John Adrian Brugmans v the Commonwealth of Australia [1996] ACTSC 42 (17 May 1996)

SUPREME COURT OF THE ACT

JOHN ADRIAN BRUGMANS v. THE COMMONWEALTH OF AUSTRALIA
No. SC 1638 of 1988
Number of pages - 10
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Negligence - employer's liability - experienced park worker pours pesticide over his wrists whilst engaged in "foreign order" - alleged failure to train and supervise employees according to standards of 1985 and to provide proper plant and equipment not made out - vicarious liability for failure of overseer to observe that plaintiff was not wearing PVC gauntlets supplied and failure to repeat previous warnings of dangers of pouring from particular type of can - contributory negligence - plaintiff failed to use PVC gauntlets supplied and to heed previous warnings about pouring from particular type of can - greater share of blame placed on plaintiff - damages apportioned equally between plaintiff and defendant - no point of principle.

Negligence - employer's liability - authorities do not establish that employer in facts of case was under duty to "practically guarantee safety" - standard of care is and remains one of reasonableness.

Damages - post traumatic stress syndrome resulting from not serious case of chemical poisoning - no point of principle.

Pesticides Act 1989, Part VII
Law Reform (Miscellaneous Provisions) Act 1955, sub-s.15(1)

Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 CLR 40
Donoghue v. Stevenson [1931] UKHL 3; (1932) AC 562
Stevens v. Brodribb Sawmilling Company Proprietary Limited [1986] HCA 1; (1986) 160 CLR

16

Podrebersek v. Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529
Purkess v. Crittenden [1965] HCA 34; (1965) 114 CLR 164
Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438

HEARING

CANBERRA, 6 and 7 May 1996
17:5:1996

Counsel for the plaintiff: Mr. D.T. Kennedy

Solicitors for the plaintiff: Elrington Boardman Allport

Counsel for the defendant: Mr. G.A. Stretton

Solicitors for the defendant: Australian Government Solicitors

ORDER

THE COURT ORDERS THAT:
1. There be judgment for the plaintiff in the sum of $20,690.69.

DECISION

MILES CJ This is an action for damages for personal injuries sustained in the workplace.

2. On 20 November 1985 the plaintiff was working for the Director of Parks and Gardens, a Commonwealth office honoured in the history of Canberra, and abolished since self-government. The plaintiff's work was essentially that of a truck driver and operator of spray equipment carried on the truck. He worked out of the depot at Phillip. Mostly he sprayed a herbicide for the control of weeds. Its brand name was Roundup. It contained a dilution of a chemical called glysophate which was mildly toxic whether ingested through the skin or by inhalation. By the time of the incident in question he had had many years in this work.

3. Sometime before the day in question, a fellow worker, a plant operator whom he declined to name, asked the plaintiff if the plaintiff could get him a small quantity of a pesticide called Malathion or Maldison 50. It is not clear which is the chemical name and which is the trade name. Malathion appears to be the name most widely used. The pesticide was stored in the poisons room at the Phillip depot. The plaintiff had seldom, if ever, used Malathion in the course of his work previously. Eventually the plaintiff asked his overseer or supervisor, Mr. Garrie Graham, if the plaintiff could oblige the fellow worker. Mr. Graham agreed. The plaintiff went to the poisons room with an offsider, Mr. Graham Gledhill, to do what needed to be done in order to decant or transfer a quantity of the Malathion from the 5 litre container in which it was supplied and stored into a tomato sauce bottle of some 250 ml capacity supplied by the fellow worker.

4. This enterprise was not one which fits easily into the scope of the plaintiff's employment, but for the purposes of the case, the Commonwealth conceded that its duty to take reasonable steps for the care of its employees, including the plaintiff, was not suspended as a consequence of the private nature of what the plaintiff was about. This was, in my view, a proper concession on the part of the Commonwealth, not least because the plaintiff obtained the permission of his supervisor.

5. The evidence establishes that the plaintiff attempted to transfer the Malathion from the 5 litre can over a sink or tub, instead of on a bench fitted with a hood and exhaust fan and designed and available for the purpose, whilst wearing short porous cotton and leather gloves, instead of long impermeable PVC gauntlets also supplied and available. The can was full. In this imperfect situation he began to pour some of the contents of the can into a one litre aluminium beaker, intending thereafter to tip an appropriate quantity of the liquid from the beaker into the tomato sauce bottle. The tub lacked a bench top or surround on which to stand the beaker. The plaintiff took the course of holding the beaker in his left hand and cradling the can in his right arm against his right hip. The can was round in shape and the bung or lip from which the liquid was to be poured was in the centre of the top of the can. Accordingly, it was difficult for the plaintiff to manage the can and he was unable to control the flow of the liquid from the can into the beaker. As a result, there was a sudden gushing of the liquid. Some spilled onto and saturated his left glove. Some spilled onto his exposed wrist.

6. It was alleged that the plaintiff suffered injury as a result of the contact between his skin and the chemical. I find that allegation proved. However, it was also alleged that the plaintiff's injury was aggravated by the inhalation of the fumes given off by the spilled chemical. It was further alleged that he developed and continues to suffer from post-traumatic stress disorder as a result of the incident. I shall return to these further allegations.

7. The negligence of the defendant alleged covered a wide range of failures and omissions. Ultimately, I think that it is the alleged failure to supervise upon which attention needs to be concentrated, but the broader allegations need to be considered since they are relevant to the further question of whether and how far the plaintiff failed to take reasonable care for his own safety.

8. The statement of claim and particulars of negligence furnished suggest that the plaintiff's case relies at least partly on the exposure of the plaintiff to toxic chemicals, particularly to toxic fumes, over a period of years. Again, I do not think that the plaintiff's case, as presented, relied on such an allegation, although it is clear that the plaintiff has a long-cherished personal belief that his present condition is at least in part attributable to repeated exposure to toxic fumes and chemicals over a long period of service with the ACT Parks and Gardens. However, the evidence, particularly the medical evidence, in the case does not permit of such a conclusion. Indeed it is doubtful whether there is any evidence capable of sustaining such a conclusion.

9. The next point is that the plaintiff's claim, as pleaded and presented and argued, sought to establish that the Commonwealth was guilty of all sorts of failures with regard to the training and supervision of those of its employees in the ACT Parks and Gardens service and other government instrumentalities in Canberra who handled and were otherwise exposed to pesticides in the course of their ordinary duties. There was very little in the way of evidence to support these general allegations. The only evidence indeed was that of Mr. Alan Christopher Umbers, an expert agronomist and a person with considerable experience, at the time of the hearing, in the handling of agricultural chemicals, including pesticides. However, the exact question ultimately to be decided, namely the extent of education, training and supervision which the Commonwealth as a reasonable employer ought to have given to those of its employees who handled pesticides in the course of the ordinary duties, was not, in my view, an area in which Mr. Umbers had the experience or expertise which would have made his opinion particularly persuasive. In any event it must be remembered that it is to the standards which were to be observed by a reasonable employer in 1985 to which regard must be had. At that time Mr. Umbers had only three or four years experience since obtaining his degree as Bachelor of Rural Science at the University of New England. During those years he had worked as a sales representative and as a senior sales representative with a manufacturer and distributor of farm chemicals, but had no experience in the organization of training or educational programs by employers for their employees. He said in his evidence that he gained some such experience in later years, and, as a matter of principle, I accept that expertise can be gained in the history of a field of knowledge so that an expert with that sort of expertise may give evidence of the state of knowledge and the practices followed at some time in the past. But Mr. Umbers' evidence did not clearly distinguish between the end and the means of such training or educational programs and touched only superficially on what particular steps a reasonably prudent employer in 1985 should have carried out in order to achieve the end of making its employees sufficiently aware of the need to follow recommended safety measures in the handling of toxic chemicals, and in order to ensure that the employees did in fact put those measures into effect with an acceptable measure of efficiency and regularity. Ultimately, of course, it is for the Court to carry out the balancing exercise of deciding what measures are necessary to be carried out by a reasonably prudent employer sufficient to reduce the risk of injury to its employee to an acceptable level: Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 CLR 40.

10. Far from establishing that the Commonwealth was wanting in the steps taken with regard to training the staff at the Parks and Gardens Service and in furnishing the staff with adequate protective gear and fitting out the poisons room with proper equipment for the storage and handling of pesticides, the evidence establishes that the Commonwealth was from about 1980 to the time of the incident at the forefront of employers in Australia in this regard. Evidence was given by Mr. John Lloyd, Pest Control Supervisor, and Mr. Christopher John Nazer, Senior Technical Adviser, of their efforts to establish training programs for new employees and training revision programs for those employees already in service and for regular checking of safety gear and equipment. That evidence was completely acceptable. The plaintiff claimed in evidence-in-chief that instruction was restricted to the use of gloves and the facial protection gear. I reject that evidence. The only criticism that might be made of the Commonwealth in relation to the efforts made by those officers is that the officers lacked formal training and qualifications for training others in the safety measures needed when handling pesticides. Equally, however, there was no evidence that there was any way in which they could have obtained any relevant training or qualification in Australia or anywhere else when the schemes were established in about 1981 and the time of the plaintiff's injury. Indeed, during that time, the training courses or some of them were extended and developed into a twelve month certificate course in pest control at a TAFE in Canberra. Employees handling pesticides in the Parks and Gardens Service, including the plaintiff, were required to attend and did attend and complete these courses which were especially tailored to their needs. The employees were also handed written sets of safety precautions in the use and handling of pesticides. I am satisfied that the plaintiff attended safety training sessions at work on 14 March 1985 and 27 June 1985, although it is unlikely that there was specific instruction on the handling of pesticides on those dates.

11. The pesticides were stored securely, according to best practice of the day, in the poisons room at the Phillip depot. For the purpose of decanting liquid chemicals and the mixing of dry chemicals, a bench with a hooded exhaust fan was devised and installed in the poisons room. Each employee engaged in the use of pesticides was furnished with protective gear, including cotton and leather gloves, used mainly for working in the field, and PVC gauntlets for use when handling liquid chemicals. There were also visors and respirators for use when working with chemicals likely to give off fumes. The plaintiff was, through his training, well acquainted with the purposes of the equipment so supplied and the need to use it as the occasion required. Usually he worked in the field, senior to an offsider, who was with him at the time of the incident in question. The plaintiff's supervisor, Mr. Graham, was junior to the plaintiff in his years of service, but he had overtaken the plaintiff in terms of promotion. Usually Mr. Graham visited the poisons room three or four times a week and from his observations he had no reason to believe that the employees obtaining pesticides from there were not using appropriate protective gear supplied and following the safe practices which they had been taught. He said, and I accept that there had to be a certain amount of trust as far as the employees were concerned when they were out of his sight and obviously they could not be within sight all the time. I reject the plaintiff's evidence that it was his practice to decant the Roundup over the tub and not at the hooded bench. I think it more likely that his practice was to decant the Roundup outside the building altogether.

12. Whether or not it was the plaintiff's practice not to use the hooded bench when he was decanting liquid pesticides in the poisons room, his decanting activities were usually restricted to Roundup. That chemical was supplied by the manufacturer in rectangular plastic containers of 5 litres capacity. Each container was designed in such a way that it had at the top a handle cut into one side of the container and a bung or spout cut into the opposite side. The Roundup container was convenient to use both by reason of the handle, which gave firm control of the container itself, and the position of the spout, which could be placed close to the receptacle into which the liquid could be poured. When full, it could sit firmly on a bench surface and be tipped slowly without raising it completely from the bench, thus ensuring greater stability during the pouring process. Malathion, on the other hand, came from the manufacturer in 5 litre round metal cans, with a bung in the middle of the top and without a handle at all. Obviously it was much trickier to pour the contents of the Malathion can, especially when full, than it was to pour the Roundup container. But there was no evidence that the Commonwealth had any choice in the manner of how Malathion came supplied by the manufacturer. Despite the submissions to the contrary, I find that there was no negligence on the part of the Commonwealth in receiving Malathion in the can supplied by the manufacturer and requiring the employees to use that can. There was no negligence in failing to transfer the contents and ensure that Malathion was stored in some other container which might make it easier to handle or pour such as a rectangular container used by the manufacturer of Roundup. The evidence is eloquent, in my view, that it was and is an unsafe practice to store pesticides in any container but that supplied - and labelled - by the manufacturer. In fact, in 1989 the Pesticides Act of that year in Part VII created a number of offences in respect of the storage of a pesticide in anything but the receptacle in which it came from the manufacturer.

13. It was also alleged in the statement of claim that the Commonwealth failed to provide the plaintiff with a reasonably safe workplace and with reasonably safe plant and equipment. I am not satisfied that there was any breach of care on the part of the defendant in failing to provide a funnel through which the chemical could be directed into the beaker. These allegations also were not strongly pressed as I understand it. Nor could they be because the evidence established that the measures taken on behalf of the Commonwealth to minimise the risk of injury from chemical spillage or inhalation on the part of Parks and Gardens workers in 1985 were at least equal to the general industry practices of the time. Adherence to industry practices (especially during extra hazardous operations) is not necessarily sufficient to discharge the employer's duty to take reasonable care but there is nothing in the evidence to indicate that reasonable care required going beyond common industry practice, let alone the higher standards that the Commonwealth observed in this regard.

14. I reject the submission that the duty of an employer is to do more than take reasonable care. Support for that submission was sought, surprisingly, in a passage in Donoghue v. Stevenson [1931] UKHL 3; (1932) AC 562 in the speech of Lord MacMillan at 611 where his Lordship referred to "the exceptional case of things dangerous in themselves ..... where the law exacts a degree of diligence so stringent as to amount practically to a guarantee of safety".

15. However, the proposition that there is an absolute liability on an employer to ensure that an employee does not suffer injury in the workplace or by the use of equipment supplied by the employer, needs only to be stated to be rejected, in the light of the truly vast amount of case law on negligence in this country and in England in nearly 65 years since Donoghue v. Stevenson. For example, in Stevens v. Brodribb Sawmilling Company Proprietary Limited [1986] HCA 1; (1986) 160 CLR 16, one of the most recent High Court cases to reiterate the point, Wilson J and Dawson J stated in the clearest terms that the direction of the High Court has been diverted away from strict liability and that reasonableness remains the standard even though an ultra-hazardous operation may require an ultra-cautious response.

16. I should state here that in the light of the plaintiff's evidence, I accept as of minimal probative weight only a statement taken shortly after the incident from Mr. Gledhill. Mr. Gledhill gave evidence at the hearing, but he was not able to remember anything helpful, except that he was present at the time of the spillage.

17. The plaintiff said in evidence that he had never been required in the course of his duties to transfer Malathion from one container to another. However, in my view, he should have known as a result of his training and experience that the can of Malathion would have been less easy to pour than a container of Roundup and he should have been careful to wear his PVC gauntlets which, at the time, were nearby in his truck. It was his choice to wear the cotton gloves and not the PVC gauntlets, simply because he found the former more comfortable and more efficient.

18. The plaintiff himself said under cross-examination "being in the habit of using poison like Roundup, I sort of didn't think". Later he described his behaviour as that of "someone inadvertently driving through a red light". However, at the same time, Mr. Graham should have known of the plaintiff's practical inexperience in the use of Malathion. He should have observed that the plaintiff was not wearing his long PVC gauntlets. Mr. Graham knew that the Malathion was to be transferred, eventually, into a small bottle not intended for such use. Mr. Graham should have known that there were particular dangers involved in the decanting of Malathion by the plaintiff and the storage of the Malathion in the small bottle. There is no causal connection between the intended storage in the small bottle and the plaintiff's injury, but reasonable care on the part of Mr. Graham at the time of giving permission to the plaintiff to take the small quantity of Malathion out of stock, would have involved a consideration not only of the risk to the plaintiff in decanting the Malathion (a risk greater than when he decanted the usual Roundup) but also the particular risk involved in storing the pesticide in other than the manufacturer's container. He should have considered both matters and issued a warning on both. The fact that he issued a warning on neither, in my view, reinforces the charge of want of reasonable care in both, although only one is causally connected to the plaintiff's injury. Mr. Graham, in short, reposed too much trust in the plaintiff to take reasonable steps to look after his own safety. If Mr. Graham had drawn the plaintiff's attention to the need to exercise particular care in pouring from the round can of Malathion and transferring, eventually, into a small receptacle and also of the danger of storing the Malathion in other than the container supplied by the manufacturer, the warning would have been likely to alert the plaintiff to the need to take the simple and usual course of using the PVC gauntlets supplied and available. Those gauntlets were likely to have avoided spillage onto his wrist. He might also have considered using the benchtop in the hooded cabinet to place the beaker on it, leaving both hands free to control the can as he was pouring from it into the beaker. Thus, in my view, there was a want of reasonable care for which the Commonwealth was vicariously responsible. There was no negligence in the sense of breach of an employer's personal duty of care.

19. At the same time, the plaintiff clearly failed to take reasonable care to minimise the risk to his own safety. Without question he should have worn the PVC gauntlets. (Perhaps he should have used two hands to control the can of Malathion, but the beaker was a light one and might have needed steadying with one hand.) The plaintiff's carelessness is further illustrated by his decanting the toxic chemical over a tub which discharged into the stormwater system instead of at the hooded cabinet which was fitted with a drip tray, although that particular aspect of his carelessness bears a danger to the public rather than a danger to himself. In my view the greater disregard of the reasonable measures which might have been taken to minimise the risk to the plaintiff was on the part of the plaintiff himself rather than on the part of Mr. Graham or the defendant. However, the proportion by which his damages are to be reduced for his contributory negligence is to be just and equitable having regard to the plaintiff's share in the responsibility for the damage: Law Reform (Miscellaneous Provisions) Act 1955, sub-s.15(1). It is generally recognized that an employer must take reasonable steps to protect all workers, including even foolish and lazy workers from the consequences of their ineptitude. In contemporary terms, the imbalance of power and responsibility as between employer and worker is usually such that even a glaring example of contributory negligence does not necessarily attract a severe reduction of damages: cp Podrebersek v. Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529. Nevertheless, in all the circumstances of the case, I think it just and equitable having regard to a comparison of both culpability and the relative importance of the acts of the parties in causing the damage that the plaintiff's damages be reduced by one half for his own contributory negligence.

20. I turn now to damages.

21. The plaintiff was born on 23 July 1927. He is a welder by trade and had worked in that capacity for much of the time he was in the Parks and Gardens Service. He appears to have been in reasonable health up until the time of the incident. He claimed that at the time of the spillage he inhaled fumes which sent him into a state of shock aggravated by further fumes when he washed his hands in the tub. He continued his work but with an increasing feeling of nervousness. About two hours later he stopped work in a state of panic or distress and reported to the Woden Valley Hospital where he was admitted. He was treated with an antidote drug, atropine. His situation must have been regarded as quite serious because he was placed in the intensive care unit. He was discharged from hospital a few days later. By that time it is clear that those responsible at the hospital thought that he had made a routine recovery from what was not a very serious case of chemical poisoning via the skin. The evidence does not support any finding that he was poisoned by inhalation.

22. However, the experience had a very serious psychological effect on the plaintiff. He had a total of three months off work. He reported back to the hospital with dizziness on 6 and 22 December 1985, but it seems that there was no organic basis and nothing could be done for him.

23. When the plaintiff returned to work he was employed in the maintenance department and was not required to be exposed further to pesticides. However, he felt that he had difficulty coping with fumes of any sort and with the noise of the lawnmowers.

24. Since the incident the plaintiff has had a variety of other medical problems not connected with the incident, including an aneurism, palpitations, inguinal herniae, and cancer of the lung. In June 1992 the latter condition was treated with chemotherapy and radiation treatment which appears to have been successful.

25. The plaintiff has been twice married but both marriages failed and he lives alone. He retired from government service at the age of 65 in July 1992. He is depressed and moody and has been virtually so ever since the incident. He has hearing difficulties. He is a heavy smoker and is frank in conceding that despite this cancer he disregards advice given in this regard.

26. The ingestion of the poison through the skin in the incident of November 1985 was, on the evidence, an aggravating factor as far as the plaintiff's present psychological symptoms are concerned. I accept the evidence that his continuing condition, particularly over the ensuing two years or so, is well characterised as post-traumatic stress disorder. The plaintiff had an unusually emotional reaction to the event, associated apparently with his belief that it was the culmination of a number of years of exposure to toxins which would have affected him in any event. The plaintiff's belief may not be medically or scientifically sound, but the Commonwealth as defendant has to accept the plaintiff as it finds him and I have little difficulty concluding that on the balance of probabilities the plaintiff's condition over the two years or so following the incident was causally connected to it. Since then the picture is less clear. There has been the intercession of all his other problems in the meantime, and it is difficult to sort out how far, if at all, the incident itself continued to play any part. In the end, applying the approach in Purkess v. Crittenden [1965] HCA 34; (1965) 114 CLR 164 that in circumstances like this, it is for the defendant to do the sorting out and to show how the contribution of the defendant's wrong-doing has been displaced by ensuing events, I do not think that the defendant has discharged the onus in this respect. Although it is likely that the plaintiff may not have been free from depression, moodiness and general unhappiness even if he had not spilled the Malathion upon himself, his condition overall is complicated and aggravated by the post-traumatic stress disorder which, in my view, even at this stage continues and cannot be dissociated from his psychological condition.

27. There is no claim for continuing or future loss of earning capacity. The figures for past out-of-pocket expenses are agreed at $4,368.95 and for past loss of earning capacity at $5,812.42 This latter figure includes the Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438 component. The plaintiff is not receiving continuing medical attention, although it has been recommended that he submit to psychiatric treatment. Whether or not he will do so and to what extent it will involve him in expense in the future is conjectural. I shall include an amount for this factor in the general damages to be awarded. Those general damages, both past and future, must take into account that although the effect of the incident continues, there is also the effect upon the plaintiff's general condition of several other medical and probably psychological factors for which the defendant is not responsible. The plaintiff's age is also to be borne in mind, particularly as far as general damages for the future is concerned. Doing the best I can in what is essentially an exercise in discretion or value judgment, I would award the plaintiff $27,000 for pain and suffering and loss of enjoyment of life, as to which I apportion $20,000 to the past. On the past component I award $4,200 for interest. The total award then is for $41,381.37, which appears to me to be appropriate. It is reduced by half for contributory negligence to $20,690.69 and the plaintiff is to have judgment for that sum.

28. Unless the parties wish to be heard I propose to order that the defendant pay the plaintiff's costs on the usual party and party basis. At the time of discovery, the defendant failed to disclose a number of discoverable documents and then sought to rely on them at the hearing. They were important documents. Their contents were not put to the plaintiff in cross-examination, and although the plaintiff was not recalled in reply to say anything about them, I think that the defendant's failure should be marked by an order that costs be payable on the full Supreme Court Scale.