Hans Christian Lyons v Commissioner for Housing for the Australian Capital Territory
[2004] ACTSC 126
•10 December 2004
HANS CHRISTIAN LYONS v COMMISSIONER FOR HOUSING FOR THE AUSTRALIAN CAPITAL TERRITORY
[2004] ACTSC 126 (10 December 2004)
NEGLIGENCE – personal injury – liability of landlord to tenant – landlord public housing provider – needlestick injury – prior complaints by tenants – facilities for disposal of needles – adequacy of cleaning system – whether response to risk reasonable
DAMAGES – personal injury – needlestick injury - hepatitis C – plaintiff unaware already positive – pre-existing schizophrenic disorder – effect of diagnosis on plaintiff
Housing Assistance Act 1987
Wyong Shire Council v Shirt [1980] 146 CLR 40
Romeo v Conservation Commission of the Northern Territory [1998] 192 CLR 431
Australian Safeway Stores Pty Limited v Zaluzna [1987] 162 CLR 479
Northern Sandblasting Pty Limited v Harris [1997] 188 CLR 313
Jones v Bartlett [2000] 205 CLR 166
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] 206 CLR 512
Graham Barclay Oysters Pty Limited v Ryan [2002] 211 CLR 540
No. SC 553 of 2000
Judge: Master Harper
Supreme Court of the ACT
Date: 10 December 2004
IN THE SUPREME COURT OF THE )
) No. SC 553 of 2000
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:HANS CHRISTIAN LYONS
Plaintiff
AND:COMMISSIONER FOR HOUSING FOR THE AUSTRALIAN CAPITAL TERRITORY
Defendant
ORDER
Judge: Master Harper
Date: 10 December 2004
Place: Canberra
THE COURT ORDERS THAT:
Judgment be entered for the plaintiff in the sum of $44,000.00.
The plaintiff claims damages resulting from a needlestick injury from a used syringe on 12 February 1996. He was at that time the tenant of an apartment in Fraser Court, Kingston. Fraser Court is a large public housing complex administered by the defendant, which was the lessor of the apartment. The defendant administers the Public Rental Housing Assistance Program, a program for the delivery of housing assistance in the Australian Capital Territory by way of public rental housing. The program has legal effect under the Housing Assistance Act 1987. The plaintiff occupied the apartment pursuant to a written agreement described as an acknowledgement of tenancy, dated 4 April 1995, and I infer that he moved into occupation on about that date.
The plaintiff was born on 26 August 1954, and was forty-one at the date of the injury. He is now fifty years of age. He has been in receipt of a disability support pension for about twenty years. He was born in Canberra, and lived here until he was sixteen. His family moved to Johannesburg in South Africa at that time, and he completed his schooling there at the end of 1972. After he left school, he commenced employment with a bank as a computer operator, and passed courses in computing. When he was about twenty-five years of age, his father had a nervous breakdown, and he himself was diagnosed with schizophrenia. He was admitted to hospital and treated with electro-convulsive therapy. His recollection was that he suffered from this condition for about three years, and during this period left the workforce. In 1979, he found employment with a gymnasium as an instructor and masseur. He returned to Australia in 1981, and by 1989 was living in Canberra again. The evidence is a little vague as to what the plaintiff did during the years from 1981 to 1989. For a time he lived in Perth where he married a young lady of Italian extraction.
It does not appear that he ever succeeded in obtaining paid employment in Australia. From 1989, the Commonwealth Rehabilitation Service arranged a series of short-term unpaid placements in departments of the Australian Public Service. From August to November 1989 he worked with the Department of Social Security in a junior clerical capacity. He worked for a month with the Department of Transport and Communications at a similar level, though the evidence is unclear as to the date of this placement. In late 1995, he spent ten weeks with the Australian Protective Service, at that time a division of the Attorney General’s Department. This placement started at three days a week but was later extended to five days. The work involved maintaining a computer inventory of equipment and documentary records. He was then placed with the Department of Primary Industry and Energy for eight weeks, commencing on 20 February 1996, receiving remuneration by way of work training allowance of $92.70 per fortnight.
The plaintiff’s evidence is that on 12 February 1996, after driving home from work, he noticed some rubbish on the ground near a tree outside his apartment, including what he described as a white lolly packet. He picked up the rubbish, and in doing so he pricked his finger on a needle. He checked and found a syringe among the rubbish. He took it out, and realised that he had injured himself. He noticed a small amount of bleeding, perhaps four or five drops of blood, and a puncture wound on his finger. He went inside and washed his hand. He thought that he probably put the rubbish into a nearby hopper. He was concerned because he knew that there were drug users living in the area. He was suspicious of some of his neighbours. He described the needle as being about ten centimetres long and white in colour. He said that he took the needle inside and put it in a coffee jar where he kept it under his sink for three or four days, and then disposed of it by placing it in the rubbish hopper. He did not notice whether there was any fluid in the syringe.
The plaintiff was asked what facilities were available at Fraser Court for disposal of rubbish at the time of the incident. He explained that there were a number of large hoppers, including one adjacent to his apartment, though they were often overfilled. He was unaware of any specific containers or bins for the disposal of needles. The plaintiff had been directed on a number of occasions by a representative of the defendant, Sheila Kirk, to clean up rubbish around his apartment. He was not warned to be careful of needles, or to wear gloves, and certainly was not provided with gloves.
Needle or syringe disposal units were installed at Fraser Court within about a year of the plaintiff’s injury, including one attached to a wall a relatively short distance from the front door of the plaintiff’s apartment.
The plaintiff’s evidence in chief was that about a month and a half after the incident he developed flu-like symptoms, sweating and nausea. He went to his doctor. His symptoms became progressively worse for a time, but plateaued and improved over the ensuing years, though he never completely recovered. Other early symptoms included diarrhoea, lethargy and depression. He said that his general practitioner, Dr David Peachey of Kingston, referred him for a blood test for hepatitis C, the result of which was positive. The plaintiff became quite frightened, having heard that the disease was incurable. The plaintiff had had a friend named John Deeble who had contracted hepatitis C some time prior to the incident. He had become very ill and eventually died.
The plaintiff said that for a number of years, continuing up to the hearing, he experienced days when he was so lethargic and depressed that he was unable to get out of bed all day. He said that this happened as often as on two days in some weeks. He lived alone at the time of the incident and at the time of the hearing, though his mother occasionally assisted with his care. He complained also of occasional chest pain, and of a sensation of an unpleasant smell with no objective cause.
The plaintiff completed his placement with the Department of Social Security, but was unable to take up a subsequent placement with the Department of Primary Industry and Energy. It appears that the offer of this placement was withdrawn following the 1996 Commonwealth election and change of government. Since then, the plaintiff has done some part-time work for friends in the car trade, earning nominal cash income, below the level which might affect his disability support pension.
The plaintiff enrolled in three subjects as a part-time student in a computer programming course at the Canberra Institute of Technology during the first semester (February-June) of 1996. This might ultimately have led to the award of a Certificate in Information Technology. He said that because of his developing symptoms, he was unable to continue the course, and he wrote to the Institute discontinuing it. His evidence about this was a little vague. There was no evidence as to the length of the course or the number of subjects required to be passed in order to achieve the certificate; nor was there any evidence of the standing of the certificate for employment purposes.
Somewhat oddly, the plaintiff wrote to the defendant on 4 April 1996 in the following terms, omitting formalities:
I’d like to lodge a further complaint about the residents of Flat 47 E. They have subjected me to shouted abuse and threats. I suspect that they have tried to break into my flat and car and stolen property of mine which I have reported to the police.
Someone has thrown an unprotected needle into my flat. I cut myself on the needle and have subsequently been diagnosed with hepatitis C. I feel under threat and in some danger and if asked I would be prepared to attend court in relation to this matter. I would be grateful if you would send me a written acknowledgement.
The plaintiff agreed that he had made previous written complaints to the defendant about the residents of Flat 47 E. It emerged in cross-examination that the letter of 4 April was written the day after the plaintiff saw Dr Peachey and was informed that his blood test was positive for hepatitis C. The plaintiff adhered to his oral evidence that the needlestick injury had occurred when he picked up rubbish outside his apartment. He said that the needle incident described in the letter had not happened in that way, and he explained what he described as a mistake on the basis that he was upset, agitated and frustrated, which caused him to be confused. He had given the correct history to Dr Peachey the previous day. He was frustrated because previous letters to the defendant had brought no response. He suggested that his agitation might have been related in some way to his pre-existing or underlying schizophrenic condition.
The plaintiff said that the last time he went to the Commonwealth Rehabilitation Service and asked for a placement, some months after the February 1996 incident, he was told that there was no further money available for this purpose, and therefore no job for him. He agreed that he had been stressed by the travel from Kingston to Belconnen, where the offices of the Department of Social Security were located, and also by parking difficulties near the offices. He was also subject to stress at about that time arising from a custody dispute involving his former de facto wife.
Whilst some of the Commonwealth agencies where the plaintiff was placed provided him with good references, there were inconsistent comments made about him in internal departmental files. These included a note in August 1996 that he had been barely able to function at basic ASO1 level, and that his interpersonal skills were inadequate, reflected in such behaviour as joining other people’s conversations without permission, loudly expressing his own opinions, blurting out his personal and home problems, and staring at people so as to make them feel uncomfortable. It was clear from the course of cross-examination that the plaintiff had been unaware of these negative comments about him, and that he had been quite proud of the references he had been given at the end of his various short-term placements.
After being told that there were no funds available for further Commonwealth placements, the plaintiff said that he went to a private employment agency at Woden. His understanding was that the agency was paid, presumably by the CRS, something of the order of $2000 a year to try to find him employment. In the two years he was on its books, the agency did not contact him with any offers.
On 7 August 1994, the plaintiff’s then general practitioner, Dr Jennifer Bromley, wrote a letter to the Commonwealth Rehabilitation Service, apparently in support of an application by the plaintiff for assistance in returning to work. The letter set out a history that the plaintiff had been on an invalid pension since 1984 due to his previous psychiatric history, which Dr Bromley understood to relate to a period when he was living in South Africa and using drugs including marijuana and LSD for about three years. He had developed what he understood was schizophrenia and had electro-convulsive therapy as a hospital inpatient. Dr Bromley also referred to a family history of manic depressive psychosis. She said that the plaintiff had been attending her practice since 1989 and that during that time he had not required any medication or treatment for any psychological condition, but he had been under a lot of stress because of a custody dispute. He had previously (prior to 1989) been a patient of Dr Tony Lee, psychiatrist, and she thought that it would be helpful to obtain a comment from Dr Lee as to whether it would be wise for the plaintiff to return to work. She thought that stressors in the workplace such as working under pressure to deadlines and working with other people might adversely affect his health. Dr Bromley did not give oral evidence. I accept that the matters of history in her letter were given to her by the plaintiff. He generally accepted the contents of the letter as accurate, though he denied extensive use of LSD, conceding that he had used it no more than once. He was generally very critical of Dr Bromley writing such a letter to the Commonwealth Rehabilitation Service, seeing it as calculated to defeat his aim of obtaining employment.
Also in evidence was a note made by Dr Bromley at a consultation with the plaintiff on 26 September 1994 which included the following:
Hans says he is smoking marijuana – used to smoke in Africa because it was very cheap. Has friend John Deeble – has Hep C. No sharing of IV except once in Perth ex wife. She was heroin addict – 1981 – none since.
Counsel for the defendant cross-examined the plaintiff about this note. The plaintiff denied that he had ever shared a needle with anyone in the past. He said that his then wife was not a heroin addict. He did not recall giving the information to Dr Bromley but agreed that if it was in her notes, he must have done so. He thought that perhaps he had been trying to embellish his circumstances and had made it up. The note is cryptic and another possibility is that the information about sharing of needles referred to Mr Deeble and not to the plaintiff. I am not satisfied on the basis of the note alone that the plaintiff shared a needle with a heroin addict in Perth in 1981. He said that he asked Dr Bromley whether it would be safe to smoke a ‘bong’ with Mr Deeble, and she assured him that it was not possible to contract hepatitis C in that way. This is consistent with the balance of Dr Bromley’s note.
Documents in evidence established that the plaintiff had undergone liver function tests in November 1989 and in May 1994 which were abnormal and were consistent with the plaintiff having had hepatitis C at those times. It appears from one of Dr Bromley’s notes that she formed the view, which she conveyed to the plaintiff, in July 2000, that his hepatitis C might well have predated the 1996 incident.
The plaintiff’s first consultation with a doctor following the incident was on 21 March 1996, about six weeks later. He saw Dr Peachey at Kingston. Dr Peachey noted a right-sided earache and made no record of any complaint of a needlestick injury on that date. This was conformed by a report from Dr Peachey to the plaintiff’s then solicitors in April 1997, where Dr Peachey said:
Mr Lyons presented to this surgery on 26 March 1996 with otitis externa. As he suffers schizophrenia and had not had any screening pathology for some time, I suggested that he have him (sic) checked for hepatitis, AIDS and have other routine pathology tests. Unfortunately, this testing revealed that Hans was hepatitis C positive on 21 March. All other testing at the time (including liver function tests) were normal. As it is possible to have a ‘false positive’ result for hepatitis C, the test was repeated on 16 July 1996. This test confirmed the diagnosis of hepatitis C. By the time of the second test in July, Mr Lyons’ liver function tests were mildly abnormal. They have remained so since.
It is clear from the notes that the consultation was on 21 March and not 26 March, and that the date in the first line of the report is incorrect.
The blood test requested by Dr Peachey was carried out by Macquarie Pathology Services Pty Limited, who reported as follows:
Hepatitis C serology (HCV) results are consistent with past or recent exposure to hepatitis C virus. LFTs should be monitored over a three month period. A liver biopsy is recommended in those patients with persisting liver function abnormalities.
The next entry in Dr Peachey’s notes is dated 2 April 1996, and records the positive hepatitis C blood test result. There is a note that on the following day, 3 April, the plaintiff attended Dr Peachey’s surgery and was informed of the result of the test. The plaintiff told Dr Peachey in the course of that consultation that he had suffered a needlestick injury six weeks earlier. It appears from a letter written by Dr Peachey on 26 August 1997 to the manager of a needle exchange program in Canberra that the plaintiff gave him a history somewhat different to his oral evidence, saying that he had been collecting used syringes around Fraser Court as he was concerned that children might find them and injure themselves, and in the course of this activity, he suffered a needlestick injury. The purpose of Dr Peachey’s letter was to ask whether needle disposal units could be installed at Fraser Court, and at three other public housing complexes, to reduce the incidence of needlestick injury.
Dr Peachey did not give oral evidence. A copy of his records, which have been made available in response to a notice for production, was tendered in the defendant’s case without objection. The records included a copy of a letter from Dr Michael Craft, psychiatrist, of Surfers Paradise, Queensland, dated 21 November 1985, stating that the plaintiff, who at that date had a Gold Coast address, had been referred by his general practitioner and had brought certificates confirming that he had been under treatment in South Africa for schizophrenia between 1975 and 1981, and that he had been under treatment for the same condition by a Dr Corbett in Sydney in 1984. Dr Craft said that as a result of the history and his examination, he had no doubt that the schizophrenic process was continuing and that the plaintiff warranted an invalid pension. He said that the plaintiff was undergoing rehabilitation at Cypress Cottage Rehabilitation Unit, where Dr Craft was visiting psychiatrist, and that it was intended to continue him on Pimozide daily.
Evidence was called in the plaintiff’s case directed to the issue of whether the defendant had an adequate system for the collection of used syringes and needles. The plaintiff’s own evidence was that to his knowledge the defendant did not employ commercial cleaners. A Fraser Court resident was paid to clean the common areas. Three other witnesses were called who had been residents at Fraser Court in 1996, Ms Haines, Mr Taylor and Ms Corkery. Not surprisingly having regard to the fact that they were giving evidence of their recollection of events eight years earlier, there were some inconsistencies between them, but I find from their evidence that it was a regular occurance to find used syringes lying around the common areas of the complex, and that there were no dedicated ‘sharps’ disposal units. There were commercial contract cleaners engaged by the defendant, as well as the individual resident who did some cleaning, and at some point there was some publicity about a telephone ‘hotline’ one could call to report the location of ‘sharps’ and to request their removal.
There was a room at Fraser Court which was made available for some communal activities, including a children’s playgroup. The room was supposed to be locked when not in use, but was often unlocked and accessible. The room was used once a week by a community nurse for exchange of used for new needles, and there was a disposal unit and an open container of new needles. The needle exchange arrangement was intended to operate only on the weekly occasions when the community nurse was in attendance, but in practice, persons requiring new needles were often able to go into the room and help themselves. Two of the witnesses mentioned were parents with young children and I accept that they made complaints both orally and in writing to the defendant on a number of occasions about the problem of used needles lying about in the grounds. I also accept that it was common knowledge amongst the residents, and must have been well known to the defendant, that there were intravenous drug users resident at Fraser Court.
Mr Peter Christensen, a solicitor employed by the defendant since about 2001, gave evidence largely based on information he had obtained from a perusal of internal files. At least one relevant file was unable to be located. His evidence was that throughout 1996, Totalcare, another ACT government instrumentality, had been engaged by the defendant under contract to undertake general cleaning services at Fraser Court and at the defendant’s other public housing complexes in Canberra. Separately from this, Totalcare was engaged by the ACT Government to provide a needle collection and disposal service to the public which was available where needles were identified in public places. The common areas of Fraser Court were not a public area, and this service was unavailable at Fraser Court. However, the defendant organised with a private contractor to provide a similar ‘hotline’ service in the common areas of its housing complexes, including Fraser Court. Apparently there was a telephone number for a resident to call on finding a needle in a common area of Fraser Court. This was a different number from the Totalcare ‘hotline’ which was available to the general public and was the appropriate number to call if the needle was, for example, on a nature strip on the perimeter of Fraser Court. Mr Christensen’s understanding was that if a member of the public telephoned the inappropriate contractor having regard to the location of the needle, the contractor telephoned was expected to pass the information on to the other contractor. There is no evidence that this happened in practice. Totalcare, it should be said, was a substantial enterprise with a large number of staff engaged in many other areas of the provision of services to government in addition to cleaning and sharps disposal.
Mr Christensen gave evidence that some of the defendant’s staff who had been mentioned in oral evidence by name as having direct contact with residents of Fraser Court were no longer employed by the defendant and could not be located. He had been unable to find in the defendant’s files letters of complaint which had been referred to by some of the witnesses called in the plaintiff’s case. I am far from satisfied that the defendant’s filing system was so efficient and reliable that I should draw any inference from Mr Christensen’s evidence about this against those witnesses. On the contrary, I generally accept their evidence that complaints were made, both orally and in writing, and were not acted upon with any degree of urgency, either at the level of the individual complaint or at a policy level.
Mr Christensen had sworn answers to interrogatories on behalf of the defendant. He acknowledged that the defendant had received copies of minutes of meetings of a group of tenants known as the Tenant Participation Team in October 1993 and February 1994. The first referred to dangers to children getting into garbage hoppers due to the risk of injuries from needles and glass. The second noted a discussion as to the improper disposal of syringes, and the associated health risks. A member of the group had spoken to the area manager about the issue, and according to the minutes the ACT Government had been made aware of the problem. The meeting decided that an appropriate disposal unit was required in Fraser Court. I accept that the defendant did not act on this recommendation.
Evidence for the defendant was also given by Ms McInnes, presently the manager of the Executive Support Unit within the ACT Department of Disability, Housing and Community Services. She had been with the department since 1993, and in 1996 was an area manager with responsibility for a number of public housing complexes operated by the defendant, including Fraser Court. Her evidence was in general terms and provided useful background but did not assist in determining any of the disputed issues in this case.
Evidence supporting the plaintiff’s case was given by Daniel Smith, a close friend of the plaintiff since 1991. Mr Smith is wheelchair-bound as a result of injuries suffered in a motor vehicle accident some years ago. In 1996, he was in regular contact with the plaintiff, seeing him three or four times a week. Mr Smith was working at a service station at Kingston, and often visited the plaintiff during breaks from work. On occasions they went fishing together, and went to clubs for meals and to play snooker and darts. Mr Smith’s evidence was that he recalled that on Monday 12 February 1996, a date he had reason to remember because of other events in his life at that time, he went around at about 8.30 pm to visit the plaintiff. The plaintiff told him that he had pricked himself on the finger whilst outside picking up rubbish. The plaintiff showed Mr Smith his right ring finger, and Mr Smith saw a red dot of dried blood on it, with what he described as a little hole. The plaintiff then told Mr Smith that he had kept the syringe and put it in a jar. Later he got the jar out from under the sink and showed Mr Smith the syringe. Mr Smith said that he was familiar with the type of syringe, and recognised it as the kind regularly used by drug takers. He had seen many lying around, at Fraser Court and elsewhere. Mr Smith said that he had first been asked to recollect the events of February 1996 about six months earlier. The case had been listed for hearing in September 2003 but was not reached: Mr Smith said that he was unaware of that and had not been asked to give evidence at that time. He conceded that he had spoken to the plaintiff during the course of the hearing, but denied that he had discussed the case.
Mr Smith’s evidence appeared to me calculated to assist the plaintiff’s case to the greatest degree possible. I have some difficulty accepting that a friend, unaware at the time that the incident was likely to assume significance, would recall in precise detail a minor incident seven or eight years earlier, even to the extent of remembering which finger of which hand he had been shown. I am not suggesting that Mr Smith gave knowingly false evidence, but it seems to me inescapable that his evidence was coloured by a degree of reconstruction assisted by his discussions with the plaintiff during the months leading up to the hearing. After a period of years, it is not uncommon to have what one believes to be a genuine recollection of an event which one must later concede, faced with hard contemporaneous evidence, must have been inaccurate. I am left short of satisfaction on the balance of probabilities that Mr Smith saw the syringe and needle in the coffee jar as he now believes he did, though I accept that the plaintiff told him about his experience.
Dr Peachey referred the plaintiff to the Canberra Hospital Liver Clinic, and he attended on 1 September 2000 and saw Dr Graham Kaye, a gastroenterologist. He gave Dr Kaye a history of suffering a needlestick injury in February 1996, and of the subsequent development of an illness with nausea and general malaise about a month later, followed by a positive hepatitis C antibody blood test. He said that he had had a number of episodes of sweating, nausea and depression in the interim. He had a background of schizophrenia first identified at age twenty-five, but had not been on treatment since 1981 (this in inconsistent with the letter from Dr Craft referred to above). He gave no history of any other risk factors for liver disease. Dr Kaye accepted that the hepatitis C was a result of the needlestick injury. He arranged further tests, which showed mild disturbance of liver function and mild diabetes. His condition was stable, and his prognosis was good. Dr Kaye recommended annual liver function testing, and continuing contact with the liver clinic. He explained that the evolution of liver disease from hepatitis C was difficult to predict, but it was likely that that the plaintiff would remain stable and unlikely that he would progress to significant liver disease.
There is an incubation period of six to eight weeks after exposure to hepatitis C infection. The plaintiff had abnormal liver function tests in 1989 and 1994, but these would be consistent with a condition known as fatty liver, secondary to diabetes or steatohepatitis, or even unrecognised chronic viral hepatitis. No other blood tests were conducted between 1989 and 1996, and it is unknown whether the plaintiff would have tested positive for hepatitis C at any time during that period. Dr Kaye’s conclusion was that the needlestick injury could not be discounted as the cause of the plaintiff’s hepatitis C.
Dr Kaye gave oral evidence. He agreed that in order to contract hepatitis C, the patient needed to receive an amount of blood (or some other bodily fluid) from an infected person. He agreed that a needlestick injury alone would not necessarily transfer blood, and that many people suffer needlestick injuries without contracting hepatitis C. He agreed that the 1989 and 1994 tests showed mild but definite evidence of liver damage of a pattern classical of chronic hepatitis C infection, and that the possibility that the plaintiff had a chronic hepatitis C infection well before February 1996 could not be ruled out. He said that it was possible that an initial infection on 12 February 1996 might have resulted in a positive blood test as early as 21 March, but it would be unlikely. Dr Kaye had assumed that the first positive test was in July 1996, which he said would fit with an exposure in February of that year. He agreed that the median time for a person to become positive after infection was twenty weeks. He agreed that one would expect a bell curve around that median, with most cases close to the median and relatively fewer cases the further one departed from it. He confirmed his opinion that the plaintiff’s prognosis by the time of hearing was good. He had good liver function and a negative PCR which meant that there was no measurable hepatitis C virus.
Dr Kaye was asked about the degree of likelihood that the plaintiff contracted hepatitis C prior to February 1996, and he ultimately agreed that, taking account of the various blood tests, the infection was more likely to have been acquired before February 1996 than in that month.
The defendant qualified Associate Professor Mark Bassett, director of gastroenterology at the Canberra Hospital, as an expert witness. Associate Professor Bassett saw the plaintiff in October 2001, and obtained a history consistent with the plaintiff’s oral evidence. He asked the plaintiff whether he had seen blood in the syringe, and the plaintiff’s reply was that he could not be certain as it was a number of years ago. He had had a tattoo at age fourteen but denied any other incidents where he might have been exposed to hepatitis C. On examination he had no clinical evidence of chronic liver disease or liver failure.
Associate Professor Bassett noted that on several occasions prior to the needlestick injury, the plaintiff had had abnormal results of liver function tests. The results of November 1989 and May 1994 showed the classic pattern of abnormal liver function test seen in chronic hepatitis C infection. The results in 1996 and 1997 showed a very similar pattern. In Associate Professor Bassett’s opinion, it was probable that the plaintiff had hepatitis C in 1989 and in 1994. Other causes of the abnormalities shown in the blood tests in those years were extremely unlikely. Some other condition might in theory might have been involved but the most likely cause was unrecognised chronic hepatitis C infection. The symptoms of which the plaintiff complained did not develop until after the plaintiff had become aware of the results of the test in March 1996. The symptoms described were not typical of acute hepatitis C infection. The symptoms were consistent with the phenomenon of labelling, where a patient develops symptoms on becoming aware that a particular infection is present, despite having had the infection without symptoms for a long time before.
Associate Professor Bassett doubted that the plaintiff acquired hepatitis C from a needlestick exposure. It was quite rate for needlestick alone without direct injection of blood to transmit hepatitis C. To have injected blood, the plaintiff would have had to have pressed the plunger on the syringe, which was not suggested. The tattoo at age fourteen was a recognised risk factor for chronic hepatitis C infection.
By 1991, the plaintiff had returned a negative hepatitis C RNA test. This did not exclude the possibility that the virus might return, but at the time of the test in September 2000, there was either no virus present, or a level of virus so low as to be undetectable. There was no significant liver disease apparent. Taking these matters into account, Associate Professor Bassett concluded that the plaintiff had cleared the virus and had no evidence of continuing liver damage. Recurrence of the disease was very unlikely, and the condition could be regarded as stable. The plaintiff would permanently have antibodies to hepatitis C in his bloodstream. As a precaution, he should be assessed annually with blood tests, and counselling might be helpful. Any continuing physical symptoms of which the plaintiff complained would be unrelated to hepatitis C. Associate Professor Bassett agreed with Dr Kaye that the needlestick injury could not be entirely ruled out as the source of hepatitis C exposure, but he thought that this possibility was greatly outweighed by the probability that the infection had been acquired from some other source; and regardless of the source, the plaintiff had in any event cleared the infection. The early symptoms of which the plaintiff complained, vomiting, abdominal pain and diarrhoea were not symptoms of hepatitis C infection.
In oral evidence, Associate Professor Bassett, referring to his own experience and to published material, said that there had been no published cases of blood-borne virus transmission following needlestick injury in Australia in the general community (as opposed to injuries to healthcare workers). The risk of contracting hepatitis C from a discarded syringe could be described as negligible.
The plaintiff relies upon a report by the late Mr E A Petroni, a clinical psychologist who assessed the plaintiff in May 2000 for the purpose of a report to his solicitors. He diagnosed the plaintiff as suffering from mild to moderate depression with bouts of severe anxiety which Mr Petroni attributed to concerns about his physical health. He thought the symptoms unrelated to the plaintiff’s prior schizophrenia, which appeared to be in remission, and on the history he was given, he said that he would have to attribute the anxiety state to the needlestick injury, and to the plaintiff’s concern about its medical consequences. He advised a series of counselling sessions.
In October 2000, the plaintiff was seen, again at the request of his solicitors, by Dr Bruce Stevens, clinical psychologist. Dr Stevens saw the plaintiff again in November 2003. He prepared lengthy reports and gave oral evidence. He initially diagnosed the plaintiff as suffering from adjustment disorder with symptoms of depression and anxiety, related to concerns about his health and physical condition, and likely to persist whilst those concerns remained. He recommended a program of counselling. The plaintiff told Dr Stevens in November 2003 that he had changed his psychiatrist and had been seeing Dr Robert Tym for the previous four months. He had been advised to continue seeing Dr Tym once or twice a year. (No reports from Dr Tym, or the previous psychiatrist, Dr Tony Lee, were in evidence.) At the time of the second assessment, Dr Stevens formed the view that the plaintiff was suffering from a major depressive disorder (recurrent with mild symptoms). He told Dr Stevens that he had been informed that the hepatitis would be with him for the rest of his life and that he would die a painful and horrible death. It should be said that there was no medical evidence to support such pessimism, which is entirely contrary to the evidence of Dr Kaye and Associate Professor Bassett. Dr Stevens thought that there would not be any improvement in the plaintiff’s overall psychological condition, but that he should continue with psychiatric treatment and perhaps should be prescribed anti-depressant medication.
In oral evidence, Dr Stevens said that he assessed the plaintiff as continuing to suffer from schizophrenic disorder. He said that this was a condition one never completely got over, and that a patient always retained a level of vulnerability to the disease. This meant that the plaintiff had to be seen as potentially quite fragile. Dr Stevens accepted that the needlestick incident had been an enormously frightening experience for the plaintiff, its impact magnified by his underlying personality and psychological condition. He found on psychological testing no evidence of malingering or exaggeration, and accepted the plaintiff as genuine.
He agreed in cross-examination that he had, as he usually does, accepted the history he had been given by the plaintiff. This included an assurance that the plaintiff had always had good physical health prior to the injury. He was unaware of the plaintiff’s prior LSD use and said that anyone with any vulnerability to schizophrenia should avoid LSD. He was asked to comment on the letter written by the plaintiff to the defendant the day after his hepatitis C diagnosis. He thought that there might be an element of paranoia, which might mean that the plaintiff had not been particularly psychologically stable at the time. He agreed that the plaintiff might have been in something of a paranoid or delusional state. Delusions of persecution were quite common as a symptom of schizophrenia, and it would not be unusual for a person with a history of schizophrenia, despite apparently being reasonably stable and in a state of remission, to display some residual symptoms.
Dr Stevens agreed with Associate Professor Bassett that labelling sometimes occurs, with patients developing symptoms after being informed of the presence of an infection, despite having had the infection without symptoms for a lengthy period until then. He also agreed that many schizophrenics find it difficult if not impossible to remain in employment for any length of time.
In re-examination, he expressed the view that the needlestick injury might have led to exacerbation of the plaintiff’s psychotic symptoms, perhaps for a relatively short period.
The plaintiff’s claim against the defendant is framed in negligence. The defendant is asserted to be the owner and/or occupier of Fraser Court, and the plaintiff a tenant at the relevant time. It is alleged that the defendant knew or ought to have known that in the common areas of Fraser Court there were used syringes from time to time. The particulars of negligence pleaded are:
a.failing to ensure that all of the common areas of the premises were free from used syringes.
b.failing to heed the requests made from time to time prior to 12 February 1996 of the danger of the presence of new (sic – clearly “used” was intended) syringes in public areas of the premises.
c.failing to provide appropriate means in the public areas of the premises by which used syringes could be safely disposed of.
The plaintiff asserts that on 12 February 1996 he sustained a needlestick injury from a used syringe located in a common area of Fraser Court. Although I have some misgivings, I am satisfied on the balance of probabilities that the plaintiff injured himself in that fashion on that date. I am a little troubled by the contradictory versions, particularly the letter to the defendant of 4 April 1996, and to a lesser extent the history given to Dr Peachey that the plaintiff was actively engaged in collecting used syringes out of concern for children living at Fraser Court. However, I think that it is more probable than not that the plaintiff did injure himself in the manner he described in his oral evidence, that is, by pricking his finger on a concealed needle while picking up rubbish. Although contributory negligence is not pleaded, it was put to the plaintiff in cross-examination that he had no obligation under his tenancy agreement to clean up rubbish in the common areas. Whilst I accept that he had not contractual obligation to do so, it seems to me entirely reasonable and indeed to his credit that he took on the responsibility of doing so.
I am satisfied that the defendant knew that there were drug users living at Fraser Court. The defendant knew that an informal needle exchange service was conducted weekly on the premises. I am satisfied that the defendant knew that it was commonplace for used syringes and needles to be found in the common areas of Fraser Court, and that these presented a risk of injury to residents. It was reasonably foreseeable that a resident might suffer injury in the manner in which the plaintiff did.
Having arrived at that conclusion, I must then, in the words of Mason J in Wyong Shire Council v Shirt [1980] 146 CLR 40 at 47, determine what a reasonable man would do by way of response to the risk. As his Honour said,
The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.
There are cases where there is a foreseeable risk of injury, but the cost of alleviating action would be unjustified having regard to the magnitude of the risk. An example is Romeo v Conservation Commission of the Northern Territory [1998] 192 CLR 431, where a young woman had fallen from the top of a cliff, and the cliff was about two kilometres long, so that a fence or barrier, to be effective, would have had to be of equivalent length.
At least since the decision of the High Court in Australian Safeway Stores Pty Limited v Zaluzna [1987] 162 CLR 479, it has been accepted that the general principles of negligence apply to a claim against an occupier, so that the different levels of standard of care which previously applied at common law to different categories of entrant are no longer relevant. Since the later decisions of the High Court in Northern Sandblasting Pty Limited v Harris [1997] 188 CLR 313 and Jones v Bartlett [2000] 205 CLR 166, it can be said that in the absence of any relevant contractual provision in the tenancy agreement, a landlord’s duty of care to a tenant is to be considered by reference to ordinary principles of the law of negligence.
The High Court has also in recent years refined the principles governing the liability of a public authority to a member of the public: see, for example Romeo v Conservation Commission of the Northern Territory; Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] 206 CLR 512; Graham Barclay Oysters Pty Limited v Ryan [2002] 211 CLR 540. Those were all cases involving claims by an ordinary member of the public against a government or local government instrumentality. It seems to me that the duty of care owed by the defendant to the plaintiff in this case is of a different and more onerous nature than the duty owed, for example, by a state government department or a municipal council to a citizen. In this case the defendant was both the occupier of the land on which the tort is alleged to have been committed, and in addition the plaintiff’s landlord and the body responsible for the provision of public housing in Canberra. Taking account of the eligibility criteria for public housing, it can reasonably be said that its tenants are, as a section of the community, inherently more vulnerable than the public at large, so that its duty of care to its tenants can reasonably be seen of a higher degree than the duty which might be owed by a landlord to a residential tenant in the commercial market.
Within this framework, it is necessary to analyse the defendant’s response to the risk of injury to a tenant through a needlestick injury in the circumstances of this case. Whilst one can never be certain that a needle user might not have disposed of the needle and syringe which occasioned the plaintiff’s injury by dropping it among rubbish in one of the common areas of Fraser Court, it seems to me much more likely that the syringe and needle would have been responsibly disposed of if there were available, as became the case subsequently, sharps disposal units installed in accessible positions throughout the complex.
I am also satisfied on the evidence that, whilst arrangements were in place for Totalcare to carry out cleaning of the common areas pursuant to a contract with the defendant, these arrangements were generally inadequate. The defendant did not tender the contract with Totalcare, and there is no evidence as to the frequency of cleaning, whether that cleaning was regarded by the defendant as adequate or the degree to which the performance of the contract by Totalcare was monitored by the defendant. The only documentary evidence, a sample 1990 contract cleaning inspection report, was dated more than five years before the plaintiff’s injury, and recorded that the cleaning at that time was generally unsatisfactory and fell well below expected standards. I am satisfied by the lay evidence that as a matter of reality, cleaning of the common areas by 1996 remained unsatisfactory. I accept that the hoppers were often overfilled and that there was often rubbish on the ground in the common areas, including used needles. I am also satisfied that complaints by individual tenants, and by representative tenant bodies, about these matters were not heeded by the defendant.
It is not suggested that the installation of sharps disposal units, or the introduction and monitoring of a more frequent and thorough rubbish removal regime, would have imposed an unreasonable burden on the defendant.
For these reasons I am satisfied that the defendant failed to meet the obligations of its duty of care to the plaintiff, and that the plaintiff suffered a needlestick injury as a result of the breach of duty of care.
This brings me to damages. I accept the evidence of Associate Professor Bassett that more probably than not the plaintiff was already hepatitis C positive prior to the needlestick injury, though unaware of it and probably symptom-free. It is unnecessary for me to make any finding as to how or when he contracted hepatitis C. It may have been as long ago as when he had his ankle tattooed in Canberra at the age of fourteen. It may have been more recently and in different circumstances.
I accept that the plaintiff regarded the news that he was hepatitis C positive as terrifying, and as tantamount to a diagnosis that he was suffering from an incurable disease likely to lead to an early and painful death. Fortunately his pessimism has not been borne out: both Associate Professor Bassett and Dr Kaye, experts in the field, have expressed the view that the plaintiff has cleared the hepatitis C virus, and whilst he will require monitoring for the rest of his life, the likelihood is that he will not develop any further symptoms. It is important that this reality be conveyed to the plaintiff by his medical practitioners, to remove or reduce his anxiety for the future.
It seems to me likely that the variety of symptoms of which the plaintiff complained, and which seem to have developed from about the time when he was informed that he was hepatitis C positive, were probably due to the phenomenon of labelling; that is, they arose from his anxiety at discovering that he was suffering from a condition from which he had probably been suffering for some years without symptoms. Fortunately these symptoms have diminished very considerably as time has passed. There is no doubt that the impact of the diagnosis on the plaintiff was aggravated by his underlying personality and previous schizophrenia. Because of his prior psychiatric condition, he was no doubt much more vulnerable to the depression which ultimately developed than a man with an intact personality. In this respect the defendant must take the plaintiff as it finds him.
There is a claim for past and future treatment expenses. Some of this expense would probably have been incurred in any event, though some is probably related to the needlestick injury. The plaintiff may require some medical and psychological assistance in the future related to the tort, although the need for permanent monitoring of his hepatitis C status would have been necessary in any event. It is not possible to approach this aspect of the claim in a mathematical fashion. I allow $1000.00 for past treatment expenses, including interest, and $2000.00 for future expense.
Those representing the plaintiff make on his behalf an extravagant claim for impairment of earning capacity. A claim is made for some $185,000.00 for past loss of earnings, and more than $100,000.00 for the future. The reality is that the plaintiff had been reliant on a disability support pension for almost twenty years. He had been attempting, with the assistance of the Commonwealth Rehabilitation Service, to prepare himself for re-entry to the workforce through placements with Commonwealth instrumentalities, but I am not satisfied on the evidence that he had any prospect of being offered permanent employment in the public sector. He has since the accident been able to work sporadically for friends in the motor car trade, but has been earning amounts so low as to not interfere with his pension, either because this is the limit of his earning capacity, or from choice. I am not satisfied that the injury which the plaintiff suffered on 12 February 1996 has given rise to any compensable loss of earning capacity for the past or the future.
The plaintiff is entitled to an award of general damages for pain and suffering and loss of amenities. I am satisfied that the injury has not resulted in any loss of expectation of life. No disfigurement from the injury is claimed. There was little if any pain at the time of its infliction but I accept that the plaintiff genuinely believed that the injury had caused him devastating consequences, and that this led to physical illness as well as depression, which in some measure will continue into the future. If it had not been for the needlestick injury, the probability is that the plaintiff would never have become aware of his hepatitis C positive status, and having regard to the evidence of Associate Professor Bassett and Dr Kaye that he has cleared the virus, it is probable that it would never have resurfaced and that he would have gone through life unaware of what was probably by then a condition of theoretical rather than practical significance to him. The regular blood tests required to monitor the condition for the rest of his life are in a different category. I see it as a benefit to him that the condition has been diagnosed, and it is in his interest that it be monitored as recommended, having regard to the possibility, regarded as very low, that the virus may recur. This can hardly be laid at the defendant’s door.
It seems to me that an appropriate award of general damages for the injury and its consequences upon the plaintiff is $35,000.00, which I apportion as to $25,000.00 for the past and $10,000.00 for the future. The past component attracts interest which I award in the sum of $6,000.00, allowing for the greater impact in the period immediately following the injury.
The award is thus as follows:
General damages $35,000.00
Interest thereon $6,000.00
Past treatment expenses $1,000.00
Future treatment expenses $2,000.00
Total$44,000.00
The total appears to me to reflect an appropriate award of damages for the consequences upon the plaintiff of the defendant’s negligence. There will be judgment for the plaintiff in the sum of $44,000.00. I shall hear the parties as to costs. My provisional view is that the action was properly brought in this Court notwithstanding the amount of the award, having regard to the length occupied by the hearing and the complexity of the issues.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 10 December 2004
Counsel for the plaintiff: Mr I D Bradfield
Solicitors for the plaintiff: Capital Lawyers
Counsel for the defendant: Mr S H Pilkinton
Solicitor for the defendant: ACT Government Solicitor
Date of hearing: 22, 23, 24, 25 March 2004
Date of judgment: 10 December 2004
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