Becin v GEC Australia Ltd & Ors [1993] QSC 129

(~) (_) IN THE SUPREME COURT OF QUEENSLAND No. 2123 of 1988 Brisbane Before Mr. Justice Thomas [Becin v. GEC & Ors.] BETWEEN: MIRIAM BECIN Plaintiff AND: GEC AUSTRALIA LIMITED First Defendant HITACHI LIMITED Second Defendant IAN DUDLEY LOW Third Defendant OCCUPATIONAL HEALTH AND SAFETY SERVICES PTY. LTD. Fourth Defendant REASONS FOR JUDGMENT - THOMAS J. Judgment delivered 13/05/93. CATCHWORDS: Counsel: Solicitors: Damages - quantum - industrial asthma S. Williams Q.C. and M. Stewart for plaintiff J. Clifford Q.C. and R. Bain Q.C. for defendants Quinlan Miller & Treston for plaintiff Clayton Utz for defendants Hearing Dates: 17th March, 1993 to 2nd April, 1993 -- 1 of 16 -- IN THE SUPREME COURT OF QUEENSLAND No. 2123 of 1988 BETWEEN: MIRIAM BECIN Plaintiff AND: GEC AUSTRALIA LIMITED First Defendant -- AND: \_ HITACHI LIMITED Second Defendant AND: / ' IAN DUDLEY LOW Third Defendant AND: OCCUPATIONAL HEALTH AND SAFETY SERVICES PTY. LTD. Fourth Defendant REASONS FOR JUDGMENT- THOMAS J. Delivered the 13th day of May, 1993 This is one of ten cases, heard together, in which claims are made by employees who contracted asthma during their employment with the defendant GEC. Most of the plaintiffs' conditions arose as a result of work undertaken by GEC in the performance of a contract with Hitachi, in the course of which certain industrial chemical processes were applied to armatures, coils and 'Yt'[otors destined for use in electric rail traction engines. It is not now necessary to explain the multiple issues that were raised in the course of the proceedings. The issues are now limited to those between the plaintiffs and the first two defendants.- Significant admissions were made by these defendants in the pleadings. -- 2 of 16 -- 2 GEC's system of work involved the mixing of four chemical components (ISOX-At ISOX-B, ISOX-C and ISOX-D). Its workers were required to stir, warm, and apply the mixture to the motors. This was, followed by further heating in ovens, and cleaning off of residues. In the course of such duties, GEC's workers were exposed to MDI fumes (also known as Diphenylmenthane diisocyanate). Isocynates are a known agent that induces sensitisation leading to asthma in human beings who are exposed to it. Approximately five to ten per cent of workers exposed to ~ isocynate will develop asthma. That is a yery significant risk. Once sensitisation has occurred, extremely minute traces of isocynate may induce an attack. The severity of the asthma is likely to be greater if the concentration of isocynate exposure is high or prolonged once the subject has been sensitised. In this (and in all other similar cases) the first and second defendants admitted that they - " .. knew or ought to have known that fumes of MDI may cause occupational asthma; and that they failed to take any or any adequate precautions to prevent injury to persons working within Bay 6 of the First Defendant's factory~ The First and Second Defendants admit that there were precautions which could have been taken to protect persons employed in Bay 6 from such injury and that such precautions were reasonably practicable, and admit that they did not take such precautions." In the present matter the defendants did not admit that.the plaintiff suffered occupational asthma, but expressly conceded in their defence that - "if she proves that she did contract it during her employment with the first defendant and that she was exposed to MDI fumes within Bay 6 of the factory, then the first and second defendants admit that such occupational asthma was caused by such exposure~" L__ _ 0 0 0 -- 3 of 16 -- (_) 3 These concessions fell short of an admission of liability, and there remained the issues of presence of MDI fumes in Bay 6 at material times with respect to all plaintiffs, each of whom was exposed at different times and in different ways. On the afternoon of the ninth day of the trial, by which time these matters had in my view been adequately proved, the defendants admitted negligence in each of the remaining cases, conceding that each plaintiff was entitled at least to nominal damages, and leaving in issue the extent of any injury so caused. The degree of exposure of course continued to remain a relevant issue. The work for the Hitachi contract that caused exposure to MDI commenced in July 1986, and the relevant processes took place within a large building known as "Bay 6". Nine months elapsed during which a considerable number of workers progressively noticed the onset of similar symptoms, which were often interpreted in the early stages as colds or influenza. In April 1987 after industrial confrontation, precautions were taken and for the most part, exposure to isocynates was effectively reduced, but not totally eliminated. For example a vent was installed to divert through the roof gases which had formerly escaped directly into Bay 6. Unfortunately the chimney was.not fully effective in that it. terminated below the height of the roof of the adjoining Bay 5. In consequence of this it was possible for some of the gases to re-enter the building by a process known as re-entrainment. This problem was detected and was probably attended to in December 1987, although the evidence of this is only inferential. -- 4 of 16 -- 4 . Mrs. Becin commenced working . at·· GEC in 1983 and with an interruption between August .1983 and July 1984 to have a baby, and remained. employe,d . by GEC until 27th October, 1987. She worked in the so-cal],ed "clean room" in Bay 6 and there is satisfacto~y evidence of her exposure to isocynates. confirmed in Dr. Edward's report of 7th August, 1989. This is Both Mrs. ~ecin and her husband impressed me as persons of calibre and sincerity, and I have no hesitation of _accepting their evidence despite considerable testing in cross-examination. By the end of the case I discern that defence counsel did not dispute their integrity and pLaced their submissions more upon the uncertainties of the hairdressing business that Mrs. Becin had hoped- to commence and in particular that Mr. and Mrs. Becin may have been unduly optimistic\in their expectations in relation to such a business.· It may be noted at this early stage in the judgment in final addresses of counsel's submissions were remarkably·close on mostitems calling for assessment. The only item upon which I regard their divergence as markedly significant is in relation to the assessment of damages.for future economic loss. Mrs. Becin was born in Yugoslavia on 11th June, 1 9 54. After leaving school she undertook a course in hairdressing and then established her own hairdressing business, employing a senior and two juniors. She married in 1973 and bore a son in 1975. She and her husband seem to have been well off in-their own country, but they decided to emigrate to Australia in December.1979. Her hairdressing business was successful, and she. brought with her () 0 0 -- 5 of 16 -- 5 the ambition to establish a similar business after becoming sufficiently established in her new country. She now speaks English remarkably well for a person who came to Australia at age 25, 13 years ago. The same may be said of her husband. However she concedes that she was not at first confident in her use of the ·language and that this factor discouraged her for significant time from attempting to establish her own business. In 1982 she attained employment but left to go overseas later in that year. She commenced work at GEC in·March 1983 and (~) left on account ·of pregnancy in August. Her child was born in January 1984 and she returned to· work at GEC in July 1984. Between 1984 and 1986, as well as maintaining employment, she and her husband built their own home on land owned by ·Mr. Becin's parents. By 1988 they owned a house worth $140,000, with a mortgage of only $40,000. (~! Towards the end of 1986 she noticed symptoms:; of (! breathlessness and lethargy associated with headaches, sinus pain and symptoms attributed to influenza. She eventually came under the care of Dr. Edwards in July 1987 and he has continued to treat her to the present time. She returned to work at GEC, initially in·the switch gear section where she reacted badly to ammonia and pitting odours. She was transferred to the main office, but continued to react . with asthmatic symptoms. She left GEC' s employment on 27th October, 1987. She then took a position at Interlux Kitchens as a kitchen hostess, eventually leaving that position in consequence of adverse reaction to cleaning products used in the -- 6 of 16 -- 6 display room. She inquired in relation to employment with Estee Lauder and would probably have been employed there but she was unable to take such work because of adverse reaction to perfumes. She has not worked since~ During her period in Australia the plaintiff maintained her interest in hairdressing and provided hairdressing services to her family, friends and members of her community, doing so mainly on Sundays. Her earnings were not high, but it was only a limited pursuit. The· plaintiff and her husband are devout Seventh Day Adventists, and there is no prospect that they would countenance performing any work on a Saturday. This has some relevance on the question of prospects of starting and maintaining a successful business, as not only would they be personally precluded from undertaking such work; they.would not feel able to employ someone else to run the business on a Saturday. I have no doubt that the running her own hairdressing busines,s was always an important ambition of Mrs. Becin and that she would in the ordinary course of events.have u~dertaken it once she had sufficient confidence in her language skills, and ability to control her domestic situation. The probable date of such· an attempt is in issue. Her answers to interrogatories suggested 1990, and the end of 1990 whilst other evidence suggeste~ any time after her youngest son commenced school (i.e. after the beginning of 1989). Without nomi~ating a month, it seems to me to be probable that ~he would have undertaken this venture some time during-1990. 0 0 0 0 -- 7 of 16 -- () 7 I reject defence submissions that the plaintiff could still become a hairdresser by · adopting· such devices as confining herself to cutting hair in a separate room, whilst employees did other tasks and used appropriate chemicals in another room. Other unrealistic suggestions advanced on behalf of the defence included her wearing an industrial mask and installing extraction domes in the salon to remove contaminants. I accept that she is physically very sensitive to the chemicals used in personal hairdressing. She is however very conscious of her appearance and despite the discomfort caused by her reactions to the chemicals that are used, she does visit a salon twice per year for personal treatment. She ~lso treats:her own hair, from time to time, using chemicals which produce:some adverse reaction. I regard these disclosures as sirtcere admissions of a woman who places a very high priority upon her personal appearance. There is however no possibility that she could maintain contact with these chemicals·in the continuous way that would be necessary for her to run a professional practice. The plaintiff suffers from unstable asthma which cannot adequately be controlled by medication. She is under constant review from medical practitioners including Dr. Edwards who reviews her every three to four months, with additional attendances for acute episodes. He will probably-need to see her from six to eight times per year at a cost of $80 per occasion. It is likely that she will suffer serious symptoms five or six times per year. This factor, combined with her intolerance to so many common chemicals and pollutants supports the view that the plaintiff is not commercially employable. It is probably not -- 8 of 16 -- 8 appropriate to regard her as permanently and totally unemployable, but the prospect of any sustained employment in a remunerative occupation is extremely remote. Evidence was given by Dr. Nothling, a psychiatrist, to the effect that she has suffered anxiety connected with her illness. He noted that in 1990 her anxiety level was quite low but expressed the view that anxiety could re-occur if the control of her condition were ineffective~ He had not treated her or seen her since 1990 and I do not think that there is any psychiatric component of any importance in the present case. The problems are I think physical, and any distress and anxiety may be regarded as a natural product of the condition. The plaintiff is particularly susceptible to contact with chemicals, household cleaners, perfumes and vehicle exhausts. She f;r:-eguently finds it necessary to wear a mask in her own home. She has had to rearrange her domestic life so that her husband () performs most ordinary domestic tasks. It is not necessary to () recite the evidence concerning the radical changes that have been wrought with respect to domestic arrangements. Her husband has to perform most cleaning and many domestic tasks for her. The submissions of .counsel on the damages that should be assessed under.Griffiths v. Kerkemeyer are.so close that during addresses it _was agreed that past gratuitous care should be assessed at $6,000 and future.care at $21,200, and I need not recite further details. Their domestic life was threatened for a time. Mr. Becin conceded a passing suspicion that his wife was having an affair becaus~ of; her ·loss of libido. However they }1ave put that behind () _ _:_______, ___________ .. ---~- -- 9 of 16 -- 9 them. Her condition however dominates their joint lives and their outings are limited to activities·which will not affect her asthma. She is able to drive but has to take precautions to avoid fumes. I now approach the assessment under each head of damage. The submissions as to appropriate sums for pain, suffering and loss of amenities varied from $40, 0·00 (defence) to $65, 000 (plaintiff). I think that the submission of the plaintiff's counsel is nearer to mark, particularly in relation to the facts that I have found. I shall assess damages under this -head at $55,000. I turn to the question of the plaintiff's economic potential and her likely earnings if she had not become an asthmatic. The plaintiff was interviewed by Mr. Cox, who was a person with a very close association with and a substantial interest in the hairdressing industry. His knowledge was extensive, and his approach even-handed. He considered that the plaintiff had the qualities and experience to run a successful business in that industry. A number of variable factors have to be taken into account in assessing the prospects of a successful business being established and maintained. I accept that Mr. and Mrs. Becin could and would have raised the necessary capital to set up the business, and that Mr. Becin, who is a cabinet maker, would have been able to minimise expenses concerning fixtures and fittings. There is of course always some ·prospect of failure, and this cannot be ruled out. However Mr. Cox considered a: self-employed person with one employee could earn $800 per week after expenses, -- 10 of 16 -- 10 and if competent over $1,000. If the business became _large enough to justify employment of staff, the profits could be greater.· He-indicated that recently profit ratios have dropped, and indeed that there have been no rises in the past three years. He pointed out problems.from such sources as Price Attack Salons which bulk-buy retail products, and which have caused profits from the · sale of retail . products by ordinary hairdressers substantially to disappear. Mr. Cox however considered that the "wheel is turning back". He also conceded that the economic downturn over the past few y~ars has had a dramatic effect upon many hairdressing salons. Many have gone out of business. The numb~rs who have disappeared are quite significant, and up to one-third have done so. However these have mainly been inexperienced or unqualified operatorsr Moving down from the successful self-employed operators, details· of potential relevance are that a manageress could expect CJI () to be paid $500 per week (or more if employed at a Stefan salon, c=) or.a parficular salon at Clayfield); that a -good hairdresser could expect to be employed for about $400 per week or upwards; and that the current award for a hairdresser if $340.60. It was conceded that any salon established by Mrs. Becin would not open on Saturdays, and that would be a disadvantage .. However it would not be an.insuperable difficulty. I consider tl:lat Mrs. Becin had the ability, personality and perseverance to have established a successful business and that she was likely t.o have impressed her.customers and developed a clientele dependent upon services. That h9wever is a finding of probability, well short of a certainty, and ultimately it has to u -- 11 of 16 -- 11 be evaluated consistently with Malec v. J.C. Hutton Pty. Ltd. (1990) 169 C.L.R. 638. The risks of establishing such a business, especially one that was to commence in 1990, were significant. It is also to be noted that her husband, who is and was supportive of her ambition, may very well have found it necessary to cease or reduce his own workin~ employment, and to become in effect her assistant and to undertake a greater responsibility in caring for the children outside school hours. Whilst it is impossible to do precise calculations, if it were necessary for Mr. Becin to (': reduce or give up his own employment in order to· make Mrs. Becin's business feasible, that factor should be brought into account ag~inst the true profitability 6f the business. In· a sense he should be regarded as a part-time employee whose wages would need to be covered. But precise figures cannot be used in giving effect to this factor. For one· thing, the number of' hours he would need to supply is not known. It is the type of arrangement that would need to be tried, and flexibility would (_) have been its keynote. It is to be regarded as a factor calling for a reduction in the level of profitability that might otherwise be projected. In the end I shall act on the footing that Mrs. Becin was likely to have commenced her own hairdressing business during 1990 and that it would probably have developed into a profitable enterprise. The first few years while the business was established may have been less profitable than later. I consider that the economic capacity of which she has·been deprived was greater than that of an employed manageress ($500) and had good -- 12 of 16 -- 12 prospects of being in. the higher range of self-employed persons. In other words she is prima facie the-competent self-employed operator whom Mr. Cox thought capable of earning $1,000 net per week after expenses (but_ before tax) .. After- tax this reduces (in round figures) to $690. At_ the same time, contingencies have to be brought into account. A net earning capacity of $600 per week may seem a conservative estimate having regard to the talents and personality of this particular plaintiff, in the light of the evidence of Mr. Cox. But it would be unrealistic to project over a substantial.period a capacity of over $600. That figure is, I think, a reasonable one having regard to the evidence and some of the factors that have been mentioned earlier, including her husband's expected contribution. The period of such projection is difficult to fix. Mr. -,Williams Q. C. for the plaintiff submitted for a period of 25 years. It is possible that the business would have been a life-time venture and that she would have _maintained it to age 65. On the other hand it may have run into early difficulties, or she may have succumbed to competing family demands. She is now 39 years old and I think reasonable to project that capac.i ty for a period of 15 years, but not longer. In fixing theserelatively conservative figures I have tried to take account of the . unc.ertainties. associated with establishing a -successful business at all. Of course she may have earned conside~ably more than this and have stayed in business considerably longer. On the other hand other problems (including medica). ones as to ~hich there is some evidence) family commitments, possible failure and other contingencies have a counter~balancing effect. 0 0 0 0 -- 13 of 16 -- 13 The submissions as to past economic loss varied between $50,000 (defendant) and $55,000 (plaintiff). The defence figure seems to be based upon the assumption that she would have remained at GEC until about 1989 or 1990, and that thereafter she should be allowed the equivalent bf the earnings of a hairdresser on award rates . Her earnings at Interlux (regarded as about $5,500 net) of course need to be taken into account. So too does some small contingency for loss of employment through some other cause. The presumptions that I am asked to make are too uncertain to justify any fine calculations. It seems to me that in this particular instance in which I have been aided with realistic submissions from each side, and in which the assumption of early disadvantages in establishing the business may be made, the median figure of $52,500 is appropriate. Future economic loss is the point at which the ~ubmissions substantially diverge, mainly because of different submissions l) as to the likely future scenario if the plaintiff had·. ;'not sustained asthma. The submissions under this head were $200,000 (defence) and $450,000 (plaintiff). The difference is explained by the unduly pessimistic nature of the defence projection and the unduly optimistic projection made on behalf of the plaintiff. I have already set out my approach to the facts, and my view that the fairest projection of loss ·is that of $600 per week over 15 years. This comes to $333,000, and I see no purpose in varying that figure upwards or downwards. I may say that I have attempted to maintain a consistency of approach in all the assessments I have been called on to make in these cases. Mrs. Becin's award is by far the highest of -- 14 of 16 -- 14 these. This. is not surp~ising when it is realised that of all the pl~intiffs she is the yoringest; she is the worst affected; and she had the greatest .economic potential. In relation. to fut,ure medical treatment it was agreed during addresses that a reasonable assessment would be $9,500. Similarly the costs of future pharmaceuticals were agreed at $5,750, and future hospitalisation at $300. Special damages are agreed at $8,575. Past gratuitous care, as earlier indicated, is agreed at $6,.000 and future care at $21,200. Past pharmaceutical expenses (including ventolin, pulmicort and prednizone and nebulizer hire) are proved at $3,440. Although overlooked by counsel, it.seems that the plaintiff is entitled to $2,351.94 damages for the Fox v. Wood factor. The award may be summarized: Damages for pain, suffering and loss of the amenities Past economic loss Future economic loss Special damages Past pharmaceuticals Past gratuitous care Future care Future medical expenses Future pharmaceuticals Future hospital expens~s Fox v. Wood Damages Total $55,000.00 $52,500.00 $333,000.00 $8,575.00 $3,440.00 $6,000.00 $21,200.00 $9,500.00 $5,750.00 $300.00 $2,351.94 $497,616.94 Interest will be allowed as follows. In view of the plaintiff's receipt of a permanent partial disability payment of 0 0 0 -- 15 of 16 -- (; L/ 15 $26,730 from the Workers' Compensation Board, it is not appropriate that interest be ass~ssed on d~mages for past pain and suffering. With respect to past economic loss, the amounts which should be brought into account are the balance of $6,730 of the PPD payment, and further Workers' Compensation payments of $12,627. On this basis interest will be allowed on $33,00b for five and half years at six per cent, namely $10,890. Interest on special damages and past pharmaceutical expenses will be allowed (substantially according to the plaintiff's submission) on $5,500 at six per cent for five and a half years namely $1,815. Interest on past gratuitous care is agreed at $600. The total of interest is $13,305. The total of damages plus interest is $510,921.94. From this there should be deducted $39/389.50 paid by the Workers' Compensation Board. There will be judgment for the plaintiff for $471,532.44. -- 16 of 16 --