White v Tasmania [2001] ACTSC 79 (10 August 2001)

Last Updated: 11 June 2002

Louise White v State of Tasmania [2001] ACTSC 79 (10 August 2001)

CATCHWORDS

DAMAGES - Personal injury - Plaintiff splashed with formaldehyde formula during surgical procedure -Negligence of defendant to provide a safe system of work - Causation of accident to plaintiff's injuries.

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164

Watts v Rake [1960] HCA 58; (1960) 108 CLR 158,

Trindale & Cane, Law of Torts in Australia, 3^rd Ed. Oxford, 1999 p 474

No. SC 615 of 1996

Coram: Master T Connolly

Supreme Court of the ACT

Date: 10 August 2001

IN THE SUPREME COURT OF THE )

) No. SC 615 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: LOUISE WHITE

Plaintiff

AND: STATE OF TASMANIA

Defendant

ORDER

Coram: Master T. Connolly

Date: 10 August 2001

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $33,465.

2. The parties to be heard on costs.

1. This is a claim for damages for personal injuries arising from an industrial accident which occurred on 15 December 1992 at the Mersey Hospital at Latrobe, near Devonport in Tasmania. The plaintiff at the time had recently qualified from what is now the University of Tasmania at Launceston with a nursing qualification, and under the prevailing arrangements then had to undertake twelve months of work in a hospital in order to become a registered nurse. She commenced her employment at the Mersey Hospital in March 1992.

2. The accident occurred as the plaintiff was working as a relief scout nurse in an operating theatre in the hospital. One of the duties of the scout nurse, who is not fully scrubbed, is to do take away any tissue material that may need to be sent for pathology examination. On the day of the accident a radical mastectomy was being performed on a patient's left breast, and after the procedure it was necessary for the excised tissue to be taken to pathology. The normal procedure, on Ms White's evidence, would be for the scrub nurse to approach the operating area, staying outside the sterile zone, with an appropriate bowl or bucket with formaldehyde in it, and for the nurse assisting in the procedure to place the tissue material in the bowl with forceps.

3. It is the plaintiff's evidence that on this day she approached with the bowl, which was quite large and resembled a bucket with 5 litres of formaldehyde. As she approached the scrub nurse, whom she identified, held the tissue in a stainless steel bowl, and suddenly tipped it so that the tissue splashed in the formaldehyde solution, and the solution splashed her about the face and eyes. The solution in the bucket was, I am satisfied from the evidence, a diluted solution of formaldehyde referred to as formalin. This has a concentration of 10% formaldehyde. Evidence as to the nature of this solution was provided in reports of Dr Donohoe and Dr Le Leu. Formalin at the 10% level is a standard preservative product used extensively in Australian hospitals.

4. Liability was denied on the pleadings, and contributory negligence was pleaded. Although the plaintiff was cross examined to some extent on the question of liability, at the end of the day the defendant, quite properly in my view, did not make any submissions going to liability. I am quite satisfied on the evidence before me that the defendant, as the operator of the hospital is liable for the negligent actions of the other theatre nurse in dropping the tissue into the pathology bucket in circumstances where it was foreseeable that the formaldehyde solution would splash over the plaintiff, and also was negligent in failing to provide the plaintiff with appropriate goggles, and instruct her in their use.

5. Ms White says she was shocked at the time, and immediately left the operating theatre to the anaesthetic room to obtain some saline solution to apply to her eyes. She was wearing contact lenses at the time, and she removed these in the nurses change room. Another nurse then assisted her to the casualty department, where she had her eyes again irrigated with a saline solution and was then put into a shower for about fifteen minutes.

6. She says that her face and eyes and head were all wet with the solution, predominantly on the left side. The employee incident form completed at the time records that chemicals affected her eye, ear, face, head and neck, and arms and shoulders.

7. She rang her mother to come to the hospital and bring her spectacles, as she could not drive home using her contact lenses. She says that she was upset that night, and noticed red blotches on her neck and face. The next morning she had a sore throat, but she went to work and performed normal duties. The following day, December 17, she again worked, but noticed that her throat was very sore and inflamed. She again attended the casualty department, but was not given any treatment, and returned to work. She says that over about a week her throat settled down after gargling with Aspirin, which is her normal treatment for a sore throat.

8. She continued to work at the hospital until the end of her one year training contract at the end of February 1993, and then moved to Canberra, where she had obtained a position at John James Hospital, where she has continued to work to this day as a theatre nurse.

9. The blotchy appearance of her face settled down in the period following the incident as well. She says however that there is still an area of her forehead that has not fully resolved, and where she treats her skin with a cortisone cream on a daily basis. She says that if she does not do this it becomes red and weepy, and itchy.

10. She says that her left eye continues to cause occasional problems by way of laying down deposits on the contact lens, and that she needs to use occasional topical eye ointments to treat this.

11. Ms White also says that the smell of formaldehyde now distresses her, whereas before the accident she considered this a normal hospital smell, and it caused her no distress.

12. The most significant ongoing difficulty which the plaintiff says is related to the accident is total deafness in her left ear. This developed in January 1993. She says that on 7 January 1993 she noticed an increased ringing in her left ear, and then when she scratched her left ear she heard nothing. She thought nothing further of this, but the next morning notice she had no hearing in the left ear. She attended her general practitioner, who told her to give it a week to resolve, but the ear did not, and has never, recovered hearing. She also has occasional problems with balance.

13. The plaintiff was referred to an ear nose and throat specialist at the time of the initial deafness. She has told Dr Knox, a psychiatrist, that she was told that the deafness was due to labyrinthitis which the ear nose and throat specialist thought was possibly the result of a viral infection, and that a CT scan did not show any gross pathological lesions in the head that might otherwise explain the deafness. No report of this treating ear nose and throat specialist has been tendered in the plaintiff's case, and indeed no ear nose and throat specialist has reported in the plaintiff's case to support a link between the deafness and the chemical exposure.

14. The defendant contends that the accident at the hospital in December 1992, even if it is accepted that it caused a degree of splashing of the chemical solution to the left ear, is not responsible for the hearing loss which occurred in January 1993.

15. It is not the plaintiff's case that the connection between the chemical exposure and the deafness was direct. The high water mark of her case is the report of Dr Donohoe of May 1999, in which it is said:

"It is more likely than not that the exposure to the formaldehyde has either directly caused her deafness and auditory problems, or has led to a decrease in immunology sufficient to allow for a viral labyrinthitis to become established and do permanent damage. If the damage was direct, it is most likely through a pro oxidant effect which has been shown to damage the cilia of the vestibular system, but this would not explain the lateralisation of the deafness sufficiently. For this reason, and the delay between exposure and symptoms, it is my view that the exposure to formaldehyde acted indirectly, lowering immune response temporarily, and allowing for the viral infection to become established. It is unlikely that she would have become deaf had she not been accidentally exposed to the formaldehyde."

16. Dr Donohoe holds no specialist qualifications beyond his MB.BS, but has a practice that specialises in environmental and nutritional medicine, and takes part in conferences of the Australian Society of Environmental Medicine. He is a Fellow of that society, but acknowledged that this was conferred on the basis of involvement in the activities of the society, and is not a fellowship by way of an examination comparable to a fellowship of a recognised college.

17. The defendant's medical evidence comprised a number of reports. Dr Halliday is an ear nose and throat specialist, with Fellowships in the Royal College of Surgeons Edinburgh in general surgery, and the Royal Australian College of Surgeons in ear nose and throat surgery. He has practiced as an ear nose and throat specialist since 1955.

18. In his report of 29 May 2001 he said:

"The left hearing loss and resultant symptoms secondary to this are not in dispute, however the fact that a three week time interval occurred between the episode with the spilt formaldehyde and the onset of symptoms and the additional fact that her left hearing loss is a unilateral loss, gives me the view that the left hearing loss is quite unrelated to the original episode. I am unaware that the ENT literature indicates any other instances of a unilateral hearing loss occurring following the splashing of formaldehyde in the face."

19. In a subsequent report of 31 May 2001 Dr Halliday said:

"Labyrinthitis when applied to the inner ear is a relatively vague term which is applied to a number of distinctly different conditions. In essence labyrinthitis strictly means an inflammatory change affecting the labyrinth of the ear. Damage to the inner ear can result from a loss of blood supply, viral or bacterial infection, mechanical trauma or exposure to other toxic drugs. Regrettably neither vestibular function test nor imaging modalities are able to determine precisely the cause of the damage to the left inner ear. A sudden loss of hearing and balancing can occur in one ear with the precise mechanism responsible remaining unknown despite the most intensive investigations. On the basis of probability the damage to Ms White's left ear is most likely to have been a vascular obstruction or a viral infection."

20. Dr Halliday gave evidence by telephone. He was presented by counsel for the defendant with the hypothesis put forward by Dr Donohoe. The exchange was as follows:

"That exposure on 15 December 1992 of Formalin to Ms White lead to a heightened sensitivity, via a sore throat, which led to susceptibility to infection and then labyrinthitis and consequent hearing loss by 7 January 1993. Doctor, are you able to comment as to the feasibility of that hypothesis?

I would regard that hypothesis as medically impossible, in the sense that 10 per cent buffered formalin from the face is hard to envisage damaging the throat unless significant vapour was present in the operating theatre at that time and inhaled. If that were the case, one would have expected a sore throat at that time, which does not seem to have occurred."

21. The evidence of the plaintiff, however, is that she did experience a sore throat after the accidental splashing, and also that she inhaled sharply, partly out of shock, as the solution splashed onto her face. I accept that the plaintiff did experience a sore throat following the accident on 15 December 1992. However, even accepting this, I am not satisfied, on the balance of probabilities, that the accident has caused her hearing loss. In cross examination it was put to Dr Halliday that labyrinthitis in not uncommonly caused by viral infection, and he said:

"That is one of the hypotheses to explain sudden loss of nerve hearing in an ear. Normally, this problem does not result in death, for that reasons pathological material is not usually obtained, and there's a degree of uncertainty in terms of precisely what is the cause of sudden unexplained nerve deafness. It's usually attributed to one of three causes, either a viral infection, an blockage of the blood supply or also rupture of a membrane in the inner ear."

22. It was further put to Dr Halliday that a secondary viral infection can follow from an acute inflammation, and he said:

"I would regard that as unlikely. An inflammatory condition could predispose to a local bacterial infection but I would believe that this would cause an inflammatory condition on the skin of the face where the formalin had made contact."

23. The proposition put forward by Dr Donohoe is, it seems to me, a hypothesis, that the splash could have caused an inflammatory condition of the throat, and this could have then caused disruption to the immune system rendering the plaintiff more susceptible to a secondary infection which lead to the labyrinthitis. Dr Donohoe is clearly a medical practitioner with expertise in environmental and occupational medicine, but he does not have specialist qualifications the area of hearing loss. Dr Halliday, a very experienced Ear Nose and Throat specialist, has said that in his practice, since 1955, he has never heard of such a link from a splash of formalin. His evidence is that the sudden loss of hearing due to labyrinthitis is often of unknown, and unknowable cause, and may be related to a viral infection or a blockage of the blood supply.

24. Even accepting that the plaintiff did experience a sore throat, I do not know, and cannot know, whether this was due to inflammation from inhalation or exposure to formalin, or due to some viral or bacterial infection. I do not know and cannot know whether this inflammation or infection did then create a general lowering of the immune system, as postulated by Dr Donohoe, thus leading the plaintiff more susceptible to opportunistic infection producing labyrinthitis. I have no specialist immunology evidence at all. Indeed, I do not know, and on Dr Halliday's evidence, cannot know, whether the labyrinthitis was caused by a viral infection or blockage of the blood supply.

25. I do know that the plaintiff was examined by an ear nose and throat specialist, Dr Hilton Stone, who continues in practice in Canberra, but no report has been served by Dr Stone. Where there has been no report by a treating specialist, an inference may be drawn that the expert would not have assisted the plaintiff's case, but in this matter I do not rely on this inference in forming the view that the evidence before me is insufficient for me to be satisfied on the balance of probabilities that the plaintiff's hearing loss and balance difficulties are related to the accident in December 1992.

26. In order to draw a causative link between the accident and the loss of hearing the plaintiff must establish on the balance of probabilities an affirmative link between the accident and the claimed loss. As Dixon CJ said in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 305, the law:

"does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied."

27. There is a temporal link between the onset of deafness and the chemical exposure. It has been said that:

"a prima facie case of causal link will be made out if the plaintiff establishes that before the accident they were not disabled and that after it they were disabled in a way that could be the consequence of the accident." (Trindale & Cane, Law of Torts in Australia, 3^rd Ed. Oxford, 1999 p 474 citing Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164).

28. However, while the plaintiff has made out the prima facie case on the temporal link, the defendant has gone into evidence, and on all of the evidence before me I am not satisfied that the causative link to deafness is made out.

29. The defendant also denies that any ongoing eye problems were related to the exposure to the formalin in 1992. The plaintiff's expert evidence in support of the link is the report of Dr Dunlop, an opthalmologist, of June 1996. He said that he saw the plaintiff once in March 1996 and prescribed new glasses. He noted that there was a diminished break up time in the tear film in her right eye. He said: "there were signs of activity in her meibomian glands which would be consistent with the development of her chalazion in the left upper lid." He took a history of the chemical splash in 1992, but said: "it is not clear whether the problem with her left eye relates to the current chalazion or possibly to an older ocular surface injury." He concluded :

"I do not know what severity and treatment the original injury of splashing formalin in her face involved. Nor do I know how aggressively she needed treatment for that left eye during the following 4 years. It is conceivable that such an ocular surface burn could disturb the tear film and give an intermittent irritation of variable severity. I do not believe that this has significantly degraded her vision, nor would it interfere with her work if such an injury had occurred. The features I noted on the examination of 21 March 1996 could well be related to be meibomian gland activity and chalazion. These questions might better be answered by her previous eye care specialists."

30. No such report was tendered in the plaintiff's case, but the defendant did tender a brief report of Dr Quatermass, a Devonport opthalmologist, who on 18 December 1992 said:

"This nursing sister had formalin spilt into her eyes, affecting her contact lenses, and today when I examined her, her vision with glasses was 6/6 in each eye. Her eyes were white and quiet with no evidence of any injury. I have advised that she should not wear her contact lenses again and requires new ones."

31. There is also a report from Dr Keldoulis, opthalmologist, of May 2000 in the defendant's case. He said, after examination of the plaintiff that:

"In my opinion Ms White has not suffered any injury to her eyes as a result of the formaldehyde being splashed into them on 15 December 1992. Dr Quatermass examined her on the 18 December 1992 and found that her vision was 6/6 in each eye and there was not any evidence of injury. It would be my opinion that the contact lenses prevented any corneal damage and the immediate washing out of the eyes prevented any conjunctival damage. I do not agree with the opinion expressed in Dr Donohoe's report in which he states that Dr Dunlop stated that the tear film had been damaged in her left eye. It would be my opinion that if she had damage to her tear film she would certainly have great difficulty wearing contact lenses."

32. On all of this evidence I am not satisfied that there is any ongoing eye problem attributable to the accident in December 1992.

33. I am satisfied on all of the evidence that the plaintiff does continue to suffer from occasional flare ups of her skin rash, which she treats with topical cortisone cream. Dr Keldoulis for the defendant has noted that her skin problem could be related to the exposure, or could be pre existing, and suggested that an opinion be obtained from a dermatologist, but no such report was provided. The plaintiff accepts that she did have occasional skin rashes on her face before the exposure, but I am satisfied that this has been aggravated by the accident.

34. I am also satisfied that the plaintiff continues to be troubled by the smell of formaldehyde, which is an agent in common use in the hospital environment in which she continues to work. This has been described by Dr Donohoe as the condition of pathosmia, being a heightened sense of smell associated with a degree of distress at the smell.

35. The plaintiff says that she suffers from occasional migraine headaches, but acknowledged that she suffered from these before the accident, but not as frequently. I am not satisfied that there is sufficient medical evidence to establish a link between this and the accident.

36. The plaintiff also relied on a report from Dr Knox, a consultant psychiatrist, who concluded that the plaintiff suffered a mild to moderate Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood as a result of her accident, loss of health, and ongoing fears about further injury due to exposure to toxic chemicals. It is apparent from Dr Knox's report that much of he loss of health he speaks of relates to the deafness and loss of balance due to labyrinthitis, which I have not found to be accident related. Accordingly, I cannot rely on his diagnosis in whole. I am satisfied, however, that the plaintiff does have the condition he has described, part of which at least can be attributed to the accident.

37. I am therefore satisfied that the accident caused the plaintiff considerable initial distress, and has left her with a mild on going skin condition, which is susceptible to self treatment with topical cortisone cream. There is no evidence that she has ever sought specialist advice on this problem, and it was not evident on occasions when she was being examined by experts whose reports have been tendered. I am also satisfied that the accident has left her with an ongoing aversion to the smell of formaldehyde, and a degree of anxiety in relation to chemical exposure.

38. The principles to be applied in determining compensation in personal injuries cases have been summarised by McHugh J In Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49 where His Honour said (at 54):

"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, `in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'."

39. In relation to general damages, I assess the plaintiff on the basis of the initial injury to the eye and face, the associated distress, and the ongoing occasional flare ups with her skin condition. I also take into account her aversion to strong chemical smells, and the associated anxiety about chemical exposure referred to by Dr Knox. I do not assess her on the basis of the entire condition described by Dr Knox, as it is apparent that this was based on the more disabling ongoing condition, being the deafness and loss of balance, being accident related. Counsel for the defendant submitted that this should sound in only nominal damages, but I am satisfied that, despite the limited duration of the initial injury, there has been recurrent skin problems, albeit capable of self treatment, and an ongoing aversion to chemicals and anxiety about chemical exposure.

40. Much of the plaintiff's evidence as to the ongoing effect of the accident related to the deafness and imbalance. The skin condition and anxiety are not significantly disabling, evidenced by the fact that the plaintiff has continued to work in a hospital operating theatre environment rather than returning to previous occupations as a clerical worker and a journalist and has sought no treatment. I accept, however, ongoing concern over the skin rash, and discomfort when working in an environment where chemical exposure is common.

41. Evidence was given about tiredness and fatigue, but this was in the context of tiredness after working 13 hour shifts, which is not, it seems to me, accident related. The plaintiff some years ago moved to part time work at the hospital, which she combines with living on a rural property near Canberra.

42. Taking all of this into account, I assess the plaintiff in respect of general damages in the sum of $30,000, with $20,000 for the past, generating interest of $3,465, for a total award of $33,465.

43. No claim for out of pocket expenses was made, the plaintiff having given evidence that she self treats with cream which she is able to obtain at no cost, and there was no evidence as to any treatment for the anxiety condition, to the extent that it is accident related.

44. No claim for past or future economic loss was pursed when the matter came to addresses, and no award would be appropriate on my findings.

45. This amounts to a total award of $33,465. I will hear the parties as to costs.

I certify that the preceding forty three (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 10 August 2001

Counsel for the Plaintiff: Mr Parker

Solicitor for the Plaintiff: Garry Robb & Associates

Counsel for the Defendant: Ms Gabriel

Solicitor for the Defendant: ACT Government Solicitor

Date of hearing: 24 July 2001

Date of judgment: 10 August 2001