Finn v Roman Catholic Trust Corporation for the Diocese of T'ville

[1995] QCA 476

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 106 of 1995

Brisbane

[Roman Catholic Trust Corporation v. Finn]

BETWEEN:

THE ROMAN CATHOLIC TRUST CORPORATION
FOR THE DIOCESE OF TOWNSVILLE

(Defendant) Appellant

AND:

GEOFFREY MAURICE FINN

(Plaintiff) Respondent

McPherson JA
Thomas J

Williams J

Judgment delivered 27 October 1995

Separate concurring reasons for judgment by each member of the Court

APPEAL ALLOWED WITH COSTS. JUDGMENT BELOW SET ASIDE AND IN LIEU JUDGMENT FOR THE DEFENDANT WITH COSTS INCLUDING RESERVED COSTS IF ANY

CATCHWORDS:	NEGLIGENCE - employer and employee - groundsman - pre- existing lung weakness not disclosed to employer - whether employer under duty to ask questions or to insist upon medical examination - whether reasonably foreseeable risk of infection from bacteria and fungi - whether duty to insist on wearing of mask.
BREACH OF STATUTORY DUTY - s.9 of Welfare Health and Safety Act 1989 - not "practicable" for employer to ensure health and safety when risk not reasonably foreseeable.
Counsel:	Mr I. Callinan QC, with him Mr K. Boulton for the Appellant Mr C.F. Wall QC, with him Mr D. Turnbull for the Respondent
Solicitors:	Barker Gosling T/A for Boulton Cleary & Kern for the Appellant Goss Downey Carne T/A Giudes & Elliott for the Respondent

Hearing Date: 12 September 1995

IN THE COURT OF APPEAL	[1995] QCA 476
SUPREME COURT OF QUEENSLAND

Appeal No. 106 of 1995

Brisbane

Before McPherson J.A.
Thomas J.
Williams J.

[Roman Catholic Trust Corporation (Townsville) v. Finn]

BETWEEN

THE ROMAN CATHOLIC TRUST CORPORATION
FOR THE DIOCESE OF TOWNSVILLE

(Defendant) Appellant

AND

GEOFFREY MAURICE FINN

(Plaintiff) Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 27th day of October 1995

I agree that the appeal should be allowed with costs and that the orders proposed

by Thomas J. should be made.

I agree with the reasons of Thomas and Williams JJ. for allowing this appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 106 of 1995

Brisbane

Before McPherson JA

Thomas J

Williams J

[The Roman Catholic Trust Corporation

for the Diocese of Townsville v. Finn]

BETWEEN:

THE ROMAN CATHOLIC TRUST CORPORATION
FOR THE DIOCESE OF TOWNSVILLE

(Defendant) Appellant

AND:

GEOFFREY MAURICE FINN

(Plaintiff) Respondent

JUDGMENT - GN WILLIAMS J

Judgment delivered 27/10/1995

All relevant facts are fully set out in the reasons for judgment of Thomas J which I have had the advantage of reading; there is nothing I wish to add relating thereto.

There has been much discussion, particularly in the High Court in recent years, with respect to the law of negligence; clearly it has developed in a number of significant respects as a result of decisions such as Wyong Shire Council v. Shirt (1980) 146 C.L.R. 40 Council of the Shire of Sutherland v. Heyman (1985) 157 C.L.R. 424 and Nagel v. Rottnest Island Authority (1993) 177 C.L.R. 423. But despite the language preferred by the revisionists the fundamentals have not altered. Where a relevant duty is imposed upon a person, the obligation is still to take reasonable care, and the scope of the duty is limited to the area of foreseeable risk. If at the material time a reasonable employer, taking all reasonable care for the safety of his employees, would not have foreseen the particular injury to the employee which gives rise to the action, negligence cannot be proved. It is important when considering evidence said to be relevant to such issues to have regard only to what was considered reasonable, and what was foreseeable, at the material time. It is easy for both employers and judges to be wise after an event, but hindsight cannot convert what was at the material time the taking of reasonable precautions into a failure to discharge the duty of care.

With respect to the learned trial Judge in this case, in my opinion, he fell into that error. At all material times none of the appellant, the respondent, nor the respondent's treating doctors considered there was any relationship between the work environment and the medical condition. If the appellant had sought advice with respect to the respondent's medical condition from those best placed to give it, namely the treating doctors, it would have been advised that there was no specific link between the work environment and the medical condition. As the medical specialists frankly conceded, the respondent was unique in that he had an extremely rare vulnerability to two separate types of lung infection; even they were not aware of his susceptibility until after the damage had been done. It is only with the benefit of hindsight that one can make findings providing a basis for a case in negligence against the appellant.

Windeyer J (with the concurrence of McTiernan, Kitto, Taylor and Owen JJ) said in Vozza v. Tooth & Co Limited (1964) 112 C.L.R 316 at 318:

"It may seem that, because an accident has happened and a workman has been injured, his employer is liable for damages if it can be shown that, by some means, the accident might have been avoided. That is not so. The statement that the common law requires that an employer have a safe system of work for his employees means only that he must take reasonable care for their safety. It does not mean that he must safeguard them completely from all perils."

Though that statement was made more than thirty years ago it is still a valid formulation of principle. As His Honour said at 319 it must be established by evidence that the employer "unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment."

It has also generally been recognised, where the employer has knowledge or at least the means of knowledge of a particular susceptibility to injury in the employee, then that will affect the steps which must be taken in order to comply with the obligation to take reasonable care. Such a problem was considered by the Full Court of the Supreme Court of New South Wales in Pitsiavas v. John Lysaght (Aust) Pty Ltd (1962) NSWR. 1500, especially at 1502 and 1504. The statement by Manning J at 1504 is probably too broadly stated; it should be limited to the situation where the employer had knowledge, or the means of knowledge of, the susceptibility. But it is worth citing the passage:

"In my opinion there is no basis for imposing upon the employer the additional burden of taking care not to expose a particular employee to risks resulting from his inherent weakness. His duty is to act with reasonable care to protect his employees from unnecessary risks. He is not required to enquire into the question as to whether each labourer employed by him may be unfit for the work involved by reason of some constitutional defect or weakness."

With the qualification I have referred to, that is still an accurate statement of legal principle.

Further, in my view, there is nothing in the Workplace Health and Safety Act 1989 (including s.9 thereof) which would require an employer to take precautions against a risk which was wholly unforeseeable. Because of that, the respondent cannot improve his position by relying on that statute.

I agree with orders proposed by Thomas J.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 106 of 1995

Brisbane

Before McPherson JA

Thomas J

Williams J

[Roman Catholic Trust Corporation v. Finn]

BETWEEN:

THE ROMAN CATHOLIC TRUST CORPORATION
FOR THE DIOCESE OF TOWNSVILLE

(Defendant) Appellant

AND:

GEOFFREY MAURICE FINN

(Plaintiff) Respondent

REASONS FOR JUDGMENT - THOMAS J

Judgment delivered 27 October 1995

The appellant (The Trust Corporation) at material times was responsible for managing

schools in the Townsville area. It employed the respondent as a groundsman for St Margaret

Mary's College from 1985 to 1993. He ceased work soon after it was discovered that he was

suffering from a serious lung disease caused by a fungus, aspergillus fumigatis. The condition

is not operable in his case because the condition of his lungs is severely compromised by pre-

existing abnormalities including the effect of previous surgery for a different infection which he

suffered in 1990.

The respondent had a history of lung abnormalities going back to 1974 and had

undergone various procedures including pleurectomy and pleurodesis. He had been under

particularly close scrutiny from his medical advisers since his contraction of an infection

(pneuma intracellulare) in 1990 for which conservative treatment failed. Eventually an operation was performed in January 1991 which removed a significant part of his left lung.

Dr Matthiesson, who certified him fit to return to work in May 1991, did not anticipate that he

would be at risk of further infection. Neither did the respondent and neither did the Trust

Corporation.

The learned Trial Judge held that the Trust Corporation was guilty of negligence and

breach of statutory duty. Whilst the precise basis of these findings is expressed in alternative

ways, his Honour seems to have regarded the Corporation as negligent in failing to appreciate

the danger to which the plaintiff was exposed through his activities as a groundsman, and to

have considered the Corporation's failure to require him to wear a mask whenever he would be

exposed to dust or to mist when using a pressure-sprayer, as a breach of the duty it owed to him.

His Honour considered that the Corporation should have made more enquiries from the

plaintiff as to his medical condition before employing him.

The disease contracted in 1990 was an infection with the bacterium intracellulare. It is

described as a tuberculosis type disease. The bacterium is described as avirulent, that is to say

not virulent. The disease which he contracted in late 1992 or early 1993 was an infection by a

fungus, aspergillus fumigatis ("aspergillus"). That fungus is described as of low virulence. The

respective organisms are ubiquitous. The intracellulare bacterium is found anywhere in the

environment, particularly in soil. The aspergillus fungus is found particularly in decaying

vegetation and in some moulds. However it is not to be thought that some new pestilences have

been discovered or that it is generally dangerous for the ordinary person to be in contact with the

air or with dust or with mists. The incidence of these infections is regarded as relatively rare

despite the common occurrence of the organisms. In the case of the ordinary person quite

massive exposure to such organisms would be required for infection to supervene. But, as the

learned Trial Judge observed:

" . . to any person, particularly to a vulnerable person, the level of the risk which the sources create depends upon the volume of air inhaled and the quality of that air. The volume of air inhaled in turn depends on the duration of exposure and the activity being undertaken by the target person at the time of exposure; for example whether he or she is sleeping or working energetically. The quality of the air depends upon the environment and any activity taking place in that environment."

His Honour also considered that proving the degree of risk created by these factors "in a

scientific way and in a quantitative sense" was completely impracticable.

It is now thought by the respondent's medical advisers that both the 1990 illness and the

1993 illness were work-related. The first (intracellulare) is thought to have been contracted

through his inhaling of dust, and the second (aspergillus) through his inhaling of mist while

using a pressure-sprayer to clean paths, walls and the like. In the opinion of his medical

specialist, Dr Matthiesson, the respondent is probably the only person in the world to have

suffered the effects of both of these diseases.

The respondent was born in October 1955. His history of chest problems started with

his suffering in 1974 of recurrent pneumothoraxes. These involved the leakage of air from the

lung into a bubble between the lung and the chest wall. They are commonly caused by

structural weakness in the lung, and are referred to in some of the medical reports as bullae. In

1977 this necessitated an operation on his left lung. In 1982 a similar operation was necessary

on his right lung. At that stage he appeared able to function quite normally. He worked as a

rouse-about, in a shearing shed, and as a concrete and construction worker. He also worked as a

groundsman for some time in the Julia Creek area before applying for employment at the

Corporation's school in Townsville.

When applying for the position at St Margaret Mary's College he filled in part and

supplied information for other parts of an application form for the position of groundsman.

Under the heading "Health: general - any noteworthy disabilities?" he supplied the answer

"No".

The respondent worked at the school apparently without relevant problems until 1989

when some chest problems arose. Tests were taken, and an X-ray of 17 April 1989 excluded

relevant diseases such as intracellulare. It can now be said that he had not sustained any such

infection by that time. In September 1990 however other symptoms appeared and further X-

rays were taken. These revealed intracellulare infection. Despite his doctor's concern he

resisted giving up smoking and for some time refused to go to hospital. Conservative treatment

failed and eventually in January 1991 he underwent an operation to his left lung. This cured the

condition and rendered him free of the disease. After some chemotherapy he returned to work

in May 1991. Dr Matthiesson provided the appellant with a medical certificate stating "Mr

Geoffrey Finn will be fit to return to work on Wednesday, 1 May 1991". Dr Matthiesson knew

the type of work that the plaintiff did, although he did not closely question the plaintiff as to his

day-to-day activities. It did not occur to the doctor that the ordinary activities of a groundsman

would expose him to any unacceptable risk.

After his return to work he functioned satisfactorily and underwent regular reviews at

the respiratory unit. He reported that he was feeling well. A precautionary X-ray taken in

September 1992 showed no abnormality (other than the known abnormalities), and it

demonstrates that he had not to that time contracted the aspergillus infection.

In January 1993 the aspergillus infection was discovered in his right lung. It was

probably contracted about a month before the diagnosis. Dr Matthiesson realised for the first

time a possible connection between this and his work. The preferred treatment was surgical

resection of the involved area, but this was out of the question because his other lung had

already been surgically reduced. Chemotherapy was therefore attempted. Dr Matthiesson wrote

a report for the Worker's Compensation Board indicating his view that the aspergillus had

probably been contracted in the course of the respondent's cleaning of mould from school walls

and stairwells using a high-pressure hose. He thought it highly probable that his current illness was due to colonisation of pre-existing bullae in the right lung by aspergillus breathed in as he

cleaned the walls and stairways. He went on to consider that inoculation of the intracellulare

organism into the (left) lung with pre-existing bullae damage was likely to have produced the

infection that Mr Finn had developed in 1990. He commented that Mr Finn had not been

advised earlier of that possible association, because the possibility had only become apparent on

the current review of his case.

The respondent returned to work, and on the advice of his doctor asked a representative

of the Corporation for a protective mask. This was obtained. However he never in fact used the

mask because the school management directed him not to use the spraying machine again, and

in fact he ceased working for the school in early May 1993.

Causation

The appellant Corporation does not contest that the evidence now shows it to be

probable that the respondent's diseases were contracted as the result of activity in the course of

his work. The learned Trial Judge's finding was as follows:

"In law it is only necessary to be satisfied that a condition is so on the balance of probabilities. In the present case I am satisfied on the balance of probabilities that both infections were caused in the course of the plaintiff's employment while he was engaged in what were, though unknown to him, the hazardous activities to him of mowing and water-blasting".

The "hazardous to him" nature of these activities was of course also unknown to his employer,

or for that matter to his doctor. The evidence is that each infection must have been sustained on

a single unfortunate occasion rather than through any cumulative effect from multiple

exposures. Doctors Speare and Matthiesson expressed unreserved opinions to that effect. The

only qualification was from Dr Greves who considered that either explanation might be

possible, but he did not suggest cumulative exposure as a probable explanation. A good deal of

evidence was directed to showing that there was a cumulative high exposure to dust and spray, but, for the reason just mentioned, the cumulative effect of exposure is not a relevant factor. His

Honour in any event considered that the respondent's evidence on these matters was

exaggerated. The position, shortly stated, is that from time to time he would use a mower (both

a rider mower and a hand-pushed mower), and sometimes dust would be stirred up. He also

collected and shovelled soil. He used a pressurised sprayer to clean parts of the school during

vacation periods. This involved spraying four times a year. Each activity would be for a period

of about two hours on each of two days.

The only finding reasonably open on the evidence is that the intracellulare infection was

probably received during a single episode at work shortly before September 1990, and that the

aspergillus infection was probably received during a single episode at work in or shortly before

January 1993. No finding can be made whether the plaintiff was ever exposed to a large dose of

infective material, although it is possible that he was. Because of his especially vulnerable state,

a moderate or relatively low dose may have sufficed.

Both organisms are capable of being carried in either dust or mist, so the nature of the

activity that led to reception of the intracellulare is obscure. Dust could be produced by some

mowing activities or from his collecting and shovelling soil. It is however likely that the

aspergillus was received in the course of spraying activities, as the Christmas vacation was one

of the periods when he undertook such activity.

Basis of Liability

There is an initial difficulty in identifying the basis upon which the appellant has been

found guilty of negligence to its employee. The critical findings of the learned Trial Judge

appear in the following passage:

"In my view it does not matter whether the case be considered as one where the plaintiff is a member of a significant class or whether he be considered simply as a vulnerable individual. It is clear that if the defendant had known of the plaintiff's condition it would have been liable: Paris v. Stepney Borough Council [1951] AC 367. I have found that the defendant did not know of the condition, that is to say the condition which was signalled by the two pneumothorax operations, namely the lung abnormality and I find that the defendant did not make any inquiry which would have disclosed the plaintiff's vulnerability and condition.

The application form to which I have already referred did make inquiry regarding the existence of disability, but in my judgment that does not go far enough. In my judgment the defendant should have sought from the plaintiff a medical history. Had it been alerted regarding the operations carried out in 1977 and 1982, it would have had a duty to seek advice as to the implications of the operations having regard to the defendant's knowledge of the nature of the tasks which the plaintiff would be required to carry out in its employment."

It is in my view a matter of some importance whether the negligence is founded upon a failure

to find out that the plaintiff was specially vulnerable to such damage or whether the liability is

based on a duty which the appellant breached of protecting persons who are not known to have

some special vulnerability. Different factors apply according to which case is to be made out.

Both the evidence and the earlier part of his Honour's judgment suggest that the

plaintiff's case was based upon his special vulnerability. His Honour held:

"There are numerous sources of potential infection to the lungs and particularly to a person suffering this vulnerability found in our everyday environment . . . To infect a normal person these must be present in massive doses. No quantitative evidence was put before me of the magnitude or concentration of the dose needed to achieve such an infection. However, Dr Graves gave evidence that the bacterium was what he described as avirulent and the aspergillus of low virulence .

. . But the point of relevance in the present case is that such infections are a threat to a person with lungs in the condition of the plaintiff's lungs as indicated after 1982 by the two operations to which I have already referred."

Dr Matthiesson's evidence was that if the respondent had not had the pre-existing structural

weaknesses he would not have sustained either of the infections.

A healthy person would not be affected except by a massive dose of either organism.

Intracellulare can come into contact with the human body by means of dust or water spray.

Most people are exposed to it, and indeed thirty percent of the population, although not functionally affected by it, can be proved by medical tests to have been exposed to it. It is

thought to be a soil organism that also gets into water, but not enough scientific research has

been done to enable anyone to say where it exists. It is not detectable in any constant way at any

constant place.

The aspergillus is detectable as a spore that floats in the air. It also exists in the soil.

Like the intracellulare, it is contracted on a particular occasion, not by progressive exposure.

Everyone comes into contact with it at some time or other. But as already indicated, the only

way a normal person could sustain an infection would be through a massive reception on a

particular occasion.

Dr Matthiesson's view, "almost absolutely", was that the respondent would not have

been colonised by these microbes but for his pre-existing structural weaknesses. Dr Greves

confirmed that aspergillus "normally never occurs unless there is some compromising factor in

the host".

No case was made out of any general threat to normal members of the public. The

evidence however supports the existence of some danger to persons with chest problems.

Negligence

It is first necessary to consider whether the Corporation was in breach of a duty to obtain

more details from the plaintiff so as to elicit his medical history. If there was such a duty it

would then need to be considered whether the possession of such knowledge should then have

led it to make further enquiries, and whether such enquiries would have resulted in advice being

given such as to cause it to institute protective measures that would have enabled the plaintiff to

avoid the infections.

His Honour has found that there existed a duty on the part of the employer at the time of engagement of the employee to make enquiry into the health of the potential employee. His Honour has further held that the Corporation did not go far enough to satisfy that duty. If there

is such a duty, there is no decided case that refers to it. At least none was referred to by the

learned Trial Judge or in argument before this Court, and I have been unable to find any.

The starting point in the present case is that the employer did in fact make an enquiry

concerning his health. To its question, "Any noteworthy disabilities?" it received the answer,

"No". There was nothing in the plaintiff's presentation that could have alerted the Corporation

to any disability or to any underlying weakness or to cause a reasonable employer think that here

was a person who might be unsuitable for the fairly familiar and on the whole moderately active

type of work that he would be expected to perform as school groundsman.

The suggestion on behalf of the respondent is that upon receiving the answer, "No",

there was some duty upon the Corporation to cause the applicant/employee to be further

interrogated, and in particular that he should have been asked to supply a medical history. Such

a duty would create serious repercussions both from the point of view of employer and

employee. Not the least of these is the privacy of the employee. There is also the question of

what to do if further interrogation showed the initial response to be misleading. Whether this

might lead to a decision not to employ or to dismiss, or whether that might amount to an unfair

discrimination against a person on the ground of disability, are further questions which merely

exemplify the difficulty of assuming that such duties exist on the part of employers. In my view

unless some fact, circumstance or state of affairs exists which should put an employer upon

special enquiry, there is no duty to interrogate either prospective or existing employees in

relation to their health and history. No doubt some employers do this, and some of them would

do it discreetly and sensitively. However the question of a general duty of this nature in an

ongoing way is something quite different and I do not consider that it has been recognised as

such.

The duty to make such enquiries was said by his Honour to arise "having regard to the
relationship of proximity" between plaintiff and defendant, and to some extent upon the

evidence of two of the industrial safety experts who were called to give evidence on behalf of

the respondent. I am not aware of any authority which recognises such a duty as arising from

any particular degree of proximity between employer and employee, and note that there was no

special proximity in the present case. So far as the evidence of Mr King and Mr O'Sullivan is

concerned, it is incapable of changing the law. Mr O'Sullivan gave evidence that it is "good

safety management" for an employer to try to ascertain whether employees have certain

susceptibilities, and that if it were discovered that a worker had a problem with the lungs and

the worker was exposed to some degree of "load in the atmosphere", such as atmospheric

contamination, "you would have to be more careful and put in more measures". His evidence is

of a general kind. At one point reference was made to an Australian Standard dealing with the

provision of service by an Occupational Health Service. In that context it stated that "the

service shall include the following - health assessment, each employee's capability of

performing specific tests should be evaluated by a preplacement health assessment or

examination . . ". In the first place the Standard has nothing to say about employers seeking

medical histories from employees. In the second place the Standard referred to has no per se

legal or evidentiary force (Chicco v. Corporation of City of Woodville (1990) A.T.R. 67893,

67895, 67897).

If a duty such as that suggested by the learned Trial Judge exists, it would seem that a

similar duty would be owed to casual workers as well as potential long-term employees. This

would place considerable difficulty and administrative awkwardness upon the engagement of

employees and would impose a burden on potential employees (many of whom might be

unsuccessful) as well as upon employers. Furthermore, if the appellant had insisted upon the

provision of a medical certificate of fitness for such work, it is likely that one would have been

supplied. Such a certificate was provided when it was needed some years later, even after a
serious operation upon a lung.

The Court was referred to Paris v. Stepney Borough Council [1951] A.C. 367 and to

Miller v. Royal Derwent Hospital Board [1992] A.T.R. 61483. These cases deal with actual

knowledge by an employer of a particular vulnerability, and do not deal with the question of

duty to obtain such knowledge. The relevance of the reference by the learned Trial Judge to

Stepney is presumably to the next phase in the argument, that is to say to the duty that the

appellant would have owed the respondent if it had obtained the knowledge of his vulnerability.

In my view the learned Trial Judge erred in holding that the appellant was under a duty,

either at the time of the appointment of the respondent or subsequently, to make further enquiry

concerning his medical history.

It is still necessary to consider the effect of the actual knowledge imparted to the

Corporation of the respondent's condition when he returned to work in May 1991 after the

operation on his left lung. He was keen to return to work and he obtained from Dr Matthiesson

a medical certificate which was presented to his employer. It stated that he was fit to return to

work on the stated date (1st May). It is hard to see why a prudent employer, given the relative

dearth of scientific knowledge of the occurrence and incidence of these organisms, should have

looked beyond such a statement from the Townsville General Hospital Director of Respiratory

Medicine. If further enquiries had been made from Dr Matthiesson it is unlikely that they would

have produced any different response. As Dr Matthiesson observed in evidence concerning the

respondent's return in 1991 - "He shouldn't have gone back to that job, but we didn't know that

at that point in time". The occasion was not such in my view as to require a prudent employer

to engage other persons such as independent industrial safety experts to second-guess Dr

Matthiesson.

The learned Trial Judge found that the Corporation was not entitled to rely on

Dr Matthiesson's certificate. The learned Judge's reasoning appears in the following passage:

"However, when that certificate is viewed in the context of the circumstances of this case it is apparent that there was a common assumption both by the doctor and by the defendant that prior to contracting the intracellulare infection the plaintiff was fit for work. In other words the certificate related to the plaintiff's illness and was not a certificate resulting from an overall medical examination of the plaintiff and was not intended to be the sort of certificate which might result from a full medical of the type for example, administered before a persons joins the army or the public service.

I do not regard it as reasonable for the defendant to have viewed the certificate as a certificate of the plaintiff's suitability for all of the tasks allotted to him. The doctor in fact had no specific knowledge of what those tasks were and there was no reason why it should be thought that he did have such knowledge."

The point that the certificate did not result from an overall medical examination such as might

be administered before one joins the army or the public service, is not convincing when one

knows that it was written by the very doctor who had made overall medical examinations of the

plaintiff, who knew his history well, and who had addressed the question of return to work. It is

true that the doctor had general rather than specific knowledge of the type of work that the

respondent would be performing, but that is not strongly persuasive in considering the

reasonableness of the corporation in acting on the certificate. The duties of an employer to

employee and of doctor to patient are of course different, but it is difficult to detect anything

unreasonable in an employer failing to make greater enquiry or failing to find out more than the

plaintiff's own specialist concerning whether it is reasonably safe for the plaintiff to continue in

his present line of work. The question with which we are here concerned is of the danger of

suffering a further infection, which is a subject of primary concern to a doctor. Why the

employer should in those circumstances be expected to go to industrial safety consultants when

it has a certificate from the consulting specialist is difficult to understand.

The certificate was accompanied by a further certificate stating that the respondent had

been admitted to hospital suffering from atypical tuberculosis in consequence of which he was

totally incapacitated for work and was unfit for duty up to 30 April. The combination of the two

certificates notified the employer that he had suffered from something called "atypical tuberculosis" but that he was now fit to return to work. The combination does not in my

opinion amount to notice to the employer that the plaintiff was one of a particularly vulnerable

class of employees with respect to whom special advice would need to be sought in order to

discharge its duty to him. That duty may compendiously be stated as the duty to take reasonable

care to avoid exposing its employees to unnecessary risk of injury (Hamilton v. Nuroof (W.A.)

Pty Ltd (1956) 96 C.L.R. 18, 25; Turner v. South Australia (1982) 56 A.L.J.R. 839, 840).

The knowledge of the appellant could not reasonably be regarded as having been

increased by the circumstance that occasionally the respondent had conversations in the lunch-

room with one Noel Gorton, the maintenance supervisor, in which he mentioned that he had had

a previous operation (a pneumothorax), that it was quite successful, and that he had had no

further problems. There is evidence of a further conversation with Mr Gorton after his return to

work in May 1991 in which he told Mr Gorton that part of his left lung had been removed and

that his shoulder had been caved in "to stop further infections in that area of the lung". The

evidence does not justify a finding that the respondent's casual conversations with Mr Gordon

amounted to notice to the respondent.

It is impossible to justify any finding in favour of the respondent on the footing that the

appellant had sufficient actual knowledge of the fact that the respondent was specially

vulnerable to chest infection as to require the instigation of special protective measures.

Finally it is necessary to deal with the possible alternative basis of liability (i.e. breach of

duty to employees generally without knowledge of special vulnerability).

The learned Trial Judge did not discuss the finer details of this question, simply

expressing the view that it did not matter whether the case was considered as one where the

plaintiff was a member of a significant class or whether he were to be considered as a

vulnerable individual. His Honour also said:

"I find that if advice had been sought the obvious advice would have been to do what ultimately was done and that is to buy the relatively inexpensive mask which, on the evidence, would have been adequate to prevent the plaintiff developing either of the infections which he developed."

This, and the submission of counsel for the respondent that "all the employer had to do was buy

a mask for $39 and the conditions would have been avoided" are superficially attractive if one

uses the hindsight. A different picture exists if one excludes the hindsight.

The question is whether a reasonable employer, in the state of contemporary

understanding of these infective organisms should have identified the risk associated with this

type of work (groundsman) as sufficiently serious to require such an employee to wear a special

mask. If the risk is to be identified as of a sufficiently serious level to a significant class of

persons, it is difficult to know when it would be safe to let any groundsperson work without a

mask, as the agents of risk include both dust and moisture. The evidence vacillated somewhat

as to the most suitable mask to protect persons from intracellulare or aspergillus, some evidence

suggesting that an air-injecting mask (which would require the worker to carry a bottle) would

be preferable, and other evidence suggesting that a somewhat simpler face-mask would provide

sufficient protection. If there is a need to guard employees against these organisms by

compulsory procedures such as these, it must apply not only to groundsmen but to labourers,

farmers, persons who drive machinery and anyone who is exposed to dust or mist. For that

matter such protection should not be confined to employees, and the whole community should

be urged to undertake a considerable proportion of their activities with the protection of a mask.

This, so far as aspergillus is concerned, could apply to indoor activity as well as to outdoor.

Three witnesses were called on behalf of the respondent to give evidence of an expert

kind on approaches to safety in the workplace. Analysis of their evidence is quite difficult, and

much of it is in the category of general advice to employers on desirable standards. But very

little of it adverts to actual practice, or of known scientific information which a reasonable

employer might be expected to put into practice. The first expert, Mr Doak, was an occupational hygienist working for James Cook University. His responsibility was to manage

the workplace and attend to matters of health and safety for the University. He discussed the

type of respirators that would afford protection against particulates of the size of aspergillus

spores. He mentioned that his mowing staff were supplied with a disposable mask (described as

a P1). It was intended to be used "for that sort of work which basically involves what we call

nuisance dust". When asked by his Honour why he gave them such a mask he replied, "Some

staff feel slight discomfort when mowing, particularly in the dry times". In response to a later

question from his Honour, "Is it a safety issue or a comfort issue?", he replied "Perhaps a bit of

both I think". Mr Doak regarded the dust stirred up by mowing as of low risk, and that the

question of health or safety was more likely to be determined by whether the individual had

allergies. When asked by his Honour whether he asked people who work for him as

groundsmen whether they have any allergies he replied, "No". However the University did

enquire as to the health status of its workers when they started work, including the undergoing

of a medical examination.

Later when his Honour asked whether he made his grounds staff wear the masks he

replied "No", agreeing that it was entirely a matter of choice for the worker.

He conceded that there are no exposure standards for micro-organisms. It is difficult to

regard this evidence as supporting any view of awareness, even among so-called experts, of a

danger from the relevant sources such as to demand a system insisting upon the wearing of

protective gear on relevant occasions.

Evidence was also called from Mr King and Mr O'Sullivan both of whom are safety

consultants. Mr King said that if he had been consulted by the Corporation, he would have

consulted Mr Doak as to what type of mask would be suitable, if there had been concern about

contaminants as distinct from particulates. The principal thrust of his report was that once a

task is identified as involving a potential hazard, certain management procedures should be followed, and in the case of breathing in dangerous substances, the usual solution is a mask of

one kind or another. He acknowledged that the level of potential hazard is a question of degree.

He exemplified possible hazards and their control in attachments to his report, but none of

these identifies the particular agents that arise in this case. The evidence of Mr O'Sullivan was,

on the whole, even more general, with emphasis upon what could have been done.

I consider that the evidence does not provide a proper basis for a conclusion that a

reasonable employer in Townsville between 1985 and 1993 should have identified a level of

risk associated with this kind of work in relation to a significant segment of the workforce such

as to require it to institute a protective regime of the kind that has been suggested. In my view

the plaintiff could only succeed if he could show that the employer owed a duty to him in view

of his special susceptibility. Liability on this basis would only arise if the employer was under a

duty to interrogate employees to find out whether they are specially susceptible persons. The

unique nature of the plaintiff's problems, and the evidence generally as to the low level of risk

despite the general presence of these organisms go against the existence of a general duty of the

kind suggested at the relevant times.

As Dr Matthiesson observed of his return to work in 1991, "He shouldn't have gone

back to that job, but we didn't know that at that point in time". To require this employer to have

had greater foresight than the plaintiff's own expert medical advisers seems more than could

reasonably be expected, and to involve the unfair use of hindsight.

I conclude that in the absence of knowledge of his vulnerability, the evidence is

incapable of establishing a duty upon the employer to require its employees to wear a mask at

all times when disturbing dust or when cleaning surfaces with water. The employer's duty is

limited to the area of reasonably foreseeable risk, and to establish negligence there has to be

some element of unreasonableness in the defendant's conduct. The evidence does not

demonstrate such an element on the part of the appellant. The findings of negligence are not
sustainable.

There remains the finding of breach of statutory duty. This alternative finding of

liability was based on s.9 of the Workplace Health and Safety Act 1989. It provides:

"An employer who fails to ensure the health and safety at work of all his employees save where it is not practicable for him to do so, commits an offence against this Act."

It is arguable whether this section creates a civil cause of action, and the appellant reserved its

position on that point. It is unnecessary to consider that question, because, for the reasons

already given there was no sufficient general awareness of the problem to activate a duty in the

appellant to introduce special protective measures. If this is correct, it cannot be said that it was

practicable for the employer to have done things the need for which was not known or required

to be known by it.

I do not understand counsel for the respondent to have argued any separate justification

for a finding under s.9 if the findings of negligence could not be upheld.

The appeal must be allowed with costs. The judgment should be set aside and in its

place there should be judgment for the defendant with costs including reserved costs if any.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 106 of 1995

Brisbane

Before McPherson JA

Thomas J

Williams J

[The Roman Catholic Trust Corporation

for the Diocese of Townsville v. Finn]

BETWEEN:

THE ROMAN CATHOLIC TRUST CORPORATION
FOR THE DIOCESE OF TOWNSVILLE

(Defendant) Appellant

AND:

GEOFFREY MAURICE FINN

(Plaintiff) Respondent

JUDGMENT - GN WILLIAMS J

Judgment delivered 27/10/1995

All relevant facts are fully set out in the reasons for judgment of Thomas J which I have had the advantage of reading; there is nothing I wish to add relating thereto.

There has been much discussion, particularly in the High Court in recent years, with respect to the law of negligence; clearly it has developed in a number of significant respects as a result of decisions such as Wyong Shire Council v. Shirt (1980) 146 C.L.R. 40 Council of the Shire of Sutherland v. Heyman (1985) 157 C.L.R. 424 and Nagel v. Rottnest Island Authority (1993) 177 C.L.R. 423. But despite the language preferred by the revisionists the fundamentals have not altered. Where a relevant duty is imposed upon a person, the obligation is still to take reasonable care, and the scope of the duty is limited to the area of foreseeable risk. If at the material time a reasonable employer, taking all reasonable care for the safety of his employees, would not have foreseen the particular injury to the employee which gives rise to the action, negligence cannot be proved. It is important when considering evidence said to be relevant to such issues to have regard only to what was considered reasonable, and what was foreseeable, at the material time. It is easy for both employers and judges to be wise after an event, but hindsight cannot convert what was at the material time the taking of reasonable precautions into a failure to discharge the duty of care.

With respect to the learned trial Judge in this case, in my opinion, he fell into that error. At all material times none of the appellant, the respondent, nor the respondent's treating doctors considered there was any relationship between the work environment and the medical condition. If the appellant had sought advice with respect to the respondent's medical condition from those best placed to give it, namely the treating doctors, it would have been advised that there was no specific link between the work environment and the medical condition. As the medical specialists frankly conceded, the respondent was unique in that he had an extremely rare vulnerability to two separate types of lung infection; even they were not aware of his susceptibility until after the damage had been done. It is only with the benefit of hindsight that one can make findings providing a basis for a case in negligence against the appellant.

Windeyer J (with the concurrence of McTiernan, Kitto, Taylor and Owen JJ) said in Vozza v. Tooth & Co Limited (1964) 112 C.L.R 316 at 318:

"It may seem that, because an accident has happened and a workman has been injured, his employer is liable for damages if it can be shown that, by some means, the accident might have been avoided. That is not so. The statement that the common law requires that an employer have a safe system of work for his employees means only that he must take reasonable care for their safety. It does not mean that he must safeguard them completely from all perils."

Though that statement was made more than thirty years ago it is still a valid formulation of principle. As His Honour said at 319 it must be established by evidence that the employer "unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment."

It has also generally been recognised, where the employer has knowledge or at least the means of knowledge of a particular susceptibility to injury in the employee, then that will affect the steps which must be taken in order to comply with the obligation to take reasonable care. Such a problem was considered by the Full Court of the Supreme Court of New South Wales in Pitsiavas v. John Lysaght (Aust) Pty Ltd (1962) NSWR. 1500, especially at 1502 and 1504. The statement by Manning J at 1504 is probably too broadly stated; it should be limited to the situation where the employer had knowledge, or the means of knowledge of, the susceptibility. But it is worth citing the passage:

"In my opinion there is no basis for imposing upon the employer the additional burden of taking care not to expose a particular employee to risks resulting from his inherent weakness. His duty is to act with reasonable care to protect his employees from unnecessary risks. He is not required to enquire into the question as to whether each labourer employed by him may be unfit for the work involved by reason of some constitutional defect or weakness."

With the qualification I have referred to, that is still an accurate statement of legal principle.

Further, in my view, there is nothing in the Workplace Health and Safety Act 1989 (including s.9 thereof) which would require an employer to take precautions against a risk which was wholly unforeseeable. Because of that, the respondent cannot improve his position by relying on that statute.

I agree with orders proposed by Thomas J.