The Plaintiff was a 57-year-old part-time aged care worker. She alleges she suffered a chemical sensitivity injury and a consequent psychiatric injury as a result of exposure to a sanitising chemical “D4” in the course of her employment.
The Plaintiff alleged she suffered multiple debilitating symptoms which were inconsistent with her contemporaneous Facebook posts.
The most significant aspect of the liability case was the nature of the chemical D4 and the manner in which it was stored and used at the Defendant's premises. The court also had to consider the extent of the complaints made by the Plaintiff about the symptoms she was experiencing when exposed to the chemical and the reasonableness of the Defendant's response when becoming aware of those complaints.
The court was satisfied there was no reliable evidence adduced by the Plaintiff which showed the use of the chemical D4 and posed a risk to employees, particularly in its diluted form and particularly given the dispensing system adopted for its use.
There was no evidence that the Plaintiff had any particular vulnerability to the chemical. Although the extent of the Plaintiff's complaints about her exposure was in dispute, the court found that the Defendant once it became aware of the complaints acted reasonably by requesting its employees not to use the product around the Plaintiff. In any event, there is nothing to indicate D4 was a product which posed a risk to employees or the Plaintiff was genuinely vulnerable to its use.
It was clear some strong cleaning product was required at the Defendant’s premises and the chemical used was no different from other chemicals contained in other products in everyday use. On that basis, the Plaintiff failed to establish breach of duty.
In respect of the Plaintiff’s specific allegations of negligence, the court was satisfied the Defendant had made appropriate enquiries about the proper use of D4 at its premises, that staff were instructed properly in its safe use, that the Defendant provided suitable protective equipment and that adequate warnings were given to staff in the safe use of the chemical.
The Plaintiff failed to establish breach of duty. Further, the court found the evidence did not support a conclusion that at the time the Plaintiff worked at the Defendant’s premises she suffered chemical sensitivity as a consequence of the use of D4.
There was no expert evidence capable of persuading the court that the low levels of exposure which occurred could have resulted in the symptomology alleged by Plaintiff. In any event, the court was not satisfied the Plaintiff suffered from the symptoms she alleged and certainly not to the extent she alleged.
On the basis of the evidence accepted by the court, the Plaintiff had and has no ongoing impairment, partial or total, which prevented her from working.
In terms of quantum, it followed from the findings in relation to injury that damages were minimal.
There was no basis for an award of general damages. There was no evidence which supported the proposition the Plaintiff had a condition which impacted her capacity to work or would justify an award of damages for economic loss, or any special damages.
Further, there is nothing that supported any expenditure for medication or treatment, even if the Plaintiff had suffered from the injury alleged.
The Plaintiff's credibility was a critical issue. The court found the Plaintiff's evidence was unreliable. In particular, the court was influenced by the Plaintiff's considerable Facebook presence which demonstrated a level of functioning inconsistent with the wide-ranging symptoms the Plaintiff had reported.
Accordingly, the Plaintiff’s claim was dismissed.
Discussion / implications
The decision reinforces the relevance of the Plaintiff’s social media presence in corroborating allegations about both physical and psychiatric symptoms.