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Claim for work-related chemical sensitivity dismissed

A worker alleged that exposure to a sanitiser triggered hypersensitivity.
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Claim for work-related chemical sensitivity dismissed

Claim for work-related chemical sensitivity dismissed

22 February 2021

By Gaby Grammeno

A worker alleging that exposure to a sanitiser used at her workplace triggered her debilitating chemical hypersensitivity has had her claim dismissed by a court. Claims of Multiple Chemical Sensitivity due to exposure to chemicals in the workplace have a long history of conflicting views regarding the validity, recognition and causes of such a condition.

The allegations

The worker had been employed since 2010 as a personal care assistant on a casual basis at aged care facility. Her duties included serving meals to residents and cleaning up after meal service. The carers worked in conjunction with the domestic staff and the cleaners, and helped with cleaning the dining tables and servery at the end of meal time.

Spray bottles containing a chemical known as ‘D4’ were used in the cleaning and sanitising of certain areas of the facility. D4 contained didecyldimethylammonium chloride, a product classified as hazardous according to the criteria at the time. The material safety data sheet listing the hazards and safe working practices with the product was displayed on a wall in the cleaners’ room where the product was kept.

From about September 2013, the worker began to experience headaches when D4 was used in her presence and when she walked into areas where it had recently been used.

She reported her symptoms to the Director of Nursing and it was agreed that she could continue to ask staff not to use D4 in her presence and could request that they warn her of any intention to use it.

However, she was required to continue to work in areas where D4 was being used regularly and her symptoms continued to worsen.

In September 2014 she submitted an Incident Form regarding an occasion when she’d experienced a range of acute symptoms including struggling for breath, which she attributed to the effects of inhaling D4.

After a couple weeks off, she returned to work but continued to seek medical assistance with her symptoms for some months until in March 2015, when she suffered a back injury unrelated to her work, and was not able to continue with her employment at the facility.

She sued her employer for damages, alleging that she had been diagnosed with Multiple Chemical Sensitivity due to her workplace exposure to D4, that she was now ‘sensitive to all chemicals’ and continued to suffer symptoms including pain, itch, dizziness, poor concentration and a variety of nasal, respiratory and skin conditions, causing her ongoing impairment and rendering her unable to work.

She alleged that the company failed to ensure the chemical spray was safe, failed to instruct her in the safe use of the chemical or warn her of the risks of exposure. She said the company had not provided suitable protective clothing or prevented other employees from using the chemical her presence, thereby failing to protect her from injury.

The company denied it was negligent and said the workplace was as safe as they could possibly make it and that adequate precautions for the safety of the worker had been taken.

It disputed the claim that the worker had sustained the personal injury as she alleged, and also whether she really had any such injury.

The case was heard in the District Court of Queensland.

In court

The court needed to determine whether the company had breached its duty of care, and whether the worker had an ongoing impairment.

Most of the evidence provided by other witnesses did not support the worker’s version of events. The Judge formed the view that she was exaggerating her symptoms and that her claims of incapacity were ‘simply not credible’.

After hearing the evidence of various medical experts, the Judge accepted that chemical sensitivity may be a condition suffered by people exposed to large doses of a particular chemical, but said that was not the case here.

He took the view that there was no evidence supporting the proposition that the worker had a condition which had adversely affected her capacity to work or would justify an award of damages for economic loss, or any special damages.

The claim was dismissed.

The bottom line: The court found no reliable evidence that using the chemical D4 carries a risk to employees, particularly in its diluted form.

Read the judgment

Knight v CPSM Pty Ltd [2021] QDC 3 (5 February 2021)

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