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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Koljibabic v BHP Billiton Nickel West Pty Ltd

Details

AGLC: Koljibabic v BHP Billiton Nickel West Pty Ltd [2008] WADC 165
Case: [2008] WADC 165
Decision Date: 7 NOVEMBER 2008

CaseChat Overview and Summary

In the case of Koljibabic v BHP Billiton Nickel West Pty Ltd, the plaintiff sought compensation for damages allegedly caused by exposure to chemicals from the defendant's mining operations. The plaintiff claimed that the defendant's negligence in handling and releasing chemicals led to the development of multiple chemical sensitivity (MCS), a condition which impaired the plaintiff's ability to work and enjoy life. The matter was heard in the Federal Court of Australia.

The court had to determine whether the plaintiff's condition was caused by the defendant's breach of statutory duty under the Occupational Health and Safety legislation and whether the plaintiff could prove causation between the alleged exposure and the development of MCS. The court also needed to consider the specific circumstances of this case to determine whether the plaintiff's condition could be attributed to the defendant's negligence.

The court found that the defendant had indeed breached their statutory duty by failing to properly manage the risks associated with chemical exposure at the mining site. However, in assessing causation, the court held that the plaintiff could not prove that the defendant's actions directly caused the development of MCS. The court determined that the plaintiff's condition was not solely attributable to the defendant's negligence, as there were other contributing factors. As a result, the plaintiff's claim was dismissed.

The Federal Court ruled that the defendant was not liable for the plaintiff's damages. The plaintiff's claim for compensation was dismissed, and no orders were made in favour of the plaintiff. The court's decision highlights the importance of establishing a direct causal link between the defendant's actions and the plaintiff's injuries in cases involving complex medical conditions.

Orders