R and C PRODUCTS PTY LTD v EVANS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, PRIESTLEY and CLARKE JJA 4 February 1991, 4 February 1991 [1991] NSWCA 229 DAMAGES — EXCESSIVENESS CAUSATION — NO QUESTION OF PRINCIPLE Clarke JA This is an appeal from a judgment of his Honour Judge Conomos delivered in Wagga Wagga on Thursday 27 October 1988. In his Honour's judgment he awarded the plaintiff, who is the respondent in the present appeal, damages in the amount of $31,779 including interest. The facts which gave rise to the action which was brought by the plaintiff are in short compass. She was a young married woman born on 31 March 1959 living in Wollongong when, on 18 February 1981, she purchased a product known as Aura Detergent in order to carry out some hand washing. She purchased this product from Woolworths in Burelli Street, Wollongong, although that is a matter of no practical importance, but she had previously purchased and used Aura. On all of those occasions she had not come into contact with the product because she had simply emptied a quantity of it into a washing machine. On 18 February 1981, however, she used a small amount together with half a basin full of water in order to hand wash some shirts and a skirt. Almost immediately after washing these items she found that her hands were burning. They commenced to swell and subsequently to crack. Two days later she saw Dr Teng, a general practitioner, and took a short time off work. Her claim was that although the condition of her hands had improved significantly after that initial occurrence, they had never become what she felt was normal. Thereafter she had always suffered from some irritation of her hands and on occasions this irritation became much worse. Her claim was based on negligence and the essence of that claim was that the defendant, the appellant here, which was the manufacturer of Aura, had unreasonably failed to warn persons using Aura that it may cause painful and distressing skin conditions. His Honour accepted the claim that the appellant had been negligent and assessed the respondent's damages upon the basis that the initial incident on 18 February 1981 had brought about a distressing condition which was of an indefinite or permanent nature and which left the respondent with hands which were, certainly at the time of trial, disfigured to a marked degree. The appellant has challenged his Honour's findings, although it is fair to say, I think that the challenge is significantly limited. It is not, for instance, disputed that the respondent was entitled to some damages for the condition which she suffered immediately following the incident on 18 February 1981. That concession, so it seems to me, involves an acceptance of the conclusion of his Honour that the appellant had been negligent. 2 UNREPORTED JUDGMENTS What is said in substance is that there was no evidence to support the proposition that all the respondent's hand problems since 1981 were related to the incident of 18 February. Alternatively, it was submitted that if there was some evidence in support of that conclusion the overwhelming weight of the evidence indicated a contrary result. Before coming to the two points which were relied upon by counsel for the appellant I should observe that the argument was based upon a distinction between an irritant and a product with allergenic potential. Mr McAlary of Queen's Counsel, who appeared for the appellant, submitted that if the evidence supported a conclusion that the exposure had caused an allergy or an allergic reaction in the respondent then his appeal could not be sustained. He said, however, that the evidence did not support that conclusion but supported only the view that the Aura acted as an irritant which set off a reaction of limited dimension. According to this argument, any later flareups of the respondent's distressing skin condition were triggered by other, albeit fairly minor, exposures. I use the word "minor" there to indicate exposures to water and other such harmless objects. The first argument which was put was that his Honour had been in error in concluding in his judgment that the respondent had suffered a severe allergic reaction to the Aura. It is true that his Honour used those words and I am bound to say that there is much force in the submission that the evidence simply does not support such a conclusion. It is unnecessary for me, on the view I have formed, to reach a concluded opinion on that aspect of the case. However, I will proceed upon the assumption that Mr McAlary has made good his claim that his Honour erroneously used that description. Another view of the matter is that his Honour was using the word "allergic" in a fairly loose manner, although it is true that there is a similarity between the language used by his Honour and that used in the concluding paragraph of a report of Prof Crank which was tendered in evidence. As Mr McAlary pointed out, Prof Crank departed somewhat from the conclusions in the final report during his oral evidence. However, even assuming that Mr McAlary has made good his first argument, the matter is not concluded. Later his Honour, in dealing with the medical evidence, said that the respondent was suffering from "a contact dermatitis which has been reoccurring". Mr McAlary does not challenge the conclusion that the respondent was suffering from a contact dermatitis but submits that such a conclusion entitled the respondent to damages only for a relatively limited period of some weeks following the exposure in 1981. Again his argument focuses upon the concept that the Aura acted as an irritant which by nature was capable of causing only a temporary condition in the respondent. Irritants, he submitted, did not and could not have long lasting effects and once the initial response to the irritant had settled down the condition suffered by the respondent could only have been caused by later irritants. Upon this basis the damages should have been very limited indeed. The major evidence in respect of the argument put forward by Mr McAlary is the evidence of Dr Armati, a dermatologist, whose report was tendered on behalf of the appellant. Dr Armati thought that the respondent was suffering at the time he saw her, that is November 1987, from a constitutional dermatitis or weakness of the skin and he added that he did not believe that her problem in 1987 could be attributed to a single contact in 1981 with a cleaning liquid in a diluted form. URJ R and C PRODUCTS PTY LTD v EVANS (Clarke JA) 3 Further support was drawn from the evidence of Dr Bolt, who was a bio chemist. On the basis of Dr Bolt's testing with various animals he reached the conclusions that Aura had neither an allergenic potential nor a capability of causing permanent or indefinite responses. He thought that Aura could cause an irritation but that it would be of a limited duration. Before turning to the evidence to the contrary, which his Honour appears to have accepted, I should mention that during cross examination Dr Bolt recognised that the reaction of a human being to exposure to an irritant was essentially a medical matter which depended upon an evaluation of the views of the doctors. Those views are to be found in the evidence of two doctors whose reports were tendered by the respondent. Both of these doctors were dermatologists, one practising at Wagga Wagga and one in Sydney. Dr AG Collins saw her on 8 January 1986 and it is worth noting that after recording the initial history the doctor said this: "This dermatitis has never completely cleared but has become chronic." The doctor then gave his opinion which was based upon a history, which his Honour accepted, that the respondent had never had any previous skin disorder before the outbreak in February 1981. What Dr Collins concluded was: "T consider the condition to be a constitutional problem known as chronic hand eczema which can be triggered off by any sort of irritant substance. In this instance it has been triggered off by the episode of dermatitis produced following the use of the relatively undiluted Aura whilst doing hand washing 4 years ago." This evidence appeared in Dr Collins's report and he was neither called to give further evidence nor cross examined upon this opinion. A similar conclusion is to be found in the report of Dr Le Guay who saw the respondent in April 1987. The doctor said: "T feel this patient has had an acute contact dermatitis by Aura Detergent in 1981. This lasted for some weeks but settled down with treatment but was sufficient to trigger off an underlying constitutional eczema from which the plaintiff now suffers and is causing her constant distress." The picture that is painted by the evidence is of a young lady who had never had any skin problems or problems of eczema prior to February 1981. At that time she used Aura for hand washing and immediately thereafter suffered very severe symptoms in her hands. Those symptoms did not remain as severe permanently but she apparently has suffered from a chronic condition which has become acute from time to time. My understanding of the two opinions which I quoted, and which is contrary to the submissions of counsel for the appellant, is that the Aura acted an irritant which made symptomatic a constitutional condition which had never previously caused problems. It acted, in accordance with the words of both doctors, as a trigger which set off the eczema which, without the trigger, the respondent may never have suffered. I do not think one can, in the light of this evidence, read into the meaning of the word "irritant" a concept that it can only cause temporary irritation. As I understand the medical evidence, which, as I earlier indicated, his Honour appears to have accepted, the exposure to Aura created a condition which brought to light a constitutional problem which otherwise may never have become symptomatic. 4 UNREPORTED JUDGMENTS In these circumstances it seems to me that his Honour was correct to conclude that the respondent suffered from a contact dermatitis on exposure to Aura and that this incident triggered off a condition of eczema which is of a permanent or indefinite nature. It follows that I am unable to accept the argument that the respondent's damages should have been limited to a period of a few weeks or months immediately following the incident in February 1981 and I propose that the appeal be dismissed with costs. Gleeson CJ I agree. Priestley JA I agree. GLEESON CJ: The orders of the Court will be as proposed by Mr Justice Clarke. Appeal dismissed with costs. Counsel for the Appellant - FS McALARY QC and G CURTIN Counsel for the Respondent - PR HENNESSY Solicitors for the Appellant - ABBOTT TOUT RUSSELL KENNEDY Solicitors for the Respondent - WALSH and BLAIR, Wagga Wagga