D R Johnston Group Pty Ltd v Starr and Smith

[2001] NSWCA 121

CITATION:	D R Johnston Group Pty Ltd v Starr and Smith [2001] NSWCA 121
FILE NUMBER(S):	CA 40976/99; 40977/99
HEARING DATE(S):	25/09/00; 26/09/00
JUDGMENT DATE:	30 April 2001
PARTIES :	D R Johnston Group Pty Limited v Marlene Starr and Trevor Smith
JUDGMENT OF:	Handley JA at 1; Powell JA at 2; O'Keefe AJA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	1226/99 1225/99
LOWER COURT JUDICIAL OFFICER :	Puckeridge DCJ

COUNSEL:	For Appellant: Mr J McConachie QC Mr I Pike Mr G Gemmell For Respondents: Mr D Rofe QC Mr M Jenkins
SOLICITORS:	Hickson Wisewoulds - for Appellant Watson McNamara & Watt - for Respondents
CATCHWORDS:	NEGLIGENCE - ABATTOIRS - RISK OF 'Q' FEVER
LEGISLATION CITED:	Workers Compensation Act 1987, ss151H,151J, 151M
CASES CITED:	Abalos v Australian Postal Commission (1990) 171 CLR 167
DECISION:	40976/99; 1. Appeal dismissed with costs.; 40977/99; 1. Appeal allowed in part and judgment in favour of the respondent reduced to $334,237.85 to rectify a mathematical error. ; 2. Appeal otherwise dismissed.; 3. Appellant to pay respondents’ costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA: 40976/99

CA: 40977/99

DC: 1225/99 (Sydney)
DC: 1226/99 (Sydney)

HANDLEY JA

POWELL JA
O’KEEFE AJA

Monday, 30 April 2001

D R JOHNSTON GROUP PTY LTD v MARLENE RHONDA STARR D R JOHNSTON GROUP PTY LTD v TREVOR GEORGE SMITH

negligence - abattoirs - risk of ‘Q’ fever

Former employees at the Guyra Abattoirs sued the appellant as the owner and operator of the Abattoirs for negligence. The employees had contracted ‘Q’ fever, a disease caused by exposure to organisms present in the amniotic and synovial fluids, blood and offal of cattle. The disease is capable of being transmitted by the inhalation of airborne particles in the nature of an aerosol. The trial Judge found that the employees had failed to take reasonable precautions against the risk of ‘Q’ fever which was a known hazard at abattoirs and had failed to require its employees to be inoculated against the disease. He entered judgments in favour of the employees and assessed damages. On appeals by the employer on liability and damages:

HELD : The findings of the trial Judge on liability and damages were supported by ample evidence and could not be disturbed. The appeals were dismissed with costs.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA: 40976/99
CA: 40977/99
DC: 1225/99 (Sydney)
DC: 1226/99 (Sydney)
HANDLEY JA

POWELL JA

O’KEEFE AJA

Monday, 30 April 2001

D R JOHNSTON GROUP PTY LTD v MARLENE RHONDA STARR D R JOHNSTON GROUP PTY LTD v TREVOR GEORGE SMITH

JUDGMENT

1    HANDLEY JA : I agree with O’Keefe AJA.

2    POWELL JA : I agree with O’Keefe AJA.

3    O’KEEFE AJA :

INTRODUCTION

4    This is an appeal from the District Court against a judgment given on 15 October, 1999 in which Trevor George Smith (Mr Smith) and Marlene Rhonda Starr (Mrs Starr) (collectively referred to as the respondents) were awarded damages of $344,237.85 and $272,615.85 respectively against their employer D R Johnston Group Pty Limited (the appellant). The sums awarded included an interest component.

5    The respondents sued the appellant for damages arising out of their contraction of Q Fever in the course of their employment with the appellant. The respondents had alleged in their respective Statements of Claim that the appellant had breached the duty of care owed to them as employees by failing to provide a safe place of work, by failing to provide masks, gloves or other physical barriers to prevent the contraction of Q Fever and by failing to advise them of the availability of or to inoculate them with a vaccine which had been available at all material times.

BACKGROUND

6    The appellant conducted an abattoir at Guyra in the northern tablelands of New South Wales. The abattoir was part of the Australian Meat Processing Group, a large Australia wide organisation with some 4,000 employees. Cattle were slaughtered in it and their meat prepared for sale, including sale in the export market. In addition, the hides of the slaughtered beasts were dressed and treated so that they too could be sold. There were also other by-products resulting from the operations conducted by the appellant.

7    The abattoir had been in existence for some considerable time. Prior to 1991 sheep as well as cattle were slaughtered there. However, in about 1991 the slaughtering of sheep was abandoned. Although this led to a decrease in the work force, it was common ground between the parties that it settled at slightly in excess of 300. This was the situation at the time Mr Smith and Mrs Starr contracted Q Fever, which manifested itself in December 1994 after a short period of incubation..

8    There had been cases of Q Fever in the Guyra abattoir over the course of some years before 1994. Well before that time Q Fever was known to be a zoonotic disease caused by organisms known as rickettsia. They are found in the amniotic and synovial fluids, the blood, the offal and the manure of animals. The disease is capable of being transmitted by the inhalation of air borne particles in the nature of an aerosol which, unless adequate steps are taken, would be likely to be generated in various areas of the abattoir.

9    After a number of reported cases of Q Fever at the Guyra abattoir, reports were prepared by various authorities; one in 1987; two in 1988. Each identified deficiencies in the hygiene and protective systems within the abattoir. Although some steps were taken as a result of the recommendations in those reports, no air conditioning or filtering of the air in the workplaces was installed nor provision made for the supply of protective masks for employees.

10    Mr Smith was employed at the abattoir checking the condition and quality of hides and their dressing, as part of the quality assurance procedures in place in the abattoir. His work involved him in moving between different work stations within the establishment. In various of these he was exposed to blood, animal manure, the amniotic and like body fluids of and from slaughtered beasts and sprays that resulted from particular workplace processes, including the high pressure washing and spraying of hides undertaken within the abattoir. These substances remained partially airborne in the form of a mist or aerosol capable of being inhaled. No protective masks were provided for him or other employees.

11    At all relevant times Mrs Starr was employed as a packer in the boning room. The boning room was the place in which meat was packed into cartons. Her duties brought her into contact with the meat of the slaughtered beasts and from time to time with animal manure. The boning room was closed off and always cold, presumably to maintain a low temperature for the meat that was being boned and packed. There was a fan outside the entrance to at least one of the doors and the evidence indicated that the air introduced into the boning room by such fan, and otherwise, was unfiltered.

12    Mr Smith first worked at the Guyra abattoir in 1984. He was then a contractor and continued in such capacity until 1991. However, following the cessation of sheep slaughtering at the abattoir, he became an employee of the appellant, commencing in that capacity on 10 July, 1991. He was still employed at the time he contracted Q Fever.

13    Mrs Starr began working for the appellant at its Guyra abattoir on 12 February, 1991. In June, 1994 the abattoir closed down. Mrs Starr was then retrenched, but was re-engaged by the appellant at the abattoir in October 1994, following its re-opening in September, 1994.

14    The appellant closed its abattoir at Guyra permanently in May, 1996. Mrs Starr was then retrenched. Mr Smith had already been retrenched in October, 1995.

APPLICABLE LAW

15    There is no disagreement between the parties as to the law relating to the duty of care owed by an employer to an employee nor is there any disagreement about the principles which should be applied in relation to the findings of fact by a trial judge. Those principles are succinctly stated in Abalos v Australian Postal Commission (1990) 171 CLR 167 by McHugh J, with whom the other members of the High Court agreed. Where there is evidence to justify a finding that an employer’s system of work gave rise to a foreseeable risk of injury that could have been avoided by re-designing the system or by proper supervision or other appropriate means, a finding to that effect will not be set aside on appeal.

16    In Abalos v Australian Postal Commission (supra) the issue was whether the conduct of the employer in requiring the employee to work in a particular system gave rise to a reasonably foreseeable risk of injury. If it did the employee in question was exposed to an unnecessary risk of injury if the injury was reasonably avoidable and in all the circumstances the failure of the employer to eliminate the risk was unreasonable.

THE RESPONDENTS’ CASES

17    The cases made by the respondents were that their employer, the appellant, well knew of the risk of employees in the system as it then operated being exposed to the rickettsia (a form of bacteria) which caused Q fever. That exposure arose in part from the arrangement of the abattoir, in part from the inadequate ventilation system provided in such abattoir as well as from the failure of the appellant to provide face masks to prevent the inhalation of aerosols which bore the organism which caused Q Fever .

18    Furthermore, so the respondents’ cases ran, there was a well recognised, highly effective and safe vaccine available against Q Fever. Not only was such vaccine known to have existed for some years prior to the respondents contracting Q Fever, but in addition its efficacy was widely known within the industry of which the appellant was a major member in Australia, as well as amongst medical practitioners and industrial safety practitioners. It was said that neither respondent was advised of the need for vaccination nor was either of them provided with it.

19    In those circumstances the respondents argued that there was a foreseeable risk of injury which could have been avoided by the taking of reasonable steps, whether such steps were by the re-design or updating of the system in operation in the abattoir, by the provision of adequate air-conditioning or filtering, by the provision of face masks, by vaccinating those employees who might reasonably have been foreseen as likely to be exposed, or by a combination of all such steps. The end point of the respondents cases was the same, namely that the appellant was liable to them in negligence.

20    At the trial it was conceded that the respondents were employed by the appellant at the time each contracted Q Fever, namely in the period from November to early December 1994. It was further conceded that as a consequence of such employment the appellant owed each of them a duty of care, namely to take reasonable care to avoid exposing them, as employees, to unnecessary risk of injury.

21    It was admitted before the trial judge that both respondents contracted Q Fever in the course of their employment with the appellant. It was also admitted that the appellant was aware of the risk of employees at the abattoir contracting Q Fever. However, it did not admit that the Q Fever contracted by the respondents was contracted as a result of any negligence, act or omission on its part.

22    Each of the respondents claimed to have suffered a recognised, but less than universal, complication or manifestation of Q Fever, namely a disorder in the nature of Chronic Fatigue Syndrome (CFS). The appellant put in issue that they, or either of them, had suffered from such a disorder, but did not challenge that a disorder in the nature of CFS was a recognised consequence of Q Fever. The development and nature of symptoms suffered by the respondents and the times at which they emerged were thus issues posed for decision in relation to CFS, and hence damages.

23    The matters presented for decision at the trial and on appeal were essentially factual. It is thus necessary to examine the evidence to ascertain if there was evidence to support the findings of the trial judge.

24    The respondents’ cases were founded on two broad bases. The first was that they were not provided with reasonable protection against the inhalation of the rickettsia which caused Q Fever or against the effects of such inhalation. This could have been achieved by the provision of disposable surgical face masks to prevent, or at worst minimise, inhalation of the noxious substances that were in aerosol form in the workplace atmosphere and by providing immunisation to protect them against the effects of any noxious aerosols that were inhaled. The vaccine used for the inoculation had been available since 1991. The appellant had, after some considerable delay, decided to use it for its employees in about May 1994, on the basis that all employees should be inoculated and that if they were not they would not be employed. Despite this neither Mrs Starr nor Mr Smith was given the vaccine, and Mr Smith was not even advised of the availability of a vaccine.

25    The second basis of the respondents’ cases was that the appellant’s premises and system of work were deficient in a number of ways that had been notified to the appellant in reports going back to at least 1987 . These deficiencies were such as to give rise to unnecessary exposure of workers in the abattoir to the risk of inhalation of bacteria - carrying aerosols, and that relevant deficiencies remained in existence at the time the respondents’ were infected, namely about November 1994.

1. LIABILITY

A. Protection - Vaccination and masks

26    The first basis was well supported by the evidence. Professor Wakefield described Q Fever as “a preventable disease”. In respect of which “the main thing is these people (exposed workers) should be immunised”. Furthermore, it was described by him as “highly infectious”. This is demonstrated by the high incidence of Q Fever at the Guyra abattoir in the years 1987 to 1990. He also said that when the relevant bacteria were being handled in laboratories it was necessary that individuals should “wear goggles, masks and gloves.” That such protective measures were necessary and practicable in the meat industry, as well as in laboratories, is borne out by the Draft Meat Industry Code of Practice of October 1990 which relevantly provided:

“(c) personal protective equipment

The employer should ensure that:

· all employees are provided with personal protective equipment appropriate to the task to be performed

· when known “reactor” animals are being processed employees are provided with the following personal protective equipment

. disposable gloves
. goggles and surgical mask or full face protective shield.”

27    In 1989 Mr Jones, the Occupational Health and Safety Officer of the Group of which the appellant was part, became aware that a vaccine for Q Fever had been developed by a South Australian, Professor Marmion. In 1991 an Environmental Health Officer, Mr G J Bell, developed a programme for the administration for Q Fever vaccine in the New England Health Area, which included Guyra. In the same year Mr Jones had access to an Australian Quarantine Inspection Service (AQIS) video dealing with the efficacy of vaccination for Q Fever.

28    In or about mid-1991 the Environmental Health Officer for the New England Health Area contacted the then Manager of the appellant’s abattoir at Guyra and discussed with him the implementation of a Q Fever vaccination programme in the abattoir. This included the setting up of dates for the implementation of the programme and an offer by the New England Health Service to implement the vaccination programme. However, the offer was declined by the appellant, on the expressed basis that the Group of which it was a member would prefer to cover all its abattoirs with its own programme. In this context it should be noted that it was not until May 1994 that a decision was made by the appellant to implement a programme of vaccination of the employees at its Guyra abattoir, notwithstanding that the Council owned abattoirs at nearby Gunnedah and Tamworth had commenced their Q Fever vaccination programmes in the last quarter of 1991 and that the staff of AQIS were vaccinated in 1992. All of this was known to Mr Jones, the Group’s Occupational Health and Safety Officer. He conceded that by early 1993 there was a prospect of there being other outbreaks of Q Fever in the abattoir if the problem was not addressed properly. Furthermore, a letter sent by the Division of Workplace Health and Safety in April 1993 referred to “the human cost of the disease” and that it represented “a significant financial burden on the industry”. However, despite all this Mr Jones agreed that it was only in April 1993 that he “commenced” the development of a programme. Curiously this was by the gathering of information, despite the great deal of information that was available at that time, had been available for some time and was known in the meat industry.

29    By early August 1993 the Workcover Authority was pressing the appellant concerning the implementation of a Q Fever vaccination programme. However, nothing was done to implement such a programme until May 1994. This was after Mr Jones had attended an address by Professor Marmion. Certainly as from that date at latest there was no doubt whatsoever in the mind of Mr Jones, the Groups Occupational Health and Safety Officer, that it was practicable to inoculate all employees. Furthermore, it was about that time that his superior, the then Managing Director Mr Hughes, gave instructions that such a vaccination programme was to be implemented and that the policy of the company was: “no jab, no job”.

30    Unfortunately for the respondents, despite the long lead time between 1991 and May 1994, there was no effective implementation of the policy and both respondents deposed to the fact that they had not been immunised or offered immunisation prior to their contracting Q Fever. In this context it should be recalled that Mrs Starr was not re-engaged as an employee with the appellant until after the Guyra abattoir reopened in September 1994 following a close down in June 1994. The policy of “no jab, no job” was not implemented in relation to her. She was not immunised nor was she advised to be immunised. She was not even tested to ascertain whether or not she was immune to Q Fever before she recommenced work with the appellant in or about October 1994.

31    It was agreed by Mr Jones that this was a breach of the protocol that the Group of which the appellant was a member had adopted in relation to its new employees. Mrs Starr gave evidence, which was accepted by the trial judge, that had she been offered the vaccine she would have accepted it. Mr Smith gave evidence, which was not contradicted and was accepted by the trial judge, that he was not offered or advised about vaccination, nor was he tested to see if he was or was not immune to Q Fever.

32    In the light of this evidence, which came largely from the appellant’s witnesses and from the appellant’s records, there is no basis on which the finding by the trial judge that:

“The knowledge that the defendant had at that stage (ie when Mrs Starr recommenced work) was that the vaccination was effective and in all probability would eliminate the risk of employees contracting Q Fever, if not otherwise immune to the disease.”

can or should be interfered with under the law as it presently stands. Furthermore, I am of opinion that the finding is well founded in the evidence; indeed correct.

33    The further finding that:

“The defendant breached the duty of care which it owed to Mrs Starr in failing to have Mrs Starr tested as to whether or not she was immune to the Q Fever virus before recommencing employment with the Appellant in October 1994.”

is in a like situation. Had she been tested she would have been shown not to be immune to Q Fever. In those circumstances she should not have been employed in a situation of exposure. On the “no jab, no job” policy she would not have been employed. On this basis alone Mrs Starr was, in my opinion, entitled to succeed in her claim of negligence against the appellant.

34    The trial judge found that there was a duty of care owed by the appellant to Mr Smith. He incorrectly described Mr Smith as ‘a contractor who worked at the abattoir.” Although Mr Smith had been a contractor to the appellant at its Guyra abattoir at a time well prior to 1994, during the period up to and including the time he contacted Q Fever he was undoubtedly an employee. All the evidence is one way in that regard and Mr Smith’s Notice of Contention to that effect should be upheld.

35    Notwithstanding that the trial judge approached the duty owed to Mr Smith on the basis that he was a contractor, he nonetheless held that the appellant was under a duty to advise him as to the availability of the vaccine. The position would be a fortiori for an employee. Furthermore the “no jab, no job” policy adopted in the first half of 1994 should have led the appellant not only to advise Mr Smith of the availability of an effective vaccine, but also to require him to undergo skin testing to determine whether he was immune to Q Fever or not. From the events that transpired it is clear that had such a test been conducted it would have shown that Mr Smith was not immune to Q Fever and hence should not have been employed in a position in which he was exposed to aerosols containing the bacteria which caused Q Fever.

36    Furthermore, both in relation to both Mrs Starr and Mr Smith a safe system of work for employees should have involved the provision of surgical face masks to prevent the inhalation of the bacteria-bearing aerosols which were in the atmosphere that employees inhaled. The evidence showed them to be effective and practicable.

37    That such masks were effective and appropriate to prevent the inhalation of such aerosols is strongly supported by the medical evidence as well as by Draft Meat Industry Code of Practice of October, 1990 and by the fact that the appellant kept masks of such a kind at the gatehouse of the abattoir and required visitors to use them .

38    In my opinion the first basis on which the respondents founded their cases was supported by evidence which was accepted by the trial judge.

B. Unsafe Premises and Unsafe System of Work

39    Deficiencies in the state of the appellant’s Guyra abattoir premises in relation to occupational health and safety were identified in a number of reports that were prepared in 1987 and 1988. These were identified in the evidence as the Palmer, Cullen and Rhyder reports. Although such reports dealt with deficiencies in the abattoir in those earlier years, there was evidence from Mr Archibold which linked a number of those deficiencies to the year 1994. He had been the Quality Assurance Manager at the abattoir between 1988 and 1993 and the Assistant Manager from 1993 until the appellant closed the abattoir in May 1996. His evidence was that in 1994 and prior to the contraction of Q Fever by the respondents a number of the deficiencies referred to in the reports and relevant to the creation and inhalation of noxious aerosols, still persisted. The trial judge accepted Mr Archibold’s evidence, as he was entitled to. Furthermore, a comparison of the evidence given by the respondents and Mr Archibold in relation to the working conditions of the respondents on the one hand with the contents of the report by Dr Cullen of January 1998 (the Cullen Report) and the report of the Regional Health Surveyor, Mr Palmer (the Palmer Report) on the other supports the findings made by the trial judge to the effect that, although some changes had been made following those reports, they were not such as to overcome relevant criticisms of the working place and system included in them.

40    Those reports noted that most of the Q Fever cases at that time involved employees working in the boning and by-products areas. They were areas in which the respondents worked. Particular recommendations were directed at contamination from cattle droppings and dung especially in dry weather, and at the use of high pressure hoses in connection with carcases and skins. Yet these deficiencies were still in existence at the relevant times in 1994. Furthermore, the working conditions in the boning room were deficient in 1987. For example, the ventilation in such room did not create adequate air movement. Although the room was chilled it does not appear that the air that was introduced into it was filtered, indeed a fan that was placed outside a door to such room was capable of blowing aerosol contaminated air directly at the employees in such room. Such fan was still operating at the relevant times in 1994.

41    Although Mr Archibold was attacked in cross examination by Senior Counsel for the appellant, the claim that he was biased was dismissed by the trial judge. Furthermore his evidence about the sources of bacteria-bearing aerosols that were introduced into the atmosphere in areas in which the respondents worked, was borne out by the evidence of the respondents as well as by some of the admissions made by witnesses called on behalf of the appellant. For example, the evidence relating to the hosing of carcases; that relating to the spilling of the viscera of animals and the bursting of paunches; that relating to the dripping of water into the boning room and the introduction of non-filtered air into such rooms. These are but some of the matters identified by Mr Archibold and accepted by the trial judge.

42    In summary the finding by the judge that:

“I accept that Mr Archibold gave evidence as to the condition of the premises as he saw it and I am satisfied that in 1994 the condition of the Guyra Abattoirs, despite any changes or alterations which had occurred between 1987 and 1994, was such that there remained a foreseeable risk that Q Fever would enter into the atmosphere in an aerosolized form.”

was, in my opinion, a finding properly open to him. It was soundly based in the evidence before him.

43    It is clear from the evidence that over the course of time the Guyra Abattoir had declined. Such decline was, inter alia, in output, number of employees, nature of activities undertaken and profitability. This decline led to its closure for periods and to its final closure in 1996. It appears to have been an old abattoir. It was, over the course of a number of years, described on a number of occasions as marginal. In these circumstances the appellant appears to have decided that the carrying out of works of improvement to the premises and improvements to the systems of work should be scaled against the injuries which resulted from such deficiencies. Mr McAuliffe, who was Manager of the Guyra abattoir from 1991 until 1993, gave evidence that as far as he was concerned Q Fever was at the lower end of the scale for attention. On a fair reading of his evidence it is open to conclude that in relation to dealing with the risks of employees contracting Q Fever he took a calculated risk, based on his own assessment as to time losses and hence losses of production and profitability which came about as a result of the incidence of Q Fever and accordingly he gave a low priority to improvements to the premises and systems that would have overcome the risks. His response to the exposure of employees to rickettsia-bearing aerosols as a consequence of high pressure hosing and dealing with foetal calves and foetal blood (paunches) is fairly indicative of the inadequacy of the attention given by the appellant to such problems. Dealing with the subject of high pressure hosing of animals he was asked by Senior Counsel for the appellant:

“Q: ’We were told did any of the water splash around or was it restricted just to the animals. A. It was splashed around, yes.’ Do you have any comment to make about that? A. That would be correct”.

He was then asked:

“Q. Were you aware of any mechanism by which cattle could be washed down without splashing a bit of water? A. No.” (bold added)

This evidence was adduced to counter evidence given by Mr Smith and Mr Archibold to the effect that there was a great deal of water in spray form generated by the activities to which Mr McAuliffe’s attention had been drawn. His evidence did not counter their evidence, nor did it deal with the alternative ways in which cattle could be washed without exposing those involved in the process to an aerosol which was likely to be bacteria laden. The question and answer last referred to was the highwater mark of attempted refutation. It sought to trivialise the situation. However it failed to deal with clear and acceptable evidence of a situation which was markedly different in nature from just “splashing a bit of water”.

44    Like the premises themselves, the system in operation at Guyra was clearly not modern. It did not involve enclosed washing areas in which aerosols were contained and from which they were extracted in a way which did not result in their reintroduction into the atmosphere that workers in the workplace were required to breath.

45    Evidence was also adduced from Mr McAuliffe that was intended to negate the evidence given by Mr Smith and Mr Archibold concerning the heavy exposure of employees, including Mr Smith, to foetal blood and amniotic fluid from ruptured paunches and from the handling of foetal cattle which were transported via an open chute. Again, Mr McAuliffe’s evidence did not do so. Senior Counsel for the appellant directed his attention to the gut handling area and asked:

“Q. ‘Now, the gut handling area, we are told this: ‘In the gut handling area you have said a paunch was opened and pieces sent to various places. Was there any problem in that area in November 1988 with respect to spillage or dripping? A. Yes there was.’ Now you were not there in 1988? A. I wasn’t.
Q. ‘What were the problems? A. Leaking pipes. A lot of paunches coming into the area as they continued to be right up until 1994 and after were busted and actually came down busted, emptying their contents on the way down.’ First by reference to that (page 140 line 30, your Honour) do you understand what part of the abattoir is being referred to? A. Yes.
Q. What is that? A. That was referred to as a condemned area (ie, an area into which employees had to be locked and released only by a member of the AQIS Plant Team; explanation added)
…

Q. During your time as manager in the condemned area was there a problem with leaking pipes? A. There may have been leaking pipes but I don’t know if it was a significant problem.
Q. If leaking pipes occurred in that area was that a matter for immediate attention? A. Yes because it would have involved water waste.”

At no time was Mr McAuliffe asked to deal with the evidence of burst paunches emptying their contents down a chute onto employees such as Mr Smith. He certainly did not negate that this occurred, nor did he deal with criticisms of the system which produced such an outcome. A fair reading of his evidence confirms the evidence of Mr Smith and Mr Archibold and the finding of the trial judge that:

“despite precautions taken by the defendant conditions at the Abattoir during the period he was manager still allowed for the Q Fever bacteria to enter in an aerolised form into the atmosphere.”

46    The manager of the abattoir who followed Mr McAuliffe was Mr Pavey. He was the manager in 1994. His evidence confirmed that he was well aware of the cause of Q Fever and the particular risk of it for abattoir workers. Although he gave evidence about the extension of the boning room and the installation of two additional refrigeration units “to cope with the extra volume” created by the extension, he was not able to give any evidence as to details of their operation or capacity. He certainly did not give evidence of changes in the effectiveness of the ventilation system nor as to the cleansing or filtering of the workplace air. His evidence was directed at changes that were made to ensure that the temperature in the boning room satisfied AQIS requirements. It was directed to temperature not to ventilation; to the AQIS standards in that regard, not to the elimination of risks of exposure to employees.

47    Mr Pavey’s evidence concerning the installation of a Jarvis saw in 1994 was vague as to date. However in the sequence of his evidence it came after evidence concerning the raising of the rail for the overhead gear, work which was undertaken during the shutdown in the period June to September 1994. In any event the saw was designed to “alleviate a wash at the end of the slaughter floor”, not to overcome the problem of aerosols. Furthermore the old system was maintained and used in parallel for some time. Whilst the Jarvis saw once used alone lessened aerosols in that area compared with those from “the end of the chain wash”, there is nothing in his evidence to indicate that it eradicated such aerosols, nor is there any evidence to suggest that the area in which the Jarvis saw operated was isolated in any way from the rest of the workplace or that any steps were taken to prevent the aerosols generated by the saw itself from passing into the atmosphere that was inhaled by the employees.

48    His evidence also conceded that there was a problem with condensation throughout different parts of the plant. In addition, validation reports by an AQIS officer in 1994 showed that a number of operations in the abattoir were still marginal and that quality assurance programs were not adequate. Particular reference was made to the problem of dung droppings and the potential for faecal contamination of meat. If the meat was exposed to contamination it follows that the workers handling the meat were also exposed. Particular reference was also made in the report to the potential for contamination in the boning room as a result of contaminants from overhead structures. The picture painted by these reports is to be contrasted with that sought to be created by the appellant’s witnesses, drawn as they were from the managerial staff. This applies quite markedly to the evidence of Mr McAuliffe in relation to overhead sources of contamination, especially in the boning room.

49    There are other instances of situations in which there was a like inadequate dealing by witnesses drawn from the appellant’s managerial staff with criticisms of the system that had been made in the respondents’ cases. Not uncommonly they dealt with evidence relating to complaints by merely stating that did not remember, or that the complaints had not come to their attention. They certainly did not negate the existence of complaints about the premises and system of work of the kind dealt with in the evidence in the respondents’ cases, nor did they negate the factual situation which gave rise to such complaints.

50    The working conditions as deposed to by Mr Smith, for example at the hide table, were little short of appalling. They certainly fell far short of that comprehended by a safe system of work. They were obvious sources of unnecessary exposure to Q Fever rickettsia. His evidence was supported by that of Mr Archibold. Their evidence was not relevantly or effectively negated by evidence called in the appellant’s case. The trial judge was entitled to accept the evidence of Mr Smith and Mr Archibold. He did so. The acceptance of their evidence clearly established an absence of even simple, commonsense protective measures to prevent contamination of the workers, including the respondents.

51    The evidence, including but not limited to that referred to specifically above, provided an ample basis for the following finding by the trial judge:

“The evidence not only supports the evidence of Mr Archibold that conditions at the abattoir in 1994 allowed for the Q Fever bacteria to enter in an aersolised form into the atmosphere, but indicates that the defendant failed to take reasonable steps to reduce or minimise the risk of employees contracting the Q Fever disease.”

CONCLUSION

52    In my opinion the trial judge had before him evidence which, if accepted, entitled him to find in favour of the respondents on the issue of liability. He accepted such evidence and was entitled to do so. That being so, I am of opinion that the findings of negligence against the appellant should stand.

2. DAMAGES

A. General

53 The appellant has challenged the damages awarded to each of the Respondents on a number of bases. The first is that, as a result of the provision of s 151H(2) of the Workers Compensation Act 1987 (Act) damages for economic loss may only be awarded where an injured plaintiff, being a worker dies, or receives a serious injury in the course of his or her employment. A serious injury is one for which non-economic loss of not less than $51,050 is awarded (s 151H(2A)(b)). Furthermore, in assessing damages for future economic loss the Act requires that a discount rate of 5% be applied (s 151J(2)).

54    Whether or not the respondents suffered serious injury within the meaning of the Act depends upon the sequelae of the injury each suffered. In this regard the issue posed by the appellant both at the trial and on the appeal was that the respondents had not established that they or either of them, suffered from a disorder in the nature of Chronic Fatigue Syndrome (CFS), the appellant contending that neither respondent had established that he or she had suffered from such disorder although it was common ground that CFS or a disorder in the nature of CFS was a recognised, albeit not common, consequence of Q Fever. It was known to be a prolonged illness, chronic in nature, the prognosis for recovery from which was poor. Professor Wakefield stressed this in his evidence and as the case unfolded at the trial it proved to be common ground.

55    In support of its submission that neither respondent suffered from CFS or suffered from it as a consequence of Q Fever, the appellant relied essentially on the fact that each respondent returned to work after a relatively short period and continued working without complaint, either to any medical practitioner or to the appellant of any symptoms which would indicate the existence of CFS or a connection between any disorder in the nature of CFS as alleged by the respondents and the contraction of Q Fever by them.

56    Each of the respondents worked in an industry in which Q Fever was a known risk. The evidence accepted by the trial judge that both worked in circumstances in which they were exposed to the contraction of Q Fever and had contracted Q Fever as a result of such exposure. The trial judge further found a continuity of symptoms in each of the respondents. The symptoms which he found as a fact to exist were, on the medical evidence tendered, of a kind to be expected in a person who was suffering from a disorder in the nature of CFS. The trial judge found that each of the respondents suffered from a disorder in the nature of CFS. He also found that the continuity and nature of the symptoms gave rise to a strong inference (which he drew), that, absent any other probable cause, the CFS from which each of them had been found to suffer was casually connected with the Q Fever which each of them had undoubtedly contracted as a result of their exposure at the appellant’s Guyra abattoir to the rickettsia which cause Q Fever.

57    The case made by the appellant at the trial and on appeal was that such findings were inconsistent with the “incontrovertible objective facts and glaringly improbable”. I do not agree with this submission, even if stripped of its colourful adjectives.

B. Mr Smith

58    Mr Smith gave evidence that during the initial acute phase of his Q Fever he suffered from profuse sweating, inability to eat, explosive type headaches and lack of energy which caused him to be bed ridden. This situation continued for some days. After that he felt drained, lethargic and subject to continuing headaches, although these were not as severe as those which he had suffered during the early days of his illness.

59    His lethargy and extreme tiredness continued notwithstanding his return to work at the abattoir in January 1995. He said that he had to push himself in order to work, was so tired that he returned home from work and was forced to go to bed very early nearly every night. His condition was marked not only by extreme tiredness but also by a continuing heavy headache and an interference with his bladder function. This last mentioned symptom had not occurred at any time prior to his contraction of Q Fever. It was new. His evidence was that he had to get up many times during the night to go to the toilet and that his libido was depressed to the extent of being non existent. He had not experienced a problem in this regard before either. He said he could not maintain an erection. This too was new. Furthermore, he was not able to engage in his former athletic pursuits and his social life was not as it had previously been.

60    The job with which he was provided at the abattoir after he returned to work was different to and lighter than that on which he had been engaged prior to contracting Q Fever. Nevertheless he found that even such lighter duties were difficult to sustain. In order to do so that he had to push himself.

61    His evidence in relation to his lethargy at and difficulty in performing his work was corroborated by Mr Archibold and to an extent by the manager, Mr Pavey. His problems at home were corroborated by his wife. She was a registered nurse and thus able more professionally to observe symptoms and reactions than might have been the position for a lay person. His complaints of adverse effects on him as a social being were also corroborated by a neighbour, Mrs Reaidi.

62    As far as work was concerned Mr Archibold said that Mr Smith:

“… went from being vital to what I would deem a doughy person.

Q .What do you mean by doughy?
A. If he was asked a question when he went into purchasing you had to ask him a few times. He was slow to take up the direction you were taking him. Quite often you could go down to the purchasing office and he wasn’t switched on. Mentally Trevor wasn’t switched on.

Q. Did you see any change in that sort of condition at the time you were still at the abattoirs.
A. No I didn’t.”

63    Mrs Smith, who at the time she gave evidence was the Deputy Director of Nursing at a nursing home in Armidale, said that after her husband returned to work:

“He was still fatigued. He still had sweats at night. His concentration began to deteriorate. He was less focussed.”

and

“…visibly to me I could tell he was not well.
Q. What did you observe? A. The colour of his skin. He was grey colour. He would perspire without perspiring profusely - I would call it skin action rather than perspiration. As time progressed he became again less focussed on tasks he was doing, irritable.
Q. What you have just described of his change physically, has that continued, improved or got worse since then? A. We have some days that are better than others but generally he has been on a down hill slide. He became inverted (sic; semble, introverted).
Q. We will deal with the physical things first. You said he appeared fatigued or tired, what have you observed in the years since then? A. He goes to bed at about 7.30 every night and has done that for quite some years. He sleeps not terribly well. He is up to the toilet quite a few times at night.”

and

“Q. You said that he goes to bed about 7.30. Are there nights he goes later than that? A. Very rarely.
Q. What happens if he does? A. Usually tired is how he looks. He has a sleep most days; if not a sleep a rest and for a reasonably long period.
Q. So far as his physical activities are concerned what have you noticed about them? A. He tries to do what he previously could do, but he tires very easily.”

64    Mrs Smith also said that from her observation it was apparent that he continued to have headaches, that he presented as exhausted and that from being very methodical and organised he became disorganised. He was also irritable and tended to have difficulty in responding to questions. Her evidence conveyed a picture of fundamental change in the energy levels, concentration and well being of her husband as phenomena continuous since the time the acute phase of his Q Fever subsided.

65    Mrs Reaidi gave evidence that she had known Mr Smith as a neighbour. She had been a nurses aide. Before contracting Q Fever she described Mr Smith as “full of energy”. She said he was :

“Always helping the children with the horses. It was never ending. He did everything you know. Anyone needed Trevor Smith to help him, he was always there.”

66    Before he contracted Q Fever he was she said “very friendly, very happy, very you know, very outgoing person, sporty person.”. However, following his contraction of Q Fever she said of Mr Smith:

“… he wasn’t really - to me he still sounded very tired. He doesn’t come to my house like he used to. There is no more parties. They seem to really stay at home. He hardly does anything now.”

67    Against this evidence the appellant argued that because Mr Smith returned to work a short time after he contracted Q Fever, worked without loss of time thereafter until his retrenchment in October 1995, indeed towards the end of his period of employment he actually increased his hours of work yet made no official complaint about his condition, his evidence should not be accepted. The picture sought to be painted by the appellant was that Mr Smith continued his employment and life after his return to work in January 1995 in very much the same way and with the same energy as he had exhibited prior to contacting Q Fever. This included, so the appellant argued, his continuing to work as a bookmaker, travelling some distances in order to do so and in early 1999 moving to a 100 acre property which he was said to have “managed alone”.

68    However, the argument advanced by the appellant, ignores a number of vital pieces of evidence accepted by the trial judge. The first is that following his return to work the nature of Mr Smith’s work was changed significantly. It was much lighter. The second is that, although he made no complaint to management of an official kind he was observed by Mr Pavey for some time after his return to work to be fatigued. Furthermore, Mr Smith’s evidence about his bookmaking activities showed the occasions to be relatively infrequent and not such as to involve any significant physical effort and in any event to take their toll. The property had 120 sheep on it and Mr Smith’s work input was low. He appears to have been a somewhat stoic person and it is readily understandable that in a country town in which the appellant’s abattoir was a major source of employment, an employee may be loath to complain, lest he put his job in jeopardy.

69    In summary the appellant’s case was one of inference based on an approach to the facts which was not substantiated by the evidence of Mr Archibold or by that given by Mr Smith, Mrs Smith or Mrs Reaidi. Such approach by the appellant was also adopted by the medical practitioners it called. They did not base their opinions on the history given by either of the respondents but rather on a construct based on absence of official complaint and like matters. This is made abundantly clear by the evidence of Dr Sutherland, who was called on behalf of the appellant:

Q. You place emphasis, do you not on the fact that there are objective indicia, that is working history after the disease, failure of complaint to medical practitioners and the like, to indicate a failure to meet the criteria for first diagnosis and secondly, causation?
A. Yes
Q. Professor Wakefield, places emphasis on what he is told by the patients. Is this a fair way of putting the principle differences between you in your approaches to these problems?
A. Yes I believe so.”

70    Professor Wakefield expressed the opinion that Mr Smith had contracted acute Q Fever following which:

“… he developed a symptom complex consistent with a post Q fever chronic fatigue syndrome. This had continued to the present with prominent post exercise induced fatigue and neurocognitive disturbance. This illness has been complicated by the development of depression.”

and

“Based on the history available to me I see no reason to change my original opinion that Mr Smith in fact has suffered from a post Q fever syndrome. In addition Mr Smith developed a depressive illness which has followed a relapsing remitting course since 1996. … It is possible that Mr Smith has developed depression which is secondary to his ongoing debilitating disease.”

71    The depression suffered by Mr Smith was the subject of detailed reports by a consultant forensic psychiatrist, Dr Derek Lovell. He expressed the opinion that:

“I believe that Q Fever infection was important in the genesis of Mr Smith’s depression”

and

“Mr Smith’s depression could not be considered as anything other than a genuine psychological disorder and it clearly relates to the limitations in his lifestyle as a result of chronic fatigue after Q Fever infection.”

72    In addition, Dr Lovell drew attention to the acceptance by Dr Champion, who was called on behalf of the appellant, that:

“Mr Smith’s reported symptoms are consistent with the level of depression and indicates that it is likely that such depression is a combination both of a post-viral (sic) state and Mr Smith’s disability namely, fatigue and poor concentration.”

It should be noted that Q Fever is not viral in origin but bacterial, that is caused by rickettsia.

73    The trial judge accepted the evidence of Mr Smith. He accepted the evidence of Mr Archibold and accepted both Mrs Smith and Mrs Reaidi as “reliable witnesses”. His acceptance of Mr Smith , Mr Archibold, Mrs Smith and Mrs Reaidi was aided by his observation and assessment of them. His decision to accept them was well justified and within the parameters or decision open to him. The acceptance of such evidence involved the rejection of the appellant’s construct and the acceptance of the history given by Mr Smith to the medical practitioners called in his case.

74    From the foregoing it can be seen that there was ample evidence of a significant, indeed fundamental, change in Mr Smith from the time he contracted Q Fever. That evidence given by him of his symptoms and its corroboration by others amply supports the trial judge’s finding that he suffered a disorder in the nature of CFS as a result of the Q Fever which he contracted at the appellant’s Guyra abattoir in 1994.

75    The finding that Mr Smith suffered a disorder in the nature of CFS meant that his condition was serious. Moreover the evidence was that it was not likely to respond to treatment. There was no dispute on the medical evidence that CFS is of such a nature. It followed from the acceptance of Mr Smith’s evidence and the medical evidence concerning CFS that Mr Smith was quite unlikely to recover his former energy, zest for life and involvement in social and work activities. Return to work of a kind which he had been able to do prior to his contraction of Q Fever was out of the question. He was substantially impaired in a non-economic as well as in an economic sense. He was not a lazy man. He wanted to work but was not able to find work which was within his now limited capacity, physical and mental. His earning capacity was significantly reduced. The medical evidence indicated that he will not be able to return to full time work and that light part-time work would be the most that he could undertake. As far as his non-economic loss was concerned the finding by the trial judge that it should be assessed on the basis of 40% of the maximum amount that could be awarded pursuant to s 151G(3) of the Act was well supported by the evidence which he accepted. Such finding and the amount of $86,780 awarded as a consequence should not be interfered with.

76    The finding of a 40% loss for the purposes of non-economic loss meant that Mr Smith was entitled to recover damages for economic loss as well.

77    The computation of Mr Smith’s economic loss was made on the basis of a comparison between the net weekly wage which he earned at the abattoir and what he would be able to earn given his impaired condition as a result of the effects of CFS and associated depression. This resulted in a weekly loss of $430 from the date of his retrenchment namely, 26 October 1995 to the date of trial. The amount was assessed at $88,585.

78    In opposing such an award and in arguing against the level of impairment found by the trial judge the appellant pointed to the work and other history of Mr Smith up to the time of his retrenchment and beyond, and submitted that because “he has complete use of all parts of his body” and “his cognitive functions are also normal” his claimed debility should be discounted. It was also argued that no medical evidence was called to support the claimed level of impairment. That is not correct. Professor Wakefield and a number of the other medical practitioners stated that CFS was a seriously debilitating disorder and expressed the opinion that Mr Smith was unlikely to recover and would be unable to perform heavy work or even light work on a full time basis. Moreover, the evidence of medical witnesses called by the appellant, particularly Dr Boughton and Dr Hession, clearly accepted that a disorder in the nature of CFS can be extremely debilitating. Furthermore, the fact that Mr Smith had function in all his limbs is no answer to his evidence, which was accepted, of his inability to concentrate, his ongoing fatigue, lethargy, headaches and depression. These were symptoms that could not be measured scientifically but when experienced could be observed over a period by those with whom he was in close or frequent contact. Mr Smith said he experienced such problems. His evidence was accepted. Mr Archibold, Mrs Smith and Mrs Reaidi observed the effects of such problems on him. Their evidence was also accepted. Furthermore, the work which he did at the abattoir after his return to work in January 1995 was less taxing, lighter than his previous work, while the work involved in the property on which he was living was, according to him, very little. His evidence in this regard was not challenged.

79    In the light of such evidence I am satisfied that the finding by the trial judge of a substantial impairment to his earning capacity was amply justified. In this context, it should be remembered that he was a man of only 48 at the time of his retrenchment; 52 at the time of trial. His skills were limited. They were essentially in the skin and hide trade, which required a good deal of physical effort. He was not trained for clerical work and the range of jobs in which he might possibly work was limited. His ability to obtain work was also likely to be adversely effected by a revelation to his prospective employer that he was suffering from a disorder in the nature of CFS and associated depression. Melancholy as it may be, it is notorious that employers are disinclined to employ those who are suffering from pre-existing debilitating disorders. Unless he lied to a prospective employer, he would have to reveal such pre-existing debilitating disorders.

80    The fact that there is no treatment available for the disorder from which Mr Smith was suffering and that the evidence indicated that the treatment for his depression was likely to exacerbate his existing fatigue, in combination would seriously and adversely effect his earning capacity. These considerations further justified the finding that he would be unable to engage in full-time employment.

81    The assessment by the trial judge that he would be able to earn up to $150 per week is consistent with the evidence, both lay and medical, which was accepted.

82    In the light of these findings the awarding by the trial judge of an amount of $149,434 based on a residual earning capacity of $230 per week was certainly not over generous to Mr Smith. Even allowing for vicissitudes of life and the fact the discount rate applied is to be 5%, it is, in my opinion, still a relatively modest figure when regard is had to the fact that Mr Smith was only 52 at the time of trial.

83    For these reasons I am of opinion that the appeal against the award of damages to Mr Smith should be dismissed, except that the amount should be reduced by $10,000 to $334,237.85 to rectify an error in addition made by the trial judge.

B. Mrs Starr

84    Mrs Starr gave evidence that she returned to work some five weeks after contracting Q Fever.

85    The evidence revealed Mrs Starr to be an energetic person before she contracted Q Fever. Her complaints was similar to, but not identical with, those deposed to by Mr Smith. She did not suffer from depression but she did suffer from joint pains and impairment of her appetite. In addition she suffered from a sensation that her feet were burning. As was the case with Mr Smith she suffered from extreme fatigue, irritability, impairment of libido, had little social life and needed to sleep a lot.

86    Her condition was said by Dr Wakefield to be one of ongoing disability which he attributed to the development of “a post Q Fever syndrome” for which there was no diagnostic test and for which the diagnosis is principally based on the patient’s history and the exclusion of other pathology. When consideration was given by him to these factors he expressed the view that:

“Based on the evidence presented to me it would appear that Mrs Starr had an episode of acute Q Fever infection on or about 12 December 1994. Following this she developed symptoms consistent with a post Q Fever fatigue syndrome. She also developed neurocognitive changes …”

and

“On the balance of probability I think the most likely diagnosis is that Mrs Starr has a post Q Fever fatigue syndrome.”

and
“On the basis of probability it is most likely that Mrs Starr has a post Q - fever fatigue syndrome as a result of her initial infection … The prognosis in this condition is guarded and it is likely that she will continue to suffer from ongoing disability for a number of years.”

87    In coming to this conclusion he had the benefit of reports from the medical practitioners retained on behalf of the appellants including Dr Hession and Professor Boughton. They tended to reject the history given by Mrs Starr, whereas, Professor Wakefield relied on such history, a history accepted as accurate and truthful by the trial judge.

88    In his reports Professor Wakefield drew attention to the fact that Dr Hession stated that “this lady has a post Q Fever fatigue syndrome analogous to Chronic Fatigue Syndrome.” He also drew attention to the view expressed by Professor Boughton that “the recurring episodes of symptoms that she suffers are attributable to the Q Fever attack.” It was common ground between the witnesses called on behalf of Mrs Starr and those called on behalf of the appellant that she did not suffer from any psychiatric disturbance such as abnormal illness behaviour.

89    The appellant’s case in relation to Mrs Starr was that her evidence should not be accepted because of a lack of complaint to any member of the Safety Committee at the Guyra Abattoir or to others in authority, whether lay or medical. However, her complaints of continuity and symptoms, including those which by common accord were accepted as indicative of CFS or analogous disorder, were corroborated by her husband.

90    Mr Starr gave evidence that before she contracted Q Fever she was:

“Very energetic. She could do anything.”

She played golf and, bowls. She surfed and engaged in a wide range of social activities with her husband and for the benefit of her children. Mr Starr said:

“We were always running around with football of a weekend and bowls, golf. We had a full life, a pretty full life, yes.”

and

“She has always been a hard worker …”

91    Her energy levels and involvement in social and sporting activities before she contracted Q Fever were in marked contrast to the situation after she recovered from the acute phase of the disease. Mr Starr gave evidence of this:

“Q Was she well when she went back to work?
A. No, she was never well.
Q. At the time she went back to work, what did you observe was still wrong with her?
A. I would say the tiredness and no energy.
Q. I think she continued to work for some time until the abattoirs closed?
A. Yes.
Q. During that period did you notice any change in her energy levels?
A. Yes, she had none, like she just - she would just get out of bed, come back have tea, have a bath, go to bed. She had no life. I had no life either actually.
Q. In the last 12 months what have you noticed about her energy levels, have they returned to what they were before she became ill with Q Fever?
A. Oh, no.
Q. And typically at the moment?
A. She is struggling at the moment although she wouldn’t say that.
Q. Has that been the case ever since she suffered from the disease?
A. Yes, but she gets a lot worse at times.
Q. When she gets worse what happens?
A. She is very irritable and laying down, sleeping all the time.
Q. So far as work outside the home is concerned gardening, things of that nature, was that something she did before she became ill with Q Fever?
A. Yes, she loved gardening, she loved all outdoor things.
Q. Does she do that now?
A. No.”

None of the above evidence was challenged in cross-examination.

92    The trial judge accepted the evidence of Mrs Starr and her husband. He said:

“There is nothing in the evidence of Mrs Starr or Mr Starr that would indicate to the Court that their evidence is unreliable. I accept the evidence of the Plaintiff Mrs Starr and her husband.”

93    The evidence given by Professor Wakefield confirmed that:

“The commonest complication following Q Fever is post Q chronic debility or chronic fatigue syndrome. In this condition, the patient does not fully recover from the acute Q illness but continues to suffer such symptoms as lassitude, rapid fatigueability from physical activity, impairment of mental concentration, aches and pains in muscles and/or joints and sometimes disturbance of sleep rhythm.”

and

“The recurring episodes of symptoms she suffers are attributable to the Q fever attack”

94    In the light of this evidence and the fact that the appellant’s medical witnesses relied not on the history given by Mrs Starr but on factors of the same kind as those relied upon in relation to Mr Smith, the finding by the trial judge that he accepted her evidence and that of her husband meant that the premises on which they based opinions contrary to those of Professor Wakefield were not made good. The finding by the trial judge that:

“She has chronic fatigue as a result of the contraction of Q Fever at the abattoir in December 1994”

is thus amply supported by the evidence. Furthermore, the assertion on behalf of the appellant that she had not made official complaint about fatigue following her return to work is negated by evidence given by her and accepted by the trial judge. She was asked by senior counsel for the appellant:

“Q. After you got Q Fever and went back to work in the middle of January 1995, from that time until to the time you were retrenched, you made no complaint to anybody at the company about fatigue did you?
A. I made complaints and I had medication from the first aid room.
Q. Did you make complaints to the first aid room about fatigue?
A. Yes, being tired, headaches.”

95    In my opinion the finding by the trial judge referred to in paragraph 92 of this judgment was amply supported by the evidence accepted by him and should not be disturbed.

96    The evidence referred to earlier in this judgment concerning the debilitating effects of CFS and the analogous disorder arising from Q fever combined with that given by Mrs Starr and her husband as to the effects of such disorder demonstrate that the finding that her non-economic loss was 40% of the maximum amount provided for by s 151G(3) of the Act was within the parameters for decision open to the trial judge. His finding in this regard and the consequent award of $86,780 for non-economic loss should not therefore in my opinion be disturbed.

97    Mrs Starr gave evidence that whilst at work following the acute phase of her Q fever she experienced difficulties with her work and that continuing at work, as she did, required extreme effort and took its toll. Her attempts to find work after she left the abattoir were unsuccessful because she said she was unable to do a full weeks work. Furthermore, she was of the opinion that she wouldn’t be able to cope with employment that required patience, lifting or physical exertion. Her evidence in that regard was amply supported by the medical evidence concerning the debilitating effects of QFS. Moreover, she said that she was not prepared to subject her body to the strains and other adverse effects which she had experienced following her return to work at the abattoir. That was accepted by the trial judge as both accurate and reasonable.

98    In these circumstances the finding by the trial judge that Mrs Starr was unable to engage in full-time work is unremarkable. Indeed, on the evidence accepted by him, such a finding was in my opinion correct.

99    The assessment of Mrs Starr’s damages for economic loss was made on the basis that she had some limited residual earning capacity but that, consistent with the medical evidence, such limited capacity was unlikely to improve. The assessment of her residual earning capacity at $100.00 per week was within the parameters for judgment open to the trial judge. Her net wages at the abattoir were $415.00 per week. As a consequence it was open to the trial judge to calculate her loss on the basis of $315 per week from the time she left the abattoir to the date of trial and for a period of 13 years thereafter. The calculation of $53,550 as the loss sustained to the date of trial was correct on the basis of the findings of fact that had been made. The award of that amount should stand.

100    In respect of the future the trial judge made an allowance of 20% in favour of the appellant for Mrs Starr’s vicissitudes of life, based upon the fact that she may well have decided at some stage in her normal working life to spend more time with her grandchildren. Although the deduction made in respect of the vicissitudes of life is higher than the norm it was a deduction open to the trial judge. Based on such a deduction and capitalising her loss on the 5% tables the amount awarded to her for future economic loss namely, $126,580 was correctly calculated and should not be disturbed.

101    For the foregoing reasons I am of opinion that the award of damages to Mrs Starr should stand.

INTEREST

102    The appellant has challenged the decision of the trial judge to award interest of $9,438.85 to Mr Smith and $5,705.83 to Mrs Starr. No challenge is made to the computation of the amount. However, it was contended on behalf of the appellant that interest could not be awarded because of s.151M(4) of the Act. That section provides that interest is not payable and a court cannot order the payment of interest unless information that would enable a proper assessment of a plaintiff’s claim has been given to a defendant and a defendant has had a reasonable opportunity to make an offer of settlement where it is considered appropriate to do so.

103    At the trial it was submitted on behalf of the respondents that all information was in the hands of the appellant which would enable it to make a proper assessment of the case. This was said by the appellant not to be the situation. However, it is clear from the material before the trial judge that the appellant had its own medical reports and copies of the reports of the medical practitioners who were called in the respondents’ cases. None of the appellant’s doctors were “called” to give oral evidence in the respondents’ cases. However the report of Professor Boughton who was qualified for the appellant was tendered in the case of Mr Smith. The appellant was well aware of the claims made by the respondents and the medical basis for such claims. However, it determined not to make an offer of settlement. This was because it was intent on contesting liability and because the appellant hoped that the respondents would not reach the relevant threshold provided in the Act.

104    The trial judge concluded that by 1 June 1998 the appellant was aware of the extent of the disabilities claimed by the respondents and that they claimed those disabilities to be a consequence of Q fever which had been contracted in the course of their employment with the appellant. The appellant was also aware, and at the trial conceded, that the respondents had contracted their Q fever whilst in the employ of the appellant. Furthermore, disabilities of the kind claimed by each of the respondents were, on the material provided to and in the hands of the appellant, known to be of a kind that was a recognised consequence of Q fever, albeit not a universal consequence.

105    In exercising the discretion to award interest the trial judge made no error of law, indeed on the facts found by him such an award was appropriate.

106    In my opinion this ground of appeal fails.

ORDERS

107    I would propose the following orders:

40976/99

1. Appeal dismissed with costs.

40977/99

1. Appeal allowed in part and judgment in favour of the respondent reduced to $334,237.85 to rectify a mathematical error.

2. Appeal otherwise dismissed.

3. Appellant to pay respondents’ costs.

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