Summersford v Favelle Favco Cranes Pty Ltd; Favelle Favco Cranes Pty Ltd v Argenci Pty Ltd

On a day in November 2001, probably 8th, the plaintiff immersed the tips of fingers of both hands in a tin containing paint thinner, called Jotun 17. Over the course of the next two to three months, necrosis developed in the finger tips which had been so immersed. The only effective method of treating this necrosis was to amputate the affected part of the fingers, and this was done.

The plaintiff in this action sues to recover damages to compensate him for the consequences of the loss of those finger tips.

The major issue in this case is whether the insertion of those finger tips into the Jotun 17 caused, or materially contributed to, the necrosis and resulting amputation.

The plaintiff was employed by Argenci Pty Ltd which, as at 2001 and 2002, was known as Edmen Employment Agency Pty Ltd.

His labour was hired by that company to the defendant, Favelle Favco Cranes Pty Ltd.

The workshop at Prestons where the plaintiff was working manufactured and assembled large cranes. To protect the metal of the cranes it had to be painted with rust proof paint. The colour of the paint depended upon the requirements of the purchaser of the crane. Some cranes were intended to be used in an atmosphere near salt water. These cranes had to be painted with a special paint which contained zinc.

One such paint was called Jotun 17. The thinners used to thin down the paint and also to clean the spray guns used to apply the paint were called Jotun 17 thinners.

The Plaintiff was employed as a spray painter. His job was to apply the paint to the component parts of the cranes before their final assembly. As part of his job, he had to clean the spray gun using the appropriate thinners. Thus, when using Jotun 17 paint, the appropriate thinner was the Jotun 17 thinners.

Two hoses were attached to the spray gun when in use. One conveyed compressed air from a compressed air cylinder and the other conveyed the paint. This hose was attached to a container holding that paint. When the air went into the line, it pushed the paint through the spray gun which could be adjusted to provide the required flow of paint.

The plaintiff had worked at the defendant’s premises for almost one year prior to November 2001. The Incidents Claimed to Constitute the Plaintiff’s Injury

On the relevant date which is not known with certainty but probably was about 8 November 2001, the plaintiff was instructed by his foreman, John Aquina, to paint a component part of a crane with Jotun 17. This was the first occasion that he was to use that particular paint.

He was also told by his foreman that the appropriate thinners to use with this paint was the Jotun 17 thinners.

It was then shortly before 8am at the start of the day.

After receiving these instructions, he collected the spray gun which he used from his locker and also obtained a drum containing Jotun 17 thinners. In addition, he had an empty clean tin with a capacity of four litres.

He placed the gun in the tin and then poured the thinners into the tin so that it covered the spray gun. This meant that the tin was full of thinners. The purpose of this exercise was to ensure that his gun was clean, in case some paint had been left in it from the previous day’s work.

He then wanted to retrieve the spray gun from the tin. On previous occasions he had put his hand into thinners and just withdrawn the spray gun without any problems to his hands or fingers.

In order to retrieve the spray gun he placed his left hand with the fingers and thumb pointing downwards into the thinners to the extent of about 2 inches. He said that his thumb did not come into contact with the thinners.

As soon as he inserted the fingers of his left hand into the thinners, he felt what he described as, “an electric type shock”. He had never experienced anything like this on previous occasions when he had placed his hands in thinners. Furthermore, neither the gun not the tin was in any way connected to electricity.

He said that the electric type shock ran straight across the tops of all of the fingers of the left hand, but not the thumb, which had not come into contact with the liquid.

He described the shock as feeling like a jolt which shook his whole arm. It threw him back and his hand out of the thinners.

After removing his fingers from the thinners, they stung like, “a bee sting”.

He then wiped the hand on the front of his overalls which were made of “Tyvek”, a neoprene plastic.

He thought he had hit his nail on the corner of the tin.

He immediately put his right hand into the thinners to retrieve the gun. Again he felt a big shock, which threw his hand back and all his muscles shook and he felt as if he had been hit in the chest. The shock threw him back a bit and took away his breath. His hand was very painful.

He then kicked the tin over and picked up the gun. Some two minutes later, his foreman, John Aquina, walked nearby and the plaintiff said that he said to him, “John, I just put my hands into the paint, into the thinners and it jolted me, it threw me back”. Mr Aquina looked at him and said, “Stephen, come on, lets get to work”. The plaintiff replied, “Yeah, I’m just letting you know, here”, and he picked the gun up and threw it to Mr Aquina. Mr Aquina held the gun and said, “What’s up?” The plaintiff replied, “How does it feel?” Mr Aquina replied, “Okay, come on mate, lets go”, and he threw the gun back to the plaintiff.

It should be mentioned here that on the last day of the hearing, Mr Aquina appeared at Court pursuant to a subpoena issued on behalf of the defendant. Senior Counsel for the defendant sought a short adjournment to interview him. This was granted. On return to court, Counsel said that he did not intend to call Mr Aquina. Thereupon, Senior Counsel for the plaintiff asked for a short adjournment so that he could interview Mr Aquina. This was also granted. On return, Counsel indicated that he did not wish to call Mr Aquina. Was the Defendant Negligent?

I now pass to the question whether the defendant was negligent.

In the cases of Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 and TNT Australia Pty Ltd v Christie (2003) NSWCA 47 it has been held that the defendant, although not the plaintiff’s employer, was in a position analogous to an employer and thus owed him a similar duty of care.

This means that the defendant owed the plaintiff a duty to exercise reasonable care to provide appropriate safety equipment and a safe system of work, including information and or directions regarding safety equipment and safe procedures.

The relevant form of safety equipment and procedures in this case relate to the provision of protective gloves for the plaintiff’s hands.

The Safety Directions attached to the Jotun 17 thinners container (part of exhibit C) says, “Wear protective gloves and eye protection when mixing or using”.

The Material Safety Data Sheet (part of exhibit C) under the heading of “Personal Protection”, states, “Protective gloves: neoprene or nitrile rubber”.

Exhibit D is a pair of nitrile gloves together with the invoice showing that it costs $3.37 including GST.

The evidence of the plaintiff is that the only gloves provided by the defendant and which he had worn before the incident, were gloves made of cotton. They did not stop the solvent contacting his fingers. In fact they were a hindrance. He explained that, if he put his hands in paint or thinners, the liquid would automatically be soaked up by the gloves and within five or ten minutes the paint would go hard, which meant that the gloves went hard so that they had to be taken off and replaced with another pair.

He said that he had frequently asked his foreman, John Aquina, and the man above him, Dieter Zempel, for gloves.

He said that he was never given any information about dangers to his hands that might be caused by solvents.

After November 2001, he was offered gloves made from neoprene but he was unable to get them on to his hands because his hands were swollen and sore.

He said that if he had been offered this type of glove before the incident in November 2001 described above, he would have worn them. He also said that if he had been offered the nitrile type of glove as in exhibit D he would have put them straight into thinners to see if they protected his hand and if they did he would have worn them.

He said that the only gloves which he was offered by Mr Aquina prior to the incident were the cotton gloves.

He denied that other spray painters wore gloves other than one, who brought in his own gloves which the plaintiff described as “medical gloves”. He said that they kept melting so the man took them off.

He denied that he ever refused to wear plastic gloves when asked by Mr Zempel. He denied that he was ever told that barrier cream was available.

Mr Zempel gave evidence that the defendant supplied cotton (he also referred to them as “woollen”) gloves, rigger gloves, welding gloves and long armed dark red rubber gloves for chemical use. The last mentioned, he said, were used by fitters for washing and by painters for washing the equipment. He also said that surgical gloves, which were very short and tight, were also supplied. The long dark red rubber gloves came up to the level of the elbow and were made of very thick material. These gloves were available within the store and all workmen could take them as they needed.

Vaseline, or petroleum jelly was kept within the paint shop and available. Mr Zempel said that instructions were given to the plaintiff about the availability of gloves by Mr Aquino when he commenced work. Mr Zempel said that on one occasion the plaintiff approached him and complained that the cotton or woollen gloves were no good. He told the plaintiff that these were gloves only for protecting the hands from spray and not for washing equipment and that he should use the heavy duty dark red gloves.

Mr Zempel said that he occasionally saw workers using the long heavy gloves for cleaning up spraying equipment. He also agreed that, prior to the particular incident involving the Jotun 17, he had seen the plaintiff wearing only the woollen gloves.

He said that after the plaintiff had seen the doctor, (meaning Dr Badami) he told him that he must make sure he wears the right protective clothing for his hand, he has to put cream on and, if possible, to stop biting his finger nails.

Mr Zempel agreed that he was the person in charge of Occupational Health and Safety for the defendant at that particular site. He also agreed that Jotun 17 was not used very much back in 2001.

On the evidence of Mr Zempel there were three types of gloves supplied. There were the woollen or cotton gloves, which were inadequate to protect the plaintiff’s hands from the effect of thinners. Secondly, there were surgical gloves which, on the uncontradicted evidence of the plaintiff, melted once they came into contact with solvents. Thirdly, there were the heavy gauntlet type glove which were thick and which Mr Zempel agreed would impair the carrying out of work needing fine finger movements. (See page 242).

The nitrile gloves which were specified in the Material Data Safety Sheet were not supplied. An inspection of those gloves, contained in exhibit D, shows that they are of the type that would not impede fine work. They were readily available at a moderate cost. They were not provided and there is no explanation as to why they were not provided. Mr Zempel said that all purchasing was done through the purchasing officer. However, the purchasing officer would purchase what had been required by those in charge of the particular workshop. Mr Zempel was the one who was responsible for Occupational Health and Safety and he did not require them, even though they were nominated in the Material Data Safety Sheet.

On behalf of the defendant, it is submitted that the requirements of the duty of care are to be measured relative to the seriousness of the consequences if the skin contact should come to pass. The worst that could happen as a result of skin contact with these thinners, so far as the defendant could reasonably have foreseen, would be contact dermatitis to the skin of the hands. Having regard to this maximum risk, the employer’s duty of care was amply discharged by making available to the plaintiff, the gloves, protective cream and a brush which would enable the worker to minimise skin contact.

The submission continues that it was a sufficient system under the circumstances to leave it to the plaintiff’s own responsibility to get the appropriate glove from the store and to put them on. It was not necessary, in order to discharge the duty of care in these circumstances, for the employer to adopt a system of stopping the employee from working unless and until he put on suitable gloves.

There is a major fallacy with this submission. It underestimates the seriousness of contact dermatitis to the skin of the hands. It is readily foreseeable that such dermatitis can prevent a worker from continuing with his work and cause him to lose time from work with consequential loss of earnings. It overlooks the reasonably foreseeable pain, irritation and discomfort to the worker caused by this condition. It overlooks the reasonably foreseeable impairment of the capacity fully to use the hands in daily activities and it overlooks the incurring of medical expenses.

These consequences are readily foreseeable. They can be easily obviated by the provisions of the protective gloves specified in the Material Safety Data Sheet, a copy of which was in the possession of the defendant at all material times.

The document clearly specifies nitrile gloves as an appropriate means of obviating the risks of injuries to the plaintiff’s hands. It was readily available at a modest cost.

Under those circumstances, I am comfortably satisfied that the discharge of the defendant’s duty of care required, at least, that nitrile gloves be made available to the plaintiff. They were not.

Accordingly, I am satisfied on the probabilities that the defendant was in breach of its duty of care to the plaintiff. Contributory Negligence

The defendant alleges that the plaintiff was guilty of contributory negligence. The submission is that the defendant was an experienced spray painter and he ought to have been aware of the risks of suffering contact dermatitis if he failed to wear the gloves that were available for him.

The answer to this submission is that the gloves which were made available by the defendant, were themselves inappropriate. The cloth or cotton gloves absorbed paint and thinners. The surgical gloves disintegrated in the thinners and the large heavy gauntlets were thick and rendered it difficult to use the fingers with fine work. The appropriate nitrile gloves were just not supplied.

Under these circumstances, the defendant has failed to satisfy me on the probabilities that the plaintiff was guilty of contributory negligence. The Cross Claim

I now pass to the Cross-claim brought by the defendant against the plaintiff’s employer.

In the case of TNT Australia Pty Ltd v Christie and Ors (2003) NSWCA 47 Mason P at paragraph 67 said:- “In my view, it would be contrary to principle to enable or even to encourage an employer that operates a labour hire business to treat the normal incidents of the employment relationship as modified simply because its employees are sent off to work for a client. Indeed the very fact that the employees are dispatched to external venues and placed under the de facto management of outsiders will, in some cases, have the practical effect of requiring the employer to adopt additional measures by way of warning or training in order to discharge its continuing common law duty of care to its employees.”

In the case of Maricic v Dalma Formwork (Australia) Pty Ltd and Anor (2006) NSWCA 174, Basten JA, with whom Beazley JA and Ipp JA agreed, quoted with approval from the judgment of Winneke P in Bourke v Hassett (1999) 1VR 189 paragraph 42:- “One can conceive of a multitude of circumstances where workmen are sent to work upon premises controlled by others in which the impact upon the discharge of the employer’s duty will vary. It will depend no doubt upon such matters as the employer’s opportunity to inspect the premises, the length of time the employer has put his employees to work on the premises, the awareness of the employer of the danger, his capacity to shield his employees from the danger and various other factors.”

In this particular case, the plaintiff had been working at the defendant’s premises for almost twelve months prior to November 2001. The evidence is that during that time the Cross Defendant’s (employer’s) representative referred to as Tony had visited the worksite approximately once a fortnight. On each of those visits he approached the plaintiff and asked, in effect, how he was going. The plaintiff made no complaints to him about lack of gloves.

It was not until after the incident sued upon that the plaintiff showed Tony his fingers and Tony immediately arranged for him to be seen by Dr Badami.

There is a duty upon the Cross Defendant to take reasonable care to see that appropriate safety equipment is supplied to its employees by the hirer of labour.

The evidence satisfies me on the probabilities that the representative of the Cross Defendant failed to check as to whether appropriate gloves were being provided to the workmen which it employed to work at the defendant’s premises. By “appropriate gloves”, I mean gloves of the type prescribed in the Material Data Safety Sheet.

Having regard to the evidence, I am satisfied that the Cross Defendant was in breach of its duty to the plaintiff to take reasonable steps to ensure that appropriate safety gloves were provided.

At the same time I bear in mind that no complaints specifically relating to the absence of appropriate gloves were made to the representative of the employer. I also bear in mind that the incident sued upon was the first time when Jotun 17 thinners were used by the plaintiff.

Under these circumstances, I consider it appropriate to apportion the responsibility of the Cross Defendant at 15%. THE CAUSATION ISSUE Events from November 2001 to April 2002

The plaintiff continued working for the rest of that day and up until he saw Dr Badami on 16 November 2001.

During this time he noticed that his fingers were turning blue and black. If he put them into hot water, he could see blood in his fingers.

Shortly before 16 November, he spoke to a representative of the Cross Defendant who was visiting the workplace, named Tony. His evidence was that he showed his hands to Tony who immediately recommended that he see Dr Badami the following day. Tony made an appointment which the plaintiff kept on 16 November.

Dr Badami gave evidence at pages 109 and 110 that she saw the plaintiff on 16 November 2001. He gave her no history of an injury, although she wrote in her notes the date 8 November. At that stage she made no diagnosis of a work related injury.

Her clinical notes (with abbreviations amplified) read as follows: “16 November 2001. No history of injury. Works as a spray painter. Has started using new paint Jotun for the past two weeks. Complained of pins and needles and skin irritation of left hand, tips of fingers turning blue and cold. Not on any medication. He smokes 20 cigarettes a day, 16 mg. He was afebrile on examination. Throat and chest clear. The blood pressure was 120 over 88. It looks as if he bites his nails. I took a swab for culture and sensitivity and the peripheral pulses are normal and gradient pulses were normal on both sides. I ordered an x-ray of the left hand and wrist and prescribed Doryx.”

Doryx is a broad spectrum antibiotic. She also prescribed analgesics.

She arranged for the plaintiff to return on 19 November. He did not return.

She also took a swab from the fingertips of the left hand for culture and sensitivity testing. Those finger tips looked as if he had been biting his nails. She could see the nails were irregular and bitten on both hands. Because he complained of pins and needles, she wanted to make sure that there was no infection from biting the nails and no arthritis association or cigarette caused vascular changes.

She said that the colour of the nails was quite normal indicating there was good blood supply. The colour of the flesh back from the tips of the fingers was generally normal.

She gave evidence that she investigated the pulses on the radial and ulnar sides of both hands and north of the feet because of the complaints of pins and needles and tingling. She wished to ensure that the complaints were not related to vascular condition and smoking.

She recommended an x-ray to make sure there were no old fractures or arthritis causing the pins and needles in the fingers.

She said that she formed the opinion that the complaints were probably not related to the thinners because he had used it for two weeks and he had had pins and needles only for a short time.

She concluded at that stage that the plaintiff was suffering from arthritis in the left wrist and hand with secondary infection from chewing the nails.

She declared him unfit for duties on 16th and 17th November and that he should come back for review on the 19th.

These conclusions are included in the Workers Compensation Medical Certificate which she issued and a copy of which is exhibit G.

Exhibit 1 is an Employees’ Compensation Claim Form dated 15 December 2001 in which the events are described as follows:- “Whilst using Jotun thinners for the first time, I put my fingers “left hand” into it to wash my paint tin and it felt like it froze my finger tips to burning point (now infected).”

The date of injury is said to be mid November and the time of injury is 8am.

The plaintiff gave evidence that shortly after Christmas Day, he and his family went to the Wollongong area for a holiday. Whilst there, he saw a doctor whose name he could not recall concerning the condition of his fingers. This doctor prescribed a steroid cream which he applied.

From 3 January 2002, the plaintiff commenced receiving treatment from Dr Nyguen, who was in practice in Miller, Green Valley.

This doctor did not give evidence but his clinical notes are comprised in exhibit M. Whilst they are difficult to read in parts, the best transcription of them is set out below with abbreviations amplified. To assist in the understanding of the sequence of events, it is convenient to set them out in full:- “3 January 2002. Right handed spray painter with contact dermatitis in both hands. Increasing pain. Reduced sleep. Employed by Edmen Employment. Pain for two months. Onset after soaking hands in a paint thinner. Saw a doctor two months ago – told to stop biting nails plus RX with a/b [prescribed antibiotics]. On examination, contact dermatitis in hands, with dystrophic nail (from trauma). No infection seen – wear gloves at all times. Advant ? top daily. Medical certificate, light duties for two weeks. 7 January 2002. complains of increasing pain, left ring finger. On light duty. Increasing pain. Unable to sleep. On examination necrotic tip left ring finger. Red and swollen. Rest of hands. Dermatitis. Capillary function (less than normal). Salt bath ? Panadeine for pain. Off work for one week. 22 January 2002. Still complaining of left ring finger pain on ??? On examination red, swollen, pus filled left ring finger tip with necrotic surface. Finger ?? Referred to Dr Chang. Appointment made 12.30pm 22/1/02.”

The sequence of events is then taken up by the evidence of Dr Chang. In his report of 1 July 2002, part of exhibit B, he states that he saw the plaintiff on 22 January 2002 and obtained a history that the plaintiff had completed spray painting and left the spray gun in the bucket to be cleaned. When he went to retrieve it, he was using his left hand. The plaintiff told him that when his hand touched the fluid in the bucket, he received an electric shock like a jolt to his left ring finger. The pain caused him to drop the spray gun and jump backward. When he moved forward to try to retrieve the gun with his right hand he received a similar shock. Once he settled down he continued working normally to the end of the shift and went home. On the following day, the pain was worse and became persistent.

Dr Chang says that by the time the plaintiff saw him, the left ring fingertip was showing signs of impaired circulation and was already non-viable.

Dr Chang arranged his admission to hospital for removal of the dead tissues and for removal of remnants of any foreign material which might have been the cause of the problem.

The plaintiff was admitted to Sydney Private Hospital on 23 January and, under nerve block anaesthesia and tourniquet control, the left long and ring fingertips and the right small fingertips were debrided. The left ring finger tip was the most severely affected, with the necrotic tissues down to the bone. Part of that bone was nibbled away and the skin edges were left to close without suturing.

Following surgery, the plaintiff had persistent pain and, over the following two days, there were signs of creeping necrosis of the involved digits. Further debridement of the right small fingertip was carried out on 26 January 2002, together with further shortening of the left ring finger tip amputated stump.

There was further progression of the necrosis and on 31 January 2002, the right small fingertip was amputated to the level of the distal interphalangeal joint with further shortening of the left ring finger amputation stump. Necrotic tissues of the right ring and left index tip pulps were also debrided.

A fourth debridement session was carried out on 7 February 2002 when the left index, ring and long fingertips were dealt with. On 13 February 2002, the sutures were removed under general anaesthetic. Further debridement of the left ring fingertip stump was carried out.

By this stage, Dr Chang was quite concerned at the progressive creeping extension of the necrosis in multiple digits. Accordingly, he arranged for an arteriogram of both arms at Liverpool Hospital. This showed absent filling of both ulnar arteries and that circulation in both hands was relying on the radial arteries supplying up to the superficial arches. There was no arterial flow beyond that level to all of the digits.

Dr Chang immediately arranged for the Plaintiff’s admission to Liverpool Hospital and requested a consultation with a vascular surgeon, Dr Eric Farmer, who subsequently carried out bilateral cervical symphectomy on the plaintiff.

After this surgery, the circulation in both hands improved and the creeping advancement of the necrosis was stabilised.

The result of this treatment is that the plaintiff has sustained loss of the left ring fingertip to the level of the distal interphalangeal joint, loss of the fingertip pulp of the left index and ring fingers and loss of the right long ring and small finger tips to the level of the distal interphalangeal joints. The Properties of Jotun 17 Thinners

The question for resolution is whether the plaintiff has satisfied the Court on the balance of probabilities that the immersion of his fingers into the Jotun 17 thinners, on about 8 November 2001, caused, or materially contributed to, the necrosis which led to the amputations described above.

The starting point in the resolution of this question is to consider first, the properties of Jotun 17 and secondly, the pre-existing condition of the plaintiff’s hands.

The label attached to the container of Jotun 17 thinners (part of exhibit C) contains the following safety directions:- “Avoid contact with skin and eyes and avoid breathing vapour or spray mist. Wear protective gloves and eye protection when mixing or using. If not breathing or breathing laboured, remove person from contaminated area and apply artificial respiration if necessary. If in eyes hold eyes open and flood with water for 15 minutes and see a doctor.”

The first aid instructions includes:- “If skin contact occurs, remove contaminated clothing and wash skin thoroughly (use solvent based cleaner followed by soap and water).

The Material Safety Data Sheet relating to Jotun’s thinner number 17, part of exhibit C, describes its hazardous ingredients as xylene, 30% to 60%, n-Butyl alcohol 10% to 30%, and liquid hydrocarbons distilling below 300 degrees C, 10% to 30%.

It also describes its health hazard to skin as “Irritant, prolonged contact may cause dermatitis in sensitive persons”.

On the plaintiff’s evidence, there was no prolonged contact. The period of contact between the fingers of each hand and the thinners, as described by the plaintiff, would have been no more that one or two seconds.

Dr Helen Dauncey, a consultant pharmacologist, in her report of 28 February 2003, part of exhibit 2, expressed the opinion that thinners, such as Jotun 17 do not have the toxicological capacity to cause such a specific and progressive injury as was suffered by the plaintiff.

In relation to xylene, one of the components of Jotun 17, Dr Dauncey said that the defating of skin after excessive contact may cause dermatitis. However, there are no reports of any association with vascular ischaemia or in fact any vascular effects having been reported over a short or long term. This is consistent with the basic toxicology of the chemical, whose biological action is largely non specific. It causes irritation once contact with sufficient concentration has occurred. It has no capacity to cause subtle, specific digital vascular injury over a nine month period. It is not known to cause electric shock type jolts.

Of n-Butyl alcohol, she says that it has no tendency to cause ischaemic peripheral vascular problems or to cause a shock when the hand is immersed.

In relation to the other components, including alcohol or hydrocarbons generally, she concludes that acute exposure to concentrations as high as 2000 parts per million have been reported to produce neither gross toxic effects nor minor transient effects such as eye irritations. All will defat the skin, but dermatitis is rare. None are associated in promoting or causing vascular ischaemia and because of their wide use, such a capacity would have become obvious if it were present.

She concludes in paragraph 9.4 of her report:- “The assumption that thinners, whether Jotun or another product, were the cause of ongoing digital ischaemia or facilitated the progress of Buerger’s or other vascular disease cannot be supported. Such an approach lacks diagnostic objectivity and is reasoning backwards from a conclusion that has already been reached.”

In her report of 7 June 2006, part of exhibit 6, Dr Dauncey states that the boiling point of Jotun 17 is 117 degrees C. This is quite high, given that the boiling point of water is 100 degrees C and it is not particularly cold to the touch when at room temperature. It therefore does not have the physical capacity to cause severe cooling on contact.

Under cross-examination, Dr Dauncey said that she reached her conclusions that there were no reports of any association between thinners and ischaemia on the IPCS data which is the internationally accepted workplace chemicals data base and provides hugely complicated detailed toxicology.

At page 162 she was asked:- “Q. So you do not accept that Jotun 17 having gone under the skin of a person, can cause necrosis and that that area of necrosis can spread? You don’t accept that? A. Well, necrosis is a physical injury. It is physical injury to the cells. Within a short time that substance will be removed by exudates from the tissues and then repair would begin, so I find it difficult to understand how it could – by what mechanism it would be possible for necrosis to grow. When necrosis grows there has to be some element causing necrosis. I believe that with Jotun 17 – 7 or whatever, any of the Jotun products, the physical injury occurs. The substance is removed over a period of time, you know, a short time, repair commences.”

At page 156:- “Q. Doctor, just let me get this straight. From the point of view of your area of expertise, you flatly reject the possibility that the Jotun 17 could have caused the sensation that Mr Summersford described. A. I don’t believe that it - I don’t believe that it could have caused the sensation of a jolt because if he was chewing his fingernails then there was, you know, the flesh exposed and as you know, if you have a cut or any tender, broken skin exposed and you put it into turps or even gin, you will find that there is an electric shock type feeling because it really hurts, because there is exposed flesh. No maybe – I mean – I don’t – I can’t think of any other way it would have caused it because we all use turps at home, we all use gin, spirits at home, those things don’t burn your fingers if you put them in them, and what we have is a combination of turps and gin and nail polish remover. Well, nail polish remover stings like anything. If you have sore quicks and you put nail polish remover on, that will sting a lot. Xylene would, yes, probably cause some stinging too, so I would say the broken skin would cause it, so I accept that it may cause it for that reason and I don’t rule out necrosis, if in fact there was a deep quite a deep injection into the flesh. There could be some necrosis but I do reject that it could go on for a long time. Q. It goes on for a long time, of course, is a medical opinion, isn’t it? A. No, because I think if it repaired within a week, you could see it in what you know about the chemicals. If it goes on for 9 months, you can see from what you know about chemicals that that wasn’t the cause”.

At page 168, she explained that butyl acetate is nail polish remover. Butyl alcohol is like gin. The petroleum content of Jotun 17 is exactly like turps and that, in effect, “you have turps, gin and nail polish remover plus xylene content”.

Dr Daly is a specialist Emergency Physician and consultant clinical toxicologist and the Director of Emergency Medicine at Royal Perth Hospital. He is also the state toxicologist for the Western Australian State Health Disaster Management Committee.

In his report of 21 June 2006, part of exhibit 2, at paragraph 3, he says:- “Irrespective of the actual diagnosis, the dermal effects of hydrocarbon exposures are well described. There is no evidence in the peer review literature that hydrocarbon solvents or thinners are causally associated with ischaemic necrosis, gangrene, Raynaud’s phenomenon or thromboangiitis obliterans (Buerger’s disease).”

He also says that the clinical features, arteriographic findings and histopathology are not consistent with hydrocarbon induced contact dermatitis, chemical burns or high pressure injection injury.

At paragraph 5 of his report, he sets out the ingredients of Jotun 17 and of other thinners used in the defendant’s workshop. He describes them as common hydrocarbon solvents.

He goes on to say that as a group they have similar physio-chemical and toxicological properties. The hydrocarbon solvents are not well absorbed by intact skin, but they are well absorbed following inhalation.

At page 221, he was asked: “Q. In the circumstances when a person describes extreme immediate pain like an electric shock, that the hand, the fingers that were affected were cold and blue and that from then on there was a progression of symptoms leading to areas of darkening colour, ulceration and ultimate surgery to remove necrosis, what is being described there is the progression of a chemical burn? A. No, it does not sound anything like a chemical burn. You also, may I add, you didn’t mention that there was also histopathology findings associated with a subsequent surgical debridement and amputations.”

At page 226, he was asked:- “Q. And if there are areas of, for example, not cuts of the type you might inflict with a knife, but it you have been biting your fingernails down to the skin around there, is compromised, that can provide one of the areas where the skin is more susceptible to absorbing the hydrocarbons? A. Yes. But I was also – did state that it would be of minimal influence, I think.”

In his report 30 October 2002, part of exhibit B, Dr Max Ellis expresses the impression that as a result of the exposure to the thinners, in particular thinner Jotun 17, the plaintiff has developed hypersensitivity angiitis affecting both hands and in particular the fingers that were immersed in the thinners. He points out that the thumbs and left finger which did not enter the thinner were not affected.

He goes on to say that reports of another worker having suffered a similar reaction were known to Mr Summersford. However, there was no evidence before the Court of any such event.

Dr Ellis also says that, on the evidence available to him, there was no evidence of pre-existing abnormality, debility or injury contributing to his assessment. As will be pointed out later, there is considerable evidence of pre-existing abnormality and debility.

He also points out that there are reports of similar finger ischaemia having been demonstrated in workers exposed to vinyl chloride used in the plastics industry. He stated during the course of his evidence that vinyl chloride is a hydrocarbon similar to that involved in Jotun thinners and that vinyl chloride is well known to cause such problems. In support of this, he produced a report from the Journal of the American Medical Association of 21 August 1967 (exhibit 8) which reports on 31 cases where vinyl chloride had caused similar symptoms.

During cross-examination at pages 256 and 257, he expressed the view that the insertion of fingertips into the thinners caused damage to the arteries, the natural consequence of which is for there to be a vascular spasm followed by thrombosis. This is his explanation of the connection between the immersion of the fingers and the subsequent necrosis. He also expressed the view that the cold sensation occurring when the fingers were inserted in the thinners could have caused the jolting sensation like an electric shock described by the plaintiff and the subsequent spasm.

It needs to be born in mind, however, that there is no evidence that the thinners were cold or that it caused a sensation of coldness immediately after withdrawing the fingers from the thinners. Indeed, the plaintiff said that he wiped his left hand on the front of his apron immediately afterwards.

Dr Ellis refused to agree that the presence of the chlorine molecule in vinyl chloride brought about a different set of properties from those which exist in Jotun 17, where there is no chlorine molecule. In the light of the evidence of Dr Dauncey and Dr Daley, I cannot accept this view. The Pre-existing Condition of the plaintiff’s Fingers.

Having considered the properties of Jotun 17 thinners, it is now appropriate to consider the evidence as to the pre-existing condition of the plaintiff’s vascular condition, and in particular the vascular system to his fingers.

The starting point is an angiogram (also called an arteriogram) performed on 12 February 2002, part of exhibit B. It is appropriate to set out the findings in full:- “On the left side, the dominant supply to the hand was via the radial artery. The ulnar artery ended in muscular branches just proximal to the wrist joint. This appeared to be congenital. No abnormality in the subclavian, brachial or radial arteries were noted. In the left hand, the metacarpal arteries appeared normal, however, there was absence of the digital arteries on the lateral aspect of the index finger and lateral aspect of the little finger with only discontinuous segments of vessels seen in both the middle and the ring fingers. Considerable blush within the soft tissue of the ring finger is likely related to inflammation within the skin. On the right side, the subclavian, brachial and radial arteries were patent with radial artery supplying the plantar arch. The right ulna artery ended proximal to the wrist joint in muscular branches. The metacarpal branches filled on the right side. Extremely poor filling of digital branches were noted with isolated segments seen on the medial aspect of the base of the ring finger as well as the lateral aspect of the index finger. These branches were discontinuous. No other definite main branches were demonstrated within the digits. The appearance is consistent with small vessel disease possibly vasculitis.”

The comments of appearances being congenital or possibly vasculitis are in dispute. However, it is not in dispute that the plaintiff had quite severe restrictions to the blood supply of his fingers on both sides and that this condition, whatever its cause or name, predated the immersion of his fingers into the thinners.

In his report of 23 May 2002, part of exhibit 2, Dr McGrath states that the plaintiff also had evidence of vascular disease affecting his lower extremities with reduced ankle pulses, an area of active skin necrosis at the dorsum of his right foot measuring one and a half centimetres in diameter and a healed area cutaneous necrosis that had involved the dorsum of his left foot.

Dr Chang agreed that the arteriogram indicated to him that there was a discord of the arteries supplying blood to the plaintiff’s hands and that that would explain why there would be ischaemia in the tips of his fingers and ultimately necrosis. He said, at page 84:- “If you have poor circulation to tissue, the tissue is starved of nutrition and oxygen and it reaches a certain point where it will start to die off. Simple as that. Obviously it reached a point where the circulation was not sufficient to support the survival of the fingertip and the fingertip progressively died. That is exactly what happened to him.”

Dr Chang agreed that the disease described in the arteriogram report pre-dated his contact with Jotun 17 thinners.

At pages 94 and 95, he was asked:- “Q. Before this incident in November 2001 where he noticed the problems in connection with thinners and the gun, you say there was a pre-existing vascular disease which at least had the potential to restrict blood supply to the fingers of both hands; is that the situation as you see it? A. That’s correct, Your Honour, but you’re not to know, just like a man walking down the road doesn’t even know that he is about to have a heart attack and he does not know that the blood supply to the heart is impaired until he has a heart attack. Okay, he had a pre-disposing condition, but you’re looking backwards, but until that point of time you don’t know. Q. But by the time you see him at the beginning of 2002, I think in January? A. Yes, in January. Q. Towards the end of January, he had what I think you described as a creeping necrosis of the fingers? A. Yes, that's after I seen him, but his injury, his incidence that he described was very specific. He knew nothing, there was no clinical manifestation until he put his finger into this bucket of water which I assume must be cold and when he come back with that story. My first thought was this is an injection injury, but as it proceeded with multiple digit the disease pattern alert me to something that I think was something different. With investigations we found out that he's got a predisposing vascular insufficiency to his extremity that predispose him to this kind of problem. I'm not disputing any of that. As to what is the actual cause at the cellular level or the immunological level I don't know. Q. Let's just leave that aside for the moment. A. Yes. Q. But then you noticed on examination that he had I think you described as creeping necrosis and you then asked Dr Farmer to perform the sympathectomy and I take it the purpose of that was to stop the creeping necrosis? A. To open up the vessels a bit and, therefore, to deliver more blood to the finger tips, and it did work up to a point. Q. So the creeping necrosis stopped at that point? A. For a little while.

At page 67, Dr Chang expressed the view that it is possible that the thinners were cold and that because the blood vessels were at the margin, they shut down and therefore the plaintiff got pain. However, he agreed that he had no information about the temperature of the thinners and just assumed that it was cold. He further agreed that his hypothesis was just a possibility.

When it was put to him that there was merely a temporal coincidence between the onset of symptoms of his vascular disease and his dermal contact with the thinners he replied:- “Well, you can speculate on possibility, improbability to the nth degree, at the end of the day nobody is going to know the truth, I don’t know the truth. I mean, do you really know the truth? Does anybody know? I don’t know.”

Such candour from an expert witness was indeed refreshing.

Under cross-examination at pages 102 and 103, Dr Chang agreed that the disease was sufficiently advanced to require a sympathectomy, that the disease was progressive and that the plaintiff had it at the time of the incident. Furthermore, the probability is that the disease would have continued to progress regardless of this particular incident.

He was asked to offer an opinion as to the time frame over which the disease would have advanced even without insertion of the fingers into the thinners. He stated that, given the advancement of the disease shown on the arteriogram, the plaintiff was approaching that time in November 2001. When asked whether it would be in a relatively short time, he answered, “Well, it depends on what you mean by short. Short short or long short.” He was unable to put any time on it

The medical evidence on behalf of the defendant is that the vascular condition of which the plaintiff was suffering prior to the time of the events in November 2001 was Buerger’s disease, which is a vascular condition caused by smoking of cigarettes. Dr Chang said that he was neither prepared to agree or disagree with this diagnosis. His attitude was that there was this vascular condition, which is described earlier and whether one calls it Buerger’s disease or some other name is quite irrelevant. The Plaintiff’s Medical Evidence

I now pass to the rest of the medical evidence called on behalf of the plaintiff.

In his report of 30 July 2002, part of exhibit B, Dr Michael McGlynn stated that the exact mechanism of the injury is debatable. He points out that to establish the exact cause, it would be helpful to know the exact composition of the subject thinners.

In his report of 6 November 2006, he concludes:- “It would seem that from this, that this man has lost the tips of his fingers due to a failure in circulation in terminal areas of blood flow to the digits. Further, the exact cause of this cessation of blood flow has not yet been determined and, in my opinion, is unlikely to be determined beyond a doubt. I believe that in the absence of irrefutable evidence of the presence of Buerger’s disease, Reynaud’s syndrome or some other pathology, one must accept that the initiating cause for this man’s condition was the immersion of his hands in a bucket of liquid at work; as a result he is permanently unfit for work and has a significant whole person impairment related to his work.”

In the course of his evidence, Dr McGlynn was asked whether the plaintiff had sustained a chemical burn caused by the paint thinners and whether this was part of the cause of the necrosis. He responded that that was his original belief but he had subsequently read other reports and he wondered whether there was some evidence of cooling involved in the injury as well.

At page 177, he agreed that the exact diagnosis is debatable and that he did not think the process could ever be determined, it could only be surmised and postulated. He did, however, remain of the view that there was definitely a strong possibility that a chemical process initiated the necrosis.

At page 178, he explained:- “A. I see it as possibly multifactorial. My initial impression when I first saw this man was that this was a chemical injury. I then see reports saying that these chemicals, they don’t cause this type of injury, so I am left thinking was that – did he actually put his hand into the fluid? Was it the fluid that was said to have been, or was it something else? We see things mislabelled all the time. Or is it possible that some people get reaction to some chemicals that others don’t necessarily get. Q. Idiopathic reaction? A. Yes. Or was there some other? He is a manual worker. He may have had minor injuries to his fingers so that, you know, it’s possible for just the - as we know, when you have a cut and you put it into something caustic, something that is not neutral pH as it were, that causes a great deal of discomfort to most of us and that sort of process of discomfort is part of an inflammatory reaction. So something that may not be toxic can still cause significant inflammation due to its irritation. Q. And that can lead to necrosis? A. The swelling that is associated with that can cause interference with the blood supply to the fingers which in turn causes thrombosis in the fingers, which in turn causes the necrosis.”

At page 186, he was asked: - “Q. But in the case of a person placing his hands in an ambient room temperature into some liquid and then removing them and there being some brief period of evaporation before he wipes his hands, in whatever amount of cold stimulus is generated by that, it would be an extra ordinary phenomenon for the vessels to remain constricted in response following after to form a thrombus, wouldn’t it? A. Yes, it would be an extraordinary occurrence, I have never seen a case like this before.”

Dr Henry Lam of the Pain Management Alliance reported to the Workers Compensation Insurers on 1 February 2002. He expressed the view in that report that the plaintiff has a chemical induced cold injury (X11-3) associated with neuropathic pain.

In his evidence, he said that the cold injury X11-3 is an international classification. He was asked to explain his opinion and he said that the temperature of the material coming into contact with the fingers does not have to be ice cold and that one can get frost bite putting one’s hand on ice but if you have things that are cold and you leave it long enough, it can cause a change in the way the pain fibres respond.

When asked what he meant by leaving the hand in something cold long enough, he said that the period varies from person to person and it depends on the individual at the time.

He agreed that, for the purposes of forming his opinion, he did not find it necessary to ascertain the composition of the thinner or what it could do to the skin, or what path or mechanism that could be causative of pain.

In fairness to Dr Lam, it must be said that he was concerned with treating the symptoms of pain, rather than ascertaining the relationship between the immersion of the fingers in the thinners and the subsequent necrosis.

Dr Philip Humphris, a vascular surgeon, reported to the Plaintiff’s solicitors on 13 January 2003, 7 February 2003 and 12 March 2003, all part of exhibit B.

In his final report, he said:- “I do not consider the reaction to the thinner involved (Jotun 17) was a chemical or a toxic reaction, but an unusual response to cold. This is an extremely rare occurrence, which I have never seen or heard of before. However, I believe the possibility cannot be denied.”

Dr Humphris was unable to give evidence. His report was admitted on the basis that the defendant did not concede the accuracy of the doctor’s conclusions.

I am satisfied on the probabilities that there was no coldness in the thinners. It was in a tin in ambient temperature and it had a boiling point of 117 degrees C.

Dr Gillam, a dermatologist, in a report of 19 February 2003, part of exhibit B, states that the patient obviously has some genetic abnormality in his digital artery formation and that, from her own experience and after confirming with dermatological colleagues, radiologist and dermatological histopathologists, she could not uphold a diagnosis of contact dermatitis due to solvent. The Defendant’s Medical Evidence.

I now pass to the defendant’s medical evidence, Dr Michael McGrath in a report dated 23 May 2002, part of exhibit 2 and which is referred to earlier, says:- “Mr Summersford also has evidence of vascular disease affecting his lower extremities with reduced ankle pulses, an area of active skin necrosis at the dorsum of his right foot measuring one and a half centimetres in diameter, and a healed area cutaneous necrosis that had involved the dorsum of the left foot. The most likely diagnosis is Buerger’s disease (thromboangiitis obliterans) and this is a consequence of Mr Summersford’s long history of tobacco smoking. In confirming this diagnosis I would be eager to review the angiogram files. . . . We could consider the alleged chemical injury as an aggravating factor in relation to triggering cutaneous soft tissue complications but not contributing directly to the underlying vascolopathy. Similar complications can occur with abrasive or other physical injuries to the fingertips that could be associated with various forms of manual labour. Clearly the lower limb areas of skin necrosis have been triggered by factors other than the reported chemical injury of mid November, last year.”

In evidence, Dr McGrath said that the clinical assessment of the plaintiff’s circulation and the radiological assessment of the blood vessels made him very uncomfortable about considering cold as a significant injury in this case.

At pages 202 and 203, he explained what he meant when he said in his report that the alleged chemical injury was an aggravating factor thus. “What I am referring to is the chemical, I would accept that the chemical, without knowing exactly what the chemical was, had the potential for causing the dermatitis or skin injury to the tips of the fingers, that in the setting of someone who has pre-existing blockages of arteries in their hand could have set in train a series of events that ultimately led to severe necrosis of the fingertips. So what we have; pre-existing vascular problems, that up to that point may not have been responsible of symptoms. Then we have an injury and that injury can be chemical, vascospasm, mechanical, that has caused an injury to the fingertips and because of the vulnerability of the fingertips and lack of circulation, they have been unable to recover from the injury, and as a consequence also secondary infection is more likely to occur because there is not enough circulation coming into the area. So it is the soft tissue injury from the chemical that has the potential to be an aggravating factor or a precipitant to tissue loss.”

The main witness called by the defendant and the one to whom Counsel for the plaintiff gave greatest deference, was Professor Lord, a vascular surgeon.

In his report of 24 June 2006, part of exhibit 2, he expresses the following opinions:- “Mr Stephen Summersford suffers from a systemic vascular disease causing blockage of medium sized and small arteries typical of Buerger’s disease. The long history of smoking, the male gender, the abnormal pulses in the upper and lower limbs, the findings in the vascular laboratory and the bilateral arm angiograms all support this diagnosis. Note that in the case of Mr Summersford, in addition to absent ulnar pulse in the hand, he has an absent tibial pulse in each lower limb, again consistent with Buerger’ disease. The ischaemic areas and amputation related symptoms are a result of Buerger’s disease and are not related to the exposure to thinners or similar materials. It is possible that when Mr Summersford came into contact with the thinners there were already ischaemic ulcers developing and the irritant effect of the thinners may have caused sharp pain and also may have precipitated superficial ulceration in fingers whose circulation was already compromised.”

Professor Lord was questioned extensively concerning his opinions, particularly those relating to the precipitation of events caused by coming into contact with the thinners.

As this aspect of the case is crucial to the issue of causation, it is necessary to set this out at some length. It starts at pages 146 and 147 as follows:- Q. If I could take you back to paragraph 44 then. If you would assume that if there were already ischaemic ulcers present then you would have expected Mr Summersford to have noticed them, wouldn't you? A. I would have. Q. If we go then to the last section of that paragraph where you say "and also may have precipitated superficial ulceration in fingers". Do you mean by that-- A. "Exacerbated" might have been a better word. We're stuck with "precipitated", I take it? Q. We are not stuck with it, it is not a pleading, doctor. If I may say so, you seem to choose what you say and write with considerable care, and may I suggest to you that in that paragraph you were deliberately setting out to contrast two possibilities: 1, that there were already ischaemic ulcers there? A. Hmm. Q. Or that the thinners may have precipitated superficial ulceration. That's really what you meant, isn't it? A. I am trying to think what I did mean. I suppose it's possible to take the second one - the second case, that the skin may have been intact but debilitated, and the additional effect of the thinners may have been enough to have caused further damage to compromised skin. Q. And if that damage was as a result of the thinners then that could cause necrosis in the areas where the damage occurred in an already compromised vascular system? A. Superficial necrosis of the skin, yes. You mean in the case where the skin is normal or not normal? Q. Normal? A. I can't imagine if the skin is normal that the thinners would have any affect at all. Q. You speak of "precipitated superficial ulceration"? A. They also say in fingers whose circulation is already compromised. Q. Indeed, so let's take, as a given, that the circulation is already compromised? A. All right, so it is abnormal? Q. Yes. Then that superficial ulceration may well lead to necrosis adjacent to the areas of ulceration? A. I think it is very unlikely, but one is struggling to be fair. Q. If the vascular system is already compromised? A. Hmm. Q. Then that necrosis may extend proximately, that is back up the fingers, their effect, because of the poor circulation that's already there? A. You mean spread into areas which did not contact the thinners? Q. But where necrosis occurred? A. And where that tissue is already compromised also? Q. Yes? A. I don't - can't see why that would occur unless something else supervened, for example, unless it became infected or something else, or further trauma or some other reason.

When questioned about contact with the thinners producing spasm, Professor Lord expressed the opinion that he could not understand why spasm would persist in the absence of continuing stimulus to make it occur.

Because it arises in the submissions of both parties, it is necessary to set out the evidence of Professor Lord at page 153:- Q. If that is the whole explanation for Mr Summersford's problems then we have a remarkable coincidence, don't we, that he dates the onset of symptoms from the immersion of his hand in the thinners and within two months, two and a half months of that, he is having amputations. Do you postulate that as, similarly, a coincidence? A. Yes. Well, it is a common process, in patients explaining the onset of their symptoms, it is common that patients relate their symptoms to some event of some sort. Q. Yes, and-- A. But the underlying disease, of which they are not aware, or may not be aware, nevertheless is the cause of the problem. It is often progressing inexorably. We see this in all sorts of diseases and pathologic processes. The unsophisticated individual, with no knowledge or little knowledge of medicine, tends to look for explanations for things. Of course there are other possibilities here, which are outside my domain. I am working on the basis that all these things that are told to me are correct. It is not always the case, of course. The Defendant’s Submissions

I now pass to the submissions made on behalf of the defendant.

On behalf of the defendant, it is submitted that the plaintiff is not to be regarded as a reliable witness. One cannot accept his evidence as to the events which he described when his hand came into contact with the Jotun 17 thinners.

In support of this submission, the defendant relies upon the evidence of Dr Badami, who testified that the plaintiff gave her no history of injury or of a particular initiating incident. The plaintiff told her that he had had contact with Jotun 17 over the preceding two weeks and that the symptoms of which he complained had commenced eight days earlier. The plaintiff’s omission to tell Dr Badami of the incident which he described in such graphic terms in his evidence, leads to the conclusion that no such incident occurred. The plaintiff’s evidence that he did tell Dr Badami what had occurred is to be rejected. Dr Badami has contemporaneous notes which support her evidence.

The defendant also submits that there is an inconsistency between the plaintiff’s evidence and the description of the events contained in the Workers Compensation Claim Form of 5 December 2001, exhibit 1. In that document, he says:- “Whilst using Jotun thinners for the first time, I put my fingers “left hand” into it to wash my paint tin and it felt like it froze my fingertips to burning point.”

It is true that this account mentions only the left hand and does not use the words “electric shock”. However, it is consistent in the respect of using Jotun thinners for the first time, that he put a hand into the thinners and that he sustained an immediate reaction of some severity.

The defendant further submits that it is likely that the plaintiff commenced to embellish his accounts by the time he signed the claim form three weeks after seeing Dr Badami and that he has further embellished it for the purpose of enhancing his prospects of recovering damages.

It is further submitted that this inference is supported by his inclination to exaggerate or diminish other relevant events. The first event relied upon is the evidence of Dr Badami that the plaintiff told her he smoked 20 cigarettes per day at a time before Buerger’s disease was ever suggested. Since gaining an understanding of the connection between Buerger’s disease and cigarette smoking, the plaintiff, in evidence at trial, sought to downgrade the level of his tobacco consumption to a range of between 13 and 15 cigarettes per day. In addition, the plaintiff asserted in evidence that Dr Chang carried out the first two debridements and amputations under local anaesthetic and asked him to observe the scalpel incisions being made to show that no blood was coming out. However, the hospital notes in exhibit B contradict him and show that he was under general anaesthetic for both the first and second procedures carried out to his hands.

Dr Chang was not quite sure whether the operation was conducted under general or local anaesthetic when he gave his evidence. However, in his report of 1 July 2002, Dr Chang does say that the operation on 23 January 2002 was carried out under nerve block anaesthesia and tourniquet control. This is a local anaesthetic.

Having heard and seen the plaintiff and Dr Badami give evidence, I am satisfied on the probabilities, that there was a breakdown of communication between them. It may well have been that the doctor asked the plaintiff whether he had had an injury and he did not appreciate that the incident when he placed his fingers in the thinners amounted to an injury. He was concerned with the condition of his fingers.

Furthermore, I do not regard the description of the incident contained in exhibit 1 as so inconsistent with the plaintiff’s evidence that his evidence should be disregarded.

In short, I am satisfied, on the probabilities, that when the plaintiff’s fingers came into contact with the thinners, he suffered severe pain. I am further satisfied that this pain lasted only for a short period of time – probably no more than a few minutes.

In this regard, it should be noted that he continued working and that his work included cleaning the spray gun at the end of each run of colour or at least once per day. To clean the gun, he had to dismantle it, insert the parts in a vessel containing thinners and soak them and then use a toothbrush to pick out the pieces of paint and scrub the parts clean. He then had to reassemble and oil the spray gun.

The defendant further submits that in November 2001, before contact with the thinners, the plaintiff suffered from a disease called Buerger’s disease.

It is beyond doubt that at that time the plaintiff was suffering from a systemic vascular disease which reduced the arterial supply to the fingers of both hands. Whether one gives this underlying disease the label of Buerger’s disease is, to my mind, beside the point. I have already set out the evidence relating to the arteriogram, the presence of the disease in small and medium arteries, evidence of the diminished blood supply to the feet described by Dr McGrath, histopathology consistent with vascular disease. All of these support the fact that the plaintiff had such a poor supply of blood to the tips of his fingers that necrosis was inevitable.

In short, it is the defendant’s submission that the plaintiff’s dermal contact with the thinners is no more than a mere temporal coincidence. The fact that the plaintiff ascribes his condition to contact with the thinners is of no significance; it is simply the common reaction of a patient.

Furthermore, the defendant submits that the evidence does not establish that contact with the thinners accelerated, precipitated or exacerbated the underlying vascular disease. The submission is that the evidence established that everything the plaintiff suffered, including the necrosis in his fingers and the subsequent amputations, would have occurred in the same time frame even if there had been no contact with the thinners.

The defendant argues that the evidence of Dr Chang referred to earlier, establishes that the finger tissue was already on the verge of failure. The outward symptoms of necrosis, when the starvation of blood to the distal parts of the fingers reached a final stage of severity, would have occurred at about the time which it did in any event. The first record of necrosis appearing (blackening of one fingertip) is on 7 January 2002, in Dr Nyugen’s notes, exhibit M.

The submission continues that there is further evidence that the diminution of blood supply to the plaintiff’s hands was inevitably progressing towards tissue death without any influence from contact with thinners. Thus, there were necrosis patches on the feet observed by Dr McGrath at 9 May 2002. The thinners had not touched his feet. It is consistent with the whole of the evidence that, given the disease had occluded the small and medium arteries in the hands more severely than in the feet, tissue death in the hands due solely to the disease, began by about 7 January 2002.

It is argued that chronic pain, which the plaintiff felt in his hands during the second half of November 2001 and continuing until Dr Chang’s operations, was not an exacerbation of his disease symptoms attributable to contact with the thinners. Rather, it is the symptom of the loss of blood supply due to progression of the arterial disease. Similarly, the symptoms which the plaintiff complained of to Dr Badami are explicable by reference to the progression of the disease. Therefore, those symptoms cannot be regarded as additional features capable of being attributed to contact with the thinners. The Plaintiff’s Submissions

I now pass to the submissions on behalf of the plaintiff. The first submission is that this is not a case involving the aggravation of an underlying condition. It is a case of the defendant encountering a person of particular susceptibility, often referred to as the “eggshell skull case”.

The plaintiff’s submission is based upon the evidence of Dr McGrath, passages of which have been set out above. The submission is that the insertion of the fingers into the thinners caused an injury, which did not do anything to the vascular condition. Instead, it was the vascular condition that made the chemical injury a lot worse than it otherwise would have been.

The plaintiff submits that the process starts with a chemical injury occurring when the plaintiff put his fingers into the thinners. Because of the poor vascularisation minute areas of necrosis initially develop. Then comes intervening infection which was identified by Dr Badami, who prescribed a broad spectrum antibiotic and sent swabs of tissue away for testing. By the time the plaintiff saw Dr Chang, that chemical injury had advanced because of poor vascularisation of the area where the necrosis occurred. Without that poor vascularisation, the plaintiff probably would not have developed necrosis.

It is the infection which has a role to play in helping the progress of what the tortious act put in train. By the time the plaintiff saw Dr Nyugen, on 3 January 2002, the infection is recognised.

The plaintiff’s claim form, exhibit 1, dated 5 December 2001 refers to “infection occurred”.

The submission continues that the subject thinners, as hydrocarbon solvents, can cause injury in the form of dermatitis which is an injury to cells. It is this injury to cells which puts in train the process whereby a minute degree of necrosis starts in a field whereby, once established, it spreads. In other words a chemical injury caused by the thinners causes necrosis to a small degree and that necrosis develops. Subcutaneous tissue on the fingers that went into the solvent is where the necrosis starts and, having started in an area already compromised by underlying vascular condition, the necrosis then spread proximally.

The submission relies upon what Dr McGrath said, at page 203 from lines 28 to 55, which needs to be set out:-. Q. Now he took the Christmas break, I'd like you to assume, and that whilst away on holidays his hands were not good and that the ring finger on his left hand was the first one that started to go black and that by 7 June - January, I'm sorry, a general practitioner on examination noted necrotic tip of the left ring finger. Now I suppose I really just want to ask you this: is that history consistent with your opinion that we can look at the alleged chemical injury as an aggravating factor in relation to triggering cutaneous soft tissue complications and so on? A. Sorry, I'm just not following what you're saying, but I accept that an injury to the skin from a chemical can be considered as an aggravating factor or a precipitant to skin injury and then subsequently other issues confounding it, such as infection, and that's often - in this situation that's often the cause of a progression of pathology. Q. I'm sorry, could you please explain that? I'd like you to help me in explaining what you mean in the last paragraph of your report that the alleged chemical injury has an aggravating factor in relation to triggering cutaneous soft tissue complications; what actually are you referring to there? A. Your Honour, what I'm referring to is the chemical, I would accept that the chemical, without knowing exactly what the chemical was, had the potential for causing a dermatitis or a skin injury to the tips of the fingers, that in the setting of someone who has pre-existing blockages of arteries in their hand could have set in train a series of events that ultimately led to severe necrosis of the finger tips. So what we have: pre-existing vascular problem that up to that point may not have been responsible of symptoms. Then we have an injury and that injury can be chemical, vasospasm, mechanical, that has caused an injury to the finger tips and because of the vulnerability of the finger tips and lack of circulation, they've been unable to recover from the injury and as a consequence also secondary infection is more likely to occur because there's not enough circulation coming into the area. So it's the soft tissue injury from the chemical that has the potential to be an aggravating factor or a precipitant to the tissue loss.

The argument is that, in this case, we have an observed sequence of events, coupled with the theoretical possibility for the connection between the necrosis and the immersion of the fingers supported by the evidence of Dr McGrath.

In his submission at page 369, Senior Counsel for the plaintiff said: “The telescope has focused on the wrong area of the defendant’s case. It’s been whether it can aggravate the underlying condition. It can’t. The eggshell skull doesn’t get worse because you hit someone with a hammer. The eggshell skull is the eggshell skull. What happens is that a minor hit can have catastrophic consequences. Your Honour, that’s the rationale of the case and that is very much, Your Honour, what Dr Chang is saying.”

Counsel argued that, at page 146, Professor Lord was describing a process where there is necrosis caused by damage to the skin when there is superficial ulceration in the fingers. The necrosis starts with a superficial ulceration and then spreads into various areas where the circulation was inadequate, not because there are thinners there but because there is not enough blood. It is not the thinners marching on. It is the necrosis that is spreading.

In further support of the submissions, counsel points to the fact that the affected fingers were only those that were inserted into the thinners.

The argument continues that once the Court is satisfied that the contact with the thinners caused consequences more serious than would otherwise be the case because of the underlying vascular deficiencies, the evidentiary onus shifts to the defendant to establish when the underlying condition would have reached the stage where necrosis developed requiring surgery.

The plaintiff‘s counsel was prepared to assume that the plaintiff did have Buerger’s disease but argued that there was an incident to the hand which, because of the presence of that disease, ended up being worse than it otherwise would have been in the absence of that disease. The plaintiff is therefore entitled to damages and, if it is necessary to disentangle what would have happened without the chemical injury, then the onus is on the defendant so to do and it has not done so. Resolution

The law regarding what is commonly referred to as the “eggshell skull cases” is conveniently set out in the judgment of Mason P in Kavanagh v Akhtar (1998) 45 NSWLR 588.

At page 600, His Honour says:- “In Chapman v Hearse (1961) 106 CLR 112 at 120, the High Court approved the following passage from Haynes v Harwood (1936) 1KP 46 at 156: “It is not necessary to show that this particular accident and this particular damage were probable; it is sufficient if the accident is of a class that might well be anticipated as one of the reasonable and probable results of the wrongful act.”

His Honour also quoted with approval the dicta of Handley JA and Beazley JA in Commonwealth v McLean (1996) 41 NSWLR 389 at 402 and 407 where their Honours analysed the legal principles and set out certain propositions. Those which are relevant to the present case are:- 1. The “eggshell skull” principle makes a defendant liable for damages of an unforeseeable extent but not for unforeseeable damage of a different kind. Under this principle a defendant is liable for additional damage of a foreseeable kind suffered by a plaintiff who has some special vulnerability. 2. A wrongdoer is responsible for all damage of the same type or kind as was reasonably foreseeable, even if the particular damage or its extent were not reasonably foreseeable, or damage occurred in an unexpected or unforeseeable manner.

It is the plaintiff’s claim that, on the facts of the present case, the damage caused to the plaintiff by Jotun 17 is physical injury to his unprotected fingers and that, because of his special vulnerability; he suffered additional damage of the same foreseeable kind. Accordingly, he is entitled to be compensated for that additional damage arising out of his special vulnerability.

There is evidence from Dr McGrath and Professor Lord that it is possible that exposure of the fingers to Jotun 17 set in place a chain reaction which, because of the pre-existing poor blood circulation to the fingers, led to necrosis and the necessity for amputation of the fingertips.

The question which I have to decide is whether the plaintiff has satisfied me on the balance of probabilities that the immersion in Jotun 17 did, in fact, precipitate that chain reaction as alleged.

In answering this question I have considered the entirety of the evidence including that set out in some detail in this judgment. Some of the matters to which I have given particular regard are set out in the following paragraphs.

The Material Safety Data Sheet relating to Jotun thinners number 17 describes its health hazard to skin as, “Irritant, prolonged contact may cause dermatitis in sensitive persons”.

On the plaintiff’s evidence, there was no such prolonged contact in the incident he relies upon as initiating his problems. The period of contact between his fingers and the thinners on that occasion was no more than one or two seconds for each hand.

The evidence of the plaintiff is that he continued working on that day. On the probabilities his fingers would have had further contact with the Jotun 17 thinners. Dr. Badami testified that he told her he continued using those thinners for about a fortnight. Yet there is no evidence that the plaintiff suffered a similar reaction to contact with Jotun 17 thinners on any of those further occasions.

I am satisfied, on the balance of probabilities, that the reason for this is that when he immersed his fingers on the first occasion there were minor breaks in his skin which, as Dr Dauncey stated, would cause a stinging sensation. Those breaks, on the probabilities, were due to the excessive biting of his fingernails. By the time the plaintiff’s fingers again came into contact with the thinners those minor breaks had healed.

I accept the evidence of Dr Dauncey that the Jotun 17 thinners do not have the physical capacity to cause severe cooling on contact.

I accept the evidence of Dr Dauncey that the thinners would have caused no pain to the plaintiff’s fingers if the skin on them had been intact.

I also accept the evidence of Dr Dauncey that the thinners would not enter behind the skin and that, even if it did, it would be quickly expelled. Consequently, the thinners could not cause necrosis by this means.

Whilst I accept the view of Dr. Badami, which is partly supported by Dr Dauncey, that the reason for the plaintiff’s reaction to the thinners was that the biting of his finger nails had caused breaks in his skin, I am not satisfied on the balance of probabilities that the immersion of the fingers for such a short period of time caused an injury to them such as superficial ulceration or dermatitis or damage to cells.

I accept the evidence of Dr McGlynn that it would be an extraordinary phenomenon for the blood vessels to remain constricted in response to cold stimulus and then to form a thrombus in the circumstances of this case.

The essence of the plaintiff’s submission, as I understand it, is that the thinners caused injury in the form of dermatitis, which is an injury to cells. It is this injury to cells, that are already compromised by the underlying vascular condition that brings about necrosis in the injured part of the fingers. Once established, that necrosis spreads proximally.

I note that when Professor Lord was asked whether superficial ulceration will lead to necrosis adjacent to the areas of ulceration when the circulation is compromised his answer was: “I think it is very unlikely but one is struggling to be fair.”

When questioned about contact with the thinners producing spasm, Professor Lord expressed the opinion that he could not understand why spasm would persist in the absence of stimulus to make it occur.

The evidence falls far short of satisfying me on the balance of probabilities that the short period of immersion of the plaintiff’s fingers in the thinners caused, or materially contributed to, dermatitis or any other form of injury to the cells of his fingers. It follows that I am not so satisfied that the immersion caused or materially contributed to the necrosis in his fingers.

Having regard to all of the evidence, I am satisfied on the probabilities that at the time of the plaintiff’s first insertion of his fingers into Jotun 17, the pre-existing vascular condition of his hand and fingers had deteriorated to the extent that necrosis was about to develop within the next few weeks in any event.

The evidence of Dr Dauncey satisfies me on the balance of probabilities that the Jotun 17 had no effect whatsoever upon his fingers other than to cause a temporary stinging sensation more probably than not due to minor breaks in the skin. The evidence further satisfies me, on the probabilities, that a person with a healthy vascular system in his hand and fingers who inserted fingers into the Jotun 17 for a similar period of time as the plaintiff did, would have suffered no ill effects. The only ill effect suffered by the plaintiff was the temporary stinging sensation.

Thereafter, what the plaintiff described as the changing of the colour of his fingers leading ultimately to necrosis, was due to the pre-existing condition and not in any way due to the immersion in Jotun 17.

The evidence of Dr Chang satisfies me that the finger tissue was already on the verge of failure during November 2001. The outward symptoms of necrosis when the starvation of blood to the distal parts of the fingers reached a final stage of severity, would have occurred at the time it did without the immersion of his fingers in the Jotun 17 thinners. In this regard, it should be noted, that the first record of necrosis, namely blackening of one of the fingertips, was observed by Dr Nyugen as earlier as 7 January 2002.

The symptoms of which the plaintiff complained to Dr Badami, namely pins and needles in the fingers, the fingertips turning blue and cold, are explicable by reference to his poor vascular condition as explained by Professor Lord at page 128.

Accordingly, the plaintiff has failed to satisfy the Court, on the balance of probabilities that the immersion of his fingers into Jotun 17 caused, or materially contributed to, the necrosis in his fingers and the resulting amputations of the tips thereof. Damages

I now pass to the assessment of damages.

It must be stated at the outset that I find on the balance of probabilities that the only damage to the plaintiff caused by, or materially contributed to, by the immersion of his hands in the Jotun 17 is limited to the pain he experiences in each hand, which lasted for no longer than a matter of a few minutes.

I am further satisfied on the probabilities that the subsequent deterioration of the condition of his hands was due solely to the pre-existing vascular disease and was not in any way due to the immersion of his fingers in the thinners.

It follows that whatever economic loss and medical expenses were incurred by him were not caused or materially contributed to by the immersion of his fingers. Consequently, no damages for these amounts can be awarded.

The assessment of damages as between the plaintiff and the defendant is governed by the provisions of the Civil Liability Act 2002.

If that act did not apply, I would have awarded damages for the pain and suffering lasting for a few minutes immediately after the immersion of his fingers in the thinners totalling about $100.

However, under the provisions of section 16 of the Civil Liability Act no damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case. The plaintiff’s non-economic loss falls well short of that threshold.

I have given consideration to allowing within the plaintiff’s damages the cost of the visit to Dr Badami which, according to exhibit Q, was $183.80.

In considering this, I bear in mind the fact that the plaintiff was told to visit that doctor by the representative of the cross defendant who is known as Tony. Tony gave this advice after having seen the condition of the plaintiff’s fingers.

However, whilst Tony’s advice was undoubtedly appropriate, I am not satisfied on the probabilities that the condition of the plaintiff’s fingers, which he and Dr Badami saw, was caused or materially contributed to by the immersion of those fingers into the thinners. Accordingly, I have decided not to allow the costs of the visit to Dr Badami.

I indicated to Counsel at the hearing that I proposed to give a judgment in which I set out my findings as to liability, contributory negligence, apportionment on the cross-claim and damages and then to invite them to make submissions as to the appropriate form of orders and costs. I propose to follow this course.

My findings are as follows: 1. That the defendant was negligent. 2. That the plaintiff was not guilty of contributory negligence. 3. That the cross-defendant was negligent and that its liability be apportioned at 15%. 4. That the plaintiff’s damages assessed in accordance with the Civil Liability Act 2002 are nil. 5. I invite submissions as to the appropriate form of orders. 6. I invite submissions as to costs.