Koljibabic v BHP Billiton Nickel West Pty Ltd

[2012] HCATrans 152

[2012] HCATrans 152

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P18 of 2011

B e t w e e n -

SLOBODAN KOLJIBABIC

Applicant

and

BHP BILLITON NICKEL WEST PTY LTD

Respondent

Application for special leave to appeal

FRENCH CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 22 JUNE 2012 AT 11.05 AM

Copyright in the High Court of Australia

MR B.L. NUGAWELA:   May it please your Honours, I appear for the applicant in this matter.  (instructed by the applicant)

MR G.R. DONALDSON, SC:   May it please your Honours, I appear for the respondent.  (instructed by Clayton Utz Lawyers)

FRENCH CJ:   Yes, thank you.

MR NUGAWELA:   Your Honours, lying in close proximity with what some may say is an appeal to the visitorial jurisdiction of the High Court arises a fundamental question of public importance and that is this, whether non‑medical scientific evidence from the fields of occupational hygiene or safety carry little or no weight in identifying the chemical pollutant said to injure a person by reference to, among other things, its well‑known and notorious effects on the human body.  It is a point of public importance across several industries, not just mineral processing, mining, but conceivably manufacturing, your Honours, and has ramifications for the application of occupational health and safety standards across the country.  That it is the point of interest is clear from the judgment below at paragraph 86 in the application book at 202.

FRENCH CJ:   So what principle do you assert would be established if you were to succeed on appeal in this case that would warrant the grant of special leave?

MR NUGAWELA:   To make good the special leave point, your Honour the Chief Justice, I have to make three propositions:  firstly, that it is a truism repeatedly demonstrated below in the materials that are also before your Honours that expert industrial hygienists can and, in fact, do identify a chemical by reason of its biological consequences - the classic example given below being the “rotten egg” smell being the fingerprint for hydrogen sulphite.  There is a more relevant example at page 26 of the supplementary application book, in the form of the evidence of Dr Eva, and your Honours, at line 40, he talks about a particular level having the biological consequence of irritation, “tightening of the airways, stinging eyes”, and the like.

The second point, of course, is that industrial hygienists also speak about the physical characteristics of the gases themselves, such as sulphur dioxide being very much denser than other constituents of the atmosphere, thereby causing it to sink to ground level.  We say, your Honour the Chief Justice, as our first point in answer to your Honour’s question that their evidence in this case was not just informative, but highly probative of the question of just what was it that caused the applicant’s constellation of symptoms accepted by all, including the trial judge and the Court of Appeal, as being genuinely suffered.  The second proposition we have to make good is as follows, the united evidence of the industrial hygienists on acclimatisation was that acclimatised people can die from expose to sulphur dioxide.

FRENCH CJ:   This is the concept of desensitisation, is it?

MR NUGAWELA:   Correct, your Honour, without even knowing it and that is why they explained that industry has put in place personal monitoring rather than relying on individual or idiosyncratic sense of smells.  That was the united evidence of all the hygienists - Dr North, Mr Morrison, Mr Eva, and it is instructive to look at how the trial judge received that evidence starting firstly at paragraph 189 of the decision which is on application book 39.  You see Mr North talking about the idiosyncratic effects on individuals at paragraph 189.  There is an extract where he refers to this notion of “conditioning”.  At 190 he says:

this was well known in the industry ‑

and for that reason at 191, the very idiosyncratic phenomenon –

“Some objective criteria is required –

and at 192, rather than relying on the varying individual responses.  So it said Dr Morrison captured at paragraph 241 of the first instance judgment which is on page 48 on the application book:

people could become potentially exposed without knowing it.

So said Mr Eva at 287 of the trial judge’s decision, read with 289.  That is why it was important according to all of these industrial hygienists, because of this phenomenon of acclimatisation, to have personal monitoring.

The third and last point we have to make good in the context of the first special leave point is this.  There was a combined devaluation of that scientific evidence and an unjustified elevation of medical science as being somehow in a privileged position.  When speaking of this notion, I quote, “of significant exposure”.  When the doctors themselves said they did not know what the levels were that constituted significant exposure and this is a point, your Honours, that is very succinctly picked up in the applicant’s reply at paragraph 21.  That is on page 233 of the application book where it is asserted or submitted, rather, that neither:

Prof Joyce . . . nor Dr Loblay . . . were aware of what the limit exposure was in relation to S02 fumes . . . Further, if the Respondent’s medical experts purported to give opinion evidence as to the effects of “significant” exposure, without knowing what the exposure limits were, this would logically undermine the weight of their opinions.

So what we have is, on one footing, your Honours, industrial hygienists’ evidence having no weight – to use the words of the court below – because there was no specification of exposure level at which acclimatisation occurs but, on the other hand, medical evidence is accorded compelling weight upon this notion of significant exposure where there is an admission by those medical witnesses that they do not know at what level this exposure occurs. 

Can I turn to what might be called the remaining point, your Honour.  It is a point of visitorial interest.  It arises from ground 3 of the proposed draft notice of appeal concerning Professor Loblay’s evidence.  There are three quick points we wish to make about that.  Firstly, as a general proposition the evidence of Professor Loblay exemplified the problem that the medical witnesses faced below.  He did make the concession, a vital concession, a critical concession, a twofold concession, firstly, that this applicant did suffer physical injury, perhaps multiple chemical sensitivity, but the label is unimportant, but, secondly, that this applicant did not suffer from an illness conviction brought about by the urging of supportive doctors contrary to the respondent’s submissions at paragraph 43.

He made those concessions at the supplementary application book at pages 20 through to 22.  At 20, lines 7 to 11, your Honours, he is questioned about the article that he wrote concerning:

abnormal sensory response, triggered by chemical irritation of nerve endings. 

At 30 he says yes, that happens but not this case because the applicant’s clinical picture was different.  At 21 he is cross‑examined closely from lines 30 onwards and he says at line 48 that the applicant:

did not have any of those symptoms.

None of them at all?‑‑‑No. 

Then he says he is “just checking”.  Then over the next page in every case he concedes that it fell within the diagnostic criteria that he himself wrote about.  He had “fatigue”. 

He had fatigue and cognitive impairment. 

He maintained there was no nausea.  Of course there were findings below to the contrary.  As to malaise, fatigue, cognitive impairment, lines 20 to 23, he had them and then the clincher - if he had those symptoms:

then he falls into this class, doesn’t he?‑‑‑If you ask me to assume that, yes.

Now, as to the findings of nausea, of course, the Court of Appeal found that the applicant had nausea at 111 of the reasons.  It is also found, your Honour, at the application book 247 through to 248 where Professor Loblay in his own report noted at line 15 “nauseated”, at line 26, “difficulty breathing and nausea”, at line 35, “nauseated”, and over on the next page, “nauseated”. 

The reason why I say, your Honours, that this is a problem faced by the medical practitioners was that they had to make a choice, on the one hand, between a unitary diagnosis of – I use the word “poisoning” loosely – against the other option, which is a multiple concurrent diagnosis for a constellation of those symptoms.  So the choice, on the one hand, between this physical injury caused by exposure, and on the other hand the trifecta of diagnoses to account for the emergence, suddenly, of all these symptoms for the first time in this person’s life with a clear working history and the trifecta being gastric reflux, influenza and hyperventilation - coincidence upon coincidence, and there was a lot of evidence to the contrary.

FRENCH CJ:   Just taking you back to your first special leave point for a moment, what do you say to the last sentence in paragraph 37 of the respondent’s argument at page 227 of the application book?

MR NUGAWELA:   Your Honour the Chief Justice, that goes on over to the next page at 228?

FRENCH CJ:   Yes, that is right.

MR NUGAWELA:   Well, that is clearly incorrect for the reasons we have demonstrated to your Honours - the cross‑examination transcript ‑ ‑ ‑

FRENCH CJ:   None of the applicant’s medical witnesses disagreed with him – or you say the premise is wrong, that he did not say that anywhere?

MR NUGAWELA:   The premise is wrong, quite.  Can I just end on draft ground 3, your Honour the Chief Justice?  Curiously, it was held that Professor Loblay, who was the respondent’s star witness really, relied below en route to the dismissal of the action, but when one examines his evidence it is curious that that was justified.  Unless there is anything, your Honours, those are the submissions for the applicant.

FRENCH CJ:   Thank you, Mr Nugawela.  We will not need to call on you, Mr Donaldson.

The applicant in this case seeks special leave to appeal a decision of the Court of Appeal of Western Australia which dismissed an appeal from a decision of the District Court of Western Australia dismissing the applicant’s claim for damages for personal injury said to result from exposure to sulphur dioxide, which exposure he claimed was caused by the negligence of his employer, the respondent.  The decision of the trial judge and of the Court of Appeal focused upon the weight of expert evidence at trial adverse to the applicant’s claim that his symptoms were caused by exposure to the sulphur dioxide.

The applicant complains that the Court of Appeal, inter alia, wrongly dismissed or discounted evidence which he had called from occupational hygienists as lay evidence of little or no weight.  In our opinion, the matters of which the applicant complains relate to the treatment by the trial judge and the Court of Appeal of particular evidence called at trial.  No question of general principle or of public importance warranting the grant of special leave is disclosed.  Special leave will be refused with costs.

The Court will now adjourn to reconstitute for the next matter.

AT 11.21 AM THE MATTER WAS CONCLUDED