MARTIN O'DONNELL v. FIFE COUNCIL
| OUTER HOUSE, COURT OF SESSION |
| 0/651/5/95 | OPINION OF LORD MACFADYEN in the cause MARTIN O'DONNELL Pursuer; against FIFE COUNCIL Defenders: ________________ |
Pursuer: Party
Defenders: R Milligan; Simpson & Marwick, W.S.
15 December 2000
Introduction
[1]This is an action of damages for personal injuries in which the pursuer concludes for payment by the defenders of the sum of £200,000. His case is that while he was working in the employment of the defenders' statutory predecessors, Fife Regional Council ("FRC"), as a road man in 1990, 1991 and 1992 he was exposed to certain chemicals which, he claims, had certain adverse effects on his health. He avers that the chemicals were substances hazardous to health within the meaning of the Control of Substances Hazardous to Health Regulations 1988 ("the Regulations"), and that his exposure to them resulted from breach by FRC of duties incumbent on them under the Regulations.
Exposure to Harmful Chemicals
[2]The pursuer avers that in March, April, May and June of each of the years from 1990 to 1992 inclusive his duties included spraying pavements and kerbs with weedkiller. He worked in a team of two men, travelling to the places which were to be treated in one of FRC's vehicles. His hours of work were from 7.30 a.m. to 4.00 p.m., with two breaks of ten minutes and one of thirty minutes. (In evidence the pursuer explained that since he drove the vehicle, he actually started fifteen minutes earlier and finished thirty minutes later.) Breaks were taken in the cab of the vehicle. The type of weedkiller used varied. In 1990 it was a substance called "Atlazin CDA". In 1991 and 1992 it was a substance called "Moderator". The averments set out in some detail the manner in which these substances were handled and applied, but what they amount to is that for a variety of reasons the substances (which were in liquid form) frequently came in contact with the pursuer's clothes and skin. The active ingredients of the weedkillers are identified in the pursuer's pleadings (at page 9D of the Closed Record (as yet further amended) (No. 27 of process)) as "imazapyr", "aminotriazone" (sic), "amitrole" and "atrazine". The evidence shows that aminotriazone is a misprint for aminotriazole, and that amitrole is a synonym for aminotriazole (No. 25/2/18 of process). There are averments about the limited instructions given to the pursuer about the safe use of the weedkillers, about the weather conditions in which they were used, about the way in which the pursuer was instructed to set the nozzle through which the weedkiller was sprayed, and about the inadequacy of the protective masks and clothing provided for the pursuer's use.
[3]The pursuer's pleadings also contain reference to a particular incident on 22 May 1992, which occurred while he was working with a fellow employee, Sam Watson, in St Bridesdale Road, Kirkcaldy. As the pursuer described the incident in evidence, he was spraying weedkiller, walking backwards with the wind behind him, so that the weedkiller that he himself sprayed would blow away from him. Unknown to him, Mr Watson came up behind him, also spraying weedkiller. On record it is averred that as a result the pursuer was covered in a fine spray of weedkiller (Moderator) from Mr Watson's equipment. In evidence, the pursuer was much less categorical about the identification of Mr Watson's equipment as the source of the weedkiller that came into contact with him on that day. He said that he was unaware of being sprayed at the time, and only became aware at the end of the working day that there were droplets of weedkiller on the inside of his face mask and the inside of his glasses. It was, however, immediately after that incident that he first suffered acute symptoms (although he had been suffering from general lethargy in the previous month or two).
[4]The pursuer gave evidence about these matters, generally in accordance with his averments, but towards the end of his evidence in chief, after a brief adjournment, a Joint Minute (No. 47 of process) was entered into which contained admissions by the defenders which make it unnecessary to examine his evidence on that aspect of the case in any greater detail. The first three paragraphs of the Joint Minute are in the following terms:
| | "(1) | The chemicals referred to on record at page 9D are substances hazardous to health in terms of the Control of Substances Hazardous to Health Regulations 1988. |
| | (2) | The defenders admit that the pursuer was exposed to said chemicals during the course of his employment with the defenders [sic; sc. their statutory predecessors, FRC] as averred on record. |
| | (3) | For the purposes of this action only, the defenders admit that they [sc. FRC] were in breach of the Control of Substances Hazardous to Health Regulations 1988 with effect from about April 1990." |
Although paragraph (3) does not identify the particular provisions of the Regulations of which the defenders admit breach (the pursuer having founded in his pleadings on regulations 6, 7(1), 7(3), 8, 10, 11(1) and 12(1)), the position adopted by Mr Milligan for the defenders was that in light of the admissions, the only remaining issues between the parties were (a) whether the symptoms of which the pursuer complained and the losses consequent upon them were caused by the admitted wrongful exposure of the pursuer to the admittedly harmful chemicals, and (b) the quantification of the damages to which the pursuer would be entitled in the event of such a causal connection being established. In light of the defenders' admissions, the pursuer did not lead the evidence of various witnesses whom he had cited to speak to the circumstances of his exposure to the chemical, and it is unnecessary for me to say anything more about the circumstances of exposure, or about the admitted breach of statutory duty.
The Pursuer's Symptoms
[5]The majority of the symptoms of which the pursuer complains arose immediately after the episode on 22 May 1992, and have, according to his evidence, persisted in varying degrees ever since then. It is, however, convenient first to note the evidence about symptoms suffered before that incident. The pursuer's evidence was that in April 1992 he "felt the stuff was really getting to [him]". He was falling asleep all the time, and feeling "out of it". His wife persuaded him to see his general medical practitioner, who carried out tests on his urine and blood, and did not find anything amiss. Mrs O'Donnell said in evidence that in April 1992 she nagged the pursuer to go to see his doctor. He was listless and lethargic. He would come home from work, sit down and fall asleep before his evening meal was ready. That was unlike him. He was normally lively and outgoing. Something was happening to him. He was always tired, could not be bothered to engage in social activity, and was slow to do work around the house.
[6]On Friday 22 May 1992, by the time the pursuer got home from work, he was, according to his own evidence, suffering from symptoms similar to those of a heavy cold or flu. He was coughing and spluttering. He had a problem with his eyes "jumping about" (later explained as difficulty in focusing, particularly in bright light). The interior of his mouth was painful and blistered - "it felt as if someone had taken a red hot poker and stuck it in my mouth". His gums were stinging. His face was stiff and numb, particularly on the left side. He was violently sick. He went to bed, and stayed there all weekend. On the Monday morning, he went to work, but was unable to manage it. He went to see his doctor who, apparently also regarding the symptoms as flu-like, prescribed an antibiotic. According to the pursuer he got progressively worse over the ensuing weeks. The feelings of stinging and numbness spread down his torso and arms and eventually to his legs. He had pain in his joints, and was unable to walk for any distance. His mobility was also affected by breathing difficulties. His short-term memory was affected. He was off work initially for ten days, then back for a few days, then off again until September 1992. He then worked from September 1992 until October 1993. During that period he was supposed to be on lighter duties, although the duties he described (filling sandbags, digging, slabbing and operating the vehicle which cleaned "gulleys") did not seem particularly light. He did not himself, in that period, work with the weedkillers he had used in the spring of the three previous years, but did work in the vicinity of other men who were doing so. By October 1993 he felt that he could not go on taking the painkillers that he was taking. The problems with blisters in his mouth, facial numbness, and joint pain continued. He could "hardly walk from one side of the street to the other". Although the pursuer did not give detailed evidence about the years that followed, I understood his position to be that the same symptoms persisted. In 1998 he had a heart attack, and was given medication in that connection. After that, he felt that some of his symptoms were alleviated. His breathing was easier, and his mobility improved, although it did not return to the level it had been before 1992. He can now get about, but slower than before - to attend court he had walked to Parliament House from Waverley Station via the North Bridge. His symptoms prevented him from engaging in several leisure activities that he had formerly enjoyed - golf, dancing and hill walking.
[7]A number of points were raised with the pursuer in cross examination. He was asked about his smoking habits, and was referred to an entry in the medical records for 1987 in which the doctor noted a diagnosis of smoker's bronchitis. He accepted that he smoked up to ten or perhaps more cigarettes a day, but denied that any of the symptoms of which he was now complaining were attributable to smoker's bronchitis. His evidence was that before April 1992 he was in reasonably good health and able to hold down a heavy manual job. I accept his evidence on that point. Secondly, it was put to the pursuer that he had left work in May 1992, not because of the effects of exposure to weedkillers, but because he was dissatisfied with a new, less generous bonus system that was about to be introduced at about that date. His response was to describe the suggestion as "rubbish" and "poppycock". I accept his evidence on that point too. Thirdly, he was asked about his present fitness for work. He maintained that he remained unfit for the type of heavy manual work that he had formerly undertaken, but accepted that he might be fit for lighter work, such as driving. He had been offered a job by the defenders (or FRC - the date of the offer was not made clear) as a school janitor, but rejected it because it involved working with chemicals in cleaning toilets and cleaning and re-filling a swimming pool. He had been interested in another job, driving transport for handicapped and elderly people, but had not in the event been offered that job. He maintained that, until his symptoms had become better after he was put on medication following his heart attack, he had not been fit for any form of work. Since then he had not done a lot to obtain work; there was not a lot of work available.
[8]Mrs O'Donnell gave evidence about the pursuer's flu-like symptoms over the weekend beginning on 22 May 1992, about his being bed-ridden for the whole weekend, and about his consulting his doctor on the Monday and being prescribed antibiotics. She confirmed that while working between September 1992 and October 1993 he took analgesics (co-proxamol) for pain in his joints. She mentioned in particular his legs and hips, as well as the persistent numbness of his face, the ulcers in his mouth and a lack of power and tremors in his arm. The symptoms generally affected his left side more than the right. She too said that his symptoms continued, but like him, she thought his heart medication had helped his breathlessness. She confirmed that the symptoms interfered with former leisure activities (she mentioned hill walking in particular) and had destroyed their social life. The pursuer also asked his wife some questions about their sexual relationship (although he had not given evidence on that subject himself, and there was no foundation for the line of evidence on record). She gave unsurprising evidence that the relationship had been interrupted in the few months following the onset of acute symptoms, but then explained that after a resumption of relations in September 1992 she had herself experienced symptoms of a stinging sensation in her lower back and legs. Since then, despite the fact that they are Roman Catholic, relations had only taken place with the protection of a condom. I understood the suggestion to be that that course was taken to protect Mrs O'Donnell from a recurrence of the stinging sensation. I am quite unable to understand why Mrs O'Donnell should have experienced such symptoms.
The Medical Evidence
[9]The pursuer had not cited any medical witnesses to attend at the proof. I understood that he (a) was unable to afford to do so, and (b) had mistakenly thought that he could rely on the medical records and reports which had been lodged in process without calling the authors of them to give evidence. In the event, that technical difficulty for the pursuer was at least in part overcome by the inclusion in the Joint Minute of provisions agreeing (a) that the GP records (Nos. 8/1 and 32/2 of process), the records of Victoria Hospital, Kirkcaldy (Nos. 7/1 and 30/1 of process), and the records of Dr Pugh, FRC's occupational physician (Nos. 7/3 and 32/1 of process) were records relating to the pursuer and were what they respectively bore to be, (b) that all reports and letters from Professor Behan and Dr Murray were what they bore to be and might be treated as evidence, and (c) that certain further documents (No. 42/18-20 of process) might be treated as evidence. It was also agreed that the report of the commission to take the evidence of the defenders' witness, Professor Prescott, which took place in preparation for an earlier diet of proof that was subsequently discharged, (No. 38 of process) was to be treated as his evidence. The medical evidence was thus all presented in documentary form.
[10]The defenders' admissions can, in my view, be regarded as taking the pursuer some distance along the way towards proving that his symptoms were caused by the wrongful exposure to the harmful chemicals. The facts (a) that the chemicals in question are categorised as "substances harmful to health" and therefore made the subject of duties incumbent on employers to take steps to protect their employees from exposure to them, and (b) that harm to the pursuer's health followed exposure to them, would in my view justify the inference that there was a causal connection between the wrongful exposure and the harm suffered, if the harm suffered was of the sort to be expected from such exposure. The link, therefore, that remains to be established if the pursuer is to succeed, it seems to me, is the identification of the harm which the pursuer suffered as being of the sort which exposure to the chemicals in question is known to cause or be capable of causing. On the other hand, there is one additional circumstance of the case which appears to me to weaken the case for drawing any inference from the fact that the harm suffered followed the exposure; that is the fact that symptoms did not appear until the third spring season in which the pursuer was admittedly exposed to chemicals of the type in question, and the second season in which the particular substance (Moderator) had been used.
[11]Dr Pugh's records (No. 7/3/1 of process) show that on 28 May 1992, some six days after the accident, the pursuer was examined by Dr Robertson, the then medical advisor to FRC, who could make out no abnormality in his gastro-intestinal, respiratory or neurological systems, who found no evidence of toxicity from the weedkillers, and who expressed the view that any effect from those chemicals would have been immediate, and would not have lasted for even three or four days. On 6 June 1992, the pursuer was seen at Victoria Hospital (No. 8/1/118 of process), and the examining doctor found no abnormality in his eyes or mouth, and no signs of burns or wheezing. His chest was clear. On 2 July 1992 the same doctor (No. 8/1/113, the second document in 8/1 to bear that number) again found no abnormality. He contacted the "Poisons Bureau" in London and recorded that they:
"assured me that the contents of the weed killer would be unlikely to cause any symptoms so late on, they have never heard of this type of symptom although skin contact can cause some dermatitis in sensitive individuals."
On 25 August 1992 Dr F. M. Kennedy, the Employment Medical Adviser to the Health and Safety Executive, wrote (No. 7/3/7 of process) that his conclusion was that:
"an occupational basis for [the pursuer's] continuing ill-health cannot be established. Any contributory irritant effect which he may have experienced as a consequence of exposure to 'Moderator' herbicide is assumed to have been a transient effect and should not lead to any long term problem".
The pursuer said in evidence that Dr Kennedy had said to him that what he had had was not flu but "a fever brought on by the chemicals", but there is nothing in the written material from Dr Kennedy to reflect that view.
[12] Professor Anthony Seaton, a chest physician who saw the pursuer in August or early September 1992 (No. 8/1/113, the first of the two documents bearing that number) advised the pursuer to accept that he had been done no long term harm and that any minor trouble would disappear over the next few months, and get on with his life. He also foresaw that the pursuer might instead carry on worrying about himself, reinforcing his anxiety so that he developed lifelong symptoms. Dr R. Grant, a consultant neurologist who saw the pursuer on 10 September 1993 (No. 30/1/44 of process) found no neurological abnormality, and was at a loss to explain the symptoms of which the pursuer complained. There was, in his opinion, no evidence of any problem in the central or peripheral nervous system.
[13]The pursuer was referred to the National Poisons Unit at Guys Hospital, London. He was seen there principally by Dr Virginia Murray, a consultant occupational and environmental toxicologist (Nos. 7/3/50 and 28/2/5 of process) but also by Dr Glyn Volans, a consultant physician (No. 7/3/52). Dr Murray saw the pursuer on three occasions between August 1994 and August 1995. In No. 28/2/5 of process at page 6, she concluded:
"Mr O'Donnell's symptoms following exposure to moderator do not reflect the basic toxicology of the substance. In particular, no skin burning, numbness or blistering has been reported from the use of these substances, There is no data from literature sources to support breathing difficulties from exposure to atrazine and imazapyr. There is also no suggestion from literature sources of systemic effects resulting in sweating, indigestion or blistering. Equally there is no data available currently to suggest any long term neurological effects."
At page 8 she added:
"Mr O'Donnell presents a most concerning and puzzling picture. He was definitely exposed to a range of pesticides at his work. He had used these for some time with little adverse health effects although he did report feeling tired in April [1992]. He was over-sprayed by a colleague in May [1992] but the contents of the pesticides are unlikely to have explained, according to the medical literature currently available, his adverse health effects."
[14]The pursuer was also referred to Professor Behan at the Institute of Neurological Sciences, Southern General Hospital, Glasgow. After initially hazarding the view that "it is entirely feasible that [the pursuer] has one of these neural behavioural syndromes that occur following organophosphate exposure" (No. 32/2/91 of process), a view which the pursuer took as supporting the existence of a causal connection between his exposure to weedkillers and his symptoms, Professor Behan eventually concluded:
"I am afraid that I am totally unable to help. ... [The] toxins to which [the pursuer] claims to have been exposed are virtually innocuous (there are no known [central nervous system] side effects reported in the literature I surveyed) and are not organophosphates. The problem, I feel, is unsolvable and certainly I personally am unable to help in any way further."
[15]The defenders' witness, Professor Prescott, gave evidence on commission (no. 38 of process; see also his report No. 30/4 of process). His evidence of his examination of the pursuer in September or October 1995 is set out in his report and at pages 34 to 43 of the transcript of the Commission. He records that he was:
"unable to demonstrate any objective evidence of an abnormality of the central nervous system and the remainder of the physical examination was entirely normal."
At page 51 of the transcript, he said that the weedkillers in question have low systemic toxicity unlikely to produce toxic effects except in high concentrations, such as might be achieved by injection, or by ingestion of fairly large quantities. Moreover, at page 53D he said that:
"Any toxic reaction resulting from acute exposure to these weedkillers would be expected to be self limiting and to subside within a period of hours or days without residual sequellae."
Causation
[16]In my opinion the medical evidence which is before me is quite insufficient to complete the necessary foundation for an inference that the symptoms of which the pursuer complains were caused by exposure to the chemicals mentioned on record. It shows, on the contrary, that the symptoms were not of the sort that is to be expected from exposure to such chemicals. No medical witness offers the view that such causal connection exists. The evidence is that to be harmful such exposure would require to involve absorption into the body of a substantial quantity of the weedkiller, and that even then the consequences would be short term. I understand the pursuer's frustration at the fact that the medical profession is unable to provide an explanation for his illness, but his case cannot succeed without an adequate evidential basis for an inference that the exposure caused the illness. I should add that this is not a case in which the issue of psychosomatic or psychological causation of symptoms is raised. Although the pursuer has an averment that his health problems resulted in anxiety, he specifically disavowed any case based on the proposition that there was a psychological link between the exposure and his illness. That potential issue is therefore not before me for consideration. In the result therefore, notwithstanding the defenders' admissions of exposure and breach of statutory duty, the pursuer's case must fail.
Amount of Damages
[17]The pursuer made no submissions about quantification of his claim in the event that causation was established. Mr Milligan made only brief submissions, in which he addressed the hypothesis that the entirety of the pursuer's symptoms were caused by the wrongful exposure. On that hypothesis he accepted that the pursuer would be entitled to an award of solatium, an award in respect of loss of earnings to date, and an award in respect of future loss of earnings. He submitted that the appropriate award of solatium would be £20,000, with interest on half of that sum amounting to £3,700. The pursuer's pre-accident net average wage was agreed at £197.99 per week. On that basis, Mr Milligan calculated net wage loss to date at about £66,500, which would attract interest to date totalling £24,700. So far as future loss of earnings was concerned, Mr Milligan applied an adjusted multiplier of 7.2 derived from Table 13 of the Ogden Tables, then reduced the resultant figure by one half to reflect the pursuer's fitness for light work and the possibility that his heart condition might have affected his future working capacity. The suggested figure for future loss of earnings was thus £37,000. It was in light of the total brought out by these figures that I granted the pursuer's motion, made after Mr Milligan had concluded his submissions and not opposed on the defenders' behalf, to increase the sum sued for from £50,000 to £200,000.
[18]In the somewhat unusual circumstances of this case I do not consider that it would be helpful for me to express any view as to the award of damages which I would have made if causation had been established. The award would not necessarily have been made on the same hypothesis as Mr Milligan adopted for the purpose of his submissions. In the absence of evidence of the nature and extent of a causal connection between the exposure and the resultant illness and losses, however, it is not in my view desirable to take the discussion further or make a hypothetical calculation.
Result
[19]In the result, since the pursuer has not proved that his illness was caused by his admitted exposure to harmful substances, I shall sustain the defenders' second and third pleas-in-law, repel the pursuer's pleas-in-law, and grant decree of absolvitor.