Deborah Webber v West Lindfield Bowling Club Co-Op

[2008] NSWDC 215

CITATION:	Deborah Webber & Ors v West Lindfield Bowling Club Co-Op [2008] NSWDC 215
HEARING DATE(S):	8, and 9 September 2008
JUDGMENT DATE:	26 September 2008
JURISDICTION:	District Court Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Verdict and judgment in favour of each Plaintiff against the Defendant on the issue of liability. 2. The Defendant is ordered to pay the costs of each Plaintiff in respect of the determination of the liability issues. 3. Verdict for the Cross-Claimants against the Cross-Defendants. 4. Cross-Defendants to pay the Cross-Claimants’ costs.
CATCHWORDS:	Negligence – separate trial of liability issues in three claims for damages for personal injury arising from explosion of LPG gas at club premises due to fault in a gas installation – UCPR Rule 28.5. Construction of Regulations – Dangerous Goods (Gas Installations) Regulation, 1998 – whether the installation of an in situ filled 190kg gas cylinder constituted gasfitting work within the meaning of the regulations so as to require compliance with certification provisions of the regulations. Damages – whether parental reaction to son’s injury constituted major depression and post traumatic stress disorder that comprised a recognised psychiatric illness as required by s.32 of Civil Liability Act, 2002 – whether statutory test for causation satisfied. Expert evidence – effect of non-acknowledgment of Schedule 7 Code of Conduct by expert– whether treated as an irregularity.
LEGISLATION CITED:	Civil Liability Act, 2002, Part 3 Dangerous Goods (Gas Installations) Regulation, 1998 Evidence Act, 1995, s.80 Uniform Civil Procedure Rules, 2005, Rules 28.5 and 31.23, Schedule 7
CASES CITED:	Annetts & Anor v Australian Stations Pty Ltd (2002) 211 CLR 317 Blaxter -v- Commonwealth of Australia [2008] NSWCA 87 R -v- Wilson; Ex Parte Kisch (1934) 52 CLR 234
PARTIES:	Deborah Lynn Webber (First Plaintiff) Nicholas Lee Chant (Second Plaintiff) Tyler Burres Webber (Third Plaintiff) West Lindfield Bowling Club Co-Op (Defendants, Cross-Claimants) Elgas Ltd (Cross-Defendants)
FILE NUMBER(S):	1673 of 2007; 2099 of 2007; 2100 of 2007
COUNSEL:	Mr R Tripodi (First Plaintiff) Mr J Rowe (Second and Third Plaintiffs) Mr GC Lindsay SC with Mr SE Torrington (Defendants/Cross-Claimants) Mr R Sheldon (Cross-Defendants)
SOLICITORS:	Richard Wakim & Co (First Plaintiff) Anthony Scarcella (Second and Third Plaintiffs) McCabe Terrill Lawyers (Defendants/Cross-Claimants) Bartier Perry (Cross-Defendants)

INTRODUCTION

1. These three related proceedings arise from a gas explosion that occurred on 13 June 2004 in connection with the use of a fixed gas barbeque installation within the kitchen of the Defendant’s club premises.

The Parties

2. The First Plaintiff, Deborah Lynn Webber is the mother of the Third Plaintiff who was injured in the explosion.

3. The Second Plaintiff, Nicholas Lee Chant was injured in the explosion.

4. The Third Plaintiff, Tyler Burres Webber was injured in the explosion.

5. The Defendant, West Lindfield Sport and Recreation Club Co-Operative Ltd was a licensed registered club and was the occupier of the premises at 76a Highfield Road, Lindfield, NSW, where the explosion occurred. The barbeque equipment on the premises was made available for use by club members and guests. The Defendant was responsible for the barbeque and the associated gas lines and fittings.

6. The Cross-Defendant, Elgas Ltd was joined to the proceedings because of the claim that it had a role in the installation of the gas cylinder in question and therefore it had an obligation to comply with applicable regulations.

The proceedings

7. Each of the three Plaintiffs commenced separate actions against the Defendant alleging negligence. On 27 June 2008 orders were made consolidating those proceedings so that the liability issues that were common to each case would be heard together pursuant to Part 28 rule 5 of the Uniform Civil Procedure Rules, 2005

8. In each case the Defendant has brought Cross-Claims against Elgas Limited. In those Cross-Claims the Defendant seeks full indemnity in respect of any liability that may be found in favour of the Plaintiffs.

PLAINTIFFS’ CLAIMS AGAINST THE DEFENDANT

Formulation of the claims

9. The formulation of each of the Plaintiffs’ proceedings against the Defendant is founded on the claimed tortious liability of the Defendant.

10. The First Plaintiff claims damages for mental harm comprising major depression and Post Traumatic Stress Disorder. That claim is subject to the requirements of Part 3 of the Civil Liability Act, 2002 which restricts the categories of case where damages may be recovered for mental harm or nervous shock.

11. The Second and Third Plaintiffs claim damages for personal injury. Those claims are also subject to the provisions of the Civil Liability Act, 2002 but no issues arise under that Act in this stage of the proceedings where only the issue of liability is to be determined.

12. The formulation of the Defendant’s Cross-Claim against the Cross-Defendant is also founded on claimed tortious liability together with alleged failures that are argued to arise from obligations imposed on the Defendants under the Dangerous Goods (Gas Installations) Regulation, 1998.

Issues for determination in the Plaintiffs’ proceedings against the Defendant

13. The issues for determination in the proceedings between the Plaintiffs and the Defendant are different to the issues to be determined in the proceedings between the Defendant Cross-Claimant and the Cross-Defendant.

Common issues in proceedings brought by all three Plaintiffs

14. In each of the three cases brought by the Plaintiffs the common issue is whether the Defendant was in breach of the duty of care it owed in the circumstances.

15. In respect of the claims brought by Tyler Burres Webber and Nicholas Lee Chant, if it is found that the Defendant was in breach of the duty of care owed, the Defendant accepts that no issue arises concerning the causation of the damage incurred by each of these two Plaintiffs.

Additional causation issue in proceedings brought by the First Plaintiff

16. In addition to the issue of whether the Defendant was in breach of its duty of care the First Plaintiff, Deborah Lynn Webber must show that:

(a) the psychological illnesses for which she makes a claim constitute recognised psychiatric illnesses within the meaning of Part 3 of the Civil Liability Act, 2002 and in particular, section 32 of that Act; and

(b) the Defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, have suffered a recognised psychiatric illness if reasonable care was not taken.

Assessment of damages to be determined separately

17. It has been agreed that the assessment of the respective damages claims of each Plaintiff are to be separately determined at a later date.

Cross-Claim issues

18. If the Plaintiffs succeed in establishing that there was a relevant breach of duty of care on the Defendant’s part, then the Defendant contends that on the Cross-Claims it is entitled to complete indemnity from the Cross-Defendant, Elgas Limited.

19. The basis of the Defendant’s claim for indemnity in the Cross-Claims is dependent upon the construction of the Dangerous Goods (Gas Installations) Regulation, 1998.

20. The particular construction point is whether the placement by Elgas Ltd of the gas cylinder on the Defendant’s premises was properly characterised as a “gas installation”, meaning that the work which was done should be characterised as “gasfitting work”. If so, the Cross-Claims contend this triggers other relevant regulations to which the Cross-Defendant was subject and of which the Cross-Defendant was in breach.

Witnesses and reports

21. Oral evidence was called from:

(a) Nicholas Lee Chant, the Second Plaintiff;

(b) Tyler Burres Webber, the Third Plaintiff;

(c) Deborah Lynn Webber, the First Plaintiff;

(d) Mr Allan Spink, a fire safety expert and former Fire Brigade Officer;

(e) Mr Donnelley, an expert plumber and gasfitter;

(f) Mr Max Vignes, an office bearer of the Defendant;

(g) Mr Munday, a fire safety consultant engaged by the Cross-Defendant.

22. On the issue of liability the Plaintiffs tendered investigation reports from the Fire Brigade, the Police and WorkCover.

23. The Plaintiffs also called Mr Spink to elucidate issues in his liability report.

24. The First Plaintiff tendered medical evidence including material from her treating psychiatrists seeking to prove causation and to satisfy the requirements of Part 3 of the Civil Liability Act, 2002. The Defendant tendered correspondence from a psychiatrist by which it sought to rebut the Plaintiff’s claimed entitlement to damages for mental harm.

25. In pursuit of the Cross-Claims the Defendant tendered correspondence and expert reports from Mr Gudmann and Mr Donnelley. Mr Donnelley also gave oral evidence.

26. The Cross-Defendant tendered a report from Mr Munday who was also called to give oral evidence.

Facts

27. In view of the issues that arise for determination in respect of the Cross-Claims it is necessary to set out a description of the premises, a description of the method by which gas was supplied to the premises and in particular, a detailed description of how gas was supplied to the barbeque area.

Description of the premises

28. The Defendant maintained a bowling and social club on the premises. The premises were made available to a number of groups of individuals for private social events. The premises contained a kitchen area which included a fixed gas barbeque installation used for cooking.

Description of the gas supply to the premises

29. Gas was supplied to the installation by an externally located 190kg high pressure cylinder of liquid petroleum gas or LPG that was connected to a regulator through which liquefied gas was released into vapour form to be fed into connected mains pipes that led to valve controlled gas appliances within the premises. The actual connection between the gas cylinder and the regulator is shown in photographs in Exhibit “A” at Tab 8, particularly photograph number 8 which is part of a series of 9 photographs that comprise that exhibit.

30. The gas cylinder in question was in turn connected to the regulator by a section of narrow copper tube measuring about one-quarter of an inch in diameter. At either of its ends the tube had threaded brass screw and nut fittings attached to it, one end being smaller than the other. This copper tubing was in common use in such situations and was known in the industry as a “pigtail”. By the use of a pigtail device the larger of these two end fittings was connected to the gas cylinder and the smaller fitting at the other end was connected to the regulator valve. Each of these fittings could be manually positioned and fastened by hand to some degree but not to the point of gas tightness. To achieve the required gas tightness of the fittings at either end of the pigtail it was necessary to tighten the threaded screw and nut components with a spanner before the gas valve could be safely turned on for use by the consumer.

31. Typical pigtail fittings varied in length between 12 and 36 inches. An exemplar pigtail was tendered as Exhibit “1”.

32. Typically the larger of the two brass fittings on the pigtail was potentially one of two types that were known in the industry as “POL” type fittings or “O” type fittings.

33. The “POL” fittings were typically used in situations where gas cylinders were refilled in situ when a visiting tanker came to the premises to fill the externally located cylinder with gas by the use of a hose arrangement to enable filling from a mobile tanker. This method of filling required the use of a spanner to loosen the tightened nut on the “POL” pigtail fitting in order to detach the pigtail from the cylinder to enable filling to proceed. Following completion of the filling process the reverse fitting process was required to make the fitting gas tight before use.

34. The “O” fittings were typically used in situations where empty cylinders were removed and then replaced with pre-filled cylinders. With this method of gas replacement the larger end of the pigtail comprised either a fitted turning wheel or a wing nut arrangement designed for turning by hand to achieve gas tightness so that a spanner was not required to be used to detach and re-attach the pigtail in the process of cylinder replacement. An exemplar of the “O” type attachment was tendered as Exhibit “2”.

35. It is common ground between the parties that the system used at the premises at the time of the incident in question had a POL method of attachment of the pigtail to the cylinder. The relevance of identifying the two differing methods of attaching gas cylinders to the supply system is for the purpose of determining discrete issues that arise on the Cross-Claims.

36. The mechanical system for gas delivery to the appliances was for the flow of gas from the in situ filled cylinder through the cylinder valve, through the pigtail to the regulator and then into a pipe reticulation system that started at the point where the regulator valve was situated and fed gas through a main copper pipe and its extensions to the various appliances that required gas for their operation.

37. The main external copper gas pipe had a point of entry into the premises and led to the gas line that supplied the kitchen area and the barbeque installation within the kitchen.

Description of the gas supply line to the barbeque area

38. A gas supply pipe was located on the wall of the kitchen underneath the area where the barbeque burners were located. This pipe had a valve located on it which controlled the flow of gas to the barbeque burners. This valve is shown in Exhibit “A” at Tab 3 in a series of photographs identified as Figures 11 and 12 of that exhibit.

39. A branch extension of the pipe that supplied gas to the barbeque continued on the back wall and underneath an adjoining stainless steel bench. That continuation pipe also had a gas control valve located on its length. After the explosion that valve was found to have been open at its end. The opening comprised an unplugged end in the gas cock valve assembly. That open end is shown in Exhibit “A” at Tab 3 in photographs identified as Figures 15, 16, and 17 of that exhibit.

40. It appears that the open end of the gas cock valve assembly was where a previously located gas supply pipeline had been attached to provide a gas supply to another kitchen appliance that had been removed at some time in the past. Figure 16 of Exhibit “A” shows that the operating handle on this latter valve remained in the fully open position which is the same position in which it was found after the explosion. This meant that whilst this valve handle was left in the open position there was no obstruction to the flow of gas into the room atmosphere of the kitchen and barbeque area.

41. Neither of these two valves were the subject of appropriately located signage to indicate which one of them was to be used to operate the barbeque and which one was not to be opened or operated under any circumstances because it was in an unstopped state. There was no signage to suggest that if that valve were to be operated in that state gas would thereby be permitted to flow through it so as to create a situation of danger.

42. In this way the scene was set for a potential explosion to occur because neither the Second or the Third Plaintiffs had any knowledge of the unstopped state of the gas cock valve assembly and the associated gas line. They were left to use their own initiative to interpret the instructions they were given as to how to light the barbeque.

43. In the absence of notice and warnings by signs or otherwise, in my view they were reasonably entitled to assume that the gas supply line to the barbeque and indeed all gas lines, valves and components of the gas pipes on the premises were in a safe condition and did not pose a danger for ignition of gas other than through the manner intended by the normal use of the burners on the barbeque.

The gas explosion

44. On the afternoon of Sunday 13 June 2004 Nicholas Chant and Tyler Webber were at the Defendant’s premises to take part in a social event following their participation in a successful competition soccer match that had taken place earlier that day. The secretary of the soccer club had asked them to help to barbeque some sausages for the occasion.

45. At about 5.30pm on that day Nicholas Chant unsuccessfully attempted to light the barbeque which was situated in the kitchen of the premises. He then approached the treasurer of the Defendant club, Mr Max Vignes for assistance and was told, without additional safety instructions, to turn on the gas valve situated under the barbeque bench (“the first valve”). After some further efforts this attempt was also unsuccessful. Another club official suggested operating the valve under the barbeque equipment to turn on the gas supply (“the second valve”). When this was done the barbeque burner plates then ignited as was expected. Both he and Tyler Webber then commenced to cook the sausages.

46. After about 3 to 4 minutes of cooking the sausages they both detected a slight smell of gas. As they stepped back they each heard a “whoosh” sound following which they found themselves engulfed in flames from a gas explosion which then quickly dissipated.

47. They each suffered significant burns for which they received first aid at the scene. They were taken by ambulance to Royal North Shore Hospital where they received additional treatment for their burns.

48. The kitchen area where the barbeque bench was located was later inspected and found to measure 5m in length and 3m in width. The barbeque benches were along the 3m wall and the bench height was approximately 1m high and the width of the bench was approximately 1.5m. Goods were stored under the bench in the kitchen which meant that access to the valves under the bench was awkward. In these circumstances I find that neither Mr Chant nor Mr Webber would have been reasonably expected to visually follow the gas lines on the wall or to inspect them for integrity, sealing of the componentry of the gasfittings or for the safety of operation of the equipment.

Official factual investigation reports concerning the explosion

49. After the explosion the area surrounding the barbeque was investigated by fire brigade personnel, the police and WorkCover.

Fire Brigade investigation

50. An official Incident Report dated 20 July 2004 prepared by the Acting Research and Information Officer of the NSW Fire Brigades listed the cause of the fire as:

“Stove / BBQ accidentally left on.
Actual ignition of fire undetermined.”

Police investigation

51. The official police investigation report dated 28 July 2004 confirmed that the under bench gas cock valve at the end of the gas pipeline had been left in the open position and this was believed to have caused LPG to directly enter the room atmosphere.

WorkCover investigation

52. WorkCover NSW also investigated the incident. A WorkCover officer attended the scene at 9.00pm on the evening in question but was unable to continue the investigation as her camera did not work. The WorkCover investigator attended the scene again on 15 June 2004 and took photographs and measurements. An official completed WorkCover Incident Notification Report was issued on 23 November 2004. The relevant part of the factual report dealing with the cause of the incident states:

“It appears that there has been a build up of leaking gas in the area in which the Barbeque is located. The leaking gas appears to have built up and came into contact with the flames from the Barbeque and ignited.”

53. The WorkCover report dated 23 November 2004 contained the text of an earlier internal WorkCover report dated 15 June 2004 which stated:

“Discussions with Mr. Max Vignes (Hon Secretary – West Lindfield Sport & Recreation Club Co-operative Ltd), Mr. Robert King (J&DB Thomas & Associates-Loss Assessor) and Mr. Peter Reeves (President Lindfield Soccer Club) found:

1. West Lindfield Sport & Recreation Club Co-operative Ltd and Lindfield Soccer club have no employees, volunteers manage both the clubs;

2. When the club was first built many years ago, 2 LPG gas bottles were installed one servicing the fryer in the kitchen and the second connected to a large BBQ, which was located to (sic) adjacent to the kitchen.

3. Several years ago, when the West Lindfield Bowling club had financial trouble, the kitchen was closed and the 3 clubs amalgamated (Lindfield Soccer Club, Lindfield Rugby Club and the Bowling Club) to form a co-operative.

4. It appears that soon after, persons unknown arranged with ELGAS to remove the two large outdoor bottles and install a small tank. A pipe then served both the fryer and BBQ via a t (sic) intersection and valve arrangement. Soon after this, persons unknown removed the fryer and terminated the pipe leading to the fryer but not at the fryer pipes valve.

5. On the day in question, several boys were arranging the BBQ but had turned on the old valve. When they could not get the BBQ to light, they requested advise (sic) from the parents (club volunteers) and were advised that they had turned the wrong valve on. The first valve was turned off, the second valve was turned on, and when the BBQ ignited, the gas lying on the ground ignited.

As the club has no employees and it is unknown which club volunteer had removed the fryer, I recommend no further action as the incident is not a WorkCover matter but a public liability issue.
…”

54. The account of events in paragraph 5 in the WorkCover report to the effect that the first valve was turned off prior to the operation of the second valve is, in my view, factually incorrect. It is contrary to the evidence of Mr chant and Mr Webber whose evidence I accept. There is no evidence that the first valve was turned off before the second valve was turned on other than from the hearsay account referred to in the WorkCover report and I reject that evidence.

Expert opinion for the Plaintiffs

55. One of the fire brigade officers who had attended the scene shortly after the explosion in response to the emergency call was Mr Raymond Spink. He was the officer in charge of the first arriving fire appliance. His responsibilities included incident control at the scene and to determine the cause of the fire.

56. Mr Spink gave evidence as to how at the scene he supervised the administration of first aid to the injured which included the use of resuscitation equipment until the arrival of ambulances.

57. Under Mr Spink’s supervision, the gas supply was isolated and turned off at its source at the cylinder which was located outside the building. He also provided first aid to the injured persons at the scene.

58. Subsequently, following his retirement from the NSW Fire Brigade Mr Spink was retained by the Plaintiffs as an expert witness to prepare a report into the incident for the purposes of the litigation.

59. Mr Spink considered the array of possible causes of the fire. He identified the two likely potential alternative sources as being a naked flame which had ignited ambient gas in the room or an electrical cause such as a spark or a short from a nearby refrigerator. Of these two possibilities he thought an electrical cause was a less likely cause than that of the flame from the barbeque.

60. Mr Spink’s reasoning for inculpating the flames from the barbeque burners as the cause of the explosion was the likelihood of gas accumulating in the area over some minutes until an ignitable quantity of gas had accumulated leading to a flash ball of flames becoming visible and then dissipating once all the accumulated gas vapour in the room had been consumed. He thought this view was the preferable one as it was consistent with the factual descriptions given by Mr Chant and Mr Webber. In my view Mr Spink’s reasoning provides an understandable and commonsense analysis of the events in question. I accept his opinion as to how the incident occurred.

61. Mr Spink was of the opinion that the incident could have been avoided if the Defendant had adopted relatively simple tasks such as capping, sealing, flattening or otherwise terminating the pipe in the area of the open-ended gas valve fitting. He also suggested, amongst other things, that once the opening in the pipe was sealed the handle on the valve could have been removed with the valve left in the off position as a safety measure.

62. In my view Mr Spink’s suggestions for avoiding the incident were relatively simple and practical measures that could have been reasonably adopted by the Defendant. Even though a qualified plumber or gasfitter would have been required to perform these tasks they appear to be inherently simple, and having regard to the safety issue, I infer these tasks would have been relatively inexpensive to carry out. I therefore accept Mr Spinks’ opinion with regard to these matters.

63. Absent the above measures of the kind suggested by Mr Spink, he further suggested that some sort of lockout system could have been installed to prevent access to the open-ended valve. This measure would have been unnecessary if the opening had been sealed in the manner earlier suggested by Mr Spink.

64. Mr Spink also suggested a system of simple warning signs or plaques could also have been adopted to alert potential users of the barbeque as to the risk of operating the valve with an open end. Such a warning could have alerted users to the danger that operating the valve would have allowed gas to leak into the atmosphere of the room so as to create a risk of ignition of gas. I accept his evidence in this regard.

65. In my view the matters raised in Mr Spink’s opinions were within the reasonable contemplation of office bearers of the Defendant club. A simple inspection at intermittent intervals by a licensed gasfitter would have been prudent and would have revealed the problem of the open gas fitting and therefore its solution.

66. Mr Donnelley, a licensed plumber and gasfitter called by the Defendant and whose evidence I accept on this issue, said that a licensed gasfitter would have taken an hour or so to have detected the fault when visually following and inspecting the gas pipes within the premises to check for their safety.

67. I infer from the evidence of Mr Vignes that the Defendant never arranged such an inspection in the preceding months during which time the barbeque was made available to soccer club members and other guests on a weekly basis. I find that this omission thereby exposed users of the barbeque to the risk of burns in the manner that occurred in this instance.

Mechanism for the explosion

68. In reconstructing the events that led to the ignition of gas that caused the explosion I find the following facts:

(a) The valve that was initially opened by Mr Chant when he first attempted to light the barbeque was the valve shown in Figures 15, 16 and 17 of Exhibit “A”;

(b) The valve handle that was initially opened by Mr Chant was left in the open position whilst he tried to ignite the burners on the barbeque and when the burners on the barbeque did not ignite the valve handle was left to remain in the open position because Mr Chant was unaware of the risks of doing so;

(c) The second valve to be opened was the valve shown in figures 11 and 12 of Exhibit “A”;

(d) When the second valve was opened this permitted the flow of gas not only to the burners on the barbeque but this also provided a continuous flow of gas that commenced to flow into the room through the first valve that had been left open and in an unstopped state;

(e) Gas then commenced to flow into the room atmosphere and continued to build up in concentration;

(f) During the ensuing several minutes when Mr Chant and Mr Webber were attending to the task of cooking sausages on the barbeque hot plate, unignited gas continued to leak into the room through the open end of the unstopped gas cock valve assembly;

(g) The leakage of gas continued to build up until the mixture of gas with the air in the room was of sufficient volume and concentration to ignite the gas and engulf both Nicholas Chant and Tyler Webber in flames in the manner which they described in their evidence.

Was the Defendant in breach of its duty of care to the Plaintiffs?

69. I find that the Defendant club failed to take reasonable care to protect persons on its premises from being foreseeably injured whilst using the barbeque. I find that such failure also extended to Mrs Webber whom the Defendant ought to have had within its reasonable contemplation as a person who could have been foreseeably affected by negligence on its part.

70. I set out my reasons for coming to these conclusions as follows:

(a) The easily accessible location of the barbeque in the kitchen within the premises and its ready availability for use by club members and guests mandated that the club undertake periodic inspections for the integrity and safe working condition of the barbeque and all the gas lines in the vicinity of the barbeque.

(b) Through such inspections, the unstopped gas pipeline and gas cock valve assembly ought to have been known to the Defendant, through its office bearers, servants or agents.

(c) No one from the club was called to give evidence of the fact of or results of such inspections. I infer from this that no inspections were carried out for some time prior to the incident because if such inspections had been carried out then a record would have been created and evidence would have been called to describe the results of such inspections.

(d) The valve that provided a gas supply to the barbeque was not identified to potential users by a simply and appropriately worded indicative sign to inform potential users that this was the valve to be operated. The absence of such a sign would not of itself constitute a breach of duty of care were there only one valve that could be operated. However, in this case, because there was another unstopped gas cock valve assembly nearby which could have been operated by someone unfamiliar with the equipment there was the potential for confusion and the lack of signage as to which was the correct valve to be used to avoid such potential confusion and potential mis-operation of the barbeque amounted to a lack of reasonable care on the part of the club.

(e) The gas cock valve assembly at the unstopped end of the gas pipeline was also not identified by an appropriately worded sign warning potential users not to operate that valve. Such a sign was required on account of the fact that not only did that valve not serve to supply gas to the barbeque but any operation of it in its unstopped state posed the danger of gas ignition. Such a sign should have warned that to open the valve in question would create the risk of gas leaking into the barbeque area thereby creating the risk of atmospheric ignition of that gas with the attendant risk of resultant burns to persons in the vicinity.

71. Accordingly, I find that the Defendant was in breach of the duty of care it owed to Mr Chant, Mr Webber and therefore to Mrs Webber in respect of the failures I have outlined above and as a consequence I therefore find that the Defendant was negligent.

72. I find that both Mr Chant and Mr Webber acted reasonably in the circumstances described. They discharged their respective obligations to take care for their own safety. I find they had no notice of any problem or fault with the gas line valve assembly. I find that no further measures were reasonably required of them in the circumstances in order to take care for of their own safety.

73. Before dealing with the Cross-Claims it is necessary for me set out the circumstances of the various Plaintiffs.

The Plaintiffs

74. For the purpose of determining the liability issues it is not necessary to describe in detail the circumstances of Mr Chant and Mr Webber. Mrs Webber’s circumstances requires a more detailed consideration due to the nature of her claims and because of the need to determine the causation issues in her case in view of the applicable statutory framework.

Nicholas Lee Chant – The Second Plaintiff

75. The Second Plaintiff, Nicholas Lee Chant, was born on 5 July 1985. At the time of the incident he was aged 21 years. He was a member of the Lindfield Soccer Club. He was present at the Defendant’s premises for a barbeque which followed a soccer match with his team. He was asked by an office bearer of his club to cook the barbeque and was doing so when the explosion occurred.

76. Immediately after the explosion Mr Chant recalls experiencing the sensation of feeling very hot. He followed his friend out onto the bowling green and rolled himself on the green to try and smother the flames on his burning nylon tracksuit. A club official rendered assistance by partly removing Mr Chant’s burnt tracksuit pants which had by then stuck to his legs.

77. The photographs at Tab 4 of Exhibit “A” which were subsequently taken at the hospital clearly show the areas of burnt and blistered skin on Mr Chant’s face. They also show the dorsal aspects of his calves and thighs where the burnt skin had obviously been removed.

Tyler Burres Webber – The Third Plaintiff

78. The Third Plaintiff, Tyler Burres Webber, was born on 23 July 1985. He was aged 21 years when the incident occurred. He was assisting the Second Plaintiff to light the barbeque. After the barbeque had been cooking the sausages for about 3 minutes he heard a “whooshing” sound and very soon afterwards found himself completely engulfed in flames. He stated that he then oriented himself and ran outside and rolled on the ground. He realised his clothes were melting on his body so he removed them and went to sit down. He described himself as being in incredible pain.

79. The photographs at Tab 5 of Exhibit “A” show that he suffered extensive burns to his face, arms and hands as well as stocking type burns to both of his legs from the knees down.

Deborah Lynn Webber – The First Plaintiff

80. The First Plaintiff Mrs Deborah Lynn Webber is the mother of Tyler Webber. She was at home when she received a call from someone she cannot now identify. She described how in that call she was asked to confirm whether she was Tyler Webber’s mother. When she acknowledged that she was Tyler Webber’s mother she said she was told by the caller that there had been an explosion at the bowling club and she was asked to go there immediately. Nothing turns on the fact that she cannot now identify the caller with whom she had this conversation.

81. She described how after she received the telephone call she drove to the sports oval where the club was located whereupon she became aware of the presence of two fire fighting appliances. She described what was for her a surreal experience. At the scene she sought out her son Tyler. She saw that he had been burnt and she saw that he was being attended to by paramedical personnel. She described her perception that her son’s hair and eyebrows had been burnt off, that his feet and his ears were blackened. She described how, when he opened one of his hands, she saw that his palm had flapped open as if it had been blown open and she saw that his palm was bleeding.

82. She stated that once she realised her son was alive she went to see to his friend the Mr Chant whom she knew as a family friend since he was 8 years old. She said that she saw that he too had been burnt, that he couldn’t speak and that he was experiencing difficulty. She could see he was receiving resuscitation.

83. She stated that she then returned to attend to her son who was placed in an ambulance after some difficulty had been experienced in handling him due to his burns. She then described how they had to wait in the ambulance at the scene for some 20 minutes because, she was told, there were no hospitals ready to immediately receive them. She then described how the ambulance was further delayed in traffic at the intersection of Mowbray Road and the Pacific Highway which caused her distress.

84. She then described the initial treatment her son received in the Emergency Department at Royal North Shore Hospital. She described how subsequently she was not permitted to see her son for 12 hours whilst he was on life support. She recounted her concern at the time that her son may die from his injuries. She described how her son was in hospital for 4 to 5 weeks. She described how he required her care for a considerable period of time after he had been discharged home from hospital care.

85. Mrs Webber also described how over the course of time she had come to realise that she had a mental disorder after initially attributing her feelings of fatigue and depression to an underlying and longstanding thyroid problem. She described how she perceived a severe deterioration in her physical and mental condition and she described subsequently receiving a medical diagnosis of major depression and post-traumatic stress disorder.

86. Unlike the position with regard to damages in the cases brought by her son and Mr Chant, in Mrs Webber’s case, because her background situation and life experiences were complicated, it is necessary for me to review and consider aspects of that history and background in some detail. It is necessary to do so as a prelude to deciding whether, for the purposes of sections 31 and 32 of the Civil Liability Act, 2002, Mrs Webber suffered from a recognised psychiatric illness and that the Defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

Application of Part 3 of the Civil Liability Act, 2002 to Mrs Webber’s circumstances

87. I have found that the Defendant owed a duty of care to Tyler Webber and Mrs Webber. I have also found that the Defendant was in breach of that duty. I have also found that as a consequence Tyler Webber was injured. Insofar as it is necessary for me to do so I also find that through such injury he was also put in peril of his life. I find that the Defendant ought to have reasonably foreseen that injury occasioned to Tyler Webber could represent a foreseeable cause of psychiatric illness for his mother.

88. The legislative intent of Part 3 of the Civil Liability Act, 2002 is to restrict or limit claims for mental harm or nervous shock. It is therefore necessary to review Mrs Webber’s claim for entitlement to such damages to determine whether her claim comes within that statutory framework and satisfies the various statutory filters within that Part.

89. Section 29 of the Act confirms that in the circumstances of this case the Plaintiff is not precluded from recovering damages merely because her injury arose wholly or partly from mental or nervous shock.

90. As Mrs Webber is the mother of Tyler Webber it is beyond dispute that she has satisfied the first level of the statutory filters for such claims as found in section 30(2)(b) and section 30(5)(a) of the Act.

91. The second level of the statutory filters for such claims is found in sections 31 and 33 of the Act. These sections require that for the recoverability of damages for mental harm such harm must consist of a recognised psychiatric illness that a person of normal fortitude would have suffered in the circumstances. The psychiatric illnesses claimed by Mrs Webber are major depression and Post Traumatic Stress Disorder. If it is accepted that she has suffered such illnesses due to want of reasonable care on the part of the Defendant then it follows that she would have satisfied the second statutory filter.

92. The third level of the statutory filters is found in section 32(1) of the Act which provides:

“ 32 Mental harm-duty of care

(1) A person (“the defendant") does not owe a duty of care to another person (“the plaintiff") to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.”

93. In considering the circumstances of the case I must have regard to the provisions of section 32(2) of the Act which provides:

“ 32 Mental harm-duty of care
…

(2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following:

(a) whether or not the mental harm was suffered as the result of a sudden shock,

(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril,

(c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril,

(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.”

94. In view of the complexity of Mrs Webber’s history and life circumstances, including a prior history of depression, it is necessary to set out below a summary of relevant aspects of her history as found in the medical evidence to assist in the resolution of the conflicting medical evidence on the question of whether or not Mrs Webber has suffered a recognised psychiatric illness on account of the injuries sustained by her son.

95. In the following paragraphs I review relevant aspects of Mrs Webber’s history as a background to the findings I am required to make.

Mrs Webber’s history prior to her son’s injury in the gas explosion

96. Mrs Webber was born on 16 May 1951. She was aged 53 years at the time of the incident.

97. As is evident from the medical and other documents found between Tab 52 and Tab 89 of Exhibit “B”, Mrs Webber had a number of significant health and family issues that pre-dated the incident and which had the potential to adversely affect her ability to enjoy the amenity of her life. It is not necessary for me to list all of those issues as they are readily apparent within the materials cited.

98. Those health issues affected Mrs Webber’s physical as well as her psychological wellbeing.

99. The pre-existing physical health problems principally related to hypothyroiditis or Hashimoto’s disease of the thyroid which was diagnosed in 1972 when Mrs Webber was aged 15. In addition, in 1978 she was diagnosed to have a subtle compression of the right C6 nerve root in the cervical spine apparently related to a damaged cervical disc. This produced neck, right shoulder and arm pain which resolved after a time but flared up again some years later in early 2005. There was also a history of various previous surgical procedures including squint correction, tonsillectomy, gastro-intestinal surgery and abdominal surgery. Her thyroid condition was being controlled by endocrinological management, review and prescribed medication.

100. In 1997 when she was seen by an endocrinologist it was noted that Mrs Webber’s general health was poor and she was under considerable stress which was attributed to family problems.

101. In 1998 Mrs Webber experienced symptoms that were attributed to menopause. These included mild anxiety and depression which were treated by her general practitioner, Dr Hulak. Subsequently, Mrs Webber gave a history of experiencing stress due to sleep disturbance caused by her husband snoring. She also experienced financial stress due to unemployment. In early 2003 these factors together with her thyroid condition caused her to suffer poor health and mild depression.

102. In this period Mrs Webber was receiving Newstart social security benefits from Centrelink and was at the same time trying to establish herself in a career as an actor.

103. Significantly, in the context of this case, on 15 March 2003 her general practitioner referred Mrs Webber to a consultant psychiatrist, Dr Luis. He found that on mental state examination Mrs Webber was suffering from recent acute stress due to her concern over her daughter’s social situation but in the opinion of Dr Luis there was no mental disorder evident. I accept Dr Luis’ unchallenged opinion in that regard.

Events occurring after her son’s injury

104. Chronologically, the next psychologically significant occurrence in Mrs Webber’s life was her experience associated with the shocking and traumatic circumstances in which her son came to be injured on 13 June 2004 when gas explosively ignited whilst he was barbequing sausages at the Defendant’s premises.

105. Thereafter, between mid-2004 and August 2005 Mrs Webber was occupied with assisting her son with rehabilitating himself from the residual effects of his burns.

106. It appears that after her son’s injury Mrs Webber started taking prescribed antidepressant medication.

107. In July or August 2005 Mrs Webber was referred to Professor Bruce Robinson, an endocrinologist at the Royal North Shore Hospital for investigation and management of her thyroid condition because she was experiencing extreme tiredness and memory problems and had difficulty getting out of bed. Professor Robinson adjusted her thyroid medication but observed she was still significantly depressed due to various life events which were affecting her at that time.

108. Professor Robinson arranged a neuropsychological consultation for her. At this time Professor Robinson wrote to the general practitioner noting that Mrs Webber was on antidepressants and suggested she may need her dose to be adjusted or perhaps try an alternative antidepressant “to assist her through her current period of depression”. This is the first historical mention of Mrs Webber taking the antidepressant medication Endep. Later reports date the taking of such medication back to shortly after her son’s injury.

109. By the time Mrs Webber saw Professor Robinson some 14 months had passed since the gas explosion and during this time she was actively involved in assisting in her son’s rehabilitation. In my view it is not surprising that Mrs Webber experienced some depression at that time.

110. On 9 December 2005 Mrs Webber was seen by Michael Perdices, a clinical neuropsychologist at Royal North Shore Hospital, at the referral of Professor Robinson. Significantly, he obtained a history from Mrs Webber that she had been taking antidepressant medication since her son’s accident. He took a family history as well as a medical and social history. He recorded the symptoms of memory and concentration problems originating a year or so prior to the consultation. Mrs Webber had apparently attributed these symptoms to possible Alzheimer’s disease.

111. Mr Perdices assessed Mrs Webber to be suffering from moderate depression, very severe anxiety and stress. He reassured Mrs Webber over her concern she may be showing signs of Alzheimer’s disease. He was concerned about his finding of low mood and high levels of stress and anxiety and suggested that she resume antidepressant medication.

112. On 14 November 2005 Mrs Webber was seen at Royal North Shore Hospital neurosurgery clinic in connection with neck pain. At that time the notes record that she spoke of money stress and her son’s injury. The note of that consultation is only very brief and it is therefore difficult to infer too much from this note.

113. On 17 May 2006 Mrs Webber was again seen at the Royal North Shore Hospital neurosurgery clinic. The notes of that consultation are difficult to decipher. Doing the best I can to read those notes I interpret them to indicate that she had experienced neck problems 6 years previously due to a lifting incident and that the neck pain had more recently flared up. More significantly, the following note was made in relation to that consultation:

“Stress – family – son burns 2 yrs ago – she did everything.”

114. On this occasion the neurosurgery Registrar, Dr Heppner referred Mrs Webber to the Department of Psychiatry at Royal North Shore Hospital because she had a number of psychological stressors and she needed help with coping strategies.

115. On 29 August 2006 Mr Nicholson Perry, a psychologist at the Royal North Shore Hospital Pain Clinic recorded that Mrs Webber had been regularly taking the antidepressant medication Endep since her son’s injury. The principal focus of that consultation was to assist her with her neck pain. The history taken was wide ranging and covered her family history and her illness history. Significantly, Mr Nicholson Perry’s handwritten notes recorded the following:

“… Son ‘crispy critter’ – explosion 2 years ago. Depression ‘became severe’ after this. Been off & on ‘Endep … ‘full on blood & guts’ – panic attacks …”

116. The notes of that consultation recorded that:

“… Her recent pain problem arose during a period of financial and family stress, the latter being due to severe injury to her adult son in an accident. She reports that while she felt depressed at the time of her neck pain commencing earlier this year it has since deteriorated further …”

117. On the same day Professor Siddall from the Royal North Shore Hospital Pain Clinic referred Mrs Webber to Dr Newman Harris, a psychiatrist at the Pain Clinic, on account of Professor Siddall’s observation that Mrs Webber suffered from a mood disturbance.

118. There was some delay between when Mrs Webber made a connection between her psychological symptoms, notably depression, and her son’s injury. She put such delay in the recognition of the cause of her depression down to her initial assumption that this was connected to her underlying thyroid condition. In the light of the medical evidence I consider her assumption to have been reasonable in the circumstances and I accept her evidence in this regard.

Commencement of psychiatric assessment and treatment

119. On 13 October 2006 the psychiatrist at the Royal North Shore Hospital Pain Clinic, Dr Newman Harris interviewed Mrs Webber and obtained a history concerning her son’s injury as follows:

“Son and his best friend had all their skin blown off in an explosion 2 yrs ago – all over crispy black. Huge impact on him and on family.”

Dr Harris’ handwritten notes, which are not fully reflected in his subsequent letter to the general practitioner, record the following:

“Hasn’t seen a (abbreviation symbol for “psychiatrist”) (abbreviation symbol for “because”) aware of her probs and doesn’t need to work them out. Describes vegetating in response, with (abbreviation symbol for “depressed”) mood, but hides it.”

He prescribed the psychotropic medications Prozac and Endep or Amitriptyline and he asked Mrs Webber’s general practitioner to monitor her progress.

120. On 21 November 2006 Mrs Webber saw an otolaryngologist for a mucous problem and dry throat. He thought that the mucous problem she was having at that time may be due to the medications she was taking. Significantly, he noted that Mrs Webber was depressed and this could be amplifying her symptoms.

121. Mrs Webber saw the Pain Clinic psychiatrist Dr Newman Harris on a total of four occasions namely 13 October 2006, 9 February 2007, 6 March 2007 and 11 May 2007.

122. On 9 February 2007 Dr Harris wrote to the general practitioner to advocate the need for Mrs Webber to be referred to a Mood Disorders Unit because he felt she needed psychiatric help at a level beyond that which the Pain Clinic could provide. Mrs Webber initially resisted that referral but ultimately this was achieved when Dr Harris referred her to the Northside Clinic with a letter in the following terms:

“Thank you for arranging admission for this woman with mood and Axis II issues complicating PTSD, chronic neck pain and now breast cancer. There are also significant financial issues.
Mrs Webber has tried antidepressants of several types – though she does not persist with these. She also used benzos.
When seen here, she has been recommended several times to engage with a regular psychiatrist/psychologist. This has been unaffordable …”

123. When Dr Harris saw Mrs Webber again on 11 May 2007 his handwritten note of that consultation states she was carrying an envelope with “news clippings and photographs of her son’s burns etc.” The report of Dr Harris dated 1 June 2007 mentions this event and quotes Mrs Webber as having stated “its really hard for me to talk about this”. He took a history that she couldn’t cope and was getting lost when driving in her car. He also recorded a history that she tried to get counselling but couldn’t afford the fees gap. She described being overwhelmed by her bills and “gets the willies when sees son’s skin”.

In-patient treatment at the Northside Clinic

124. On 21 May 2007 Mrs Webber was admitted to the Northside Clinic under the care of Dr Ben Teoh, a consultant psychiatrist. She remained there as an in-patient for four weeks until 22 June 2007. The admission notes referred to Axis I – Depression, Axis II Post Traumatic Stress Disorder, Axis III – Hashimoto’s disease. I infer that these references to Axes, and the Axis II reference in the referral letter from Dr Harris are references to the Axes within the Diagnostic and Statistical Manual IV (DSM IV) which is a tool used by psychiatrists for the diagnosis of psychiatric illness.

125. Dr Teoh’s registrar took a history which comprised many family and personal problems that had affected Mrs Webber. This included a history of having had radiotherapy treatment for breast cancer in the previous November. There is a very brief note of a history of depression for the last 6 years and Post Traumatic Stress Disorder. Oral evidence was not called in relation to this entry in the notes. I infer that the reference to depression in this context relates to the earlier described depression that was thought to relate to the onset of menopause but I do not exclude the possibility that there may have been other concurrent causes for depression. On mental state examination Dr Teoh’s Registrar made the following note:

“Tears when talking about her son. Have suicidal thoughts but no plans.”

126. The impressions that were recorded by Dr Teoh’s Registrar stated:

“A depressed middle aged woman. Had a lot of trauma during her life. She wants to get better.”

127. In the light of the Plaintiff’s complicated family and personal history, in my view, it would be simplistic and plainly wrong to just focus on the brief note of the recorded history of Mrs Webber’s prior history of depression, her family problems and other traumas in her life without a detailed analysis to determine the relative role her son’s accident played in the cause of her depression and the Post Traumatic Stress Disorder identified by Dr Harris.

128. It is evident from Dr Teoh’s notes that on 23 May 2007, when Dr Teoh personally interviewed Mrs Webber for the first time, the matter of her son’s injury quickly became the focus of the consultation. After recording a brief history of neck pain aggravated by anxiety and stress, financial difficulties and breast cancer with “two and a half weeks of radiation to go”, Dr Teoh recorded the following note:

“Son – burn injury from explosion 3 yrs ago. Witnessed his treatment in hospital distressing – I cannot talk about it – it makes me cry. He was wrapped in bandages for a year. Son has become irritable – a change in his personality …”

129. Dr Teoh noted anxiety, symptoms of claustrophobia, avoiding crowds and acute anxiety attacks. Dr Teoh made a provisional diagnosis of major depression with multiple psychosocial and physical features. He appears to have ranked these features as being firstly, childhood trauma and family illness, secondly, her son’s injury and its consequences, marital problems, financial problems, thyroid dysfunction, chronic pain and radiation for breast cancer.

130. Significantly, on 4 June 2007, when Mrs Webber was interviewed by a Northside Clinic clinical psychologist Mr Brian Kearney to determine her suitability for cognitive behavioural therapy, her various problems were listed, including:

“… Grieving her son – nearly 3 years since accident.”

131. The discharge summary from the Northside Clinic, which I infer is dated 22 June 2007, again refers to Post Traumatic Stress Disorder. In summarising the history of the presenting problem, the summary lists a number of historical items and, relevantly includes the following statement:

“… Her son had natural gas explode in a club 2½ years ago. Her son had burns on his body, arms and legs. Stayed in the hospital for one and a half years. She has been in the hospital all the time by herself. Her husband was in China as business man.”

I take the reference in the above note to one and a half years in hospital to be an erroneous reference which in fact refers to the period of time during which her son was in bandages.

132. On 29 November 2007 Dr Teoh prepared a considered report for the Plaintiff’s solicitors in which he acknowledged and agreed to be bound by the Code of Conduct for expert witnesses. As Mrs Webber’s treating psychiatrist he reviewed her history in succinct terms. In the summary or opinion section of his report he stated:

“1. When I first saw Ms Webber, her mental state examination revealed that she was extremely distressed. She appeared agitated and tearful.

2. She was preoccupied with a sense of hopelessness. She was distressed with the condition of her son and her deteriorating marital relationship. She was reactive; there was no evidence of suicidal ideation or psychotic symptoms. Her cognitive functions were intact; there was no evidence of short or long term memory impairment.

3. Her presentation is consistent with a diagnosis of major depression (DSM IV diagnostic criteria). I have come to this opinion based on the history I have obtained, my observation of Ms Webber in hospital and the mental state examination of Ms Webber.

4. Ms Webber reported a significant change in her personality and mood following her son’s accident.

5. I believe that her son’s injury has been a substantial contributing factor to her major depression. This is because although she has other psychosocial stressors in her life, she had experienced intense shock at the time of her son’s injury, and she has been exposed to chronic stress having to care for her son and experiencing the financial and psychological consequences following her son’s injury.”

133. Dr Teoh issued a later report dated 28 April 2008 which was in identical terms to his earlier report. Both reports were based on his last consultation with Mrs Webber on 9 November 2007.

134. I find that Dr Teoh’s analysis, which I have extracted above, provides the proper descriptive and analytical context for Mrs Webber’s problems and demonstrates that her son’s injury is the predominant focus or substantial contributing cause for her diagnosed major depression and her Post Traumatic Stress Disorder.

135. I have considered Mrs Webber’s oral evidence against the background of the recorded histories she provided to those who have examined her. In my view, Mrs Webber’s evidence has the ring of truth about it and I accept her evidence.

136. I am satisfied that Mrs Webber has had a mentally and emotionally harrowing time arising from the injury to her son. There are no bright lines delineating or punctuating experiences of this kind. In her case these harrowing experiences are inextricably linked to the shock of the initial call summoning her to the scene of the explosion and the continuum of related consequential stressors that she encountered thereafter. See Blaxter -v- Commonwealth of Australia [2008] NSWCA 87 at 71 and 72.

137. In evaluating the evidence relating to the psychiatric issues I do not ignore the numerous historical references to Mrs Webber’s various unrelated physical ailments. Nor do I ignore the history of significant family and psychological stressors that emerged including in her early life as well as at various stages throughout her adult life.

138. It would be a rare individual who has not experienced a range of stressors in their lives. In view of the stressors reported by Mrs Webber in the medical histories it is not surprising that she had experienced episodes of depression before the incident in question. In that regard the Defendant must take Mrs Webber as she is found. The fact that Mrs Webber had experienced prior episodes of depression does not mean that her subsequent experience of depression associated with her son’s injuries would not be significant, disabling or be capable of being seen as a separately caused psychiatric illness.

Causation issues stated

139. On the foregoing analysis the issues to be determined here are, firstly, the psychological impact of her son’s injuries upon her in the circumstances, secondly, whether a recognised psychiatric illness occurred as a result and thirdly, ought the Defendant have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

The relevant circumstances of the case

140. Tyler Webber was injured and put in peril as a consequence of the gas explosion. It is not necessary for Mrs Webber to show as a precondition for recovery of damages that she witnessed the process by which her son was injured or put in peril although she was exposed to the immediate aftermath. See section 30(2)(b) of the Act and see Annetts & Anor -v- Australian Stations Pty Ltd (2002) 211 CLR 317 per Gleeson CJ at 338 [41].

141. For the purposes of Section 32 of the Civil Liability Act, 2002 I set out my analysis and findings concerning the continuum of events which affected Mrs Webber and which comprised the relevant circumstances of the case:

(a) The tension and stress that Mrs Webber experienced as a mother on being summoned to the scene through the telephone call she received telling her that her son had been in an explosion without knowing what effects he had suffered would have been shocking and disturbing to her;

(b) The heightening of that tension and her screaming in the car en route to the scene thinking that her son could be dead and the associated stress she experienced on realising that the call she had received and the appearance of the fire brigade vehicles were connected, knowing that somehow her son was involved or affected by these events would also have been greatly worrying to her;

(c) The visual recognition at the scene that her son had been seriously burnt evidenced by seeing his burnt hair, the blackened skin on his feet, his blackened ears and the other burnt areas that are evident in the photographs tendered would have been greatly shocking and distressing to her;

(d) The associated emotional trauma of realising her son had been burnt, of not being able to help him and not being able to comfort him physically because his hand had opened up and was bloody would have been a source of great shock and distress to her;

(e) The superadded anxiety, sense of helplessness and panic she experienced during the unfortunate delays that were encountered whilst in the ambulance until her son ultimately received medical care in hospital would have been distressing to her;

(f) The added anxiety of at first not being allowed to go into the Emergency Department with him and not being reassured that her son’s life was not in danger whilst he was on life support would have been shocking and distressing to her;

(g) The feeling of helplessness that would have pervaded her existence during a period of 12 hours when she was not allowed to see her son in the initial stages of his treatment would have been distressing to her;

(h) The prolonged period of concern she had for her son’s wellbeing during his hospital stay would have been greatly upsetting to her;

(i) The realisation, as she had reported in the medical histories she gave, that her son had undergone a personality change as a result of the incident would have been upsetting to her;

(j) The heightened and ongoing stress which I infer she was subjected to during the extended period over which she cared for her son at home after he had been discharged from hospital would have been very difficult for her to deal with;

(k) I infer that the cumulative and potentially adverse effects of all of the foregoing factors would have had on Mrs Webber’s physical health would have been significantly debilitating for her;

(l) The cumulative and adverse effects of an impaired sense of physical wellbeing on Mrs Webber’s emotional state would have been further debilitating for her;

(m) The propensity for any of the foregoing stressors, either individually or in combination to foreseeably produce a recognised psychiatric illness in the person caught up in the circumstances was ever present.

Foreseeable effect of the circumstances on a person of normal fortitude

142. I find that each of the circumstances I have outlined above had the foreseeable potential to either individually or in combination cause a person of normal fortitude to suffer a recognised psychiatric illness. In arriving at this finding I take into account the fact that “normal” is a hypothetical statistical concept which permits an array of reasonable individual variations of behaviour and reactions to situations. In my view the effect of the circumstances on Mrs Webber was within the array of what would be anticipated in the case of a person of normal fortitude in that she experienced depression and a psychological disorder.

143. Accordingly, I find the third statutory filter provided by section 32(1) of the Act has been satisfied in this case.

Did Mrs Webber suffer a recognised psychiatric illness

144. In my view the Defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care was not taken in the circumstances that led to the gas explosion.

145. I have already found that the Defendant’s negligence caused Mrs Webber to suffer significant stress. The remaining question to be determined is whether Dr Teoh’s characterisation of this stress justifies the diagnosis of a recognised psychiatric illness.

146. Dr Teoh’s report identifies two relevant recognised psychiatric illnesses.

147. The first recognised psychiatric illness is the precipitation of a state of major depression following the circumstances of her son’s injury. The second recognised psychiatric illness is the diagnosed condition described as Post Traumatic Stress Disorder. In my view it is not to the point that Mrs Webber had a prior history of depression due to other causes. The distilled causation question is whether the explosion was a materially contributing cause of the conditions identified by Dr Teoh.

148. Mrs Webber’s history clearly links her state of major depression to the circumstances of her son’s injuries. It is not glaringly improbable that this would be so. This inclines me to the view that a causal link exists between the circumstances of her son’s injury and her depression.

149. Dr Teoh’s diagnosis of Post Traumatic Stress Disorder is also amenable to a similar analysis but that analysis is aided by the fact that Dr Teoh is the treating psychiatrist. In my view, as the treating doctor, his opinion carries great weight in this case. He had access to and has considered Mrs Webber’s entire history, he has sifted it for diagnostic relevance and he has come to the view that the explosion and resulting injury to her son was a substantial contributing factor to her major depression.

150. In my assessment the opinions of Dr Teoh are inherently reasonable and are supported by a process of exposed analytical reasoning. I am inclined to accept Dr Teoh’s opinions but before doing so I must evaluate his views against any evidence that is contrary to his stated views.

Dr Gertler – Psychiatrist engaged on behalf of the Defendant

151. Accordingly, for this purpose I turn to a consideration of the stated views of Dr Robert Gertler, the consultant psychiatrist retained by the Defendant.

152. On 20 May 2008, at the request of the Defendant, Mrs Webber was examined by Dr Robert Gertler, a consultant psychiatrist. The documentation provided to Dr Gertler by the Defendant was a letter of request for a report. That letter and any materials that may have accompanied it was not identified, tendered or explored in the evidence. Dr Gertler was not called to give oral evidence so it is not known whether those who instructed him provided him with a copy of the Code of Conduct for expert witnesses when he was briefed. His two reports do not acknowledge that code.

153. Dr Gertler provided an initial report dated 26 May 2008. Subsequently, on 12 June 2008, following a discussion of unspecified content between Dr Gertler and the Defendant’s solicitor, Dr Gertler issued a clarification letter dated 12 June 2008. Dr Gertler’s two reports were admitted into evidence before it was realised that the reports were not compliant with Rule 31.23 of the Uniform Civil Procedure Rules, 2005. When the issue of non compliance with the Schedule 7 Code of Conduct for expert witnesses was raised the Defendant requested that such omission be treated as an irregularity.

154. I declined to treat the omission as an irregularity because I believe this would create an injustice to Mrs Webber since Dr Gertler’s reasoning process for this view was not fully apparent on my reading of his reports. In this regard Dr Gertler’s second report stated:

“Mrs Webber does not suffer from post traumatic stress disorder. Although she was understandably distressed when her son had his accident and she saw him immediately afterwards, her reaction was in my opinion, appropriate to the circumstances and was consistent with the reaction of a person of normal fortitude.”

155. In his supplementary letter in which he sought to clarify his earlier expressed conclusions in the following terms:

“… Over a number of years Ms Webber’s level of depression has fluctuated in response to various stressors. Principal amongst those stressors has been a chronic neck pain, problems with her daughter, the recent diagnosis and treatment of breast cancer, and a deterioration of her marital relationship leading to separation. Another stressor was the accident in which her son was a victim and which at the time caused her understandable distress, but which appears not to have led to ongoing feelings of depression in itself.

As noted in my report, when Ms Webber was admitted to the Northside Clinic some two years after her son’s accident, the admission was for treatment of depression related to the chronic neck pain and there appears to have been little if any mention of the effect of her son’s accident on her emotional state.

As a result, any element of distress or depression which may be related at present to the accident in which Ms Webber’s son was involved in 2004, would be minor, if not insignificant.”

156. Whilst the expression of such opinions is nowadays open to expert witnesses, see Evidence Act, 1995 section 80, ultimately, it is a matter for the Court to decide, either with or without the assistance of expert witnesses.

157. Dr Gertler sought to characterise Mrs Webber’s depression as being associated with a chronic adjustment disorder. Without oral evidence explaining that view this seems to me to be a semantics based argument not amenable to resolution on the evidence adduced. Dr Gertler’s rejection of the diagnosis of Post Traumatic Stress Disorder is not explained other than on the basis of an opinion unsupported by reasons.

158. In my view Dr Gertler’s opinions have placed insufficient regard and emphasis upon the nature of Tyler Webber’s injuries and the effect that the previously outlined circumstances had on Mrs Webber. In my view, the preferable analysis emerged from the Royal North Shore Hospital notes, the notes of the Northside Clinic and the notes of the assessments made by Mrs Webber’s treating psychiatrists.

159. I do not doubt that Dr Gertler did his best to provide a view on the material he had available to him, namely, a single consultation with Mrs Webber of unstated duration together with unspecified briefing materials he was given. However, logical analysis compels me to the view that if Dr Gertler had been provided with the materials which comprised Exhibit “B” it is improbable that he would have stated:

“… there appears to have been little if any mention of the effect of her son’s accident on her emotional state.”

160. In the circumstances I find myself unable to accept Dr Gertler’s views as set out in his reports. Had objection been taken to the tender of his reports at the outset I would have rejected the tender on account of non-compliance with Rule 31.23 of the Uniform Civil Procedure Rules, 2005.

Resolution of competing medical views on diagnosis

161. The issue of whether or not Mrs Webber suffers Post Traumatic Stress Disorder or, for that matter, major depression, consequent upon her son’s injuries in the incident is central to the question of whether she has a cause of action against the Defendant for damages for either of those conditions.

162. Dr Gertler’s reasoning for his negative opinion on that issue has not been exposed for scrutiny. I therefore attach very little weight to that opinion. I take this view because Dr Gertler appears to have been provided with copies of the contrary opinions of his colleagues Dr Harris and Dr Teoh who provided detailed reasons for their opinions expressed in compliance with Rule 21.23 of the Uniform Civil Procedure Rules, 2005 yet in contradistinction to those opinions he has not addressed the detail of the arguments that are contrary to his view in order that his opinion can be rationally understood. I therefore reject Dr Gertler’s views as he has expressed them in this case.

163. The foregoing process leads me to confirm my initial inclination to accept the opinions of Dr Teoh as to the diagnosis of Mrs Webber’s condition. I therefore prefer and accept Dr Teoh’s opinions to those of Dr Gertler’s whose opinions I reject in this case.

164. I therefore find that Mrs Webber suffers from major depression and Post Traumatic Stress Disorder as a result of the negligence of the Defendant. In my view this satisfies the second or remaining statutory filter required by Sections 31 and 33 of the Act.

Conclusions on causation of mental harm

165. I accept as truthful Mrs Webber’s evidence concerning the events she has described and experienced. I also accept the accounts she has given to the medical and allied personnel who have interviewed her to record matters of history that were required of her.

166. I accept that the events to which she was subjected and which she described, as a continuum, were traumatically shocking and distressing for her. She had to deal with the realisation that her son had suffered serious and life threatening burns. This in my view was a sufficient and foreseeable cause for a recognised psychiatric illness in a person of normal fortitude.

167. In her case I am satisfied that the recognised psychiatric illnesses she suffered comprised major depression and Post Traumatic Stress Disorder.

168. I therefore find that Mrs Webber has made out her case against the Defendant on the issues of liability and causation.

THE CROSS-CLAIMS

169. In order to determine the Cross-Claims it is necessary to review a chronology of relevant events that have characterised the relationship between the Cross-Claimant and the Cross-Defendant.

Issues for determination on the Cross-Claims

170. Issues that require determination on the Cross-Claims are:

(a) What was the history and nature of the gas supply arrangements between the Defendant Cross-Claimant and the Cross-Defendant as at:

(i) 7 May 2001
(ii) 8 April 2002
(iii) 13 June 2004;


(b) What is the applicable regulatory framework;

(c) Matters arising from the expert evidence;

(d) Was the process of cylinder supply, location and attachment to the gas supply point on the premises properly characterised as gas installation involving gasfitting work;

(e) Was the method of connection and disconnection of the gas cylinder from the gas installation one that was designed to be readily detachable?

History and nature of the gas supply arrangements to the premises

171. The Defendant Cross-Claimant pointed to the following undisputed history and chronology of events in order to advance its position on the Cross-Claim.

(a) The Defendant’s club had always relied upon the Cross-Defendant for the supply of gas to the premises, the supply initially being in the name of AGL and later, in the name of Elgas Limited.

(b) Gas was delivered to the premises in bulk by Elgas Limited and the gas cylinders situated on the premises from time to time were filled in situ by Elgas Limited.

(c) It is common ground that the persons carrying out the in situ filling of the gas cylinder were not:-

(i) qualified gasfitters; or
(ii) working under the authority and/or supervision of an appropriately certified person within the meaning of the Dangerous Goods (Gas Installations) Regulation, 1998 .


(d) The method by which gas was supplied was through gas filled cylinders placed outside the building and connected by gas feed pipes to the various appliances in the building. These cylinders required that Compliance Plates be affixed to record, amongst other things, the number of appliances on the premises connected to the gas supply.

(e) The Compliance Plate in question is dated 1 September 1985 and identified what I take to be three appliances, this being evident from the application of the stamped numbers “1”, “9” and the letters “STO”, the latter referring to a stove which had been removed from the premises thus leaving the gas cock valve assembly unstopped at the time of the explosion.

(f) The Defendant Cross-Claimant tendered copies of correspondence it had addressed to the Cross-Defendant on 13 June 2000 and 28 April 2001. The correspondence identified that the parties had a relationship of customer and supplier and it identified a history of customer complaints over the adequacy of the supply of gas to the premises.

(g) On 7 May 2001 Elgas replaced the Defendant’s then existing gas supply installations which then comprised two 45kg LPG cylinders with a combination of one 45kg cylinder and one 90kg cylinder to allow for a greater volume of gas to be delivered to the premises.

(h) On 8 April 2002 Elgas replaced the then existing combination of one 45kg cylinder and one 90kg cylinder with a larger 190kg cylinder to allow for an even greater volume of gas to be delivered to the premises.

(i) An Elgas business record dated 15 June 2002 asserted that an inspection of the gas installation on the premises had last been carried out in April 2002 at which time the result of that inspection revealed an abbreviated entry to the effect that there was no defect concerning the installation.

(j) Elgas periodically delivered gas to the premises between April 2002 and the time of the explosion.

(k) Gas delivery to the premises was by in situ filling of the 190kg cylinder which necessarily involved a process of detaching and re-attaching the pigtail fitting connecting the cylinder to the regulator.

(l) The investigation into the 13 June 2004 explosion and fire on the premises revealed that although the “Compliance Plate” dated 1 September 1985 referred to the presence of three appliances on the premises, only two gas appliances were found to be present, namely the stove and the barbeque.

Dangerous Goods (Gas Installations) Regulation 1998 – regulatory framework

172. The significance of the foregoing chronology of events is that the Cross-Claimant contends that the changes made to the gas supply installations by Elgas on 7 May 2001 and 8 April 2002, when replacement cylinders were supplied to the Defendant, necessarily meant that at the very least, on 8 April 2002 if not earlier on 7 May 2001, Elgas carried out “gasfitting work” within the meaning of Schedule 99 and clause 3 of the Dangerous Goods (Gas Installations) Regulation 1998 (“the regulations”).

173. The significance of characterising as gasfitting work the process by which the 190kg gas cylinder was provided to the Defendant is that such work triggers regulatory compliance consequences for Elgas.

174. The regulations required that:

(a) pursuant to clause 7 of the regulations that such work had to be undertaken by a qualified gasfitter. Clause 7 relevantly provides:

“ 7 Gasfitting work to be carried out by qualified persons

A person must not carry out any kind of gasfitting work, or employ any other person to carry out any kind of gasfitting work, unless the person by whom the work is carried out does so:

(a) under the authority of an appropriate supervisor certificate, or

(b) under the authority of an appropriate tradesperson certificate and under the general supervision of the holder of an appropriate supervisor certificate, or

(c) under the immediate supervision of the holder of an appropriate supervisor certificate.

Maximum penalty: 100 penalty units (in the case of a corporation) or 25 penalty units (in any other case).”

(b) pursuant to clause 9(b) of the regulations that a qualified gasfitter inspect the whole of the gas installation leading from the gas cylinder(s) to the gas appliances served by the gas cylinder(s). Clause 9(b) relevantly provides.

“ 9 Testing for patent defects
…
(b) in the case of work comprising the alteration, extension or repair of an existing gas installation:


(i) must inspect such part of the installation as has been altered, extended or repaired, and

(ii) must inspect all gas containers, gas regulators and gas appliances connected to such part of the installation as has been altered, extended or repaired, and

(iii) must test the whole installation for patent defects.”

(c) pursuant to clauses 10(1) and 10(3) of the regulations a numbered certificate of inspection be prepared. Clauses 10(1) and 10(3) relevantly provide.

“ 10 Certificates of inspection


(1) Immediately after testing a gas installation following the completion of gasfitting work, the person responsible for the carrying out of the work must furnish a certificate of inspection for the installation:


(a) to the owner of the installation, or

(b) to a person having the control or management of the installation.

Contravention of this subclause is an offence and is punishable in accordance with clause 33.
…

(3) A certificate of inspection:


(a) must be serially numbered and in the approved form, and

(b) if it indicates that the installation to which it relates is patently defective, must specify what work needs to be done to rectify the patent defect.”


(d) pursuant to the operation of clauses 11(1), 11(3), 16(1) and clause 17(1) of the regulations a “Compliance Plate” was required to be updated with information recording the serial number of the updated Certificate of Inspection, the number and type of gas appliances connected to the gas installation. These Clauses relevantly provide:

“ 11 Compliance plates

(1) The person responsible for the carrying out of gasfitting work on a gas installation:


(a) must detach any compliance plate from the installation before the work is carried out, and

(b) must attach a compliance plate to the installation after the work is carried out, unless the certificate of inspection issued as a result of the work being carried out indicates that the installation is patently defective.

Contravention of this subclause is an offence and is punishable in accordance with clause 33.

…

(3) A compliance plate must be permanently inscribed, in figures at least 6 millimetres high, with the following information:


(a) the serial number of the certificate of inspection for the installation,

(b) the serial number of the supervisor certificate held by the person by whom the installation was tested,

(c) the serial number of the contractor’s licence held by that person or by the contractor by whom that person is employed,

(d) the date on which that person tested the installation,

(e) an indication of the number and types of gas appliances connected to the installation.


…
16 Supply of gas for use in gas installations

(1) A person must not supply gas to a gas container that is connected to a gas installation unless a compliance plate is attached to the installation.

Contravention of this subclause is an offence and is punishable in accordance with clause 33.
…
17 Connection of gas containers to gas installations

(1) A person must not connect a gas container to a gas installation unless a compliance plate is attached to the installation.

Contravention of this subclause is an offence and is punishable in accordance with clause 33.”

175. The Defendant’s argument on the Cross-Claim is that if Elgas had complied with the applicable regulations the defect in question, namely, the unstopped or open gas cock valve assembly would have been detected and arrangements would have been made for it to be repaired.

176. The means by which this would have occurred would have been:

(a) The work of changing over and filling the gas cylinder and reconnecting it to the regulator and supply line was “gasfitting work” of a kind contemplated by Regulation 7; and

(b) The person carrying out such gasfitting work would have recognised the obligation to inspect and test the installation and its component parts in compliance with Regulation 9; and

(c) The person carrying out the inspection and testing would have furnished to the Defendant a certificate of inspection, which, in compliance with Regulation 10 would have identified the defective unstopped or open ended gas cock valve assembly and would have issued a defect notice specifying the work needed to be done to rectify the defect; and

(d) The person carrying out the inspection would have removed the existing compliance plate dated 1 September 1985 in compliance with Regulation 11 and not replaced it until the defect had been rectified; and

(e) Without a compliance plate on the installation, as a consequence of (d) above, and in compliance with the prohibition in Regulation 16, Elgas would not have supplied gas to the gas cylinder on the premises; and

(f) In compliance with Regulation 17, the pigtail would not have been re-connected to the gas cylinder until a valid compliance plate had been affixed to the installation.

177. Before dealing with the issues raised I will review the expert evidence called on the Cross-Claims:

Expert evidence tendered and called on the Cross-Claims

Cross-Claimant’s experts

178. On the Cross-Claims the Cross-Claimants tendered a letter dated 26 August 2004 from Mr Jeffrey Gudmann who holds a degree in Science. He is described as a forensic and scientific consultant. His letter was prepared for the purpose of advising the Defendant of the likely origin and cause of the fire following an inspection of the premises carried out on 24 June 2004 in conjunction with Mr Arthur Donnelley who is a gas equipment specialist and who was qualified as an expert for the Defendant.

179. Mr Gudmann’s letter, which was part of Exhibit “2” identified the unattached and open end of the northern branch of the gas supply pipe and the associated gas cock valve assembly in a series of photographs incorporated into his letter, namely Figures 20 and 21 at pages 25 and 26 of the exhibit.

180. Mr Gudmann confirmed that the gas supply to the premises commenced at an external 190kg LPG tank and travelled through a copper pipe gas supply line which entered the kitchen through a concrete wall beneath the permanently fixed barbeque structure.

181. Following his viewing of the scene Mr Gudmann came to the opinion that the heat effects in the kitchen area were characteristic of transient flash damage due to the ignition of a floor level build-up of a flammable gas/air mixture. Mr Gudmann was of the view that this build-up occurred in the relatively confined space of the kitchen area, the likely source of the gas being the unstopped or open ended gas cock valve which had been switched onto the open position just before the incident. This enabled the gas to be ignited by flames from the barbeque burners. This opinion was consistent with the views of Mr Spink.

182. Although Mr Gudmann’s views were not strictly in the form of an expert opinion compliant with Rule 31.23 of the Uniform Civil Procedure Rules, 2005 on account of the absence of an acknowledgment of the Code of Conduct for expert witnesses, I formed the opinion that his views as set out in his letter, being substantially based on undisputed factual observations, were supported by reasons that were readily understood, were not relevantly disputed and provided a cogent confirmation of the cause of the incident.

183. The Defendant also tendered four letters provided by Mr Arthur Donnelley of AW Donnelley Pty Ltd. These letters were respectively dated 27 July 2004, 30 December 2004, 16 May 2007 and 1 August 2008. Apart from the very last of these documents, which was essentially a commentary on an opposing expert report prepared for the Cross-Defendant, Mr Donnelley’s earlier correspondence did not acknowledge the Code of Conduct for expert witnesses. Notwithstanding such omission, in this instance, because Mr Donnelley exposed his process of reasoning in his documents, I decided to treat the absence of acknowledgment of the Code of Conduct for expert witnesses as an irregularity rather than a nullity.

184. In his oral evidence Mr Donnelley described how he took two photographs of the regulator that connected the gas cylinder to the gas supply pipeline that fed gas into the premises to connect to the appliances within the premises. These photographs were marked Exhibit “6(1)” and “6(2)”. Although the photographs were taken on 4 September 2008 it appears that the relevant detail shown in those photographs is the same as how the scene appeared immediately after the incident occurred.

185. Mr Donnelley described the function of the regulator as being to draw liquid gas under high pressure from the cylinder via a “pigtail” and to allow that drawn gas to be fed through the regulator into the gas supply pipeline under less pressure in the form of a vapour ready for use at the appliance level.

186. Mr Donnelley’s two photographs Exhibit “6” are helpful in determining the issues in the case for several reasons.

(a) Firstly, the photographs enliven the detail of what work would have been required to have been done on or about 8 April 2002 (if not earlier on 7 May 2001) when the Cross-Defendant changed the then existing 45kg cylinder and the 90kg cylinder gas supply to a single 190kg cylinder supply. The photographs comprising Exhibit “6” show that what I infer must have been an arrangement that prevailed before changeover whereby two cylinders were attached to the regulator via two pigtail devices. I infer that after 8 April 2002 one cylinder and a corresponding pigtail was removed. I infer the resultant hole or opening at the side of the regulator was then plugged. When the remaining cylinder was removed and replaced with a single 190kg cylinder this meant that only one connecting pigtail was required to be attached to the cylinder to allow the passage of gas from the cylinder to the premises via the pipe reticulation system that was in place.

(b) The control or changeover lever on the regulator is shown to be in the on position to allow gas to flow from the singe gas cylinder to the regulator via the pigtail before being distributed down the gas line to the premises. It is clear from the photographs and the description given that this changeover lever could be easily or readily switched into the on or off position by manual means.

187. The foregoing matters are important to an understanding of the nature and extent of the work carried out at changeover and whether the work undertaken by the Cross-Defendant on or about 8 April 2002 constituted “gasfitting work” within the meaning of the Regulations. This is so because the work of sealing or plugging the remaining hole in the regulator left by the removal of that pigtail device, and the removal of the redundant pigtail device itself, are capable of being construed as gasfitting work. Both tasks required the use of a spanner. Drawing upon his experience as a plumber and gasfitter Mr Donnelley offered the opinion that such work constituted gasfitting work.

188. The importance of determining whether the work described above was gasfitting work is that as a consequence of performing that work a licensed gasfitter was required to inspect the entire gas installation on the premises and provide a Certificate of Inspection and produce a Compliance Plate if the installation was compliant.

189. Mr Donnelley stated that an inspection by a gasfitter would have checked the 1 September 1985 Compliance Plate information as a result of their professional curiosity being provoked and would have come to the conclusion that the Compliance Plate contained wrong information.

190. Such a circumstance, it was argued, would necessarily lead to an inspection of all the pipes and fittings within the premises. Mr Donnelley stated that such an inspection, in the context of the Defendant’s premises, would have been achievable within an hour or so and if performed would have revealed the unplugged state of the first control valve assembly.

191. There is little room for doubt that if such an inspection had been carried out it would have led to testing which would have confirmed the presence of the defect.

192. It is clear that had such an inspection been carried out the unstopped gas stopcock on the valve assembly under the kitchen bench would have been detected. In those circumstances a defect notice would have been placed on the appliance until it was repaired.

193. I agree with Mr Donnelley’s analysis in this regard.

194. In accordance with his stated view Mr Donnelley placed a defect notice on the barbeque following his inspection and, as at 4 September 2008, that defect notice was still in place.

Cross-Defendant’s expert

195. Mr Munday prepared a report for the Cross-Defendant. That report dated 17 July 2008 was admitted into evidence and was marked Exhibit “X.1” on the Cross-Claim.

196. Mr Munday held degrees and diplomas in science and the forensic sciences concerning fire investigation. He was not a licensed gasfitter. Mr Munday’s oral evidence was brief and confirmatory of his written report.

197. Mr Munday’s analysis of the cause of the explosion was much the same as those of Mr Donnelley and Mr Gudmann. Relevantly he stated:

“95. In my opinion, this incident resulted from the release of LPG from a pipe which should have been capped, plugged or completely removed when the associated appliance was taken from the kitchen. The LPG was most probably ignited by the lit burners on the barbecue.

96. Ultimate responsibility for the gas escape and consequent injuries and damage therefore falls upon either:


(a) an unidentified licensed gas fitter who failed to render the disused pipe connection safe; or

(b) one or more club officials who permitted an unlicensed person to carry out the removal. In this respect I agree with 9.3 of Mr Donnelley’s 30/12/04 report.”

198. The area where Mr Munday took issue with the evidence of Mr Donnelley was that Mr Munday sought to characterise and distinguish the task of fitting or replacing a pigtail with a spanner as mechanical work rather than gasfitting as was portrayed by Mr Donnelley. In this regard Mr Munday stated:

“98. There is a genuine difference in interpretation between Mr Donnelley and me, which arises from differences in the definitions used in the various Acts, Regulations and Standards. I would consider it helpful for the relevant authorities to consider unifying their terminology.”

199. Mr Munday’s plea for uniformity in the applicable industrial definitions is understandable.

200. Much of Mr Munday’s report involves interpretation of the applicable regulations. In his report he has raised arguments which focus on economic and practical consequences for Elgas Limited were there to be an adverse interpretation of the regulations. I am not so much concerned with those matters but rather, with the interpretation of the regulations in the light of the known facts.

201. Mr Munday’s opinion was that it was not necessary for a licensed gasfitter to remove and replace pigtail connections. He stated:

“Thus it is my view that pigtails may be removed or replaced by a suitably trained person who is not necessarily a licensed gasfitter, with no necessity for retesting the integrity of the installation connected to the regulator outlet.”

202. I disagree with Mr Munday’s stated opinion. In my view the pigtail removal and replacement procedures triggered the need for compliance with the Dangerous Goods (Gas Installations) Regulation, 1998.

203. Having reviewed and considered the range of views put forward by Mr Donnelley, Mr Munday and Mr Gudmann I accept the views of Mr Donnelley and Mr Gudmann and reject the contrary views of Mr Munday.

Was there a relevant gas installation?

204. In my view it is plain that when the 190kg gas cylinder was deposited at the Defendant’s premises by Elgas on or about 8 April 2002 this simply constituted a delivery of the cylinder. For there to have been a gas installation, in the active sense, something more was required to be done.

205. Following the delivery of the gas cylinder on or about 8 April 2002 work had obviously been carried out in connection with the cylinder to enable gas to flow from the gas cylinder through the existing gas pipes to the appliances ready for use. Through this process gas was obviously installed into the premises ready for use.

206. For this to have occurred a POL pigtail fitting would have been placed into position between the cylinder and the regulator valve and then screwed into place by hand. The POL fitting would then have been tightened by turning the threaded brass nut components on the pigtail with a spanner until a state of gas tightness was achieved. In my view this process was a kind of gas installation within the meaning of regulation 7.

207. I come to the foregoing view because the Dictionary contained within the Regulations defines gasfitting work as follows:

“’ gasfitting work ’ means any work involved in:

(a) the installation, alteration, extension or repair of a gas installation, or
(b) the installation, alteration, extension, removal or repair of any flue associated with a gas installation, or
(c) the connection of a gas container, gas regulator or gas appliance to, or the disconnection of a gas container, gas regulator or gas appliance from, a gas installation (otherwise than where it is designed to be readily detachable from the installation).”

208. I find that the connection of the 190kg gas cylinder was a relevant “… installation, alteration of a gas installation.” See definition (a) in the Dictionary to the regulations. Alternatively, I find that the connection of the 190kg gas cylinder was, in the words of the definition, the connection of a gas container to a gas installation. See definition (c) in the Dictionary to the regulations.

209. The Dictionary to the regulations relevantly defines a gas container to include a gas cylinder. The Dictionary relevantly defines a gas installation to mean a system of pipes and associated fittings that is designed to convey gas from the control valve or other connection point of a gas container to the control valve or other connection point of a gas appliance.

210. In my view the definitions of “gas container” and “gas installation” make it clear that any work that is performed to connect these two entities to enable gas to flow from the cylinder to an appliance must necessarily constitute “gasfitting work”.

Was the gas connection designed to be readily detachable from the installation?

211. The system for the connection and disconnection of gas cylinders to a gas installation was obviously designed to be detachable. Otherwise there could be no ready means by which gas supplies to the cylinder could be replenished.

The ultimate issue on the Cross-Claims

212. The ultimate issue is whether or not the relevant connection was designed to be readily detachable. The term readily detachable therefore requires construction.

Meaning of “readily detachable”

213. There is no difficulty construing the word “detachable”. It plainly means capable of being removed. The question is rather, what does the adverb “readily” add to the meaning of “detachable” in the context under consideration.

214. In the context of the intended safe functioning of gas connections I construe the adverb “readily” within the phrase “readily detachable” to require a quality of detachability to be achieved easily, without delay, promptly and without hesitation or without difficulty.

215. Prima facie, a process of detachment of the pigtail device from the gas cylinder that requires the interposition of mechanical force by the use of a spanner is not in my view descriptive of a process that is achieved without delay, with ease, promptly and without hesitation or difficulty.

Contextual considerations for statutory construction

216. In construing the meaning of the terms “readily detachable” in the context of the regulation I am mindful of the observation of Dixon CJ in R -v- Wilson; Ex Parte Kisch (1934) 52 CLR 234 at 244:

“The rules of interpretation require us to take expressions in their context, and to construe them with proper regard to the subject matter with what the instrument deals and the object it seeks to achieve, so as to arrive at the meaning attached to them by those who must use them.”

217. The context of the term “readily detachable” is to be found from the title of the regulations, namely, dangerous goods, in this case, gas and gas installations.

218. The subject matter in this context is the regulation of gas supply connections. In particular restrictions are placed on the categories of persons permitted to carry out work to connect gas to the gas installation. This includes the requirement to fulfil other tasks such as inspection and certification that the work carried out and the installation itself is compliant with the regulations in force. The objective sought to be achieved by the regulations is public safety and the protection of persons using gas installations.

Purposive considerations for statutory construction

219. In the context of public safety, the objective being the protection of the public in the use of gas installations I am compelled to apply a purposive interpretation of the terms used in the regulations in order to ensure that such objects are upheld.

Closer consideration of relevant facts

220. Before construing the regulatory term “readily detachable” it is important to re-consider the facts, that is, the components of the gas installation in a purposive light.

221. The relevant parts of the gas installation under consideration to determine whether they have the characteristic of ready detachability are the respective ends of the pigtail connections to either the gas cylinder or the regulator located on the pipeline between the cylinder and the appliance itself. Obviously, the pigtail device is designed to be detachable because it is not permanently fixed.

222. Such a conclusion comes from an understanding of the operation of its component parts which comprise screw threads and nuts which are designed to be tightened and untightened as required.

223. In considering the range of options for detachability of the fitting in question the array seems to be:

(a) Screwing the connection tight using an “O” type device which is achieved by manually turning a hand wheel component without the use of mechanical tools to apply tightening forces. The relevant seal for gas tightness in that case is the combination of the surrounds of the rubber “O” ring and the maintenance of screw pressure on that “O” ring. By the design of the “O” device gas tightness is achieved by application of the screwing movement.

(b) Screwing the connection tight using a POL system which requires the downward screwing force to create a gas tight fitting between the internal fitting of the screw nut and the external flared end of the copper tubing of the pigtail.

224. In the case of the “O” type device gas tightness depends on three significant factors occurring sequentially. Firstly, the correct manual placement is required before tightening. Secondly, click locking the “O” ring into the grooved opposing part so that it is held in place. Thirdly, gas tightness is achieved by turning the hand wheel or wing nut on the pigtail until a gas tight screw fit is achieved. All of the foregoing steps are achieved by hand, including the reverse operation.

225. In the case of the POL system gas tightness depends on four significant factors occurring in sequence. Firstly, correct manual placement is required as in the case of the “O” device. Secondly, the threaded screw needs to be positioned so it tightly abuts its counterpart for correct fitting juxtaposition. Thirdly, the correct position needs to be maintained whilst the nut is carefully screwed down by hand in a manner that does not cause cross-threading or stripping of the threaded screw parts. Fourthly, a rotational screwing force has to be applied to the nut on the pigtail with the aid of a turning spanner until gas tightness is achieved.

226. Unlike in the case of the fitting of the “O” device which can be entirely achieved by hand, in the case of the POL system the process is partly achieved by hand but for effectiveness must be completed with the use of force that is designed to be applied by using a spanner.

227. The foregoing analysis of the design and usage of the device highlights important differences in the relative readiness by which attachability and detachability are achieved.

228. In my view this is the relevant factual matrix for determining the purposive construction of the regulatory term “readily detachable”.

Resolution of applicability of Dangerous Goods (Gas Installations) Regulation, 1998

229. Consistent with my finding that the objective of the Dangerous Goods (Gas Installations) Regulation, 1998 is to promote and ensure safety and protection in connection with the use of gas, I find that the supplying and fitting of the 190kg gas cylinder by Elgas on 8 April 2002 was necessarily gasfitting work of a kind contemplated by the regulations.

230. I conclude that the pigtail device connecting the cylinder to the gas installation was not “readily detachable” because a spanner was required to detach and re-attach it.

231. I therefore conclude that in respect of each Cross-Claim the Cross-Defendant failed to comply with the requirements of the Dangerous Goods (Gas Installations) Regulation, 1998 and was therefore negligent. I find that such negligence caused the injuries claimed by each Plaintiff.

DISPOSITION SUMMARY

232. I find that the Defendant was in breach of the duty of care it owed to each of the Plaintiffs.

233. I find that each Plaintiff has established that the Defendant’s breach of duty of care has caused them to suffer injury of a kind that entitles each of them to an award of damages.

234. I find that the Cross-Defendant was negligent and that as a consequence of such negligence it should fully indemnity the Defendant for its liability to each Plaintiff.

Orders

235. The orders I make are:

(a) In each case I direct the entry of a verdict and judgment for the Plaintiff against the Defendant on the issue of liability.

(b) In each case I order the Defendant to pay the costs of the Plaintiff in respect of the determination of the liability issues.

(c) I direct a verdict and judgment for the Cross-Claimant against the Cross-Defendant in each of the Cross-Claims.

(d) In each case I order the Cross-Defendant to pay the Cross-Claimant’s costs.

(e) I grant liberty to the parties to apply on 3 days notice in the event that further orders are required.

(f) The exhibits may be returned.