Koljibabic v BHP Billiton Nickel West Pty Ltd - [2008] WADC 165

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KOLJIBABIC -v- BHP BILLITON NICKEL WEST PTY LTD [2008] WADC 165

CORAM: KEEN DCJ

HEARD: 25-29 FEBRUARY, 4-17 MARCH & 28 MAY 2008

DELIVERED : 7 NOVEMBER 2008

FILE NO/S: CIV 1602 of 2002

BETWEEN: SLOBODAN KOLJIBABIC
Plaintiff
AND
BHP BILLITON NICKEL WEST PTY LTD
Defendant

Catchwords:

Negligence - Breach of statutory duty - Multiple Chemical Sensitivity - Causation - Turns on its own facts

Legislation:

Mines Safety and Inspection Act 1994
Mines Safety and Inspection Act 1995

Result:

Action dismissed

Representation:

Counsel:

Plaintiff: Mr P Scanlon QC & Mr J Batten
Defendant: Mr G Donaldson SC

Solicitors:

Plaintiff: Slater & Gordon
Defendant: Clayton Utz

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

Clambake Pty Ltd v. Tipperary Projects Pty Ltd (No 2) (2007) 35 WAR 394
CRS Ltd & Anor v Della Maddalena [2006] HCA 1
Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Road & Traffic Authority of New South Wales v Dederer [2007] HCA 42
Rothwell v Chemical & Insulating Co Ltd, Re Pleural Plaques Litigation [2007] 3 WLR 876
Wyong Shire Council v Shirt (1980) 146 CLR 40

KEEN DCJ: The plaintiff in this matter claims damages for personal injury and loss said to arise out of his exposure to gas whilst in the employ of Ralph M Lee in July 1996.
It is said that at the material time the plaintiff was working at the Kalgoorlie nickel smelter ("KNS") of, as it was then WMC Resources Ltd but as it is now, the present defendant. The KNS is situated just outside of Kalgoorlie.

The plaintiff and his background

The plaintiff was born on 22 April 1943 in Yugoslavia. His formal education occurred there and he became an electrician in Yugoslavia. In 1968 at the age of 25 years he came to Australia. In Australia he commenced work as an electrician and obtained his formal qualifications in Australia in respect of that trade.
In a case such as this it is not unusual and indeed in some cases necessary to give a detailed history of the plaintiff's work record. In this case it is not necessary for me to do so.
There is no serious dispute in this matter that from the time that the plaintiff came to Australia until the incident (in respect of which he claims) in July 1996 the plaintiff had a full and what has been described as (without challenge) an impeccable work record. He has only had very short periods out of work during all of that period when there has been, for example, no construction work available which would engage his services or because of injuries at work. On one occasion he fractured his foot and he has had surgery in respect of his knee cartilage.
His evidence, again unchallenged, is that he was fit and well throughout this period. Not only did he work in his trade and in general construction work, but he also, for a period of time, operated a fish and chip shop, did maintenance work, built his own home in 1975 and, whilst working at the KNS, on many of his days off, assisted a friend to build his house in Kalgoorlie.
I will come to detail the plaintiff's claim shortly, but to set the scene it is to be noted that the plaintiff claims that by reason of his exposure to noxious gases he has suffered an adjustment disorder and chronic anxiety and "multiple chemical sensitivities syndrome".
In order that the evidence of the plaintiff and all of the other witnesses involved in this matter may be seen in its proper context in relation to this type of claim it is to be noted from the outset and it is expressly acknowledged by the defendant that the plaintiff is not a malingerer. It is also not challenged by the defence that in all of his dealings with medical practitioners over the years the plaintiff has been found to be an honest and straightforward historian doing his best to provide information. He was universally accepted by all of the doctors as either being honest or they having no reason to doubt his honesty or to query his integrity.

The pleadings

No issue is raised on the pleadings that the defendant is and was at all material times the owner and occupier of the KNS. Similarly there is no dispute on the pleadings that at the KNS the defendant conducted operations by which mineral bearing substances were smelted. There is also no dispute that the defendant engaged the plaintiff's employer Ralph M Lee (WA) Pty Ltd as an independent contractor to perform electrical work at the KNS.
By par 5 of the statement of claim it was alleged:
"5.Between 31 May 1996 and 30 July 1996:
5.1The Plaintiff worked at the Defendant's nickel smelter and carried out electrical work pursuant to the contract between the Defendant and Ralph M Lee;
5.2For the first two weeks of that period the Plaintiff worked in a control room that had no ventilation, air‑conditioning or windows;
5.3From about 14 June 1996 for one week the Plaintiff worked at a yard adjacent to a railway line that was about 500 metres from the smelter and chimney stacks of the Defendant's nickel smelter;
5.4For the period of about 6 weeks ending on or about 30 July 1996 the Plaintiff worked in the gas turbine control room that had no ventilation, air‑conditioning or windows."
By its defence, par 5 of the statement of claim was not admitted by the defendant. The defendant further averred that the presence of windows, air‑conditioning or other ventilation in the control rooms in which the plaintiff alleged that he worked would have increased the levels of sulphur dioxide, hydrogen sulphide and other noxious gases to which the plaintiff alleges that he was exposed. Further particulars were given to the effect that none of the control rooms at the KNS contained emission sources for any of the gases and the presence of windows, air‑conditioning or ventilation in the control room would have increased the level of gases in the control rooms by facilitating the movement of the gases into the control rooms from the surrounding atmosphere.
By par 6 of the statement of claim the plaintiff alleged:
"6.When performing his work at the Defendant's nickel smelter the Plaintiff was exposed to one or more or a combination of sulphur dioxide, hydrogen sulphide and some other noxious gas the identity of which is not known to the Plaintiff."
Further and better particulars were sought of the location at which the plaintiff was exposed which provided a response that the plaintiff was exposed "whilst working in an area adjacent to the smelter in the gas turbine control room and at other times whilst in the area of the KNS plant". The plaintiff was also asked for the date or dates on or about which the plaintiff was so exposed and he responded:
"26 July 1996 was the most significant exposure to sulphur dioxide. Up to that time (the plaintiff does not know the exact dates) but which were on the dates of work at the defendant's premises the plaintiff was exposed at a level that did not produce immediate reaction."
The defendant in relation to these allegations admitted that whilst working at the KNS the plaintiff may have been exposed to toxicologically negligible levels of fugitive sulphur dioxide. It otherwise denied par 6 of the statement of claim. The defendant went on to say that if the plaintiff was exposed to the materials pleaded in par 6 none of that exposure was of toxicological significance.
Paragraph 7 of the statement of claim is in the following terms:
"7.These gases:
7.1Were emitted from the chimney stacks of the smelter, from a bath of liquid about 150 to 200 metres north-east of the control room and about 30 metres from the gas turbine control room, from a trench carrying liquid from the bath that ran along a road adjacent to the gas turbine control room, from a pipe near the gas turbine control room or from some other location at the Defendant's nickel smelter that is not known to the Plaintiff;
7.2Were dangers due to the state of the Defendant's nickel smelter and to things done or omitted to be done on the Defendant's nickel smelter;
7.3And measures to protect against them were matters over which the Defendant had control for the purposes of section 9(3) of the Mines Safety and Inspection Act 1994 (WA)."
As to these allegations the defendant admitted that one or more of the gases were emitted from the chimney stack at the KNS but otherwise denied all of the allegations.
By par 8 of the statement of claim the plaintiff pleaded:
"8.By reason of the matters pleaded in paragraphs 3 to 7 the Defendant owed the Plaintiff:
8.1A duty to exercise reasonable care to avoid acts or omissions that may cause injury to the Plaintiff;
8.2A duty to exercise reasonable care to see that the Plaintiff did not suffer injury by reason of any danger on the Defendant's nickel smelter premises;
8.3The statutory duties of an employer under section 9 of the Mines Safety and Inspection Act 1994 (WA) and statutory duties under regulations 9.11 and 9.12 of the Mines Safety and Inspection Regulations 1995."
The defendant denied the whole of par 8.
By par 9 it was alleged:
"9.Between 31 May and 30 July 1996 the Plaintiff sustained personal injury arising from his exposure to the noxious gas or gases in that he suffered damage to lung tissue, neurological damage, adjustment disorder and chronic anxiety, and multiple chemical sensitivities syndrome."
Following the plaintiff's opening questions arose as to the scope of the plaintiff's claim as it stood for trial. Mr Scanlan QC for the plaintiff said that the case was put on three bases:
1.Multiple chemical sensitivity;
2.Psychiatric impairment suffered by the plaintiff; and in the alternative
3.It is the sequelae, that is, the psychiatric injuries suffered by the plaintiff is the sequelae of the initial physical injury.
In other words, the case was put that the plaintiff has those injuries either standing alone as separate items or there is a psychiatric element coming on top of the physical element which the plaintiff refers to as multiple chemical sensitivity.
Notwithstanding the pleading at par 9 of the statement of claim Mr Scanlan disavowed a case of damage to the lung tissue or neurological damage.
As to par 9 of the statement of claim the defendant denied the injuries alleged and went on to aver that if the plaintiff is suffering from a psychiatric injury such injury is too remote from the defendant's alleged breach of duty in allegedly exposing the plaintiff to the gases to have been a reasonably foreseeable consequence of the alleged exposure. By way of particulars the defendant set out:
(1)There is no established causal link between the plaintiff's alleged exposure to the Gases and injury in the nature of a Psychiatric Injury;
(2)A reasonable employer in the position of the defendant could not have foreseen that the alleged exposure to the Gases could have caused or contributed to the plaintiff's alleged Psychiatric Injury.
The plaintiff then pleaded that the injuries were caused by breaches by the defendant of the duties pleaded in par 8 which the defendant denied along with a denial that the plaintiff has suffered injury as a result of the alleged breaches.
Paragraph 11 of the statement of claim articulated the alleged breach of duty on the part of the defendant. Some of those allegations were the subject of further and better particulars. That request for particulars required the plaintiff to specify each and every way that action taken by the defendant was inadequate, and the action which the plaintiff says the defendant ought to have taken, in relation to each respective allegation that the defendant failed to do.
The allegations in par 11 of the statement of claim were that:
"11.1 It (the defendant) failed to take any or any adequate action to ensure that both the control room and the gas turbine control room had ventilation or air-conditioning and/or adequate ventilation or air-conditioning."
The plaintiff was asked for particulars in respect of the allegation "ensure that the control room at the gas turbine room had ventilation or air-conditioning and/or adequate ventilation or air‑conditioning". The plaintiff responded:
"The gas turbine control room had no ventilation and no air‑conditioning which was in the circumstances inadequate."
"11.2 It failed to take any or any adequate action to identify and monitor the level of noxious gases at the Plaintiff's workplaces at the Defendant's nickel smelter."
Particulars in respect of the allegation "identify and monitor the level of noxious gases in the Plaintiff's workplace" were provided as follows:
"The plaintiff was not provided with any personal device that enabled him to assess the levels of noxious gas. The plaintiff should have been able to have access to a device which alerted him to the presence of noxious gases."
"11.3 It failed to take any or any adequate action to monitor the nature and levels of gases emitted from the chimney stacks at the Defendant's nickel smelter."
This was also the subject of a request for particulars and the plaintiff replied:
"The plaintiff says there was no effective method of monitoring or controlling the escaping level of gases escaping from the chimney stacks. There should have been a method of extracting sulphur fumes from the chimney in the event of the plant 'tripping', so that no gases escaped at that time."
"11.4 It failed to take any or any adequate action to install any or any adequate devices warning the Plaintiff and other workers of the presence of noxious and potentially unsafe gases in the air at the Defendant's nickel smelter."
Particulars were sought of the words "install any or any adequate devices warning the plaintiff and others workers of the presence of noxious and potentially unsafe gases in the air". The plaintiff replied:
"No device was installed as demonstrated by the escape of gases on a regular basis up to 27 July 1996, and the constant difficulties with the commissioning of the plant in that period."
"11.5 It failed to take any or any adequate action to prevent unsafe levels of noxious gases from being emitted from the smelter chimney stacks, the bath, the trench or other apparatus at the smelter and entering the atmosphere of the workplaces at the Defendant's nickel smelter."
Particulars were sought of the words "prevent unsafe levels of gases being emitted from the defendant's nickel smelter chimney stacks, the bath, the trench or other apparatus at the defendant's nickel smelter and entering the atmosphere of the workplaces at the defendant's nickel smelter". The plaintiff responded:
"No action was taken and the defendant should have installed extraction devices running on a separate electrical system to extract fumes, in the event of the plant electrical supply 'tripping'.
11.6It failed to provide the Plaintiff with adequate breathing apparatus;
11.7It failed to provide the Plaintiff with any adequate instructions in how to use and when to use breathing apparatus;
11.8It failed to take any or any adequate steps to provide the Plaintiff with an encapsulated suit."
The statement of claim continued:
"12.The Defendant breached duties under the Mines Safety and Inspection Act 1994 in that:
12.1In breach of section 9(1)(a) it:
12.1.1It failed to ensure that both the control room and the gas turbine control room had ventilation or air-conditioning and/or adequate ventilation or air-conditioning;
12.1.2It failed to prevent unsafe levels of noxious gases from being emitted from the smelter chimney stacks, the bath, the trench or other apparatus at the smelter and entering the atmosphere of the workplaces at the Defendant's nickel smelter;
12.2In breach of section 9(1)(b):
12.2.1It failed to install any or any adequate devices warning the Plaintiff and other workers of the presence of noxious and potentially unsafe gases in the air at the Defendant's nickel smelter;
12.2.2It failed to provide the Plaintiff with adequate instructions in how to use and when to use breathing apparatus;
12.3In breach of section 9(1)(d) it failed to provide the Plaintiff with an encapsulated suit.
13.The Defendant breached duties under the Mines Safety and Inspection Regulations 1995 in that:
13.1In breach of regulation 9.11 it failed to ensure that atmospheric contaminants in workplaces at the Defendant's nickel smelter were maintained at levels below the exposure standard;
13.2In breach of regulation 9.12 it failed to ensure that the level of contaminants in the workplaces at the Defendant's nickel smelter was controlled by suppression, ventilation or exhaust extraction system that effectively reduced or diluted or extracted the contaminants."
In respect of par 13.1 particulars were sought requiring the plaintiff to specify:
"(i)'each of the atmospheric contaminants'; the plaintiff responded 'Hydrogen sulphide, sulphur dioxide, sulphur trioxides'.
(ii)'to the exposure standard alleged'; the plaintiff responded:
'The levels set in the Licence issued to the defendant at the time at which the defendant operated its smelter and in any event not to exceed 2 ppm on an 8 hour TWA'."
As to par 13.2 the defendant was also asked to specify each of the contaminants and responded as in par 13.1 and was asked to specify "to what level each of the contaminants needed to be reduced or diluted or extracted, in each workplace at the defendant's nickel smelter, in order for the reduction, dilution or extraction to have been effective". The plaintiff responded:
"See as in (ii) (a reference to the answer to 13.1(ii)) and in any event sufficiently low as to not cause injury to the plaintiff. Such levels depend on the length of exposure and the plaintiff cannot therefore add to the answer proposed."
As to par 11, par 12 and par 13 of the statement of claim the defendant pleaded:
"11.Save to admit that it did not provide the plaintiff with an encapsulated suit, the defendant denies each and every allegation contained in paragraphs 11, 12 and 13 of the statement of claim and further says that:
(a)until March 1995, the defendant conducted on‑site monitoring programs in relation to sulphur dioxide levels across the KNS site, including the Control Rooms, which were appropriate for the scale and nature of activities conducted on site;
Particulars
(i)The defendant conducted on-site monitoring programs between 1991 and 1995 ('Programs').
(ii)The Programs identified the Control Rooms as having a low exposure risk for gaseous emissions.
(b)it took all reasonably practicable steps to ensure that its response to the gaseous emissions identified by the Programs was adequate including:
(i)introducing a range of appropriate controls ranging from the use of ventilation systems to the use of personal protective equipment ('PPE');
(ii)developing and implementing a management plan to provide control of high level transient exposure to sulphur dioxide through use of a respirator; and
(iii)ensuring that respirators were conveniently located across the KNS site, including in the control rooms (the 'Responses');
(c)it conducted induction programmes for all employees, contractors and visitors to KNS;
Particulars
(i)The defendant conducted induction programmes for all employees, contractors and visitors to KNS which covered all potential site hazards including gaseous emissions and use of PPE.
(d)it supplied all employees, contractors and visitors to KNS with appropriate PPE, prior to site entry;
(e)in or about May 1995, it:
(i)supplied the plaintiff with PPE;
(ii)trained the plaintiff in its proper use; and
(iii)instructed the plaintiff that if, whilst at KNS, he detected any smells, gases or fumes he should immediately cease working, apply his PPE, including his respirator, evacuate the area and report the problem to his supervisor;
(f)it took all reasonably practicable steps to ensure that both the Programs and the Responses were adequate to address the gaseous emissions at KNS, including, but not limited to, commissioning an independent health and safety audit of KNS in 1995.
Particulars
(i)In 1995, ICI conducted an audit of KNS which covered all aspects of occupational health and safety including, but not limited to, the monitoring of gaseous emissions, PPE, health and safety training and induction programs;
(g)the defendant further says that if, which is denied, it failed to ensure that the Control Rooms had ventilation or air-conditioning, such failure did not cause injury to the plaintiff in that:
(i)nothing to which the plaintiff was exposed was of toxicological significance;
(ii)the presence of windows, air‑conditioning or other ventilation in the Control Rooms would have increased the levels of Gases to which the plaintiff alleges that he was exposed;
(h)the defendant further says that if, which is denied, it failed to monitor the level of Gases (whatever that might mean) at the plaintiff's workplaces, such failure did not cause injury to the plaintiff in that nothing to which he was exposed was of toxicological significance;
(i)the defendant further says that if, which is denied, it failed to monitor the level of Gases emitted from the chimney stacks, such failure did not cause injury to the plaintiff in that nothing to which the plaintiff was exposed was of toxicological significance;
(j)the defendant further says that if, which is denied, it failed to install warning devices warning workers of the presence of Gases (whatever that might mean) at KNS, such failure did not cause injury to the plaintiff in that nothing to which the plaintiff was exposed was of toxicological significance.
Accordingly, warning devices would not have warned of anything;
(k)the defendant further says that it would have been inappropriate to supply a person working in the circumstances alleged by the plaintiff in an encapsulated suit;
Particulars
(i)An encapsulated suit would unduly restrict the movement of, and potentially cause severe heat stress to a person working in the circumstances in which the plaintiff allegedly worked at KNS."

The plaintiff pleaded the consequence of his injuries in the following terms:
"14.In consequence of the injuries the Plaintiff:
14.1Has endured and will continue to endure pain and suffering and has lost enjoyment of life;
14.2Has lost earning capacity and has lost and will continue to lose income;
14.3Has lost and will continue to lose superannuation entitlements;
14.4Has incurred and will continue to incur hospital, medical and other treatment expenses as well as expenses in travelling to treatment and therapy;
14.5Has received payments of workers compensation from his actual employer which payments will be required to be refunded to that employer or its insurer."
The plaintiff proposed to particularise those damages by way of a schedule which was done. Most heads of damage were agreed and will be dealt with later in these reasons.

An overview of the KNS

The KNS is a large plant situated to the south of Kalgoorlie. It is best described by reference to two documents in evidence, the first being Exhibit 1 which is a drawing of the Kalgoorlie nickel smelter marked "issued for comment, 23-8-95" and the second being Exhibit 5 which is an aerial photograph of the KNS.
It was not clear from the evidence as to when precisely the aerial photograph was taken. However, it does not appear to be in dispute that it was taken at some time before the plaintiff claims to have suffered his injury. Some of the buildings not shown in the photograph were evidently in position at the time of the incident. Nevertheless, many witnesses were taken to the photograph and it does serve to assist in an understanding of the process. Exhibit 1 being the drawing does show a number of buildings which do not appear in the photograph. By way of orientation, on the photograph, north is at the foot of the photograph.
In the centre of the photograph is a large grey building (the "furnace building") orientated north‑south which is the building housing the flash furnace and converter used in connection with the nickel smelter. To the east of that building there is a large chimney stack.
Identified on the drawing (Exhibit 1) is a building numbered 7 described on that drawing as "Once Through Steam Generator (OTSG) switchroom". I will come to the evidence, but this is the building in which the plaintiff says he was working at the material time. This building according to the drawing lies immediately to the west of the north end of the furnace building. In the photograph that building (number 7) cannot be seen. There was some evidence that it was constructed in the area which appears to the west of the north end of the furnace building and which appears to be a sandy building site with vehicles on it. That in turn is immediately to the south of a large and two smaller tanks shown in the photograph. Those tanks are also shown in the drawing (Exhibit 1).
On the evidence there appears to be little doubt that the smelting process takes place within the furnace building. Concentrate from the mines is received at the KNS and is conveyed to the furnace building. It is transferred into the furnace. This separates in molten form the material into matte and slag. The matte is removed from the furnace by way of a tapping process. The material is then at high temperature and it is tapped into ladles before being transferred to the converters which involves a further process similar to the flash furnace and the sulphides of iron and nickel are oxidised. The slag formed by these processes is also extracted. The matte is then sent to a matte granulation process and the slag returned to the furnace for the recovery of nickel.
The matte proceeds to the south end of the building and the slag goes to the north end of the building.
In the granulation process of the matte it is subjected to high pressure water jets to granulate the material before being transported into a receiving bin.
The slag comes out of the north end of the furnace building where there is also a granulation system for the slag. Again this uses high pressure water and the slag runs off into launders.
It seems that during this process steam is produced from the contact of the water with the material at high temperature.
During these processes of smelting, tapping and slag granulation sulphur dioxide (SO²) is produced.
The majority of the SO² is taken by way of ducting through to the large stack situated to the east of the furnace building. Emissions of SO² are also found within the furnace building itself. Because of the high temperature they rise to the roof space of the furnace building where there are vents to enable its escape.
As I have noted, the slag area is to the north of the furnace building which is open or partly open. The slag launders of which there are two on the north end of the furnace building are not under the roof of the furnace building.
The water used for the purposes of the granulation of the slag is obtained from dams situated to the west of the smelter and on the other side of the railway line shown on the drawing and on the photograph. After granulation the water runs into drains which in turn feed back to the cooling ponds or dams which I have described.
The pits involved in the slag granulation process are not covered.
The overview of the plant can be seen, at a micro level relevant to the plaintiff's claim, in a series of photographs taken shortly after the incident and which became Exhibit 4. Exhibit 4.1 is a view which shows on the right‑hand side of the photograph a brick building which is building number 7 on Exhibit 1. The photograph looks in a southerly direction with the furnace building on the left.
Photograph 4.2 is another view of building number 7 showing the doors. The remainder of the photographs I will come to when dealing with the evidence in this case.
At the material time there were extensive works being carried out at the KNS. To the south of the plant and to the south of the furnace building an acid plant was being constructed for the conversion of gases produced in the furnace building into sulphuric acid. These construction works had the effect of there being numerous trades and workers at the KNS site including the plaintiff and his employers. It is not necessary for the purpose of these reasons to expand

The issues

The issues in this matter can be reduced to the following:
1.Did the KNS on the material date discharge noxious gases?
2.Was the plaintiff exposed to those noxious gases and, if so, what gases and at what level?
3.Did the plaintiff suffer an injury as a result of that exposure and if so, what was the nature of that injury?
4.Was the plaintiff's exposure to those noxious gases as a result of a breach of duty on the part of the defendant as alleged by the plaintiff?
5.Was the exposure to those gases the cause of the plaintiff's injuries?
6.Was the psychiatric injury (defined in the defence as the adjustment disorder or chronic anxiety) a reasonably foreseeable consequence of the alleged exposure?
7.Whether and if so what damage has been suffered by the plaintiff?
upon these works being carried out.

The evidence

Before dealing with the evidence in detail I wish to remark that at times the questions asked and the answers given are not altogether clear and that will become apparent. I have set out verbatim passages of evidence as they appear in the transcript rather than paraphrase or summarise that evidence with my own interpretation of it. Naturally my interpretation appears later in the reasons where necessary to support my finding of fact.

The plaintiff

The plaintiff gave evidence as to his background which I have already described and it is not necessary for me to deal with further.
It is important to note that English is not the plaintiff’s first language and whilst he does understand the language and have a reasonable command of it he does have some difficulties expressing himself which will become apparent from extracts of his evidence which follow.
On 31 May 1996 he started work at the KNS. There he had an induction and was provided with certain equipment which included a half face respirator. He said that he was told to use the mask when he smelt gases and to run in the opposite direction. The mask was in a bag kept on his belt and it took some time to get the mask out to put it on. He was told that there would be a smell of rotten eggs which he was told was hydrogen sulphide.
On his induction or at any time thereafter he was not given a monitor or any other device to show SO² in the air.
The plaintiff said that whilst at the KNS he worked from 7.00 am till 5.00 pm 13 days on and one day off.
The plaintiff said that he worked in two control rooms, the first one for about two weeks. He said that he did not feel any adverse effects while working there, but he did smell something outside which he described as being like sulphuric acid, H²SO⁴.
After working in this first control room he worked in a yard for a week and then moved to another control room which he described as a gas turbine control room. He first identified that as being room number 8 on Exhibit 8. He described it as having two doors. It was 2½ to 3 metres high with no ventilation or extraction fans or monitors in it. He said that there was a broken pipe near where he worked.
He said that he had told a safety officer about the smell in the area and had been told he would get used to it. Nothing was done about the broken pipe and he said that water was running for some two months. During this period he said he was healthy and did not feel sick.
However, he said all that changed on 26 July 1996. The plaintiff said:
"That changed practically one – what's happened on 26 July 96, that was really something what I experience and it was big change is – I work to – that was day like all other days. They can see smoke, you can see water running on road and that sort of thing but that day – when I go for afternoon tea was when I step in front of door, nothing, no working. Everything stop because that's a lot of noise on place and easy to take notice something is wrong and when I just lift up like that, that was white cloud all over Kalgoorlie nickel smelter."
He went on to describe the cloud as covering the whole plant and it was about five metres from the ground.
He went to have his afternoon tea after which he went back to the control room. He said:
"I don't look out at all because when you do that – worry and go control panels you must be really concentrated on a job. There can be nothing else and first time all time to be in that job. And when I step on 5 o'clock on the door, I see all that white cloud, practically all mine – that control room was in white cloud. Completely wrapped up what they say."
He said that the white cloud this time was right on the ground. He said that he did not smell anything. He said he could not feel anything. He suggested that he was probably full up with the poison already.
He said that the next day he had breakfast and while either walking or waiting for the bus to work he started to feel a spinning in his head. He worked all day and at the end of the day he started to feel more dizzy and had more spinning and felt weak.
On the following day, 28 July he came to work. He said he was 30 per cent down on strength with dizziness and the start of blurring in front of his eyes. He said "I start to feel vomiting". He said that he had acid inside his stomach but he did not vomit. He carried on working.
On 29 July he came to work but said he could not do anything at all. He said that he just sat from the morning until 3.30pm when he went to see the nurse. He said that he told the nurse what had happened and she asked him where he had been working. He told her that he had been working in the substation control room and control room gas turbine. He said:
"That smell from sulphuric acid mist or that water which flow on road come in a room and I can't stay in that smell any more and I come practically to see what's happened with me."
He said that he had told her his symptoms which were "dizzy, feeling vomiting, spinning, sparkling stars in front of eyes". He said that he felt weak.
The plaintiff said that the nurse had given him a “moisturiser” to breathe and some tablets. It had no effect.
On 30 July he returned to work and just sat down and at about 10.00 or 11.00 am he was taken back to the camp at Kalgoorlie. On that day he said that he had all of the "dizzies".
Returning to the incident on 26 July he said that when he left the site that day the white cloud was perhaps two or three kilometres outside of the KNS.
He again returned to work on 1 August but lay down most of the day.
He went to see a Dr Clarke in Kalgoorlie and explained to him how he felt namely he felt like vomiting, was dizzy and had spinning head with stars in front of his eyes. He was given antibiotics and told that he probably had the flu. He did not think that he had the flu having had it before and had none of the flu‑like symptoms that he had previously experienced.
He then left Kalgoorlie and saw a general practitioner in Perth and was given a certificate. He was off work for about a month and a half before starting light duties with his employer.
After returning to Perth and at about two weeks after the incident he developed a tremor in his right hand.
There was some suggestion of the plaintiff being sent for work at Paraburdoo and Goldsworthy but this did not eventuate. The plaintiff said that he has not worked since.
The plaintiff then came under the care of Dr Moira Somers. Medication she prescribed did not assist him.
Since 1996 he said there had been a little improvement in his breathing and he has recovered some of his strength.
He still has, what can only be described as a quite noticeable tremor in his right arm which progresses to throwing his arm in the air at times. I pause to note that during the course of his evidence this became apparent and more so as he appeared to become tired in the witness box. It was accompanied by an audible intake of breath.
With regard to this movement he said that it seems to scare people and is embarrassing. He cannot predict his hand movement. He is right handed.
He is able to drive a car but not when he feels bad or during busy periods on the road because of the pollution.
He is unable to predict when these violent movements in his arm will occur. The jerking movements are there virtually all the time and occur every day.
The plaintiff said that he was troubled by diesel fumes from trucks, exhaust fumes, cigarette smoke, bushfire smoke, and perfume. He also recounted an occasion at the dentist when he was given an injection prior to dental work and he started to shake violently.
Before mid 1996 he had never had tiredness, lethargy or this jerking of the hand.
The plaintiff was taken to the photographs which became Exhibit 4. He identified the building in photograph number 2 as the building in which he worked. He identified that building as being building number 7 on Exhibit 1 and being the OTSG (Once Through Steam Generator Switch Room). He said that it was not number 8 on the plan (as he had previously said) but number 7.
The evidence of the plaintiff was somewhat confusing as to these photographs. It was said that they were taken in August or September of 1996. In relation to photograph 4.3 the plaintiff said:
"I work one all day nearly in that condition, another control panel which is part of this switch control room. I work in that condition."
In relation to the water on the ground the witness said:
"And this what you see white puddles around – that's practically that one water which run from – she run from – slag granule underneath and run on the road – and run on the road and this is – that white puddles that's practically warm water and you'll see … ."
This appears to be a reference to Exhibit 4.4, a photograph which was taken around about building number 7 on Exhibit 1.
I have noted that the plaintiff said that he has not worked since this incident. The plaintiff said that he had intended to work until age 70. He said that his arms and his back were in good order. He said that he now had strength in his hands and some of his energy had returned, but his strength is now different.
The plaintiff said that he had no trouble doing any part of the work that he had previously done.
He says he gets two or three hours sleep at the maximum and now sleeps in a separate bedroom from his wife. He said that the reason for this is that when he gets sick he breathes too fast and is restless in bed and this disturbs his wife's sleep.
He can walk to the park some 600 or 700 metres from his house. He does not mow his lawns because he cannot stand the smell of the lawnmower smoke and it is hard to push and he gets tired easily. He employs a contractor to do this work.
The plaintiff did not believe that he could work again as an electrician. He did not think that he could work full-time at all.
Under cross-examination the plaintiff acknowledged that his work took him away a lot. However he reached a point where he decided not to travel so much so as to be with his wife and children who were then growing up. He built a house in Collie.
In 1989 he worked for Asset Services so as to be with his family and have a quieter and a more steady life. He agreed that his wife was keen for him to stay at home.
He agreed that he finished with Asset and decided to work away. His wife did not like that, but she understood. He went to work at the KNS with her approval. It was suggested to him that that would cause some tension but he denied this. He denied that being stressful was an aspect of his life. He was also asked whether or not the fact that his daughters were soon to be married in 1997 was causing him financial worries. He said that that was not the case.
In cross-examination the plaintiff was taken through the process at the KNS. He agreed that he was told to take the respirator that he was given with him. He was asked whether at the induction process he was told that he would smell sulphur dioxide and he again repeated that he was told that a smell like rotten eggs, but nothing else, was mentioned. He does not remember sulphur dioxide being mentioned.
He said that he smelt sulphuric acid at the site. He knew what this smelt like from his experience as an electrician.
The plaintiff was cross-examined as to where he worked in the KNS. He said that for five weeks he worked in the building marked 7 being the OTSG. He said that he had made a mistake when he referred to building number 8.
The plaintiff was taken to the events of 26 July 1996 and the following exchange occurred:
"So I have told you what a stack inversion is and so nobody said to you there is a stack inversion on the 26^th, you just looked out there, was what? Mist? – That's when I work, when I walk out in 3 o'clock for afternoon tea, I see mist covered all site was covered.
All the site? – All the site.
All the area of the site that you could see? – That's correct. From the left and right, where you looked was like that.
What did you see? Steam, did you say? – Like a cloud.
Cloud? – White cloud, that's what I see. At that time I know it was just like white cloud, nothing more.
What effect did that white cloud have on you? – I just go for afternoon tea and have an afternoon tea and it don't affect me at all at that time.
No effect at all, and you didn't notice that at all when you were working in the room that you were working in on the 26^th? – Not on the 26^th, I don't feel nothing.
And you noticed that at 3 o'clock? – I said when I walk out for afternoon tea at 3 o'clock I see that white cloud, that's all.
The answer to my question is yes, you saw it at 3 o'clock and did you see it after 3 o'clock? – Yes, I have seen 5 o'clock when I back to work – when was finished practically 5 o'clock to go home, then I step on door of switch room, I see that white cloud falling completely down on the ground and in that room that I said where we are working, number 7, was completely covered with that white cloud.
It was in the room? – In the room, outside the room, everywhere it was that – I can't describe no way – but what I think.
But it had no effect on you? – Not at that moment, I don't feel nothing much."

The plaintiff also said that on the 26^th there had been a power failure. He said that there was no work, there was no noise and nothing worked.
The plaintiff was then cross-examined as to the progression of his symptoms and the following exchange occurred:
"These matters may not seem important to you, Mr Koljibabic, but they are important so you accept what I say to you that you started in fact to feel that something was wrong on the evening of the 28^th? Yes? – I can dispute that, anyway, because what I said now is exactly how I feel, step-by-step but if you put like that, I can't change that now anyway.
On the evening of the 28^th you didn't have any dinner? – No.
Because you weren't feeling well? – No, don't feel well. That is correct.
In fact you didn't eat any breakfast on the 29^th? – No, I just go out there to sit practically with people and I remember I go try to drink warm water; I think will be better.
All you had on the 29^th is a cup of warm water? – That's correct.
So you had no dinner on the 28^th; you had no breakfast on the 29^th? – That's correct.
You weren't feeling well? – That's correct.
All you had drink – all you had to consume is a cup of warm water? – I think that will something help me, or something like that at least.
… By the time you went to the nurse at 3 o'clock on the 29^th you had not had dinner the night before; you had not had breakfast; you had not eaten anything? – That's correct.
Except you had had a glass of warm water? – That's correct, I don't feel – I was completely crushed, practically, completely crushed when I go to see the sister as well."
He confirmed that Dr Clarke in Kalgoorlie had diagnosed him with the flu and he had been given antibiotics.
On his return to Perth the plaintiff had seen a Dr Bajrovic. He said that he told the doctor what had happened on 29 July but not what had happened on 26 July.
He was subsequently seen by Dr Low and he agreed that he had told Dr Low that he had a tight chest and had reflux and felt like vomiting. He agreed that he was told by Dr Low that there was nothing wrong with him. He said "He reassured but he was wrong".
He also agreed that he said that he had seen Dr Pritchard, a respiratory specialist. He had sent him for tests which were normal. He agreed that Dr Pritchard had told him that he was hyperventilating.
He agreed that he had told Dr Pritchard that during the period that he had been working at the site he had seen steam with a sulphur smell coming from a bath across the road. He said that that was the granule bath. He said that he did not tell the doctor that it was only mildly irritating. He said:
"I don't know what I said to him but that was irritation, from what I mentioned to you before, like sulphuric acid mist and you sometimes can't breathe how heavy ease."
When questioned about hyperventilation he agreed that he hyperventilated and that that makes him dizzy and that he gets stars in his eyes and he starts to shake. He was then asked whether or not that was a consequence of hyperventilating and he said that he could not follow.
He confirmed that Dr Pritchard had told him that there was nothing wrong with his lungs and that nothing that he had been exposed to at the smelter had caused any of the problems that he had.
He agreed that it was around about August-September 1996 that the trembling in his hand commenced.
When questioned as to whether he had been told that there was nothing wrong with him, he accepted that he had been told by every doctor that he had seen at this early stage that that was the case. Particular reference was made to Drs Low, Clarke, Bajrovic and Pritchard. The plaintiff responded that he did not accept it because:
"I had been sick and that's – I look for help and I tell Dr Pritchard how I remember – 'Can you help me by any way?' He said 'No, I can't help you'."
The plaintiff also agreed that a Dr Galton-Fenzi had told him that there had been no damage to his lungs. He also agreed that he had seen Dr Bremner, a respiratory physician, who also told him that he did not suffer any lung disease.
He also saw a Mr D'Castro and that the plaintiff had told him that he did not accept that his symptoms were caused by a psychiatric problem. He said "Today I think that still stand, I got injury of lungs".
The plaintiff also saw a Dr Stevenson at the request of his solicitors and that Dr Stevenson had also told him that tests had shown that he had normal lung function.
The plaintiff was questioned about research that he carried out himself at the medical library. It was put to him that that is when he found out about multiple chemical sensitivity. He replied that he had never heard of it until he saw Dr Goodheart. Nevertheless he agreed that he had carried out research. As a result it was put to him that in his own mind he was convinced that he was suffering from multiple chemical sensitivity. He said:
"I got – I don't know exactly termination (sic) or described that multiple chemical sensitivity, but if I am exposed, say, for cigarette, I react; if I am exposed to perfume, I react; if I bushfire, I am reacting. I don't know, that's all that – what it mean with multiple I don't know exactly."
The plaintiff was taken again to the photographs, Exhibit 4. It was suggested to him that there were pipes running under the ground and that what could be seen in the photographs was in fact steam. The passage of evidence is as follows:
"Nobody explained to you that there were pipes running under this ground? – Under this road or something like that?
With hot water, yes? – No, what I see here, that's exactly what I saw there.
Right, okay. All right, we will deal with that. You understood that was just steam, what you are seeing there is steam? – What I seen, what call together, that was …
Water and steam? – … steam; water and steam, that's it.
Yes, okay. All right, and if you look at photo number 3 … can I put it to you that that's just that – that's right, yes, thank you, that photo. That's just that same sort of steam? – Exactly same. Same water is all over road. That was running hot water, this hot water from – and there was steam everywhere. That's what I'm saying. (indistinct) or something like that. I don't know how to say it."
The plaintiff was cross-examined about his ability to work and a number of job applications were put to him. It was suggested to him that he felt that he could do the work for which he had applied. However, it became clear from re‑examination that he had not worked in the positions for which he had applied and he was not experienced in those jobs and the applications had been made at the suggestion of his solicitor.
With regard to the plaintiff's intention to work to age 70 under cross‑examination the plaintiff said that he had an A‑grade electrical licence. He was experienced and that means that he did not have to pull cables or dig ditches. He could work in the easier jobs which do not demand something physical.

Leslie Graeme Nixon

Mr Nixon is a project manager employed by Downer Engineering EDI Power Pty Ltd, a successor to RM Lees Pty Ltd. When employed by RM Lees he worked at the KNS. He had worked there on more than one occasion. On the last occasion he worked at the KNS between about 1992 and 1998.
Mr Nixon said that in that period an upgrade of various parts of the plant was being undertaken, including the building of the new sulphuric acid plant which I have described. He also described flume vents being installed near the converter aisle.
During the course of his evidence he described the induction that workers went through for the purposes of working at the site and the personal protection equipment (PPE) provided by Ralph M Lees. He described a hard hat, safety glasses, gloves and a gas mask which was worn on the belt. He said that instructions as to the use of the gas mask were given at toolbox meetings. The masks were to be worn at all times on the belt and if there was a gas leak or a gas cloud they were to be "donned as soon as possible, but and/or run into and across the wind away from a cloud".
He said that these instructions were given to all employees on the site. However he never saw the electricians (which would include the plaintiff) working with the mask on.
Mr Nixon said that electricians were not provided with any monitors. Further, in 1966 there was no audible alarm system operating at the plant. These comments in relation to monitors and alarms flowed on from his evidence about what to do should there be a gas leak or a gas cloud.
Mr Nixon was taken to the period June and July 1996 and in particular the air quality at the site at that time. He said:
"It was like – like a sulphur taste, sulphur smell, burnt the back of your throat, at times took your breath away. I think to describe it as more as a sulphur type smell and taste – well, not having tasted sulphur, but I would've thought that the sulphur smell from coal burning type stuff is – there was the taste of it."
He also went on to say:
"There was a rotten egg gas smell too, but I don't know what created that. The more prevalent one was the sulphur‑type smell because it seemed to be there all the time, at times more than others."
He further went on to say:
"There was always a smell there; a filthy plant to work in at all time, in particular areas, not the whole …"
When he was asked where the smells came from in June and July 1996 he said, in his opinion, that it originated from the tapping area of the furnaces. He also said on the earlier occasion that he worked at the KNS, in 1972‑73, that the smell on the tapping floor would engulf the switch room which was on the same floor and engulf the men working there. He said that later when he worked at the plant the same type of gas was around and came periodically in a cloud that would move "like a steam cloud".
Mr Nixon thought that there was probably more than one source of these emissions because the smell was not just in one part of the plant but would appear in various parts of the job at any time.
With regard to the cloud or the smell he was asked whether there would be any warning of its coming and he said there would not be. He said there were no alarms.
Mr Nixon said that in mid 1996 a number of men were affected by the gas and attended the first aid post. He said that once you got away from the area and got "some decent air" one could recover fairly quickly.
By reference to Exhibit 1 Mr Nixon said that the gas cloud came from an area on the west side of the furnace building opposite the OTSG in building number 7. He said that the west side of the furnace building at that point was not sheeted.
Mr Nixon was asked questions about the stack to the east of the furnace building and shown as number 12 on Exhibit 1. He was asked questions about the effectiveness of the stack when the wind was not blowing and he said "it [the gases] was over the site everywhere". He said that this would occur three or four times a month and it was in the form of a gas steam cloud type which would come down and settle. Sometimes it would be there most of the day. He said he was not sure where that cloud came from, whether it was the chimney or the furnace building area.
When asked about the effect of the gas he said:
"All of us were subject to the gas clouds: burning in the back of your throat; take your breath away. It was almost an impossibility to – when the cloud appeared suddenly, it was almost an impossibility to get the gas mask out of your bumbag on your belt onto your face. The first thing you did was run across the cloud to try to get away from it, and if you couldn't, you would put the gas mask on first, but it was very, very hard to do."
He said that it used to sting your eyes but not to the point where one could not see.
Under cross-examination Mr Nixon agreed that fumes were emitted during the tapping process in the furnace building and that was the sulphur dioxide smell.
In describing the furnace building he said it was open at both ends. It was put to him that the east side was a solid wall and he agreed, save for gaps on the north-east end and south-east end.
Mr Nixon was taken to the events of 26 July 1996. He described there being a steam cloud on that day which "affected quite a few guys". He said "I call it a steam cloud but it was like steam but the sulphur SO² cloud". He said that it had more of a sulphur smell than normal.
Mr Nixon said that it came from the area opposite to building number 7 on Exhibit 1, but he could not be sure precisely where.
When questioned about the effect that this had upon him he said that he would have to clear his throat and it burns the back of the throat and takes your breath away. He said it might take two hours to come good.
He was asked:
"I take it that you were on that plant for some time and you went through plumes like that from time to time? – It was one of the hazards of working on that job. It was a terrible place to work."
As to the events of 26 July Mr Nixon was asked whether other people went to the nurse on that date and he said there would have been three or four or half a dozen.

Stuart David Evans

In 1996 Mr Evans was employed by WMC Resources Ltd as "group adviser, occupational safety and health". As part of that work he visited the KNS.
On 23 September 1996 Mr Evans produced a report (Report on Review of Sulphur Dioxide (SO²) Exposures at Kalgoorlie Nickel Smelter). This became Exhibit 9A.
In his official capacity he was asked what his knowledge was of the presence of sulphur dioxide in the atmosphere at KNS. He said:
"My understanding is that there was certainly evidence that there was SO² present in the atmosphere at the Kalgoorlie nickel smelter whereas I think I state in my report that it was my belief that prior to the three months leading up to the fuming incidents the exposures would have been in compliance with the legislation, that they would have been below the time waited average for SO²."
He was taken specifically to the period July, August and September (1996) and asked whether there were any monitors available for the workers. He said that there were monitors in the nickel smelter sometime prior to 1993, but they did not prove to be reliable in the tough conditions that existed and were switched off. They were not working. There were no physical alarms for the workers.
Mr Evans was asked about exposure to SO² and said:
"The SO² levels would not go from nothing to extreme immediately. They would build up, and so people would – again, as I mentioned in the report, the effect of SO² on the body is that wherever it meets moisture, either in your throat or maybe in the corner of your eyes, you would get some reaction. The SO² would react with moisture and form an acid, so you would start to get the sensation of that and that would give you some indication that SO² levels were in the atmosphere."
One of the attachments to his report was a report from a Mr Hussey entitled "Preliminary Findings of Suspected Fuming Report at Kalgoorlie Nickel Smelter Tuesday, 3 September 1996".
At par 15 of that report it is said:
"No compliance regarding warning of STEL being approached, limited monitoring performed, only on request by workers and only readily available on day shift (weekdays)."
Mr Evans said that STEL is an acronym for "short term exposure limit". He said that occupational hygiene exposure standards are set in two stages: one is called the time waited average that estimates what an average would be for the exposure of a person during an eight hour working shift; and the other, the STEL is a measure of an exposure during a 15 minute period and the intention of that is to account for any acute effects that may arise from being exposed to a particular substance, in this case SO².
Mr Evans said that the effects of exposure to SO² had been known at the KNS for a long period of time prior to the commissioning of the plant.
In cross-examination Mr Evans confirmed that his report had been prepared in response to issues that had occurred in July, August and September of 1996 on the tapping floor and in connection with the acid plant that was then being constructed. He confirmed that the objective of the report was to determine the events and contributing factors resulting in recent increases in SO² exposure to those persons undertaking the tapping operations (in the furnace building).
He confirmed that in all cases the report was relevant to operations in the furnace building. He confirmed that the report had nothing to do with SO² emissions or issues outside of the furnace building. He said that was not within its scope.
With regard to exposure to SO² it was put to him that exposure caused an irritation but as soon as that irritation was felt if a person moved into the fresh air the irritation ceased. He confirmed that that was the case. Further, he confirmed that any instances of exceeding the TWA or STEL on the tapping floor were matters of respiratory irritation only (emphasis added).
In relation to the escape of SO² he confirmed that gases will, as a principle of physics, seek to find equilibrium so they will automatically dilute and disperse once they reach a greater area. He described it as an "inverse square law". He said that the concentration reduces by a factor of four.
Under re-examination Mr Evans confirmed that the furnace building was open at both ends so that if the wind was blowing in a certain direction it would be reasonable to assume that any SO² would come out of the end of the building and would move in the direction that he indicated. However, he did say that it would be likely to move and swirl.
Further under re-examination Mr Evans was asked about extraction hoods in the furnace building. He said that there were hoods above each of the tapping points, but that due to the hood being blocked with material or having holes in it not all of the air was going through the extraction point and air would leak into the system. That would make the ducting less efficient. He also said it would increase the likelihood of SO² getting into the workplace and the "prevailing winds will do with it as they will". He confirmed that a person working outside of the furnace building in a confined control room would be exposed to SO².

Wade Fry

Mr Fry is also an electrician who worked at the KNS at the same time as the plaintiff. He described the switch room where the plaintiff worked as building number 7 on Exhibit 1. He also described where he worked which was anywhere between 200 metres and 500 metres from where the plaintiff worked. It was in an area which he described as the rail load out. It appears to be upon the opposite side of the railway lines to the south of where the plaintiff worked and close to an area which is shown on Exhibit 1 by two 10,000 acid storage tanks.
He also discussed induction procedures and said that he was told of sulphur and other gases in the area and that the important thing was to carry a respirator at all times. He said that he had been exposed to sulphur on occasions and said that it was two or three times a week in some part of the process. He said:
"… the wind is not blowing at all, or blowing the wrong way, gas could be present. You wouldn't know it's coming. The first thing you know is you fairly can't breathe, your eyes are stinging and you can smell – you know, your nose stings as well."
He also described being exposed to sulphur dioxide two or three times a week when he walked from where he worked towards the acid plant oxidisation control room shown as number 1 on Exhibit 1.
Mr Fry confirmed that he did not have a monitor or alarm to warn of the onset of sulphur dioxide, nor was he able to anticipate its arrival. On its arrival he said that:
"You can't breathe, your eyes sting, your nose burns and you've got to put your respirator on and more or less maybe move somewhere and just hope the wind's going to change and it's going to go away."

He said it would take a couple of seconds or three seconds to get the mask on.
In describing the area where the plaintiff worked being building number 7 on Exhibit 1 he said that that was probably 20 or 30 metres from the furnace building.
He said:
"If you were to look in the converter aisle, where all the action's happening, there is a lot of fumes, a lot of smoke, a lot of different smells and when they're tapping you know, when the molten nickel is coming out, there's smoke, there's all sorts of different smells in the air."
He confirmed that he was talking about the smelter in the furnace building. He was further asked:
"So as I understand what you are saying, if you were in the furnace building …? – That's almost like a constant thing, but the – but even outside, you know like, when you know, there is different smells with, you know, not just the sulphur gas; you can smell different other smells as well."
Mr Fry was again asked about the effects of sulphur dioxide in the following terms:
"Yes, all right. And just this – finally, what you have described as some occasions when you would smell the sulphur, or smell something, and did you say that there was a burning – what, a burning sensation in your throat, was it? – You can't breathe. It's just like your lungs are getting turned inside out. You know, it is a fairly bad sort of feeling. If you get a lot of this, you know, it's like a gas in one sort of hit. It's really bad. You can't breathe. You think, 'What am I going to do?' It's almost like you – you know, you could almost panic, you know?
But with you on these occasions you simply coughed? – I put my – yeah, you cough a bit and put your mask on and think, 'I'll walk around the corner here or whatever, and try and get out of the road'."
Mr Fry was also asked whether or not he was told to check or change the cartridges in the mask and he said he could not remember being told. Under re‑examination he said that he never changed his filter and he did not think any of the other people that he worked with even took theirs out.
When asked about the effects of the gas the following exchange occurred with counsel:
"You said it made you feel like your lungs were turning, I think you said, inside out. What sort of sensation was that? Can you describe it for us a little bit further? – It's almost like you can't breathe.
And was that associated with any pain? – Not really, not pain as such. It's almost – it's a little bit more panic than pain. When you can't breathe you start to – you know, you start to think, 'What's going on? What can I do?'
Yes, and in terms of pain, was there any in relation to your nose and your eyes? – First you could smell – little bit of tingling sensation, burning sensation in your nose and your eyes at the time."

Neil Alexander North

Mr North is an industrial chemist. In September 1996 he was contracted to do some work at the KNS in respect of fugitive SO² emissions inside the furnace building. By fugitive fumes he meant fumes which do not go up the stack with the bulk of the SO².
The project was in two parts, firstly, to measure the conditions inside, what he called, the tap building and, secondly, to take measurements to determine or work out what would happen to the SO² after it left the building. He said that the area with which he was concerned was the furnace building and the tapping areas and converters within it. He took wind speed and temperature readings around the building at regular intervals. He said:
"The taking of these measurements did on occasions cause me to walk into areas where there was very noticeable sulphur dioxide in the air but we did not take any specific measurements of SO² levels outside the building."
He said that the experience was on the eyes and nose and he described it as a burning sensation. When asked how it was he became aware he was exposed he said that he was familiar with the effects of sulphur dioxide from his years as a chemist.
He described those effects as "burn – in my case, it is irritation of the eyes, nose and the throat, stinging sensation, burning sensation at higher levels and a very noticeable odour of sulphur dioxide, it has a peculiar smell or a distinctive smell".
Mr North described the furnace building as having openings at the ends and ventilation shafts and holes in the roof to allow fumes to escape.
He described the operation which he called a converter roll-out and said that when this occurred a huge cloud of gas with dust "used to roll up into the top of the building with very – generating very high levels of SO² here and then mostly escaped through these vent holes outside".
When asked what the converter rollout was he said:
"It's part of the operation to convert the nickel sulphides into – I think it was nickel, may have been nickel oxide but they are treated in the furnace first, slag is taken off in one way, the product is taken off into another and goes to the converters. There is another operation in the converters which also produces large quantities of SO²."
Mr North was asked whether he was given any information in respect to the source of emissions and he said:
"Yes. It was general information, that they suspected that the emissions were being generated from the tapping of the furnaces, either to release product or to remove slag from the furnaces, and that the additional source was the converter rollouts, where the product was being treated subsequent to the furnaces."
He went on to say that the fumes suspected were sulphur dioxide.
When asked about the areas of SO² leakage he said:
"… we certainly determined it inside the tap room, which is, as you have just mentioned in those areas which was tapping of the product, tapping of the slag and converter roll outs. Walking around the plant in the normal course of duties, we identified two other areas which tended to be prone to SO². That was around the base of the emissions stack, and also in the area around the slag disposal at the end of the tap room building."
When asked to identify that area he identified a general area to the north of the furnace converter. When asked to give a radius of distance he said:
"It was very dependent on what the wind speed and wind direction were. It would carry maybe 20 metres away quite easily under the right, or perhaps the wrong conditions, but it was just around this area, and obviously the way it went would depend on the wind conditions, although in general the winds out here during our study were mostly sort of westerly, but not every day."
Mr North discussed ways of dealing with chemical exposures. The first was not possible, that is to say to remove the chemical causing the problem. Two other solutions, namely engineering controls and personal protective equipment were considered. Mr North said that the ventilation systems in the plant were not capturing sufficient of the fumes. He said there was too much fugitive fumes occurring and it was these releases of fugitive fumes which were causing the high – intermittent, but very high, levels of sulphur dioxide being experienced.
Mr North was taken to his report being a study of worker exposure to sulphur dioxide dated 23 November 1996 (Exhibit 12). In that report there are references to a number of measurements taken. Mr North confirmed that those measurements were taken inside the furnace building and not outside. He said he was not asked to take measurements outside. He noted that the STEL limits inside the furnace building were regularly exceeded.
In that report there is a section called "Slag Area". In the report he said:
"The function of the slag area is to transfer slag from the furnaces to the two holding pots where it is subsequently sent to waste."
He said in evidence that those holding pots were outside the building. He observed or experienced emissions from the process of the transfer.
He also referred to launder drains, there being two of them. The slag passes into these launders. The second launder did not have a seal over the top or an extraction system. He was of the view that that was the main or one of the main sources of emissions in the slag area.
On 23 October 1996 in the morning when the wind was weak he noticed very high levels of SO² in the launder areas. Even when the wind picked up during the day the levels were still high. He said that that indicated there was a real problem in that area and that ventilation needed to be improved. However, he again indicated that the measurements were all done inside the building.
In his report Mr North refers to the varying effects experienced by individuals. In evidence he said that some people can tolerate SO² at much higher levels while other people find them objectionable at extremely low levels. He said:
"The danger there in some cases is that people become so tolerant to them, it can reach a level where they die without them even realising anything's wrong and some gases are particularly notorious for that; SO² is not as bad as some others. But, yes, basically you become conditioned to it. The other reaction is that some people once they're exposed to a chemical in the air they then become conditioned, the other way, so that any subsequent exposure to it can cause a much worse reaction than what you would normally expect."
He went on to say that this was well known in the industry and applied to all airborne contaminants, not just sulphur dioxide.
In that report under his general conclusions Mr North noted:
"Some objective criteria is required as a warning system for workers when SO² levels is such that masks are required."
He said in evidence that they needed to have something that they can wear to tell them that they are experiencing high levels rather than relying upon them saying "Look, this smells terrible; I better put the mask on".
He went on to speak about the wind carrying fugitive SO² fumes and said that depending upon the level the general effect was that it affects the eyes, nose, throat, lungs if it gets too high.
Mr North's examination-in-chief finished with the following exchange:
"And, Mr North, if an emission from the slag area in the form of a cloud moved into the area – straight into the area of where a worker was stationed in a control room 6 metres by 4 metres over a period of hours in the course of the day, what effect do you understand that this would have on him? – He would probably not get any warning whatsoever until he got hit by the fumes because that was the nature of the fume release from this particular plant. What effect it would have on him would depend on the duration, the peak, his own sensitivities – I really can't answer the question in detail."
Under cross-examination Mr North said that the pots referred to in the slag area were just outside the building and not under the roof of the building.
Mr North agreed that no measurements were done outside of the furnace building and the only evidence of the impact was the physical reaction as you walked around the building. He said that you could smell sulphur dioxide within 20 metres of the north end of the building at the times when the launders were running to reduce the slag. Once that stopped the wind eventually carried it away and you could not smell anything or very little. He agreed that the odour that could be smelt was well below exposure standards.
He also agreed that wind blowing would diffuse the concentration of sulphur dioxide.
When asked whether or not he could make any conclusions as to the concentration of sulphur dioxide outside the furnace building 50 or 30 metres away he said that the only conclusion that he could make from his work there was that sulphur dioxide was escaping from the building at a level which was above threshold limits. In re-examination he said that the threshold limit was the limit at which the average person can smell a substance in the air. He described it as being called the "lower detection limits". He acknowledged it was a fairly vague concept because it varied from person to person but said:
"Generally speaking if that amount is in the air, people will say, 'I can smell something here; it's not pleasant', or 'I can smell something'."
In re-examination Mr North was asked about the diffusion formula. He said that dispersion rates would depend upon the density of the gas. He said that dense gases would tend to settle downwards. He said that SO² is much denser than air and so it tends to settle downwards. He said that if there is moisture in the air then one starts to see sulphurous acid which is even denser still and it tends to keep it down to the ground rather than spreading out evenly. He said that temperature was another factor as hot air rises and cold air sinks.

Barry John Elliot

Mr Elliot was called by the defendant. He is a process engineer attached to the KNS. He has a Bachelor of Science in chemical engineering, science and biochemistry, Bachelor of Engineering in chemical engineering and Masters in pyrometallurgy. He was technology manager at the KNS from 1993 until 2005.
Mr Elliot gave an overview of the smelter process. He said that it was a flash smelting process:
"The technology involves the oxidation, the smelting, of a concentrate in suspension within the reaction zone of the furnace and hence the name flash smelting. The smelter comprises two major operations. There's the flash furnace and the secondary unit operations is the converting process. So very briefly, the flash furnace produces a – what is referred to as a low grade nickel matte where the concentrate is upgraded from 12 to 14 per cent to 45 to 50 per cent nickel and that material is then transferred to the converters where a similar oxidation process occurs and that further upgrades the low grade matte to a high grade matte which contains approximately 65 per cent nickel. That material is granulated from the converters and that granular product is the final product from the smelter."
As part of that process Mr Elliot noted that slag is produced and transported to the northern end of the furnace building. The matte can be extracted along the length of the furnace and moved towards the south end of the building for granulation.
Mr Elliot described the granulation process as one whereby the matte runs down a launder, comes into contact with high pressure water jets and it is the action of that jet that granulates the matte into fine particles. They are then collected within a settling pit.
The slag comes out at the northern end. Again this goes through a granulation process at the north end of the building. In 1996 there were two facilities being a slag granulation and a slag haulage system. The slag granulator was not under the roof of the furnace building. It faced in a westerly direction.
Mr Elliot said that whilst this process was taking place it was possible to smell fumes. He said that in the slag granulation process "from the process again there is a small amount of SO² that is emitted from the liquid stream, the slag stream, and when the slag contacts the high pressure water there is steam emitted from the contact. The water within the granulation pit is also boiling directly below the granulation head and is hot, close to boiling, and in much of the pit, so steam would be emitted from the granulation pit". He said that the pit was not covered.
Mr Elliot said the water comes into contact with the slag and overflows into drains and the drains then feed it back into the cooling ponds which are on the other side of the railway. Some of the drain is covered where it crosses the road.
Mr Elliot said that steam was emitted through the slag granulation operation.
Mr Elliot was taken to the photographs, Exhibit 4. As to photograph number 1 he identified that that showed the main furnace building. He said that the aqueous material on the road may have been condensation from the steam accumulated on the road in that area.
He said that the gaseous material in the photograph appeared to be emanating from the drains that cross the road which he had previously described and looked like steam. He said that he had observed that phenomena quite often and every time a granulator is operating there is steam to a greater or lesser extent.
He later again confirmed that the phenomenon seen in the photograph was steam and went on to say that he could not recall it having a particular odour. He said that sulphur dioxide can be smelt above a certain level, but he said that it was more prevalent on the upper floors of the furnace building.
In that furnace building he said that the source of emissions of SO² are from slide tapping, matte tapping and ladles. He said those areas have collection points or that fume is "doctored" either through a stack at the northern end of the building or a stack at the southern end of the building.
Under cross-examination Mr Elliot said that he did not recall any industrial issues involving the exposure of workers to sulphur dioxide in 1996. He was not aware of anybody complaining of it. He agreed that outside of the furnace building one could find some fume and could smell it.
In cross-examination he was taken to the incident involving the plaintiff on 26 July 1996. He said he was not aware of that incident. He was not aware of a significant cloud of sulphur dioxide affecting a number of people on that day.
He was taken to the issue of monitoring and it was put to him that monitoring was a critical issue for the employer and he agreed that it was. He agreed that that was for the health and safety of workers. He agreed that monitoring was critical for the need to know what people were exposed to.
It was put to Mr Elliot that the plaintiff was working in an area being building number 7 on Exhibit 1 and being the OTSG. It was put to him that directly across the road from that area was the slag area and he agreed. He agreed that above the slag area was the tapping area. He agreed that the flooring on the tapping area was grated. It was mesh grating and not a solid floor.
A question was put to him in the following form:
"Yes. And so if there was any – if there was any – sorry, and there is emanating from that building, right, on any view there is – and from the slag area and in particular – just get this – the launder, so there is emanating from the slag area, the tapping area and the launder, sulphur dioxide? – Some, yes.
Sorry? – Some.
Some. Well, you argue about how much there is. That is directly over the road from where Mr Koljibabic was working? – That's right."

Kevin Allan Morrison

Mr Morrison was called by the defence.
In about September 1993 he commenced work at the KNS as a senior occupational hygienist responsible for occupation hygiene. Within that occupation he developed induction materials so far as occupational hygiene and hazards in the workplace were concerned. That material was used in the induction program at the KNS.
A smaller version of Exhibit 1 being the plan of the KNS was tendered as Exhibit 8. Mr Morrison said that that plan was developed by him and was displayed around all common meeting areas at the site and crib rooms and in the induction room. It was used for inductions. That plan visually displayed what PPE requirements were required across the site.
Mr Morrison said that when he arrived at the plant in late 1993 there was monitoring of chemicals or gas at the plant. It involved the monitoring of sulphur dioxide gas even though that was not required by the "contam process".
He said that the monitoring was effected by a combination of diffusion tube samples. He said that these were devices that were carried on the person.
The only form of monitoring that was in place when he arrived at the site was in respect of sulphur dioxide. He commissioned a Lindy Nield to do a study of occupational exposure to sulphur dioxide within the furnace building. The report that she prepared which subsequently became Exhibit 14 related solely to emissions in the furnace building.

Obvious difficulties arise where there are competing schools of medical thought and opinion whether such a condition in fact exists. If a responsible body of medical opinion is divided on such an issue, then it becomes almost impossible for a tribunal exercising a jurisprudential role to determine such an issue. It is tempting in those circumstances to revert to the onus of proof and dispose of the issue by the simple expedient of saying that the plaintiff has not proved his case.
That would not be appropriate in the present case given the extent of evidence led and the way in which the plaintiff has been managed by his medical practitioners over the years. Some other way to resolve the issue needs to be found.
Given the nature of the evidence from these opposing camps as to whether MCS in fact exists I am unable to make a finding of fact in those terms.
However, in my view it is sufficient for me to deal with this aspect by considering the raft of symptoms experienced by the plaintiff and make findings in relation to those symptoms, without attaching a composite label to them.
As I have noted elsewhere in these reasons there is no challenge to the plaintiff's credibility and there was little (if any) challenge to his description of the symptoms that he continues to experience. These symptoms comprise the arm tremor and movements described by him and as recorded by many of the doctors, for example, Dr Silbert. In addition the plaintiff complained of a variety of symptoms which are comprehensively set out in the report of Dr Joyce dated 11 April 2002. That report also set out the putative stimuli for the symptoms.
I find, without hesitation, that the plaintiff does suffer from the arm tremor and violent arm movements described with the associated audible intake of breath. This has been a feature noted by all of the medical practitioners and was evident as the plaintiff gave his evidence. In respect of this disorder I accept the evidence of Dr Silbert and find that it is non‑organic and arises from psychological or psychiatric causes. When Dr Silbert's opinion was put to the other doctors involved in this case there was little or no disagreement and a large measure of agreement. As to the other symptoms I find the plaintiff does suffer with such symptoms. I am unable to find that they all occurred at the same time but do occur from time to time but at a frequency and to a degree that I am not able to determine on the evidence.
As to the stimuli for such symptoms, again I am unable to make any definitive finding. Professor Joyce explained in his evidence that the stimuli described appeared, on the plaintiff's history, to produce practically identical illness and symptomatology. As I have remarked, he noted that different poisons have their own manifestation. I accept that he was there speaking of toxins but it does demonstrate the problem of identifying one stimuli with one or more symptoms.
So in answer to the question whether the plaintiff suffers MCS, I am unable to make a finding. However I do find as above that the plaintiff does suffer a raft of symptoms, but I cannot make any definitive finding of what stimulus triggers any particular symptom. The arm movement, which was observed also while the plaintiff was giving his evidence did not appear to be triggered by anything in the courtroom such as fumes or polluted air or anything other than, as noted, it appeared to be worse when he was tired. No physiological reason has been found for these symptoms and I find that the arm movement and other symptoms are psychologically based.
All of this leads me to the finding that the plaintiff has not suffered a physical injury as a result of exposure at the KNS.
I move on to the plaintiff's psychological or psychiatric condition. Dr Somers' evidence was that the plaintiff had some anxiety secondary to his injury and that is "a genuine physical injury". She went on to say that over the time that she had seen him she did not consider that he had a psychiatric condition.
I do not accept Dr Somers' view of the plaintiff in this regard. It downplays this aspect of the plaintiff's condition and is in direct conflict with the other medical evidence.
Dr Donohoe also suggested that there was no anxiety disorder when he saw the plaintiff, again in conflict with the other medical evidence.
Dr Harper thought the plaintiff had a level of anxiety and Dr Goodheart described it as a "significant component of anxiety".
Dr Proud described the plaintiff's condition as an adjustment disorder with anxiety which was chronic. At most he described it as an adjustment disorder with depressed and anxious features, chronic and moderate severity according to DSM-IV-TR criteria.
Dr Shub characterised the condition as a panic disorder associated with some phobic avoidance features but not depressive.
Dr Bremner saw a component of anxiety as did Dr Silbert.
Professor Joyce thought that the plaintiff's symptoms were explicable psychologically. Dr Loblay also opined an anxiety disorder of a secondary nature.
Dr McCarthy said that the plaintiff had a chronic adjustment disorder. He went on to describe it as "mild symptoms of anxiety and depression with a degree of phobic anxiety". I will come to his further diagnosis of hypochondriasis later.
I find that the plaintiff is suffering an anxiety disorder and probably with depression and this is of a chronic nature. I am satisfied that the condition exists on the preponderance of the evidence. I am further satisfied and find that this disorder is of not an unsubstantial degree and prefer the evidence of Dr McCarthy in this regard. I also accept and find that he has an adjustment disorder as described by Dr McCarthy.
I reach this conclusion as there is a continuing record of anxiety at one level or another throughout the reports and over a long period of time prior to Dr McCarthy first seeing the plaintiff on 11 November 2004.
Further, the plaintiff pleads both an adjustment disorder or chronic anxiety and the case was opened on this basis.
Two further issues arise from this finding; whether that disorder arises secondary to physical injury or independent of any such injury or whether, as opined by Dr McCarthy it is properly described as hypochondriasis.
Having made the finding that the plaintiff did not suffer a physical injury at work it could not be said that the psychological or psychiatric disabilities were secondary to a physical injury incurred by the plaintiff in July 1996.
Whether these disorders arise separately and if so whether they are caused by the work carried on by the plaintiff and the workplace and what occurred there between 31 May 1996 and 30 July 1996 (see par 9 of the statement of claim) needs to be dealt with alongside the defendant's submission that the plaintiff falsely attributes his condition to an incident at work and that he suffers hypochondriasis.
Dr Somers did not accept that the plaintiff was falsely attributing his symptoms to his work incident nor that he was suffering hypochondriasis. She believed that he was injured at work.
The plaintiff accepted that a number of the doctors seen by him had told him there was nothing wrong with him but he did not accept that advice. Specifically, Dr Pritchard had told him that there was nothing wrong with his lungs. This was also the evidence of Dr Bremner.
Dr Proud accepted that the plaintiff's symptoms are more likely explicable on the basis of illness conviction and it was self-perpetuating. However, he disagreed that it was hypochondriasis.
Dr Shub said that some persons who have a perception that they have been exposed to some toxic substance may go on to develop a panic disorder or anxiety state. Professor Joyce also subscribed to the same view and felt that the belief would be reasonable at the moment of acute illness but not after the passage of time and the medical assessments that the plaintiff, in this case, had received.
Dr Loblay also ascribed feeling anxious to the person's belief about what had caused the symptoms. However, he did not think that the plaintiff's belief that he had been poisoned was reasonable because he had not been poisoned – it was not rational and he had been reassured.
Dr McCarthy said that one could not predict the development of a psychiatric disorder such as the plaintiff's under the circumstances he described. His view was that the plaintiff had developed a neurotic hypochondriacal phobic belief about chemicals contributed to by an unrealistic fear of chemicals – the mistaken belief that he had been injured physically by a chemical.
Dr McCarthy did not think that the plaintiff's employment was the cause of his condition but the advice he had received from selected sources and his desire to accept that advice.
The doctor described the plaintiff's condition as:
"… Initially it's disease conviction; the incorrigibility of the belief; seeking reassurance yet rejecting reassurance. That's the pathogenesis of the hypochondriacal disorders."
Having found that the plaintiff's psychological disorders are not secondary to a physical injury I find that they are independent. Notwithstanding that the plaintiff had been advised that there was nothing physically wrong with him, and there is no evidence to suggest to the contrary, the plaintiff has gone on to develop this psychiatric disorder. The question is why. There is no doubt that some of the advice that he has received is to the effect that he has been exposed to toxic substances and suffered "neurotoxic" injuries. I find that this is the probable cause for the psychiatric disorder. I accept that the plaintiff was at some stage unwell and on the balance of probability has accepted these opinions given to him as being the cause of his condition.
However, I am unable to accept that his psychiatric condition is caused by his employment or workplace. He has accepted this alternative advice as an explanation for his condition and ignored all of the other advice that he has received that there is nothing wrong with him.
That is an illness conviction that he has and in view of my findings that he has suffered no physical injury, it is a false attribution of such illness. Whether it goes as far as hypochondriasis as opined by Dr McCarthy is another matter. However, it would appear to fit the description of an "incorrigibility of the belief" and further borne out by the plaintiff's failure to undergo treatment in respect of his psychiatric disorder.

The legal principles

In this case the defendant does not contend that it did not owe the plaintiff a duty of care and such a concession is, in my opinion, rightly made given the circumstances of the plaintiff's work at the plant irrespective of whether he was employed by the defendant or not. What this case comes down to is the content of the duty and whether or not there has been a breach of it.
In Road & Traffic Authority of New South Wales v Dederer [2007] HCA 42 at [18] Gummow J, in dealing with the legal principles relevant to negligence said:
"These principles may be re‑stated shortly. First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, the duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt."
In Rothwell v Chemical & Insulating Co Ltd (sub nom Pleural Plaques' Case) [2007] 3 WLR 876, when dealing with the development of pleural plaques arising out of asbestos exposure, Lord Hoffmann reminded that proof of damage is an essential element of a claim in negligence. In that case His Lordship at 2 said that:
"… symptomless plaques are not compensatable damage, Neither do the risk of future illness or anxiety about the possibility of that risk materialising amount to damage for the purposes of creating a cause of action, although the law allows both to be taken into account in computing the loss suffered by someone who has actually suffered some compensatable physical injury and therefore has a cause of action."
He went on to note:
"In the absence of such compensatable injury, however, there is no cause of action under which damages may be claimed and therefore no computation of loss in which the risk and anxiety may be taken into account."
He continued:
"The right to protection against psychiatric illness is limited and does not extend to an illness which would be suffered only by an unusually vulnerable person because of apprehension that he may suffer a tortious injury. The risk of the future disease is not actionable and neither is a psychiatric illness caused by contemplation of that risk."
Returning to the duty of care, in Dederer, Gummow J at 49 noted that while duties of care may vary in content or scope they are all discharged by the exercise of reasonable care.
The seminal cases in this area, for example, Wyong Shire Council v Shirt (1980) 146 CLR 40, all deal with the question of breach of duty of care by considering whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff and if so, what a reasonable man would do by way of response to the risk. That involves a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.
In Wyong Shire Council v Shirt it was noted that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. "A risk which is not far-fetched or fanciful is real and therefore foreseeable". This is so even though the risk is unlikely to occur.
In the circumstances of the present case it is not necessary for me to go further than to highlight those basic principles of negligence. The reason for this is that I have found that the plaintiff has not suffered a physical injury by reason of the matters complained of in the statement of claim. It is true that in the circumstances that prevail at the KNS there was a foreseeability that someone might be injured by way of exposure to noxious or toxic fumes. That that was foreseeable is borne out by the fact that face masks were provided to the workers and investigations had been conducted in relation to the exposure at the site and in particular within the furnace building to these chemicals.
However, the mere fact that there is a risk is not sufficient. As noted in the Pleural Plaques' case at 7 a claim in tort based on negligence is incomplete without proof of damage. In this sense that is the abstract concept of being worse off physically or economically so that compensation is an appropriate remedy. And at 8, that the injury must not be trivial.
As noted in that case at 2 it is not the risk that is actionable but it is the damage arising from the manifestation of that risk.
In the present case I have found that there was no toxic exposure of the plaintiff leading to any physical injury. Accordingly in the sense of damage being physical damage sustained by the plaintiff there has been no breach of duty.
The legal analysis cannot end there. I have found that the plaintiff does suffer a raft of symptoms which have a psychological basis. In addition, the plaintiff has a psychiatric disorder.
As I have noted, in the Pleural Plaques' case Lord Hoffmann noted that the risk of future illness or anxiety about the possibility of the risk materialising did not amount to damage for the purposes of creating a cause of action. In that case and in CRS Ltd & Anor v Della Maddalena [2006] HCA 1 the psychiatric damage was one where the plaintiff had an anxiety about the possibility of the risk of physical injury materialising where the plaintiff had been exposed to asbestos. That is not the position in the present case. In the present case the psychiatric illness is not an anxiety of a physical injury manifesting itself, but arises from a belief that a physical illness has in fact occurred.
The question that then arises is whether or not that is foreseeable, that is whether it was far-fetched or fanciful.
I have already found that the psychiatric illness sustained by the plaintiff was not caused by the employment or the workplace, but by the advice that he had received and accepted from other sources and contrary to other advice received by him that there was nothing wrong with him. Accordingly it is not a case where he was suffering from a psychiatric injury causing incapacity by reason of his reaction to something to which he was exposed at work whether it be a noxious or toxic substance or merely the smell of sulphur. If it were established that the psychiatric injury was because of his reaction to that sort of exposure one would then have to consider the question of foreseeability. However, in view of my findings of fact namely that the plaintiff has an illness conviction which is a false attribution of his symptoms to his work place questions of foreseeability do not arise. As was noted in Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44 at 33:
"The central inquiry remains whether, in all the circumstances, the risk of a plaintiff … sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful."
In that case it was noted that some recognisable psychiatric illnesses may be triggered by stress. At 35 the Court said:
"The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable."
The evidence which I have outlined from the expert medical witnesses suggests that this damage could not have been foreseen, that is that the plaintiff feels unwell due to the erroneous belief that he has been poisoned by the defendant. As to this see the evidence of Drs Proud and McCarthy.
Further, for the plaintiff to recover damages it must be shown that such damages he has suffered was caused by the breach of duty on the part of the defendant. I have referred earlier in these reasons to issues of causation and in particular what was said by Deane J in March v E & MH Stramare Pty Ltd. On the facts as I have found them to be the cause of the plaintiff's psychiatric disorder is the diagnoses given by various doctors to him and contrary to other medical evidence given to him and not caused by anything in the employment or the workplace.
In the circumstances the defendant was not in breach of any duty of care owed to the plaintiff and in the circumstances the plaintiff's case must fail.
The plaintiff also based his claim upon the Mines Safety and Inspection Act 1994 and regulations made under that Act. The allegations of breach of the Act are set out in par 12.1 and 12.2 of the statement of claim and mirror the allegations of breach of duty of care in par 11 of the statement of claim.
The breaches of regulations are set out in par 13 of the statement of claim.
In view of my findings in relation to the claim in negligence I am not satisfied that at the material time the defendant was relevantly in breach of the Act nor that any such breach is causative of the plaintiff's conditions for the reasons I have expressed.
Similarly as to the breach of the regulations I am not satisfied that the plaintiff did relevantly breach the regulations as alleged in any way material to the plaintiff. Even if there were any such breaches from time to time of those regulations they were not causative of the plaintiff's condition for the reasons I have expressed.

Accordingly, the plaintiff's claim for breach of statutory duty must also fail.

Provisional assessment of damages

In this matter, subject to liability, the parties agreed all aspects of damage save for general damages for pain, suffering and loss of amenities. I do not propose to list the various heads of damage as they are set out in an agreed schedule filed at the Court and dated 14 May 2008. Suffice it to say that including sums to be repaid to the worker's compensation insurer, those agreed damages amount to $1,117,066.85.
Notwithstanding my findings on liability it is necessary for me to consider damages and make a provisional assessment in respect of general damages.
The plaintiff is now 65 years old. He was 53 at the time of the accident.
On any view of the evidence he was clearly a hard working man. He was also fit and well throughout the period prior to his accident save for periods when he had sustained what can only be described as minor injuries.
Not only was he a good worker but he was industrious in other fields as I have noted elsewhere in these reasons.
If I am wrong on my assessment of causation and the plaintiff's current disabilities do indeed arise from exposure to chemicals at the workplace then his quality of life has certainly deteriorated quite substantially.
He has not worked since the incident of which he complains. He has a noticeable tremor in his right arm which I have described. To him it seems to scare people and is embarrassing to him. He cannot predict his hand movements.
He is restricted in driving a motor vehicle and he is troubled by a variety of triggers which could only be described as normal incidents of life.
He has tiredness and lethargy and enjoys minimal sleep. He now sleeps in a separate bedroom from his wife.
His walking is restricted and his activities around the house such as his ability to mow his lawns are restricted.
Apart from these aspects of his life, it seems obvious that the plaintiff enjoyed his work and, it is accepted by the defence that he would have worked until age 70. The plaintiff has lost the enjoyment of the ability to work.
Taking into account all of these matters and the way in which they impact upon his life I am of the view that had he been successful on liability the plaintiff would have been entitled to an award of damages in respect of general damages in the order of $100,000.

Conclusion

The plaintiff's claim should be dismissed and I will hear counsel on appropriate orders.