Michaelmas Term
[2017] UKPC 30
Privy Council Appeal
No 0080 of 2015
JUDGMENT
Petroleum Company of Trinidad and Tobago Limited
(Appellant) v Ryan and another (Respondents) (Trinidad and Tobago)
From the Court of Appeal
of Trinidad and Tobago
before
Lady Hale
Lord Kerr
Lord Wilson
Lord Carnwath
Lord Hughes
JUDGMENT GIVEN ON
19 October 2017
Heard on 17 July 2017
|
Appellant
Romie Tager QC
Jonathan Crystal
Charlotte Proudman
(Instructed by
Norton Rose Fulbright LLP)
|
|
Respondents
Ian L Benjamin
(Instructed by
Simons Muirhead & Burton LLP)
|
LORD CARNWATH:
1.
The claimants (respondents to this appeal), Stanley Ryan and, his
daughter, Athena, have since 1994 lived at 13 Hickling Village, Fyzabad, some
45 feet to the south-east of a disused oil well FZ94, owned and formerly
operated by the appellants (“the company”). In 2006 they were diagnosed with,
respectively, pulmonary fibrosis and reactive airways disease. They attributed
their conditions to emissions of hydrocarbon gases from the well and adjoining
land under the company’s control, and sought damages from the company, in
negligence or nuisance. The claims were dismissed by the High Court (Rajkumar
J), but allowed by the Court of Appeal (G Smith and P Moosai JJA, A Mendonca JA
dissenting). The company appeals to the Privy Council. The appeal raises issues
as to the appropriate test of causation in such cases, whether the Court of Appeal
were entitled to reverse findings of fact made by the trial judge, and whether
there was sufficient evidence to support their conclusions.
Background history
2.
The well was installed in the 1920s and operated until 1943, when it was
abandoned and plugged. Smith JA (para 8) provided a useful description of the
“dynamics” of the well and of the abandonment process in 1943 (drawn from the
company’s evidence):
“This oil well consisted inter
alia of a metal casing (a shaft) drilled into the ground to a depth of about
twelve hundred feet. The rocks in the area were porous and contained deposits
of hydrocarbons (oil and gases) in them. When the shaft was drilled into an
area that contained a substantial deposit of hydrocarbons (a reservoir) the
release of the pressure in the rocks caused the hydrocarbons to flow up the
shaft to the surface. From there they were carried to a refinery. The apparatus
at the surface and the shaft created the communication with the underground
reservoir. FZ94 had been a good producing well but was abandoned in 1943 when
the output from the reservoir declined. The shaft was then ‘plugged’ with
cement at three levels. These plugs were made out of cement and varied in
length between twenty-four to one hundred and fifty feet. The lowest plug was
at about nine hundred feet below ground. The highest one was located at about
one foot from the surface.”
There is mention in the papers (p 33) of a surface cement
plug being inserted as part of a “final abandonment procedure” in May 1964, but
nothing appears to turn on this.
3.
In 1999, following a report from a company employee living in the
village of a “slight odour of oil in the air”, inspection by the company
revealed an oil stain some 12 feet in diameter close to the well casing to the
west. Although this was not clearly attributed to oil emanating from the well
itself, the company took steps to deal with it by digging a small pit with a
connecting drain, and instructing contractors to visit every two weeks or so to
remove any oil traces. Although the judge accepted that the seepage was
“small”, he regarded this evidence as showing that the area of seepage was
under the company’s control and responsibility. The amount so extracted was not
quantified and the collections ceased in August 2005 (Judgment paras 115-125).
4.
Mr Ryan’s evidence was that he had experienced oil smells since 1965,
and had problems of coughing since the 1970s. He had in the past worked for 15
years for the company in an area called the tank farm. Although he spoke of
oral complaints to the company in 2003 (Judgment para 53), his first written
complaint was dated 9 February 2006, alleging that the well had been “leaking
oil and emanating hydrocarbons for several years” and that this had had “a
tremendous negative impact on my health” (para 48).
5.
In January 2006 there was a visit by two company “safety specialists”,
Mr Julien and Mr Cadogan. Their inspection disclosed some oil seepage in the
vicinity of the site. Although they regarded the oil seepage and any possible
vapours as “of a minimal nature” (Judgment para 128), these were taken
sufficiently seriously by the company to undertake a substantial project for
the “re-abandonment” of the well.
6.
The proposed work was described in an application made on 2 March 2006
to the Environmental Management Authority (“EMA”) for a Certificate of
Environmental Clearance. The purpose was said to be “to complete site
decommissioning (of the well) to prevent further leaks in an effort to protect
human health and environment”. The estimated cost was given as T$200,000.
Appended to this application was a “well abandonment programme”. This was on a
Ministry of Energy form, their approval also being required for the project. On
a page headed “Well workover programme”, the following appeared:
“WELL HISTORY AND REASON FOR
PROGRAMME
…
The well is bubbling around the
casing - about 3' away and contaminates an area about 6' around the casing. Oil
flows to a man made pit about 13' away from where it is supposedly recovered by
tanker. The pollution problem seems to be in existence for several years. The
NWD has already initiated construction of a containment tank to be installed
around the casing which should serve as a temporary solution to the problem. A
more permanent solution would be to drill out the present cement plugs, squeeze
cement the perforated intervals, spot new cement plugs and officially abandon
the well.
PRESENT STATUS
Abandoned - Leaking around
wellhead.
SUMMARY OF PROPOSAL
To drill out cement plugs and
abandon well according to API standards.”
There followed a proposed programme of work.
7.
The work was carried out between February and April 2006. It is
described in the evidence of the company’s witnesses, principally Mr Cadogan,
Mr Jurawan and Mr Archie (Judgment paras 130-162). In short it involved replacement
of existing plugs, pumping in substantial quantities of cement, sealing the
well with a steel plate, and remediation work in the surrounding area
(extending to some 550 m2 - S/F para 3). “Bubble tests” were carried out during
the course of the work to check the extent of seepage and the effectiveness of
the cement plugs. In April, following the work, environmental surveys were
carried out by independent consultants (Kaizen Environmental Services
(Trinidad) Ltd and ROSE Environmental Ltd) in the soil and the air, to
determine the extent of volatile oil compounds (VOCs) in the vicinity of the
well (Judgment paras 158-167). A gas monitoring survey by ROSE found that “the
environment around the Well site is virtually free of Volatile Organic Compounds,
Hydrogen Sulphide and Sulphur dioxide” (MS344).
8.
On the basis of this and the other evidence, including his own site view
during the course of the trial (para 168-172), the judge found that after the
2006 re-abandonment exercise “there were no hydrocarbon emanations from the
well FZ94 or from the area surrounding it …” (para 173). As Smith JA observed
(para 10), this finding was not contested in the Court of Appeal. It is common
ground in this court.
9.
The present proceedings were begun in July 2006. The judge heard
evidence between December 2009 and March 2010. On 8 December 2010 he gave
judgment dismissing the claims.
The judgments below
The trial judge
10.
With respect to Rajkumar J (as Smith JA observed - para 21), analysis of
his judgment is not made easier by the dispersion of findings of fact
throughout the judgment (not always in consistent terms), and their
intermingling with long extracts from the evidence, written and oral. On the
other hand, the record of the evidence, including his own questions to the
witnesses, indicate careful attention to the critical issues. His discussion of
the law of negligence ends with a section headed “Findings and Application of
Law” (paras 210-212), which provides a useful summary of his conclusions on the
principal issues of law and fact arising under that head.
11.
In summary, he accepted that the company had a duty to ensure that oil
or other substances on land for which it was responsible did not emit gaseous
emanations to such an extent as to pose a source of injury to adjoining
landowners (para 188), and that it was sufficient for the claimants to show
that those emissions made a material contribution to their complaints (para
190). He accepted that there was some seepage of hydrocarbons from the area
around the well before 2006. But he concluded, in short, that the amount was
minimal and effectively monitored by the company, that the extent of any
gaseous emissions was unquantified, and that in any event the medical evidence
did not establish a link with the claimants’ ill health (para 210(b)-(f)).
The Court of Appeal
12.
In the Court of Appeal, Mendonca JA held that it had been open to the
judge to conclude as he had done. He summarised the effect of the judge’s
findings, with which he agreed:
“The evidence in this case does not
establish the cause of the [claimants’] diseases. It therefore does not
establish that they were caused by the emissions of hydrocarbons from the [company’s]
well and surrounding lands or that they were caused by other emissions that
could be found in a crude oil environment. The evidence also does not establish
that there were in fact any such emissions in the vicinity of the [claimants’]
home at all or in sufficient concentrations to be hazardous to their health.”
(para 31)
13.
Smith JA (supported by Moosai JA) disagreed, holding that the judge’s
conclusions were affected by material errors and not supported by the evidence.
For this purpose he conducted a detailed examination of the judgment and the
evidence, written and oral, to which it will be necessary to return below. He
held that the claimants had proved on the balance of probabilities the medical
basis of their complaints, and the causative link with hydrocarbon emissions
for which the company was responsible. He also criticised the judge for placing
too stringent a burden on the claimants, in circumstances where the evidence
relating to the well and its environs lay within the control of the company,
and accordingly they required “little affirmative evidence to establish a prima
facie case of negligence which the [company] then had to rebut” (paras 23-24).
14.
In a concluding section (para 58ff), Smith JA discussed a possible
alternative approach to the issue of causation in negligence, designed as he
put it to “bridg[e] any alleged evidential gaps …” Since this did not form part
of his decision on the appeal, it will be convenient to address it so far as
necessary at the end of this judgment (paras 47-49 below).
Issues in the appeal
15.
Before the Board, while Mr Benjamin supported Smith JA’s alternative approach,
the dispute turned largely on his treatment of two issues of fact: (i) the
nature and extent of hydrocarbon emissions from the company’s land (“the
emissions issue”), (ii) the medical link (if any) between such emissions and
the claimants’ respective conditions (“the medical evidence”). Both sides
recognised the familiar limitations of the scope for an appellate court to
interfere with findings of fact by the trial judge. It is sufficient to refer
to Lord Reed’s summary in Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600, para 67:
“67. It follows that, in the
absence of some other identifiable error, such as (without attempting an
exhaustive account) a material error of law, or the making of a critical
finding of fact which has no basis in the evidence, or a demonstrable
misunderstanding of relevant evidence, or a demonstrable failure to consider
relevant evidence, an appellate court will interfere with the findings of fact
made by a trial judge only if it is satisfied that his decision cannot reasonably
be explained or justified.”
The emissions issue
The trial judge
16.
On this aspect the judge attached little weight to the evidence of the
claimants themselves. This reflected his finding (now undisputed) that the 2006
remediation work was successful, which was in direct conflict with their
evidence that the emissions were continuing up to the time of the trial. Thus
the judge recorded Mr Ryan’s evidence in cross-examination that:
“(f)rom 1965 to the present time I
get the scent of crude oil every day - well emits gases and I smell it”
and that it was continuing “even as we speak” (Judgment
paras 53-58). Athena’s evidence was to similar effect. The only other local
resident to give evidence, Mr Sorzano, said that the strong smell of oil “has
always been present in the area and has also infiltrated our house” (Judgment
paras 102-112), although he accepted in cross-examination that it was “a lot
less” than before (MS1094).
17.
The judge found Mr Ryan and Mr Sorzano “prone to exaggeration” (paras
58, 112), and that their reliability as to the pre-2006 emissions was thrown
into doubt by the unreliability of their evidence regarding the later position
(para 210(c)). There was no other supporting evidence on the emissions issue
from local residents, even from other members of the Ryan family who were
living in the same house (including his wife, the co-owner). Accordingly, he
relied largely on what could be inferred from the company’s evidence, arising
from its inspections between 1999 and 2006.
18.
Relevant “findings of fact” on this issue appear at various places in
the judgment. The fullest statement is at para 13, where, having found that
there was seepage of hydrocarbons before the 2006 re-abandonment, he said:
“The quantity of that seepage was
not the subject of quantitative measurement. Whether it comprised crude oil,
methane, ethane, or other gaseous hydrocarbons, Hydrogen sulphide, or sulphur
dioxide, aromatic hydrocarbons or some or none of these remains unknown The
evidence at highest establishes that the fluid portion of that seepage was, on
a balance of probabilities minimal, such that it could be collected in a pit
three or four feet deep together with any water that carried it into the pit.
It cannot be ruled out that such hydrocarbons as collected in that pit, and
which remained there until collected at intervals of a few weeks, would have
emitted an odour, and may have even been the source of volatile organic
compounds as the lighter components evaporated. But the effect of wind
dispersion is unknown as absolutely no evidence was produced of any testing of
gaseous concentrations allegedly arising from that pit.” (para 13)
19.
Later, after reviewing all the evidence, he set out relevant findings of
fact (paras 173-184). In relation to the period before the 2006 works, he found
that “there was oil in the vicinity of (the well) for the removal of which the
(company) was responsible”; that “it (did) not matter whether or not the oil
came from within the well”; and that it was “within its power and ability to
remove it, which it did by trucks, and to put a stop to it, which it also did
in 2006” (para 177).
20.
Under the heading “the level of hydrocarbons”, he observed that Mr
Ryan’s evidence was “curiously silent” on this aspect. Although he claimed to
have spent some $44,000 on works to alleviate the impact of gaseous emissions,
he had failed himself to produce any analysis of samples of soil or air (para
178). The judge turned to the “essential constituents” to prove a causal link
between “elements/substances in the air” emanating from the area under the
company’s control and the claimants’ medical condition (para 178). He
continued:
“180. At highest the court was left to infer that
the presence of a hydrocarbon emanation, most likely an emanation of crude oil
from the area around well FZ94 was also associated with an emission of gaseous
hydrocarbons from evaporation of its lighter elements in sufficient
concentration as to be detectable at the claimants’ premises and causative of
injurious medical conditions.
181. I am prepared to infer on
the evidence that the hydrocarbon emanation manifested as a blackened stained
area of soil was of crude oil and/or hydrocarbon in nature.
182. I am also prepared to
infer that on a balance of probabilities there could be evaporation of the
lighter constituents of that substance into the atmosphere.
183. The evidence does not
permit the third necessary inference ie that such evaporation produced a
concentration of gaseous hydrocarbons in an amount sufficient to be detectable
and to cause injury to either claimant …”
21.
The same points were repeated in slightly different terms in his
concluding “findings and application of the law” (paras 210-212). In
particular, he accepted the company’s evidence that -
“the amount of that oil was
minimal, that it was removed at intervals which prevented its accumulation to
excessive levels and that the situation was monitored by its servants and
agents.” (para 210(b))
and further that there was “no objective or quantitative
evidence of the level of gaseous emissions, if any, that evaporated from that
oil” (para 210(b)(c)).
The Court of Appeal
22.
For the majority, Smith JA concluded that the claimants had made out
their case that the company “was responsible for emanations of hydrocarbon
gases from FZ94 and its environs before the 2006 remediation exercise”. He gave
three reasons in summary for reversing the judge’s conclusion on this issue:
“The trial judge’s findings to the
contrary cannot be supported because of the material inconsistencies in his
findings, the material error about air testing before the 2006 remediation
exercise and his failure to appreciate the proper weight to be given to the
affirmative evidence which was led.” (para 39)
The three points there identified had been discussed in
detail in the preceding paragraphs, with footnote references to the judgment
below. They can be considered in turn.
23.
Material inconsistencies The alleged inconsistencies related to
the judge’s findings as to the existence or otherwise of “hydrocarbon
emanations” or “natural seepage” for which the company was responsible (para
35). Smith JA preferred the findings which, as he understood them, supported
the conclusion that the company was responsible for emanations of “hydrocarbon
gases”, which he thought “well supported by the evidence”. In particular, he
criticised the judge for failing to mention or take note of certain oral
evidence of Mr Jurawan, which in his view supported the contention that the
seepage was “created or facilitated” by the well (para 36).
24.
While there are some inconsistencies of language in the judgment, the
Board is not persuaded that overall these criticisms are justified. In
particular, they fail to take adequate account of the distinction drawn by the
judge between liquid emanations into the soil and gaseous emanations into the
air. Thus, for example, in footnote 26, Smith JA cites para 7(ii)(c) of the
judgment as indicating a finding by the judge that “the appellants failed to
prove that there were hydrocarbon emanations from FZ94” (para 35(i)). This is
said to be inconsistent with later findings (eg para 10) that there were such
emanations. Reference to para 7(ii)(c) does not support the criticism. It
refers, not simply to hydrocarbon emanations, but specifically to emanations of
“hydrocarbon fumes” and “gaseous components”. So read it is not inconsistent
with para 10 (referring to hydrocarbons “seeping from the area around the
well”); nor with the judge’s later summary at paras 181-183 (quoted at para 21
above), where he was willing to infer the existence of emanations “of crude oil
and/or hydrocarbons in nature”, but not such as to result in “a concentration
of gaseous hydrocarbons” in an amount sufficient to be detectable or harmful.
25.
It is also difficult to understand the weight attached by Smith JA to
the evidence of Mr Jurawan about the source of seepage as between the well and
the surrounding area. The notes of evidence to which he referred (pp 143-144)
show that this evidence emerged in the course of questions by the court itself.
So it would be surprising if the judge failed to take account of it. However,
he was not bound to refer to it unless he thought it of significance to his
conclusion. Since he had held that the company was responsible for seepage from
both the well and the surrounding area, and that the distinction was immaterial
(see para 19 above), it is understandable that he did not.
26.
Material error about air-testing The second material error
identified by Smith JA (para 37) was the judge’s supposed misunderstanding of
evidence of Mr Cadogan about air tests carried out by him before the
remediation project. According to Smith JA, the judge had wrongly interpreted
these as showing that there were no Volatile Organic Compounds (VOCs) in the
vicinity of the well; whereas on his own reading of the relevant evidence Mr
Cadogan had been testing only for methane, and not for other significant VOCs,
like hydrogen sulphide and sulphur dioxide. Mendonca JA (para 28), by contrast,
thought the purport of the evidence clearly related to all types of VOCs.
27.
The Board was taken to the relevant exchanges in the judge’s notes of
evidence (MS 1157-8). As Mr Tager QC pointed out, they included an answer to a
question by the judge himself, which suggested that testing for VOCs other than
methane had not been done by Mr Cadogan personally but by others in the team.
Whether or not this is the correct interpretation of the evidence, the Board
agrees with Mendonca JA that it is immaterial to the judge’s conclusions more
generally. As he said, on no view could Mr Cadogan’s evidence be read as
providing any support for a positive inference that hydrogen sulphide and
sulphur dioxide were present, and if so in sufficient concentrations to affect
health.
28.
Burden of proof Finally Smith JA criticised the judge’s failure
to “appreciate the proper burden of proof in the circumstances of this case”
(para 38). In his view, given the company’s admitted responsibility for the
maintenance of the well and its environs, the claimants had provided sufficient
affirmative evidence (including their own evidence of “oil stains and noxious
odours”) to establish a prima facie case of the company’s failure to prevent
seepage of oil and fumes before the 2006 remediation exercise, and so shift the
burden to the company to rebut negligence. This it had failed to do, having led
no evidence of the non-existence of VOCs pre-2006, nor carried out any tests to
establish their non-existence.
29.
In his oral submissions to the Board, Mr Benjamin relied particularly on
the company’s own assessment of the problem in March 2006, as recorded in its
application to the Environmental Management Authority, and the accompanying
application to the Ministry of Energy. That indicates that it was seen as a
“pollution problem” which had been in existence for some years, that it was
seen as sufficiently serious to require immediate remedial action (at an
estimated cost of T$200,000), and that the purpose was “to protect human health
and environment”. Mr Benjamin pointed to the surprising absence from the
company’s evidence of any information about the surveys and internal reports,
which must presumably have preceded such applications.
30.
The Board observes that although this application was relied on in the
Amended Statement of Claim, it seems to have played a very limited part in the
hearing. None of the company witnesses professed any direct involvement in its
production. Mr Archie had not advised on its production: MS1128. Mr Julien was
not asked about it in terms; but, while he had spoken to Mr Ryan and another
resident about their complaints, he said that no tests were carried out at
their houses, and he was not aware of any medical reports, which were being
dealt with by “another team”: MS1146-7. Mr Cadogan was asked about the
application to the EMA, but said that his department had not been involved: MS
1152. Mr Jurawan commented on aspects of the work programme, but, as an
employee of the project contractors, he did not profess any direct knowledge of
the company’s thinking: MS1161. On the other hand there seems no reason to doubt
that these documents accurately reflected the company’s perception of the
problem at the time.
31.
Neither document was mentioned by the judge or by the Court of Appeal.
They might have been seen as lending some force to Smith JA’s concern that the
judge’s approach to the burden of proof was unduly generous to the company. The
passages noted above (paras 18-21) show the emphasis he placed on the failure
of the claimants to discharge the burden of providing specific evidence of the
nature and extent of any gaseous emanations prior to the works in 2006. By
contrast, it could be said, he made little of the failure of the company to
explain its own actions or inactions in the seven-year period between the first
detection of the problem in 1999 and the re-abandonment exercise in 2006,
including the policy thinking behind the remediation project. Since it was the
smell of oil, detected by a company employee, that first alerted the company to
a potential problem, one might have expected some evidence of specific tests
carried out by the company over the ensuing seven years, and in any event in
January 2006 in response to Mr Ryan’s complaints.
32.
At this stage, however, it is difficult to draw any adverse inferences
from this apparent gap in the company’s evidence. The time to have explored it
would have been at the trial, when the company would have been able to respond.
For example, the company’s Chief Medical Officer, Dr Coombs, could have been
asked to explain the medical concerns referred to in the application, and
perhaps to produce any relevant internal reports. In the Board’s view, the mere
absence of such evidence cannot be relied on as in itself providing any
affirmative support for the claimants’ case, or as shifting the burden of proof
to the company.
33.
Accordingly, the Board respectfully agrees with Mendonca JA’s conclusion
that there was no proper basis for the Court of Appeal to reverse the judge’s
conclusions on this aspect of the case.
Medical evidence
34.
The medical evidence was given, for the claimants, by Dr Michelle
Trotman and Dr Carol Bhagan-Khan; and, for the company, by Dr Coombs and Dr
Seemungal. Dr Trotman was the specialist with direct responsibility for the
care of both claimants since March 2006. Dr Bhagan-Khan was an Occupational
Health Physician who had prepared a report on Mr Ryan’s condition in March
2007. Dr Coombs was the company’s Chief Medical Officer, having held that
position for 27 years. Dr Seemungal was an independent consultant physician,
specialising in the field of chest and internal medicine, and a senior lecturer
at the University of the West Indies. He was asked by Dr Coombs in August 2007
to advise on the possible causes of Mr Ryan’s condition.
35.
There was no disagreement with Dr Trotman’s diagnosis: pulmonary
fibrosis (Mr Ryan) and reactive airways disease (Athena). The issue was whether
either condition could be attributed to hydrocarbon emissions from an oil well
- either at all, or of the type and in the quantities shown to have come from
land within the company’s control.
36.
In a section headed “Analysis of Medical Evidence” the judge first
summarised the effect of Dr Trotman’s cross-examination (Judgment paras 61-65):
in summary that there were many possible causes of both conditions and that the
link with hydrocarbon emissions was not established. She had no direct
knowledge of any source or concentration of hydrocarbons and her focus on
hydrocarbons as a cause was based on the information given to her by the
claimants about their environment. Similarly, Dr Bhagan-Khan (Judgment paras
77-85) had had no personal knowledge of the claimants’ environment, and the
studies referred to by her did not establish a causal relationship between
exposure to fumes from crude oil and any specific respiratory disease.
37.
The judge made no direct reference to Dr Coombs’ own evidence, based on
his own experience of the oil industry and his exchanges with Dr Trotman in
2006. However, he summarised Dr Seemungal’s response to Dr Coombs (Judgment
paras 86-93), which concluded “based on a review of the medical reports and
published studies that no causative factor had been established”. In a section
headed “Can exposure to hydrocarbons cause pulmonary fibrosis?” (paras 94-101),
the judge stated his own conclusions, in a passage in which the following were
stated in bold type:
“97. I find that no cause has
been established for the medical condition of each claimant.
98. Further the state of the
scientific studies in articles produced and the testimony to this court do not
lead to the conclusion, and it is unable to conclude on a balance of
probabilities, that hydrocarbon exposure can cause pulmonary fibrosis or
interstitial lung disease or the condition of the claimant Stanley Ryan …
99. In the case of Athena it
is clear that her condition can be caused by such a wide variety of agents that
to assert that it is caused, on a balance of probabilities, by hydrocarbon
exposure rather than any of the myriad other possible causes, for example, dust
or agricultural chemicals or sugar cane fumes - (burnt?) is not possible on the
evidence.
100. Further, the medical
conditions of each claimant can have several possible causes, unrelated to
hydrocarbon exposure …”
38.
In the Court of Appeal, after a detailed review of the medical evidence,
Mendonca JA held that these conclusions were reasonably open to the judge on
the evidence, and there was no basis for an appellate court to intervene. Smith
JA disagreed. In his view the claimants’ medical evidence had been sufficient
to establish “a strong prima facie case of the causes of their medical
conditions” (para 28). He referred in particular to Dr Bhagan-Khan’s reference
to “literature which indicated the existence of lung changes due to hydrocarbon
exposure, specifically so, to a condition known as hydrocarbon pneumonitis”,
which could lead to fibrosis, consistent with Mr Ryan’s condition (para 27).
39.
By contrast Smith JA found the company’s attempted rebuttal
“unimpressive”. Dr Seemungal had not examined either of the claimants, and his
opinions on “the causative role of hydrocarbon gases in human lung pneumonitis”
had been “seriously discredited by cross-examination”; in particular:
“He revealed that while he had
previously stated that he did not find any literature linking lung disease like
pneumonitis and fibrosis to hydrocarbon fumes, a recent internet search
revealed such a link …” (para 30)
Dr Coombs’ evidence was open to question because it was
based on his researches of the literature “which must have been deficient in
the light of the admissions of Dr Seemungal whose researches eventually found
links between hydrocarbon exposure and lung disease …” He referred again to Dr
Bhagan-Khan’s production of “a medical text … confirming a link between
hydrocarbon exposure and lung diseases like pneumonitis and fibrosis” (para
31).
40.
In Mr Tager’s submission, the judge’s view that Dr Seemungal’s evidence
had been “seriously discredited” was without foundation. Since he had accepted
Dr Trotman’s diagnosis, there was no reason for him to have examined the
patient himself. As appeared from a review of the judge’s notes, the problem
for all the medical experts was, not the diagnosis, but the lack of any
evidence, in their combined experience or in the literature, of a causative
link between hydrocarbon emissions associated with an oil well and the claimants’
respective conditions. Dr Trotman had been aware of no studies showing such a
link (MS1069).
41.
The “literature” referred to by Dr Bhagan-Khan was very limited. In
cross-examination she had said she could provide “texts” to “illustrate the
changes in lungs due to hydrocarbon exposure” (MS1049). However, in
re-examination (MS1055) she identified only a single reference in an American
textbook (which had been on the reading list of a course attended by her: Clinical
Environmental Health and Toxic Exposures. The court was given no
information as to the standing of the book or of its authors. The reference
came in a table (16-3) of “Common radiographic findings in occupational and
environmental lung disease”. This set out a series of radiographic findings
with, in each case, a list of associated “diseases”. Next to the finding
“diffuse infiltrates acinar alveolar pattern (including pulmonary oedema)” was
a list of some 30 items (in alphabetic order), one of which was “hydrocarbon
pneumonitis”. The reference was not supported by any explanation in the text,
nor reference to medical studies or other sources. The three immediately
preceding items in the list (“chlorine, cobalt, fire smoke”) were no more
informative. Other than the word “hydrocarbon”, there seems to have been
nothing to link this item to the present situation. The judge took note of the
reference and asked Dr Bhagan-Khan some questions about her understanding of
the term “hydrocarbon” in that context (MS1058), but he does not appear to have
regarded it as important to the issues before him. The Board sees no reason to
disagree with that assessment. As Mr Tager submits, it is difficult to see
anything in the document itself or in the witness’s answers to suggest that it
had the significance now attributed to it by Smith JA.
42.
As to the suggestion that Dr Seemungal’s evidence had been “seriously
discredited” in cross-examination, this needs to be looked at in the context of
his evidence as a whole. In his witness statement he said that his search of the
literature had disclosed 230 papers on the effects of hydrocarbons. The judge
accurately summarised this evidence:
“Dr Seemungal conducted an
extensive literature search but concluded that there is no evidence of volatile
organic compounds of lung disease. A New Zealand study published 1994 on
rabbits suggested a possible link between exposure to N-Hexane, (exposure of
3,000 parts per million) and pulmonary fibrosis but this was not borne out by
further research, and in particular there were no other publications showing a
relation between pneumonitis and volatile organic compounds in humans.” (para
89)
43.
It is true that the judge made no reference to his cross-examination by
Mr Benjamin for the claimants. But it does not appear to have had the dramatic
effect claimed by Smith JA. The passages cited by him related, first, to Dr
Seemungal’s recent internet search, and secondly to his acceptance in
cross-examination that pulmonary fibrosis or pneumonitis could be clinically
diagnosed, and his statement that he had “no quarrel” with the findings in the
claimants’ medical reports. The latter adds nothing, since it was in a context
dealing simply with the agreed diagnosis, rather than the causes which were
clearly in dispute. So far as concerns the internet search, Smith JA helpfully
listed the references in the judge’s notes to the answers on which he relied:
pp 161, 167 and 168 (MS1187, 1193-4). In the Board’s view, they do not support
his criticisms of the judge’s approach.
44.
The first reference was to a passage dealing with the witness’s lack of
previous familiarity with the expression “hydrocarbon pneumonitis”. He said
that he had conducted an internet search over the weekend, commenting:
“A: Yes I did over the weekend. I
was not surprised by response. I got responses. That was first time I saw term
having got responses over weekend. I did not print out any of the search
results.”
As far as appears from the judge’s notes, the point was not
pursued further by Mr Benjamin. The witness was not asked to repeat the exercise
or to print out the results. Nor is there any indication that they were
regarded as significant by the claimants’ medical witnesses. The other
reference is to an article in the Journal of Occupational Health, relating to
the results of a Korean study, which Dr Seemungal had not previously seen: Factors
Related to the Prevalence of Respiratory Symptoms in Workers in a Petrochemical
Complex. This is clearly a serious academic treatment of the issue
described in the title, but again there appears to have been no indication, by
the witness or Mr Benjamin, that his failure to notice it before was a serious
omission, nor that it was regarded by the claimants’ witnesses as significant
in resolving the present problem. In questions by the judge, the witness
confirmed again that the only study revealed by his own researches was the New
Zealand study.
45.
In the light of this review, the Board can find no support for Smith
JA’s statement that Dr Seemungal’s evidence had been materially discredited in
cross-examination. In the Board’s view he was also wrong to discount Dr Coombs’
evidence as based simply on the literature. His witness statement indicated
that it was based on 27 years’ experience as a medical officer in the oil and
gas industry in Trinidad and Tobago, during which time he had not found a link
between hydrocarbon emissions and pulmonary fibrosis. As Mendonca JA pointed
out (para 27), Dr Coombs’ evidence also highlighted the importance of looking
beyond general terms such as hydrocarbons, and identifying the particular type
of emissions which might be found in a crude oil environment, as opposed for
example to a refinery complex. This was a point also touched on by the judge
(see para 18 above).
46.
In summary, the Board is unable to accept that the judge’s findings on
the medical evidence were undermined by his failure to take account of material
parts of the evidence, or were otherwise open to challenge.
The alternative
approach
47.
As noted above, Smith JA discussed the possibility of a more flexible
approach to the issue of causation on policy grounds, taking account of greater
public awareness of environmental issues and the responsibilities of polluters.
He reviewed the familiar line of House of Lords authorities on proof of
causation in cases of competing causes for industrial diseases: Bonnington
Castings Ltd v Wardlaw [1956] AC 613; McGhee v National Coal Board
[1973] 1 WLR 1; Wilsher v Essex Area Health Authority [1988] 1 AC l
1074; Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32. Adapting the approach of these authorities, he thought that, even if
the claimants’ evidence did not strictly satisfy the “but for” test of
causation, there was a “sufficient substratum of evidence upon which a court
could and should for policy reasons, draw inferences to bridge any such
evidential gaps” (para 69).
48.
More specifically, he saw the case as analogous to Bonnington,
where the employer was held responsible for disease of an employee caused by
inhaling silica dust, only some of which was “guilty dust” in the sense that it
resulted from the employer’s failure to maintain dust-extraction equipment. In
the present case, as Smith JA put it (para 65):
“(a) There was exposure to
natural oil and gas seepage for which the respondent may not have been responsible
(innocent gas) or for which the respondent may have been responsible by the
fact of FZ94 causing or aggravating the seepage (guilty gas). Further, there
was also seepage of gas fumes from FZ94 and its environs before the 2006
remediation exercise which provoked the appellants’ medical conditions (guilty
gas) and in the case of Mr Ryan, exposure at the tank farm many years earlier.
(b) There was no evidence of
the proportion of guilty to innocent gas. Assuming that the evidence led did
not satisfy the ‘but for’ test of causation, this is a case where one can and
should draw the inference that the guilty gas was a contributory cause and like
in Bonnington’s case, the respondent would be liable for the full extent
to the loss.”
49.
Mr Tager does not question the application of the Bonnington line
of authorities in this jurisdiction. However, as he submits, it has no possible
application in the present case where no causative link between the claimants’
condition and gaseous emissions - guilty or innocent - had been established. Smith
JA’s discussion proceeds on the erroneous premise that (in his words) the
claimants “have proved that the gaseous emanations from FZ94 and its environs
(were) at least a contributing cause of their injury” (para 63). For the reasons
already discussed, the Board agrees that this premise is not supported by the
evidence. In these circumstances, it agrees with Mendonca JA (para 44) that
this line of authorities provides no assistance to the claimants, and no basis
for adjusting the ordinary approach to causation in the present case.
Conclusion
50.
For these reasons, the Board concludes that the company’s appeal must be
allowed, and that the order of the judge dismissing both claims be restored.
Subject to any submissions received within three weeks of this judgment, the
claimants will pay the company’s costs before the Board and below.
