Australia: Assessment Of Damages: Multiple Potential Causes And Supervening Events

Public Law Report

In Karam v Palmone Shoes Pty Ltd [2010] VSC 3, the Supreme Court of Victoria heard two related matters in which the plaintiff alleged that exposure to chemical solvents in his employment with the defendant caused him to suffer asthma, associated psychological illness, plasmacytoma and multiple myeloma (a type of cancer). In January 2010, Justice Forrest reaffirmed wellestablished principles relating to causation and damages. In awarding the plaintiff damages of $244,296, the Court was required to assess and calculate past economic loss resulting from multiple potential causes and future economic loss in light of certain supervening events.


The plaintiff was employed in the defendant's factory as a shoemaker from November 2002 to February 2006. During this time, the plaintiff was exposed to solvent fumes emanating, largely, from the washing and gluing process which he completed repeatedly over an eight hour day. The process involved the plaintiff holding the subject material at collarbone or shoulder level close to his mouth and nose. H e was not provided with protective clothing or breathing apparatus.

The plaintiff commenced proceedings against the defendant claiming that he suffered personal injury arising from the defendant's negligence, stemming from the defendant's duty of care to provide a safe work environment for the plaintiff (the Asthma Case).

The plaintiff's health continued to deteriorate. In early 2008, he was diagnosed with a single plasmacytoma which developed into multiple myeloma by August 2009. In separate proceedings (the Cancer Case), the plaintiff alleged that his exposure to those same solvents that allegedly caused him asthma, also caused him to suffer these subsequent illnesses.

In the Asthma Case, the defendant admitted negligence and causation and made submissions on the assessment of damages.

However, in the Cancer Case, the defendant contended that plasmacytoma was not a foreseeable risk in the circumstances and that the plaintiff had failed to prove that his exposure was a cause of his plasmacytoma/multiple myeloma.

As the Cancer Case evolved, it became clear to the Court that the plaintiff relied heavily on evidence that there was a causal link between his exposure to the solvent Benzene and his illness. It also became clear that this issue of causation was the predominant issue in the case.

In his judgment, Forrest J outlined the legal principles relating to such circumstances. Citing Gaudron J in Naxakis v Western General Hospital (1999) 197 CLR 269, his Honour reiterated the principles adopted by her Honour in circumstances where it is alleged that a person's exposure to a particular subject increases his or her risk of suffering a particular illness, which subsequently develops. Gaudron J stated:

"[i]f a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring. And in that situation, the trier of entitled to conclude that the act or omission caused the injury in question unless the defendant establishes that the conduct had no effect at all, or that the risk would have eventuated and resulted in the damage in question in any event."

Naxakis clearly establishes a process of reasoning which a plaintiff may adopt to prove (on the balance of probabilities) that a defendant's wrongdoing caused or materially contributed to his or her illness. This process of reasoning allows the trier of fact to infer from the circumstances presented to it that the wrongdoing caused or materially contributed to the illness. However, it must be noted that the Naxakis process of reasoning is predicated on a defendant causing circumstances that present a real risk to the plaintiff (prior to inferring that the illness was a result of that risk).

After a comprehensive consideration of the evidence, Forrest J found that the plaintiff's exposure to Benzene was less than that prescribed by the relevant Australian Standard, at a level that can only be described as "miniscule" and therefore did not create a real risk of exposure to the plaintiff. Therefore, Forrest J found it unnecessary to engage in the process of reasoning established by Naxakis, predicated as it is on an actual finding of an increase in risk to the plaintiff. His Honour further determined, given his earlier conclusion, that it was unnecessary to consider whether the plaintiff's plasmacytoma and multiple myeloma were reasonably foreseeable consequences of the defendant's wrongdoing.

In relation to the Asthma Case, Forrest J had to determine damages for the plaintiff to compensate him for the diagnosis of asthma and the resultant state of anxiety and distress that he suffered.

In considering damages for loss of earning capacity, Forrest J acknowledged that the law affords compensation for hypothetical situations of the past and the chance of future or hypothetical events occurring, by quantifying the likelihood that the hypothetical past or future situations have, or will, occur. As stated by the High Court in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638:

"the Court assesses the degree of probability that an event would have occurred, or might occur and adjusts its award of damages to effect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded."

In calculating damages, the Court was required to consider the effect of the plaintiff's independent and supervening illness (in this case, plasmacytoma/multiple myeloma) on the plaintiff's capacity to earn an income.

His Honour assessed damages by reference to three temporal periods, as follows:

  1. February 2006 – February 2008: the Court ordered damages for past economic loss, representing 100% loss of earnings for the two years that the plaintiff did not work as a result of asthma and his asthma-related illness, which had been found to be the result of the defendant's negligence.
  2. February 2008 – trial: although the plaintiff had been diagnosed with cancer in this period, the Court limited damages in this period to 40% of the loss of total earnings. The percentage reflected the Court's assessment of the plaintiff's loss of a chance to work during that period – but resulting only from the asthma (which had now been controlled) and related psychological illness. The supervening cancer diagnosis did not impact on the assessment as the condition was found not to be the fault of the defendant.
  3. Future economic loss: his Honour assessed damages at $13,000 to compensate the plaintiff for the loss of a chance to earn income and superannuation in the future. Despite the finding that the plaintiff would not work at all in his remaining years, the Court limited the future economic loss due to the finding that the plaintiff's asthma was considered to be more controlled (and that his cancer was not caused by the defendant's conduct).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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