing the histology room, she used to smell formalin which was used in the histology section for preserving bodily specimens. She frequently noticed this when passing that room. She also said that she frequently smelled formalin in the media room. She noticed it coming from the floor waste or vent under the cupboard in the media room. It had a strong, sweet, sickly odour. It used to irritate her eyes, nose, throat, and the skin on her face. Her face became red and sore. She got a dry nose and post-nasal drip. Her sinuses were also affected. She experienced a dry throat. -- 18 of 79 -- 18 These symptoms were experienced quite frequently and occurred whenever formalin was present in the room and whenever she smelled it from the floor waste and sink in her room. She did not realise how it would permeate up that far. She said, "It used to seem to be just all in the room". She also identified another chemical called xylene used in histology. She said, "It was a really strong fuming chemical too and it used to emanate up to my room. It would be all down the hallway and I could smell it in my room too". She said it also had an effect on her. She would get a dry nose and sore eyes. Her face would become very red and the smell was strong. She experienced these symptoms nearly every day. She did not notice xylene as much as the formalin but nevertheless did notice it regularly. She said that the fumes affected not only her eyes, nose and throat, but also her lungs. By this she described that she would cough. It was "a funny dry cough in about 1980, but I didn't put any importance on it, so over the years I have a funny cough but I didn't take much notice of it until up to the time I sought help from the doctors to check my lungs out in 1986 because I was getting distressed". This has been referred to as a "non-productive" cough. Mr Clarke in his statement (ex. 80) confirmed that he noticed the plaintiff with this cough which he said she "developed" some time after she joined the media section. She also complained to him of a recurring sore throat but attached little importance to it at the time. I place little weight on Mr Clarke's statement that when he retired he was -- 19 of 79 -- 19 suffering from "chronic airway and lung disorders". On several occasions before she became ill in 1986, the plaintiff complained to Mr Morgan, the Administrative Officer, about the inadequacy of the ventilation system and the state of the air conditioners. In mid-1986 she became very distressed one day and could not breathe properly. She was then in the media section. She noticed a great deal of fumes at the time. She complained to Mr Morgan who said to open the fire door to let some fresh air in. It was required to be kept closed. She had over a period made complaints to various persons including Mr Morgan, Mr Clarke, Mr Beasley, Mr Palmer and Mr Briskey. Mr Clarke, Mr Beasley, Mr Briskey and Dr Jamieson, the former head of the laboratory, did not give evidence. Mr Palmer, who was employed in the laboratory from 1972 to 1981, and in the ground floor section of microbiology for most of the time, was the head of microbiology and the plaintiff's superior. He said in evidence that he could not recall complaints from the plaintiff regarding the smell of noxious fumes or in relation to air conditioning or ventilation problems. He said that he did not put in place any formal system for lodgment of complaints. He could not say whether she would have always come to him and suggested that perhaps she may have gone to David Beasley "or someone like that". He said he would have hoped that she would have come to him. She complained to Mr Briskey who told her, "Don't be a whinger". She thereafter desisted complaining to him because she thought, "Oh, well, I'm just whingeing". She was obviously discouraged from complaining. She said she had -- 20 of 79 -- 20 complained not only about formalin and xylene but also about agar powders to Mr Clarke, Greg Palmer, Elaine Preston and David Beasley. Notwithstanding that some of these persons could not recall the complaints made, I find as a fact that the plaintiff did complain to people who were her superiors at different times throughout the 8 years she was in the media section concerning problems she perceived from the working environment at that time, and the effects on her of what she believed were the agar powders and their constituents. She also complained about formalin and xylene, as well as about the air conditioning and ventilation from time to time. Mr Morgan confirms this. Nothing was done in response to any of those complaints. A large number of witnesses were called to explain the procedures both in the media room as well as in the histology room, some as they applied before as well as after the plaintiff became ill in 1986. It is not necessary to refer to all of them. One of the plaintiff's complaints is that that the defendant failed to instruct staff as to the proper disposal of hazardous chemicals and another relates to the failure to properly ventilate the work environment and to keep the air conditioners in proper working order. This also concerns the adjoining histology room and is of considerable importance in this case. The nature of operations in histology is summarised by Dr Aiken as follows: "Histology, essentially, involves the processing of body tissues that are obtained during surgical operations, or sometimes from autopsies, to produce slides that are examined under the microscope for the purpose of making diagnoses of disease processes in those tissues. The tissues are, in most cases, sent to the laboratory in containers of formalin solution. The next procedure is usually for the pathologist to select portions, small -- 21 of 79 -- 21 portions, of those tissues for further preparation of microscopic slides. The small selected portions are put into little plastic cassettes and they are then processed automatically on a special machine that has a number of solutions through which the tissues are passed. The first solution is usually some more formalin. The next solution is alcohol, then xylene and finally paraffin wax. So, at the end of that stage the selected tissues have the water content taken out of them, and they are infiltrated with paraffin wax. That makes the tissues solid enough to cut on a special slicing machine called a microtome, and it's by producing very thin slices of those tissues that microscopic slides are prepared for examination." Formalin was usually supplied to histology in containers. Formalin is a solution of formaldehyde gas in water and is a preservative of body tissues. Dr Aiken said it was usually supplied in a concentrated form of a 40 percent solution of gas in water. He said that the solution is then further diluted so that the end result was a 4 percent solution of gas in water. It was agreed by all experts to be highly toxic and with a smell that was very easily noticeable even when in a very weak solution. Narelle Dianne Fabro worked in various sections of the laboratory from July 1979 until July 1984. She worked in biochemistry followed by six-monthly visits to various sections. She was a medical laboratory scientist and had a Bachelor of Applied Science Degree. She worked in the histology section for a period of 4 months during the first half of 1981. She said that human tissue whether from autopsies or surgical procedures, was delivered to the histology section in ice cream or similar containers covered with formalin. At times the samples were delivered fresh and she was instructed to cover them with formalin. She was never instructed to dilute the formalin that was in use, a point on which senior counsel for the plaintiff -- 22 of 79 -- 22 relied. He submitted that this suggests that what she used at times was the 40 percent solution as supplied and not the 4 percent diluted solution. She described the system generally. Tissue was then sectioned and put through a machine called a histokinet. She said the chemicals which the tissues were in were normally changed weekly but occasionally if a lot of tissues had been brought through, they may be changed more frequently. She said the chemicals were disposed of by being poured down the sink. She said it was a practice to retain tissue specimens for approximately 5 years, when they were then ultimately disposed of by incineration. Disposal of tissues took place on what were termed "throw-out" days and occurred at about 4 to 6 times per year. The tissues in the meantime were stored in formalin. On throw-out days the tissues and the formalin were simply tipped into a wire basket in the sink. The process would take about an hour at a time. The tissues remained in the basket until the formalin ran down the sink. The discarded tissue was then collected for incineration. Dr Aiken generally confirmed this throw-out procedure. Miss Fabro said there were "two of us just draining and tipping continually into the sink with the water running". She did not say whether this was the tap running, although it is a fair inference that that was what she meant. There were "buckets" of formalin disposed of in this way. She also referred to cut ups which occurred once at least and sometimes twice per day. According to Dr Aiken, the pathologist would take tissue from the formalin and cut it into little pieces -- 23 of 79 -- 23 on the bench and then would put them into little containers to go into the histokinet. There was a residue of formalin on the cut up benches that emanated from the tissues. Miss Fabro said that in general, formalin was never re-used but was always disposed of, although if part only of the tissues was taken for cut up and the balance was retain for ultimate disposal, that would be placed into the original container with formalin. The overall effect of her evidence, and the evidence of other witnesses is that formalin and xylene were tipped down the sink not only on throw-out days but quite regularly and probably daily. The evidence also shows that during cut up procedures the smell of formalin was much stronger out in the corridor. Dr Aiken in essence gave similar overall evidence. Miss Fabro, when asked whether she suffered any effects on her health when she was in the histology section, said: "When I was actually throwing out or disposing of tissues on those days, even with wearing a mask I would get irritation of the nasal passages and throat and where the mask would go around my face I would get a burning. I also had, whilst I was in the histology section, a severe irritation of the nasal passages and a growth appeared in my nose, that was subsequently removed very quickly." When asked did she make any complaints she said: "I made only verbal complaints as I was not aware of - I was quite young in those days and not aware that a written complaint should normally be forwarded." As to xylene, Miss Fabro said it was used when they made up microscope slides. When asked whether she noticed any ill-effect from that substance she said, "If I couldn't avoid the smell of it I would eventually get a headache from it". She agreed that there was a pervading smell of formalin both inside and outside the -- 24 of 79 -- 24 section. She said she had made complaints to the head of the section, who at the time was Miles Briskey, and also to Dr Jamieson. Soon thereafter she had an operation to have the growth removed from her nose and was moved out of that section. Dr Ian Lowe, a specialist in occupational medicine said that formalin was a potential carcinogen in the nasal mucosa, so far as animal experimentation was concerned. Dr Aiken said that there had been fears for some years that formalin and xylene may have had health risks and even a carcinogenic effect although there is no expert evidence which directly relates Miss Fabro growth in her nose to the formalin or xylene fumes. However, she obviously believed there was a connection. She said she was officially instructed to go back to biochemistry and she understood that this instruction came from Dr Jamieson. This shows that Dr Jamieson knew the potential damaging effect of formalin fumes on the health of staff. Other witnesses were called as to the procedure in histology. Some said the air conditioning system was satisfactory. Some said that there was no effect on them from the use of chemicals in that section. Some also said that it was the practice whenever chemicals were poured down the sink to make sure the tap was running in order to further dilute the substances and reduce the intensity of any fumes that might be exuded from the drainage system or otherwise in the histology room. Some of these witnesses spoke of the period after the plaintiff became ill. However, Dr Aiken made it clear that at no time when he worked in -- 25 of 79 -- 25 the histology section which was his primary responsibility from 1979 right through to June 1985 when Dr Jamieson retired, did he ever observe the tap running when formalin was being washed down the sink. Indeed, he participated in cut up and other processes at least once per day during which formalin was discharged on the benches from the chemical soaked tissue. Otherwise formalin was frequently tipped down the sink throughout the day. He said: "That would not have been necessary. Formalin itself is quite liquid, it would not have needed additional water to allow it to escape down the sink." Dr Aiken said he could never recall seeing the tap on at any time when formalin was being disposed of down the sink. I find that some staff adopted the practice of further diluting the discarded formalin by flushing it with the tap running in the sink while it was being poured down the sink but the general practice was not to further dilute it. Dr Aiken agreed that there would have been quite a strong smell of formalin on throw-out days. He said that he was more tolerant to formalin than other people. On days which were not throw-out days, he said the smell would be much the same as on throw-out days. He said that even whilst only the 4 percent solutions were being worked with, the smell would be much the same. He said occasionally specimens were sent into histology with higher concentrations of formalin and at those times there could be even a stronger smell of formalin for a brief period of time. There is also some evidence that containers with formalin at times leaked. He also said that in the early 1980s, xylene was disposed of -- 26 of 79 -- 26 by tipping it down the sink with alcohol. The addition of alcohol helped its disposal because xylene was not very soluble in water. With increasing awareness of safety problems with xylene as a hazard to the environment he said that this system changed some time in the 1980s so that it was disposed of by placing it into a drum to be taken away by contractors. He said that he could not recall complaints being made to him but on the other hand, he agreed that his role was primarily in relation to the professional conduct of the laboratory and was not concerned with other matters such as ordering formalin, workers' compensation claims, problems with air conditioning and the like. These were the responsibility of Mr Morgan, the administrator. Mr Palmer, up to 1981, visited media 3 or 4 times daily to inform the plaintiff what media were required. He said that he did not consider that the way the plaintiff performed her work was unsafe. He said that Mr Clarke taught her what to do, and that no one wore masks at Rockhampton or at any laboratory where he worked since that time. He said that he often smelt formalin fumes in the corridor particularly on cut up days. He also smelt it in the media room. He said it lingered in his nose from the corridor. The smell was overpowering when close to formalin. He had since worked in a laboratory in Sale for several years. He said that the method of mixing agar powders in the defendant's laboratory was similar to that used in various other laboratories. As far as xylene was concerned, he said that at Sale it had not been in use for at least 6 years because the view was held that it could affect the respiratory tract and had other possible side effects. -- 27 of 79 -- 27 It was replaced with another substance called hystalene. There is no evidence of such a change at the defendant's laboratory at any material time. Dr Aiken agreed that formalin was both an irritant and a sensitiser and that agar powders were often used in conjunction with peptones or protein substances, antibiotics and dyes, all of which could have potential effect as sensitisers. This particularly applied to antibiotics. Other experts gave similar evidence. He said that a sensitiser is capable of producing an immunological reaction within the respiratory system and capable of causing permanent disorder to the system. He said that he would have been aware of the possibility of the various sorts of chemicals potentially acting as sensitisers, and despite that awareness, no specific precautions were taken. He said that he had heard of no case of any person suffering any ill health from agar powders but agreed that he did not do any exhaustive search of the literature in that regard. When asked whether he was aware that agar powders contained peptones, dyes and antibiotics, he said: "I was certain I would have been aware of the possibility of those sorts of chemicals potentially acting as sensitisers, yes. Were you aware that they were within the agar compounds which were being used?-- Yes." Dr Aiken also gave evidence of changes that have been made since the plaintiff's complaints. This included the installation of a more efficient exhaust fan in the large fume cupboard, the relocation of the gas burners to inside the large fume cupboard, the use of the fume cupboard for mixing, hydrating and boiling -- 28 of 79 -- 28 media powders, the provision of better quality masks, and the provision of a safety guidelines booklet (ex. 85) which was since given to all staff. It was impressed upon each of them that they should read it before they commenced working in the laboratory, and follow its guidelines. Proper attention was given to the air conditioning systems. See also exs. 81, 82, 83, 84 86, 87. He agreed that there is some element of danger from chemicals in any laboratory and that it is appropriate to take measures to reduce them as far as possible. He gave the following evidence: "Since 1986 do you think those measures have been taken in the Rockhampton laboratory?-- For some time we have been looking particularly to improve the fume extraction facilities in the histology area of the laboratory and over a number of years there have been plans to relocate that section of the laboratory and in that relocation process upgrade the fume extraction capabilities. As yet, that has not occurred but hopefully will occur very shortly. Doctor, is that because you recognise a problem or potential problem in the histology section with formalin or xylene or both?-- I think we certainly recognise potential problems. I think, particularly over the last 10 or 15 years, there have been increasing concerns about formalin and xylene as producing potential health problems, the most significant perhaps of which is the probability that they could have carcinogenic effects. And ventilation is the key to protection of workers in these situations where they are exposed to chemicals such as formalin or xylene or dusts such as agar powders?-- Yes, certainly reducing the level of their exposure which would hopefully reduce the risk of any health problems associated with those substances." There is an overwhelming body of evidence which shows that fumes from noxious and volatile chemicals regularly permeated the corridor and stairwell from the histology room where they were used throughout the day and had done so for many years. This was from formalin and xylene. The smell was more severe in the -- 29 of 79 -- 29 afternoons when pathologists cut up specimens in the histology room. This occurred once at least and sometimes twice daily. Some witnesses including the plaintiff noted that this caused stinging to the eyes, nose discomfort, sore throats and the like. Complaints were at times made by staff, including the plaintiff, to persons in histology. It affected some more than others. Some persons became tolerant and used to it over a period of time. Some of these fumes also entered the media room from the corridor as well as from the floor vent. Miss Fabro had been shifted from histology as far back as 1981 after she developed significant symptoms. On the question of complaints generally, Dr Aiken referred to monthly safety meetings which occurred in the early 1980s but which became less frequent towards the mid 1980s. He said this was mostly for fire safety matters but other matters could be brought up at those meetings also. He was not personally involved in them but Dr Jamieson was. He said minutes were kept of those meetings but no significant minutes were produced. Dr Aiken said that the usual procedure was for a person with a complaint to bring it to the attention of the senior scientist in the laboratory or the supervisor of the technical staff. He agreed that complaints could have been made to Dr Jamieson or to Miles Briskey, a retired employee from the histology section, or to Mr Beasley, a senior scientist, none of whom were called to give evidence, and that complaints may not have come to his personal knowledge. As to the complaint regarding air conditioners, Dr Aiken -- 30 of 79 -- 30 agreed that there was observable scum on the vents which could have been a combination of dirt and mould. When the ducts in the biochemistry section and Animal House were cleaned out in 1987/1988 and new vents installed (see exs. 95 - 98) he observed large bagfuls of material being taken from the ducts. There would have been enough to fill a couple of wheelbarrows. See ex. 81 in particular. Also exs. 56, 57 indicate the clogged up state of the room air conditioner in the media room at about the time the plaintiff became ill. This obviously restricted the flow of air through the vents and filters and impeded whatever capacity the room air conditioner had to remove fumes etc to the outside. Mr Morgan, the Administrator, said that basically there was "nil" maintenance done on the ducted air conditioning system until 1987/1988. This is confirmed by Dr Aiken. Mr Morgan said that "the filters would be cleaned on a regular basis for the ducted air conditioning and, I assume, the contract included the cleaning of filters in the R.A.C.s". A contract was let each year by the Department of Housing and Construction which he said was for servicing "mainly the plant". He said that this was carried out on an "as required" basis, as well as with the room air conditioners upstairs in Animal House. Having regard to other evidence which I accept, the filters in both buildings and the ducts in biochemistry frequently became clogged and were not in fact cleaned regularly. See exs. 56, 57 and also the evidence of Dr Aiken. At times staff did some of this themselves, at least in the histology section. Mr Morgan said that when complaints were made to him, the -- 31 of 79 -- 31 maintenance of the air conditioning rested with the contractor. He said that whenever there was a problem he had to submit the complaint to the Department of Housing and Construction who, if it was thought appropriate, raised a requisition so that the contractor could be paid. Mr Morgan said he had no authority to instruct the contractor directly to attempt to rectify any complaints with air conditioning. From the foregoing, it is clear that at the very best, considerable delays were involved in getting action and even then, the evidence shows that room air conditioner filters and vents were significantly blocked at times material to the plaintiff's complaints. It is quite understandable that staff who had made complaints from time to time with little observable reaction would become disaffected. As indicated, complaints were made by the plaintiff from time to time about the efficacy of the air conditioning and ventilation systems before she became severely ill in 1986. Whilst not a great deal of weight can be attached to the statement of Mr Clarke (ex. 80), who could not be called to give evidence, it nevertheless provides some support for other evidence. I have had due regard to the objections by counsel for the defendant to parts of that statement. Mr Clarke said he made complaints to management to upgrade the ventilating system and other safety measures. A question was raised as to whether the air conditioners in place in the media room were of adequate size and capacity for the task of providing proper ventilation for a laboratory where noxious chemicals and other substances were regularly used. The -- 32 of 79 -- 32 plaintiff said that they were not replaced during the time she was there. They were through-wall units and may have been initially installed when the upstairs area was used for other purposes. Their age is not known. Mr Morgan said they were replaced as required. I find that none were replaced during the time that the plaintiff worked in the media room. There is no evidence to show that the capacity of these units was properly assessed to ensure that they were adequate to clear the air of noxious fumes and dust etc. emanating from substances regularly in use in the histology and media rooms. However, not a great deal can be drawn from those particular matters in the absence of specific evidence in relation to them. As indicated, the plaintiff said that after about 18 months or so in the media room, she developed a non-productive cough and sore throat. This was noticed by Mr Clarke. She did not place a great deal of emphasis on these symptoms for a time although she complained at times about the ventilation system and smell of fumes with no response. By the middle of 1986 she said she had developed symptoms of chest tightness, breathing difficulties, post-nasal drip, itchy eyes, blocked sinuses, swollen glands and a sore throat. Elaine Preston did swabs of her throat for the purposes of determining whether there was any bacterial infection and these proved negative. The plaintiff saw her general practitioner Dr Young on 26 August 1986. The medical notes (ex. 78) make no relevant reference to any viral infection although ex. 72, the plaintiff's sick leave record annexed to answer interrogatory 21, states that -- 33 of 79 -- 33 between 25 and 29 August she was off work. The nature of the illness is said to be "viraemid". This was said to represent a viral illness on which the defendant relied as the precipitating cause of her development of asthma soon thereafter. On the other hand, there is evidence from the plaintiff that the reason she gave her employer amounted to a self-diagnosis and that it did not mean that she in fact had a viral infection at that time. It was merely a reason given for her absence from work. There is no satisfactory evidence on which I can conclude that her development of asthma was attributable to any alleged viral illness. Dr Young found that the plaintiff had an obstructive pulmonary disease with narrowing of the airways and that the condition was aggravated by breathing air with impurities. She recommended a work environment containing clean fresh air. As a result, in November 1986, Mr David Beasley, the plaintiff's superior, transferred her to the biochemistry section in the main building. She believed that the reason for the transfer was that there was thought to be a clean air environment for her to work in that section. However, she said she was affected by solvents called alcide which were used to wipe down benches. She said that this gave her a reaction. She also felt grit or dust coming down from the air conditioning vents which I find at that time to be gummed up and polluted with dust or mould or other substances. She complained of her symptoms to Dr Aiken at that time. Dr Young referred the plaintiff for clinical measurements at the Base Hospital. Dr Kane diagnosed her as having emphysema on 26 November 1986. Whilst that diagnosis was later proved to be -- 34 of 79 -- 34 incorrect, it was regarded as significant by Dr Heiner, a thoracic physician who regularly and frequently treated the plaintiff since mid 1987 up to trial. His evidence in my opinion is entitled to considerable weight. Dr Heiner said that the diagnosis of emphysema indicated a very poor gas transfer in the lungs which was also a significant symptom of asthma. As indicated, she thereafter had numerous periods off work from 24 October 1986 until 11 February 1988 when she finally ceased work. She was formally retired from service from 20 January 1989 consequent upon the receipt by her of a notice of retirement from the defendant dated 16 December 1988 in which the grounds of retirement was stated as incapacity. The defendant had obtained various medical reports and accepted that she was incapable of working in her job. The plaintiff said that her symptoms got worse from mid to late 1986 onwards. Her breathing was difficult; her throat gave severe discomfort. She said it felt like an erosion at the back of her throat, the back of her soft palate and tongue. She was getting post-nasal drip continuously, sore eyes and her ears ached because of various glands which had become swollen around her neck just under her jaws and ears. She said: "My breathing was bad, my throat had become that way - I had like an erosion in the back of my throat, the back of the soft palate of my tongue, and I was always getting post-nasal drip, continuously, and sore eyes and my ears would ache because my glands would come up". Whilst away from the work environment from time to time during late 1986 to the time of her retirement, she obtained some relief but on every occasion on her return to work, it flared up again. -- 35 of 79 -- 35 At the present time she said that in the morning she has a lot of congestion like rhinitis and sinusy symptoms. This consists of post-nasal drip. She inhales mentholaire vaporiser fluid. She said it seems to relieve the symptoms and "I am coughing up quite a lot of mucus". She also takes medication prescribed by Dr Heiner consisting of ventolin and becloforte. She takes two puffs of each twice a day. She also has a mouthwash for her throat called difflam solution, and she uses antistine privinie eye drops. These symptoms she said are present every day. She has an inhalation every morning. At times and particularly in the early mornings, she has tightness in her chest. She has little stamina and must rest every day from about 12 noon for at least two hours. She says that air conditioning in shopping centres and other places affects her. Her throat becomes very dry. She is also affected by fumes from cars. She can tolerate air conditioning only for about 15 to 20 minutes because of the drying effect it has on her throat, soft palate and tongue. It also causes a drying of the nose and affects her ears. This was challenged by counsel for the defendant on the basis that no doctor had noted any discomfort when she had been present in air conditioned rooms, and on the basis that she allegedly showed no significant discomfort whilst giving evidence in court. However, she said that she had taken medication before court and on one occasion suffered some symptoms after leaving the witness box. Cigarette smoke also affects her as do bush fires. These matters trigger off her sinuses and post-nasal drip and basically cause her to cough. She describes it as "just a catchy cough". -- 36 of 79 -- 36 Various doctors said that a cough is often a significant symptom of asthma. The purpose of the medication becloforte is to stop asthma attacks whereas ventolin is used to relieve an attack when she gets it. She does not drive a motor vehicle and cannot tolerate the fumes from a car. These cause sinus pain, post-nasal drip and trigger off all of her symptoms again including her dry throat and coughing. This does not occur every time she is in contact with car fumes but frequently it does. On one occasion, her mother and father were staying with her at her house and her father parked the car in the garage which adjoined it. The smell or fumes from the car affected her adversely. There are some household detergents and chemicals which she cannot use. Recently when cleaning windows a window cleaning preparation had an adverse effect on her resulting in a outbreak of chronic sinus pain, post-nasal drip, dry throat, painful throat with glands swelling as well as a cough. She avoids the use of as many chemicals as possible including fly sprays. Glues and lacquers are particularly noxious to her and recently she was affected by a newly lacquered floor in a shopping centre. After she left work she spent some time on a property at Hughenden and in Townsville from 1989 to 1991. She found the experience at Hughenden very dusty and this also adversely affected her. In Townsville she experienced the symptoms at different times particularly when she came into contact with car fumes. She did some voluntary work for two or three hours per day during which she assisted a Catholic nun in meeting ships, handing -- 37 of 79 -- 37 out cards to sailors, and at times helping to take them to picnics when her health was satisfactory. She said that this was not a regular position. She only did it when she was able to. She has not attempted to obtain any employment since. Her case is that she is commercially unemployable. She has become involved with church activities. She walks every second day along a road to get to the beach. She has no social life at all because she cannot tolerate air conditioning and particularly cigarette smoke. She said that she never smoked although there is some evidence from other witnesses that she was seen casually to smoke at times in the past. She said that she had been in good health and had no respiratory troubles prior to working with the defendant. She intended working until she retired about the age of 55. Following the onset of symptoms and for various periods thereafter she became ill at times and was confined to bed. During those occasions she lived with her parents. She lost considerable weight. She had been instructed to go to bed and rest on medical advice. She said she needed assistance while she was ill. Her mother used to do the washing, ironing, and cooking, and her father used to run her to the doctor. She was independent in such matters as showering, toileting and the like. Otherwise they assisted her over about a month for about three hours per day. She still uses ventolin regularly as well as becloforte, difflam, eye drops, and an inhalation substance called mentholaire. She visits her general practitioner about five times per year. She is still being treated by Dr Heiner who she sees -- 38 of 79 -- 38 twice a year. During the course of her treatment with Dr Heiner she was taking prednisone tablets to relieve the swelling of her airways. She said that she had an asthma attack before she saw Dr Young. This was based on the symptoms she described she had at that time. She said she had a further asthma attack resulting from bush fires. She was prescribed ventolin to relieve that attack. She could not remember any other specific attack. However, Dr Young said that she observed the plaintiff having a true asthma attack on 17 October 1988. She complained of tightness of the chest. Her chest was wheezy with a peak flow of 260 litres per minute. That was the only occasion when Dr Young had actually observed an asthma attack. On other occasions, Dr Young said that the plaintiff mainly had upper respiratory symptoms, a factor upon which the defendant substantially relied. Dr Young said that she had no evidence of an acute asthmatic attack in October 1986 although this must be read subject to Dr Heiner's evidence relating to the symptoms which the plaintiff displayed at or prior to that time. Dr Heiner first saw the plaintiff in about June 1987 when she explained her symptoms to him. He performed various tests on her including a lung function test. He prescribed becloforte and ventolin. She was told to use these two substances every day. By a report of 14 July 1987, Dr Heiner diagnosed the plaintiff as having had asthma with evidence of reversible disease and hyperinflation. Subsequently Dr Heiner performed further lung functions tests on the plaintiff. Her small airway functions were -- 39 of 79 -- 39 "down from the value of 93 percent obtained 9 months ago". He advised her to use 2 puffs of ventolin twice per day and to increase the becotide to 2 puffs of becloforte twice per day. There is little doubt that in Dr Heiner's view the plaintiff suffered from asthma and that both upper and lower respiratory tracts were affected. This condition existed from some time in 1986. He continued to see her on subsequent occasions as his various reports show. In 1987 her small airway functions were roughly 70 percent but in September 1993 when he last saw her before trial, the small airway functions were 37 percent. The small airway functions relate to the lower lungs. This was a substantial drop in airway function and indicated a progressive decease over a period and represented significant lung damage. He said that the plaintiff was in a state of severe disability because of the progressively reduced lung function together with the fact that she had abnormal gas transfer as established by Dr Kane's diagnosis of emphysema in November 1986 at Rockhampton. She had very abnormally small airways and that several symptoms demonstrated by the plaintiff related to lower airway disturbance. These were the cough, mucus, coughing up sputum, and chest tightness of which the plaintiff complained. They signified an asthmatic symptom complex. When asked how asthma developed, Dr Heiner said: "Asthma occurs generally in two broad-stroke ways. There are those people who are born with asthma. So I will refer to them as being genetically programmed to develop asthma. Then there are others who may develop asthma if exposed to chemicals and/or various noxious gasses, etc. It appears that an immunological reaction occurs in the airway, and the airway becomes sensitised to become hyperactive. By hyperactive, I mean reacts to various -- 40 of 79 -- 40 trigger factors which are really non-specific and maybe climatic, maybe related to chemical exposure, maybe related to stress, maybe related to a myriad of different things, and when subjected to these trigger factors the airway narrows. Now, the exposure varies in different people. For example, one may take a known chemical sensitising agent, that is an agent that causes asthma in a person, and place 100 patients in the room and subject them to the same chemical exposure, and different individuals will develop asthma at different times and after their different exposures." When asked what is a sensitisation process he said: "It's an immunological event whereby the body reacts to the chemical by producing an anti-body which, in turn, causes a change of chemicals to be released from cells which in some way sensitise the airway. That's about as well as I can put it at present." This accords with Dr Aiken's evidence and that of other experts. Dr Heiner said that there were known sensitisers. When asked whether once sensitised by exposure to a particular chemical, other chemicals would produce a stimulus, he said: "Early on, during the exposure, people may initially only be sensitive to the chemical that causes the sensitisation, and there are some individuals and, possibly, all individuals, who if removed from the sensitiser at some particular time may, in fact - their lung function may return to normal, but in all people who are exposed to sensitisers, all of them will go on to develop a garden variety asthma - if I may refer to it in that terminology - after a certain level of exposure. By that I mean they will certainly react to the chemical that caused the problem, but also they will react to all the non-specific trigger factors that other asthmatics also react to." He agreed that various matters constitute trigger factors. These include air conditioning, car fumes, smoke from cigarettes, bush fires, dust, chemicals such as detergents and cleaners in the home, glues, lacquers, and perfume, all of which the plaintiff complained about. He also agreed that chemicals used in a hairdressing salon are likely to bring on an asthma attack. He -- 41 of 79 -- 41 said that sensitisation process probably operates throughout the entire airway from the nose to the terminal bronchioles. He also agreed that apart from sensitising chemicals, there are other chemicals and substances which act as an irritant to the respiratory system but do not produce a sensitising effect while at the same time they may well exacerbate or aggravate asthma in a patient known to have the disease. They may precipitate the development of asthma. He agreed that formaldehyde or formalin is a sensitising agent as well as an irritant. In effect, what the doctor said was that if the person is initially sensitised by some substance and is removed from that agent, other factors can bring on an asthma attack. Dr Heiner said that the plaintiff's complaints related to both the upper and lower respiratory tract and extend from the sinuses to the lungs themselves. He said that the upper airway symptoms are referred to as allergic rhinitis type symptoms whereas the lower airways symptoms are referred to asthma type symptoms. When asked for the plaintiff's prognosis given that her lung function seemed to be decreasing he said: "Well, in patients who have been sensitised in general, once a critical point is reached they often have asthma that goes on to be very, very difficult to control, asthma which continues to deteriorate and be subject to exacerbations and remissions from time to time. That is one factor. Another factor when we are looking are males and females, young age onset or maturity age onset - we can divide the prognosis on that basis as well - and as a general rule maturity onset asthma women, women over 30, often have asthma that deteriorates quite markedly in later life." This he said could be anywhere between the age of 45 years and 60 years. He agreed however that different people react in -- 42 of 79 -- 42 different ways to irritants and sensitisers. He said that the plaintiff's lung function was fairly serious considering her age. He said that in the case of a person with a 37 percent lung function which was severely affected, and who developed an acute asthma attack, the reserve is not there. In other words, such an attack could be fatal. He disagreed with the suggestion put to him that the plaintiff's asthma was very mild. Of some importance was the view he expressed that considering that the plaintiff was totally free of asthma up to age 26 or 28 and was then is exposed to various substances such as those she complained of for up to 10 years, that fact alone could cause her to develop asthma and that even when that exposure was removed, the condition could remain. He said that formalin could have sensitised her airways and that other irritants could have adversely affected her as well. Dr Heiner agreed that the plaintiff could sit down and do some work providing she was not exposed to any form of chemicals or irritants. He said that she could not do physical work with her small airways. Dr Heiner's opinion is supported substantially by Dr Gordon L T Wright, a respiratory allergist who gave evidence and prepared a report (ex. 41). He examined the plaintiff on two occasions, 26 October 1992 and again on 2 November 1992. On both occasions there was no evidence of asthma either on clinical examination or by respiratory function test. He said this may have been due to her being on constant medication such as ventolin and becloforte because that not only suppressed the usual clinical -- 43 of 79 -- 43 findings but also suppressed exercise induced asthma. He formed the view that the symptoms observed by Dr Young in 1988 showed that the plaintiff had chronic upper respiratory disease and reversible airway obstruction "typical of asthma". He concluded that the plaintiff was suffering from chronic rhinitis and sinusitis and asthma, and said that there was little doubt that these had been caused by exposure to the various substances at her work which are listed under the heading "Miscellaneous Chemicals" and are the chemicals contained in ex. 4. He said that her rhinitis and sinusitis were stationary and probably would not improve. There was a likelihood of her developing nasal polyps and grossly infected sinuses for which she may need surgery at some future date. It will be recalled that Miss Fabro had developed a growth in her nose which required surgical removal. He further said: "Her asthma commencing at age 34 is asthma of a nature onset. Once established it tends to progress in spite of treatment, especially after age 40 years to a chronic completely disabling disease with spontaneous acute exacerbation. Many patients die in such an exacerbation." As to her ability to work he said: "On the personal side Miss Case needs retraining and rehabilitation but even then there are major restrictions as to what she could do. It would need to be light work in the absence of air conditioning or exposure to cigarette smoke, fumes, dust, perfumes etc. She may also have to live away from air polluted major towns and even coastal districts. In addition she will need constant medical care, some of a specialist nature. At the present time, one would assess her disability at about 70 percent; this can be expected to increase to 100 percent by age 55 years, although there will always be some people who, having found a suitable niche, will carry on after nearly all others would have given up." -- 44 of 79 -- 44 He was firmly of the view that the conditions of rhinitis, sinusitis and asthma are all related. She had to keep out of laboratories or any place where chemicals of any sort could cause her to suffer the symptoms of which she complained. He was of the view that she was very limited in doing anything of a physical nature. He said that her condition could prove fatal. Dr Wright disagreed with the suggestion that the asthma was extremely mild. He said that she was moderately affected by asthma, that it was likely to get worse during her lifetime, and that there was little likelihood that it would improve. He also said that where a person is sensitised to chemicals they may suffer a severe reaction to other substances such as car fumes, hairspray, etc. Because the defendant has not in the end resisted a finding that the plaintiff is suffering from asthma, it is not necessary to examine the evidence of the other experts in detail. In saying this I do not overlook the evidence of Drs Mitchell, Hickey and Solly. None of these doctors had actually witnessed the plaintiff with any asthmatic symptoms and had not been aware of the fact that Dr Young, in 1988, had actually observed the plaintiff suffering an asthmatic attack. Also Dr Mitchell had acted on the assumption that the plaintiff's tightness of the chest in the early morning was due to her rolling over in bed and some of the specialists called by the defendant were unaware of the latest air function tests conducted by Dr Heiner. Dr Mitchell, when these facts were put to him, agreed that the plaintiff had moderately severe asthma. I generally accept Dr Heiner's evidence. Defence counsel conceded that all relevant medical witnesses -- 45 of 79 -- 45 said that once a person has developed asthma through a process of sensitisation, it was not uncommonly the case that exposure to a wide range of irritants would produce symptoms of asthma. However, he submitted that the evidence did not establish that this is the case with the plaintiff whose main complaint is that when she is exposed to a very extensive range of irritants not associated with the work place, such as car fumes, solvents, sprays, perfumes, glues, air conditioning, smoke etc., she suffers symptoms which are predominantly upper respiratory tract symptoms such as sinusitis, rhinitis, post-nasal drip, ulceration of the mouth, sore throat, dry throat, sore watering eyes, swollen lymph glands, and a cough when exposed to smoke. He submitted that these symptoms were not symptoms of asthma but symptoms of an upper respiratory tract problem which had nothing to do with asthma. Symptoms of asthma he submitted related to problems affecting the lower respiratory tract such as shortness of breath, tightness of chest, wheezing, and cough. There is of course undisputed medical evidence that a cough even on its own can be a significant symptom of asthma as counsel for the defence recognised, although he submitted that it does not necessarily follow that a cough was evidence of asthma. However, it must not be overlooked that the plaintiff gave evidence that she woke at times in the early morning with a tightness of the chest requiring ventolin and that she frequently coughs up mucus. These are said to be symptoms of asthma which is generally kept under control by medication. On the question of her symptoms in relation to the upper -- 46 of 79 -- 46 respiratory tract, counsel for the defendant urged that many of those symptoms were subjective and not supported by objective criteria or observed by medical practitioners so that the Court should be very sceptical in accepting that they occurred as frequently as the plaintiff claims and to the extent to which she claims, or that they along with her asthma rendered her totally incapable of ever engaging in remunerative work. It was urged that she overstated her disabilities. I have borne in mind these submissions in my assessment of the overall evidence and in particular the credibility of the plaintiff. Counsel for the defendant further submitted that these reactions, to the extent that they existed, demonstrated hypersensitivity to a wide range of environmental factors which had nothing whatever to do with her work place. Neither Dr Mitchell nor Dr Hickey, who gave evidence for the defendant, could relate the condition to exposure to chemicals at work, whereas the plaintiff's complaint is that prior exposure to a wide range of chemicals and noxious substances at work so affected her as to render her prone to reaction from an extensive range of environmental factors, even when removed from those initial "triggers" in the work environment. In other words, the plaintiff alleges that her whole respiratory tract was "sensitised" and permanently damaged by those triggers, which now have rendered her vulnerable to a variety of other substances and factors. Counsel for the defendant further submitted that if the plaintiff was a hypersensitive person before she commenced working with the defendant, until there was some reason for the defendant -- 47 of 79 -- 47 to have appreciated her hypersensitivity to develop asthma, the defendant's obligation to her was to comply with the duty of care to the ordinary non-hypersensitive worker. This doubtless is correct if the plaintiff was previously hypersensitive. In this regard, he pointed to the fact that as soon as she made complaints in 1986 about her symptoms, she was immediately moved from media to biochemistry. The plaintiff's case however, was that this occurred too late and after the damage was done. Defence counsel also relied on statements by the plaintiff when asked when her symptoms began. She said: "I feel that the symptoms had been coming on gradually until I got chronic" and "Looking back I really feel that they began when I started in the wash up section when I was using the acetone". This was a reference to the sterilisation section where she worked from 1974 to 1978. The plaintiff said she used to get irritated by acetone but did not place any importance on any symptoms at that time. The defendant also relied upon the evidence of the plaintiff's father, Mr Mervyn Case, which on its face suggested that the plaintiff's symptoms commenced in or about 1974, long before she moved into the media room. It was urged that the Court should accept this evidence to show that her symptoms first developed from about 1974 onwards. It was submitted that statements by various medical witnesses were based on the assumption that her complaints did not develop until about 12 to 18 months after she was transferred to the media section in 1978. Dr Mitchell said that if the plaintiff's -- 48 of 79 -- 48 symptoms in fact began in 1974 then in his view the chemicals she was exposed to in the media section after 1978 could not be implicated in the cause of her symptoms even though whilst in the media her condition might have been temporarily aggravated by those chemicals. He said: "I think she had symptoms which were suggestive of asthma prior to working in the media section and it suggests that she had asthma before that and that then raises as much more likely the situation that she had pre-existing asthma which may have been aggravated by a substance in the media section. It doesn't say whether her asthma was or was not caused by something where she was working at the time. It would depend on the environment in which she was working, but if she wasn't exposed to anything prior to 1978, or thereabouts, that is known to cause asthma, it would suggest that she had asthma developed de novo without any possibility of work causation." Dr Hickey likewise said that on the assumption that her symptoms first developed in 1974 it was unlikely that there was any connection between the plaintiff's work environment and her asthmatic condition. He did not deny that irritants could cause a temporary asthmatic reaction but said that the media chemicals could not have been involved in causing the plaintiff's asthma if symptoms developed or began prior to her working there. It was further urged on behalf of the defendant that there was no proven connection between the plaintiff's symptoms in relation to her upper respiratory tract, and her work environment. Much evidence and debate occurred as to whether or not the plaintiff suffered from a condition called "multiple chemical hypersensitivity" or "multiple chemical sensitivity" ("MCS"). It was urged on behalf of the defendant that medical science does not know of any connection between exposure to some chemicals and the development of hypersensitive reaction to a vast range of -- 49 of 79 -- 49 different chemicals or other environmental factors. Counsel relied primarily on the evidence of Dr Mitchell who said he believed that there was no relationship whatsoever. He said that if the plaintiff had these symptoms following exposure to a wide variety of environmental factors, it suggests that she was a very reactive individual and likely to have been like that previously. He said there was no evidence in people labelled as having multiple chemical sensitivity that exposure to any one substance can actually initiate the increased sort of susceptibility that occurs to a wide variety of chemicals. He held that opinion very strongly. It was one he thought was supported by literature. He relied on a 1993 book headed "Asthma in the Work Place", an extract of which is ex. 99. In particular the following passage was relied upon: "Patients having these symptoms also claim that prior exposure to one or several chemicals were the triggers of current responses to a broad range of unrelated chemicals or odours. None of these multiple chemical reactions have been documented by objective immune or provocative responses. It should be emphasised that the atypical and at times bizarre spectrum of non-pulmonary symptoms associated with the MCS syndrome bears no relationship to RADs or other chemical induced cases of occupational asthma. Therefore, disability compensation of MCS symptoms based on prior occupational exposure alone is not justified by the available facts." Dr Hickey appears to have expressed a somewhat similar view. The conclusion of that text however appears to place somewhat of a caveat on the above passage. It provides: "With the increased use of new chemical products daily appearing in work place settings, it is highly probable that the list of agents categorised under the heading of miscellaneous chemical products causing occupational asthma will grow. It is also likely that the increased use of these products will result not only in more documentation of individual cases but also proper surveys -- 50 of 79 -- 50 of work places where the products are used. As for other low molecular weight agents, more studies exploring the mechanism of sensitisation are needed." Senior counsel for the plaintiff submitted that the subject of multiple chemical sensitivity was a red herring put up by the defendant at the trial and then shot down as not proven by the plaintiff. However, as pointed out by counsel for the defendant in reply, this condition was first mentioned as such by Dr Solly in his reports of 19 April 1988, 7 September 1989 and 9 September 1993 (exs. 75 - 77). In his latest report dated 9 September 1993, Dr Solly said that many of her clinical features are not inconsistent with a condition which is commonly referred to as multiple chemical hypersensitivity. He went on to say, however that it was an extremely complex disorder and that "in any instance it is very hard to prove or disprove whether these chemical reactions are real because the vast majority of the symptoms are subjective, with specific testing not currently being available to provide objective support for the diagnosis". He went on to say that he knew of no way which could prove or disprove whether the conditions in the laboratory could have caused the reaction in the first place. He also said that her overall prognosis was guarded and that it was likely that she would continue to have hypersensitivity to these volatile substances for many years to come. He forecast that there was no reason that her condition should worsen over time and it was highly possible that it could improve. However, in his earlier reports dated 19 April 1988 and 7 September 1989 he said: -- 51 of 79 -- 51 "I understand however that she had impaired lung diffusion capacity, and because she has worked for 15 years as a laboratory assistant in the microbiology section of the Commonwealth Health Laboratory in Rockhampton it seemed highly possible that she had developed some hypersensitivity response to chemicals or perhaps some organic material in the work place. She then apparently became aware that exposure to agar powder and a chemical such as xylene did seem to irritate her but they would primarily affect her throat rather than her chest acutely." and: "It appears to me clinically that there was very strong circumstantial evidence in her history to indicate that her chronic lung disease and recurrent pharyngitis were at least aggravated by various fumes to which she was exposed in her working environment. It is difficult to say for certain however whether these factors caused her to have the problem in the first instance. Unfortunately I do not have a specific test which will prove or disprove this kind of hypersensitivity and thus I am very much dependent upon the patient's description of the clinical details." Senior counsel for the plaintiff submitted that there was an overwhelming body of medical evidence to show that exposure particularly over a period of eight years in the media section, could produce irritation and long term damage, and a sensitisation of the entire respiratory tract. He relied upon Dr Solly's evidence and that of other specialists that the respiratory tract starts at the nose and finishes at the bottom of the lungs. His basic submission was that all the plaintiff had to do was to swear that she was in previous good health and that she was affected by various chemical agents and other substances in the work place which produced certain symptoms in her in circumstances where no other cause was suggested or advanced. It was said that the plaintiff could prove causation by a circumstantial case and it was not incumbent upon the plaintiff to negative every other -- 52 of 79 -- 52 possible cause. He relied upon Watts v. Rake (1960) 108 C.L.R. 158 at 159 per Dixon C.J., at 163 per Menzies J.; and Purkess v. Crittenden (1965) 114 C.L.R. 164 at 168. He submitted that the best case advanced on behalf of the defendant and particularly from the evidence of Dr Mitchell and Dr Hickey was that it was not known what caused the plaintiff's problems either with respect to asthma or with respect to the symptoms she experienced in relation to the upper respiratory tract. Dr Mitchell said he could not explain the condition she suffered from or its cause, although as indicated, he agreed with reports in the text that there was little objective evidence to link the plaintiff's sensitivity with the work environment. It is obvious that in a case like this a great deal turns upon the credibility of the plaintiff and other witnesses as to when her relevant symptoms first developed and what those symptoms were. Insofar as she said that when looking back she really felt her respiratory tract symptoms may have commenced about 1974 when she was using acetone, it must be remembered that she has no medical or other qualifications. She said that any reaction she had to acetone was temporary and that she did not think anything more about it. It was an irritation to her. Dr Winter said that it was an irritant. There is no satisfactory evidence to show that it was the ultimate cause for asthma or that it had any sensitising effect or had caused any permanent damages. I find accordingly. I accept that there is not a great deal of objective support for all of the upper respiratory tract symptoms of which the -- 53 of 79 -- 53 plaintiff complains, but I have carefully observed her demeanour in the witness box. While she appeared flat and almost disinterested at times whilst giving evidence and appeared to be very tired, which may have been partly due to her medication and general condition, I am persuaded that she was in substance telling the truth. Insofar as it was said that some of the plaintiff's symptoms were subjective, it is timely to recall the remarks of Douglas J. speaking for the Full Court in Watson v. Lardsman (W 2494 of 1974, 16 November 1976, unreported), in refusing to upset the assessment of Wanstall SPJ. His Honour said: "[the Trial Judge] adopted a proper attitude when he said, 'she is not to be compensated according to the casual observer's assessment of the degree of her disfigurement, nor according solely to its objectively measurable extent but according to the latter coupled with her not unreasonable reaction to it.'" Also I prefer her evidence as to when she developed significant symptoms, to that of her elderly father who was partly deaf and obviously confused about the specific times when she developed any particular symptoms at the laboratory. Of some significance is the fact that she lived with her parents until the early 1970s and up to the time not long before she commenced working with the defendant. Mr Case said that she was a very healthy child and healthy before she joined the Hospital. There was no suggestion and it was not put to him that she had symptoms of any kind of the nature of which she subsequently complained after working at the Hospital, at any time prior to her joining the Hospital. There is no history of prior respiratory problems of any sort in her or other members of her family including her -- 54 of 79 -- 54 parents and siblings when exposed to household solvents, detergents, fumes, smoke and other environmental factors to which she reacts. Indeed, his evidence is to the contrary. Mr Clarke in his statement said he was employed in the media section from October 1969 until January 1981. He agreed that the plaintiff joined that section in 1978. His statement reads: "During my period of employment with Ms Case, I noticed her develop a non-productive cough and she often complained of a recurring sore throat, but at the time I placed little importance in it." This statement is entitled to some weight. Mr Clarke did not say that she had this cough when she first joined his section,or that she displayed any other symptoms during the early stages of her period in media. The inference is that she developed the cough and other symptoms sometime later and is more in keeping with her own account. I find accordingly. The opinions expressed by various doctors based upon the possibility that the plaintiff's symptoms developed prior to her joining the media section in 1978 must be qualified accordingly. I have not overlooked the fact that various doctors were given accounts of the plaintiff's symptoms which were not entirely consistent in all respects. To some she said that she was very well until the first half of 1986; to others she said she had been in good health until November 1986. In my opinion, these variations do not affect the overall result of the case. Variations of this nature are to be expected, particularly when the plaintiff is interviewed by different doctors over different periods of time and much also depends on the nature of the questions asked of her and the material then available to each of -- 55 of 79 -- 55 the doctors concerned. Mention is also made of the fact that in some aspects, not all specialists were fully appraised of all the facts and circumstances prior to giving evidence in Court. This is not unexpected in a case of this type. In the end, I do not think it matters very much whether what has virtually been conceded to be the asthmatic condition of the plaintiff, is something which is quite different from her condition involving the symptoms she experienced in her upper respiratory tract, or whether that condition is or is not part of her asthmatic condition. The Court is not required to come to any specific diagnosis. It is true that lawyers traditionally advance a case involving damages for personal injuries on the basis of a specific and clear cut finding or diagnosis of a particular condition, e.g. a broken leg with a 40 percent residual incapacity. I do not think that this is always necessary and is not an essential function of the Court in all cases. The Court is concerned with the plaintiff's overall condition and whether that condition (however described) has been shown to have been caused by exposure to her work environment. The plaintiff at times has displayed what might be termed traditional asthmatic symptoms or symptoms affecting the lower respiratory tract, such as tightness of the chest, shortage of breath, cough, coughing up sputum, etc., and as indicated, Dr Young in fact witnessed one such attack in the latter part of 1988. It must not be overlooked as Dr Wright pointed out, that the plaintiff has been under constant medication for the prevention and alleviation of asthma since Dr Heiner first treated -- 56 of 79 -- 56 her in the middle of 1987, and that this factor alone would hopefully reduce to a minimum the observable asthmatic symptoms. There is however the evidence of her diminishing lung airway capacity which is a serious matter evidenced by the various lung function tests. Senior counsel for the plaintiff appears to have suggested that her complaints affecting her upper respiratory tract are all the result of a sensitisation of the entire tract commencing from the nose to the lower reaches of her lungs. There is some medical evidence to support that submission. Also, it is not conclusive against the plaintiff that some experts called on behalf of the defendant are unable to relate the plaintiff's symptoms of which she mostly complained, to any exposure she had to chemicals or other substances in the work place. The fact that a connection between multiple sensitivity to a wide range of chemicals or environmental factors has not been documented in medical or scientific literature as being related to previous exposure to substances in the work place, does not in my opinion mean that there is no necessary connection. The extract from "Asthma in the Work Place" (ex. 99), leaves open this question as dependent upon further research. All this means is that so far, medical science has not demonstrated a necessary connection. However, it is not the function of a Court of law to resolve questions of medical or indeed any other science. I can do no more than refer to a passage in the judgment of Connolly J. in Obstoj v. Van Der Loos (W. 203 of 1985, 13 April 1987, unreported). In that case it was accepted at the trial that the -- 57 of 79 -- 57 plaintiff was suffering from temporal lobe epilepsy but what was in dispute was whether it had been caused by the negligence of the defendant in the motor vehicle accident. The plaintiff immediately felt dazed. She was not rendered unconscious. She had been on the way to a meeting and after the accident was taken by a taxi to that destination. It was not until a week or two after the accident that she felt dizzy and lost consciousness. One doctor said that he could not offer any other explanation for her subsequent development of epilepsy. A strong body of medical opinion however was to the contrary. His Honour said: "The contrary view which, it is right to say, would seem to be held by a majority of neurologists, is that head injuries which lead to epilepsy are usually associated with a prolonged period of loss of consciousness with intra-cerebral haemorrhaging and neurological deficient. I take that statement from the evidence of Dr Atkenson, who has said that he could not recall, in 20 years of neuro-surgical practice, seeing a patient who had had brain damage from a whiplash injury. It is apparent that to many, particularly in the medical profession, this case is thought to involve questions of major importance in neurology. It is understandable that it should be so seen but it should be emphasised that it is no function of a Court of law to resolve questions of medical, or indeed any other science. The precise state of medical art and understanding is of great assistance to a Court in attempting to resolve a question such as the central issue in this action but, at the end of the day, many other factors enter into it. Even if the proposition so forthrightly stated by Dr Atkenson is a sound general statement, and, on the evidence I have heard, I have no doubt that it is, there are obviously other factors which, in the given case, may lead to the conclusion that the case is exceptional. The function of a Court of law in a situation such as this is to determine whether , for whatever reason, it is more probable than not that there is a cause or relationship between the accident and the plaintiff's post-accident condition." That principle is equally apposite in this case and depends upon all of the evidence which I accept. There is the considerable -- 58 of 79 -- 58 body of evidence which satisfies me that many of the substances to which the plaintiff had been exposed for a long period of time (8 years) were not only sensitisers but also irritants. This is so not only with regard to formalin, xylene and hydrochloric acid, but also with regard to some of the constituents used in the preparation of media and the use of agar powders. It is not sufficient for it to be asserted that basic agar powders are harmless. What is important are the constituents used with them and there is clear evidence from Dr Winter and others that some of the constituents such as peptones, protein material, yeast and antibiotics could have a significant sensitising as well as an irritating effect. Dr Aiken recognised this. No other employee had worked in the media section for such a sustained period virtually alone. Nor does the evidence show that any other employee worked for a similar period in the media section. There is also medical evidence which I accept that whilst sensitisation and damage can result from a single exposure, particularly where that exposure is to a very high concentration of noxious substances, the more likely scenario is that damage to the respiratory tract occurs after a long period of exposure to noxious substances of a lesser degree of intensity. This in my view amply explains on the balance of probabilities the position with regard to the plaintiff. It also accords with the evidence of those witnesses who said that they did not notice a strong smell of formalin in the media room on other than throw out days. This did not exclude the presence of the smell of formalin at a lower level of intensity at other times in accordance with the -- 59 of 79 -- 59 evidence of the plaintiff and indeed is amply supported by the evidence of such witnesses as Miss Fabro and Dr Aiken, regarding the method of disposal of formalin and xylene down the sink into the drainage system at the relevant times. Also it is not to the point to rely upon the smell of formalin in the media room after the plaintiff became ill particularly when systems changed, more precautions were taken and the method of disposal of formalin and xylene had changed. There is also what I find to have been a defective air conditioning and ventilation system in the media room as well as in the histology room which unnecessarily accentuated the plaintiff's exposure to noxious substances. I therefore have no hesitation in concluding on the balance of probabilities that the plaintiff has contracted asthma with its serious and deleterious effects upon her lower respiratory system, but also her upper respiratory tract has likewise been damaged resulting in the many symptoms of which she has complained from time to time. I find that her condition from middle 1986 and subsequently to the present time was caused by conditions in the work place and in particular whilst she was in the media room. Her whole respiratory tract has been sensitised thus making it very sensitive to exposure to a wide range of substances other than those involved in the laboratory. I am also of the opinion that the plaintiff's asthma is at least moderately severe and that she will need continued medication and treatment probably for the rest of her life. She has very little staying power. She must rest every day for at least 2 hours. Also I am of the opinion that she will continue to -- 60 of 79 -- 60 suffer from exposure to the wide range of environmental factors referred to above which are likely to affect her upper respiratory tract in the way described. She must be extremely careful of the presence of any fumes or other aggravating circumstances. It follows from the above findings that I conclude that the plaintiff did not contract her present condition or any part of it either naturally or away from the work environment. Her asthmatic condition and other symptoms of which she complains were probably caused by a period of work in the media room at the defendant's laboratory. The next question to the considered is whether or not the defendant was negligent in its conduct of the laboratory and in particular the media room in which the plaintiff was exposed to the substantial range of noxious materials and fumes for 8 years. Ancillary to this is whether or not the defendant was negligent in the way in which it conducted the procedures in the histology room adjoining the media room. The duty of an employer towards its employees was stated by the High Court in Turner v. The State of South Australia (1982) 56 A.L.J.R. 839 at 840: "The duty of an employer is to take reasonable care to avoid exposing his employees to unnecessary risk of injury: Hamilton v. Nuroof (W.A.) Pty Ltd (1956) 96 C.L.R. 18 at p. 25. The employer is not an insurer of his employees against danger. '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 adopt means reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his tasks without unduly impeding its accomplishment.': Vozza v. Tooth and Co. Ltd (1964) 112 C.L.R. 316 at p. 319. When the employer does unreasonably fail to take a precaution against danger, the plaintiff cannot succeed -- 61 of 79 -- 61 unless he satisfies the Court that if that precaution had been taken the injury would probably have been averted, or, in other words, that the safety measures would have been effective and that he would have made use of them if available: Duyvels Hoff v. Cathcart and Ritchie Ltd (1973) 47 A.L.J.R. 410 at pp. 416-417, 419." The defendant relied upon general evidence adduced of practices in various other laboratories in Australia and New Guinea, and in particular in relation to the method of preparation of agar powders on a bench and not in a fume cupboard. The evidence shows that in many of those laboratories, masks and gloves were not worn and that the whole procedure is not in general prepared in a fume cupboard. It is true that the defendant may not be negligent if it was reasonable for it to adopt a widely accepted and widespread practice used throughout the industry providing the circumstances in which the practices were used are comparable. The difficulty with this evidence however, as senior counsel for the plaintiff submitted, is that the whole work environment of other laboratories would have to be compared specifically with the whole environment applicable in the media room at relevant times. It is not necessary for me to find and I do not find, that any one of the substances to which the plaintiff was exposed caused her condition. In my opinion it was a combination of exposure to agar powder and in particular to some of the constituents used with it, as well as the constant exposure to fumes from formalin and xylene. She was also grossly affected by hydrochloric acid on occasions when she was required to use it. The precise layout of other laboratories was not placed before the Court. It does not appear whether an histology room was -- 62 of 79 -- 62 adjoining a room used for media preparation or whether there was a common drain with a vent into the media room which discharged fumes from substances emanating from the histology room. Nor is there evidence of the method of disposal of such substances in other laboratories. There is the added problem of the common corridor through which strong fumes from formalin and xylene permeated constantly throughout the day. Nor is there any evidence of the precise nature of air conditioning and cross- ventilation, if any, used in other laboratories when compared to the media and histology rooms at the Rockhampton Base Hospital at all material times. It is not enough merely to say that media was mixed in another laboratory which was air conditioned. The existence of air conditioning on its own may not be enough. There may well have been other cross-ventilation, exhaust fans and the like. There is also the question of the state of those air conditioning and ventilation systems and the maintenance of them. In one case, a witness said that agar powders were mixed on a bench before an open window. In any event, I find the evidence of Dr Winter compelling. In the result, the evidence of practices in other laboratories to the extent to which those practices have been placed before the Court, does not aid the defendant in this case. In this case, the potential risk to health of substances such as formalin and xylene, and some of the constituents used with agar powders has been known for many years. This has emerged from the evidence of various experts in the case, and in particular, Dr Aiken said that potential problems have been recognised and -- 63 of 79 -- 63 increasing concerns have been held over the last 10 or 15 years particularly with regard to formalin and xylene as producing potential health problems. Indeed, there is direct evidence that Dr Jamieson knew in fact of the effects on Miss Fabro of exposure to fumes from formalin and xylene as early as 1981. There were also complaints by staff including the plaintiff over the years to various persons their senior. I have also found Dr Winter's evidence helpful in this regard. This also indicates that the scientific community has recognised potential problems with formalin, xylene and certain agar powder constituents for many years. Dr Ian Lowe, said that formalin was an irritant and sensitiser to the respiratory system as well as to the skin and it had a potential carcinogenic effect in the nasal mucosa at least as far as animal experimentation was concerned. He said that if a person came into contact with it, he or she would develop symptoms in the respiratory system of the type complained of by the plaintiff. Dr Savage said that if the question had been considered by him 1980, he would like to think that he would have made a recommendation that persons working in a laboratory should not breathe in any substances such as agar powders for health reasons. Indeed, Dr Mitchell said that agar powders are sensitisers and he regarded them as the "best bet" as the cause of the plaintiff's problems. I find that the defendant knew or ought to have know of the dangerous properties of formalin, xylene, hydrochloric acid, and some of the constituents used with agar powders and of the likelihood of injury to the health of staff including the -- 64 of 79 -- 64 plaintiff who was exposed to such substances for a sustained period of 8 years. In spite of this knowledge and in spite of complaints from employees including the plaintiff from time to time, no warning or instructions were given to employees as to the dangers or potential dangers of exposure to it, or the need to take precautions such as the provision of safety equipment, suitable masks, etc. which could easily have been provided. Nor were other steps taken to minimise, if not eliminate, the risk to staff. Further it emerges that some employees in the histology section in disposing of formalin and xylene down the sink, had the tap running to aid in the flushing of those substances down the drainage system. The evidence, particularly from Dr Aiken, also demonstrates that this was not the general procedure and some employees did not do so. The method of discharge of these substances down the sink was "catch as catch can". Some used water to flush them down, some did not. The fact that some did it indicates that the defendant knew or ought to have known that this was required in all circumstances in order to dilute and minimise the effect of fumes emanating from the drainage system into the media room. The defendant failed to put in place an instruction or a proper system which ensured that it was done in all cases. Had it been done, this would have minimised the effect of fumes from such substances in the media room from the drain, as well as the effect of such fumes in the corridor and also from the corridor into the media room. The drainage system from the histology and media rooms, with -- 65 of 79 -- 65 its open floor or vent inside the media room, was defective. The vent was set in a terrazzo floor which appears to be of very old construction. No attempt was made to design a pipe vent through the ceiling or in some other way in order to prevent fumes permeating from that vent into the media room. Of significance was the totally inadequate nature of the ventilation system. All experts, including Dr Aiken, agreed that a proper and effective ventilation system was essential in rooms such as the histology and media rooms. Indeed, it may also be inferred that an effective and well maintained air conditioning system was also necessary in biochemistry. Many bags of scum, fungus and other material were removed after the plaintiff became ill and in about 1987 when new vents were installed. There is no doubt that, in spite of the evidence of some witnesses that the room air conditioners in histology and in media operated satisfactorily, at best they merely cooled and recirculated what fumes and other substances were in the air and did not extract them to outside the building. Even so, the scum, mould and dust on the vents and filters in the media room hindered the effective operation of the air conditioners and whatever capacity they may have had to extract the fumes to the outside atmosphere. That the ventilation system in histology was grossly inadequate is further demonstrated by the constant and pervading fumes of formalin and xylene from that room into the common corridor through the open door. Complaints were made from time to time by some staff, including the plaintiff, who were required to use the corridor. Some of whom were affected by those fumes in -- 66 of 79 -- 66 various ways. It is also demonstrated by Dr Aiken's answer to a question as to whether there were fans and ventilating equipment used to create cross-ventilation or draft to remove odours such as formalin from the work place. He said: "Presently no. There was a small extractor fan fitted to a window that was operational at one time and would have been so in the early 1980s up to 1986, but this provided a very poor draft with respect to extracting fumes." The defendant, by its senior officers, knew of this major defect in histology yet did nothing about it when it was known that the extraction fan was necessary and that the fan in use was inadequate. It is quite likely that the door to histology was left open for the very purpose of allowing some of the fumes to escape from the room into the corridor when the evidence otherwise showed that these air conditioned rooms should have been closed. The air conditioners and exhaust fan were not adequate to expel the fumes to the outside atmosphere. The corridor was permitted to be used for that purpose. Staff including the plaintiff regularly traversed that corridor. No instructions were issued or methods devised to prevent fumes entering the corridor. It may be wondered how a room air conditioner could work efficiently in a room with a door to a corridor open and with a nearby stair well linking the upstairs floor and the downstairs section. In the media room, the doors were generally closed. The only means of ventilation was with the room air conditioner. There was no operative exhaust fan to the outside. The exhaust fan to the fume cupboard was not operating efficiently. The evidence is overwhelming that the room air conditioners, as well as the ducted air conditioning, were not serviced and -- 67 of 79 -- 67 maintained on a regular and timely basis. Frequent complaints had been made by the plaintiff to Mr Morgan and others. Mr Morgan passed the complaints on to the relevant department which then had to raise a requisition to the contractor to enable it to do what was necessary. Significant delays occurred. The room air conditioner in media was at material times frequently clogged with scum, mould and other matter which should have been removed on a regular basis. So also the filter should have been cleaned regularly. Indeed, one member of the staff in histology said that at times they cleaned the filter to the room air conditioner in that room themselves. Had the defendant had in place a regular system with respect to the maintenance of air conditioners, this would have assisted in reducing the effects of fumes to some extent, although not totally. There was also no formalised procedure for the making and recording of complaints by staff. Complaints were made by the plaintiff to various senior staff not only about the effects she perceived upon her of the various noxious substances which pervaded the atmosphere in the media room, but also with respect to the inadequacy of the air conditioning and ventilation systems. Junior employees such as the plaintiff were discouraged from making complaints in the sense that nothing was done following their complaints. The plaintiff was referred to as a whinger on one occasion. That complaints were made was known or should have been known to the defendant and should have put the defendant on guard to take appropriate action to protect the plaintiff. Of some importance also is the concern expressed by Dr Aiken -- 68 of 79 -- 68 which has existed for many years about the proximity of the histology room to the media section. There have been plans to relocate that section and to upgrade the fume extraction capabilities. This has not yet occurred but is an indication of the state of knowledge of the defendant and the potential dangers caused by the emission of noxious fumes from that section to other parts of the laboratory. That reasonable and appropriate steps could have been taken to avoid injury to the plaintiff's health is amply demonstrated by the steps and procedures which were taken after she became ill. Whilst evidence of those steps since the plaintiff's illness are not direct evidence of negligence on the part of the defendant, they nevertheless show steps which could reasonably have been taken before the injury occurred: Oulton v. Brisbane Stevedoring and Wool Dumping Co. Pty Ltd [1958] Q.W.N. 35. Changes were made to the system of mixing agar powders in the media room. Formalin was always flushed down the sink with copious quantities of water from the tap running. Xylene, it will be recalled, was at about that time, disposed of in another way. A new exhaust fan was fitted to the large fume cupboard. The gas burners have been removed from the bench and placed inside the large fume cupboard where the measuring, hydrating and boiling of media now occurs. Better quality masks have been provided. A handbook (ex. 85) has been provided to all staff who are instructed to read its contents and to strictly follow its procedures and precautions. The air conditioning systems received attention. That various steps were taken also appears from various exhibits tendered in the case. -- 69 of 79 -- 69 In my opinion, there were various measures or means reasonably open to the defendant in all of the circumstances of the case which would probably have protected the plaintiff from the dangers of her task without unduly impeding its accomplishment. The defendant unreasonably failed to take such precautions which, had they been taken, would probably have averted the injury to the plaintiff's health which she suffered by exposure to various substances in the work place. In the result, I find that the plaintiff's condition was caused by factors operating in the work place. The risk of some injury to the plaintiff was foreseeable, even if its precise scope or nature was not. The defendant failed in not taking precautions reasonably open to it to avoid injury to the plaintiff and is therefore responsible for all personal injury the plaintiff has suffered as a consequence: Hughes v. Lord Advocate [1963] A.C. 837 at 858 per Lord Pearce, at 846 per Lord Reid, at 850 per Lord Jenkins. This leaves the question of assessment of the plaintiff's damages. Quantum The submissions for the plaintiff are contained in the document marked "E". Counsel for the defendant made limited specific submissions, which depended upon the findings in relation to the nature of the plaintiff's complaint, in particular whether it was caused by the defendant and whether she had lost all income earning capacity. It was submitted that if I came to the conclusion that the multiple chemical sensitivity was a result of the defendant's negligence, the range was extremely wide. In that -- 70 of 79 -- 70 event, counsel for the defendant submitted that it may be appropriate to take a global sum to compensate the plaintiff as disadvantaged in the labour market and if the finding was that she could never work again, it was appropriate to take her earnings as a laboratory technician and capitalise it over her remaining working life with the usual discounts. The plaintiff said she had planned to work until age 55 years, i.e. 14 years post-trial. She is a single woman and there is no reason not to accept that evidence, subject to the usual contingencies. I conclude that she has moderately severe asthma, that she is on constant medication with respect to it and will probably need to be on such medication for life. She is reviewed medically by her general practitioner and by specialists from time to time and will need such reviews in the future. This was not in dispute. There is also the probability that she will need some form of hospitalisation and other treatment which must be assessed. She suffers symptoms from asthma regularly. She is at some risk of severe consequences, even death, if she has a serious attack. Her major asthmatic problem is substantially controlled by medication. I have also taken into account the fact that her whole respiratory tract has been severely damaged such that she regularly suffers extensive symptoms of the type referred to above on exposure to a wide range of chemical substances and to many other environmental conditions which might be expected to operate in most forms of employment as well as socially, e.g. in hotels, clubs and the like. No curative treatment for the upper airway -- 71 of 79 -- 71 symptoms is available. The first point to be determined is whether the plaintiff had and has any residual earning capacity pre-trial and in the future, or whether she is commercially unemployable as submitted on her behalf. It was submitted that there are serious limitations on her ability to work in most locations if she is able to get work. These include her unreliability, uncertainty as to her ready availability depending on her health at any one time, her productivity, the necessity for her to rest at least 2 hours during the day and her lack of physical stamina. Reliance was placed not only on the plaintiff's evidence generally but also on ex. 1 which demonstrated that from 20 October 1986 up to 11 February 1988, when she ceased effective work, she was absent due to a flare up of her symptoms on no less than 12 occasions for periods ranging from 2 days up to 22 days and on one occasion from 23 October 1987 to 29 January 1988. She has no qualifications, having been educated to Junior only. She did not complete hairdressing and nursing. The evidence shows that even so, the perfumes and other substances in such occupations would be likely to precipitate adverse reactions to her health. She cannot work in an air conditioned environment. Her only effective experience is in laboratory work which she cannot do and has not been able to do effectively since 1986. All experts recognised this. So did the defendant by dismissing her on the ground of her incapacity to do that work. Nevertheless, the defendant has contended that the plaintiff has made no attempt to obtain employment since she ceased with the -- 72 of 79 -- 72 defendant. This is quite correct. It was urged that the evidence showed that she could do some types of light work on a limited or casual basis. There is no evidence as to what specific types of work she could in fact do or in what environment would any such jobs be performed. Dr Heiner agreed that the plaintiff could sit down and do some work providing she was not exposed to any form of chemicals or irritants. He said that she could not do physical work with her small airways in her lungs. Dr Wright said that the plaintiff needed retraining and rehabilitation but even so there were major restrictions on what she could do. He said it would need to be light work in the absence of air conditioning or exposure to cigarette smoke, fumes, dust, perfumes, etc. He even said that she may have to live away from air polluted major towns and even coastal districts. She would need constant medical care, some of a specialist nature. Dr Wright assessed her disability at trial at about 70 percent which he said could be expected to increase to 100 percent by age 55 years. It was submitted that the doctor in this context was referring to her earning capacity and not to her life expectancy which at the date of trial was said to be 39 years. There is other evidence that she would be capable of performing some, unspecified light work. She certainly could not hold down any full time or regular job. There is evidence that she spasmodically assisted a Catholic nun in Townsville on voluntary work involving seamen from ships but that evidence shows that she was very unreliable in performing even that task and was able to do it only on the days she felt -- 73 of 79 -- 73 well and for very limited periods of time. There was no obligation for her to do that work. She has since become involved to some extent with church activities but at her own pace and in environments of her choosing. Senior counsel for the plaintiff submitted that if the plaintiff establishes a prima facie case of inability to work because of her health problems, the onus then shifts to the defendant to establish the availability of jobs suitable to her health and abilities, and what she is likely to earn from such jobs. In this regard he relied on Thomas v. O'Shea (1989) Aust. Torts Reports 80/251 at p. 68,702 col. 2, where in the judgment of the Full Court of the Supreme Court of Western Australia, the following appears: "The legal onus of proof of loss of earning capacity rests, of course, on the plaintiff, but once the plaintiff has proved that he has lost his pre-accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him finding alternative employment, an evidentiary burden is cast on a defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings: Arthur Robinson (Grafton) Pty Ltd and Anor v. Carter (1968) 122 C.L.R. 649 at p. 657 per Barwick C.J.; Van Velzen v. Wagner (1975) 10 S.A.S.R. 549 at p. 550 per Bray C.J.; and Linsell v. Robson (1976) 1 N.S.W.L.R. 249 at pp. 253-254 per Hutley J.A.; and at pp. 254-255 per Glass J.A. in Baird v. Roberts (1977) 2 N.S.W.L.R. 289 it was held that a defendant who seeks to show that the plaintiff can still do 'light work' or follow a 'sedentary' occupation must adduce evidence that the plaintiff is able to do such work and to obtain it and what earnings from it would be. The Full Court in Victoria has taken the same approach: Vandeloo v. Waltons Ltd 1976] V.R. 77." Counsel for the defendant submitted that the principle stated in that case was not applicable to the present case because the plaintiff had merely given evidence that she had not worked at all -- 74 of 79 -- 74 since leaving the employment of the defendant and that she had not sought to perform any work for remuneration ever since. It was submitted that the plaintiff has not established on a prima facie basis, her inability to do any work even of a limited nature. In this regard, he relied upon the decision in Sutherland v. International Rigging (Aust) Pty Ltd (Full Court, 11 August 1989, unreported, per McPherson J. with whom Connolly and Williams JJ. agreed). At p. 8 of his Honour's judgment the following appears: "Without proving that he had looked for but had been 'unable to find alternative employment' suited to his physical capacity he failed to bring himself within the scope of what was said in Thomas v. O'Shea. That case cannot therefore be relied on to demonstrate that the evidentiary burden was cast upon the defendant to prove the state of the labour market or the likely earnings available in it." It appears that the submission on behalf of the defendant with respect to the applicability of Thomas v. O'Shea is correct but this in my opinion is not the end of the matter. In my opinion, the plaintiff has established on a prima facie basis, her inability to do any practical or useful work, notwithstanding that there is some evidence that she would be capable of performing some unspecified light work in a very clean, but not an air conditioned, environment on a limited basis, if it were available. Notwithstanding the differences in the case under consideration, I adopt with respect the passage in a judgment by Kiefel J. in Brauer v. The Corporation of the Synod of the Diocese of Brisbane (W 5088 of 1990, 26 October 1993, unreported) which, I think, is appropriate to this case. Her Honour at p. 14 said: "If a plaintiff's ability to earn as a consequence of injury sustained places him/her in a position where there is no real likelihood that moneys will be earned, it -- 75 of 79 -- 75 seems rather artificial to attribute a monetary value to some 'capacity' to earn, when it means no more than that the plaintiff's physical ability to carry out a task is unlikely to be translated into money. It has been said that a plaintiff recovers 'not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss': Graham v. Baker (1961) 106 C.L.R. 340, 347 referred to in Todorovic v. Waller (1981) 150 C.L.R. 402, 464 per Brennan J. Here there is no evidence that a person in the plaintiff's circumstances with her history and experience, would likely be employed for remuneration for a few days per week. Discounting on that basis would then elevate speculation to a conclusion based on evidence. I allow only something for the chance that the plaintiff might in any event have had periods of unemployment or employment at lower rates." I have formed the clear view on all of the evidence that the plaintiff's overall condition has rendered her unemployable in any practical sense. I nevertheless make some small allowance for the possibility that she has a minimal residual earning capacity. Pain, Suffering and Loss of Amenities The plaintiff's permanent disabilities have been set out above. Her life has been substantially altered. She is severely, if not totally, restricted in engaging in any useful income earning role. She has no social life whatsoever because of environmental conditions which affect her health. She is limited to walking and engaging in certain church activities in environments of her choosing. She is to a large extent housebound. She has suffered this condition effectively since mid 1986 to the present time and on the evidence will do so permanently. She must take medication for the balance of her life and be very careful in her daily living, and the substances and environmental conditions with which she is able to come into contact. She will continue to need medical treatment in the -- 76 of 79 -- 76 future with a prospect of undergoing surgery and hospitalisation. In my opinion an appropriate award under this heading is $60,000. Interest should be allowed on $20,000.00 at 2 percent for 8 years to the date of this judgment. This gives a figure of $3,200.00. Past Economic Loss The quantum of the plaintiff's net income lost up to trial was agreed in the sum of $120,852.00. This was derived from ex. 88. For this component, I award the plaintiff the sum of $105,000.00, having taken into account the ordinary exigencies of life, including absences from work for reasons not attributable to the defendant. Some allowance is also made for the small possibility that she has had some residual earning capacity during part of that period. Interest was claimed on behalf of the plaintiff on the sum of $95,000.00 on a claim for past economic loss in the sum of $121,852.00. It is noted from ex. 89 that the plaintiff was paid compensation benefit payments to 29 October 1993 in the sum of $44,506.81. On this basis interest should only be allowed on the sum of $69,000.00. Interest will be allowed on that sum for 7 years to the date of this judgment at 6 percent. This comes to $28,980.00. Future Economic Loss From ex. 88, the plaintiff's net current weekly loss is $380.00 ignoring superannuation contributions. The present value of that sum for 14 years is $199,551.00. Taking into account the ordinary exigencies of life as well as the possibility which I regard as slight that the plaintiff has some future earning capacity, as well as factors which operate in her favour such as -- 77 of 79 -- 77 the prospect that she might have earned some limited income after age 55 years, I award the sum of $165,000.00 for future economic loss. As to past Griffiths v. Kerkemeyer expenses, there is evidence that she needed care for some time which was not disputed. The sum of $600.00 as claimed is allowed with interest at 2 percent for 7 years to the date of this judgment. This comes to $84.00. With respect to possible future expenses, I have borne in mind the decision of the High Court in Malec v. J C Hutton Proprietary Limited (1990) 169 C.L.R. 238. As to future Griffiths v. Kerkemeyer expenses, the claim is in the sum of $5,000.00. It was advanced as a possibility only on the basis that she could become significantly incapacitated. There is a possibility on the evidence that she may require care in the future. I have nevertheless assessed the degree of probability of this being required as quite low. In my opinion the sum of $3,500.00 is reasonable and it should be allowed. There was no dispute about her need for medication for the future together with some degree of medical attention. Future costs of medication, together with attendances on her general practitioner and specialist is allowed in the sum of $14,000.00. As to future hospitalisation, there is some evidence to support this as a possibility which again I must assess. In my opinion, the sum of $3,500.00 is reasonable and should be allowed. The Fox v. Wood component of $11,730.60 was not disputed and is allowed. Travelling expenses in the sum of $2,752.60 again were not disputed and is allowed. Her past medical expenses are allowed at -- 78 of 79 -- 78 $4,900.73. No interest was claimed with respect to that sum or with respect to travelling expenses because these sums were paid by the defendant (ex. 89). As to the claim for dental expenses, I adopt the submissions of counsel for the defendant and conclude that there is no satisfactory evidence to show that the repairs to the plaintiff's teeth were caused by exposure to any chemicals or substances whilst she was employed by the defendant at the laboratory at the Rockhampton Hospital. No allowance is made for that sum. In summary the plaintiff's damages are therefore assessed as follows: Pain, Suffering and Loss of Amenities $60,000.00 Interest $3,200.00 Past economic loss $105,000.00 Interest on $69,000.00 for 7 years at 6% $28,980.00 Future economic loss $165,000.00 Past Griffiths v. Kerkemeyer expenses $600.00 Interest thereon for 7 years at 2% $84.00 Future Griffiths v. Kerkmeyer expenses $3,500.00 Future medical, pharmaceutical expenses etc. $14,000.00 Future hospitalisation $3,500.00 Fox v. Wood component $11,730.60 Travel expenses $2,752.60 Past medical expenses $4,900.73 $403,247.93 I will hear submissions as to the form of judgment. -- 79 of 79 --