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Accident Compensation Cases

Eltin Contracting Ltd v Accident Rehabilitation and Compensation Insurance Corporation (DC, 29/06/99)

Judgment Text

Judge M J Beattie
The issue in this appeal is whether the respondent was correct to find that the claimant had suffered a gradual process injury, namely, Ethylene Glycol (EG) poisoning, in the course of her employment with the appellant. 
The appellant, who was at the material time a 29 year old woman, was employed by the appellant as a dump truck driver and had been so employed since August 1995. 
The appellant was a contractor to Macraes Gold Mine which operates an open cast gold mine at Macraes Flat near Palmerston, North Otago. The appellant's primary function at Macraes Mine was to remove waste material and to deliver gold ore to the processing plant for subsequent treatment. 
The claimant drove a large caterpillar dump truck (DT 283) used for the removal of waste material and ore and this truck was one of a fleet of eighteen. 
The claimant worked a 12 hour rotating shift. Almost all of that shift would be sitting in the cab and operating the dump truck. 
The dump trucks operated by the appellant used an anti-freeze product in their cooling systems called Tec 50. This product contained 47% Ethylene Glycol (EG). 
Each driver employed by the appellant would have his/her particular truck and in the case of the claimant she operated only truck DT 283. The person who operated that same truck on the other 12 hour shift was Peter Vickery. 
Ms Vogel first noticed symptoms resembling a cold in January 1997. These did not settle in spite of various antibiotics prescribed by her General Practitioner. Symptoms included headache, tiredness, throat irritation and cough. By March 1997 she had begun to note occasional dizzy spells. Her headaches persisted but now seemed most notable by the time she finished work and had driven home. Also in March, she noticed nausea and experienced episodes of vomiting sometimes two or three times a day. At this time Peter Vickery was also experiencing headaches and vomiting and other symptoms similar to that experienced by Ms Vogel. 
On 11 March 1997 Mr Vickery reported a strong smell in the cab and in his daily report he wrote “Heater core leaking. Anti-freeze smell very strong.” Similar notes were stated by both he and Ms Vogel on days following down to the 19th of March 1997. 
On 18 March Ms Vogel noted a Chem-alert Bulletin printed by Eltin concerning exposure to anti-freeze vapours. She recognised that she had suffered symptoms similar to those described in the Bulletin. She completed a hazard report identifying leaking anti-freeze in DT 283 as causing her health problems. This was filed with her supervisor who suggested she have blood tests and this she arranged with her doctor on 20 March 1997. The result of that blood test was reported on 11 April and revealed that Ms Vogel's blood contained 250 mg of EG per litre of blood. 
Ms Vogel resigned from her employment on 17 April 1997 and notified the Health and Safety Division of Department of Labour. On 21 April 1997 Mr Vickery had a blood test which later disclosed a level of 110 mg of EG per litre of blood. Those two tests were adjusted downwards by 30mg by Canterbury Health who had carried out the tests. 
On 1 May 1997 a blood test was taken from Steve Walker, another employee operating DT 283, and on 6 May a further blood test from Peter Vickery. Those tests disclosed that Vickery had 52mg of EG per litre and Steve Walker had a level of 86 mg of EG per litre of blood. 
During the time that Ms Vogel and Mr Vickery were experiencing their nausea and other symptoms of toxic poisoning, the appellant was carrying out exhaustive tests on DT 283, including removing and replacing rubber hoses, the radiator coil and testing for leaks in the cooling system. The main complaint by Ms Vogel and Mr Vickery had been the smell and on the occasion of the disconnection of the heater hoses, those hoses smelt acrid and most unpleasant. This work was under the supervision of Mr Webb, the Maintenance Superintendent of the appellant, and he stated that he inspected the inside of the hoses and noted that the interior surface had a burnt bubbly appearance. 
The hoses were replaced on 20 March and it was believed the problem had been fixed. Further complaints were made about smell and the hoses and the coolant replaced again. Further checks were done and no leaking could be discerned. On 1 April 1997 a leak in a heater hose was repaired. For a time the cooling system was run without any anti-freeze but, on 13 April coolant was once again added as it was believed the problem had been remedied. On 24 April the cab was washed out with a degreaser. During the washing operation a foam rubber seal from under the heater box was removed. The seal sits between the heater box and the floor of the cab and insulates what would otherwise be an opening. When heated this pad gave off a very strong odour being the same odour that had been identified by the drivers. Odours were detected from time to time thereafter by drivers of the truck and the appellant's maintenance crew spent considerable time and cost carrying out repairs and replacement. 
The appellant was prosecuted by the Department of Labour for breaches of the Health and Safety in Employment Act 1992 and the hearing occupied three days before His Honour Judge MacDonald and took place in April 1998. The charges alleged that the appellant had failed to take all practicable steps to ensure the safety of its employee and that it failed to take all practicable steps to ensure that the employee was not exposed to a hazard, namely, poisoning by Monoethylene Glycol. This Court has had the benefit of the notes of evidence that were taken at that hearing, the briefs of evidence that were submitted, and the reserved decision of His Honour Judge MacDonald. 
In his decision His Honour considered that the particular charges that had been laid and maintained by the informant were not the appropriate ones for the particular factual circumstances that had evolved. It seems that this was pointed out earlier on in the prosecution by the Judge but the informant elected not to amend its charges as had been intimated might be appropriate. In the end His Honour dismissed the informations although he indicated that other charges would likely to have been found proven. In the course of his decision, His Honour stated: 
“I am satisfied that both Ms Vogel and Mr Vickery were exposed to EG in the Cab of DT 283. I found the evidence of Dr McBride and Dr Fountain compelling. I also consider that the combined circumstances of the smell only being in this one truck, and it was noted by others apart from Ms Vogel and Mr Vickery, that both operators of that one truck suffered health difficulties consistent with EG poisoning, albeit not precisely of the same degree or kind, and that once tested both had EG in their blood was more than just coincidence. How there was an escape from the coolant system I do not know but I am satisfied it did occur. They were in the cab for long periods. Perhaps testing based on an attempt to duplicate those conditions might have revealed something. I consider that whilst it was entirely commendable, and indeed appropriate, to concentrate on finding the cause of the smell there is no doubt that in the process the health of both Ms Vogel and Mr Vickery was overlooked. ”
This Court was provided with the reports of Dr Beasley of the National Toxicology Group at Otago University, Dr Murray Sinclair, Occupational Medicinal Specialist OSH Dunedin, and Dr David McBride, Occupation Medicine Specialist also of Dunedin. Each of these specialists have given their opinion that the claimant has suffered the toxic effects of the inhalation of EG vapour and that the symptoms she displayed are consistent with the effects that that property does cause. These specialists investigated the claimant's background, non-work factors and considered possibilities as to how concentrations of EG from any non-work source might have been introduced to Ms Vogel but concluded that all possibilities can almost certainly be discounted in her case. 
Another report submitted was that of Dr Fawcett, Senior Lecturer in Pharmaceutical Sciences. Dr Fawcett investigated the blood analysis system carried out by Canterbury Health and he came to the view that the analytical results obtained by Canterbury Health were valid and that EG was present in Ms Vogel's blood on 20 March and again on 18 April. Dr Fawcett went on to state that EG is not a component of any food stuff or a natural endogenous product of human metabolism. He also stated it is not a component of any medication or a product of the metabolism of any drug or pharmaceutical excipient. He therefore took the view that the EG in Ms Vogel's blood must have arisen due to inadvertent or intentional ingestion of the compound. It was his opinion that based on the analytical results it was unlikely that it was caused by inhalational exposure to EG. He then went on to give as his opinion that toxicity by inhalation of an aerosol of EG was highly unlikely, even if an aerosol EG could be formed as a result of leaks in the heating/cooling system of a truck. He considered that the presence of EG in Ms Vogel's blood was not consistent with the history of her purported inhalation exposure and that the symptoms in level of EG found in Ms Vogel's blood was not sufficiently characteristic to rule out the possibility that they were due to exposure to EG by a root other than inhalation. 
The appellant also referred to a report from a West Australian organisation known as MPL describing itself as Occupation and Environmental Solutions. The author of that report stated: 
“Based on the limited information available on symptoms, habits and other patient data but my knowledge of mining operations, truck driver duties and the chemical and physical properties of EG I am drawn to the conclusion that there is some doubt as to the validity of the one blood sample. 
The basis of the conclusion is that the chemical and physical properties are unlikely to result in blood levels on this level from airborne exposure. The rapid metabolism means that the timing of the sample collection is critical in determining biological concentrations. 
If the blood sample does have some validity then it is suggested that other sources of exposures be investigated. ”
Mr Barton, counsel for the appellant, submitted that the real area of controversy in this appeal was not whether Ms Vogel was suffering from EG toxicity, but rather how she came to be in that state. Counsel submitted that in order for the appellant to be held responsible in terms of section 7 of the Act it must be shown on the balance of probabilities that Ms Vogel acquired the level of EG in her blood as a result of breathing in EG in a vapour or mist whilst operating her truck. 
Counsel submitted that the evidence on the whole from the experts would tend to support the theory that Ms Vogel drank EG as much as it would support the theory that she breathed EG vapour or aerosol mist while driving her truck. 
Counsel submitted that in the first instance it was for the claimant to establish on the balance of probabilities that she suffered a work injury within the meaning of section 7. He submitted that in the face of divided medical opinion the Court should give the greatest weight to the opinions expressed by Dr Fawcett because of his expertise in the area of Pharmacokinetics. 
Counsel submitted that there was no evidence that the work environment had a property or characteristic within section 7(a) as the exhaustive tests carried out on DT 283 could not establish any leak or means of escape of EG vapour. Counsel pointed to the fact that the appellant spent a substantial six figure sum in investigating the possible problems associated with that truck. 
Counsel submitted that whilst the medical experts do play a significant part in this case the Court should not lose sight of the need for consideration of the mechanical experts and in this case there is no mechanical evidence which establishes a cause. 
Ms Scott, counsel for the respondent, submitted that it was not for the claimant to establish, or indeed for the respondent to accept, that the causative fact of the claimants EG poisoning came from the work place environment beyond reasonable doubt. The test only requires it to be established on the balance of probabilities. 
Counsel submitted that on the evidence it was more probable than not that the claimant's exposure to EG came from the work place environment of her truck and that it was not necessary when coming to that conclusion to identify the precise cause or method. 
Counsel refers to the evidence of Dr Beasley, Dr Sinclair and Mr McBride as supporting the contention that it was more probable than not that the claimant's exposure to EG came from within the cab of the truck that she drove at work. 
Counsel identified what she considered to be a significant flaw in Dr Fawcett's opinion, she noted that he makes no mention of the fact that two other employees who drove DT 283 also tested with significant levels of EG in their blood and that this, she submitted, discounted Dr Fawcett's contention that Ms Vogel must have obtained her EG from a source outside her work environment. 
Mr Vogel in his submission identified the fact that all drivers who were driving DT 283 tested with positive levels of EG in their blood. He submitted that there was no evidence that these persons, including his daughter, had any connection with EG outside their work environment and that therefore the inference was irresistible. 
From the bar Mr Vogel stated that on several occasions in the course of February and March 1997 he was required to travel to the mine and collect his daughter after the completion of her shift because she was too ill to drive home. He also observed that his daughter was of slight build, weighing only 58 kg and this may be a reason why the level of EG in her blood was greater than that of the much heavier two men who tested positive. 
The sole issue for determination in this appeal is causation. In terms of section 7 of the Act, which is the provision under which the claimant has sought cover, the issue concerns whether or not the evidence satisfies section 7(1)(a), namely, whether the employment tasks performed by the affected person or the environment in which it was performed, had a particular property or characteristic which caused or contributed to that personal injury by gradual process, disease, or infection. 
The employment task carried on by Ms Vogel was the driving of a large dump truck for a 12 hour shift. EG is one of the properties of the anti-freeze product used in the cooling system of that truck. The cooling system is also integrated into the heating system for the cab of the truck. Whilst the cab has windows and allows fresh air in if the operator so elects, it can be a comparatively air tight compartment with the windows up. There was evidence that at times Ms Vogel operated the vehicle with the windows down but there were also times when she operated the vehicle with the windows up and the heater on, particularly on cold nights. 
The pattern of evidence is that both Ms Vogel and Mr Vickery displayed symptoms consistent with suffering from the toxic effects of EG inhalation, at least by early March, and that the situation had reached the stage where Ms Vogel at least sought to have the matter checked out medically. 
It is not disputed that Ms Vogel did have a substantial level of EG in her blood, be it the figure first established at 250 micrograms or a lesser sum. The fact of the matter is that the testing of Ms Vogel and Mr Vickery has been accepted as being valid, even by the appellant's expert, Dr Fawcett. 
At the material time, I find that each of the drivers of DT 283 was noticing strange smells in the cab and reported that fact on a number of occasions in the written operator's daily check-list which they were required to complete after the end of their shift. Thus, there is a contemporaneous record of the experiencing by both drivers of the strange smells in the cab. 
When one considers that in the light of the subsequent analysis of the blood of both of them on the later occasion in April, together with that of a third driver who had by that time taken over driving the truck after the claimant had ceased working there, I find that those EG levels in their blood point irresistibly to the truck being the source of the contamination. 
There has been no evidence whatsoever that any non work factors have played a part and this in itself is significant. In addition to that, Dr Fawcett has indicated that EG is not a component of any food stuff or a natural endogenous product of human metabolism. If one takes Dr Fawcett's opinion to the next step he says that the EG in Ms Vogel's blood must have arisen due to inadvertent or intentional ingestion of the compound. I note that he makes no mention of other operators of DT 283 having positive blood tests and I therefore am drawn to the submission of counsel for the respondent that Dr Fawcett did not have knowledge of that fact when he gave his opinion. The opinion that he thus gave would have had to equally apply to Mr Vickery and Mr Walker. To say that all three persons had somehow inadvertently or intentionally ingested the compound from some source outside the one known source of EG I find would be taking matters to the realm of being a flight of fancy. 
This Court notes and accepts that the appellant carried out seemingly exhaustive tests, spent a considerable amount of money, and yet was unable to come up with a cause or source. Equally this Court must take cognisance of the fact that after purported repairs and replacements had occurred to the perceived “questionable” parts, nevertheless operators of that truck continued to show levels of EG in their blood and which I find they were not getting from any other source. Thus, I find the situation to be that the cooling system was the cause but the exact manner in which it was allowing EG into the atmosphere of the cab has not been identified. This I find is not essential or necessary when one is considering this matter from the perspective of a proposition on the balance of probabilities. 
Finally I am cognisant of the fact that His Honour Judge MacDonald heard orally much of the evidence that this Court has had produced in written form, and he found himself satisfied that Ms Vogel and Mr Vickery were exposed to EG from the cab of DT 283. I find that the evidence that has been presented to this Court also establishes that, certainly to the standard that that proposition is more probable than not. 
Accordingly then, I find that the claimant did satisfy the requirements of section 7(1)(a) and that the decision of the respondent to accept the claim as a gradual process injury under section 7 was rightly made. 
This Court has heard expert evidence on the fact that the grounds of section 7(1)(b) and 7(1)(c) have been satisfied. I did not take the appellant to seriously argue against that proposition, certainly no evidence was adduced in opposition to that which was put forward on behalf of the claimant and accepted at first instance by the respondent. 
Accordingly then, for the reasons given I find that the respondent was correct in its decision to grant cover to the claimant under section 7 for a gradual process injury, namely, EG poisoning arising out of her employment with the appellant. 
This appeal is therefore dismissed. I make no order for costs in this case but I do award Mr Vogel, representing the claimant, the sum of $200.00 to cover the expenses which he has indicated he has incurred in connection with this appeal. Such costs to be paid by the appellant. 

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