Burns v BOC Gases Australia Ltd - [2001] WADC 113

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BURNS -v- BOC GASES AUSTRALIA LTD [2001] WADC 113

CORAM: WISBEY DCJ

HEARD: 26, 27 FEBRUARY 2001

DELIVERED : 17 MAY 2001

FILE NO/S: CIV 874 of 1999

BETWEEN: JOHN MATTHEW BURNS
Plaintiff
AND
BOC GASES AUSTRALIA LTD (ACN 000 029 729)
Defendant

Catchwords:

Negligence - Negligent advice - Plaintiff given inadequate advice concerning evacuation of liquid propane gas from cylinder - Contributory negligence of plaintiff in evacuating gas in enclosed area and close to naked flame

Personal injuries - General damages for facial and limb burns

Legislation:

Nil

Result:

Judgment for plaintiff in the sum of $23,246.40 after reduction of 50 per cent for contributory negligence

Representation:

Counsel:

Plaintiff: Mr D M Bruns
Defendant: Mr P D C Robinson

Solicitors:

Plaintiff: Separovic & Associates
Defendant: Williams & Hughes

Case(s) referred to in judgment(s):

Anns v Merton LBC (1978) AC 728
Donoghue v Stevenson (1932) AC 562
March v E & M H Stramare Pty Limited (1991) 171 CLR 506
The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40
Wynbergen v Hoyts Corpn Pty Ltd (1998) 72 ALJR 65

Case(s) also cited:

Nil

WISBEY DCJ: The plaintiff, a flight attendant born 4 September 1967, was at 26 June 1997 residing with his partner, Simone Halvorson, at Unit 4, 61 Collins Street, Scarborough. His mother who lived in Victoria was seriously ill, and he had made arrangements to return to Melbourne to be with her. A removalist had been engaged to shift his furniture and personal effects on 27 June 1997. The removalist had advised the plaintiff that it would not transport the 9kg LP gas cylinder while it contained gas, and consequently it was necessary for the plaintiff to evacuate the gas from the cylinder. He was in the process of so doing on the night of 26 June 1997 when there was an explosion and he received severe burns.
The plaintiff's case is that on the afternoon of 26 June 1997 he went to the defendant's Subiaco premises to have it empty the cylinder, and was advised by one of the defendant's employees that he could do it himself by opening the cylinder valve and letting the gas escape, and that if he desired to empty the cylinder quickly, it should be inverted. Acting on that advice the plaintiff took the cylinder back to his unit where he placed it on the courtyard lawn and opened the valve. Several hours later, noting that the cylinder had not emptied, he inverted it, and there was an immediate explosion. It is the plaintiff's case that the advice given to him by the defendant was negligent because the emptying of a gas cylinder should be undertaken by an expert; and/or that the defendant failed to advise him as to the appropriate safety precautions he should take if undertaking the task himself. It is alleged that when advising the plaintiff that he could evacuate the cylinder, the defendant knew that he would act upon that advice.
The defendant denies that it gave the plaintiff the alleged or any advice; and in the alternative alleges that the plaintiff was guilty of negligence in endeavouring to evacuate the gas in a small courtyard at the rear of his unit, and failing to ensure that there was no possibility of ignition by sparks or an open flame. Also that he proceeded carelessly in the circumstances by failing to take any or sufficient care for his own safety.
It against that background that it is necessary to examine the evidence.

The evidence

John Matthew Burns

The plaintiff who was born on 12 September 1967, has been employed with Ansett Australia for 15 years, the last 10 as a flight attendant. In June 1997 he was living at Unit 4, 61 Collins Street, Scarborough, with his girlfriend, Simone Halvorson, but due to his mother's ill health had decided to return to Melbourne. As a consequence he took steps to engage a removalist who was to collect his belongings on Friday 27 June 1997. The removalist had advised the plaintiff that it would not transport a 9kg gas barbecue cylinder while it contained gas.
On Thursday 26 June 1997 the plaintiff went to a service station in Wembley Downs to have the cylinder emptied, and was referred on to the defendant. The plaintiff stated that he took the cylinder into the defendant's service centre and spoke to a male behind the counter, who was at the time speaking with another male. The plaintiff asked whether the defendant had the facility to empty the cylinder, and the person to whom he spoke said "mate, you can go home and do it yourself. You'll be right. If you want to get it done you just open the valve and let it go out slowly. If you want it done quickly you turn the gas bottle on to its head and release the valve and it will come out very quickly - if you want it done quickly". The plaintiff stated that the person said almost as a jocular aside "Oh, don't do it near an open fire or a bonfire". There was no discussion concerning the nature of the plaintiff's residence, or where he proposed to evacuate the gas.
The plaintiff put the cylinder back into his car and drove to the residence of a friend, Richard Coate, to whom he explained that he had been to the defendant and asked it to empty the cylinder, it had refused to do so, and he had been told to go home and do it himself. He stated that he stayed at Mr Coate's house for approximately half an hour before returning to his unit where he told Ms Halvorson that the defendant had told him that if he wanted to release the gas he was to open the valve and let it go freely. He was to turn the cylinder on its head to let the gas out quickly. Having explained the situation to Ms Halvorson, the plaintiff went out into the rear courtyard of the unit, placed the cylinder on the grassed area, and opened the valve to exhaust the gas. A ground plan of the unit (Exhibit P1) demonstrates that the courtyard area is 52m². The plaintiff marked with the letters GB the location where he placed the cylinder before opening the valve. He estimated that it was approximately 5.00 to 5.30 pm when he opened the cylinder valve. As there was still gas in the cylinder at approximately 11.00 pm and the plaintiff wanted to go to bed, he turned the valve off, inverted the cylinder, and reopened the valve - at this point the valve exit was facing the rear fence. The plaintiff stated that when he turned the cylinder valve back on he noticed a cloud, like smoke, coming from the cylinder and flowing out towards the rear of the fence before fanning outwards along the fence line. There was also an audible hissing noise. Because of the smell of gas the plaintiff pulled up his cotton T-shirt so that it covered his mouth and nose. Ms Halvorson was standing at the sliding door. The plaintiff was holding the cylinder while standing over it, and approximately 30 seconds to a minute after reopening the valve there was a loud explosion and a white flash, whereupon he experienced immediate pain. He ran inside the unit and went upstairs and stood under the shower. At that stage he could smell burning flesh, and skin was peeling off his face and arms. Ms Halvorson summoned the police and ambulance, and the plaintiff was taken by ambulance to hospital. The plaintiff claimed that he was continually crying out "I was only doing what I was told to do, I was only doing what I was told to do. I was told to turn the gas bottle on its head".
The plaintiff remained in Royal Perth Hospital for two and a half weeks and described the pain he was experiencing during that period as a living hell, being intense and unremitted notwithstanding substantial ingestion of drugs. The plaintiff required psychological counselling, although he conceded that he had been on anti‑depressant medication for approximately six months prior to the accident as a result of his reaction to his mother's terminal illness, difficulties in his personal relationship, and the like. He was adamant, however, that the accident substantially contributed to his psychological malaise, and that there were times when he considered suicide. Whilst in hospital he required the application of creams and gels to the burn areas, and changing of dressings at least twice daily. He required skin grafting to the right arm, the donor site being on the right thigh. The plaintiff was required to wear pressure bandages on his right and left arms for approximately 18 months. As a result of skin sensitivity to sun, he was required to wear long sleeved shirts. He also required some skin grafting to the left arm and right foot on the lateral aspect of the ankle. The plaintiff stated that residually the right foot had caused the most discomfort of all his injuries, there being until recently constant pain whilst wearing shoes, and standing. He had been required to wear pressure bandages covering both the left and right ankles. Not unnaturally the plaintiff's injuries impeded his capacity to engage in sporting activities such as tennis and running.
Upon returning to Melbourne, because of feelings of anger and difficulty coping, the plaintiff was referred to a psychologist, Dr O'Dea. The plaintiff referred to a schedule of damages dated 26 February 2001 and confirmed the journeys he had undertaken for medical treatment, and that he was required to use creams and special washing powders and soaps. In addition he took Panadeine Forte. He estimated the cost of these items at $300, and excluding hospital expenses, his other medical treatment cost $342.45. In addition he required hydrotherapy on 15 occasions at a cost of $30 to $35 per visit.
The plaintiff was not able to work from the date of the accident until January 1998 and suffered economic loss agreed at $13,000.
In cross‑examination the plaintiff stated that he attended the defendant's premises at approximately 3.00 to 3.30 pm on 26 June 1997. He stated that the employee to whom he spoke said that the defendant was not able to empty the cylinder and gave him instructions to go home and do it himself. He claimed that he was told the defendant did not have the facility to empty the cylinder. He confirmed that his recollection was that the employee had reddish blond hair and a beard, and was in his late 30's or early 40's. He was certain that the person who gave him the advice was standing behind the counter, and did not wear glasses. He was emphatic that he was given advice to turn the cylinder upside down.
In dealing with his visit to Mr Coate's house the plaintiff confirmed that he recounted to Mr Coate the advice he had been given by the defendant's employee, and that at that time he had the cylinder in his vehicle. He did not suggest that he endeavoured to evacuate the gas whilst at Mr Coate's house. He claimed that when he opened the cylinder valve at his unit, the cylinder was about 18 to 20ft from the gas water heater.

William Jack Apgar

Mr Apgar has a Master of Science degree in civil engineering and is a consulting engineer. He has expertise in the behavioural characteristics of gases, including liquid propane gas. He stated that as liquid propane gas was extremely combustible, it would be irresponsible and highly dangerous to endeavour to empty a cylinder by opening the valve and releasing the gas into the atmosphere, because a number of ignition sources including electrical motors, light switches, and static electricity, could initiate combustion. He stated that if a cylinder was standing upright with the valve open, the liquid would boil off leaving the cylinder as a gas or vapour, and because gas is heavier than air it would tend to stay close to the ground as it spread and diffused into the atmosphere. If the cylinder was inverted the liquid would be ejected under pressure and there would be a dramatic increase in the amount of liquid propane gas leaving the cylinder. It would vaporise upon leaving the cylinder, with a dramatic increase in the amount of cold dense gas spreading out across the ground and diffusing into the atmosphere. Mr Apgar stated that the only safe way to empty a cylinder was to arrange for the gas to be extracted professionally, or to connect the cylinder to an appliance and burn off the gas.
In cross‑examination Mr Apgar pointed out that there was no evidence that the cylinder exploded, but what had happened was that there was a rapid fuel air fire which would have begun at the ignition source. Mr Apgar agreed with defence counsel that one would have expected to have seen some indication of heat damage to the cylinder if the plaintiff was standing over and holding it when he got burned. He also agreed that if the pilot light on the gas hot water system was the ignition source he would have expected that there would be some radiant energy damage to the paintwork of the unit.
Mr Apgar expressed the view that it would not be unusual not to see evidence of burning at ground level as there would not be a lot of combustion close to the ground which would be insulated by the cold gas. He seemed prepared to accept that gas could be safely evacuated from a cylinder in an open area where there was no potential ignition source.

Richard Anthony Coate

At the date of the accident Mr Coate was living at 18 View Street, Subiaco, was a flight attendant with Ansett Airlines, and a friend of the plaintiff, having known him for approximately 10 years. Mr Coate recalled that the plaintiff visited him at 18 View Street, Subiaco, at approximately 3.00 pm on 26 June 1997. He stated that the plaintiff had a gas cylinder which he claimed to have taken to the defendant's premises to have emptied. Mr Coate stated that the plaintiff asked if he could evacuate the gas from the cylinder in the plaintiff's front garden (a fact of which the plaintiff made no reference in his evidence). He stated that the plaintiff told him that he had asked the defendant's employees to drain the cylinder but they had laughed at him, been fairly condescending, and advised him to take it home, turn it on its head, and do it himself.
In cross‑examination Mr Coate stated that the plaintiff remained at his home for about half an hour. He confirmed his earlier evidence that the plaintiff stated that he had been told by the defendant to take the cylinder home and empty it himself, inverting the cylinder so that the gas would escape rapidly. Mr Coate stated that he queried the plaintiff as to whether that was in fact the advice he had been given, and was assured that it was, causing him to express surprise to the plaintiff as to the advice. He stated that the plaintiff commenced evacuating the gas in his front garden, but desisted when the escaping gas flowed into the house.

Simone Halvorson

Ms Halvorson, an Ansett Australia flight attendant, was at the material time in a relationship and living with the plaintiff. She recalled that on 26 June 1997 the plaintiff returned home at approximately 4.30 pm as she was about to go to work. She stated that the plaintiff told her he had been to the defendant's premises and had been told to put the cylinder in the backyard, turn on the gas, and let it dissipate into the air. Ms Halvorson left for work, returning home at about 9.30 pm, when the plaintiff advised her that he had put the cylinder in the back garden. At approximately 11 o'clock when they were about to go to bed, the plaintiff went outside to check the cylinder. Ms Halvorson stated that she saw the plaintiff invert the cylinder, following which there was an explosion. The plaintiff ran back into the unit screaming with pain, and she put him under the shower and rang for an ambulance. The ambulance, fire brigade and police arrived after about 20 minutes, and the plaintiff was taken to hospital. It appears that the police and fire brigade investigated the cause of the explosion, but somewhat remarkably neither Authority was called to give evidence.
Ms Halvorson visited the plaintiff in hospital and it was apparent to her that he was in considerable pain and distress. She claimed that there was a dramatic change in his personality subsequent to the accident, and that there were occasions when he was suicidal.
In cross‑examination Ms Halvorson stated that when the explosion occurred the back garden was just like a big glowing ball - it was a flash which lasted for a few seconds. Her recollection was that the plaintiff placed the cylinder on the grass in the middle of the courtyard straight out from the rear door. She was firm in her evidence that the explosion occurred as the plaintiff inverted the cylinder.
There was an agreed book of medical reports (Exhibit P5) which included the Royal Perth Hospital in‑patient notes, report of the general practitioner Dr Lawry dated 26 July 1998, and the report of the plastic surgeon Professor Macleod dated 7 March 2000.
The hospital notes confirm the nature and extent of the plaintiff's injuries, treatment and suffering as outlined in his evidence.
Dr Lawry reported that the plaintiff consulted him initially on 17 July 1997. He noted:
"The basic injury was second and third degree burns, particularly the right forearm and in general the visits were focused on his forearm and hand. This was healing very slowly; on occasions this area became infected and also he developed a severe dermatitis to the right hand. The burns to the face had virtually resolved when I saw him initially, but there was extensive residual scarring and erythema of the right forearm and hand.
He was obviously suffering significant pain and discomfort especially in the region of the right forearm. He was unable to work for an extended period of time and was limited in his ability to interact socially.
The burns were severe involving a period of time as an in‑patient in a specialists burn unit and continued medical review for many months afterwards. The treatment administered by me was antibiotics when appropriate, analgesics, counselling and supportive care. He was also having ongoing physiotherapy
… . I believe that he would still suffer discomfort in the region of the right forearm and hand and suffers from intermittent outbreaks of dermatitis in this region. The area is certainly cosmetically disfigured to a significant degree. I would anticipate, however, in general he would be able to carry out his normal duties as a flight attendant. I would suggest that he would be unsuitable for occupations involving hard manual labour."
Professor Macleod in his report of 7 March 2000 recorded the then position as follows:
"On examination Mr Burns is a healthy, cooperative, apparently well adjusted young man. He has an obvious depigmentation in a scarred area on the dorsal aspect of his right hand. There is full movement and power of the fingers and hand, however. On the lateral aspect of the right foot there is a well healed skin grafted area which shows no evidence of breakdown or other complication, and which does not interfere with the movement of the ankle or the foot. There is an irregular, well healed scarred (sic) on the lateral and posterior aspect of the elbow, and it is difficult to see whether this has been a skin grafted area or a deep dermal burn which has healed spontaneously. On the medial aspect of the left forearm there is a well healed partial thickness burn which is difficult to see and which is of no functional significance."
Professor Macleod noted that treatment had been effective and that the donor site on the thigh was difficult to observe. He stated that the major deformity was the scarring on the dorsum of the right hand which was more obvious because of the depigmented areas. The impression one gets from the report is that Professor Macleod considered that both functionally and cosmetically a very satisfactory result had been achieved.
In a report of 11 May 2000 Professor Macleod wrote:
"…it can be stated that the injuries which he has suffered do not interfere with his employment or social prospects unless the cosmetic appearance of his right hand were to be found offensive by some employer or social contact.
The depigmentation seen on the hand is not indicative of any serious underlying disorder and it may be that it could respond to treatment provided by a skin specialist."

John Wallace O'Dea

Mr O'Dea, a clinical psychologist, saw the plaintiff at the request of his general practitioner on seven occasions between September 1997 and January 1998. His report dated 18 February 2000 was received in evidence (Exhibit P3) and outlined a number of psychological difficulties suffered by the plaintiff as a result of the incident; also identifying other factors contributing to the psychological maladjustment. Mr O'Dea reported that the plaintiff had been clearly disturbed and depressed as a result of the accident but had been able to put most of the problems behind him. In his viva voce evidence he confirmed the views expressed in his report.

David Stewart Campbell

Mr Campbell was at the relevant time the sales manager of the defendant company. He became aware shortly after the accident that the plaintiff claimed to have received advice from the defendant as to the emptying of the gas cylinder. As a result Mr Campbell spoke to relevant employees to try and ascertain whether any of them had given the plaintiff advice. He stated that David Bromberg, Steve Wubbels, Rod McNair and Tony Van Mierlo were the only people who worked behind the service counter at the time. Mr Campbell confirmed that it was not appropriate to attempt to empty a cylinder by inverting it because the LP gas would come out as a liquid and increase in volume 270 per cent upon contacting the external atmosphere, thus creating a dangerous environment. There was the possibility that the valve could freeze so that it could not be closed, and there was the risk of suffering cold burns. He confirmed that the defendant had the facility to empty cylinders.
In re‑examination Mr Campbell stated that Neville Davis, the manager of the Gas and Gear centre, was an additional person to whom the plaintiff may have spoken.

Neville Peter Arthur Davis

Mr Davis, the defendant's sales manager, was in its employ as at 26 June 1997, and gave evidence that he did not receive any enquiry at about that time concerning the emptying of a cylinder. He became aware of the accident on the following Monday when informed by Mr Campbell, and he assisted Mr Campbell interviewing staff. Mr Davis also confirmed that it was not appropriate to attempt to empty a cylinder by inverting it, because the conversion of the liquid propane into gas would create a very dangerous atmosphere. Mr Davis stated that at the relevant time none of the defendant's employees had red hair and a beard.

Steven Mark Wubbels

Mr Wubbels is presently employed by the defendant as its gas and gear manager, and as at 26 June 1997 was working behind the service counter. He denied being approached by a person enquiring about the emptying of a gas cylinder. He also confirmed that it was not appropriate to endeavour to empty a cylinder by inverting it, and stated that he would never advise anyone to do so. He stated that if he received an enquiry concerning the emptying of a cylinder he would advise the customer to leave it with the defendant so that it could attend to the matter. It would have to be booked in and there would be a wait of approximately a week for the job to be done.

Rodney Ian McNair

In June 1997 Mr McNair was in the employ of the defendant working at the service counter. He stated that he could not recall receiving an enquiry from anyone at the relevant time concerning the emptying of a cylinder, and he had never advised anyone to empty a cylinder by inverting it as it was dangerous because of the vaporisation of the liquid, and the freezing effect when it came into contact with the external atmosphere. He stated that if anyone had come asking for advice about emptying a cylinder he would have advised them to leave the cylinder with the defendant for that purpose.

Anthony Van Mierlo

At the relevant time Mr Mierlo was working for the defendant on secondment from an employment agency, and was working behind the service counter. He denied that any approach was made to him regarding the emptying of a cylinder. He also claimed to have been aware of the danger of inverting a cylinder when endeavouring to empty it, and stated that he had never advised anyone to proceed in that manner.

David Jack Bromberg

Mr Bromberg was the defendant's gas and gear assistant in June 1997 and worked behind the service counter. He stated that no one approached him to ask about the emptying of a cylinder on or about the date of the accident, and said that if they had he would have told them to have it done by the defendant. As with the other employees of the defendant, he stated that it was not appropriate to invert a cylinder when emptying it.

Stewart William Muirhead

Mr Muirhead is employed by the defendant, and as at 26 June 1997 was a sales representative for LP gas. He stated that at the relevant time he received a telephone call from a lady who enquired about the emptying of a gas cylinder. He told her he would not recommend that she vent the gas into the atmosphere, and stressed to her that he would connect it to an appliance and burn it off; and although he would never recommend it, if it was to be vented off it had to be done in a very well ventilated area such as a football field. He stated that he would never advise anyone to invert a gas cylinder to empty it because of the rapid expansion during the conversion of liquid to gas.

Brian Sydmin Wuillemin

Mr Wuillemin is in the employ of the defendant and at the relevant time was its equipment repair manager and service manager in Subiaco. When asked whether he was consulted on or about 26 June 1997 by a customer in relation to the emptying of a cylinder he stated that he did not recall, and corrected that by stating that he was not so consulted. He stated that in fact the repair section did not receive enquiries concerning the emptying of gas cylinders. He said that he would never advise the inverting of a gas cylinder to evacuate the gas.
Mr Wuillemin was cross‑examined concerning an e‑mail which he forwarded to Mr Campbell and in which he said "we get lots of calls regarding questions of this nature" but suggested that meant questions concerning repair of gas equipment, and in particular regulators. It is to be noted, however, that the e‑mail was responding to an enquiry from Mr Campbell in which it was stated inter alia "the man was burnt emptying the contents of a cylinder. He had come to BOC Gases seeking to see whether the cylinder could be emptied for him".

The duty of care

In Donoghue v Stevenson (1932) AC 562 at 580 Lord Atkins stated:
"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be ‑ persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."
In Anns v Merton LBC (1978) AC 728 at 751 Lord Wilberforce dealt with the duty of care as follows:
"First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter ‑ in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider where there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise."
In The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 Mason J (with whom Stephen J expressed full agreement) said at p 44:
"According to Lord Atkin's statement of principle in Donoghue v Stevenson (1932) AC 562 at 580, as it has been refined in later decisions, prima facie a duty of care arises on the part of a defendant to a plaintiff when there exists between them a sufficient relationship of proximity, such that a reasonable man in the defendant's position would foresee that carelessness on his part may be likely to cause damage to the plaintiff."
The common law imposes a duty to exercise reasonable care to avoid causing loss or damage to a person to whom the duty is owed.
It has not been argued by the defendant in this case, nor is it open to argument, that if the defendant gave the alleged advice to the plaintiff it must have appreciated that he was likely to act on the basis of that advice, and consequently the defendant would have owed the plaintiff a duty to exercise proper care and skill in the provision of the advice.

Findings of fact

I accept the plaintiff's evidence that on the afternoon of 27 June 1997 he attended the defendant's Subiaco premises intending to seek it's assistance in emptying the gas cylinder. That accords with the evidence of Mr Coate and Ms Halvorson; and it would be extraordinary if the plaintiff had concocted the account of his approach to the defendant within such a short period after the accident. It necessarily follows from that finding, that he would have had a discussion with one of the defendant's employees concerning the purpose of his visit. It is not possible on the evidence, nor necessary, to identify the person to whom the plaintiff spoke. The fact that his recollection and description of that person was of a male in his late 30's or early 40's with reddish blonde hair and a beard (none of the defendant's employees who gave evidence matched that description) does not mean that the plaintiff's evidence that he had a conversation cannot be accepted. Having regard to the limited time available to him, and the purpose of the visit, it is unlikely that he would have been particularly concerned to note the employee's physical features and commit them to memory. His contact with that person would only have been momentary, and the possibility of subsequent misdescription, manifest.
Fundamental to a resolution of this controversy is the determination of the precise nature of the discussion and the advice, if any, given to the plaintiff.
Clearly the plaintiff would have requested the defendant's employee to empty the cylinder - that was the very purpose of his attendance. I do not accept that the plaintiff's request was refused, or that he was told that the defendant did not have the necessary facility to empty the cylinder, since it did, and the plaintiff's evidence on this particular aspect was not convincing. The evidence establishes that the plaintiff attended the defendant's premises at about 3/3.30 pm, and needed the job done that day. Having regard to the fact that there was normally a waiting time of approximately a week, it is probable that the plaintiff was told that his request could not be met in the available time .
I am satisfied on the evidence that one of the defendant's employees told the plaintiff that in the circumstances he could empty the cylinder himself by opening the valve and letting the gas escape slowly, cautioning him against doing so near a naked flame. I am sure that the nature of the advice would or should have made it obvious to the plaintiff that the exercise be undertaken in an open area, and that is consistent with his earlier attempt to evacuate the gas when he was at Mr Coate's residence where there was an open situation which did not exist in the courtyard of the unit.
It is significant that the plaintiff did not mention that he had attempted to evacuate gas at Mr Coate's house, notwithstanding that he gave detailed evidence of informing Mr Coate's that he had been to the defendant's premises, the purpose of the visit, and the advice he had received. I find that he purposely made no mention thereof for fear that it might appear inconsistent with the position he was trying to present to the Court. Mr Coate's evidence suggests that the plaintiff would have become aware of the manner in which the gas dissipated from the cylinder.
The fact that the plaintiff had been evacuating gas from the cylinder for approximately five and a half hours prior to the explosion suggests that he must have only partially opened the valve; and that because of his appreciation of the fact that by reason of the limited area and enclosed nature of the courtyard it was not a particularly suitable venue for performing the task. It was in truth clearly an unsuitable place to evacuate the gas, having regard particularly to the presence of the external gas heater located at the rear of the unit which because of its pilot light, (or naked flame) had the potential to ignite the gas.
I do not accept that the plaintiff was given advice to invert the cylinder if he wanted to evacuate the contents quickly. The evidence is eloquent of the fact that it is extremely dangerous to invert a cylinder to release the gas. The defendant's employees were clearly cognisant of that danger, and it is improbable that such a suggestion would have been made. The plaintiff's actions subsequent to obtaining advice are inconsistent with having received the claimed advice. There can be little doubt that he desired to evacuate the contents of the cylinder expeditiously, but notwithstanding he did not invert the cylinder until he was about to go to bed at approximately 11.00 pm by which time he had been releasing gas from the cylinder for approximately five and a half hours. Also it is inconsistent with the earlier part of the advice allegedly received that he just open the valve and let the gas evacuate the cylinder slowly. It is probable that he simply inverted the cylinder when he did, intending to drain out any residual liquid.
I am satisfied that the explosion was a consequence of the exhausted gas gradually extending across the courtyard area until it came into contact with the pilot light. Although the explosion occurred shortly after the inverting of the cylinder that was probably coincidental, although it may have had the effect of releasing a significant quantity of gas, finally saturating the area.
The dangers inherent in endeavouring to evacuate gas from a cylinder, other than by a person with the appropriate facility to achieve the purpose, is obvious, and I accept the evidence of Mr Apgar that it is a task that should not be undertaken by the individual. Indeed the witnesses called by the defendant did not suggest otherwise. The defendant was negligent in telling the plaintiff that he could undertake the task, and in failing to appropriately warn him. The defendant's negligence can be seen by the application of common sense and experience to have been causative of the accident. See March v E & M H Stramare Pty Limited (1991) 171 CLR 506.
I am satisfied, however, that the plaintiff exhibited a lack of care for his own safety by evacuating the gas in the enclosed unit courtyard, particularly as he must or should have been aware of the existence and position of the gas heater. I am satisfied therefore that the defendant has established contributory negligence and that the plaintiff's claim must be reduced to the extent that appropriately reflects his contribution to the accident. As Hayne J said in Wynbergen v Hoyts Corpn Pty Ltd (1998) 72 ALJR 65 at 68:
"No doubt the making of the apportionment which the legislation requires involves comparison of the culpability of the parties, ie, the degree to which each has departed from the standard of what is reasonable, (Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494; Pennington v Norris (1956) 96 CLR 10 at 16). But that is not the only element to be considered. Regard must be had to the relative importance of the acts of the parties in causing damage (Podrebersek (1985) 59 ALJR 492 at 494) and it is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination (Podrebersek (1985) 59 ALJR 492 at 494)."
Although the task is not an easy one, it is my view that the parties contributed equally to the calamity.

Quantum

The nature and extent of the plaintiff's injuries is not in dispute. He suffered very severe burns to his face, upper limbs, ankles and feet. The injuries quite clearly caused him considerable pain and suffering, particularly in the acute phase, but fortunately have not resulted in any significant residual functional disability. The residual cosmetic consequences are appropriately described in the reports of Professor Macleod to which I have made reference, and fortunately, save for the appearance of the right hand, are neither obvious nor disfiguring. In addition there was a psychological component which resolved quite quickly. Generally the injuries and treatment caused total incapacity for employment for six months.
In my view the appropriate amount to compensate the plaintiff for the injuries, pain, suffering and residual consequences is the sum of $28,000.00.
The sum of $13,000 has been agreed as the appropriate allowance for loss of earning capacity.
I allow the sum of $750 for future treatment costs.
I make the following further allowances by way of past expenses incurred:
Medical expenses  $342.25
Pharmaceutical expenses  $300.00
Hydrotherapy  $487.50
Travelling  $625.00
$1,754.75
I allow interest on the sum of $14,754.75 at the rate of 6 per cent from 1 January 1998 to 17 May 2001, or the sum of $2,988.06.
Before apportionment the plaintiff's damages would be:
General damages  $28,000.00
Past economic loss  $13,000.00
Special damages  $ 1,754.75
Interest  $ 2,988.06
Future treatment  $     750.00
$46,492.81
The plaintiff is entitled to judgment in the sum of $23,246.40.