Duffy v Brendan McGee & Anor (Unapproved)

Factual and Procedural Background

The plaintiffs, Mr. and Mrs. Duffy, brought personal injury claims alleging severe injuries caused by exposure to toxic chemicals during and after the installation of spray polyurethane foam (SPF) insulation in their family home at The City, The State. The defendant, a local insulation contractor and supplier of the SPF product, was the sole appellant in these appeals after the claim against the second defendant was dismissed and not appealed. The installation occurred over two days in February 2016, involving removal of old fibreglass insulation and spraying of a product known as Icynene, comprising two toxic chemical compounds, including isocyanate.

The plaintiffs alleged negligence by the defendant in failing to ensure their absence from the property during spraying and for a minimum period thereafter, and in failing to provide adequate ventilation as required by safety regulations and manufacturer guidelines. The plaintiffs developed Reactive Airways Dysfunction Syndrome (RADS), with expert evidence attributing this to isocyanate exposure. The High Court made extensive factual findings, including that the plaintiffs were not informed adequately of safety requirements, were present during spraying, and that ventilation was insufficient. The defendant appealed against findings of negligence, causation, and quantum of damages.

Legal Issues Presented

1. Whether the defendant was negligent in failing to ensure the plaintiffs’ absence during and after the spraying operation and in failing to provide adequate ventilation as required by safety guidelines.
2. Whether the plaintiffs’ injuries were caused by exposure to isocyanate from the SPF installation.
3. Whether the trial judge erred in excluding the defendant’s expert toxicologist’s evidence on grounds of impartiality and independence.
4. Whether the damages awarded to the plaintiffs were excessive or improperly assessed.

Arguments of the Parties

Appellant's Arguments

• The defendant contended that adequate ventilation exceeding 40 air changes per hour (ACH) was provided, negating the requirement for a 24-hour exclusion period.
• The defendant argued the trial judge misunderstood the Wood industry reports relied upon, particularly regarding ventilation control levels.
• The defendant asserted that the presence of a smell was not indicative of harmful chemical exposure.
• The defendant relied heavily on the expert toxicologist’s evidence that isocyanates dissipate within 30 minutes post-spraying and thus could not have caused the injuries.
• The defendant challenged the causation findings, asserting that the plaintiffs could not have been exposed to isocyanates as alleged.
• The defendant argued the damages awarded were excessive and that the plaintiffs failed to mitigate their losses.
• The defendant contended the trial judge erred in excluding the expert toxicologist’s evidence entirely, suggesting the issues raised should have affected only the weight of the evidence.

Respondent's Arguments

• The plaintiffs maintained that the defendant was negligent in failing to inform them of the necessity to vacate the premises and in failing to ensure adequate ventilation.
• They asserted that their injuries were caused by exposure to isocyanate during and after the spraying process.
• They challenged the credibility and impartiality of the defendant’s expert toxicologist, emphasizing his advocacy role and failure to consider ventilation properly.
• They supported the damages awarded as appropriate given the catastrophic and lifelong nature of their injuries.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by examining the role and duties of expert witnesses, emphasizing that experts must provide independent, impartial, and objective assistance to the court. It noted the dangers of "hired gun syndrome" and the importance of experts maintaining professional objectivity, as outlined in established case law and court rules.

The defendant’s expert toxicologist, Dr. Thompson, was critically scrutinized. The court upheld the trial judge’s finding that Dr. Thompson acted as a partisan advocate rather than an impartial expert. Specific concerns included his reliance on industry-commissioned, non-peer-reviewed studies; disregard for the critical role of ventilation; failure to verify disputed factual scenarios; improper medical opinions outside his competence; and repeated unfounded accusations of deception against the plaintiffs. The court agreed that these failings amounted to a wholesale abdication of his expert duties, justifying exclusion of his evidence.

On negligence, the court accepted the trial judge’s detailed findings that the defendant failed to inform the plaintiffs properly about the need to vacate the premises and did not ensure the required ventilation standards. The absence of measurements to confirm ventilation rates and the failure to prevent or remove the plaintiffs during spraying constituted breaches of statutory and regulatory duties.

Regarding causation, the court relied on the evidence of the plaintiffs’ respiratory physician, Professor Burke, who gave clear and cogent expert medical evidence that the plaintiffs’ injuries were caused by exposure to isocyanate. The alternative theory that fibreglass caused the injuries was rejected as unsupported and inconsistent with medical evidence. The court found the trial judge’s conclusion that the injuries were caused beyond reasonable doubt by the defendant’s negligence to be well-founded.

On quantum, the court acknowledged the injuries as catastrophic and life-changing, affecting every aspect of the plaintiffs’ lives. While the damages awarded were on the high side, the court found no error of law or clear disproportionate excess to justify interference. The court also rejected arguments that the plaintiffs failed to mitigate or that the absence of certain medical witnesses undermined the awards.

Finally, the court dismissed the defendant’s appeal against the imposition of a condition for payment pending appeal as moot, since the payments had been made without stay application.

Holding and Implications

The court DISMISSED the appeals and affirmed the High Court’s order in all respects.

The direct consequence is that the findings of negligence, causation, and the quantum of damages awarded to the plaintiffs stand as determined by the trial judge. The defendant’s expert evidence was properly excluded due to failure to meet the essential duties of independence and impartiality. No new legal precedent was established beyond the reaffirmation of existing principles concerning expert witness duties and the deference owed to trial judges in assessing expert testimony.