Koljibabic v BHP Billiton Nickel West Pty Ltd
[2011] WASCA 87
•7 APRIL 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KOLJIBABIC -v- BHP BILLITON NICKEL WEST PTY LTD [2011] WASCA 87
CORAM: PULLIN JA
BUSS JA
NEWNES JA
HEARD: 17 & 18 NOVEMBER 2010
DELIVERED : 7 APRIL 2011
FILE NO/S: CACV 117 of 2008
BETWEEN: SLOBODAN KOLJIBABIC
Appellant
AND
BHP BILLITON NICKEL WEST PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :KEEN DCJ
Citation :KOLJIBABIC -v- BHP BILLITON NICKEL WEST PTY LTD [2008] WADC 165
File No :CIV 1602 of 2002
Catchwords:
Negligence - Personal injury - Appellant suffering from psychiatric illness - Alleged that respondent negligently exposed appellant to unsafe level of noxious gas at work - Psychiatric illness alleged to be a consequence of physical effects of exposure - Whether appellant exposed to unsafe level of noxious gas - Whether other medical explanations for psychiatric illness - Whether reasons of primary judge adequate - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr B W Walker SC & Mr B L Nugawela & Mr G E Nairn
Respondent: Mr G R Donaldson SC
Solicitors:
Appellant: Macdonald Rudder
Respondent: Clayton Utz
Case(s) referred to in judgment(s):
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Koljibabic v BHP Billiton Nickel West Pty Ltd [2008] WADC 165
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16
PULLIN JA: I agree with Newnes JA.
BUSS JA: I agree with Newnes JA.
NEWNES JA: This is an appeal from a decision of Keen DCJ in the District Court dismissing the appellant's claim for damages for personal injury alleged to have been caused by exposure to noxious gases while he was working at the respondent's Kalgoorlie nickel smelter (the smelter) in July 1996: Koljibabic v BHP Billiton Nickel West Pty Ltd [2008] WADC 165.
At trial, the appellant contended that the respondent breached its duty of care by exposing him to noxious gases, causing him to suffer from a condition described as multiple chemical sensitivity (which produced symptoms of adverse reactions to even low levels of chemicals of an everyday nature) and a psychiatric disorder, or alternatively a psychiatric disorder as the sequelae of the multiple chemical sensitivity. He alleged that, in particular, he was exposed to noxious gases on the afternoon of 26 July 1996 when a cloud of gas covered the smelter.
The primary judge found that the cloud on 26 July 1996 had been a cloud of steam arising from a slag granulation process and rejected the appellant's contention that he had been exposed to noxious gases. His Honour concluded that the appellant had not suffered any physical injury and that while he suffered from a psychiatric disorder, it was not caused by his employment or workplace but by the appellant's mistaken belief that he had suffered physical injury from exposure to noxious gases.
His Honour held there had been no breach of duty by the respondent and dismissed the appellant's claim. The appellant appeals against that decision.
Background
The appellant was 53 years old at the time of the alleged exposure to noxious gases at the smelter. He was born in Yugoslavia and came to Australia in 1968 at the age of 25. Following his arrival in Australia he commenced work as an electrician and obtained formal qualifications for that trade. It was not in issue that from the time of his arrival until the time of the alleged incident the appellant had a good work record and enjoyed good health.
Between 31 May 1996 and 30 July 1996, the appellant worked at the smelter where he was employed as an electrician by Ralph M Lee, a contractor to the respondent.
It is necessary, before turning to the relevant events, to outline the salient features of the smelter. The smelting process occurs in the furnace building which is positioned in a north‑south orientation on the site. It is a rectangular four storey building which was largely (but not completely) enclosed on the sides, and open at the ends. It contains the flash furnace and the converter. On the eastern side there is a large chimney stack. Most of those who worked in the furnace building worked on the tapping floor, which was the top floor.
The processes were described in evidence by an engineer, Mr Elliott, who was employed at the smelter. In summary, nickel concentrate ore from mine sites is received at the smelter where it is transferred to the flash furnace. There it is separated in molten form into two components, matte and slag, by a process called tapping. That causes the matte to collect in the bottom of the material. The matte contains the nickel and consists principally of nickel, iron and sulphur. The slag is formed from the oxidation of the sulphides and is waste material. The matte is tapped into ladles and transferred to the converters. The matte is then taken to the southern end of the furnace building to a matte granulation process. The granulation process involves using high pressure water jets to granulate the material before it is transferred into receiving bins.
The slag from the flash furnace is taken to the northern end of the furnace building where it may either be removed by truck straight away or subjected to a similar granulation process before it is taken away. After the granulation process the slag runs off into launders which are also open. The slag area is open or partly open.
The granulation process produces steam as a result of the water being applied to the molten material. The water used in the slag granulation process is taken from dams located to the west of the furnace building and the control room in which the appellant worked at the relevant time. The water is carried to and from that process by underground drains which pass across the road separating the furnace building and the control room, near the control room. In various places along their length the drains are covered by grates, from which steam from the hot water may be emitted. Steam is also emitted by the slag granulation process itself.
Sulphur dioxide (SO2) is produced in the smelting, tapping and granulation processes. Most of the SO2 is ducted through the large chimney stack situated on the eastern side of the furnace building. Emissions of SO2 also occur within the furnace building. The high temperature of the gas causes it to rise to the roof space where there are vents for it to escape.
In evidence it emerged that a situation known as a 'stack inversion' could occur when, due to climatic conditions, the material coming out of the chimney stack did not blow away but accumulated and fell to the ground. In that case, SO2 escaping from the furnace would drop down onto the plant and respirators would then be required for workers in the vicinity [223] ‑ [224].
The control room in which the appellant worked was located to the west of the northern end of the furnace building (where the slag granulator was located), and was 20 ‑ 30 m away from the furnace building [816]. The appellant had worked there for about 400 hours up to 30 July 1996.
According to the account he gave in evidence, at about 3.00 pm on 26 July 1996 the appellant left the control room for afternoon tea. He noticed the smelter had stopped operating and observed what he described as 'mist … just like a white cloud' (ts 119), covering the site about five feet off the ground. He said he did not smell anything (ts 57) and it did not affect him at the time (ts 119). After returning to the control room from afternoon tea the appellant worked until 5.00 pm. When he left the control room at 5.00 pm to go home the white cloud was down to the ground and covering the control room.
The appellant said the following day, 27 July, he felt a bit dizzy and weak but he worked the full day. The day after, 28 July, he felt a bit more dizzy and weak but again he worked the full day (ts 249). The appellant said that on the evening of 28 July he started to feel something was wrong with him. He did not have any dinner because he was feeling unwell. The following morning, 29 July, he did not have breakfast because he felt unwell and had only a cup of warm water, which he thought might help him. He sat in the control room but was unable to work because he felt ill. At about 3.30 pm he went to see the nurse at the first aid station on site. He described his symptoms to the nurse, Ms Dennis, as 'dizzy, feeling vomiting, spinning, sparkling star[s] in front of eyes' (ts 59). He was given an inhaler and some medication but he said neither did any good.
The appellant returned to work the next day, 30 July, but felt dizzy and after lying down for a period he was taken back to his accommodation in Kalgoorlie at about 10.00 am or 11.00 am. He returned to work on 1 August but had the same symptoms and was taken to a Dr Clarke in Kalgoorlie. He told Dr Clarke that he felt like vomiting, he was dizzy, his head was spinning and he had stars in front of his eyes. Dr Clarke prescribed antibiotics and told him that there was a lot of flu going around Kalgoorlie and he probably had the flu. The appellant did not accept that diagnosis.
The appellant returned to Perth and, on 5 August 1996, he consulted his own general practitioner in Perth. He was sent for a chest x‑ray and given a certificate that he was unfit for work for 10 days. The following day, 6 August, he saw his employer's doctor, Dr Low. The appellant told Dr Low that he was suffering from a tight chest and reflux and suggested to Dr Low that he had probably been exposed to chemicals at the smelter. After examining the appellant, Dr Low told him there was nothing wrong with him (ts 134). Shortly afterwards, the appellant was referred to a respiratory physician, Dr Pritchard, who, after having had a number of tests carried out, informed the appellant that he was simply hyperventilating (ts 135).
The appellant saw an occupational physician, Dr Galton‑Fenzi, in August and September 1996. It was at about this time he began to experience a trembling movement in his right arm. Dr Galton‑Fenzi told the appellant that he did not have any damage to his lungs. The appellant subsequently saw another respiratory physician, Dr Bremner, who expressed the same view (ts 207). The appellant remained unconvinced that there was nothing physically wrong with him.
On 20 October 1996, the appellant saw a psychiatrist, Dr Shub, who concluded that his symptoms, including his right arm movement, were psychological in origin.
Over the following months the appellant saw a number of other medical practitioners, including a neurologist, Dr Silbert, and a physician, Dr Stevenson, but remained dissatisfied with their diagnoses that he was not suffering from any physical illness (ts 222).
In about February or March 1997, the appellant went to a university medical library to carry out his own research (ts 220). In conducting that research the appellant was concerned to find out whether there was any connection between his symptoms and exposure to SO2 (ts 220 ‑ 221).
In about May 1997, the appellant saw another general practitioner, Dr Somers, who referred him to a neurologist, Dr Goodheart. Dr Goodheart diagnosed multiple chemical sensitivity (ts 223). The appellant has remained under Dr Somers' care since that time.
At trial, the appellant gave evidence that his breathing and strength had improved somewhat since 1996 but otherwise his condition was the same as it was after he left the smelter (ts 69). He is lethargic, has unpredictable jerking movements in his right arm, and he is troubled by the smell of diesel fumes, petrol, perfume, cigarette smoke and smoke from fires (ts 71, 74 ‑ 75). At the time of the trial he had what the primary judge described as 'a quite noticeable tremor in his right arm which progresses to throwing his arm in the air at times' [83].
The case at trial
In his statement of claim, as particularised, the appellant pleaded that while working at the smelter he 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 [appellant]' (par 6). He alleged that the most significant exposure was on 26 July 1996 but prior to that date he was exposed to levels which did not produce immediate reaction.
The appellant alleged that the gases were emitted from various places at the smelter including from the chimney stack of the smelter, a bath of liquid at the smelter, a trench carrying liquid from that bath, a pipe near the gas turbine room or from some other unknown location at the smelter (par 7).
The appellant pleaded that the respondent owed a duty to exercise reasonable care to avoid acts or omissions that may cause him injury; a duty to exercise reasonable care to see that he did not suffer injury by reason of any danger at the smelter; and statutory duties under s 9 of the Mines Safety and Inspection Act 1994 (WA) and under reg 9.11 and reg 9.12 of the Mines Safety and Inspection Regulations 1995 (WA). (The statutory duties were not relied upon on the appeal (appeal ts 47 ‑ 48).)
The appellant alleged that by reason of breaches of those duties by the respondent he sustained personal injury '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' (pars 9, 10).
The breaches of duty were alleged to consist, in substance, of a failure to take action to provide the control room with ventilation, to monitor the level of noxious gases emitted from the chimney stacks and at the appellant's workplaces and provide devices warning of unsafe levels, to take action to prevent unsafe levels of noxious gases being emitted at the smelter, and to provide the appellant with breathing apparatus (par 11).
The respondent denied that it was negligent. Relevantly, it said that while he was working at the smelter the appellant may have been exposed to toxicologically negligible levels of SO2, but pleaded that any exposure was not of toxicological significance (par 6, defence). It also denied that the appellant was suffering from a psychiatric illness but said that if he was, it was not a foreseeable consequence of the alleged exposure (par 9).
At trial, the plea in par 9 of the statement of claim as to damage to lung tissue and neurological damage was not pursued by the appellant (ts 30). In opening the case, senior counsel for the appellant put the appellant's claim on three bases: first, the appellant was exposed to noxious gases, causing him to suffer from a condition known as multiple chemical sensitivity; secondly, that the exposure caused him to suffer a psychiatric impairment; and thirdly, that the appellant suffered a psychiatric impairment as a sequelae of the multiple chemical sensitivity (ts 29 ‑ 30). (I should note in passing that at trial the appellant's case was put on the basis that there had been 'significant exposure' to noxious gases (ts 8).)
The basis upon which the appellant's case was run at trial in relation to the timing of the relevant exposure to noxious gases was in issue on the appeal. The primary judge said that it was run on the basis that the exposure which caused the appellant's injuries occurred on 26 July 1996 when he was exposed to a cloud of gas at the smelter [855]. On the appeal it was argued on behalf of the appellant that the case was not run so narrowly. It will be necessary to come back to that.
The findings of the primary judge
As I understand his reasons, the primary judge found that, whilst the appellant was not an employee of the respondent, the respondent nevertheless owed to the appellant a duty to exercise reasonable care to avoid exposing the appellant to the risk of injury from noxious or toxic fumes [907], [915]. (See Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16; Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132 [84]). That finding is not in contention.
The essential issue between the parties, as identified by the primary judge, was whether the cloud on 26 July 1996 carried with it SO2 or some other toxic chemical which had affected the appellant [827]. His Honour noted that the appellant's case had been run on the basis that the relevant exposure had occurred on that occasion [855].
Certain matters of fact were not contested and were accepted by the primary judge. In particular, it was not in dispute that the smelter produced SO2 in the tapping, slag launders, and slag granulation processes. It was also not in dispute that at the material time the appellant was working in a control room approximately 20 ‑ 30 m from the end of the furnace building where the slag granulator was located, and that the control room was not air‑conditioned or ventilated other than by leaving the doors open [816].
In addition, the respondent did not contest, and the primary judge accepted, that the appellant had been an honest and straightforward historian in his dealings with medical practitioners and that he was not a malingerer [8]. It was also not in dispute that the appellant had developed an extreme arm movement and has other symptoms which make it unlikely that he will be capable of working again.
In relation to the events of 26 July 1996, the primary judge found that the appellant saw a steam cloud in the vicinity of the control room at about 3.00 pm or 3.30 pm, when it was about five feet above the ground, and again at 5.00 pm, when it had come down to ground level. His Honour found (and it is not challenged) that there was no 'stack inversion' on 26 July 1996, and accordingly that was not the cause of the cloud seen by the appellant [825].
His Honour noted that the area near the control room was an area where steam was formed as a by‑product of the slag granulation process, but it was also near the open end of the furnace building where there could be what he described as 'fugitive emissions of SO2' from the tapping process in the furnace building or from the slag granulation or laundering processes [827].
Having reviewed the relevant evidence, the primary judge concluded he was not satisfied that the cloud on 26 July 1996 contained any significant amount of toxic gases [830]. His Honour found, based on the medical evidence, that even at a very low dosage, exposure to SO2 will cause irritation to the eyes, nose and throat. He noted that the appellant did not complain of any such symptoms on 26 July 1996 [833]. The primary judge found that if the cloud had contained any significant amount of SO2, when the appellant walked through it at about 3.00 pm and again at 5.00 pm he would have suffered at least some of the symptoms described by the medical witnesses. The primary judge concluded that the cloud did not contain any significant amount of SO2, but was a cloud of steam from the slag granulation process [837 ‑ 838], [848].
His Honour did not accept the appellant's contention that because of the prevalence of SO2 at the smelter the appellant may have become desensitised or conditioned to it so that he would not have experienced such symptoms from an exposure to a significant quantity of SO2 on that day. On that issue, the primary judge accepted that a person who is regularly exposed to an odour or gas may become acclimatised in the sense of getting used to it, but found that at any significant level, that is, a level which would normally result in physical symptoms, exposure to SO2 would still produce those symptoms. His Honour concluded that the appellant was not so conditioned or sensitised so that exposure to SO2 would not produce the symptoms. The primary judge concluded that the cloud of steam on 26 July 1996 did not contain SO2 or any other toxic substance to any significant extent and the appellant did not suffer any physical injury by exposure to that cloud of steam [844] ‑ [849].
His Honour said at [863] that while he was satisfied that the appellant had been exposed to odour at the smelter, he was not satisfied that the appellant had been exposed to noxious gas or gases during the period he was at the smelter which could be said to have caused him an injury. His Honour went on to say he was fortified in that finding by the absence of any evidence that the appellant had suffered any physical injury. He accepted that after 26 July 1996 the appellant had the symptoms he complained of, namely, a feeling of acid and a feeling like he was vomiting, sensations of dizziness, blurring of the eyes and loss of strength. But on the basis of the medical evidence, his Honour found that those symptoms were caused by gastric acid reflux and hyperventilation [869].
The primary judge also accepted that the appellant suffers from an arm tremor and a violent arm movement, but found that these were psychologically based [877], [879].
Turning to the appellant's psychiatric state, the primary judge found on the basis of the medical evidence that the appellant had a chronic anxiety disorder with symptoms of anxiety and depression, with a degree of phobic anxiety [889] ‑ [890]. His Honour found that that had come about, not because of any exposure to SO2, but because of an 'illness conviction' the appellant has: having been unwell, the appellant has accepted advice (and rejected contrary advice) that he suffered 'neurotoxic' injuries from exposure to toxic substances, and the belief that he has suffered such injuries has caused the psychiatric disorders from which he is suffering [904] ‑ [906].
The primary judge considered that in light of his finding that the psychiatric disorders were not caused by exposure to toxic substances at work, it was unnecessary to consider whether such disorders were reasonably foreseeable as a result of such exposure [922]. His Honour went on, however, to say that on the facts of the case the damage could not have been foreseen, arising as it did not from anything that occurred in the workplace, but from the diagnoses given to him by certain doctors and contrary to the medical advice he had received from others [924] ‑ [925].
The primary judge found that there had been no breach of duty by the respondent, as the appellant had not been exposed to any significant, or unsafe, level of SO2 and that his medical condition came about for other reasons. His Honour accordingly held that the appellant's claim had not been made out and dismissed the action.
The grounds of appeal
The grounds of appeal were in substance as follows:
1.His Honour erred in fact in finding in effect ([833], [844], [846] and [847]) that any person exposed to even very low levels of SO2 would necessarily experience irritating eye, nose and throat symptoms, when such a finding was against the weight of the evidence.
2.His Honour erred in law in concluding ([847]) that the appellant was not so conditioned or desensitised so as to be placed in a position where exposure to SO2 would not produce the symptoms described, in that his Honour failed to provide adequate reasons for that finding and there was no evidence to support it.
3.His Honour erred in fact in finding ([848]) that the 26 July 1996 cloud contained no material level of SO2, when such a finding was erroneous and against the weight of the evidence.
4.His Honour erred in fact in finding ([855] ‑ [863]) in effect that the appellant had not proven that the workplace exposure to SO2 had caused or materially contributed to the appellant's symptoms, when such a finding was against the weight of the evidence.
5.His Honour erred in fact in finding ([864] and [880]) that the appellant had no physical injury as a result of SO2 exposure at the smelter, when such a finding was against the weight of the evidence and was erroneous, and erred in law in failing to give adequate reasons for his finding that there was no evidence of any physical injury.
Disposition of the appeal
On the hearing of the appeal, the appellant's case appeared to be put on a somewhat different basis to the basis it had been put at trial, and in a way that is not entirely reflected in the grounds of appeal. The allegation at trial that the appellant had suffered physical injury by what was described as multiple chemical sensitivity was not pursued. The debate at trial as to whether multiple chemical sensitivity was a recognised medical condition therefore fell away. It was inherent in the way in which the case was put on the appeal that the appellant contended that his current symptoms are a result of a psychiatric disorder which was caused by his reaction to his exposure to SO2.
As senior counsel for the appellant put the case on appeal, it was necessary for the appellant to show, among other things, that it was reasonably foreseeable that a person could suffer a physical injury in the form of nausea, dizziness, acid in the stomach and fatigue from exposure to SO2 and, as a consequence of suffering that injury, develop an anxiety which caused a psychiatric disorder. What then was in issue was whether, as a result of exposure to SO2 at the smelter, the appellant had suffered such a physical injury in the period immediately following 26 July 1996 and whether that in turn had led to the psychiatric disorder from which he now suffers (appeal ts 79 ‑ 80, 83). In that context I should mention that the case on appeal was expressly put on the basis that the psychiatric disorder alleged by the appellant was a consequence of the physical injury which he suffered by reason of the exposure to SO2 (appeal ts 36 ‑ 37, 80). Senior counsel for the appellant disavowed any case based on psychiatric injury alone (appeal ts 86 ‑ 87).
Senior counsel for the appellant acknowledged, however, that in order to establish a breach of duty on the part of the respondent it was not enough that the appellant simply had an idiosyncratic response to the odour of SO2 (which, it was accepted, is a commonly occurring gas), but the appellant had to show that his exposure to SO2 had been at a level which was not consistent with reasonable care on the respondent's part (appeal ts 93, 172); that is, as I understand it, at a level which it is foreseeable could cause injury. It was submitted that a level was not consistent with reasonable care if people's eyes were stinging and the evidence of Mr Nixon established that that level was exceeded in this case (appeal ts 173).
On behalf of the appellant, it was conceded that if it were found that the symptoms from which the appellant suffered in the days following 26 July 1996 were not caused by exposure to SO2, the appellant's claim must fail (appeal ts 86). But the appellant contended, in substance, that the finding of the primary judge that those symptoms were not caused by exposure to SO2 was against the weight of the evidence. The appellant attacked, in particular, the finding of the primary judge that the cloud on 26 July 1996 did not contain SO2 but was a cloud of steam, and the finding that the appellant could not have been so conditioned or desensitised to SO2 that he would not have had an immediate physical reaction to the cloud if it had contained any material level of SO2.
I should mention in that context that the appellant disputed the statement of the primary judge [855] that the appellant's case had been run at trial on the basis that the relevant exposure had been by way of the cloud on 26 July 1996. Senior counsel for the appellant said that the appellant relied upon his exposure over his whole time at the smelter. He acknowledged, however, that the 26 July 1996 incident was the only incident referred to in the evidence and was the most significant exposure (appeal ts 30 ‑ 31, 61). He also acknowledged that the appellant had not previously challenged the statement that the case was conducted on the basis that the relevant exposure was on 26 July 1996. Further, I understood senior counsel for the appellant effectively to concede that the appellant cannot succeed unless he establishes that he was exposed to a material level of SO2 in the cloud on 26 July 1996 (appeal ts 61). In any event, for reasons I will come to I do not think that in the end anything turns on the point.
It is also important to mention, before considering the evidence, that whilst the level of SO2 to which the appellant was exposed was a critical issue in the case, there was no analysis available of SO2 levels in the area in which the appellant worked, either prior to or at the time of the alleged exposure. The only monitoring of gas levels had been conducted inside the furnace building. Any conclusion as to the level of SO2 in the area of the control room therefore had to be deduced from other evidence.
Finally, before turning to the specific matters in issue, it is appropriate to note that this appeal is by way of a rehearing based on the evidence before the primary judge. It is therefore necessary to bear in mind the limitations inherent in a rehearing on the basis of the written record, where the appellate court does not always have the advantage of matters such as the 'feeling' of the case or considerations which may not be adequately reflected in 'cold type': Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23]. The appellant must demonstrate error on the part of the trial judge: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [14].
Was the appellant exposed to any significant level of SO2?
The respondent contended, in essence, that if the appellant had been exposed to any material, or significant, level of SO2 he would have exhibited symptoms of eye, nose and throat irritation which, it said, always accompanies such exposure. There was no evidence that he had ever had those symptoms and his evidence was that the cloud on 26 July 1996 had no effect on him. It followed that he had not been exposed to any material, or significant, level of SO2.
It was the appellant's case that exposure to SO2 did not necessarily cause such symptoms and that such symptoms may be absent because a person had become conditioned or desensitised to SO2.
The relevant findings of the primary judge were as follows:
All of the medical evidence suggests that exposure to SO2 even at very low dosage will cause irritation to the eyes, nose and throat. I am able to find as a fact that that is the case and it is consistent with nearly all of the medical evidence in this case.
…
Having regard to all of the relevant evidence I am prepared to accept that a person who is regularly exposed to an odour or gas may become acclimatised in the sense of getting used to it but the preponderance of evidence is that if that gas is SO2 then it not only has a low odour threshold so that it would be noticeable even if there was that acclimatisation, but at any significant level it would still produce the symptoms described.
Accordingly, I find that any exposure to a significant level of SO2, that is a level which would normally result in physical symptoms, would not be affected by conditioning, desensitising or acclimatisation. I find that the plaintiff was not so conditioned or sensitised nor had he become acclimatised so as to be placed in a position where exposure to SO2 would not produce those symptoms described [833], [846] ‑ [847].
Contrary to the submission of senior counsel for the appellant, I do not understand his Honour to have accepted that a person can become desensitised or conditioned in the sense contended for by the appellant. When his Honour's reasons at [840] ‑ [847] are read as a whole, I think it is clear that his Honour meant that a person may become used to a persistent odour so that it no longer bothers them, not that they become insensitive to the extent that when exposed to any significant level of SO2 they do not experience the symptoms of irritation to the eyes, nose and throat described in the medical evidence. Nor do I accept the submission on behalf of the appellant (appeal ts 45) that all of the medical witnesses apart from Dr Loblay accepted that a person can become desensitised or conditioned (or as it was sometimes expressed, suffer 'olfactory fatigue') in relation to SO2. In fact, the question was not explored in any detail in the medical evidence.
It is necessary to turn to the relevant evidence. At trial, a number of expert medical witnesses were called by each side. The principal medical experts relevant to this issue called by the appellant were Dr Donohoe, a general practitioner and Dr Harper, an occupational physician. The appellant's general practitioner, Dr Somers, was also called by the appellant and gave expert evidence. The respondent called, among others, Professor Joyce, a pharmacologist and toxicologist; Dr Bremner, a respiratory physician; and Dr Loblay, an immunologist.
It is convenient to start with the evidence of Professor Joyce. Professor Joyce is a consultant pharmacologist and toxicologist and is associate professor of pharmacology at the University of Western Australia. In a written report dated 11 April 2002, Professor Joyce said:
Sulphur dioxide is a highly irritating gas and significant exposure is always accompanied by eye irritation, nose irritation, throat irritation and coughing. These symptoms are self limiting in nature and resolve entirely without sequelae, unless the exposure has been so great that serious inflammation of lung and other tissue occurs. In that situation, the accumulation of fluid in the lungs and other metabolic derangements can lead to death. This syndrome of acute, severe poisoning does not occur in the absence of evidence for irritation of eyes, nose and throat. There is no known syndrome of chronic debility consequent on recurrent inhalational exposure to sulphur dioxide at concentrations insufficient to cause irritation of eyes, nose and throat.
Professor Joyce was not cross‑examined on those statements. He was, however, asked at what concentrations SO2 would be likely to cause irritation of the eyes, nose and throat and he said that it was detectable at 'low' concentrations, perhaps one or two parts per million (ppm) (ts 1181).
In the same report (page 19), Professor Joyce said in response to questions put to him by the respondent's solicitors:
[The appellant] did not experience symptoms of significant SO2 (sulphur dioxide) toxicity whilst on the site at the smelter. His current symptomatology is not a toxicological consequence of SO2 exposure.
…
[The appellant's] symptoms are not a consequence of any acute or chronic toxic effects of any identifiable poisons. Some of [the appellant's] symptoms are adequately explained by hyperventilation, which has been confirmed by testing. He says that he can now control the hyperventilation and that the breathlessness is no longer a problem. Current symptoms are consistent with anxiety and somatisation disorder. … His bizarre paroxysms of arm movements, head movements and voice are of psychogenic origin.
Professor Joyce concluded (page 15) that the symptoms experienced by the appellant in the period following 26 July 1996 had other explanations. He considered that the taste of acid in the throat was explained by acid reflux. Dizziness, spots before the eyes, breathlessness, discomfort in the chest and prostration could well be explained by hyperventilation. Professor Joyce considered that the acute weakness complained of by the appellant did not have an explanation in any physical disease.
In his oral evidence, Professor Joyce said that the appellant's history did not suggest the acute illness that commonly accompanies exposure to SO2, and his subsequent condition did not bear any resemblance to any disorder which has ever been described to follow from exposure to SO2 (ts 1172).
Professor Joyce acknowledged in cross‑examination that if the appellant's only symptoms had been shortness of breath, dizziness and nausea it was a reasonable possibility that they had been caused by exposure to SO2, as exposure to any unpleasant smell can produce symptomatology of that nature (ts 1191). He said that anyone working in a smelly environment may feel like that (ts 1193). But Professor Joyce said that spots in front of the eyes is not something which is caused by exposure to SO2 (ts 1193). He was not asked whether a person could become conditioned or desensitised to SO2 and did not comment on it.
Dr Donohoe is a general practitioner who practises in environmental medicine. He agreed with Professor Joyce that SO2 is a highly irritating gas and that significant exposure is always accompanied by eye, nose and throat irritation and coughing, and that in the absence of such symptoms there has not been 'a toxicologically significant exposure' to SO2 (ts 1050). Dr Donohoe also agreed that, apart from asthma, there was no known syndrome of chronic debility consequent on recurrent inhalation exposure to SO2 at concentrations insufficient to cause such symptoms (ts 1050 ‑ 1051). He agreed with Professor Joyce's view that the appellant did not experience symptoms of significant SO2 toxicity whilst at the smelter and that his current symptomatology was not a toxicological consequence of SO2 exposure (ts 1056).
Dr Donohoe said in evidence that he would expect acute symptoms if a person's exposure was on only one occasion to a high level of sulphur dioxide but if exposed to 'something more progressively neurotoxic' the person may not experience symptoms for some hours, possibly not until the next morning (ts 998). Dr Donohoe said in relation to hydrogen disulphide that olfactory desensitisation may occur when levels rise slowly (ts 1051), but he was not asked, and did not comment, on whether conditioning or desensitisation could occur in relation to SO2.
Dr Somers is a general practitioner. She diagnosed the appellant as suffering from multiple chemical sensitivity resulting from exposure to sulphuric acid, sulphur dioxide and other gases at the smelter (exhibit 6.11). When asked in examination‑in‑chief if there was any reason why if he had been exposed to a cloud of SO2 on 26 July 2006 the appellant might not have experienced immediate symptoms of the type described by Professor Joyce, Dr Somers said:
The way I would see it is that he had a low‑dose exposure over the time that he was [at the smelter] and he possibly had some description of a phenomenon where people fatigue in their sensation when they have been exposed over a long time or ‑ and he had a bigger exposure to whatever was in that plume and then became unwell. He may not have sensed any more than usual and his sensation may have been blunted at that time on the 26th due to his longstanding exposure.
So that his senses are fatigued. Is that your expression? ‑‑‑ Well, that's my understanding, that that can happen.
Yes. Have you seen that occur in other patients? ‑‑‑ I've certainly seen people who do have a lot of low dose exposure, no more than the rest of the working population, and not particularly unwell but then after one event become unwell, and whether they have been slowly sensitised because they are predisposed in some way or another, I don't know, but that picture does happen (ts 468 ‑ 469).
When the passage in the evidence of Professor Joyce which is set out above at [60] was put to her for comment, Dr Somers appears to have been somewhat diffident, referring to her 'limited knowledge' and pointing out that she was not a toxicologist. Dr Somers went on to say that she had no basis to disagree with what Professor Joyce had said, apart from the last sentence. But even in relation to that last sentence I understood Dr Somers ultimately to accept she did not have the expertise to refute it (ts 499 ‑ 501).
Dr Harper is an occupational physician. In relation to cases of chemical exposure he said his involvement has been as an epidemiologist, not as a toxicologist as that was an area in which he had no training (ts 153). In a report dated 6 November 2003 (exhibit 6.2), Dr Harper set out his conclusions in relation to the appellant's medical condition as follows:
(a)Exposure. I feel there is sufficient evidence to accept that [the appellant] was subjected to chemicals in the course of his work during a number of days preceding and following the onset of symptoms. I feel there is agreement that [sulphur] compounds were included in his exposure. This is consistent with the processes which were taking place on site and consistent with his history. Photographs substantiate spillage in the area where he was working. The long hours of work and the reported lack of ventilation in the control room are supportive of the existence of his exposure. The unknowns are what additional chemical exposure occurred beyond [sulphur] dioxide and [sulphuric] acid and to which chemical mixtures was he exposed.
(b)Temporality. The onset of symptoms was contemporaneous with the alleged exposure. His initial symptoms had not occurred previously.
(c)Severity of symptoms. The initial symptoms were disabling and progressive. They were consistent with toxic chemical exposure affecting several body systems. Symptoms were neurological, respiratory, gastrointestinal and constitutional. Theses symptoms were consistent with exposure to a neurotoxic agent, as well as an irritant.
(d)Prior health. It is notable that [the appellant] reports completely normal health up until this time and he presents himself as a man who is conscientious and of integrity. The illness which developed in July 1996 represents a sudden and dramatic change in his health status.
(e)Chronicity. Symptoms which developed at the time of exposure have continued without interruption over the ensuing 7 years.
(f)Medical investigations. Medical investigations have not identified a medical diagnosis to explain his condition beyond a work‑related cause.
In his oral evidence, Dr Harper said he had drawn the inference that the appellant's symptoms were due to chemical exposure from the facts that the appellant was well before the exposure, he had a fairly quick onset of symptoms from the time of exposure, and there was no alternative medical diagnosis which he considered explained the full spectrum of his condition (ts 549). Dr Harper agreed that he was unaware of any epidemiological studies linking SO2 with the symptoms from which the appellant suffers (ts 556). He said that he would not be able to predict that a person who was exposed to SO2 would suffer the sort of symptomatology suffered by the appellant (ts 548).
In cross‑examination, Dr Harper agreed with the passage from Professor Joyce's report which is set out above at [60] (ts 559). He also agreed with Professor Joyce that the appellant did not experience symptoms of significant SO2 toxicity whilst on the site at the smelter and that his current symptoms were not a toxicological consequence of SO2 exposure (ts 571). He accepted that Professor Joyce's explanation for the appellant's symptoms was consistent with those symptoms (ts 562). Dr Harper was not asked whether a person could become conditioned or desensitised to SO2 and did not comment on it.
Dr Loblay is a senior lecturer in immunology at the University of Sydney and director of the allergy unit at Royal Prince Alfred Hospital. Dr Loblay pointed out that SO2 is commonly encountered in ordinary daily living so the fact that someone becomes ill after exposure to SO2 does not mean that their illness was caused by SO2 (ts 1123). He said that a person who had significant exposure to SO2 would have symptoms such as irritation of the nose, throat, eyes and respiratory tract (ts 1124).
In a report dated 31 July 2002 (exhibit 13.7), Dr Loblay said:
Whatever exposure [the appellant] might have had to sulphuric acid or sulphur dioxide fumes the levels cannot have been very high, since he specifically denied having experienced any cough, nasal, conjunctival or skin irritation at the time. Indeed, his symptoms first began while he was away from work on Sunday night, 28th July. The clinical picture is therefore not consistent with his claim of 'injury caused by exposure to smells, gases, fumes, noxious chemicals, airborne sediment or sulphur dioxide'.
Dr Loblay considered (pages 8 ‑ 9) that the appellant's symptoms in the days following 26 July 1996 were consistent with a viral infection and/or reflux, from which he developed an anxiety disorder by misattributing the symptoms he experienced to exposure to toxic fumes.
In a subsequent report dated 18 February 2008 (exhibit 13.8), Dr Loblay responded to the opinions expressed by Dr Harper in his report of 6 November 2003 as follows:
Exposure. Contrary to what is asserted by Dr Harper, there is no evidence of acute exposure to chemicals at sufficient concentration to have caused [the appellant's] onset of symptoms on 28‑29 July 1996. The irritant threshold for sulphuric acid or sulphur dioxide fumes is much lower than the toxic threshold, and [the appellant] experienced no symptoms of irritation at the time. Nor is there evidence of clinically significant chronic exposure which would have been expected to cause airway or lung inflammation, and which should be evident on lung function testing and/or radiologically.
Temporality. The onset of symptoms was not 'contemporaneous' with the alleged exposure. The 'incident' on 26 July 1996 was at least 2‑3 days before the onset of [the appellant's] symptoms. Had there been inhalation of clinically significant concentrations of sulphuric acid or sulphur dioxide fumes this would be expected to have produced irritant symptoms immediately (within seconds or minutes) after exposure.
Severity of symptoms. The initial symptoms on 29 July are most likely to have been due to gastro-oesophageal acid reflux with associated nausea. The nausea may have been aggravated by the smell of sulphur fumes, but other workers were not affected, and there is no indication that the concentration of fumes was unusually high on that day. [The appellant's] symptoms were subsequently complicated by development of neurological symptoms typical of anxiety and hyperventilation. … At no time has there been any evidence of tissue damage from chemical toxicity.
Prior health. [The appellant] was indeed in good health prior to the onset of his symptoms. This neither supports nor refutes the supposition that chemical exposure was the cause of his symptoms.
Chronicity. Continuity of anxiety related symptoms in the absence of any demonstrable evidence of respiratory or neurological abnormality, persisting for years after all exposure has ceased, is not suggestive of a toxic reaction sulphuric acid or sulphur dioxide fumes. It is, however, consistent with a chronic anxiety state related to [the appellant's] mistaken but entrenched view that he has suffered a physical injury.
Dr Loblay concluded that the main factors contributing to the appellant's symptoms from 26 July 1996 were gastroesophageal reflux with upper respiratory irritation and a secondary anxiety disorder associated with a mistaken illness attribution. Dr Loblay rejected the proposition, put to him in cross‑examination, that a person could be conditioned or desensitised to exposure to SO2 (ts 1124).
Dr Bremner is a respiratory physician. In a report dated 7 July 2005 (exhibit 13.3), he said that high dose exposure to SO2 in the short‑term causes intense upper and lower airway irritation including respiratory paralysis, pulmonary oedema, irritation of the eyes, nose and throat with choking and coughing. Dr Bremner was not asked about conditioning or desensitisation.
There was, in addition to the expert evidence, some evidence of lay witnesses on which reliance was sought to be placed by the appellant. That evidence was given by Dr North, a retired industrial chemist; Dr Eva, an occupational hygienist; and Mr Morrison, also an occupational hygienist.
Dr North gave evidence that he had been engaged by the respondent in September 1996 to conduct a study of sulphur dioxide levels experienced by workers at the smelter. He carried out an investigation during October and November 1996 and prepared a draft report (exhibit 12). The findings in the report are not relevant for present purposes. However, in the report (page 16) Dr North stated that 'it is well documented that some individuals can become sensitised to SO2 while others become conditioned.' In evidence he said the smell threshold for SO2 was well below industrial exposure standards (ts 748). But he said that some people can tolerate much higher levels of SO2 than others and reiterated that individuals can become conditioned to SO2 (ts 741, 754). He explained that by 'well documented' he meant that 'it's well known in the industry' (ts 741).
Dr Eva also gave evidence that the level at which SO2 could be smelt was well below the occupational exposure standard. He said the irritant effect of sore eyes, choking and respiratory coughing would occur at higher levels, exceeding five ppm (ts 1340 ‑ 1341). Dr Eva considered that a person could become desensitised to SO2 gas to the point where the person was unaware of its presence (ts 1347).
Mr Morrison was the senior occupational hygienist at the smelter from 1993 until August 1996. He also expressed the view that a person can become conditioned to SO2 so they could be exposed to SO2 without being aware of it. He said that was well known in the industry (ts 1369).
In the grounds of appeal, the statement of the primary judge that 'exposure to SO2 even at very low dosages will cause irritation to the eyes, nose and throat' was attacked on the basis that the evidence established only that such symptoms would occur where 'significant' exposure occurred. I do not think anything turns on the distinction. As I have mentioned, the appellant's case was opened on the basis that he had 'significant exposure'. In any event, the statement about the effect at low dosages is not critical to his Honour's finding. In substance, the relevant finding of the primary judge was that exposure to a level of SO2 of any significance, that is, capable of causing physical illness, would always produce symptoms of irritation to the eyes, nose and throat [846].
That finding is amply supported by the evidence of Professor Joyce, Dr Loblay, Dr Donohoe and Dr Harper. And while Professor Joyce accepted that some of the symptoms of which the appellant complained after 26 July 1996 were consistent with exposure to a bad smell such as SO2, he did not accept that the totality of those symptoms could be explained in that way. In particular, the symptom of stars in front of the eyes, which the appellant described to Ms Dennis and Dr Clarke and in his evidence, was not consistent with SO2 exposure. Professor Joyce and Dr Loblay considered there were other medical explanations for the appellant's symptoms.
It was, no doubt, to meet the point that any significant level of exposure would produce irritation to the eyes, nose and throat that the appellant advanced the explanation that he was conditioned or desensitised to SO2 so that he was not affected in that way. The primary judge, correctly in my view, rejected that explanation. It appears that the only expert medical witness to whom such a proposition was put directly was Dr Loblay. He rejected it. While Dr Somers advanced such a theory, her evidence was clearly based on conjecture. Moreover, Dr Somers conceded that she did not have the relevant expertise and acknowledged that she was not in a position to disagree with Professor's Joyce's evidence that significant exposure is always accompanied by such symptoms. Dr Donohoe agreed with Professor Joyce on this point. There is nothing in Dr Harper's evidence to support the appellant's contention and the import of his evidence suggests to the contrary.
It is evident that the primary judge, properly in my view, gave little or no weight to the lay evidence on the point. The relevant evidence of Dr North and Mr Morrison was based not on any technical expertise but on what was said to be 'well known in the industry'. Similarly, the relevant evidence of Dr Eva was not supported by any relevant expertise and had no obvious foundation. Moreover, their evidence was in the most general terms, there being no explanation, for instance, of the time, nature or extent of exposure necessary before such desensitisation or conditioning might occur. Their evidence was of no assistance on this issue.
In support of the contention that he had been exposed to unsafe levels of SO2, the appellant also sought to rely on evidence of high levels of SO2 being recorded on occasions in the furnace room, submitting that that was relevant to the levels of 'fugitive' SO2 which would have been released into the area of the control room. The evidence does not, however, support any such extrapolation. While high levels of SO2 had on occasions been recorded in the furnace building by Dr North, Dr Eva and an employee of the respondent, Mr Evans, it is clear from their evidence that no conclusion could be drawn from that as to the level of SO2 that might be found outside the furnace building and in the vicinity of the control room.
Mr Evans was the group adviser, occupational health and safety, for the respondent at the relevant time. He prepared a report in September 1996 concerning SO2 exposure in the furnace building at the smelter. He did not investigate SO2 exposure outside the furnace building (ts 531). Mr Evans said that when he inspected the tapping floor in September 1996 there were some problems with the gas extraction and ventilation system on that floor which would have made it less efficient than it would otherwise have been. He said that increased the likelihood of SO2 making its way outside the furnace building. However, he went on to say that the SO2 would be very hot and would be dispersing and diluting as it moved so the concentration would be dropping (ts 540, 542). He could not suggest what level of SO2 might be reached outside the furnace building, but he said the dilution would, 'as a rule of thumb', be in accordance with what is known as the inverse square law, that is, the quantity of (in this case) gas is inversely proportional to the square of the distance from its source, so that as the distance doubles the concentration drops by a factor of four. The result would be that at a distance of 30 m from the furnace room the SO2 would have dispersed to almost nothing (ts 535).
In October and November 1996, Dr North carried out certain measurements of SO2 inside the furnace building (ts 748). He did not take any measurement of the level of SO2 outside the furnace building (ts 748). Dr North agreed with the proposition put to him by senior counsel for the respondent that, applying the inverse square law, SO2 at a concentration of 50 ppm at a metre from its source would result in diffusion to 0.05 ppm at 32 m from the source. (It will be recalled that Professor Joyce said that irritation to the eyes, nose and throat would be likely to occur at 'low concentrations' of SO2 of one or two ppm.) The figure of 50 ppm was presumably selected by counsel because it was around the highest figure recorded in the furnace room by Dr North (exhibit 12). Dr North commented that the inverse square law does not work strictly in practice because it is subject to a number of factors such as the density of the gas concerned, its temperature, and atmospheric conditions including the prevailing wind (ts 751, 754). He accepted, however, that no conclusion as to the level of 'fugitive' SO2 at a place outside the furnace building could be drawn from the level of SO2 inside the furnace building (ts 752).
The appellant also sought to rely on some testing of SO2 carried out by Dr Eva in 1995 which led Dr Eva to recommend that the respondent install monitoring alarms, a recommendation that had not been acted upon at the time of the alleged incident in July 1996. That testing, however, again related to the tapping room in the furnace building (ts 1278).
Some criticism of the respondent was made by senior counsel for the appellant about the lack of any regular monitoring for SO2 outside the furnace building and in the area of the control room. The explanation for that was given by Mr Morrison. He said that there was no smell of SO2 outside the furnace room so that the level of SO2 was obviously at a level well below the relevant exposure level and, in addition, no‑one had ever complained of symptoms of breathlessness or irritation to the eyes and nose outside the furnace room, except when a stack inversion had occurred (ts 1231). That was supported by Ms Dennis who gave evidence that in the two years she was at the smelter she had not received any reports of workers suffering from gas exposure outside the furnace building; all had been from the tapping floor in the furnace building (ts 1465 ‑ 1466).
In my view, the primary judge was correct in finding that if the appellant had been exposed to any significant level of SO2 he would have had the symptoms of the kind described by Professor Joyce and others. His Honour properly rejected the appellant's explanation that he did not suffer any such symptoms because he had become conditioned or desensitised to SO2. There was no evidence that the appellant had been exposed to SO2 at a level which was capable of causing physical illness.
While there was, as I have mentioned, an issue on the appeal as to the extent to which the appellant's case turned on whether he was exposed to SO2 in the cloud he observed on 26 July 1996, I do not think it matters because the evidence in relation to the cloud does not assist the appellant's case.
The cloud on 26 July 1996
The appellant contended that the primary judge erred in finding that the 26 July 1996 cloud contained no 'material' level of SO2. It was submitted that:
(a)his reasoning was partially based on his erroneous conclusion that even a low level of SO2 would have caused the appellant to suffer immediate symptoms;
(b)he mistakenly took into account a steam cloud shown in exhibit 4, tested by Mr Morrison on 29 July 1996, which was irrelevant because that cloud did not arise from the slag granulation process but open water drains along the road; and
(c)the finding was against the weight of the evidence that other persons exposed to the cloud complained of adverse symptoms and attended the nursing station; that different individuals may react differently to SO2; that there were widespread sources of SO2 at the smelter; and that the characteristics of the cloud were consistent with it containing SO2.
I have already referred to the appellant's evidence as to what he observed on 26 July 1996. At trial, the appellant also identified some photographs, which went into evidence as exhibit 4, as photographs a friend had taken for him at the smelter in about August or September 1996 (ts 89 ‑ 90). He said the first photograph, which depicted a steam cloud outside the control room, showed 'exactly the condition and place where [he worked]' at the smelter (ts 84, 236).
It follows from what I have said above that his Honour was entitled to take into account that the appellant suffered no adverse effects when he walked through the cloud. But, apart from that, the weight of the evidence plainly supported the finding made by the primary judge.
The appellant's case was based on various sources from which it was alleged that SO2 could have come. The primary judge accepted that SO2 from the furnace building or processes such as the slag granulation might lead to SO2 being present in or about the control room [862]. But as his Honour pointed out, there was no evidence as to the level of SO2 which might come to be present outside the furnace building [862]. In particular, there was no evidence that any of the suggested sources of SO2 had resulted, or could result, in SO2 being present in or about the control room in significant, or unsafe, quantities. For the reasons I have given above, the sometimes high levels recorded in the furnace building did not assist the appellant. The evidence suggested that even on those occasions the SO2 would have diluted to very low levels before it reached the control room.
The evidence of Mr Nixon as to his own experience on 26 July 1996 was regarded by the primary judge, correctly in my view, as being of no real assistance. Mr Nixon was a supervisor employed by Ralph M Lee at the smelter at the material time. He gave evidence that on an occasion in mid‑1996 (he understandably could be no more precise) a number of workers were affected by a 'steam cloud' and some attended the first aid post (ts 269 ‑ 270). He thought that up to half a dozen men had attended the nurse that day but he could not say how many did attend (ts 294). He said the cloud had a more sulphur smell than normal (ts 293). According to Mr Nixon, such clouds caused 'burning in the back of the throat; take your breath away' and stung the eyes (ts 272, 293). He did not suggest that he sought any medical treatment. The effects described by Mr Nixon were not, of course, symptoms which the appellant said he ever suffered.
Mr Nixon's evidence as to the workers attending the first aid post was unsupported by any other evidence and was rightly rejected by the primary judge.
Ms Dennis, the nurse whom the appellant saw at the first aid post on 29 July 1996, gave evidence that she was the senior nurse at the smelter. Another nurse had been employed to work for the acid plant division under her supervision. Ms Dennis said she saw most of the people who came to the first aid post. If she had to leave the first aid post, the people at the gatehouse were trained in first aid and would look after anyone who came for attention. If they thought the person needed to see a nurse they would call Ms Dennis on the two‑way radio (ts 1467).
Ms Dennis said that she recalled the appellant coming to the first aid post on 29 July 1996 complaining of feeling unwell and being short of breath. She said he looked pale and nauseated but not breathless. He was given Mylanta and Moxalen for nausea, and a saline nebuliser and a ventalin puffer for breathlessness (ts 1469 ‑ 1473). Ms Dennis accepted in cross‑examination that the appellant had mild symptoms which were consistent with exposure to SO2 (ts 1500).
There was, however, no evidence that anyone other than the appellant attended the first aid post that day as a result of exposure to SO2 or with symptoms of a similar kind to the appellant's. Indeed, as I have said, Ms Dennis gave evidence that in the two years she was at the smelter she had not received any report of SO2 exposure outside the furnace building.
Some testing of the area in which the appellant saw the cloud was carried out by Mr Morrison three days later. Mr Morrison gave evidence that, following a complaint by the appellant about fumes, he carried out testing on 29 July 1996 using, among other things, an SO2 monitor. While he was doing the testing he observed a gaseous cloud in the area similar to the one depicted in exhibit 4 and he walked through it. Mr Morrison said he had regularly seen clouds of that nature in the area while he was working at the smelter and understood them to be steam from the drains between the granulator and the dams. Mr Morrison said he tested the whole area and detected no gases. He concluded that the gaseous cloud was just steam (ts 1233 ‑ 1235).
There was other evidence that a phenomenon of the nature depicted in exhibit 4 was a cloud of steam resulting from the slag granulation process, including from the drains between the process and the dams.
Dr Eva said he had seen clouds of the nature shown in exhibit 4 in the same area and identified the substance as steam from the slag granulation process (ts 1270). He also said that if a cloud lasted from 3.00 pm to 5.00 pm he would not expect it to be SO2; it was more likely to be steam or mist (ts 1326).
Mr Elliott is an engineer who was the technology manager for the respondent at the smelter at the relevant time, responsible for research and development. Mr Elliott said that the cloud shown in exhibit 4 in the area near the control room appeared to be steam from the drains that crossed the road conveying water to and from the ponds to the slag granulation process; it was a phenomenon that he had seen quite often as steam would be emitted to a greater or lesser extent whenever the slag granulator was operating. The steam would be more pronounced in cooler weather (ts 834). I note that the cloud observed by the appellant occurred in mid‑winter.
In my view, on the evidence the primary judge correctly found that what the appellant encountered in the cloud on 26 July 1996 was not SO2, as the appellant thought it was, but steam.
No breach of duty established
I consider the primary judge properly found that the appellant had failed to make out any breach of duty by the respondent. There was nothing in the evidence to suggest that the appellant had been exposed to a significant or 'unsafe' level of SO2; that is, a level of SO2 which exceeded a level consistent with reasonable care on the respondent's part. The cloud on 26 July 1996 was simply steam; there was no evidence that the area in which the appellant worked contained any significant or 'unsafe' level of SO2 at any time, and the overwhelming weight of the medical evidence was that if the appellant had been subjected to any significant level of SO2 he would have experienced irritation to the eyes, nose and throat, symptoms which he did not experience at any stage. And on the evidence, the symptoms from which the appellant suffered in the days following 26 July 1996 had other medical explanations.
The other issues
There was some debate on the appeal as to whether the symptoms suffered by the appellant in the period following 26 July 1996 constituted physical injuries at all. The respondent contended that they did not. That was not an issue considered by the primary judge because of the way in which the appellant's case was run at trial and in light of the conclusion I have reached I do not think it is necessary to deal with it on the appeal. Nor do I think it is necessary to deal with the causation issues which would have arisen on the appellant's case as it is now put, had a breach of duty been made out. Suffice it to say that once it is found that the appellant failed to establish that the symptoms he suffered in the days following 26 July 1996 were caused by exposure to SO2, the appellant's claim that the respondent is liable for the disabilities which he now has as a consequence of those symptoms must fail.
I should also mention that the assertions in the grounds of appeal that the primary judge failed to provide adequate reasons for his findings on the issues of desensitisation and the existence of a physical injury were not pursued in oral argument and, in my view, they are without substance. In any event, even where reasons are inadequate an appellate court may consider the matter and, if it can do so, may decide the matter itself: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273, 283. In this case, the relevant findings of the primary judge were the only findings reasonably open on the evidence so nothing turns on the adequacy of his Honour's reasons.
Conclusion
In my opinion, none of the grounds of appeal has been established. The primary judge correctly found that the appellant's claim had not been made out. The appeal should be dismissed.
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