Anthony v Tasmanian Alkaloids Pty Ltd
[2004] TASSC 118
•25 October 2004
[2004] TASSC 118
CITATION: Anthony v Tasmanian Alkaloids Pty Ltd [2004] TASSC 118
PARTIES: ANTHONY, Brendan John
v
TASMANIAN ALKALOIDS PTY LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: LDR 77/2000
DELIVERED ON: 25 October 2004
DELIVERED AT: Hobart
HEARING DATES: 10 – 14, 17 – 19 May 2004
JUDGMENT OF: Blow J
CATCHWORDS:
Damages – Particular awards of general damages – Tasmania - Post-traumatic stress disorder – General damages $60,000.
Aust Dig Damages [61]
REPRESENTATION:
Counsel:
Plaintiff: K E Read and O M McTaggart
Defendant: P W Tree
Solicitors:
Plaintiff: B J Lillas
Defendant: H S Murray
Judgment Number: [2004] TASSC 118
Number of Paragraphs: 93
Serial No 118/2004
File No LDR 77/2000
BRENDAN JOHN ANTHONY v TASMANIAN ALKALOIDS PTY LTD
REASONS FOR JUDGMENT BLOW J
25 October 2004
On 16 February 1999 the plaintiff was working as a welder at the defendant's opium extraction plant on the outskirts of Westbury when a quantity of toluene was unexpectedly discharged into the atmosphere. He contends that as a result he suffered an injury, and in particular that he has ever since suffered from post-traumatic stress disorder ("PTSD"). He has brought this action against the defendant claiming damages for negligence, and for breaches of various statutory duties. The defendant has denied liability and pleaded contributory negligence.
The defendant's premises on the outskirts of Westbury are quite large. There is a section of its premises known as the combined derivatives plant. Apparently because of the value of the materials at that plant, it is surrounded by a security fence. That is to say, the combined derivatives plant is in a secure fenced area within the larger industrial complex. The plaintiff was working inside that secure fenced area, in the open air. He was taking some measurements, and making notes of those measurements, when he heard a noise, smelt an escaping chemical a couple of times, realised that he would need to move away from it, and hurried to the furthest part of the fenced area in the hope of finding fresh air. He did not find fresh air there. He said that his chest was really burning, that his eyes were really stinging, and that the inside of his head felt as if it was boiling. The only available gate by which he could leave the fenced area was at the opposite side of it. He therefore ran back the way he had come, past his starting point, towards that gate. He ran as fast as he could. His vision failed. He feared for his life. He thought he might never see his children again. He kept running for a time, but collapsed near the foot of a stairway that leads to the control room of the combined derivatives plant. People approached him. Someone helped him out of the gate. He was taken to a first aid room. A doctor saw him there. He was then taken by ambulance to the Launceston General Hospital. It is not clear whether his collapse was due to the toxic effects of toluene, a lack of oxygen, or both.
The cause of the escape of the toluene
The defendant extracts opium from poppies in its combined derivatives plant. As part of the extraction process, it uses toluene as a solvent. The toluene is routinely recovered and re-used. Dirty toluene is stored in a vessel known as TA248B. From there it is transferred through a pipe to a reactor known as RE357. Toluene is extracted from RE357 by a process of distillation. At standard atmospheric pressure, its boiling point is about 110oC. Reactor RE357 has a cavity between its inner and outer metal walls, into which steam is introduced in order to heat the toluene. The toluene boils, rises to the top of RE357, and passes through a condenser into a receiving vessel known as TA248 where it is collected in its pure form.
Before the toluene is moved from TA248B into the reactor RE357, water is drained from the bottom of TA248B through a tap into a small drum. Toluene is insoluble, or practically insoluble, in water. It is normal for a little water to be left in TA248B before its contents are transferred into the reactor RE357. That reactor is equipped with an agitator. Prior to distillation being commenced therein, the agitator is routinely used to mix its contents into a homogenous mixture. If the contents are left to settle, they separate into a toluene layer and a water layer, toluene being lighter than water, and therefore rising to a level above the water layer. However it was not normal for the contents to be left to separate before the day in question.
On 26 February 1999, dirty toluene (a mixture of toluene and other substances) was moved from TA248B into RE357 for the purposes of distillation but, contrary to the defendant's usual practice, it was then left standing in RE357 for some hours without agitation before the distillation process was commenced. Apparently this was done because of other priorities at the defendant's plant. The distillation process was commenced by applying heat to the sides, but not the bottom, of RE357.
When the distillate from RE357 passes towards the condenser, on its way to the receiving vessel TA248, it passes through a sight glass. The sight glass allows an operator to check for discolouration. On 26 February 1999, the operator noted that the distillate passing through the sight glass was dirty. He therefore decided to stop the distillation process. He stopped applying heat to the reactor RE357. He did that by closing off the supply of steam. About ten minutes later, there was a sudden discharge from RE357. There was a pipe leading from RE357 to a point above the roof of the plant, designed to discharge material from RE357 into the atmosphere in the event of the pressure in RE357 becoming too great. The entrance to that pipe from RE357 was protected by a rupture disc. A rupture disc is designed to rupture when a certain pressure is exceeded. The rupture disc installed for RE357 as at 26 February 1999 was designed to rupture when the pressure therein exceeded 30kPa. It ruptured, and a quantity of toluene was discharged through the pipe into the atmosphere. But the pressure in RE357 was so great that a lot of its contents were also discharged at the site of an access lid. The access lid had been in place, with a gasket designed to prevent any of the contents of RE357 escaping, but the gasket blew out and the access lid buckled.
The plaintiff contends that there is only one feasible explanation for the events that occurred. That explanation was advanced in an injury/incident report compiled by the defendant's staff in March 1999, in a report compiled for the defendant by a consultant chemical engineer, Dr Cockshutt, in March 2001, and by an expert witness called to give evidence for the plaintiff, Mr Dreher. Mr Dreher is a risk engineer with qualifications and experience in chemical engineering. The explanation is essentially as follows. Accepting that practically all the water that was at the bottom of TA248B was drained therefrom through the tap at the bottom of that vessel before its contents were transferred to RE357, a significant quantity of water must have been present, mixed with the toluene that was transferred to RE357, and must have settled to the bottom of RE357 when that vessel's contents were, unusually, left standing for some hours without agitation before the distillation process was commenced. When heat was applied to the sides of RE357, but not the bottom, the toluene began to boil, but the water below it did not. The boiling point of a liquid depends upon the pressure of the air or gas above that liquid. The higher the pressure, the higher the boiling point will be. The effect of the toluene boiling was to increase the pressure in the head of RE357 as the toluene boiled. The effect of the increased pressure was to increase the boiling point of the water under the toluene. After the operator closed off the supply of steam that was heating RE357, the pressure in the head of that vessel began to fall. It fell until the water began to boil. The water was superheated, ie, it was a liquid but its temperature was above 100oC. The toluene was still boiling when the water started to boil. When two different liquid compounds boil in a closed vessel, the pressure in the head of that vessel is increased by the sum of the pressures exerted by each boiling compound. When water boils, it expands dramatically. Thus, when the superheated water began to boil, with the toluene boiling simultaneously, the pressure in the head of RE357 increased so dramatically that the rupture disc ruptured, the gasket around the access lid blew out, and the access lid buckled.
Toluene was routinely boiled in RE357 without any untoward events occurring. It follows that the pressure in RE357 must have been greater on the day in question than it had been on any previous occasion since the installation of RE357, which occurred in December 1998. According to the evidence before me, the only sensible explanation for what occurred is that, for the first time since December 1998, toluene and water boiled simultaneously in RE357, resulting not only in the rupture disc pressure rating of 30kPa being exceeded for the first time, but also in the pressure increasing suddenly to such a level as to cause the bursting of the access lid gasket and the distortion of the access lid. I find that that is what happened.
Counsel for the defendant, Mr Tree, conceded that toluene and water must have boiled simultaneously in RE357, but he submitted that I should not accept that the water in RE357 at the critical time, or all of it, arrived at the same time as the toluene. There was evidence that some water was always present in RE357, mixed in with the toluene that arrived from TA248B. The purpose of agitating the contents of RE357 was to ensure that such water was mixed homogenously with the toluene. However Mr Tree submitted that the water in RE357 at the critical time, or much of it, might have arrived in RE357 after the toluene, either before or during the distillation operation, which had been in progress for some 2½ hours before the operator closed off the steam supply. He submitted that water could have entered RE357 after the arrival of the toluene, either as the result of operator error or as the result of a valve malfunctioning. Mr Tree's client carried out an investigation into the causes of this accident. An investigation report was tendered in evidence. It appears from that report that the investigation was carried out by a team of seven individuals. No malfunctioning valve was reported. If the entry of water into RE357 might have been the result of a valve malfunctioning, I think that possibility would have been detected and reported. Similarly, if there was any possibility that water had entered RE357 during the distillation process, I think that would have been reported. Water could only have entered RE357 during the distillation process if it had been introduced under high pressure. I infer that that did not happen. For reasons that will become clear, I do not think the possibility of water being introduced into RE357 as a result of operator error before the commencement of the distillation process should make any difference to the outcome of this action.
Toluene escaped from RE357 on the day in question because toluene and water boiled simultaneously in that vessel. That situation could have been avoided by draining off the water from the bottom of RE357 immediately before commencing the distillation process. It would also have been prudent to have agitated the remaining contents of RE357 in case any water remained mixed amongst the toluene, in the usual way. It appears that the operator was not trained or instructed to drain off water after toluene had been left standing in RE357 for an extended period.
Liability for negligence
Toluene is a refined petroleum product. Its dangers are well documented in publications available in the industrial and scientific communities. It is irritating to the eyes, mildly toxic if inhaled, poisonous if swallowed, explosive when exposed to heat or flame in the form of vapour, and a very dangerous fire hazard when exposed to heat or flame in liquid form. The defendant was the occupier of the premises where the plaintiff was injured. Quite a number of people worked there. It was reasonably foreseeable that one or more people working there might be injured in some way if toluene was allowed to escape into the atmosphere. It clearly follows that the defendant owed those working at its premises a duty to take reasonable care for their health and safety in its handling and use of toluene: Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 379; Jaensch v Coffey (1984) 155 CLR 549 at 584 – 585; Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 430; CSR v Young [1998] Aust Torts Reps ¶81-468 at 64,953.
It was reasonably foreseeable that the pressure in RE357 might rise to a level that endangered the integrity of the vessel and the safety of those working near it. That was obviously the reason that a rupture disc was fitted and a vent pipe installed. The defendant's duty of care therefore required it to take reasonable steps to prevent the pressure in RE357 from rising to such a level as to cause a discharge of toluene into the atmosphere.
In determining whether the defendant breached its duty of care, I take into account the following comments by Mason J (as he then was) in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 – 48:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
The risks involved if toluene escaped into the atmosphere were very high. I have already described its various effects on the human body, and the risks associated with heat or fire. There was a significant probability of the discharge of toluene into the atmosphere, given that (a) some toluene always remained present during the distillation process, (b) RE357 did not have a pressure gauge, (c) the rupture disc was rated at 30kPa, but replaced one rated at 150kPa, and (d) the simultaneous boiling of toluene and water would result in a pressure greatly exceeding 30kPa. Alleviating action could have been taken simply and cheaply by draining off any water in the bottom of RE357 before commencing the distillation process, and by agitating the remaining contents. There were no conflicting responsibilities.
Mr Tree made a submission to the effect that it was not reasonably foreseeable that excessive pressures would be exerted by toluene and water boiling simultaneously. I reject that submission. This was a chemical plant. Those who design and modify chemical plants routinely obtain advice and risk assessments from chemical engineers and similar professionals. The phenomenon that occurs when two compounds with different boiling points simultaneously boil in a closed vessel may not be well known to some of us, but it is by no means unknown to scientists. Mr Dreher was taught about it at university. It was obviously well understood by those who investigated and reported on the incident shortly after its occurrence, and by Dr Cockshutt.
Mr Tree submitted that, before the commencement of the distillation process RE357 might have contained a series of alternating layers of toluene and water. If that had been the case, the draining off of the bottom layer of water might not have avoided a situation involving toluene and water boiling simultaneously. Since water is heavier than toluene, the separating out of a series of alternating layers of toluene and water could only have occurred if something other than toluene and water, present in RE357, formed a crust of membrane preventing water at one level from descending through toluene below it to join another body of water at a lower level. There was, of course, evidence that the operator had noticed a discolouration, suggesting the presence of some other substance, when he viewed the sight glass. Mr Tree cross-examined Mr Dreher about the proposition that a layer of water might have been trapped between layers of toluene in RE357. Mr Dreher said he did not consider that to be a credible situation. His opinion on that point was not contradicted by any other evidence. I therefore reject the proposition advanced by Mr Tree.
For the reasons stated above, I am satisfied that the defendant was negligent in failing to drain the water from the bottom of RE357 prior to commencing distillation; in failing to agitate, or adequately agitate, the contents of RE357 prior to commencing distillation; and in failing to train and instruct the operator of RE357 to take such steps when toluene had been left to stand in RE357. Many other particulars of negligence were relied upon by counsel for the plaintiff, but I do not think I need to consider them.
Breaches of statutory duties
Dangerous Goods (General) Regulations 1998, reg36
The plaintiff contends that the defendant breached a statutory duty imposed by this regulation. The regulation commences as follows:
"36 ¾ A person involved in the handling of dangerous goods ¾
(a)must take precautions to prevent any dangerous goods from ¾
(i)escaping; or
(ii)being discharged into any part of a house or other building or of the immediate surroundings of that house or building …".
The word "handling" is relevantly defined in the Dangerous Goods Act 1998, s3. Under this definition, using toluene, pumping toluene, and all incidental activities would amount to "handling". The definition reads as follows:
"'handling' includes ¾
(a) in the case of any dangerous goods – manufacturing, packing, marking, transporting, storing, selling, supplying and using those dangerous goods and any incidental activities; and
(b) in the case of dangerous goods in the form of a liquid or gas – discharging and pumping those dangerous goods and any incidental activities".
The meaning of "dangerous goods" is dealt with in the Dangerous Goods (General) Regulations, reg5(1), which provides as follows:
"5 ¾ (1) Substances and articles are dangerous goods for the purposes of these regulations if they are prescribed as or determined to be dangerous goods under the Dangerous Goods (Road and Rail Transport) Regulations 1998."
The Dangerous Goods (Road and Rail Transport) Regulations 1998, reg31(1)(a), provides as follows:
"31 ¾ (1) Goods are dangerous goods if they ¾
(a)are named in a specific entry in column 2 in Appendix 2 to the ADG Code, but not in a generic entry or in an entry where the letters 'NOS' are shown as part of the proper shipping name for the goods".
The "ADG Code" was tendered as an exhibit. Toluene is named in a specific entry in column 2 in Appendix 2 in that Code, but not in a generic entry, nor in an entry where the letters "NOS" are shown. It follows that toluene constituted "dangerous goods" for the purposes of the Dangerous Goods (General) Regulations.
The plaintiff contends that the defendant company was involved in the handling of toluene and that it breached reg36(a) by failing to take precautions to prevent toluene from (i) escaping, and (ii) being discharged, into the immediate surroundings of a building.
Mr Tree submitted that reg36 was not intended to give rise to a private right of action. I disagree. It is a regulation directed to safety. Failure to comply with such a regulation in such circumstances as these must give rise to a private right of action. The relevant principle was stated by Dixon J in O'Connor v S P Bray Ltd (1937) 56 CLR 464 at 478 in the following passage:
"Whatever wider rule may ultimately be deduced, I think it may be said that a provision prescribing a specific precaution for the safety of others in a matter where the person upon whom the duty laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right, unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention appears. The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on."
Having regard to the purpose of the regulation, I think it should be interpreted as requiring the taking of adequate precautions by a person involved in the handling of dangerous goods. Although the regulation expressly requires only that such a person "must take precautions", it is clear that the taking of inadequate precautions would not discharge the duty imposed by the regulation.
Mr Tree made a submission to the effect that the defendant had discharged any duty to take precautions by following its normal operating procedures. I disagree. Its normal operating procedures were appropriate only where toluene was not left to stand in RE357.
There are a number of things that the defendant could have done, but did not do, to prevent toluene from escaping, or from being discharged into the immediate surroundings of the building that contained the relevant control room. The defendant could have commenced the distillation process soon after the toluene was transferred into RE357, instead of leaving it standing there for about 10 hours, thereby avoiding the risk of water separating from the toluene and settling in the bottom of RE357. The defendant could have drained the water from the bottom of RE357 prior to commencing distillation. The defendant could have agitated the contents of RE357 sufficiently to create a homogenous mixture before commencing distillation. The defendant could have heated the bottom of RE357, either before or after heating its middle jacket or cavity. The defendant could have trained the operator of RE357 to take such steps. The defendant could have instructed the operator never to decrease the temperature in RE357 in the circumstances that existed at the time in question. These were all precautions that could have been taken to prevent toluene escaping or being discharged into the immediate surroundings of the relevant building. Not all of them needed to be taken, but none of them were taken. I think it follows that the defendant breached the duties imposed by reg36(a)(i) and (ii).
Dangerous Goods (General) Regulations 1998, reg46
This regulation commences as follows:
"46 ¾ A person who stores dangerous goods must take all reasonable precautions to prevent ¾
(a) an accident by fire, explosion, corrosion or poisoning …".
Mr Read submitted on behalf of the plaintiff that the incident in question involved both an explosion and a risk of poisoning. That may be so, but in my view reg46 imposes a duty only in relation to the storage of goods. The relevant incident had nothing to do with the storage of toluene. It occurred when toluene was being distilled for the purpose of removing impurities from it so that it could be re-used in a manufacturing process. It was simply not in storage. Regulation 46 was therefore not contravened.
Workplace Health and Safety Act 1995, s9
The provisions in this section that are relied upon by the plaintiff read as follows on the day in question:
"9 ¾ (1) An employer must, in respect of each employee employed by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular, must ¾
(a)provide and maintain so far as is reasonably practicable ¾
(i) a safe working environment; and
(ii) safe systems of work; and
(iii) plant and substances in a safe condition; and
(b)…
(c)provide any information, instruction, training and supervision reasonably necessary to ensure that each employee is safe from injury and risks to health.
…
(4) At any workplace under the control or management of an employer who is a principal, that employer must ensure so far as is reasonably practicable that a contractor engaged to perform work for the employer in the course of the employer's business, and any person employed or engaged by the contractor to carry on or assist in carrying on that work, is safe from injury and risks to health and, in particular, must so far as is reasonably practicable ¾
(a)provide and maintain a safe working environment; and
(b)ensure that any contractor or person employed or engaged by the contractor is aware of the health and safety requirements of the workplace and that the contractor and any person employed or engaged by the contractor comply with those requirements."
Mr Read submitted that the plaintiff was an employee of the defendant, rather than an independent contractor. Alternatively, he submitted that s9(1)(a) and (c) applied not only in respect of employees, but also in respect of independent contractors. I reject both submissions.
On the day in question the plaintiff was living with a woman named Lisa Blenkhorn. They had been living together for some years. In or before the year ending 30 June 1996 they formed a partnership known as Shearwater Welding and Repairs. They did that on the advice of an accountant. It is obvious that they did that in order to minimise income tax. From October 1998 until after the day in question, the plaintiff was working full-time at the defendant's plant, and was not working for anyone else. He treated his earnings as partnership income. The defendant did not deduct the pay-as-you-earn tax instalments appropriate to an employee, but made 20% deductions in respect of income tax in accordance with the prescribed payments system applicable to independent contractors. The plaintiff was paid by the hour. He was free to start work as early as he liked each day. He provided his own equipment and tools, but the defendant supplied consumables, such as gas and filler wire. The plaintiff was invited to social functions held for the defendant's employees. He was given a locker and provided with refreshments such as coffee and sugar. The defendant paid for him to obtain a forklift licence, and to attend a fire safety course. An employee of the defendant issued him with shirts and boots from the defendant's store, but apparently not in the way that such items are normally issued to the defendant's employees. According to the plaintiff, the arrangement concerning the shirts and boots was similar to a "wink and a nod arrangement". The defendant did not hold him out to the public as a representative of its business. He was issued with a clock card so that his working hours could be recorded. He was told by employees of the defendant in positions of authority what welding work he was to do, but not how to do it. He maintained a policy of sickness and accident insurance at his own expense.
In determining whether the plaintiff was an employee or an independent contractor, it is necessary to consider the totality of the relationship between him and the defendant: Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 29; Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 41. In my view the decisive factors in this case are the existence of a partnership over several years, the fact that the plaintiff treated his earnings as partnership income, the fact that the defendant made tax deductions as if the plaintiff were an independent contractor, the fact that the plaintiff maintained his own disability insurance, and the fact that the plaintiff provided his own equipment and tools. All of the other factors that I have referred to are consistent with the plaintiff being an employee. Some, such as the defendant's expenditure on the plaintiff obtaining a forklift licence, taken in isolation, would tend to suggest that he was an independent contractor, but I consider such factors to be relatively insignificant. I therefore conclude that the plaintiff was an independent contractor on the day in question, and not an employee.
The wording of s9(1) indicates quite clearly that it applies only in respect of employees. It first imposes on an employer a general duty to ensure, so far as is reasonably practicable, that an employee is, while at work, safe from injury and risks to health. It then goes on to spell out more specific duties, not in relation to employees and independent contractors alike, but by way of particularising the general duty owed to employees. That is why the words "in particular" are used. On that basis I reject the submission that s9(1) applied in respect of independent contractors.
However it is clear that the defendant owed the plaintiff a statutory duty pursuant to s9(4). The defendant's premises constituted a "workplace". That word is defined in the Workplace Health and Safety Act, s3(1), to mean "any premises or place … where an employee, contractor or self-employed person is employed or engaged in industry". In the same subsection, "industry" is defined to include "any industry, trade, business … or work in which persons are employed or engaged". The defendant was a "principal". That word is defined in s3(1) to mean "a person who engages any person (otherwise than as an employee) to perform work for gain or reward". The defendant had employees working for it at the premises, as well as having the plaintiff working for it as an independent contractor. The premises were therefore a "workplace under the control or management of an employer who is a principal". Thus it was the duty of the defendant to ensure so far as was reasonably practicable that the plaintiff, a contractor engaged to perform work for it in the course of its business, was safe from injury and risks to health and, in particular, so far as was reasonably practicable, to provide and maintain a safe working environment. Since s9(4) related to industrial safety, it gave rise to a private right of action: O'Connor v S P Bray Ltd (supra). It was reasonably practicable for the defendant, for the purpose of keeping the plaintiff and others safe from injury and risks to health and providing and maintaining a safe working environment, to drain the water in the bottom of RE357 away before commencing distillation, to agitate the contents of RE357 so as to create a homogenous mixture before commencing distillation, and to instruct or train the operator of RE357 to do those things when the contents of that vessel had been standing for hours. By failing to do those things, the defendant breached the duty imposed by s9(4).
Workplace Health and Safety Regulations 1998, reg24
This regulation provides as follows:
"24 ¾ An accountable person must provide as far as is reasonably practicable for the safe and rapid evacuation of persons from the workplace in the event of an emergency."
Mr Read submitted that an emergency occurred as soon as the steam to RE357 was shut off. I disagree. There is no evidence that the operator of RE357 or anyone else knew that an emergency situation existed until toluene began to discharge from that vessel into the atmosphere. When that happened, reg24 obliged the accountable person (that term being defined in reg5(a) to refer to the person "responsible for the management or control of the relevant place") to provide, as far as was reasonably practicable, for the safe and rapid evacuation of persons including the plaintiff. For some time after the plaintiff first smelled the discharged toluene, nothing was done about safely or rapidly evacuating him. Ultimately he fled in the wrong direction. An alarm should have been sounded as soon as the toluene began to discharge, and steps should then have been taken to evacuate the plaintiff, and anyone else at risk in the open air, via the gate through which the plaintiff was eventually taken. That would have been reasonably practicable. The "accountable person" breached the statutory duty created by reg24 by failing to provide for the safe and rapid evacuation of the plaintiff.
Counsel did not assist me with submissions in relation to the question whether the defendant company was an "accountable person" for the purpose of the Workplace Health and Safety Regulations. It may be that that term can never be applied to a corporation. Similarly, counsel did not assist me with submissions as to whether the defendant could be vicariously liable for a breach by an accountable person of the statutory duty imposed by reg24. There is authority suggesting that an employer cannot be vicariously liable for the breach of a statutory duty that is cast upon an employee in his or her personal capacity: Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36. It will not make any difference to the outcome of this action whether the claim for breach of statutory duty based on reg24 succeeds or fails. As counsel did not make submissions on the issues I have referred to, I think the preferable course is not to determine that claim. I will proceed on the basis that the plaintiff is entitled to damages for negligence, and for breaches of the statutory duties imposed by the Dangerous Goods (General) Regulations 1998, reg36(a), and the Workplace Health and Safety Act 1995, s9(4).
Contributory negligence
The defendant pleaded contributory negligence on a number of bases. It said that the plaintiff failed to wear protective clothing, but there is no basis in the evidence for concluding that protective clothing would have made a difference to him. It was pleaded that the plaintiff failed to wear a mask, but there is no evidence that he would have been able to breathe if he had worn a mask, or that a mask could have kept toluene out. It was pleaded that the plaintiff failed to leave the factory when he became aware of "the problem". The plaintiff was in a position of extreme danger, and was therefore not to blame if he did something wrong in the agony of the moment: The Bywell Castle (1874) 4 PD 219; Upward v Tomkinson [1954] Tas SR 60. He did not know how widespread the escape of the chemical into the atmosphere was. He did what seemed to be sensible in running to a place where there was a likelihood of fresh air. That was a reasonable reaction to the situation in which he found himself, though not a helpful one. I am not satisfied that the plaintiff failed to take reasonable care for his own safety. The plea of contributory negligence fails.
Damages ¾ pain, suffering and loss of amenities
Shortly after his exposure to the toluene, the plaintiff was examined at the defendant's first aid room by a doctor, as I have said. The doctor was Dr Trezise, a local general practitioner. He noted that the plaintiff looked pale and distressed, had a rapid pulse rate, and was being given oxygen by a first aid officer. He arranged the plaintiff's transfer by ambulance to the Launceston General Hospital. One of the ambulance officers noted that the plaintiff was lethargic and nauseous. On arrival at the hospital, the plaintiff complained of dizziness, some corneal irritation, general weakness, pins and needles in the legs, and nausea. However he was not coughing and had no difficulty breathing. He was fully conscious by then. A doctor reported that he was agitated and restless on the hospital trolley, and referred in a report to "apparent anxiety". He was sent home later that day, but given a certificate for some days off work because of the psychological aspects of the incident.
Any toxic effects of the plaintiff's exposure to toluene appear to have ceased soon after that exposure. However the psychiatric consequences have endured ever since. On his discharge from hospital, the plaintiff had a shocking headache, and was very withdrawn, very tired, and very shaky. He went home and slept. He played indoor cricket the next day, which was a Saturday.
He forced himself to return to work at the defendant's plant on the Monday morning, but he was sweating and shaking. He persevered because of his financial situation, but ceased work at the defendant's plant about a week later because of the adverse emotional effects that he experienced each time he attended the site.
He left to take up a position working for UMT at Spreyton, in its milk factory. However his psychological symptoms did not improve. He continued to suffer from headaches, sleeplessness, sweating, shaking, and difficulty in concentrating. He completed his tasks at the milk factory as quickly as possible, and then ceased work altogether for some months.
From March 1999 to December 1999 the plaintiff obtained treatment from a Launceston psychologist, Mrs Page. He ceased seeing her because she became terminally ill. In a report dated 13 July 1999, Mrs Page described the plaintiff's symptoms in the following terms:
"Mr Anthony's case history, current symptomatology, presentation and psychometric test findings are consistent with his suffering a post traumatic stress condition arising from his involvement in a reportedly life threatening industrial accident which occurred on 26th February, 1999 whilst he was subcontracted to Tas Alkaloids. The symptoms he complains of include physiological manifestations of anxiety, namely shaking, sweating, irritability, disturbed appetite and sleep, the latter including recurring nightmares. He also suffers from cognitive symptoms, including intrusive thoughts and flashbacks related to the traumatic incident. He engages in avoidant behaviour regarding the site of the event. He also suffers from headaches, originally attributed to his exposure to toxic fumes. Mr Anthony's symptoms have continued to the present time and are of sufficient intensity to prevent him functioning effectively in his former occupational position. His anxiety, together with altered financial circumstances, has also left him vulnerable to worry and caused strain in his family relationships."
The plaintiff's counsel tendered by consent a report by a physiotherapist dated 15 December 1999. In that report it was stated that the plaintiff presented for treatment on 7 June 1999 "with reports of decreased upper limb and hand strength and pain post an incident involving toluene at his workplace". The physiotherapist noted decreased grip strength, pain at full range of motion, and a report of decreased quality of sensation. It seems that the plaintiff only attended one appointment with the physiotherapist. There was no evidence linking the plaintiff's arm and wrist symptoms to his exposure to toluene, nor to his PTSD. I am not satisfied that they were a consequence of his exposure to toluene.
Some months after ceasing work for UMT, the plaintiff's financial position had become so bad that he decided to seek some sort of work. He and his partner had been selling their possessions to raise money to pay bills. He went to see his then general practitioner, Prof Thomson, and obtained a letter "to whom it may concern" saying that he was able to work provided he avoided industrial welding activities. The plaintiff decided to try working as a tree faller. He undertook training in first aid, chainsaw operation, and tree falling. He obtained work but found it a struggle, found his boss too strict, found it very tiring, and gave the job away after some four hours. About a week later, he obtained a couple of days' work falling trees for a more accommodating man who let him choose his own starting times. Thereafter he did some tree falling work for a third man closer to his home, working two or three days per week. That man then got him to do some welding work in a workshop. The plaintiff was comfortable with that because the workshop was spotlessly clean. He worked there irregularly, but left as a result of employees of the defendant visiting the workshop. In all of these jobs the plaintiff was troubled by lack of sleep, difficulty in concentrating, memory problems, irritability, jumpiness, and a feeling of anxiety in all but the cleanest and safest places.
In January 2000 the plaintiff obtained work with Leighton Contractors on the Westbury/Hagley bypass. He was pretty happy with his work, which involved operating a hand-held stop/go sign. However he continued to have trouble sleeping, often having nightmares about the defendant's plant. He worked long hours, but the job came to an end as the result of floods in June 2000.
The plaintiff lived quite close to the defendant's plant. On a day that he stayed home from work, nearly 12 months after the toluene incident, he was in bed when he heard an explosion, which led him to think that he had had another bad dream. Later that day he learned that the explosion had been at the defendant's plant, and that one of his friends had been killed.
The first anniversary of the toluene incident, 16 February 2000, fell on a Saturday. On the Friday, having had a bad week at work, the plaintiff became highly intoxicated, and slept with his partner's sister. His relationship with his partner had been very strained because of his sleeplessness, night sweats, irritability, excessive drinking, and financial difficulties, all of them consequences of the toluene incident. On the Saturday, on learning of the plaintiff having had sex with her sister, his partner terminated their relationship. After a few weeks sharing the same house with her, the plaintiff moved out to a property he owned at Port Sorell, where he has lived ever since in a small besser block house amongst a few acres of quiet bushland.
For about two or three weeks in July and August 2000 he worked for another company as a carpenter. That company apparently ran out of work for him to do. After two or three more weeks off work, he was approached by a man from Leighton Contractors and asked to replace a former colleague who had hung himself. The job involved turning off alarms, arranging refreshments, cleaning toilets, and then working on the construction site. He started work, but found the work a struggle from the start. He frequently took days off, using his sick leave and holiday leave entitlements, in order to be able to cope.
By late March 2001, the plaintiff had been absent from work or late for work so often that he had received a final warning from Leighton Contractors. Friday 23 March 2001 was his birthday. Two stressful things happened to him on that Friday night: he was told that a friend had committed suicide by shooting himself, and he was served with papers relating to an application made by his former partner under the Family Law Act 1975. He did not go to work the next morning. He resigned on the Monday morning. He was having suicidal thoughts. He did not ever attempt suicide, but there was an occasion, apparently at about this time, when he noticed his car was running off the road and decided just to let it go, with the result that it hit a culvert, it rolled, he was knocked unconscious, and he woke up later covered in blood.
The plaintiff engaged a solicitor in relation to the Family Law Act application. That solicitor gave him the name of a psychologist, Mr de Jong. The plaintiff has been seeing Mr de Jong since June 2001.
Since moving to Port Sorell in early 2000, the plaintiff has earned a little income cutting and selling firewood, and renovating and repairing wood heaters. His parents run a business that has contracts for the provision of maintenance services to the Spirit of Tasmania vessels. Since July or August 2001, he has worked for them as an independent contractor. Initially he did welding and odd jobs in his father's workshop. After a month or two, he started working on one of the vessels. From July 2001 he operated under the business name Shearwater Welding and Forestry Services, as a sole trader. He has felt relatively comfortable working on the vessels, apparently as the result of other people generally being supportive. At one stage, when two new vessels were acquired, he worked nearly every day for about a month, first in Hobart and then in Melbourne. From January 2004 until the trial of this action, he worked about 25 hours per week providing maintenance services for Spirit of Tasmania III whenever it was in port in Devonport. He always works with an assistant. I am satisfied that he would not be able to manage without one, nor without the sort of support that he receives from his father and from crew members. He finds working under pressure extremely troubling.
Mr de Jong has noted symptoms that are consistent with the plaintiff's evidence and with the early report by Mrs Page. Those symptoms include a considerable loss of confidence, feelings that he was unsafe at work, inability to concentrate, difficulty working in places that he considers unclean, avoidance of the defendant's plant, difficulties with social interaction, difficulties coping with intimate relationships, intrusive and unwanted dreams and flashbacks, a tendency to be startled easily, panic in response to any reminders of the toluene incident, the excessive use of alcohol and cannabis, tension headaches, and feelings of dizziness and nausea associated with stress. I am satisfied that the plaintiff has been suffering from all of those symptoms as a result of the toluene incident.
In August 2002, as a result of an episode when the plaintiff had suicidal thoughts, the plaintiff's then general practitioner, Dr Poole, prescribed an antidepressant, Dothiepin, for the first time. The plaintiff had previously been unwilling to take antidepressants. His symptoms improved once he started taking Dothiepin. He reduced his reliance on self-medication in the form of alcohol and cannabis.
The plaintiff commenced a second de facto relationship, but it came to an end. I accept Mr de Jong's opinion that it was "concluded for reasons that include his emotional withdrawal and difficulty coping with the normal stresses associated with intimate relationships". In February 2004 the plaintiff married a woman from Thailand. He met her in July 2003 when he went there for a wedding. He went back again for some weeks in October 2003. He said he lived in a fishing village, slept on the floor, had a great time, and forgot about all his worries. He returned to Thailand in February 2004, spent seven weeks there, got married, and brought his bride back to Port Sorell in April. She speaks little English and he speaks little Thai. They apparently lead a simple, loving and quiet life together in his bushland home.
A consultant psychiatrist, Dr Moore, gave evidence for the plaintiff. He had seen him twice for the purpose of this case. He noted that the plaintiff described a variety of unusual physical complaints, including fatigue, headaches, weakness, intolerance of noise, especially any sudden noise which makes him jump, and difficulty with bright lights. Dr Moore also noted that the plaintiff found it very distressing to have to repeat details of the toluene incident. This observation is consistent with other evidence. The plaintiff has been unable to give a detailed account of the incident to Mr de Jong. Not long after the incident, he prepared a written description of it, which he gave to his mother, but he has never discussed it with her. He gave evidence that he had not talked about the incident until giving evidence about it at the trial.
Other symptoms recorded by Dr Moore included recurring thoughts of the incident, dreams and nightmares of a repetitive type in which he is forced back to work and then has to escape from it, avoidance of any industrial site, social withdrawal, difficulties with sleep, irritability, difficulties sustaining concentration, difficulties with memory, a heightened startle response, and constant hypervigilance. In Dr Moore's opinion, the plaintiff is suffering from PTSD. After seeing the plaintiff for the second time in April 2004, he reached the opinion that there will not be any further improvement in the plaintiff's symptoms in the long term. He thinks the plaintiff is only able to continue to work on the Spirit of Tasmania III because the shipping line is willing to pay for the time of both him and his assistant. He thinks the plaintiff's future work prospects would be very doubtful if that situation were to change. The plaintiff told him that the only alternative occupation which he could envisage would be as a crew member on a commercial fishing boat. Dr Moore noted of course that that possibility had not been tested. Dr Moore was not able to find any factors predisposing the plaintiff to PTSD, nor any that had contributed to the continuation of the symptoms of that disorder. He said the end of this litigation was likely to result in only transient mild relief of the plaintiff's symptoms.
Mr de Jong's opinion is that the plaintiff fulfils the criteria for a formal diagnosis of chronic PTSD. He believes this condition to result solely from the toluene incident. He noted that the plaintiff had gradually recovered some measure of his former confidence and competence in welding. He thought it likely that there would be some improvement in his condition after the conclusion of the legal process. He thinks it unlikely that the plaintiff will ever fully recover his pre-accident level of functioning, but does think that he has quite good rehabilitative potential. He thinks he will never be able to return to the defendant's plant or any similar site.
In general terms, I accept the evidence of the plaintiff, Dr Moore and Mr de Jong as to the plaintiff's symptoms, their cause, and his prognosis. There are very marked differences between the plaintiff's condition before the toluene incident and his condition afterwards. Before the toluene incident he was very confident, and highly regarded as a skilful and efficient welder. He ran a successful business. He took on the more difficult and more lucrative welding jobs. In fact he was in demand to do highly skilled welding work. He had a stable relationship with his partner, with whom he had lived since 1990. Their second child was born only weeks before the toluene incident. He was planning to expand his business. He did not have a drinking problem or a problem with cannabis abuse. Psychological testing by Mrs Page indicated an aptitude in dealing with figures and with practical and constructional tasks.
Mr Tree submitted that the plaintiff should have started taking antidepressant medication much earlier and that, by not doing so, he had failed to take reasonable steps to mitigate his damage. I reject that submission. Mr de Jong gave evidence that individuals suffering from PTSD tend to resist pharmacological treatment because they see it as involving a loss of control over their physical state. Dr Moore gave evidence to the effect that it is inappropriate to prescribe medication at an early stage in such cases. Given the state that the plaintiff was in as a result of the toluene incident, I am not persuaded that it was unreasonable for him not to have started taking medication sooner.
Mr Tree submitted that the breakdown of the relationship between the plaintiff and his original partner was not a consequence of the toluene incident, or alternatively that it was not a reasonably foreseeable consequence of any breach of duty that caused that incident. I disagree. But for the toluene incident, the plaintiff's relationship would not have been under the strain resulting from his psychiatric symptoms, he would not have become intoxicated the night before its first anniversary, and I do not think he would have had sex with his partner's sister. It was reasonably foreseeable that any lack of care in the handling of industrial quantities of chemicals at the defendant's plant might have resulted in someone working there undergoing a life-threatening experience, with the result that such a person might suffer from PTSD for many years, and behave in ways likely to strain any marriage or marriage-like relationship beyond breaking point.
Mr Tree submitted that the plaintiff substantially abused alcohol and cannabis before the toluene incident, and that such abuse before and after the incident contributed to his disabilities. I reject that submission. There was no evidence that the plaintiff abused either alcohol or cannabis to a significant degree before the incident. There is ample evidence that he did so afterwards solely because of the psychiatric effects of the incident.
It is true that the plaintiff encountered a number of stressors after the toluene incident. A former colleague hanged himself. A friend was killed at work. Another friend shot himself. His partner of 10 years ended their relationship. She started court proceedings. A second domestic relationship broke down. The plaintiff was involved in litigation with an insurance company concerning a sickness and accident policy. His long hours working for Leighton Contractors interfered with his relationship with his children. He had ongoing financial difficulties. However, in my view, none of these factors interrupted the chain of causation between the toluene incident and the symptoms of PTSD. That disorder was a major cause of his relationship breakdowns and his financial worries. Furthermore, that disorder made him far more vulnerable to unrelated stressors, such as the three tragic deaths, than he otherwise would have been. He is entitled to damages for the increased suffering that he experienced following those events in consequence of him suffering from PTSD.
Having regard to all of the foregoing, I think an appropriate amount to compensate the plaintiff for his pain and suffering and loss of amenities is $60,000.
Impairment of earning capacity
At the time of the toluene incident, the income generated by the plaintiff's work was shared by him with his then partner, as I have said. His earning capacity must be measured by reference to the income generated by his work, rather than by reference to his share of the partnership income: Husher v Husher (1999) 197 CLR 138. All of the partnership income was generated by the plaintiff's work. According to the exhibits that are before me, the partnership traded during the tax years ending on 30 June 1996 to 1999 inclusive.
The exhibits before me include the plaintiff's income tax assessment notices for the years 1994 to 2003 inclusive, those of his partner for the years 1996 to 1999 inclusive, and an incomplete collection of partnership tax returns, individual tax returns, and annual profit and loss accounts. In respect of the year to 30 June 2004, oral evidence was given and an invoice book tendered. From the information available to me, I have calculated the income generated by the plaintiff's work, after tax and the Medicare levy, on an annual basis, as best I can. The results are as follows:
Financial Year Net Income Average Net Weekly Income 1994 $27,084 $521 1995 $27,519 $529 1996 $32,786 $630 1997 $32,561 $626 1998 $36,238 $697 1999 $28.832 $554 2000 $21,634 $416 2001 $29,911 $575 2002 $7,680 $148 2003 $294 $6 2004
$0
$0
Similar calculations were submitted to me during the final address of counsel for the plaintiff. My figures differ slightly from theirs in relation to most years. I will therefore explain my methodology. For the years 1994 and 1995 I have assumed, there being no evidence to the contrary, that all the plaintiff's taxable income was generated by his work. In respect of other years, any income derived by the plaintiff otherwise than from his work was so small that it would not have been taxable if it had been his only income. I have therefore attributed all his income tax and Medicare levy liabilities to his work-generated income. In respect of two years when his partner earned wages, I have treated the tax deducted from those wages, as reflected in her group certificates, as the tax attributable to her work, and the rest of the tax paid by her as attributable to the plaintiff's work. In respect of years when she earned no wages, I have proceeded on the basis that her separate income was so small as not to be taxable. I have treated the Medicare levy in the same way as income tax. In the year to 30 June 2002, the plaintiff incurred no liability for tax, earned $1,599 from his work, and mitigated his damage by obtaining benefits from the Commonwealth amounting to $6,081. I have treated the $6,081 in the same way as work income. I have ignored a loss that he made that year in respect of a rental property. In respect of the 2004 year, the plaintiff gave unchallenged evidence that his business was operating at a loss.
It is apparent from my figures that the income generated by the plaintiff's work had a tendency to increase from year to year up to the time of the toluene incident in February 1999. In saying that, I have not overlooked the fact that the increase from 1995 to 1996 must be attributable at least in part to the effect of income splitting on the liability for tax and the Medicare levy. Since the toluene incident the plaintiff's income has been erratic, though at its best whilst he managed to retain employment with Leighton Contractors and work long hours.
Doing the best I can, I infer that the net income generated by the plaintiff's work would have been about $40,000 for the year to 30 June 1999 if he had not been injured. In respect of his loss of earnings to 30 June 1999, I calculate his damages as follows:
Estimated net income for 1998/99 if uninjured $40,000 Less actual income generated by plaintiff's work $28,832 Loss
$11,148
Before the toluene incident, the plaintiff had a very successful business. He deservedly had a reputation as a very capable tradesman. His work involved stainless steel welding, which is the most lucrative sort of welding. He was industrious and hard-working. He planned to build up his business so that he would profit from the work of employees. He hoped to make his business so successful that he would be able to retire comfortably at about the age of 50.
A Mr Richardson gave evidence for the plaintiff. He is a proprietor of a large business that undertakes welding work in and around Devonport. On the basis of his evidence, I accept that a stainless steel welder, working as a contractor, can earn $50 to $60 per hour for his labour. On the basis of that evidence, Mrs McTaggart submitted that the plaintiff would now be earning an estimated $1,091 per week net, or $56,736 per annum net. Those figures were calculated on the basis of assumptions that (a) the plaintiff would now be charging $55 per hour for his work; (b) he would work 8 hours per day for 200 days per year; (c) he would employ an employee; (d) the employee would work the same hours; (e) he would profit at the rate of $200 per week from the employee's work; (f) the plaintiff's overheads would be about 27% of his gross income, as they were in the years 1997 and 1998; and (g) his income would be split for tax purposes.
Mr Tree submitted that there was no evidence of likely sources of work for the plaintiff after 1999, no evidence from another welder of like background still in business, and no evidence that the plaintiff's business would have maintained its 1999 level of profitability, let alone improved in profitability. However I think I have sufficient evidence as to the plaintiff's skills, personality and intentions, and of the demand for stainless steel welders, to infer that he would have continued in business, and that that business would have been increasingly profitable. Mrs McTaggart's calculation is based on estimates to the effect that the plaintiff would have been working about 200 days per year. If he took statutory holidays and a further four weeks' holiday each year, he would be working on about 230 days per year, rather than the estimated 200. There was also evidence that welders work very long hours during shutdowns at industrial plants. The figure of 8 hours per day is therefore somewhat conservative. However the assumption that the plaintiff would by now be earning about $8,000 per annum by employing someone else is speculative. I have no evidence to suggest that the overhead figure of 27% is more likely to be too high or more likely to be too low. Income splitting for tax purposes is by no means a certainty, but is something that ought to be taken into account as a favourable contingency.
Taking a conservative approach, and doing the best I can, I think it would be appropriate to assess damages for the impairment of the plaintiff's earning capacity on the basis that, but for the toluene incident, he would now be earning or generating about $1,000 per week net.
My estimated figure of $40,000 as the plaintiff's annual income for the year to 30 June 1999 if uninjured is the equivalent of about $770 per week. If the income generated by his work from June 1999 to date had increased evenly from $770 per week to $1,000 per week, it would have averaged about $885 per week. I therefore think it appropriate to assess his damages for the impairment of his earning capacity from 1 June 1999 to date by reference to that figure. If the documentary evidence of the plaintiff's earnings is accurate, it would follow that his loss of earnings since 1 July 1999 should be calculated as follows:
Hypothetical income since 1 July 1999
(277 weeks at $885 per week)
$245,145
Less actual net earnings:
2000
2001
2002
2003
$21,634
$29,911
$7,680
$294
$59,519
Net loss of earnings since 1 July 1999
$185,626
The plaintiff was cross-examined about post 1999 earnings or business income. It seems that he once made a gate for a man for $50 without issuing an invoice, and that the travelling expenses shown in his profit and loss statements might be a little overstated. However I am reasonably satisfied that his financial records paint a substantially accurate picture of his income and work-related expenditure since 1999. Mr Tree submitted that the plaintiff had not fully exploited his residual earning capacity. In particular, he submitted that the sort of work that the plaintiff was doing for Leighton Contractors had not been shown to be unavailable or too hard for him. It is clear that the plaintiff's capacity for work is substantially impaired by his mental disorder. Because of his symptoms, he is incapable of working as a welder, of working on an industrial site, of doing any work that reminds him of the toluene exposure, of working for strict employers or principals, of working with other people not selected or approved of by him, of doing work that involves sustained concentration, or of working under time pressure. Although a stainless steel welder might charge for his time at up to $60 per hour, the plaintiff's charge-out rate for his part-time work has reached only $28.50 per hour, which does not exceed his overheads. The plaintiff has a strong work ethic. At times he has forced himself to work in spite of severe psychiatric symptoms. The fact that he obtained a certificate from Dr Trezise and found work as a tree faller certainly illustrates this. In my view he has made every reasonable effort to exploit his residual earning capacity.
I therefore assess his damages for the past impairment of his earning capacity as follows:
Lost earnings to 30 June 1999 $11,168 Lost earnings from 1 July 1999 $185,626 Total
$196,794
The plaintiff is now 33 years old. He will not be eligible for an age pension until his 65th birthday: Social Security Act 1991 (Cth), s23(5A). Adopting the 7% discount rate prescribed by the Common Law (Miscellaneous Actions) Act 1986, the amount required to compensate a man aged 33 for a loss of $1,000 per week until aged 65 is calculated as follows:
$1,000 x 667.2 = $667,200.
The multiplier of 667.2 is derived from Luntz, Assessment of Damages, 4th ed, 691, Table 3D, which allows for mortality. If mortality is ignored, the appropriate multiplier is 683 (Luntz, 683, Table 2) and the calculation is as follows:
$1,000 x 683 = $683,000.
Of course the plaintiff's ambition was to earn more, and to retire at the age of 50 years, ie, in 17 years' time. It is worth noting that, on the basis of the 7% discount tables, the amount required to compensate someone for the loss of $1,300 per week over 17 years is as follows:
$1,300 x 527 = $685,100.
The possibility of early retirement is a factor that I must take into account. However I think these figures demonstrate that the possibility of the plaintiff increasing his net income by about 30% more or less cancels out the possibility of him retiring about 15 years earlier than pension age. In more general terms, I think the possibility that he would have used his skills and ambition to build up a large successful business, and the possibility that he might have achieved his ambition of early retirement, more or less cancel each other out. In assessing damages for the impairment of his future earning capacity, I must of course allow for the usual adverse contingencies, particularly early death, illness, injury, disability, and voluntary under-employment or absence from the workforce. Mr Tree submitted that the allowance for adverse contingencies in this case should be high because of the plaintiff's alcohol and drug usage and the condition of his back. I reject that submission. He abused alcohol and cannabis as a result of his PTSD, but I have no reason to think that alcohol or cannabis was otherwise ever likely to have any impact on his earning capacity. As a result of a motor vehicle collision when he was a teenager, he suffered a back injury which has left him with a minor back problem. He had x-rays of his back taken in 2001 and 2003, and at least once took pain killers because of back pain. I have no expert evidence in relation to his back condition, but I think I should make some small allowance for the possibility that, had the toluene incident not occurred, it might one day have incapacitated him.
Because of the plaintiff's PTSD symptoms, his earning capacity is severely impaired. I need not repeat the restrictions that his symptoms place on the availability of work. The plaintiff has contemplated working in the fishing industry, or working in a Thai restaurant with his new wife. Since 1999 there have been a number of occasions when he has optimistically embarked upon a new line of work, hoping that his symptoms will not interfere with it, only to be disappointed. No doubt there are many sources of stressful experiences in the restaurant industry and in commercial fishing. It may be that the plaintiff will find a line of work that is compatible with his symptoms, but I think that most lines of work must be closed to him because of them.
It may be that his symptoms, and thus his capacity for work, will improve with this litigation coming to an end, and with the joys of marriage to his new wife. However, I think it more likely that, as Dr Moore predicted, the end of the litigation will result only in a transient and mild improvement. It is also quite possible that some future event will result in an exacerbation of the plaintiff's symptoms. His exposure to toluene has left him vulnerable to such an exacerbating event, and damages must be assessed accordingly. In my view the need to allow for the possibility of an exacerbation of his symptoms more or less cancels out the need to allow for the possibility of an improvement in them.
My calculations in relation to the plaintiff's loss of income since July 1999 indicate that he has retained something of the order of 25% of his pre-accident earning capacity. In saying that, I am taking into account the possibility of him mitigating his losses by obtaining social security benefits, and the preclusion provisions to the Social Security Act, Pt3-14. In my view it is appropriate for his damages in relation to the future impairment of his earning capacity to be assessed on the basis of that figure. I therefore assess those damages as follows:
Amount required to compensate for loss of $1,000 per week to age 65 $683,000
Less allowance for adverse contingencies (15% thereof) $102,450
$580,550 Less retained earning capacity (25% of $683,000) $170,750 Lost earning capacity
$409,800
Special damages
Mr de Jong gave evidence that the plaintiff had seen him on 35 occasions. He practises in Devonport. The plaintiff gave evidence that the return distance from his home to Devonport is about 60 kilometres. On that basis, I find that the plaintiff has travelled 2,100 kilometres going to and from Mr de Jong's rooms. Damages for his past travelling expenses have been claimed at the rate of 36 cents per kilometre. It was not submitted that that rate was unreasonable. The plaintiff should therefore recover $756 for travelling to see Mr de Jong. I am satisfied that it was reasonable for him to see Mr de Jong as often as he did. No claim for travelling expenses was made in respect of the visits to Mrs Page. It is an agreed fact that she charged the plaintiff $2,190 for her services, and that that charge was reasonable. Mr de Jong gave evidence that he has charged the plaintiff $5,225 for his services. I am satisfied that his charges were reasonable.
The costs of all the consultations that the plaintiff has had with medical practitioners since the toluene incident appear in a certificate from the Health Insurance Commission that was tendered by consent. The plaintiff gave evidence that certain consultations, marked by him on the certificate with black marks, were irrelevant to the toluene incident. As a result of Mr Tree's cross-examination of the plaintiff, there are five further consultations, not the subject of the plaintiff's black marks on the certificate, which I think have not been shown to be the result of the toluene incident: a service provided by a radiologist, Dr Shulman, on 5 February 2001 in relation to the plaintiff's lumbosacral spine; a consultation with Prof Thomson on 28 April 2000, apparently in relation to suspected meningitis; and consultations with the plaintiff's present general practitioner, Dr Peduru-Arachchige in September 2003, some or all of which related to the plaintiff's back problem. I am satisfied that all of the consultations mentioned in the certificate, apart from those I have just mentioned and those marked with black marks by the plaintiff, resulted from the plaintiff's toluene exposure. Ignoring Medicare benefits, the cost of the consultations relating to the toluene incident has been $774.90, which I will round up to $775.
I therefore allow the following by way of special damages:
Travelling expenses $756 Mr de Jong's charges $5,225 Mrs Page's charges $2,190 Medical expenses $775 Total
$8,946
Future expenses
The plaintiff has been seeing Mr de Jong approximately monthly, but there have been times when he felt it necessary to see him only about once every two months. Mr de Jong charges $150 per consultation. It is common ground that that is a reasonable fee. The plaintiff has claimed damages for further consultations with a psychologist on the basis that he will need about eight consultations per year for life. Mr Tree submitted that little or nothing should be allowed for such future expenses because the plaintiff is likely to confront the February 1999 incident and recover. That possibility is not what the evidence suggests. Neither Mr de Jong nor Dr Moore saw any real likelihood of the plaintiff making a full recovery. In my view he will need treatment from Mr de Jong or a similar professional indefinitely. The frequency of consultations can be expected to fluctuate, with a greater number being needed whenever the plaintiff's symptoms are exacerbated for any reason. In my view the claim based on the costs of eight consultations per year is reasonable. I therefore allow the claimed sum of $29,141 in full.
The plaintiff has also claimed the cost of travelling to see Mr de Jong eight times per year at the rate of 36 cents per kilometre. I will not allow this claim in full because there is a chance that he will not need to travel so far in the future. The amount claimed was $4,196. I allow $3,000 in respect of the travelling expenses.
The plaintiff's medication is costing him $2.90 per week. The amount required to cover such expenditure for life is $3,662. There is a chance that he will be able to manage without medication at some stage in the future. He is keen not to take medication. I allow $2,000 in respect of future medication expenses.
The cost of the plaintiff seeing his general practitioner every three months to obtain a prescription is the equivalent of $3.46 per week. The amount required to compensate him for such expenditure for life is $4,371. Because of the strong chance that the plaintiff will manage without medication in the future, I will allow $2,500 in respect of future general practitioner consultations.
The amount to be allowed in respect of future expenses is therefore as follows:
Psychologist $29,141 Travelling $3,000 Medication $2,000 General Practitioner $2,500 Total
$36,641
Conclusion
I therefore assess the plaintiff's damages as follows:
Pain and suffering and loss of amenities $60,000 Past impairment of earning capacity $196,794 Future impairment of earning capacity $409,800 Special damages $8,946 Future expenses $36,641 Total
$712,181
I order that judgment be entered for the plaintiff against the defendant for $712,181.
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