by Stuart Eustice, Partner and Gregor Campbell, Associate

This was an appeal from a jury verdict in favour of an employee (the Plaintiff), who suffered a respiratory injury while working at Nestlé’s Le Snak production facility in Wahgunyah. The central issue on appeal was whether it was open to the jury to find that Nestlé had breached its statutory duties under the Occupational Health and Safety Regulations 2017 (Vic).

It was alleged in the principal proceeding that during a scheduled cleaning process on 8 July 2017 the Plaintiff developed a cough, headache, breathing difficulties and other flu-like symptoms. She was subsequently diagnosed with Reactive Airways Dysfunction Syndrome (RADS) and Reactive Airways Laryngeal Dysfunction Syndrome (RALDS).

Nestlé accepted that her condition was caused by exposure to something in the workplace on that day but denied it had breached any common law or statutory duty owed to her.

The jury ultimately rejected the claim for breach of a common law duty but found that Nestlé had breached regulation 158 and/or 163 of the OHS Regulations, therefore finding in favour of the Plaintiff.

Nestlé sought leave to appeal on the basis that:

1. the jury’s finding of breach of statutory duty was not reasonably open on the evidence; and
2. regulation 163 did not apply because the chemicals were diluted before use and therefore were not “hazardous substances” within the meaning of the Regulations [this was a new argument raised only on appeal].

Evidence at Trial

At trial, the Plaintiff had advanced a number of possible mechanisms by which she may have been injured being alternatively that:

1. her conditions were caused by exposure to Topax 686, a bleach-based cleaning chemical used throughout the cleaning process, alone. Dr Burdon (Respiratory physician) provided evidence in support of this allegation expressing the opinion that the Plaintiff’s injury was caused by inhalation of fumes or aerosol generated from that product.
2. Topax 686 mixed with acidic chemicals used in the plant’s separate cleaning-in-place (CIP) system, producing chlorine gas. Dr Michael Robertson (Forensic Toxicologist) gave evidence supporting this possibility.
3. the accidental mixing of Topax 686 and Topax 56 due to deficiencies in chemical storage and labelling causing chlorine gas as opined by Mr Michael Beale (Occupational Hygienist).

Nestlé had responded to the above theories through the expert opinion of Yanel Lara whose evidence was that if the cleaning processes were carried out as designed, the chemicals were appropriately diluted, ventilation was adequate, and the formation of harmful concentrations of chlorine gas was unlikely.

Appeal

The majority of the Court of Appeal (Richards JA and Kaye JA) held that the jury’s verdict was reasonably open on at least the following two bases:

1. First, the jury could accept that exposure to Topax 686 alone (as opined by Dr Burdon) caused the injury and that Nestlé had failed to implement reasonably practicable engineering controls to deal with this issue. There was evidence in front of the jury, provided by the plaintiff’s co-workers, that the filling room became hot, steamy and poorly ventilated during cleaning, that air conditioning may have been turned off, and that workers were exposed to chemical vapours for prolonged periods. The jury was entitled to conclude that improved ventilation would have reduced the risk of injury and that Nestlé had therefore breached regulation 163 by failing to institute these controls.
2. Secondly, it was open to the jury to find that chlorine gas was generated when Topax 686 came into contact with acidic chemicals used in the CIP process sufficient to cause the Plaintiff’s injury. There was evidence that the two cleaning processes could operate simultaneously and that chemicals from both systems discharged into the same drains. The jury could reasonably conclude that Nestlé failed to control that risk through engineering or administrative measures, such as preventing overlap between the two cleaning processes or modifying the drainage system. Again, being a breach of the OHS Regulations.

The majority further refused to entertain the argument that regulation 163 did not apply because the chemicals were diluted before use, finding that this issue had not been raised in Nestle’s defence, opening, or with any witness who might have given relevant evidence about it. They further commented that the evidence in support of this assertion was raised by Ms Lara whose opinion had been explicitly rejected by the jury in coming to their original finding.

The majority ultimately therefore concluded that there was sufficient evidence upon which reasonable jurors could find that Nestlé breached regulation 163 and that the breach caused the Plaintiff’s injuries. Whilst leave to appeal was therefore granted, the appeal was ultimately dismissed.

Dissenting Opinion

There was however a dissenting judgment provided by Donaghue JA. Her Honour considered that Nestlé should be allowed to rely upon the Safety Data Sheets which demonstrated that the chemicals ceased to be “hazardous substances” as defined by the OHS Regulation once diluted. On that view, the OHS Regulations did not apply and the jury’s finding of breach of statutory duty could not stand.

Relevance to clients

The most obvious lesson to take from this decision is the high burden placed on those appealing a jury verdict, particularly where competing expert evidence has been considered and weighed up by the jury. The Court in this matter determining that it was open on the evidence for the jury to reach the decision it did.