Wood v Esso Petroleum Co Ltd [2011] EWHC 1876 (QB)

Case No TLQ/10/0575[2011] EWHC 1876 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Venue Royal Courts of Justice,Date Wednesday, 9 th February, 2011
The Strand,
London WC2A 2LL
Before
MR JUSTICE MACDUFF
Between
WOODClaimantESSO PETROLEUM CO LTDDefendant
Digital Transcript of Wordwave International, a Merrill Communications Company165 Fleet Street, 8th Floor, London, EC4A 2DYTel No: 020 7422 6131 Fax No: 020 7422 6134Web: www.merrillcorp.com/mls Email: mlstape@merrillcorp.com(Official Shorthand Writers to the Court)
MR J CLARKE (Instructed by Atherton Godfrey) appeared for ClaimantMR R PERSHAD (Instructed by Thomas Cooper) appeared for Defendant
Judgment
[1]This is a claim for personal injury and consequential losses. The claimant, who is 43 years old, brings his claim against the defendant, Esso Petroleum, contending that he sustained serious injury on 17th June 2005 when working at their premises at Fawley, Southampton. The claimant was working at the time as a steel erector for Motherwell Bridge Services Limited, a Lincolnshire based company. On 17th June 2005, working upon construction works on Block 9, he says he inhaled a noxious, dangerous substance. As a result, he went to hospital the following day and has suffered from respiratory injury thereafter. It is pleaded in paragraph 4 of the amended particulars of claim that he was “exposed to some unknown gases which had been sent up the flare stack but had not ignited, leaking into the atmosphere, or escaped from some other part of the defendant’s work.”[2]A few words about the claimant. In the early 2000s he stopped steel erecting and became a public house manager, a career move which he says did not work. He has pleaded that, had this accident not occurred, he would have continued as a steel erector to the ripe old age of 70. His claim as pleaded exceeds seven figures, largely based upon the assertion that he would have continued to work for many years with the substantial earnings of a steel erector. It is clear that, although he had at first claimed that he was fit and well, telling the doctors so much, in fact, when investigated, he had had a bad back since 1990 and had been advised by doctors against continuing in heavy work. It also appears that he had, to some greater or lesser extent, a liking for drink which it has been suggested was a “drink problem”.[3]In the event, it was agreed with counsel at the beginning of this case that I should deal, firstly, with liability and causation and then, depending upon the result, move to quantification at a later stage. Accordingly, I have not looked at the claim for pleaded loss or applied my mind at all to the quantum of damages to which the claimant would be entitled if he won this case.[4]Prior to this accident the claimant had been signed off work for a period of approximately two years between Spring 2003 and Spring 2005. This followed a motor accident in April 2003. So his working pattern had been severely disrupted in that way. Having failed to succeed or otherwise continue as a publican, he returned to steel erecting after a long lay off in February 2005. That work only lasted for 4 or 5 weeks, he working for another steel erecting company, Babcock’s. There then followed another short period of unemployment before he began working for his employers, Motherwell Bridge, in June 2005. In fact, the incident with which this court is concerned on 17th June 2005 was only five days into that employment, he having resumed his work as a steel erector on the Monday, the incident occurring on the Friday.[5]Some background information: This oil refinery carried on many different chemical processes, and there can be no doubt that there was the potential for the escape of hazardous gases. Of particular concern was hydrogen sulphide, but there were other hydrocarbons and sulphur-containing mercaptans. These substances have threshold limit values. A threshold limit value marks the watershed between what is considered to be safe and what is considered to be potentially dangerous. It is fixed at a conservative position. It takes account of concentrations of gas and times of exposure. Below the line even hydrogen sulphide and other hydrocarbons, mercaptans and the like, are deemed to be safe. They are in such concentrations as to be not foreseeably likely to cause damage to the individual, fixed, as I say, in a conservative position, giving a wide margin erring on the side of safety. They recognise that individuals differ in their vulnerability. I will need to return briefly to threshold limit values at a later stage. For the moment it is sufficient for me to note that there was the potential within these premises for dangerous gases to escape if systems were not kept tight.[6]At the material time, Motherwell Bridge were working upon a construction project on Block 9 of the Fawley premises. I can refer now to three maps or drawings of the site at pages 1094, 1095 and 1096 of bundle C. Those three drawings all show Block 9. In the drawing on 1094 Block 9 is in the centre of the drawing, there or thereabouts. It measures about a centimetre square in scale. North on that drawing points to the top left-hand corner of the page, i.e. at an angle of approximately 45 degrees towards the top left-hand corner. Unfortunately, the three maps are all in different dispositions, so that on page 1095 north is pointing directly to the top of the map in the traditional northerly direction. On 1096 north is pointing directly to the right-hand side of the map, so that drawing is moved round by 90 degrees. I mention that only for ease of understanding the drawings.[7]The drawing at page 1094 shows Block 9, as I say, more or less in the middle. The three tanks, 450, 451, and 452, can be seen to the eastern side of the block, and Block 9 is immediately adjacent to Block 8 on one side, Block 6 on the other, Block 15 on another, and Block 12 on the other side. The significance of this drawing is that it locates the four flare stacks to which I will refer later. The nearest one to Block 9 is flare stack number 1, which is immediately to the southwest of Block 9. Flare stack 2 is virtually alongside it. Flare stack 3 is well removed to the left-hand side of the plan, and flare stack 4 is in the area of Block 19 to the north of Block 9. (I will be referring to those flare stacks in due course.) On this plan the approximate wind direction on the relevant date can be shown coming in more or less from the south.[8]The drawing at page 1095 again shows Block 9. It shows the three nearest flare stacks, numbers 1, 2 and 4, and Block 9 has grown in size, but the three tanks, numbers 450, 451 and 452, can be clearly seen. The block is depicted towards the right-hand side of this drawing, adjacent to Block 6. Again the wind direction is shown and again it is marked on the plan.[9]Of most significance is the drawing at page 1096. This is a much larger scale. The wind direction is coming in from the top left-hand corner, north being off to the right, and the drawing is concerned with Block 9 and only Block 9. Again for scale purposes, the three tanks can be seen this time along the bottom of the drawing. Other areas of note on this plan are that towards the bottom left-hand corner is a mess room and toilet and a smoking hut or a smoking area. In the top right-hand corner of the drawing is a muster point. (I will be referring to that as the northwest muster point.) To the bottom of the plan, on the right-hand corner, are written the words “Approx location of Trants.” Those are cabins which I understand belong to other contractors who may or may not have been present on the site at the material time. It was in this block that the construction works upon which the claimant was engaged were being undertaken, the main work area, I believe, being towards the top left-hand corner of this drawing (“the Block 9 construction works”).[10]Some further background information. I have been provided with evidence from the defendant that there were difficulties in industrial relations between Esso, on the one hand, and Motherwell Bridge and its employees, on the other. The evidence recurs throughout the witness statements, but I can begin perhaps with the evidence of Mr Hugh Campbell. Perhaps I should say this. All of the defendant’s witnesses to whom I will refer gave live evidence. In the normal way, their written witness statements were taken as their evidence-in-chief. Thus, where I say that I was told or informed, it may be that the words were not actually spoken in the witness box but could be read from the witness statement.[11]Mr Campbell, beginning at page 170, explained how earlier on there had been workforce and timing issues, the programme of construction falling behind schedule, materials not arriving on time, and safety issues. Following an accident, the project was suspended for several days – what he referred to as a “stand down”. This resulted in a significant change of personnel and a new approach by Esso. One of the conditions following the stand down was that each company on site had to prove that every member of the team was up to the job and could carry out the work safely, and a number of individuals were required to leave and not continue working. I quote now from his evidence:
“8. As such, there were numerous individuals who had been recently taken on who were no longer able to work on the site. Many of these were Motherwell Bridge employees. This caused a considerable amount of resentment from the remaining MB workforce towards Esso, which continued throughout the remainder of the job until its conclusion… 11. There was therefore an undercurrent of tension throughout the project. It was in this climate that the problems concerning smells and alleged gas leaks began to be raised on the block by MB personnel.”
That is Mr Campbell’s evidence. I have similar evidence from other employees. It was not challenged.[12]Mr Steve Wright, an impressive witness (to whom I will need to refer again later), gave evidence of similar concerns. There was, he told me, a lack of trust between Motherwell Bridge personnel and Esso managers. Previously, another contractor, Trants, who I think owned the cabins to which I have already referred, he said “were well experienced in working at oil refineries and were aware of the smells that refineries could occasionally generate. This may not have been the case with all the Motherwell Bridge personnel.” He then told me that there were a number of occasions, seven or more, where, prior to this incident in June 2005, manual evacuation alarms had been sounded by Motherwell Bridge employees. It is apparent that on the site and specifically within Block 9 there were alarms which could be activated manually by anybody who smelt what he or she considered to be dangerous gas emissions – good practice. On the 6 or 7 occasions when the alarm had been sounded, two things. First of all, they were sounded invariably by Motherwell Bridge employees and, secondly, shortly thereafter, following investigation, no emission of harmful gas had been found. In some of the cases the source of the smell was discovered; in others, not. At the risk of running ahead of myself, on 17th June 2005, the date upon which Mr Wood alleges he sustained his injury, one of these manual alarms was activated, apparently by a fellow employee of his at Motherwell Bridge, but I will be returning to the detail in due course. Of significance to my judgment, therefore, at this stage are two things:(1) that there was an industrial relations problem, and(2) that false alarms had previously been given and, I suppose,(3) the suggestion made on behalf of the defendant that there was linkage between the two.[13]The claimant’s evidence about the events on 17th June should be considered in detail. In his witness statement, I repeat treated as his evidence-in-chief, he said this:
“12. At about 5.30 on 17th June 2005 I was carrying out my usual duties at work when I needed a drink of water so I walked from the area in which I was working across the scaffold bridge towards the cabins. Whilst drinking my water and smoking a cigarette, I stood talking to a Foster Wheeler engineer, whose name I do not know, when an alarm sounded. I immediately recognised it, from my inductions, as an evacuation alarm and also understood that I needed to be upwind of any emissions that might be taking place and were the cause of the alarm sounding. The engineer and I looked at the windsocks that are provided around the site to check in which direction we should walk. 13. We determined that we should walk across wind to the North West muster point. 14. Having reached the North West muster point, a Foster Wheeler Safety Officer then instructed us to walk back again, across the wind, which neither of us were happy about as it effectively sent us back into the area of the gas, which we had been able to smell as we had moved away from the Motherwell Bridge cabins. However, we did as we were instructed as, of course, it was a Safety Officer who was directing us. On arrival back at the location we had been sent to, we were directed to go into Trant cabins where a number of us were told to remain. 15. I estimate that we stayed there for about 45 minutes, despite the fact that there was a strong smell of gas inside throughout the whole period of time we were waiting. 16. After about 45 minutes, we were advised to go back to our own cabins where a meeting was taking place. Our Motherwell Bridge Foreman, some [of the defendant’s] engineers and someone called Doug Devoy held the meeting. 17. The [defendant’s] Engineers, whose names I do not know, told us that something had gone wrong in that some unknown gases had gone up the flare stack which had not ignited, leaking into the atmosphere. No other detail was given, we were not told which flare stack it was or what gas it was that was supposed to have escaped. Generally, we were reassured and advised that it was safe to go back onto the job. 18. About an hour later I began putting some small bore pipework on, when I became short of breath. It was very hot that day and I simply imagined that my shortness of breath was due to the lifting I was doing, combined with the hot weather. Although the weather had been hot all week, until this time I had been working at the top of the structure where it was nice and breezy.”
Subsequently he went home, and the following day went to hospital.[14]The features of this evidence were these: that he was in the smoking area (which I have identified) with a Foster Wheeler man. The alarm went off. He and the Foster Wheeler man decided to go to the northwest muster point. There they were instructed to walk back, the two of them together. They were not happy. They went to the Trants cabins. They were there for 45 minutes with a strong smell of gas throughout, and then back to their own cabins, where they had a meeting, at which they were told that gas had escaped up the flare stack and not ignited and had accordingly leaked.[15]The evidence which he gave when cross-examined from the witness box was significantly different. As he remembered it now, the Foster Wheeler man did not accompany him to the muster point but went back to work, possibly even before the alarm was sounded. He, the claimant, smelt gas and decided to go to the muster point on his own. It was as he was on that journey that the alarm sounded, and he went to the muster point on his own. The total time of the smell was between 30 and 40 minutes he said in cross-examination. The significant difference will be recognised. Perhaps of most significance in terms of liability and causation is the period during which the smell could be detected. When he saw Dr Howard, a chest physician who gave evidence before me on his behalf, he said this (I am quoting from the report):
“It is difficult for Mr Wood to estimate the times of exposure to the fume. He would assess about one to one and a half hours exposure to an intense smell. No masks provided. There could have been up to another hour or so of diminishing exposure thereafter.”
That was the history taken by Dr Howard when he saw the Claimant in November 2005. It was this history, no doubt, which persuaded Dr Howard in his report to refer to a “plume” of gas.[16]A similar history was given to Dr Hines (bundle B page 443) but this did not measure up to the evidence of what he said when he went to hospital on the following day, i.e. the day after the incident. This is to be found in bundle F page 2987, where the history was given as follows:
“Gas leak 1730 at refinery - Could smell gas in area working - Smell went after approximately 15 minutes.”
That history is significant in two respects. First of all, it is vastly different from that which he said in his witness statement, to the court, and, more particularly, to the doctors. But, secondly, it accords entirely with evidence given on behalf of the defendant, principally Mr Wright, but also other witnesses. Their evidence unequivocally was that the smell had dissipated within 15 or so minutes. - Could smell gas in area working - Smell went after approximately 15 minutes.”[17]There was another significant feature upon which his credibility was challenged. In Mr Hines’ report he noted at page 443 in bundle B:
“Mr Graham Wood is a forty-one-year-old man, who indicated to me that he had smoked up to ten cigarettes per day between the ages of eighteen and thirty-nine. He indicated that he had stopped smoking following his accident in 2005.”
Mr Woods agreed in cross-examination that he was still a smoker. It was put to him that a fair reading of this part of the report would suggest that he had not smoked from the day of the accident until the time that he saw Mr Hines, and still was not smoking at the time that he saw Mr Hines. His response was that he had tried to stop smoking, and had stopped but had resumed, and presumably Mr Hines had misinterpreted. However, when he, Dr Hines, gave evidence he told me that it was more than that. This was on a questionnaire which he had sent out before he saw the claimant, and he had it in his own writing. He had stopped smoking at age 39, and there was no question of any resumption. The consequence of that is that I am invited on behalf of the defendant to say that Mr Wood is, at best, a poor and unreliable witness. I should perhaps say at this stage that that is a submission with which I agree. He is a careless witness. He is unreliable. His evidence changes from one moment to another, and he has said many different and conflicting things. There are other reasons I will be dealing with later, but he has demonstrated what can only be described as wild variability of symptoms since the accident, and there is evidence that when performing spirometry or other tests there are, to quote the doctors, “technical difficulties”, in that he appears to be giving sub-maximal effort. This not only makes diagnosis of his condition more difficult (to which I will return), but also raises the issue as to his reliability. I am not impressed with the claimant as a truthful historian. I am not prepared to take the extra step and find that he has deliberately misled the court, or that he is dishonest in the true sense, but I am prepared to say that as a witness I find him unreliable and find it difficult to rely upon his evidence.[18]I pause at this stage to ask how the claimant puts his case, noting as I do that he has never sought to identify the gas to which he was exposed and which he says caused the smell which he experienced. First of all, it is said that prior to this incident he had no breathing difficulties. That is something with which all can agree. An examination of his medical notes makes no reference to breathing difficulties of any sort prior to the accident. He undoubtedly experienced a nasty smell. He says that he then noticed symptoms – tightness in the chest and, depending upon when he said it, maybe pain in the chest and breathlessness – causing him to go to hospital the next day. These symptoms coincided with his inhalation of whatever vapours were causing the smell. Since then he has had breathing difficulties, variable, but present, and therefore, on the balance of probabilities, he invites me to hold that whatever condition he now suffers from, which incorporates his breathlessness, must have been caused by the smell, and was caused by the smell. Because the condition that I am required to find has been caused by the smell did cause him breathing difficulties, it follows, as night follows day, that the smell must have been harmful or hazardous. At least it must have been harmful or hazardous to him, whether or not to anybody else. It is suggested that I should find, on the balance of probabilities, bearing in mind that I have just found that he has a breathless condition caused by inhalation of the smell, that it was the escape of one of the harmful chemicals, the hydrocarbons perhaps. But, failing that, if I am unable to reach that conclusion, I should conclude that he inhaled an unknown gas which was, at the very least, harmful to him. In either event, the defendant would be in breach of duty for exposing him to the inhalation of a harmful substance. If one of the known gases which is known to be harmful, the defendant would be liable both at statute and common law. But if only harmful to him, then Mr Clarke relies upon a breach of statutory duty which he says gives rise to strict liability, and proof of causation would be sufficient.[19]On behalf of the defendant, Mr Pershad submits that that is putting the cart before the horse, or indeed several carts before several horses. It is for the claimant to prove his case. He has to prove it on the balance of probabilities. First, that there was an escape of a substance likely to cause injury to health – a hazardous substance, one of the known harmful chemicals, in sufficient concentration for it to be harmful to a man of reasonable fortitude. On this it is suggested by the defendant that he fails. There was no escape of such a substance on the overwhelming balance of probabilities, and the defendant has called a mass of evidence to that effect and to which I will need to refer. On the balance of probabilities, the evidence reveals, suggests Mr Pershad, a completely harmless smell. And even if the court were satisfied that this smell did cause or trigger some reaction, some injury in this claimant, that does not found liability, because such a reaction is not foreseeable, nor is it prohibited by statute for unpleasant smells to be emitted. However, Mr Pershad realistically accepts that, if I were driven to find that there had been an escape of a substance, a hydrocarbon perhaps, in sufficient quantity or concentration to be harmful, then breach of duty would follow and liability would be established. But the claimant fails to prove any such escape. The defendant also denies causation. The defendant denies that the incident –undoubtedly it happened, a nasty smell experienced by the claimant – caused any injury. First, they deny there was any injury. Secondly, insofar as there was an injury, there is no causal link.[20]With those competing submissions in mind, I return to the evidence.[21]The defendant called eight witnesses of fact, non-expert, though one, Dr Gaia Franceschini, was in fact an expert giving factual evidence. I do not propose to recite their evidence, but, for the purpose of this judgment, I heard from Dave Drummond, a Project Safety Adviser on the Block 9 project at the time (his evidence is in bundle A page 117). I heard from Hugh Campbell, to whose evidence I have already referred (bundle A page 169). At the time he was a general manager for Motherwell Bridge Engineering, closely involved in the Block 9 construction project. Thirdly, I heard from Rob Tabbard (bundle A page 175), an Esso employee who was construction leader on the project. Then there was Franceso Giancola, a Safety, Health and Environmental Manager (page 231), Mr Ian Althorp, a Utilities Process Engineer, (page 267); and Steve Tolley (page 353), a Fire Technician within the Fire Response Group. Those are six of the eight witnesses. I will not be considering their evidence individually, but drawing conclusions from it. The evidence to which I will refer separately is the evidence of Steve Wright, to whom I have already referred (bundle A page 160). He was the Esso Process Leader, and at the time was the process first contact for the Block 9 works. He was present on the day of the accident and himself experienced the same smell. I will also be referring to Dr Gaia Franceschini (page 77). She was a Utilities Development Engineer and was also an impressive witness. These witnesses all gave live evidence. They were cross-examined briefly and economically by Mr Clarke, and if he will forgive me for saying so – it implies no criticism of him – his questions only made their evidence the stronger. It is fair to say that he had no proper foothold on which to undermine that which they were saying.[22]So if I elide the evidence of the six witnesses, plus some of the evidence which I get from the others, I can find that the following are the true facts. Most of it is not challenged.[23]There were in place within the Esso refinery, as one might expect, detailed and sophisticated safety systems. There was a closed ring system for disposing of harmful gases, which were, of necessity, by-products of the various chemical processes carried on in the refinery. These were in the main recycled within the ring system to provide fuel, energy, for use in the process, so that most of these waste gases within this contained pipework were re-used and did not need to be disposed of. The surplus, which did require disposal, was sent through valves into one of the four flare stacks, released up the flare stacks to the top, and harmlessly burned off into the atmosphere. There were four such flare stacks, though for the larger part of the time only one was in use. All waste gases surplus to the fuel recycling processes were sent up flare stack number 4 unless and until there was a requirement to use one of the other flare stacks, and so on, at times of high emission. The flare stacks had constant pilot lights which were always on. There was steam injection to ensure efficient flaring into the atmosphere, and there was constant ignition from the pilot light if and when gases were sent up. There was automatic constant monitoring and maintenance of records. At the time, the records show that there were very low levels of excess gas, given that the smell was experienced, as we know, at a specific time on a specific date. Flares 1, 2 and 3 were not working. There was intermittent use of flare 4, with nothing in the records to indicate that anything went wrong. Furthermore, as I find, on Block 9 at the material time there were some automatic gas sensors designed to sound an alarm automatically if harmful gas in a relatively low concentration were to be detected in the atmosphere. These were affectionately known as “daleks”, and on the block there were 4 of them, though they were not always all in use. There would always be at least 2 in use, sometimes 4, and usually 3. They were positioned and repositioned in the optimum positions to catch any escaping gas, having regard to the direction of the wind, and often placed up on scaffolding above ground level. They detected hydrocarbons and hydrosulphide at levels far below that which would be dangerous even for long exposure, though it seems they were not sensitive to sulphur-containing mercaptans. Furthermore, certain of the personnel on site, principally the Esso personnel and certainly Mr Wright (to whom I have referred), carried personal safety detectors, also designed to sound an alarm if assailed by any of those dangerous gases in relatively low concentrations, levels which it was acknowledged would be safe at the trigger point. They were sensitive to mercaptans. At no time on 17th June 2005 did either a dalek or a personal safety detector sound an alarm. On the material date there is no doubt that a worker, likely a Motherwell Bridge worker sounded one of the manual alarms, understandably, given that there was a noxious, unpleasant smell. There were 30 or more people working in and around Block 9. On the sounding of the alarm the area was evacuated for a short time, but no one else suffered any injury and no one else claimed to suffer any injury other than Mr Wood. Immediately after the evacuation an alarm had sounded and a Fire and Response Group attended. They treated the alarm as a proper emergency. They provided themselves with proper protection and went in and tested the whole plant for chemical leaks. They found no chemical emission. I also find this, based upon the evidence of these witnesses. This incident (as I shall call it) on 17th June 2005 was just one in a series of unidentified smells which happened around this time. In none of the other cases, as I have already noted, was there any evidence of harmful escape, nor was there on this occasion. The source of this particular smell has been investigated, but not identified.[24]Relevant to this evidence the claimant told me, first of all, that there were no daleks on the site at this time. They came back on to the site 48 hours later. I kept a note of his cross-examination and I read from my note:
“There weren’t any daleks on the site. They did not put them out until 48 hours later. There was no sign of daleks operating. I am positive there were no daleks because the lads asked why they had not gone off, and that is why the scaffolder had to go and do it manually.”
But he agreed that this did not appear in his pleaded case, or in his witness statement. He read the defence and knew of the allegation that the daleks were there and had not gone off. Nevertheless, this did not appear in his witness statement. Secondly, as already noted, in paragraph 16 of his witness statement he had said that the escape was from a flare stack, gas which had escaped without ignition, and that this information had been given to him at a meeting at the cabin later. Those two pieces of evidence will require consideration.[25]I now turn to the evidence of Mr Steve Wright, who had been at Esso Petroleum for 14 years. I repeat that I found him to be a wholly impressive witness, telling me the truth reliably and sensibly. Mr Wright was present on the block on the day. He was there and smelled the smell. He described the smell as being similar to burning onions. His experience told him that it was not a dangerous fume. It was certainly not a smell of mercaptans; he knows what that would smell like. As to daleks, he said this:
“The daleks are designed to detect both hydrocarbons and hydrogen sulphide at very low concentrations between 5 to 10 parts per million. These are the two principal gases produced at the plant, although the latter is significantly more dangerous. The portable gas detectors were known as daleks and their introduction was explained to the Motherwell Bridge personnel.”
Following this alarm on 17th June he said he carried out a visual check on the portable dalek on the block and determined that it had not operated. “The gas detector that I wore had also not operated. This reinforced my view that the smell was not dangerous.”[26]I find that there were daleks (if I can call them that for shorthand) on the block. Otherwise, how could Mr Wright have checked it? I reject the suggestion made for the first time in the witness box by the claimant that daleks were brought onto the block 48 hours later. Mr Wright told me that the duration of the smell was only 15 minutes. The mercaptans, he told me, were produced on very few occasions indeed. They produce a horrendous smell and special precautions would be taken. He strongly disagreed with any suggestion that mercaptans might have been responsible for this smell. It was, he said, his view at the time, and still remains his view, that the burnt onion smell was the type of smell you could sometimes find throughout the plant and any oil refinery. If anything, it was a slightly sulphur-like smell, but certainly was neither hydrogen sulphide nor hydrocarbon in nature.[27]As to the claimant’s suggestion that he had been told that gas had escaped from a flare stack without flaring, that information, as I find, came from Mr Wright, but not quite in those terms. Mr Wright told me that he was acutely aware of the hostility that was being directed towards Esso consequent upon recent events but particularly with regard to this particular evacuation. It was he who addressed the claimant and others in the hut. “33. The contractors demanded an explanation as to where the smell had originated and although I did not have one, I took the view that it was important to offer some form of reasoning for the smell being detected so that the contractors felt satisfied.34. Although I did not have any evidence to support the view, I explained to the assembled personnel that I thought the source of the smell could have originated from one of the flare stacks. I felt it was conceivable that the smell could have come from there.35. …I must stress that I had no evidence whatsoever that the flare was responsible for the smell but simply wished to offer an explanation to a very aggressive and unhappy group of individuals who simply could not accept that the smell was simply that. Although I accept that I told individuals at the meeting that a flare may have been the source of the smell, I do not know whether that is in fact accurate. Therefore, though I understand where Mr Wood has obtained this belief it is, in all likelihood, incorrect.” I have no hesitation in accepting that explanation.[28]I should next refer to the evidence of Dr Franceschini. She is employed in the Utilities Technical Department at Esso’s refinery in Fawley, her job title being Utilities Development Engineer. Within her group there is a piece of computer software known as “PHAST” (Process Hazard Analysis Software Tool). This piece of equipment allows computer modelling of a potential incident from the initial release of gas to far-field dispersions, including the modelling of evaporation, toxic and flammable effects. It can be used to simulate the results of gas leaks, explosions, fire, and general releases of substances from a particular location at various pressures, weathers, and other variables. In Fawley the software is used specifically for risk assessment and design purposes, used to model scenarios of potential concern, and the results of simulations are used as bases for design and prevention. For example, if gas were accidentally released from a particular position in a particular concentration at a particular pressure, what would the effect be on somebody working, say, 100 yards away, and so on? That is the purpose of the software. It is also used to model potential consequences for incidents occurring on site to assist emergency responses. Following the initiation of this claim, she was asked to model a gas release in two places: from one of the flares at the refinery and, secondly, from tank 344. It was necessary for her to feed the software with information. She had to have a sample or an analysis of the gas, setting out each of the compounds present within it. Weather conditions would be put in, temperature, wind direction and wind speed, defining the geometry of the gas release, the height at which it is released, the release rate, the flow rate, the discharge velocity, the dilution rate, and finally the orientation of the release. Then the software would calculate the release and whether it would be possible to simulate the release as to the direction of flow, the area the gas would affect and in what concentrations, and so on. Then it would be possible to say with relative accuracy the amount of a particular gas released in parts per million or parts per billion at a specific geographical point. With regard to the composition of the flare gas, she was able to use a laboratory report analysing the sample at the relevant time on the relevant date. She then operated the software – impressing the court that at all times she was using a worst case scenario – assuming that the emission was from flare 1, the nearest to where the claimant would have been, and having regard also to the wind direction – closest geographically to Block 9. She assumed the maximum discharge velocity, the maximum release rate, and that the gas flare was not operating and that the pilot light failed to ignite, the worst case scenario with regard to weather, assuming unstable weather, assuming a release directly into atmosphere without being ignited and without being diluted by steam at the point of exit, which would normally be the case. Using that simulation, the nature of the harmful gases, maximum release rates and so on, she was able to reach her conclusion as to what the effects would have been in Block 9 in the position where the claimant would have been standing at a height of 1½ metres above ground. She did a similar exercise using the PHAST software in respect of a potential leakage from tank 344, simulating that but taking account of the different components of what would have been released from there. The results of her tests were that, even using worst case scenario, the worst that could have been achieved at the position where the claimant was allegedly affected would have been in relation to hydrogen sulphide, for example, the most dangerous of the gases, an exposure rate of 0.02 parts per million against an HSE exposure limit of 10 parts per million. This is at a ratio of 1 to 500 below that which is permissible, assuming worst case scenario and an escape which it seems almost certain did not take place. Her evidence was impressive and reinforced other evidence given on behalf of the defendant.[29]I return then to the claimant. He says that he went back to work and went back to his digs later. Although it did not appear in his witness statement, he went to a public house that evening and had some drinks and cigarettes, but later in the evening he had shortness of breath, chest tightening, dizziness, heart racing, and slept badly. He went to work the following day feeling unwell and went to the hospital, where certain tests were carried out. I have received expert evidence from six people: chest physicians Dr Howard on behalf of the claimant and Dr Hind on behalf of the defendant; psychological evidence from Mr Michael, a Clinical Psychologist, on behalf of the claimant, and Dr Fry, a consultant psychiatrist on behalf of the defendant. Mr Michael’s evidence was given under the Civil Evidence Act, and I have read it carefully from start to finish as I undertook to counsel to do. I have also received evidence from toxicologists: Dr Bojan Flaks on behalf of the claimant, and Professor Donaldson on behalf of the defendant. By far the most significant of this expert evidence comes from the chest physicians. They agree that the respiratory results taken at Lymington on the day after the accident were entirely normal and not indicative of any asthma. They agree that in November 2005, when the claimant saw Dr Howard and was subjected to further tests at the Claremont Hospital on Sandygate Lane in Sheffield, similar normal results were obtained, not indicative of asthma, some 5 months post accident. As the claimant’s case on causation rests almost entirely on Dr Howard’s evidence, it is as well to look at his evidence first.[30]In reaching his conclusion Dr Howard draws upon the hospital notes, principally the spirometry and other testing, but also self-administered peak flow results, self recorded over a series of days. In reaching his conclusion he relies upon a fall in performance on these test results in 2007 plus the variation in the results, with a further fall in performance in 2008, a drop in the mean line consistent with developing asthma. Insofar as there is asthma, it has to be either constitutional or irritant, albeit with an exaggerating psychological effect. It is Dr Howard’s evidence that the second is the more likely, that the claimant has contracted reactive airways dysfunctional syndrome (RADS), a significant component of which is a psychological reaction. Thus it is that he reaches that conclusion based essentially upon the test results, but also what the claimant has reported to him and which he has accepted. Based upon his examination in November 2005 he reached various conclusions. It cannot be overlooked that his conclusions were against a background in which he concluded or reported that the claimant had been “exposed to a plume of gas clearly heavier than air for one or two hours, probably a heavy exposure for about an hour, diminishing thereafter.” That, it seems to me, is a statement which colours the whole of his evidence. He looked for a wheeze and found none. He reached the conclusion that the claimant had probably had a mild asthmatic reaction to the inhalation, but at that stage he, Dr Howard, did not know whether it was purely psychological or whether there were continuing effects of inhalation. That would have to await further reports and testing. That was his first report. A year later, based on the same history, the diagnosis changed (bundle B page 401):
“…irritant induced asthma to chemicals unknown from a single dose episode…RADS.”
What was the reason for his change of opinion? This was in November 2006. He had not re-examined the claimant at that stage but was relying only upon notes taken from the hospital in Doncaster. Those notes revealed variable spirometry results, both taken professionally plus the claimant’s own self-administered peak flow measurements. They were based also upon the claimant reporting within those notes occasional wheezing – something which Dr Howard had not heard for himself. And the spirometry showed normal results except after exercise, where there was a significant fall in performance. Dr Howard accepted that there was a substantial stress component.[31]I can interpose into my judgment at this point that a common theme from both of the doctors, as well as doctors who treated the claimant at hospital, was what was referred to in code as a “technical problem”. That is to say, the claimant did not or was unable fully to cooperate with the spirometry, either deliberately or because of an element of stress. As a consequence, both doctors were obliged to agree that one could not put as much faith in the spirometry and respiratory function tests generally as one would otherwise be able to do. The only diagnostic aids available were respiratory function test results and the claimant’s own spoken history.[32]Dr Howard’s next report was based upon an examination in May 2007 and written in the following month (bundle B page 410). He said that the tests were difficult to perform as Mr Wood was very nervous. “…there may have been some restriction of forced vital capacity [FVC] because of not blowing for long enough.” This is the technical problem to which I have referred. He concluded again that the diagnosis was RADS, worse than before. Similarly, on a third examination in April 2008 he reviewed the updated records and gave the same diagnosis, though noted that the claimant seemed a little better, but thought it was of “considerable importance that I am told the nature of the gas”.[33]Dr Hines’ first report is 8th June 2009. He had the advantage of having all Dr Howard’s reports, plus all the evidence from the lay witnesses, plus all the test results from Lymington, Doncaster and elsewhere, including the claimant’s self-administered records. On pages 455 and 456 he set out his views on diagnosis and causation. The diagnostic criteria for RADS were there set out. He was of the view that this could only be RADS, or wholly psychological. RADS, after all, is a single dose based upon a single inhalation. There are eight criteria, three of which may not be of great significance for his purposes, but, without repeating them in detail because they recur in the joint report of the two experts, the relevant ones are numbers 2, 3, 4, 5 and 6 on pages 455 to 456. Perhaps the most significant as a diagnostic feature is that in order to have RADS there must be exposure to a gas, smoke, fume or vapour that was present in very high concentrations and had irritant qualities. That was diagnostic aid No 3. “Clearly”, said Mr Hines, “it is for the court to determine the circumstances of the aforementioned incident. Based on the information to hand it would not appear that this man was exposed to a very high concentration of an irritant substance.” When he gave evidence before me he explained that this criterion had to be fulfilled in order to get to the starting gate. In their joint report dealing with this particular diagnostic aid at (c) on page 465 the experts agreed, and I repeat that which was in Mr Hines’ own report:
“Clearly it is for the court to determine the circumstances of the aforementioned incident. Based on the information to hand, it would not appear that this man was exposed to a very high concentration of an irritant substance.”
I asked Dr Hines whether, when this was agreed between him and Dr Howard, he was surprised that Dr Howard therefore stuck to his diagnosis of RADS. He said he was, because this has to be a given. But there are other features. In Dr Howard’s view there was a wheeze, but that was only on the story put to him consistent with mild asthma. At (d) on page 466, in Dr Hines’ view “the symptoms worsened several months after the incident in question. In contrast, in individuals with reactive airways dysfunction syndrome after initial deterioration there is usually a steady improvement.” That was something with which Dr Howard was obliged to agree.[34]Before considering the issue of causation which this raises, I also note that the tests at Doncaster repeatedly refer to him having a “poor technique, query genuine? Sub-maximal effort. Unable to blow hard.” And in a letter from Dr Hicock to the general practitioner:
“It seems highly likely that the lung function abnormalities are simply related to technical limitations. There is no obvious alternative explanation…”
That is not evidence which I can accept, of course, as expert evidence, but it is evidence with which Dr Hines entirely agreed, as he told me. It is based upon that evidence that I will have to determine in a few moments what I make of causation and specifically of what injury, if any, the claimant sustained.[35]I had other expert evidence. From toxicologists I had evidence from Dr Flaks on behalf of the claimant, and Professor Donaldson on behalf of the defendant. It was Professor Donaldson who provided me with the information about threshold limit values, and which he interpreted specifically from the PHAST modelling. I have to say that, in view of the fact that there was no information to the toxicologists about the nature of the gas, their evidence was of little value. Dr Flaks spent most of the 79 pages of his report reciting everybody else’s evidence. He then at the end reached a conclusion that Mr Wood’s ongoing disorder (whatever it might be) “was triggered initially by inhalation exposure to an irritant gas or vapour”. But his report repeatedly goes back to his requirement that he be told what the gas was, and preferably in what quantity and concentration:
“Normally I expect when I give evidence to see evidence of a chemical exposure that is clearly identified and preferably quantified.”
Apart from Professor Donaldson’s threshold limit values, I receive little assistance from the toxicologists.[36]I also had the psychological evidence, to which I will return, but now I need to make some findings.[37]I find, if it is not already apparent, that the claimant is not a reliable witness. I reject those parts of his evidence which are inconsistent with other evidence – the duration of the smell, for example. I have made thus far no reference to the surveillances report and the accompanying pictures, but I find there are some inconsistencies there as well. I am not prepared to brand the claimant as an out-and-out malingerer. I am prepared to say that he is an unreliable witness. I remind myself that the burden of proof in this case is upon him. I find that the smell which he experienced lasted for 15 minutes. I make no finding as to what it was. I do make a finding as to what it was not. It was not a hydrogen sulphide. It was not a hydrocarbon of other form. Nor was it mercaptans with a sulphur content. I find that on the overwhelming balance of probabilities on all the evidence put before me. It was an unidentified nasty smell. In my judgment, the claimant has failed to prove that it was “harmful” in the sense of giving rise, certainly in the concentration in which it was presented to him, to a foreseeable risk of injury. On the contrary, on the overwhelming balance of probabilities, the smell or vapour (call it what you will) was not harmful in that sense, in the sense of being foreseeably likely to cause damage. I find that overwhelmingly on the defendant’s evidence, noting also that nobody else was affected by it. I note, however, that Mr Clarke submits that it was harmful or hazardous in a different sense. He invites me to say, first, that on the evidence I should be satisfied that its inhalation caused injury to the claimant, whatever that injury was, and, secondly, that that would be sufficient to found a breach of statutory duty. I will need to come back to that. For the moment, it is sufficient for me to find that the claimant was exposed, if that is the right word, to a smell which was neither harmful or hazardous, if those words connote a foreseeable risk of injury to an ordinary human being of reasonable fortitude. Noting, as I do, that Mr Clarke’s submission is based upon a further submission that I should find causation proved, I will now move to that issue, depending, as it does, upon my assessment of the evidence of the chest physicians. I note also, en passant, first, that this is where the defendant says the cart is being put before the horse, but also that there is a secondary submission on behalf of the claimant based upon the assertion that the claimant must be particularly, even uniquely, vulnerable to a respiratory reaction when I reach my conclusion both on causation and whether it was harmful to him.[38]As to the respiratory evidence, I much preferred the evidence of Dr Hines to that of Dr Howard. It has been submitted on behalf of the defendant that Dr Howard was partisan, arguing a corner and entering into the arena. It is a submission which finds favour with the judge. I found his defence of his diagnosis of RADS, in particular, to be wholly unrealistic and based not on balances of probability but really on the remotest of possibilities. His evidence was based upon a large plume of gas effectively engulfing the claimant for a long time. His conclusion was based on supposedly deteriorating and variable test results, which he himself conceded to be unreliable in view of the claimant’s inability to inhale fully and breathe out fully and cooperate either consciously or subconsciously with the test. It depended upon the claimant’s own reporting of symptoms which he had to take at face value. But of most significance were the RADS criteria which, on any view, were not met, and I am satisfied on the enormous balance of probabilities, not just the usual balance, that the inhalation of that smell had no irritant effect upon the claimant, that it had no asthmatic or other physical consequences, and that RADS can be ruled out of the equation. At the very most, the claimant suffered some form of psychological reaction.[39]That being the case, I am entirely satisfied that the smell was not harmful in the wider sense contended for by Mr Clarke. It was neither foreseeably harmful or hazardous to the world in general; nor was it in fact, with the benefit of retrospective vision, harmful to Mr Wood, unless it did not harm him in a physical way. It could only have harmed him – and here I try to choose my words carefully – if it induced in some way in his psyche a genuine fear and belief that he had inhaled a dangerous gas so that he subconsciously acted the role; that his psyche took over, that he genuinely felt breathless, not because there was any physical damage – I find that there was not – but because he thought there was. This used some years ago to be called “functional overlay” – a phrase which has now fallen into disuse. On page 467 Dr Hines reached the final conclusion in the joint consultation:
“All of this man’s respiratory upset following the incident in question is probably as a consequence of a psychological upset.”
He said that, of course, because, in his expert judgment, there was no physical injury.[40]I have thus reached the conclusion that the only way that the claimant could submit that he has sustained some injury as a consequence of this inhalation is on the basis that there is a psychological reaction caused by the incident. Now that physical injury is excluded, there are only two possibilities:(1) that he is an out-and-out malingerer; or(2) that the psychological upset was consequent upon the events of June 2005. Of course, there is a third, that he either suffered no psychological consequences, or they were not caused or triggered by the incident.[41]It is at this point that one needs to look at the psychological evidence. The claimant’s case, as it can only now be put, is summarised by Mr Michael, a clinical psychologist, at page 483 and thereafter in his report. He says this:
“…my expertise does not extend to physical effects of gas exposure… If and when the nature of the gas becomes known, it may be appropriate to seek a neurological and a neuropsychological report. However, as regards post-traumatic stress, and indeed anxiety concerning health problems, it should be noted that it is the observer’s subjective view of events and their cause, not an objective account, which determines whether symptoms will develop.”
That elegantly puts that which I was trying to articulate a few moments ago. In Mr Wood’s case he believes that he may have been exposed to a gas which might be carcinogenic, and he says that during the night after exposure he thought he might have a heart attack, that he thought his life might be in danger and was physically damaged. Those in themselves are sufficient to permit the application of criteria to symptoms following the trauma, that he felt helpless – the incident was unavoidable from his perspective – and frightened, although apparently the case, are not then separately necessary to meet diagnostic criteria. Below he reports that Mr Wood thought that his lungs had suffered 25% damage. He speculates about his condition deteriorating and he might develop cancer. This is the summary on page 485:
“Mr Wood is suffering from depression and anxiety as well as exhibiting unhelpful abnormal illness behaviour as a consequence of the accident of 17th June 2005.”
[42]It must be remembered that Mr Michael and Dr Fry, the consultant psychiatrist called to give oral evidence before the court on behalf of the defendant, were reporting against a background of an unresolved dispute about whether there had been any physical injury to the airways. The broad thrust of Dr Fry’s evidence was that, first of all, there was no diagnosable post-traumatic stress disorder, and that he was not prepared to accept that, whatever the ongoing diagnosis might be, it had been caused by events of June 2005. Dr Fry believed there was a substantial conscious element, that the claimant was losing his nerve about his job before the accident, that his condition was exacerbated by excess alcohol, that although he maintained that he enjoyed the job and had been in excellent pre-accident health, that was not the case. He relied upon the inconsistencies with his reports and the surveillance evidence:
“Could it be that Mr Wood, following exposure to a noxious smelling substance, saw a way out of a job that he could no longer manage and…made a decision to embrace the sick role rather than try to return to a job that he was no longer managing safely or effectively?”
In my judgment, whatever the motivation for the “illness behaviour”, whether it be conscious, subconscious, or a combination of the two, the claimant fails to satisfy me that it was caused by the events of June 2005. In my judgment, immediately after the accident there was no observable deterioration in breathing facilities or in anything else. This was something that came on over a period of time, unrelated to any incident of smelling a nasty smell on a particular date.[43]To summarise on causation, there was no asthmatic or other physical consequence arising out of the events of June 2005. Insofar as the claimant has displayed a complicated mix of conscious and subconscious symptoms alleged to be of a psychological nature, I am not satisfied, on the balance of probabilities that those were caused by the events of June 2005. The smell, to which he was exposed, on the substantial balance of probabilities, caused no injury, whether physical or psychological.[44]Out of deference to Mr Clarke, though now not of any consequence in view of my findings, I should look at his submissions about breach of statutory duty. It is common ground that the Workplace (Health, Safety and Welfare) Regulations of 1992 apply to these works, to this defendant, at these premises. Regulation 5 requires maintenance of workplace equipment, devices and systems. If a known harmful chemical escapes, there is, as a matter of strict liability, a breach of this regulation. That is the law. It is no defence to a defendant to say, “We had perfect systems in place which were entirely reasonable to suppress any emission of gas.” It is strict liability. And the equipment, devices and systems to which the Regulation applied include equipment and devices intended to prevent or reduce hazards, or mechanical ventilation systems and the like. But it is the equipment and devices intended to prevent or reduce hazards upon which Mr Clarke relied. He submits that if, as he now knows I have not, I were to find that causation had been proved and that some harm of some nature had been caused to the claimant as a consequence of inhaling a smell, that would be deemed a hazard, because it would have been a hazard to the claimant, because the claimant unforeseeably had succumbed to some illness as a consequence. But in any sensible definition of “hazard”, in my judgment, must be incorporated an element of foreseeability. A hazard is something which gives rise to a risk – a risk in this case of inhalation injury. If a person smells a particular smell, be it sweet or nasty, and thereafter has some sort of reaction, who is to condemn that smell as being hazardous, unless the person who releases it knows that it is likely to cause injury or may in certain circumstances cause injury? Within the Control of Substances Hazardous to Health Regulations is a definition:
“Hazard in relation to a substance means the intrinsic property of that substance which has the potential to cause harm to the health of a person, and hazardous shall be construed accordingly.”
In my judgment, a nasty smell, unidentified, cannot be said to be hazardous unless some intrinsic property can be pointed to which might potentially cause harm to a person. Foreseeability, in my judgment, is an integral part.[45]I was also urged to say that this was a case of res ipsa loquitur, but that of course would have depended upon different findings. In any event, the old and well-known case of Lloyd v West Midlands Gas Board deals with res ipsa loquitur and explains the notion that it is for the claimant to get to a point on his evidence where the court would say that, if the defendant calls no evidence, then the case would be proved. Thus, in summary, there is no negligence, no escape of any substance foreseeably likely to cause damage. The defendant had systems which protected against it in any event. There is no breach of statutory duty, for the reasons which I have given. Insofar as the claimant has or may have had some form of psychological reaction – he certainly had no physical injury – that was not caused by this incident. This was a harmless smell. The defendant has no obligation to protect against smells. There was no breakdown of any sort in plant equipment, system, or anything else. The smell was not liable to cause injury. It did not cause injury. Whatever mishaps have befallen Mr Wood in the last 5½ years have not been caused by his experiencing that smell.[46]This claim will accordingly be dismissed.