... that during his time at the Macedon Gas Project he was never informed or advised as to the health hazards and dangers which the First Defendant and/or the Second Defendant knew or ought to have known of, in relation to using the potable water from pond 1 and/or the non-potable water from pond 2.

1. The plaintiff does not specify any of the health hazards and dangers; either those known to the applicant or those which it ought to have known.
2. The reason to strike out the content of par 57 is that it may prejudice, embarrass or delay the fair trial of the action.
3. By par 59 the plaintiff states:

At all material times (i.e. during the period from in or about June 2012 to in or about April 2013), whilst at the Macedon Gas Project worksite at the premises, ...:

1. as part of the dust suppression, he was continuously and regularly exposed to the non-potable water from pond 2 and/or the potable water from pond 1 and would thereby inadvertently get splashed with the water that was intended for use for wetting down ground cover, and regularly being soaked right through into his clothing to his skin;
2. he would often get water in his mouth/nose and breathe in water from the spray mist;

1. he was splashed with the water when using the compressor pump to fill the truck;

1. the water cartage trucks used to disperse water for dust suppression never totally emptied resulting in cross-contaminated water, that is, a combination of potable and non-potable water being dispersed within the plate of the premises and coming into contact with the Plaintiff and other people present at the premises;
2. due to the extreme heat (which often exceeded 40 degrees Celsius), the water sprayed onto the hot ground would evaporate forming a cloud of steam and vapour which he would inhale;
3. as part of the dust suppression, he was continuously exposed to dust and airborne dust on a daily basis, which was present at the worksite premises, and was also exposed to other elements including, air, soil, and crystalline silica;
4. he was continuously subjected to dust inhalation from the dust rising from the roads and paths, the wind blowing, the water cartage trucks (and other vehicles) and/or other workers (present at the premises);
5. approximately 4 of the 5 vehicles ...including, the water cartage trucks, which he drove in the course of his dust suppression duties, had no functioning air conditioning, which forced the Plaintiff to drive the water cartage truck and 3 of the other vehicles with the windows down (due to the extreme heat), and as a consequence, dust was always entering the cabin of the water cartage trucks and the 3 other vehicles;
6. maintenance of the water cartage trucks was not conducted on a regular basis and windows and access points to the cabins of the water cartage trucks were not well sealed to prevent dust ingress. Furthermore, there was no internal dust extraction system in the water cartage trucks the windows and access points to the cabins of 4 of the vehicles (including, the water cartage truck) were not adequately sealed to prevent dust ingress. Furthermore, the cabins of 4 of the vehicles (including, the water cartage truck) had no internal dust extraction systems. However, the fifth vehicle (which was a new semi-trailer), had a working air conditioning system but did not have an internal dust extraction system; and
7. dust was also present in the accommodation village (including, the laundry area, wet mess bar area and dining area). Despite regular cleaning there was always dust throughout the interior of his accommodation hut (donga), and the base of the shower was always covered in a red dust film (which emanated from the dust he washed off his body);

1. The focus of the following paragraphs is upon the extent of the contended exposure as it would be likely to be of significance for the purpose of informing expert opinion.
2. With reference to par 59a., by use of both the words 'continuously' and 'regularly' to outline the plaintiff's exposure to water, that part of the contention is rendered unclear. In a context where the plaintiff specifies that he was soaked to his skin, it is not clear what the plaintiff means by 'exposed', how such exposure relates to inadvertently getting splashed and the extent of splashing. In any event, by the point at which the plaintiff asserts actual contact, the contention is rendered as a submission.
3. With reference to par 59b., there is no allegation that would account for the term 'the spray mist' and it is not clear whether the spray mist would account for the plaintiff getting water in his mouth/nose. Where over a period of approximately one year, the plaintiff was often getting water in his mouth/nose and breathing in water from the spray mist, the contention 'often' is rendered vague.
4. With reference to par 59c., the regularity of the events when the plaintiff was splashed when using the pump is even less certain than the extent of exposure accounted for by par 59b.
5. With reference to par 59d., the fact that water dispersed within the plate of the premises came into contact with the plaintiff may amount to either the exposure or the splashing referred to at par 59a. In the case of par 59d., the plaintiff does not express the regularity with which he came into contact with the water in the manner that he describes. By par 59, the plaintiff puts submissions.
6. To the extent that by par 59d., the plaintiff suggests that the water cartage trucks were unfit for purpose, there is no allegation relating to their provision to the plaintiff.
7. By par 59d., and at other points in the document the plaintiff refers to persons other than himself who were exposed to the plaintiff's activities and to other emissions and discharges. Because each such reference is irrelevant, it has no place within the document.
8. With reference to par 59e., because it contains the only reference to clouds of steam and vapour and par 59e. provides no indication of the extent of the plaintiff's exposure to those clouds, there is nothing other than the reference to the measure of heat to indicate the frequency of such exposure. By par 59 the plaintiff puts a submission.
9. With reference to par 59f., the plaintiff's exposure to dust is expressed to be both 'continuous' and 'daily'. Any conclusion is rendered unclear. The exposure to air, soil and crystalline silica is unexplained by the balance of the document.
10. With reference to par 59g., the statement that the plaintiff was subjected to dust inhalation is imprecise. That the plaintiff contends that his subjection to dust inhalation was continuous is objectively at odds with the stated mechanisms by which he was exposed.
11. With reference to par 59h., a similar observation is made in relation to the contention that dust was always entering the trucks and the three other vehicles.
12. To the extent that dust entered any of the vehicles due to their condition, there is no allegation relating to the provision of the vehicles to the plaintiff.
13. With reference to par 59i., the plaintiff refers to deficiencies in vehicles with reference to dust ingress and lack of a dust extraction system. There is no allegation relating to their provision to the plaintiff. As for the material that goes to maintenance of the vehicles, there is nothing to indicate that either the vehicles themselves or the lack of maintenance had been a vector for his exposure.
14. With reference to par 59j., the plaintiff refers to dust at the accommodation village and that it was always in his donga and in a film at the base of a shower.
15. The contention is introduced by reference to the plaintiff's worksite, not to the premises upon which the facilities were located.
16. Typically, such facilities are transportable. There is nothing to suggest that the applicant had any role to play in their provision to the plaintiff.
17. By par 59 the plaintiff outlines his exposure to dust, water and to both potable and non-potable water, but only by reference to circumstances outlined in broad terms if at all and not to his exposure to any substance to which he was thereby exposed. He does so in circumstances where he contends an array of discrete injuries that he attributes to exposure. Because he attributes each injury to unspecified exposure, he actually makes no attribution. For that reason, he compromises the impact of par 72.
18. The reason to strike out the content of par 59 is that it may prejudice, embarrass or delay the fair trial of the action.
19. The proposition that par 59 discloses no reasonable cause of action was not pressed at the hearing.
20. By par 99, the plaintiff states:

... the first defendant as the operator/licensee of the Macedon Gas Project was negligent because it breached the [Petroleum Pipelines] Act.

1. By what the plaintiff presents as particulars of breach, he states at par 100 as follows:

The First Defendant breached the PP [Petroleum Pipelines] Act by failing to comply with Section 56A and Section 56B of the PP [Petroleum Pipelines] Act, relevantly, in relation to occupational safety and health including, without limitation:

1. by failing to provide for the safety and health of the Plaintiff engaged in the pipeline operation;
2. by failing to establish and maintain a system of management to secure the occupational safety and health of the Plaintiff engaged in the pipeline operation; and

1. the Plaintiff also repeats the allegations of negligence set out in par 96a. - h. (inclusive) of the [substituted statement of claim] mutatis mutandis, as further allegations of the First Defendants breach of the PP [Petroleum Pipelines] Act.

1. By s 56A Sch 1 is given effect. The schedule is designated occupational safety and health. It contains a number of clauses relevant to those considerations.
2. Objectively the plaintiff could not be in breach of s 56A.
3. Section 56B provides that Regulations may be made in relation to the occupational safety and health of a person engaged in a pipeline operation and in relation to the safety and health of 'any other protected person'.
4. As the plaintiff has not contended that the power to regulate had devolved to the applicant, it could not have failed to comply with s 56B.
5. Objectively par 100c. does not fit within the scope provided by par 100 as the specified statutory provisions are not engaged.
6. By par 100c. the plaintiff engages par 96. It is a compendious statement of the grounds for the proposition that the applicant was negligent. Although it runs to four pages of text, when internal references are considered, its length would increase.
7. The significant consideration in addressing the content of par 96 for the purposes of par 100c. is that it should be immediately apparent which provision of the Act had been breached by any contended breach of the contended duty of care. Because no such reference is made it is not possible to discern which statutory provision the plaintiff considered had been breached.
8. Accordingly, par 99 and each part of pars 100a. and 100 b. are struck out on each basis proposed by the applicant. Paragraph 100c. is struck out as it may prejudice, embarrass or delay the fair trial of the action.
9. By par 105 the plaintiff states:

The Plaintiffs duties which involved (inter alia) the dispersion of the potable and non-potable water for the purposes of dust suppression at the premises are 'operations or works carried out in relation to a pipeline which may have an environmental impact.

1. The words in italics are one meaning given to the term 'pipeline activity', by the Petroleum Pipelines (Environment) Regulations.
2. The words 'environmental impact' are themselves established as a defined term in the same Regulations as:

Any change to the environment, whether adverse or beneficial, that wholly or partly results from a pipeline activity of an operator.

1. The water dispersed by the plaintiff had been drawn from ponds. There is no allegation that the ponds had been supplied by pipes.
2. The contention that pipes emanated from the reverse osmosis unit is sufficiently removed from the process of dispersal of the water, it is clear that the plaintiff's dispersal of water could not be characterised as a pipeline activity.
3. Otherwise, the plaintiff does not allege that the emissions and discharges from the reverse osmosis unit were made to the environment. Although the default of the applicant is expressed by reference to the reverse osmosis unit, it is clear from the whole of the content of the document. that it was the water that the plaintiff dispersed that was released into the environment.
4. Paragraph 105 is struck out on each of the grounds for which the applicant contends.
5. By par 106, the plaintiff states:

... the first defendant was negligent because it breached the relevant regulations of the [Petroleum Pipeline] (Environment) Regulations referred to in par 104a. - f. (inclusive) of the [substituted statement of claim] (sic).

1. By par 104a. - 104f. the plaintiff refers to regs 4, 5, 13, 15(7), 16 and 33.
2. Regulation 4 provides a series of definitions whilst reg 5 provides an expanded meaning of the term 'pipeline activity'.
3. Regulation 13 provides that an 'environment plan' for a 'pipeline activity' must include the matters set out in regs 14, 15, 16 and 17.
4. Regulations 15(7) and 16 detail the requirements of an 'implementation strategy' and the monitoring, recording and reporting arrangements that must be included in an 'environment plan'.
5. Regulation 33 relates to monitoring and reporting emissions and discharges.
6. The applicant could not be in breach of either reg 4 or reg 5. To the extent that par 106 draws on those provisions it is struck out on each ground.
7. As for each of the other parts of par 104, by par 107 the plaintiff provides particulars of the allegation of negligence put by par 106 as follows:

The First Defendant breached the [Petroleum Pipelines (Environment) Regulations], because it failed to comply with:

1. Regulation 33, relevantly, by failing to test, monitor and report on the potable and non-potable water, being an 'emission or discharge', from the [reverse osmosis] unit. The potable and non-potable water that the Plaintiff was required to use for dust suppression was not monitored for safety or to determine the presence of heavy metals and/or other contaminants, that constituted a hazard or danger and thereby a risk of injury to the Plaintiff's health. The non-potable water was sprayed outside the plate with no regard to the consequences for the Plaintiff's safety. The spraying of the non-potable water was contrary to the First Defendant's Environmental Plan;
2. Regulations 16 and 31, relevantly, by failing to store and maintain each document or record as provided in subregulation (2). The Plaintiff says that the First Defendant has failed to 'store and maintain records' of the [reverse osmosis] unit potable and non-potable water 36 monitoring and test results; and

1. further and better particulars may be provided, once discovery and inspection have taken place.

1. Despite the scope of the content of par 104, by par 107 the allegation of negligence by reference to the Regulations is limited to contentions that relate only to regs 16, 31 and 33.
2. As for the first sentence of par 107a., it is only by the terms of an environmental plan approved by the Minister that any obligation to test emissions or discharges is established.
3. The plaintiff does not contend that the relevant environmental plan had established any requirement to either test or monitor the potable and non-potable water.
4. The defendant submitted that the relevant environmental plan approved by the Minister did not so provide, accordingly the applicant could not be in breach. By his submissions the plaintiff did not contend otherwise.
5. As there is nothing to justify the breach contended by par 107a, it is appropriate that it be struck out on each ground sought by the applicant.
6. The balance of paragraph 107a. is not within the scope of reg 33. It is struck out on the basis that its content may prejudice, embarrass or delay the fair trial of the action.
7. As for the content of par 107b., of regs 16 and 31, it is only the latter that has a subregulation (2).
8. Regulation 16 provides:

The environment plan must include arrangements for-

(a) monitoring, and recording information about, the pipeline activity that are sufficient to enable the Minister to determine whether-

(i) the environmental performance objectives and environmental performance standards in the environment plan had been met; and

(ii) the implementation strategy in the environment plan has been complied with;

(b) reporting to the Minister on the information recorded under paragraph (a) at intervals agreed with the Minister, but not less often than annually.

1. It is relatively easy to come to the conclusion that no default of the applicant in the terms proposed by par 107b. is within the scope of reg 16.
2. As for the prospect that by par 107b., the plaintiff contends that the applicant was in breach of reg 31, it is evident that the focus of the plaintiff is on the correlation between subregulation (2) and a failure to store records of monitoring and test results made under reg 33; in particular, records that relate to emissions or discharges of the reverse osmosis unit.
3. At that point, analysis may run along the lines that if by the environment plan the applicant had not been required to test, monitor and report on the emissions or discharges of the reverse osmosis unit then there was no record to maintain or store for the purposes of complying with reg 31(2).
4. If the content of par 107b. permits some different analysis, there is reason to consider that failure to consider that prospect flows from the insufficiency of the content of par 107b.
5. The content of par 107b. ought to be struck out as it may prejudice, embarrass or delay the fair trial of the action.
6. The applicant pressed the proposition that regs 16 and 31 do not establish a private right of action.
7. Breach of reg 31 might be characterised as an offence as it specifies a penalty. There is nothing in the content of reg 31 that generates any momentum towards the conclusion that in addition to a penalty, breach of its provisions would establish a benefit in any class of persons.
8. Although breach of reg 16 attracts no penalty, the benefit it establishes is for the Minister. The regulation generates no momentum to the conclusion that any benefit had been conferred upon any class of persons.
9. To the extent that par 107b. draws upon either of reg 16 or 31, it is struck out as it discloses no reasonable cause of action.
10. By par 110, the plaintiff states:

The First Defendant was negligent in that it breached the [Petroleum Pipelines Occupational Safety and Health Regulations], because it failed to take all reasonably practicable steps to ensure that the pipeline operation (at the Macedon Gas Project at the premises) was carried out in a manner that was safe and without risk to the health of the Plaintiff (who was 'a person engaged in the pipeline operation' and/or 'other protected person'), in that it failed to adequately or at all:

...

1. As the content of par 110 suggests, it would be by reference to some specified pipeline operation that the provisions of sch 1 of the Act would be engaged. The plaintiff specifies no pipeline operation.
2. The reason to strike out par 110 is that it may prejudice, embarrass or delay the fair trial of the action.
3. The applicant did not press the contention that par 110 be struck on the additional ground.
4. At par 115, the plaintiff states:

Further or alternatively, the injuries were caused or contributed to, by the breach of s 5 of the [Occupiers Liability Act], by the First Defendant ... (and... [its] agents, employees, contractors and/or sub-contractors).

1. Paragraph 5(1) of the Occupiers' Liability Act is as follows:

Subject to (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible ...

1. By his submissions the plaintiff refers to a duty to ensure contractor compliance with the provisions of sch 1 of the Act. He also refers to the content of pars 50, 59 and 2h.
2. By par 2h., the plaintiff identifies the relevant statutory duty. By par 50 he outlines his work duties and by par 59, the exposure. Paragraph 59 has been struck due to its various insufficiencies.
3. By par 50 the plaintiff does not advance a case 'in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible'.
4. By par 116, the plaintiff states particulars of breach of the Occupiers' Liability Act. The particulars express the allegations set out in paragraphs 96a. - h., 100a. - c., 107a - c. and 110a. All but pars 96a. - h. have been struck.
5. Paragraph 96 has earlier been considered in addressing par 100c in the context of the proposition that particulars of negligence would be established as particulars of breach of the Petroleum Pipelines Act.
6. For present purposes, consideration of the content of par 96 is no different. Any parts of par 96 by which the plaintiff would engage the statutory duty are not sufficiently articulated with reference to the statutory duty to discern their significance.
7. Each of pars 115 and 116 are struck out as their content may prejudice, embarrass or delay the fair trial of the action.
8. At par 118, the plaintiff states:

'[The plaintiff] has required treatment, as a result of the injuries that were caused by or contributed to, by the negligence and/or breach of statutory duties by the [applicant] ... .

1. At par 119, the plaintiff states particulars of the medications and supplements to which he refers by the term 'treatment' at par 118. At par 119, the plaintiff specifies 15 medications and supplements but does not connect any of those medications or supplements with any condition that by par 118 he characterises as an injury.
2. The paragraphs are intended to be read together and also together with pars 72 and 73 by which his injuries are recorded. On that basis and for that reason it is not possible to correlate discrete injuries with medications and supplements.
3. It is open to consider that at some point each of the parties will seek expert opinion that draws upon the allegations made by the plaintiff as to the injuries and their treatment. Until the plaintiff correlates one to the other, it is likely both that the task could not either be possible or undertaken efficiently and that such an undertaking may be flawed by particular inferences drawn by a proposed witness.
4. It is appropriate that pars 118 and 119 be struck out as their content may prejudice embarrass or delay the fair trial of the action.
5. There would be a significant benefit to be realised in granting leave to apply as to do so will permit consideration of at least parts of the pleading prior to trial. The benefit for each of the parties and for the court are obvious. To refrain from engaging with the task established by the substantive application carries the real prospect that the issues presented would be canvassed at trial. That would be at least undesirable.
6. At each point on which the applicant has been successful, there is reason to exercise of discretion in favour of there being leave to bring that part of the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.