Koljibabic v WMC Resources Ltd
[2007] WADC 199
•12 NOVEMBER 2007
KOLJIBABIC -v- WMC RESOURCES LTD [2007] WADC 199
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 199 | |
| Case No: | CIV:1602/2002 | 6 NOVEMBER 2007 | |
| Coram: | KEEN DCJ | 11/11/07 | |
| PERTH | |||
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed to adduce evidence to a limited extent | ||
| PDF Version |
| Parties: | SLOBODAN KOLJIBABIC WMC RESOURCES LTD |
Catchwords: | Practice and procedure Expert evidence Leave to adduce |
Legislation: | Nil |
Case References: | Clark v Ryan (1960) 103 CLR 486 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
WMC RESOURCES LTD
Defendant
Catchwords:
Practice and procedure - Expert evidence - Leave to adduce
Legislation:
Nil
Result:
Application allowed to adduce evidence to a limited extent
(Page 2)
Representation:
Counsel:
Plaintiff : Mr C Prast
Defendant : Dr M J Maxwell
Solicitors:
Plaintiff : Slater & Gordon
Defendant : Clayton Utz
Case(s) referred to in judgment(s):
Clark v Ryan (1960) 103 CLR 486
(Page 3)
1 KEEN DCJ: The plaintiff's claim in this matter is that whilst performing work at the defendant's nickel smelter between 31 May 1996 and 30 July 1996 he was exposed to one or more of a combination of noxious gases. In his statement of claim he describes those gases as sulphur dioxide and hydrogen sulphide and by way of further and better particulars adds to the list, sulphur trioxides (the "gases").
2 As a result of that exposure the plaintiff claims that he has suffered damage to lung tissues, neurological damage, adjustment disorder and chronic anxiety and multiple chemical sensitivities syndrome.
3 Factually it is alleged that between the dates mentioned the plaintiff worked at the defendant's nickel smelter carrying out electrical work. In the first two weeks of the period he worked in a control room that had no ventilation, air-conditioning or windows. From about 14 June 1996 for one week he worked at a yard adjacent to a railway line that was 500 metres from the smelter and chimney stacks of the smelter. Finally, for a period of about six 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.
4 It is alleged that the gases were 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 was not known to the plaintiff.
5 The plaintiff's claim is that the injuries that he sustained were caused by the breach of duty by the defendant set out in par 8 of the statement of claim. It is not necessary to detail those duties save to note that they arise at common law and by way of statute.
6 It is said that the defendant breached that duty of care in that: -
"11.1 It 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;
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;
(Page 4)
- 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;
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;
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;
11.6 It failed to provide the Plaintiff with adequate breathing apparatus;
11.7 It failed to provide the Plaintiff with adequate instructions in how to use and when to use breathing apparatus;
11.8 It failed to take any or any adequate steps to provide the Plaintiff with an encapsulated suit."
7 The breaches of the statutory requirements again draw upon the general allegations of failure on the part of the defendant and it is not necessary for me to repeat them verbatim.
8 In order to try to make good his claim the plaintiff seeks to rely upon what is described as expert evidence from a Mr Jack Willenborg. The present application before me is an application pursuant to O 36A of the Rules of Court for leave to adduce expert evidence.
9 The substance of the expert evidence to be adduced by Mr Willenborg is set out in a document being the Substance of Expert Evidence of Jack Willenborg dated 26 February 2007 (the "Substance").
10 The defendant objects to leave being granted. The principal ground of objection is that it has not been demonstrated that Mr Willenborg is relevantly an expert for the purposes of the issues to be tried by the Court. It is said that it is not demonstrated that he has the appropriate expertise to speak to the matters the subject of the issues. It was agreed at the hearing of the application that it was not necessary to go into detail as to the matters referred to in the Substance which would more properly be the
(Page 5)
- subject of objection either at trial or on a voir dire. However, it was necessary to look at, in a general way, the sort of matters referred to by Mr Willenborg to see whether or not he has in fact the expertise to deal with such matters.
11 In considering whether or not to allow this application it is first necessary to go back to basic principles in relation to expert opinion. Those principles include that there must be a field of specialised knowledge, there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience the witness becomes an expert, the opinion proffered must be wholly or substantially based upon the witness's expert knowledge; Cross on Evidence 7th Australian ed at [29045]. It is axiomatic that the facts upon which the expert bases his opinion must be identified and proved.
12 For the purposes of this stage of the inquiry, that is to say whether leave should be granted, it is not necessary nor is it possible for that last aspect to be dealt with.
13 The Substance filed in support of the application noted:
"The following comments and opinions formed are based on experience obtained over many years working in relevant industries and being involved in numerous evaluations of sulphuric acid plants worldwide. I have not been in the position of having had access to the KNS smelter, during or after the alleged incident, nor had the opportunity to peruse the company's records or talk to company personnel."
14 The KNS smelter is the defendant's smelter at which the plaintiff is alleged to have been injured.
15 Apart from that opening statement of Mr Willenborg's experience, there was annexed to the Substance his personal details which relevantly include:
(a) that in 1965 he obtained a degree of Bachelor of Applied Science (Chemical Engineering) from Adelaide University;
(b) between 1957 and 1972 he worked at a plant in South Australia and in the latter part supervised an iron pyrites mine in the Adelaide hills. It is said that the plant consisted of ore receival and storage, rotary dryers, flash and fluid bed roasters, wet and dry gas cleaning, waste heat
- boilers with condensing turbines and associated sulphuric acid plant acid plant (sic). It is also said that the iron pyrites were heated in the roasters, producing sulphur dioxide gas, which was used (after cleaning and drying) to produce sulphuric acid, using the conventional "contact acid plant principle";
- (c) between 1973 and 1995 Mr Willenborg worked for Queensland Nickel Pty Ltd in Townsville, Queensland, involving initially construction supervision followed by secondment to the operating team for handover procedures, pre-commissioning, commissioning and finally operation of a 30,000-ton/annum nickel/cobalt complex.
During this period it was said that he progressed from superintendent to operations manager which included ore maintenance (electrical/mechanical and instrumentation) and capital expenditure on site.
It was said that the nickel/cobalt plant consisted or ore receival … oil and coal fired rotary dryers/gas cleaning/crushing and grinding followed by reduction roasting in multiple hearth reduction roasters. A washing-leaching plant was followed by an ammonia/carbon dioxide gas recovery/solvent extraction/distillation and calcination and hydrogen reduction furnaces.
It was also said the plant included boilers and turbines and produced hydrogen and carbon dioxide by-products and "while a 20-ton/day hydrogen sulphide plant provided the mixed sulphide precipitation plant";
(d) in 1995 to 2003 Mr Willenborg was the technical representative on the Murrin Murrin Joint Venture Board. Whilst there is some suggestion in the detail provided that sulphuric acid is involved in whatever processes were carried on at that plant, there is no other relevant detail provided.
(e) finally, Mr Willenborg has apparently in the last two years had consultant jobs, including the use of microwave technology in nickel production. Under this heading there is also noted:
"The sulphuric acid plant on the island of Cebu (Philippines), part of the 'due diligence' for the Pasar
- copper smelter by Glencore, was thoroughly reviewed with regards to production capacity, required maintenance and emission control." (emphasis added)
16 The Substance as it was originally framed, and without detracting from the fact that it was merely a Substance of evidence, could best be described as a generalised record of his experiences in various plants and historical anecdotal references to those plants and events which occurred at them. It also contained to a large extent what could only be described as advocacy and a good deal of speculation. It also contained matters of a medical nature and dealt with health and safety or occupational safety issues. From time to time Mr Willenborg dealt with matters which would fairly be described as ultimate issues and made inadmissible references, for example, to newspaper reports. To some extent counsel for the plaintiff acknowledged some of these deficiencies and agreed to various passages in the Summary being struck out. Those passages can fairly be described as matters of comment, matters relating to health issues and hearsay matters (for example, newspaper reports of various events).
17 What was left was a dissertation, based upon his experience, arising from the kind of work that he had been involved in. He spoke of the scientific/chemical aspects of plants involved in the work carried out by him. He opined that the plaintiff would have been unable to have avoided contact with the gases that might have been produced during the operation of the defendant's plant and that the defendant should have been aware of such emissions. He further opined that a complete "HAZOP" exercise would have identified problems. He also opined on the defendant's safety rules and what steps should have been taken by the defendant to avoid exposure such as that suffered by the plaintiff. In this regard he again referred to a HAZOP exercise, the requirement for an audible alarm system and identification of areas of potential danger and the need for adequate ventilation at such places.
18 The plaintiff argued that Mr Willenborg's Bachelor of Applied Science (Chemical Engineering) degree in 1965 coupled with his employment history in sulphuric acid plants and in relation to nickel extraction at the Murrin Murrin plant qualified him to give evidence about the processes at work. It was said by the plaintiff that the kind of work carried out by Mr Willenborg was similar to that carried out by the defendant at its plant and that he knows of the processes involved and can therefore speak as to those processes and the precautions required from his practical experiences and his relevant tertiary qualification.
(Page 8)
19 The defendant argued that the three elements to consider:
(a) what is the process involved, how does it work and what gases occur?
(b) identification of where there might be emissions of relevant gases and the levels and frequency thereof; and
(c) what ought to be done about it, if anything.
20 The defendant argued that Mr Willenborg has no knowledge of the particular circumstances of what occurred and the way in which the defendant's plant operated. It was said that there was no obvious link between his knowledge and what was occurring at the defendant's plant.
21 Because of the lack of detail as to what precisely was involved as part of Mr Willenborg's experience the defendant argued that it was impossible to know quite how his experience fitted with what processes that were being conducted at the defendant's smelter. This difficulty was further exacerbated by the fact that despite request and an order of the Court, the plaintiff had still not provided details of the briefing materials provided to Mr Willenborg. In fact during the course of argument it became apparent that it was not so much a question of whether or not the defendant could show that there were differences between Mr Willenborg's experiences and what was being conducted at the defendant's smelter, but rather it was for the plaintiff to show that similarity. In order to highlight this the defendant attempted to argue that there was a difference between a nickel smelter and a sulphuric acid leach plant. However, for the purposes of this application there was no evidence to assist in that regard. Nevertheless, it was permissible for the defendant's counsel to argue, and he did so argue, that the plaintiff had had since February 2007 to address questions of foundation of Mr Willenborg's evidence but had failed to do so.
22 The defence also argued that the Substance contained matters which were in relation to occupational health and safety and there was nothing in Mr Willenborg's curriculum vitae or personal details to show that he was either formally or practically qualified to speak of such matters.
23 Before proceeding with any analysis of Mr Willenborg's expertise and the Substance of his evidence and how it relates to the issues in this case, it is worth noting what was said by Dixon CJ in Clark v Ryan (1960) 103 CLR 486 at 491. There his Honour quoted J W Smith:
(Page 9)
- "On the one hand … it appears to be admitted that the opinion of witnesses possessing peculiar skill is admissible whenever the subject matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it." … "While on the other hand, it does not seem to be contended that the opinions of witnesses can be received when the inquiry is into a subject matter the nature of which is not such as to acquire any peculiar habits or study in order to qualify a man to understand it."
24 Of course it is well established that the expert in a particular field need not just be an expert by reason of specified training or study but expertise can be derived from experience in the particular field.
25 Mr Willenborg's expertise can be divided into two parts:
- his expertise derived from his formal qualification;
- his expertise or knowledge derived from working in the industry over many years.
26 His evidence encompasses an explanation of chemistry and the way in which chemical substances or compounds may be produced. It seems to me that he may have the necessary expertise to speak to such matters. It is debatable whether such matters would be of opinion or established scientific fact. Nevertheless, for the purposes of the present debate I am prepared to accept that it is the former.
27 The extent to which that exposition will be relevant to the facts of the present case remains to be seen as those facts emerge at trial.
28 Mr Willenborg's evidence as to his experience of various plants with which he has been involved and how those plants produce various gases is not in my opinion evidence of an expert nature – it is factual evidence; cf the example given by Dixon CJ in Clark v Ryan at 490-491.
29 Accordingly, the plaintiff is entitled to lead evidence from Mr Willenborg in relation to such factual matters. There is of course the usual caveat to that right – the evidence must be relevant and I need only repeat by way of example what has been said about the similarity or otherwise between such plants and the defendant's plant. That is not a matter that I am required to or able to determine at this level of inquiry.
(Page 10)
30 To the extent that Mr Willenborg speaks anecdotally of what has occurred at other plants, i.e. plants at which he has not worked or in relation to which he does not have direct experience, he will be constrained in such factual matters by the normal rules of evidence.
31 Dealing specifically with certain aspects of the Summary and their relationship to Mr Willenborg's expertise, he opines at par 7 as to what may happen during the start-up of a new acid plant. Assuming his experience both formally and informally acquired can be linked to the procedure at the defendant's plant it may be that his expertise may provide a basis for opinion as to what may have occurred. What weight will be given to that opinion is another matter, particularly as it is not known what briefing materials he has had regard to.
32 Paragraph 8 of the Substance speaks of the problems in commissioning new plants and the emission of gases. Again it may be that he can opine on such matters, but whether those opinions are relevant will depend upon a necessary connection between those plants of which he speaks and the defendant's plant. Alternatively, the value of the evidence may be a matter of weight for the reasons already expressed.
33 Without descending into the specifics of Mr Willenborg's evidence it seems to me that he may have some difficulty dealing with the matters set out in par 10 of the Substance as they appear to be matters going to the ultimate issue. To the extent that that paragraph contains evidence of a medical nature, he does not have the demonstrated expertise. Further to the extent that he refers to safety equipment for reasons expressed later, again he does not have the demonstrated expertise.
34 In other paragraphs of the Summary there are a number of other matters that might require argument between the parties. However, that is a matter for argument at another time.
35 Paragraph 16 of the Summary speaks of what steps the defendant should have taken to prevent exposure (of gas) to the plaintiff.
36 It seems to me that these matters would all be classified as opinion evidence and would fall within a recognised area of expertise – occupational health and safety.
37 I am not satisfied that Mr Willenborg has a demonstrated expertise in this area. Mere involvement in industry over a number of years is not enough even if that involvement is in managerial or supervisory capacities or even at high managerial or supervisory capacity. Industry is
(Page 11)
- multifaceted with many specialised areas and it cannot be assumed that a management or supervisory capacity would carry with it an occupational health and safety expertise.
Conclusion
38 I am prepared to grant the plaintiff leave to adduce expert evidence from Mr Willenborg in respect of that part of his evidence (subject to all just objections) as relate to matters of chemistry to which he can speak by reason of his academic experience. He may also, again subject to all just objections, give expert evidence of what may occur during the start-up of a plant.
39 The expert evidence of Mr Willenborg is to be so limited. He may not give evidence of matters of opinion going to occupational health and safety nor as to matters of a medical nature as he seeks to do in the Substance.
40 For the avoidance of doubt it is not necessary for me to grant leave to the plaintiff in respect of those matters relating to Mr Willenborg's experience of other plants. That is factual evidence subject to the normal rules of evidence and subject to all just objections.
41 I will hear from counsel as to the form of orders to be made.
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