Supreme Court New South Wales Medium Neutral Citation: Thompson v NSW Land and Housing Corporation [2011] NSWSC 941 Hearing dates: 15-26 November 2010, 14-18 February 2011 Decision date: 31 August 2011 Before: Hislop J Decision: Verdict and judgment for the defendant. The plaintiff to pay the defendant's costs. Catchwords: Common law - personal injury - liability - pesticide Legislation Cited: Limitation Act 1969 Civil Liability Act 2002 Fair Trading Act 1987 Trade Practices Act 1974 Civil Procedure Act 2005 Cases Cited: Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 Sakoua v Williams [2005] NSWCA 405; (2005) 64 NSWLR 588 RTA v Dederer [2007] HCA 42; (2007) 234 CLR 330 Sweeney v Boylan Nominees Pty Limited [2006] HCA 19; (2006) 226 CLR 161 Transfield Services (Australia) v Hall [2008] NSWCA 294; (2008) 75 NSWLR 12 Kenny v Preen [1963] 1 QB 499 Hawkesbury Nominees Pty Limited v Battik [2000] FCA 185 Glasshouse Investments Pty Limited v MPJ Holdings Pty Limited [2005] NSWSC 456 Martins Camera Corner Pty Limited v Hotel Mayfair [1976] 2 NSWLR 15 Category: Principal judgment Parties: Murray Thompson (Plaintiff) NSW Land & Housing Corporation (Defendant) 1st Cross Claim: NSW Land & Housing Corporation (Cross Claimant ACN 005 511 062 Pty Limited (previously known as "Pestkil") (Cross Defendant) 2nd Cross Claim: ACN 005 511 062 Pty Limited (previously known as "Pestkil") (Cross Claimant) NSW Land & Housing Corporation (1st Cross Defendant) HDI-Gerling Australia Insurance Company Limited (2nd Cross Defendant) Representation: Plaintiff: C. Leahy SC/T. Boyd (15-26 November 2010) T. Boyd/J. Cairn (14-18 February 2011) Defendant: M.J. Joseph SC Cross Defendant (1st Cross Claim): M.J. Jenkins 2nd Cross Defendant (2nd Cross Claim): D. Priestley Plaintiff: Herbert Weller Defendant: McCabe Terrill Lawyers Cross Defendant (1st Cross Claim): Carroll & O'Dea 2nd Cross Defendant (2nd Cross Claim): Kemp & Co Lawyers File Number(s): 2003/91442 Judgment Introduction 1The defendant, New South Wales Land and Housing Corporation, owned several villa units at premises at Bligh Park, New South Wales. The plaintiff was a tenant of the defendant. He resided in one of the units pursuant to a residential tenancy agreement dated 16 June 1998. 2Pestkil Pty Limited, now known as ACN 005 511 062 Pty Limited ("Pestkil"), engaged in the business of providing pest control services. The defendant and Pestkil entered into a written contract dated 25 February 2000 for Pestkil to carry out pest control services when required by the defendant in a zone which included Bligh Park. 3On 7 December 2000 and 21 February 2001 Pestkil, pursuant to its contract with the defendant, carried out termiticide treatment on the property occupied by the plaintiff. 4The plaintiff alleges he suffered injury on each occasion as a result of the termiticide treatment. He pleaded in the third further amended statement of claim as follows: "11. At all material times the [defendant] was aware that the plaintiff suffered from a severe asthma condition and was particularly sensitive to exposure to chemicals, dust and smoke. ... 16. Despite the [defendant's] prior knowledge of the plaintiff's sensitivities and contrary to express wishes of the plaintiff, the treatment was carried out by the defendant or its agent with chemicals which were damaging or potentially damaging to the health of individuals such as the plaintiff who were known to the defendant as being particularly sensitive to chemical exposure." 5He seeks damages in these proceedings from the defendant for the resultant loss and damage which he alleges was caused by the defendant's negligence and breach of contract. He has not brought proceedings against any other person or entity in respect of this matter. 6The defendant has denied liability to the plaintiff. It has pleaded, inter alia, defences under s 18A of the Limitation Act 1969, ss 5F-H, 31-33 and 42-43 of the Civil Liability Act 2002 ("the Act"), as well as contributory negligence. 7The defendant, in the amended first cross claim, has cross claimed against Pestkil seeking damages, indemnity or contribution in respect of any verdict recovered by the plaintiff against the defendant in this matter. 8In respect of the period 30 June 2000 to 30 June 2001 the defendant had effected a policy of public liability insurance in its and its contractors' and subcontractors' names with Gerling Australia Pty Limited, now known as HDI Gerling Australia Insurance Co. Pty Limited ("Gerling"). The policy is a principal controlled policy and is numbered N004.0007. Pestkil claimed indemnity under that policy from Gerling in respect of the cross claim and its costs of defending the proceedings against it. Indemnity was refused. 9Pestkil, in its further amended second cross claim, has sought damages from the defendant for breach of contract in failing to procure effective insurance, and damages under s 42 of the Fair Trading Act 1987, s 52 of the Trade Practices Act 1974 and for negligent misstatement. Pestkil has also cross claimed in the further amended second cross claim against Gerling seeking indemnity under policy N004.0007 and for rectification of the policy. The defendant and Gerling have denied liability to Pestkil. Background The plaintiff 10The plaintiff was born in 1955. He attended Alexandra High School and completed year 12 after having a two year break between years 11 and 12 due to stress and overwork at his studies. During this time he worked as an artist. After finishing school he worked part time as an artist and as a labourer but, in 1981, did a course in acupuncture. He undertook studies in farm technology, which he successfully completed in 1994. He then completed courses in Applied Science, majoring in Environmental Health, and Social Ecology. He graduated from the latter course in 2000 with first class honours. He then commenced a doctorate in Social Ecology . The subject of his thesis was "Creators who Destroy: Human Imagination & Presumption: The Broad Sweep of Social and Environmental Destruction". 11The plaintiff stated in his evidence that prior to 7 December 2000 he was physically well, except for mild asthma, and would run two to three kilometres six nights per week. His medical history prior to 7 December 2000 included asthma, which he first had at age 14 and which had become a permanent state, an orthopaedic injury to the lower back, which resulted in ongoing lower back pain, in respect of which he settled a claim for damages, a kidney stone, injuries to the left and right shoulder rotator cuffs with continuation of left shoulder problems, pain in the right wrist, a sore throat on and off "for ages" and irritable bowel syndrome. He described sensitivities prior to 7 December 2000 to paints, fly sprays, building and caulking agents, solvent based paint, dust, smoke and lacquer. He was allergic to cats. 12The plaintiff had received counselling in the early 1980s when, as he described it, he became "a little bit dysfunctional". On 17 March 2000 he consulted his general practitioner, Dr Tan, complaining of "a lot of anxiety now". Temaze was prescribed. Dr Simmons, who was involved with the plaintiff in relation to his doctorate, perceived a level of anxiety in the plaintiff at the end of 2000 to July 2003 about the progress of his work. 13The plaintiff had married in 1989 . He and his wife had a son who was born in 1992 . The marriage ultimately failed, though the plaintiff and his ex-wife remain on friendly terms. The plaintiff maintains close contact with them. He asserts that each of them has been poisoned by pesticides on other occasions. 14The plaintiff described himself as a fanatic, obsessive, a perfectionist and an activist. He has websites in respect of painting, poisoned people and legal action for poisoned people. He told Dr McClure he wished to become self-sufficient by selling e-books advising people how to take legal action in negligence in relation to chemical contamination. 15One of the plaintiff's interests was the effect of poisons upon mankind. He had been interested in this area since 1995, had studied it and had written articles in relation to it. In late 1995 he published a book headed "Global Toxicity: Chemicals A Worldwide Nightmare" in respect of the Castlereagh Liquid Waste Disposal Unit. In the book he identified physical and psychological symptoms as a result of toxicity, including multiple chemical sensitivity, and observed that "the risks from chemicals are abundant, even when little is being done with them." 16In 2000 in another paper, dealing with the sick building syndrome, the plaintiff wrote: "We are looking at a no win situation. Maximum residue levels, poison schedules and pesticide registration and regulation means little, despite the technical hype surrounding the manufacture and certification of chemical compounds. These substances will generate indiscriminate poisoning however they are used." 17The papers contain many references to the literature on chemical poisons. The plaintiff was aware of the risks of harm associated with pesticides. These papers formed part of his body of knowledge and belief as to chemical poisoning. In a letter to Standards Australia in February 2003 the plaintiff stated that he had a degree in environmental health (having graduated top of his degree in 1998), his PhD thesis included studies in toxicology; in 2000 he was accredited as an environmental health officer by the Australian Institute of Environmental Health New South Wales Division, and he undertook pesticide research. 18The plaintiff gave evidence that he had an undue sensitivity to chemical exposure. He said this had commenced at conception due to his mother using cortisone cream on her hands. 19The plaintiff stated in an application to the defendant for housing assistance dated 23 January 1992 that he had a medical condition of "asthma & very light sleeper" and his special accommodation needs were "away from air & noise pollution". 20He completed the defendant's annual eligibility review surveys for the years 1995-1998. These reviews each contained the following request: "Please state any medical problems which may affect the type of housing you require from the Department." In response the plaintiff had written: (4/4/1995) "asthma - react badly to dust/smoke, etc...insomnia - intermittent"; (13/4/1996) "asthma - react negatively to dust/smoke, etc, including paint, lacquer (chemically sensitive). Only if ideally available, and considering the above, older accommodation is preferable (because newer buildings have more synthetics)...a sleep disorder...neither of these disorders is debilitating, although the asthma is unpredictable"; (18/4/1997) "asthma - prefer not to be located near industry (chemicals) or areas (eg golf course) where sprays are characteristically used, as these irritate condition. Older accommodation is preferable (less synthetics) though not essential"; (2/5/1998) "asthma - prefer to not locate near industry or golf courses (my asthma condition is very chemical sensitive). Dust is a problem. My condition is notably worse in the Windsor area (seems to be more fumes and dust in that area)" 21The plaintiff also relied upon alleged telephone conversations with personnel of the defendant in relation to the fence. Two of these were recorded in the defendant's computer records and noted: "Tenant has chemical sensitive asthma" (7/9/1999) "Tenant requests no use of chemicals as has chemical sensitive asthma..." (6/9/2000); 22I accept that the defendant was on notice prior to mid-2000 that the plaintiff alleged he suffered from asthma which could be adversely affected by chemical exposure. Pestkil 23Pestkil commenced business in February 1979 under the name M.J. Hobden and Associates Pty Limited. In 1984 the name was changed to Pestkil Pty Limited. The business was sold in 2004. The directors of the business were Mr and Mrs Hobden. Mrs Hobden attended to the administrative side of the business, Mr Hobden to the technical side. Mr Hobden has over 46 years experience in the pest industry. Pestkil's work involved the full range of pest control, though a significant percentage of the work was in the treatment of termites. The business expanded and over time it was the successful tenderer for contract work in many of the defendant's zones in New South Wales. Ultimately approximately 75 percent of those zones were serviced by Pestkil. Mr Hobden, in 2000, also was licensed to provide pest control services in Victoria and Queensland. Mr Hobden was "hands on" in the business. In 2000-2001 Pestkil employed approximately 45 full time licensed technicians, including Mr Hobden. It also employed a number of administrative staff. 24When a building is built on a concrete slab, such as here, a standard treatment procedure is to form a preventative barrier around the exterior perimeter of the building. This is done by trenching, drilling and applying a termiticide known as Biflex using low pressure, low drift spraying equipment. Trenching involves digging or excavating a trench directly next to the exterior foundations where the ground is in contact with the foundations. Once the trench is dug, it is filled with termiticide using a sprayer fitted with a special low drift nozzle. The trench is then back-filled with the soil that had been removed to form the trench. 25Drilling involves drilling holes into the concrete paths and patios against the exterior perimeter of the building at regular intervals and injecting the liquid termiticide into the holes. The holes need to be deep enough for the termiticide to get into the soil underneath the concrete. This is done with a specially fitted nozzle that forces the liquid down the hole without it splashing. Once the holes are filled, they are patched with a suitable filler or plug. These procedures were used on 7 December 2000 at the property occupied by the plaintiff. A short section of fence, where active termites remained, was trenched on 21 February 2001. Biflex 26The chemical composition of Biflex as at the relevant time was: Chemical Entity CAS No Proportion Bifenthrin 82657-04-3 100 g/L Liquid Hydrocarbons Mixture 562 g/L N-Methyl-2-pyrrolidone 870-50-4 50 g/L Citronella oil 8000-29-1 1-10% Emulsifier 68131-39-5 10-30% Other ingredients determined to be non hazardous 1-10 27The active ingredient in Biflex is bifenthrin. Bifenthrin is a registered product for use in Australia and has been approved by the regulator, the Australian Pesticide and Veterinary Medicines Authority. The product has been extensively reviewed by other regulatory authorities, such as the United States Environmental Protection Agency. The manufacturer's data sheet listed Biflex as an S6 poison. However, Biflex was applied in this case as an emulsion, this being achieved by mixing it with water in the ratio of 1 part Biflex to 100 parts water. 28Mr Hobden in his affidavit sworn 5 November 2009 stated: "20. Bifenthrin is a synthetic pyrethroid and is considered non-toxic to humans. It does not leach into waterways as it sticks to soil particles. Biflex was a more expensive termiticide than either an organochlorine or organophosphate but it is much safer product. For example, the cost for 20 litres of Biflex in July 1998 was $1,140 (or $57 per litre) compared to $456 for 20 litres of the organophosphate, Dursban (or $22.80 per litre). Biflex is the most widely recognised and widely used, registered chemical for the treatment of termites. Biflex is still being used widely throughout Australia and the world today." Circumstances 29(a) On 9 November 2000, pursuant to a work order from the defendant, Pestkil inspected the property occupied by the plaintiff. The inspection confirmed termites in a wooden fence 3-4 metres from the unit. The inspection was performed following complaints by the plaintiff to the defendant about the deteriorating state of the fence. A tax invoice for the inspection was signed by a Pestkil technician, Mr Grant, and the plaintiff. It was on this occasion that the plaintiff was made aware that Pestkil proposed to use a synthetic pyrethroid in the termiticide treatment. Either that day or the following the plaintiff looked up the relevant references on the internet. (b) On 13 November 2000 Pestkil wrote to the defendant. It reported "Live termites were found in the fence line Coptotermes spp. Evidence of termite damage and/or workings was found in the left hand side of the fence near the shed. We recommend that a complete treatment be carried out to Australian Standard S3660 to place a barrier around the house to control termite infestation. Item PES 1034 x 30mtrs approx, PES 1036 x 9mtrs approx, PES 1038 x 23 approx." (c) On 28 November 2000 the defendant issued a work order to Pestkil to carry out the work recommended by Pestkil at a total cost of $426.98. This work was performed on 7 December 2000. A tax invoice signed by the plaintiff and Pestkil's technician, Mr Campbell, recorded that the termiticide used was Biflex. (d) On 4 January 2001 Pestkil's technician, Mr Nash, inspected the work. He found the termites had not all been eradicated. The tax invoice for this inspection was not signed by the plaintiff. (e) On 21 February 2001 Pestkil performed retreatment work by trenching a small area where live termites remained. An invoice signed by the plaintiff and Mr Hobden recorded that Biflex was used. 30The plaintiff gave evidence that: (a) on 9 November 2000 when the premises were inspected by a representative of Pestkil he, in a conversation with that person: "... emphasised that I didn't want any normal pesticide chemicals used on my property at all because I suffered from chemical sensitive asthma." He told the representative of Pestkil that he had sent a brochure advertising an alternative, Nematerm, to the defendant; (b) on 7 December 2000 the Pestkil representative arrived and said he was there to treat the unit and fence with a normal termiticide treatment. The plaintiff expressed surprise to see him there after he had conveyed his concerns to the first pest technician. The technician said the plaintiff should close all the windows and doors because of the dust from drilling the holes through the concrete. The plaintiff gave evidence he was not asked at any time to vacate the premises ; (c) the plaintiff gave evidence that on that occasion he was inside his unit with the doors and windows shut when the work was performed by Pestkil and that despite closing the windows and doors he noticed a kerosene-like odour inside the unit about ten minutes after the start of the application and that he developed symptoms within 30 minutes. The odour went completely a few minutes after he opened his windows and doors; (d) on 21 February 2001 Mr Hobden arrived to carry out further spraying. The plaintiff alleged he said to him : " Please don't spray the fence because I got sick with the first pest treatment of my unit." (e) on this occasion the plaintiff was again in the unit when spraying occurred and, despite having closed all windows and doors and sealed the bottom of the front door, he observed an odour in the unit and within a short time had a further reaction. Again, the odour went within a few minutes after opening the doors and windows; (f) the plaintiff also gave evidence that 2-3 weeks after 7 December 2000 a kerosene odour, "slightly altered odour format", appeared in the unit and remained for 15 months. He said his symptoms developed on 17 December 2000. Although a number of visitors to the plaintiff's unit during the 15 months from December 2000 were called, none gave evidence of smelling a kerosene-like odour. 31Only Mr Hobden of Pestkil's technicians was called to give evidence. A Jones v Dunkel submission was made in respect of Messrs Grant, Campbell and Nash, each of whom had been employed by Pestkil as a full-time licensed technician. Mr Hobden gave evidence he would not have sprayed if he had been told the plaintiff had got sick on the previous occasion. I accept his evidence. I also accept that Pestkil was on notice prior to 7 December 2000 that the plaintiff alleged he suffered from asthma which could be adversely affected by chemical exposure. The plaintiff's liability case - negligence 32The plaintiff's case in negligence, as ultimately pressed, was, in essence, as follows: (a) a large quantity of emulsion was used on 7 December 2000 and a lesser, but still significant, amount on 21 February 2001; (b) the active ingredient of Biflex is bifenthrin, other ingredients include hydrocarbon solvents including some kerosene-like material. The odours of Biflex are masked by citronella oil. Both bifenthrin and the hydrocarbon solvents can cause symptoms, in the latter case including nausea and headache; (c) hydrocarbon solvents are volatile and would evaporate during the application. Pathways of entry for solvent vapours to the unit were available, eg by the ventilation slits in the unit. Biflex is hazardous. The plaintiff was therefore exposed to a product which was toxic and an irritant. The odour inhaled by the plaintiff was probably from the solvents. That the plaintiff was exposed to hydrocarbon solvents must follow from experiencing an odour. The actual spray used on site could be perceived as toxic, hazardous or intrinsically able to cause harm. Such perceptions are identified in the literature as somatic or psychosomatic disorders and psychological or psychiatric conditions; (d) the plaintiff had a physical reaction to the exposure. The real question is: is there a physical or psychological condition to account for the plaintiff's symptoms. All medical experts agree that the plaintiff's personality type is an important factor in understanding his behaviour and in arriving at a diagnosis. The plaintiff, indeed, does have obsessional personality traits. He has a preoccupation with the dangers of chemicals. He viewed himself as particularly sensitive to chemicals; (e) to develop a somatisation disorder may be "damage of an unforeseen extent" but it is still compensable. It is exactly the kind of damage that is foreseeable to a man who is exposed to chemicals in the context of a pre-existing belief system that he is sensitive to chemicals and that chemicals create a risk of danger to his health. The plaintiff's symptoms are, primarily, subjective. However, whether he is disabled with multiple chemical syndrome or some somatoform disorder matters little. 33The plaintiff further submitted: (a) the relationship between the plaintiff and defendant was that of landlord/tenant. A landlord owes a duty to the tenant to take reasonable care to avoid foreseeable risk of injury - Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166; Sakoua v Williams [2005] NSWCA 405; (2005) 64 NSWLR 588 at [4]; (b) the Act has application; (c) the "risk of harm" as referred to in s 5B of the Act was the risk of the plaintiff suffering harm, whether physical or psychiatric, as a result of the termiticide treatment; (d) the relevant risk flows as a matter of common sense from the defendant's knowledge of the plaintiff's vulnerability; (e) the risk was foreseeable, not insignificant, and a reasonable person in the defendant's position would have taken precautions. 34The plaintiff identified the reasonable response required of the defendant as: (a) "to inform Pestkil of the plaintiff's sensitivity to dust and chemicals before any treatment was applied at the premises"; (b) "to inform the plaintiff in reasonable time that chemical treatment was to be applied to the premises and make alternative arrangements for the plaintiff to reside elsewhere while there remained a risk of chemical exposure from the treatment at the premises"; (c) "to ensure the termites were treated in a different way" that did not involve using chemicals. 35The defendant's failure to take these steps caused the plaintiff to suffer injury. The "particular harm" was the initial physical harm upon exposure and the subsequent recognised psychiatric condition diagnosed by Dr Jungfer. 36Dr Jungfer, in her report dated 27 September 2010, stated at the time the plaintiff was seen he "related a range of symptoms, pains in the joints, hearing loss, visual changes that might all be explicable by the phenomenology of aging that he attributed to chemical exposure." She concluded: "There is good evidence to indicate that Mr Murray [sic] has had a substantive degree of psychiatric difficulties since the exposure to the pesticides. It is probable that he had a pre-existing vulnerability that was not symptomatic and that the exposure to the pesticides has precipitated that disorder. His current presentation is consistent with that of a somatisation disorder. I could find no strong evidence that he had a major depressive disorder and would not support the diagnosis of a major depressive disorder secondary to an organic medical condition. Mr Thompson has a wide range of somatic symptoms that are non-explicable on the basis of organic pathology. He does however not have necessarily hypochondriasis but more a preoccupation with those symptoms in multiple systems. He attributes the symptoms as being related to the pesticide exposure although many of them are explicable purely on the basis of age or an unrelated disorder. Therefore it is my opinion that Mr Murray [sic] has a somatisation disorder, that this condition initially was that of an anxiety and depressive condition that occurred in response to the stress of being exposed to the chemicals, particularly in view of his pre-existing belief system. This condition has continued and in time has developed into that of a somatisation disorder as is often widely recognised in the literature in the area of multiple chemical sensitivities and psychiatric disorders." 37The psychiatric condition diagnosed by Dr Jungfer was a somatoform disorder. Somatic disorder is defined in DSM-IV as a history of many physical complaints that recur over a period of years and result in treatment being sought or significant impairment of important areas of functioning. It is a recognised psychiatric illness for the purposes of s 31 of the Act. The defendant's liability case - negligence 38The defendant contested the plaintiff's claim on a number of bases. They are identified and determined hereunder. A. Plaintiff's reliability as a witness 39The defendant submitted that the plaintiff was not a reliable witness and had "set up" the defendant in an attempt to press his view as to the danger of chemicals as well as to recover substantial damages. 40There was considerable evidence which the defendant pointed to in support of its submission. This has been discussed at length in the submissions of senior counsel for the defendant and does not require repetition here. Suffice it to say that the plaintiff's complaints are subjective, objective confirmation is absent; the plaintiff appeared to produce symptoms after he became aware from his researches of their association with poisoning of any sort; he showed a readiness to exaggerate and dramatise the symptoms of which he complained; he was prepared to adapt his evidence to meet the exigencies of the moment, leading to inconsistencies, contradictions and inherent improbabilities in his evidence much of which was reconstruction rather than recollection. Thus, he gave evidence in chief he had not the slightest concern of harm on 7 December 2000 when spraying commenced whereas in cross examination he said he became immediately very concerned on arrival of the technician on that day; he delayed notifying the defendant of the alleged injury for over a year whilst he sought to gather evidence against the defendant; his subsequent weeding of chemically affected grass, his failing to leave the premises when spraying was to take place appear inconsistent with his general position; his history to doctors varied; although a number of "before and after" witnesses were called by the plaintiff, they had limited contact with him; the persons who had the greatest involvement with the plaintiff, his ex-wife and his son, were not called. 41I accept the defendant's submission that the plaintiff's evidence was, at times, unreliable and exaggerated and that his evidence must be carefully considered before being accepted on any disputed issue. B. Foreseeability 42Whilst the defendant accepted that Biflex, in its concentrated form, was categorised as a poison, it was not used in that form by Pestkil but rather it was used as an emulsion created by mixing one part Biflex with 100 parts water. The defendant submitted that, as used, it was not to be categorised as toxic or an irritant. 43The plaintiff called a consultant, Mr Meadows, who had lengthy experience in relation to the pest industry, including training technicians. He gave evidence that: (a) Biflex was a very suitable chemical for the control of termites; (b) Biflex was a particularly safe and suitable choice for termite control under normal circumstances; (c) Biflex was sold to registered licensed pest control users only and may only be used by registered operators; (d) coarse sprays were used for this work. They have large droplets that do not drift in the wind. If the correct equipment was being used, the amount of spray drift would be negligible; (e) there would be no spray drift from the delivery of pesticide through the holes drilled in the slab using specialised equipment; (f) the risk of spray drift entering the unit would be very, very negligible; (g) there would be some evaporation of the solvent in the pesticide and there could be some drift in the air for that. The possibility of it drifting into the unit in some way would be negligible; (h) he had no information that Biflex was not applied in accordance with the Biflex label, the material safety data sheet applicable to Biflex, the Australian Standard and the OH&S requirements. Mr Hobden confirmed the treatment on 21 February 2001 was carried out by him in accordance with the Australian standard and the manufacturer's instructions; (i) there was no hazard at all to physical health from the application of Biflex in the correct manner; (j) asking the plaintiff to vacate the premises for a period of hours would have been a reasonable thing to do. 44I accept that evidence. Mr Hobden gave evidence that the appropriate specialised equipment was being used by Pestkil for these operations and that he, Mr Hobden, did not believe that Biflex was hazardous. I find that Biflex in emulsion form, as used by Pestkil on 7 December 2000 and 21 February 2001, did not create a foreseeable risk of physical harm to persons of ordinary susceptibility or, alternatively, if a risk was created, it was so negligible as to be insignificant and not to require any protective steps to be taken. Perception (being the fear of a possible injury) is not harm for the purposes of s 5 of the Act but is of no significance in this case as the plaintiff's case is that he sustained actual injury as a result of his exposure to Biflex or its ingredients. 45It would appear the only risk to the plaintiff, as a person having a sensitivity, if any, would arise from the possibility of contact with the solvent. The risk that the solvent should travel from the fence 3 - 4 metres away and somehow enter the unit, the walls of which were lined, through, eg, a ventilation slit, and reach the plaintiff in a quantity to be likely to cause him any significant harm due to his sensitivity was remote. Solvents are ubiquitous in the community, being used as fuels, solvents, cleaning liquids, glues, paints, toiletries and in medications such as creams, lotions and shampoos. They were present in the plaintiff's unit years later when the unit was tested. The source was an oil painting belonging to the plaintiff. The risk, if it existed at all, was so insignificant as not to reasonably require any protective steps to be taken. C. Physical injury 46The defendant submitted the plaintiff, who bore the onus of proof, had not established that he suffered a physical injury on 7 December 2000 or on 21 February 2001 or, if he had, he had not established the injury was due to exposure to Biflex or a hydrocarbon solvent from it. 47The plaintiff's evidence was that he reacted to the kerosene smell on 7 December 2000, feeling intensely fatigued and very dizzy. He developed a headache, became uncoordinated and was bumping into objects. He saw his general practitioner the next day. The symptoms had mostly resolved within 48 hours, save for fatigue which had decreased by the time of the consultation. 48The general practitioner, Dr Tan, recorded in his notes: "Pest technicians spraying synthetic pyrethroid outside house for white ants yesterday. Was exposed to fumes. Complained of headache and nausea within one hour and feeling extremely lethargic. Feeling better today." There was no reference to unco-ordination or bumping into things or dizziness. There was no reference to any aggravation of the plaintiff's asthma and no reference to acute respiratory irritation which were matters which, as Dr Donohoe observed, would have been expected to be found if the plaintiff had inhaled the solvent or any biological effect had occurred. 49Dr Tan prescribed no treatment. According to the plaintiff, Dr Tan did not think the symptoms related to anything and considered them purely coincidental to the spraying. 50Dr Bisby, a well qualified expert, concluded: "The account of Mr Thompson's reported symptoms is not consistent with him having had any significant exposure to the termiticide spray. In summary, the retrospective exposure assessment indicates with reasonable certainty that Mr Thompson, during and after the spray applications, would have had little or no exposure, by any route, and none of any biological or medical significance." 51Dr Kaufman did not believe there was any physical illness to account for the plaintiff's symptoms. He did not believe there was any cause or nexus between these symptoms and exposure to pesticide in December 2000. 52Other experts gave similar evidence. Dr Crank considered there may have been small amounts of hydrocarbon fumes in the air surrounding the premises for the first day, but not enough to cause toxic effects. Mr Cantrell did not believe the plaintiff's alleged illness or illnesses were related to his exposures and Dr Markovic considered it highly unlikely bifenthrin or its components contributed any part to the alleged injuries claimed by the plaintiff. 53The plaintiff did not vacate the premises at the time of the second treatment. Despite the protestations to the contrary, it is inconceivable a person so concerned with chemicals as the plaintiff is alleged to have been would have remained on the premises whilst a second spraying was carried out if he had had the reaction he described to the initial termiticide treatment. 54The complaints to Dr Tan, if related to the termiticide treatment at all, were de minimis and treated by Dr Tan as such. In my opinion, the plaintiff has not established he suffered injury on 7 December 2000. 55In respect of the alleged injury on 21 February 2001, the plaintiff gave the following evidence: "Q. Did you notice any change in your health after this person left on 21 February, on the day that he left first of all? A. I was simply suffering from that range of four or so symptoms that I had experienced with the first pest treatment, although the symptoms were less in intensity. I guess the only other signature of that treatment was a very mild amount of asthma." 56On 22 February 2001 the plaintiff consulted Dr Musso. Another doctor in Dr Musso's practice later responded to a letter from the plaintiff's solicitor in respect of Dr Musso's involvement as follows: "From her records, it states that the patient complained of thinking he was being poisoned at his unit on 7/12/2000. It was allegedly treated for termites with a pesticide called Biflex which contained ? pyrethrin." There was no reference to any exposure or increase in symptoms on 21 February 2001. 57The plaintiff commenced to consult Dr Morris in 2003. In her undated first report Dr Morris refers to the alleged exposure on 7 December 2000 but made no reference to any exposure or injury on 21 February 2001. 58No claim was made in respect of an alleged injury on 21 February 2001 until after the expiry of the limitation period. 59In my opinion, the plaintiff has not established that he suffered injury on 21 February 2001. D. Psychiatric injury 60The plaintiff alleged he suffered from mental harm, being a somatoform disorder. The defendant does not accept this diagnosis or that the symptoms so categorised were caused by the termiticide treatment. However, it submitted that even if these matters be assumed in the plaintiff's favour, no duty of care arises in respect thereof by virtue of the application of s 32 of the Act. 61Dr McClure, who was qualified by the defendant, in his report dated 21 December 2005, stated: "Noteworthy was the MMPI-II result with a 'profile pattern indicate[ing]...an interest in portraying himself as being physically disabled.' He reports extensive, vague, physical problems that are unlikely to be the result of a specific physical disorder. This is most likely the result of a long-term, chronic pattern of somatisation that stems from basic ingrained personality problems. Individuals with this clinical pattern tend to be uninsightful when it comes to understanding the causes of their symptoms, in part because they prefer to rely on medical explanations for their symptoms." Dr McClure agreed he could not totally discount a somatoform disorder but considered it more likely the plaintiff's perceived physical symptoms were the result of situational factors with pre-existing personality traits. 62Dr Gardiner, a consultant chest physician, in early 2000 had been consulted by the plaintiff in relation to allergies. In 2008 Dr Gardiner was asked to furnish a report to the plaintiff's solicitors. He did so, and concluded in the final paragraph: "Mr Thompson provided me with a number of references he had downloaded from the internet and which he thought had some relevance to his symptoms. I have reviewed all of these and I do not believe there is any convincing evidence that the symptoms he has explained to me can be related to pyrethroids. I remain of the view that this man's symptoms are in the realm of functional somatic syndromes.... I do not believe the florid symptoms he described have any medically explicable basis and the constellation of symptoms I do not believe have any relationship to explanations I have been able to find in the medical literature." 63Dr Kaufman, in his report dated 3 August 2004, recorded a history that the plaintiff's main supervisor for the PhD was "confused regarding the structure and wording of the propositional statement as were the other two supervisors. Right from the beginning the main supervisor expressed difficulty with some of the abstract notions and that one of the other supervisors had challenged the conceptual notions and had given the plaintiff a hard time from 2001 as to how the ideas and arguments were expressed." Dr Kaufman opined: "An alternative explanation for the symptoms described by Mr Thompson might be that they have a psychological basis. From the history given, there was an impression that Mr Thompson had a high level of enthusiasm and optimism for the early completion of his thesis. It would seem that even prior to exposure to the pesticides, at least some of his supervisors were questioning the very foundation of his propositions. This might have presented an insurmountable challenge to Mr Thompson's progress in his studies." 64Dr Katelaris concluded the plaintiff displayed many features of somatisation. 65Although the issue is open to debate, there is sufficient medical evidence to conclude that the plaintiff may suffer from a somatic disorder. However, if such a categorisation be made, the issue then is what was the cause of that disorder. This depends solely upon acceptance of what the plaintiff says in this regard. It is arguable, on the evidence, that the plaintiff's disorder is a combination of the aging process, basic ingrained personality problems and anxiety in respect of the progress of his doctoral studies. I am not satisfied the plaintiff has demonstrated that any somatic disorder suffered by him is the result of the pesticide treatments on 7 December 2000 and 21 February 2001. 66Furthermore s 32 of the Act states: "(1) A person ( the defendant ) does not owe a duty of care to another person ( the plaintiff ) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. (2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following: (a) whether or not the mental harm was suffered as the result of a sudden shock, (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril, (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. (3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff. (4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff." 67The plaintiff accepted he did not tell any technician of a fear of mental harm. There was no evidence that the defendant knew or ought to have known of any preceding vulnerability to alleged psychiatric illness on the part of the plaintiff. In the absence of such knowledge, the psychiatric illness was not foreseeable. 68In my opinion, it has not been established that "the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken". 69Accordingly, the defendant did not owe a duty of care to the plaintiff to take care not to cause him mental harm. In my opinion, this is not a case of consequential mental harm but, even if it was so categorised, the result would be no different. E. The plaintiff's duty to take care 70The plaintiff is and was at all relevant times an intelligent adult, knowledgeable in relation to pesticides and poisons generally. He owed a duty to take care of himself - RTA v Dederer [2007] HCA 42; (2007) 234 CLR 330 at [47], [59]. He knew, better than any, the extent of his sensitivity to particular chemicals. On one version of his evidence he felt safe being in his unit with the doors and windows closed while spraying occurred on each occasion. This, on the evidence I have accepted, would have been a reasonable course to take. If, as he said in another part of his evidence, he was very concerned immediately the technician arrived on 7 December 2000 he could either have asked the technician to leave without spraying or have left the premises himself for a few hours. Similarly if he had concerns on 21 February 2001. 71It is submitted for the defendant that there is no reason to place a duty of care on anyone but the plaintiff in the circumstances of this case. In particular, the defendant had no duty to warn the plaintiff of any risk which would have been obvious to him or to ensure that he avoided any such risk. The cause of the plaintiff's loss should be wholly attributed to him or, alternatively, there should be 100 percent apportionment of contributory negligence to him pursuant to s 5S of the Act. 72I accept the defendant's submission. F. No breach 73The plaintiff identified in his submissions the reasonable responses required by him of the defendant. The defendant denied it owed the duties alleged. However, it submitted that, if it did owe any such duties, there was no breach for the reasons that follow: (a) As to the alleged duty to inform Pestkil of the plaintiff's sensitivity to dust and chemicals before any treatment was applied at the premises: The plaintiff had a duty to take reasonable care for his own safety and thus had a duty to inform Pestkil of his undue sensitivity. The plaintiff, on his evidence, informed Pestkil's technician directly of his sensitivity on 9 November 2000, well before any termiticide treatment commenced. In these circumstances, the defendant's failure to inform Pestkil of the plaintiff's sensitivity was of no consequence; (b) As to the alleged duty to inform the plaintiff in reasonable time that chemical treatment was to be applied to the premises and make alternative arrangements for the plaintiff to reside elsewhere while there remained a risk of chemical exposure from the treatment at the premises: (i) Mrs Hobden gave evidence that it was the practice of Pestkil to notify the tenant of the proposed time and date when the treatment would be carried out and to ask the tenant to confirm the appointment time. I accept the evidence of Mrs Hobden, which appears to be more appropriate than travelling to the tenant's residence on the off-chance the tenant will be at home and prepared to have the treatment carried out at that time. Mrs Hobden also gave evidence that it was Pestkil's normal practice to advise occupants to leave their home for at least two hours while the treatment was being undertaken. This appears to have been a longstanding practice commencing before the use of Biflex; (ii) the plaintiff said he did not recollect any advance notice of the visits on 9 November 2000, 7 December 2000 or 21 February 2001; (iii) I accept the usual practice was followed by Pestkil and the plaintiff was informed in advance of the proposed visits. In any event, the plaintiff had been aware of the proposed spraying on 7 December 2000 by reason of his conversation with the Pestkil technician on 9 November 2000 and he probably also had knowledge by reason of the telephone conversation with the defendant in September 2000. There was ample time for the plaintiff to request any reasonable safeguards, although in my opinion reasonable care did not require alternative accommodation to be arranged and subsequent events lead to the inference that the plaintiff would not have availed himself of such accommodation, if offered, in any event; (c) As to the alleged duty to ensure the termites were treated using an alternative method that did not involve using chemicals: (i) the plaintiff alleged that an appropriate pesticide which should have been used by the defendant was Nematerm . This pesticide, he said, was no threat to humans. The plaintiff produced a brochure advertising Nematerm (Exhibit B). The plaintiff said he had forwarded the brochure to the defendant some time during 2000. There was no record that Exhibit B was forwarded to the defendant or received by it. Accordingly, there was no proof it had come to the defendant's attention. However, for reasons which follow, it is unnecessary to determine this issue; (ii) it was also suggested that arsenic trioxide, Termimesh or baiting could have been used as an alternative to Biflex. These alternatives did not involve spraying although apart from Termimesh each involved chemicals; (iii) the defendant submitted that the evidence established these alternatives were not reasonably practicable for the following reasons: (a) Nematerm was a discredited methodology with a poor history of effectiveness; (b) arsenic trioxide is a dust which can be used to inject into a tree containing a nest. It is toxic and carcinogenic. It would have been used only if there was a nest in a tree. Inspection in 2005 showed an active colony in a tree 30 metres from the plaintiff's unit but it was not established whether that nest existed in 2000 and if it did whether the termites from it were responsible for the damage to the fence; (c) Termimesh - this is installed at the time premises are constructed. It had not been installed when the unit was built. It may not have been available at that time. In any event, it was not effective and was inapplicable in respect of premises already constructed; (d) Baiting - this involved putting a bait on the ground in the hope the termites would be attracted to it. The bait required regular observation and the procedure was labour intensive. It often took a long time to be effective, if it was effective at all. It was significantly more expensive than Biflex; (iv) in my opinion, it has not been demonstrated that there were reasonably practical alternative measures of obviating the termite problem such as would have made the use of Biflex unreasonable. G. Delegation to independent contractor 74The defendant submitted that it had delegated the task of eradicating the termites to an independent contractor, Pestkil. Pestkil was a large, well established and competent specialist in pest control work. It held the necessary licences and authorisations to perform such work. Its competence had been recognised by the defendant which had granted it extensive contracts. The defendant was entitled to delegate the task of eradicating the termites to the independent contractor. In that event, the defendant was not liable for any negligence in relation to the termiticide treatment by Pestkil - Sweeney v Boylan Nominees Pty Limited [2006] HCA 19; (2006) 226 CLR 161 at [12]. Any duty of care to the plaintiff in this regard rested with Pestkil, not the defendant - Transfield Services (Australia) v Hall [2008] NSWCA 294; (2008) 75 NSWLR 12. 75The plaintiff submitted the defendant could not discharge the relevant duty of care simply by appointing Pestkil to undertake the work. I disagree. In my opinion, the delegation of the task to competent independent contractors provides a complete answer to the plaintiff's claim in negligence. H. Limitation Act defence 76The plaintiff commenced these proceedings on 5 December 2003 by filing a statement of claim in the District Court. The statement of claim pleaded injury due to the termiticide treatment on 7 December 2000 only. 77On 21 May 2007 an amended statement of claim was filed adding a claim for damages for injury arising from the treatment on 21 February 2001. The amendment was made pursuant to an order of this court dated 17 April 2007. 78The defendant has pleaded that the claim for injury on 21 February 2001 is statute barred. It relied upon ss 18A and 50C of the Limitation Act . Senior counsel for the defendant conceded s 50C was not applicable but left s 18A in issue, though he did not address it in his final submissions. 79Counsel for the plaintiff tacitly accepted that the claim relating to the treatment on 21 February 2001 was prima facie statute barred under s 18A by 21 May 2007. However, he relied upon s 65 of the Civil Procedure Act 2005 to defeat that defence. 80Section 65 of the Civil Procedure Act relevantly states: "(1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings. (2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as: ... (c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process. (3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced. (4) This section does not limit the powers of the court under section 64. (5) This section has effect despite anything to the contrary in the Limitation Act 1969. (6) In this section, originating process , in relation to any proceedings, includes any pleading subsequently filed in the proceedings." 81Leave having been given to make the amendment, the Court otherwise not ordering under s 65(3) and the amended statement of claim having been filed pursuant to that leave, it is now too late to argue that the new cause of action did not arise from the same (or substantially the same) facts as those giving rise to the existing cause of action - s 65(2). Accordingly, I reject the limitation defence. General 82The defendant does not rely upon the defences under ss 42 and 43 of the Act. Section 43A was referred to in written submissions though it was not pleaded. I have assumed that s 43A is not sought to be pressed by the defendant. Contributory negligence 83As I have found a verdict for the defendant, it is not necessary to consider this aspect of the matter save to the extent referred to in para [71] hereof. The plaintiff's liability case - contract claim 84In addition to his claim in negligence, the plaintiff relied on alleged breaches of the terms of the residential tenancy agreement dated 16 June 1998 between him and the defendant. He pleaded, in the third further amended statement of claim as follows: "10 It was a term and condition of the Tenancy Agreement that the first defendant, during the currency of the Tenancy Agreement: 10.1 Would ensure that the premises were fit to live in and 10.2 Would not interfere, or cause or permit any interference, with the plaintiff's reasonable peace and comfort in using the premises." 85The references to 10.1 and 10.2 are confusing. In his opening address, senior counsel for the plaintiff referred to cl 11 and cls 6(1) and 6(2). I have assumed the plaintiff in fact relies upon cl 6.1 ("The landlord agrees that the tenant will have quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title to that of the landlord"), cl 6.2 ("The landlord agrees that the landlord or the landlord's agent will not interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of the tenant in using the premises.") and cl 11.1 ("The landlord agrees to make sure the residential premises are reasonably clean and fit to live in"). I do not apprehend any prejudice would arise from proceeding on that basis. 86The plaintiff also relied upon a breach of an implied warranty which was pleaded in the following terms: "Further, or in the alternative, the defendant in applying the pesticide to the premises for the purposes of treating the termites, impliedly warranted to the plaintiff that the application of the pesticide to the premises was safe and harmless and/or it was the duty of the defendant to ensure that the application of the pesticide was safe and harmless to the plaintiff." 87The defendant submitted there was no express warranty in such terms and no basis for it to be implied. I accept that submission. I also conclude there would have been no breach of the warranty had it been implied. 88The plaintiff submitted that the premises were unsafe when chemicals were allowed to enter the plaintiff's residence and use of chemicals in the termiticide treatment created unnecessary risk when other, non-chemical alternatives were available to the defendant. As previously considered, the alternatives were not practicable or appropriate - see [73(c)]. 89The plaintiff submitted that s 3A(2) of the Act excluded the application of Pt 1A and Pt 3 of the Act as there were contractual provisions to the contrary. I do not accept that s 3A(2) has excluded the application of the Act and I note that Pt 3 applies "regardless of whether the claim is brought in tort, in contract, under statute or otherwise" - s 28(1), and see similarly s 5A. 90The defendant submitted: (a) the contract has to be read as a whole. It includes the right of the landlord to have access to the premises in certain circumstances (cl 8), including where "the tenant agrees". There was no evidence that the defendant breached this clause which entitled it to enter the premises; (b) specifically, "quiet enjoyment" is used in the sense of "free from interruption" or "peaceful". Thus by letting, the landlord gives the tenant the right to possession during the term and impliedly not to substantially interfere with the tenant's exercise of that right: see Kenny v Preen [1963] 1 QB 499 at 511 and Hawkesbury Nominees Pty Limited v Battik [2000] FCA 185 at [37]. There is no evidence of substantial interference by either Pestkil or the defendant with the tenant's exercise of his right of possession. In any event, Pestkil was contracted to address the plaintiff's own request that the termite infested fence be dealt with. Furthermore, the plaintiff was more than entitled to refuse to allow Pestkil's technicians to enter his property and/or to demand that they leave. He did neither; (c) nor is there any evidence of interference with the reasonable peace, comfort or privacy of the tenant in his using the premises; (d) the Court would be satisfied that at the time the premises were reasonably fit from the point of view of the purposes for which the lease was granted. A lesser degree of interference is not actionable ( Glasshouse Investments Pty Limited v MPJ Holdings Pty Limited [2005] NSWSC 456 - noise and dust on facts not substantial interference with the use of the premises as a restaurant). Nor is interference actionable where the breach was not a deliberate act, or that the consequences were not reasonably foreseeable ( Martins Camera Corner Pty Limited v Hotel Mayfair [1976] 2 NSWLR 15 at 23-24); (e) The fact that the plaintiff was offered alternative accommodation and the plaintiff refused the offer, is convincing evidence that there was no or no reasonable interference with the plaintiff's use of the premises. The fact that the plaintiff sought and consented to the treatment of the termites would in any event involve a waiver of any breach of the terms of the lease. 91In my opinion, there was no breach of the tenancy agreement. The plaintiff has continued to reside in the unit at all times since the termiticide treatment and refused to take alternative accommodation when offered, preferring to remain. He has resided in the unit and for much of that time his son had resided with him. There was no interference with the reasonable peace, comfort or privacy of the plaintiff in using the premises. The plaintiff had required action be taken in respect of the fence. He thus consented to the presence of Pestkil. Had he not, he could have refused entry to Pestkil or demanded the technicians leave. He did not. There has been no relevant breach of cls 6.1, 6.2 or 11.1 and the claims which are pleaded based upon such contractual terms have no application on the facts of this matter. Damages 92The plaintiff claims damages, which he quantified at a figure in excess of $1 million. The defendant contends, in essence, that the Court could not find there was any proven damage. 93The conclusion which I have reached makes it unnecessary to determine damages. The nature of the case is such that an assessment at this stage would not assist should the matter go further and the result be reversed. Accordingly I have not sought to assess damages against the prospect of the matter going further. Conclusion 94In my opinion, for the reasons set out herein, the defendant is entitled to a verdict and judgment against the plaintiff. The parties may wish to make submissions as to the disposal of the cross actions and costs thereof. Accordingly, I make no orders as to these matters at this stage. In the event that an agreement as to these matters is reached between the parties, short minutes of the consent orders should be forwarded to my associate within 10 days of this date. Otherwise, I request counsel to serve any submissions relating to those matters within 21 days of the date of this judgment with replies thereto within a further 7 days. Orders 95I make the following orders: 1. Verdict and judgment for the defendant. 2. The plaintiff pay the defendant's costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2011