Jang v Australia Meat Holdings P/L
[2000] QSC 60
•16/03/2000
IN THE SUPREME COURT OF QUEENSLAND
REGISTRY: TOWNSVILLE
NUMBER: S21 OF 1995
| Plaintiff | PETER KEITH JANG |
| AND | |
| Defendant | AUSTRALIA MEAT HOLDINGS PTY LTD (ACN 01 062 338) |
DECISION - DOUGLAS J.
DELIVERED THE SIXTEENTH DAY OF MARCH 2000.
1. The Plaintiff is 53 years of age, having been born on 17 May 1946. He is
now unemployed and has not worked since leaving the employ of the
Defendant in 1993.
2. He has lived in Townsville for almost all of his life. In his last year of school
he contracted rheumatic fever and subsequently left school at Grade 10.
He came from a family of eight children who are closely reliant, each upon
the other.
3. He worked in various jobs over the years and eventually in 1992 obtained
employment at the Defendant's meatworks in Townsville. To begin with he
was employed there as a Trade's Assistant but preferred to do outside
work. He was offered outside work but from time to time he was called to
do work inside the meatworks. He did not like it because it was an
unpleasant sort of job and he preferred to be outside. In any event he was
from time to time called up to do work inside the meatworks and in
particular, on a number of days in what was known as the "condemned"
room, where foetuses extracted from pregnant cows were drained for theirblood for research work. He periodically went inside the meatworks to clean
up in and around the meat products. In all, he was at the meatworks for
about 12 months.
4. It is admitted by the Defendant that the Plaintiff contracted a rickettsial
disease known as Q Fever in May/June 1993 and further that the Defendant
did not vaccinate the Plaintiff during his period of employment with the
Defendant. What is not admitted is that he contracted Q Fever at the
meatworks operated by the Defendant.
5. The evidence reveals that Q Fever is a disease which is prevalent in
meatworks. It is prevalent wherever cows, sheep and goats are present
and in particular when they are being slaughtered. Indeed the evidence
revealed that the contraction of Q Fever in Switzerland, when associated
with a moving herd of cattle down a mountain, was known. In my view there
is no doubt that the Plaintiff contracted Q Fever whilst in the Defendant's
employ at the Townsville meatworks.
6. In about 1990, the Plaintiff had a number of months off work whilst waiting
for a heart valve replacement. The necessity for this heart valve
replacement was caused by the rheumatic fever which he had contracted
whilst at school. Much was made by the Defendant of symptoms which the
Plaintiff complained of prior to his contraction of Q Fever in 1993. I find that
prior to that contraction of Q Fever he had intermittent symptoms similar to
those which relate to Q Fever but which did not have the attendant result of
keeping him away from work. He had a comparatively small number of
visits to doctors before his infection with Q Fever as compared with
afterwards, and he had virtually no prescription medicine prior to the
infection with Q Fever. He did take, as Dr Hunter recorded, soluble aspirinsfrom time to time, but had no other medications and he could work, did
work, and did not have any time off.
7. Clearly after the infection he could not work. I am of the view that the only
conclusion open to me is that his incapacity which followed the infection
with Q Fever in 1993 rendered him incapable for work. The question is for
how long did it render him so incapable?
8. In December 1999, the Plaintiff was in hospital to have his heart valve
replaced. A question to be decided in this case is whether or not that heart
valve was replaced because of the onset of Q Fever endocarditis or
because of a natural deterioration in the valve which had been inserted in
1991.
9. It appears to me that in this respect there are two questions. Firstly, does
the Plaintiff have a post-Q Fever Fatigue Syndrome and, if so, how long did
that last, or does it still exist and continue, and second, did the Q Fever lead
to his endocarditis.
10. So far as Q Fever endocarditis is concerned, Dr Marmion, an expert in the
field of Q Fever, took the view eventually that the replacement cardiac valve
operation in 1999 was made necessary because the Plaintiff did contract Q
Fever endocarditis. In his view, he is challenged by the view of Professor
Whitby. In coming to his conclusion that it did, Professor Marmion relied
upon some PCR testing which is ongoing. However it is important to note
that other testing which was done between 1993 and 1999 did not confirm
the existence of Q Fever endocarditis. In the end, I am of the view that it
has not been proved on the balance of probabilities that the Plaintiff's 1999 valve replacement operation was due to the onset of Q Fever endocarditis.
I prefer the view of Professor Whitby in this regard.
11. The question remains whether that really matters.
12. Professor Marmion is of the view that post the contraction of Q Fever, the
Plaintiff contracted Q Fever Fatigue Syndrome and that that syndrome
continues. I accept his evidence in that regard. It follows that the Plaintiff
has since 1993 been unable to seek and obtain employment because of his
ongoing Q Fever Fatigue Syndrome.
13. It is clear on the evidence that by 1989 a vaccine to prevent the contraction
of Q Fever was commercially available. Prior to that time there was a
vaccine which was being tested. It is also clear from the evidence that Q
Fever was a disease which was well known in abattoirs in the sense that
those employed in abattoirs were exposed to the risk of contracting it. The
evidence also reveals that by 1992 the Defendant had set up through its
employee, one Jones, a consultation process to determine whether the
entire existing workforce of the Defendant should be vaccinated against the
disease. The vaccination process was one where the intended recipient of
the vaccine was first tested for immunity from the disease and if not
immune, then vaccinated. There were between 1992 and 1994 protracted
negotiations between the Defendant, the relevant unions, the relevant
employer groups, and medical professionals including Professor Marmion.
By 1994, the Defendant agreed to put in place a process whereby those
members of the workforce employed by it, who were not otherwise immune
to Q Fever, would be vaccinated as a term of their employment. It became
known as a "no jab, no job" programme. One of the reasons why the
consultative process took so long was a scepticism both at the employer and the employee level as to the efficacy of the vaccine which was to be
used. There were some indications that it was not effective or had some
deleterious side effects. In any event I am satisfied that it was reasonable
of the Defendant not to put in place a general vaccination programme for its
existing workforce before 1994.
14. However, before the Plaintiff first applied for employment with the
Defendant, the Defendant considered it necessary to place a warning on its
employment application forms as follows:
"Zoonotic diseases.
The company take this opportunity to inform you that there are diseases that can be contracted from animals that are slaughtered in abattoirs. These diseases are commonly referred to as zoonosis diseases. Infection from these diseases can be minimised by simple hygiene procedures. Thoroughly wash your hands on leaving any work stations. There are wash stations in every workplace and you are required to make use of these facilities. Avoid splashing in processing areas. Clothing worn during any processing should be washed separately from those worn at home. Any cut, scratch or abrasion must be reported to the medical centre immediately for attention. By following the above procedures, the risks of contracting zoonosis diseases will be minimised".
15. As Kirby P (as he then was) said in Mihaljevic -v- Longyear (Aust) Pty Ltd
(1985) 3 NSWLR 1 at 11,
"The scope of the duty owed by an employed has been stated many
times. But, however restated, it amounts to no more than the obligation
to take reasonable care to avoid exposing the employee to anunnecessary risk of injury".
His Honour made reference to Ferraloro -v- Preston Timber Pty Ltd (1982)
56 ALJR 872 at 873 and the judgment of Brennan J (as he then was) in
Kondis -v- State Transport Authority (1984) 58 ALJR 531.
16. Accepting, as it did, the need to warn prospective employees of the
prospect of contracting zoonotic diseases, the Defendant however failed to
warn in particular of the well-known disease Q Fever. By the time the
Plaintiff completed each of his application forms, the Defendant knew of the
fact that Q Fever was endemic in abattoirs and that there was a vaccine
which could prevent its contraction. It chose not to warn prospective
employees of that particular danger and the means by which it could be
avoided. It is well decided that the failure to warn against an obvious risk
constitutes a lack of reasonable care. See for example, Suosaari -v-
Steinhardt [1989] 2 QdR 477.
17. The next question is to decide what would have happened had the
Defendant warned the Plaintiff that he was, if employed by the Defendant,
in danger of contracting Q Fever but that there was a vaccine which could
prevent that. I find that the Plaintiff was a man who was particular about his
health. He consulted doctors regularly and took preventative measures to
ensure his good health such as being vaccinated against the flu virus
annually. I also find that had the Plaintiff been warned appropriately he
would have consulted his GP who could have explained to him the fact that
Q Fever was endemic in abattoirs and could have obtained the necessary
vaccine for him. In this regard, I rely upon the evidence of Dr Pietzsch and
Ms Hanrahan. I am appreciative of the fact that Professor Marmion did say
that at the appropriate time the vaccine would not have been available to
GPs. However I think by that he meant that it was not readily available
unless asked for. The evidence of Dr Pietzsch reveals that by 1992 at least
the vaccine was published in the Guide to Vaccines used by all GPs and
could have been obtained by him or any other GP in the Townsville area if required. Although the vaccination process was complicated it could have
been performed in Townsville by that time.
18. I find that had the Plaintiff been appropriately warned, he would have
consulted his local GP and would have been vaccinated before he took up
employment with the Defendant.
19. There was evidence about whether or not a face mask could be used in the
context of an abattoir. Two types of face masks were identified in particular.
One was face enveloping and involved the use of oxygen canisters and
filters. The other was a paper or cloth face mask. In my view, it would have
been inappropriate in the circumstances to use the former. The latter,
however, may have provided some protection in certain circumstances.
However a discussion of their usefulness in preventing the contraction of Q
Fever becomes academic once it is established that the Plaintiff could have
been safeguarded by an appropriate warning which would have led to his
vaccination in any event. I find therefore that the Defendant was negligent
in failing to warn the Plaintiff as a prospective employee of the fact that Q
Fever was endemic in abattoirs but that there was a vaccine which could
prevent its contraction and that he ought to seek advice in that regard from
his general practitioner.
20. The Defendant by its Further Amended Defence dated 29 February 2000
sought to set up a defence of contributory negligence. It was based upon
the following particulars:
(a) failing to have any or any proper regard for his own safety; (b) failure to take any or any adequate precautions for his own safety; (c) continuing to work at the Defendant's premises when he knew or ought to have known that he was at risk of contracting Q Fever which
could result in complications to his aortic valve replacement.
21. I find that none of those particulars have been made out and do so
particularly bearing in mind that the Defendant failed to advise the Plaintiff
that Q Fever was one of the zoonotic diseases indicated in its warning on
the employment application form. In any event, since the decision in Astley
-v- Austrust Ltd (1999) 73 ALJR 403 contributory negligence is not a
defence to an action of this nature, brought as it was both in negligence and
in contract.
22. Again, by the Further Amended Defence, the Defendant set up a counter-
claim for damages for breach of contract relying upon the same particulars.
In this regard, I have been referred to the decision in the District Court of
Judge McGill in Jones -v- Persil & Co (1998) 20 QLD Lawyer Reps 55. I am
content to adopt His Honour's learned reasons in that case in concluding
that no action for damages for breach of contract lies against the Plaintiff in
this case.
23. So far as damages is concerned, I find that the Plaintiff suffers from and will
continue to suffer from Post Q Fever Fatigue Syndrome. He has blinding
headaches and is often completely exhausted. He feels completely drained
of all energy and ability to function. He is depressed and describes his life
since developing Q Fever as a nightmare. His headache is such that it is
continuous. When he wakes in the morning he has a headache and usually
starts the day with a couple of Panadeine just to obtain relief. He says that
he seems to spend his days trying to ensure that the headache just stays
down to a dull ache. He cannot drink alcohol because it makes him sick
and he feels lethargic and tired. He has a constant sense of bad taste in hismouth and as a result does not enjoy food as it tends to taste bland. He
has constant colds and flu and always feels sniffly. He has stomach pains
and diarrhoea about once a month and has a loss of libido. He has recently
married and has an understanding wife.
24. His social life is interfered with in the sense that he tends no longer to go to
race meetings, grow flowers, fix cars and mix with his family. He describes
himself as a person who used to be up and running very quickly in the
morning and off to work. He says he enjoyed life and had an interest in it.
He says that he now finds that he cannot do that and it takes him so long to
do anything and it does not give him the pleasure that it used to. He feels
like a broken man. Those symptoms of which he complains are supported
by the medical evidence.
25. In all the circumstances I assess general damages at $50,000. I apportion
$25,000 of that to the past in respect of which interest thereon at 2% for 6.6
years is $3,300.
26. The Plaintiff's claim for past economic loss is based upon a net loss of
$368.90 per week. The evidence does not reveal that the Plaintiff would
necessarily have earned that amount. He did change jobs from time to time
and did take breaks from employment. In my view it is appropriate to adopt
a figure of $300 a week for the past. In doing so I propose to apply a
discount of 20%. The resultant figure is $82,368. Interest thereon at the
agreed rate of 5% net of WorkCover payments of $19,220.32 at 5% per
annum for 6.6 years is $20,838.70. Past loss of superannuation at the
agreed rate of 6% on net past loss is $3,788.87.
27. So far as the future is concerned, there must firstly be a discount in any
event for an earlier retirement from the work force due to the Plaintiff's need
to have occasionally, or at least once more, a heart valve transplant which
might not succeed. In their submissions, counsel for the Plaintiff adopted a
40% discount for the future being a purchase period of 11 years to age 65.
I am of the view that such a discount is appropriate. However again, I feel
that the weekly loss should be $300 rather than the $368.90 submitted by
the Plaintiff's counsel. Accordingly I allow the sum of $79,938 being 11
years (444.1) at $300 per week discounted by 40%.
28. I find that the balance of the schedule of damages submitted by the
Plaintiff's counsel is made out by the evidence and I accordingly allow the
following sums.
Special damages:
(a) paid by the Workers' Compensation Board $7967.52
(b) paid by the Plaintiff (i) medical expenses $3,992.60
(ii) pharmaceutical expenses $3,800.00 (iii) travelling expenses $195.00 (iv) interest thereon at 5% for
6.6 years $1582.00
Total: $17,537.14 Griffiths & Kerkemeyer damages: (i) past $3,432.00 (ii) interest thereon $453.00 (iii) future $6,660.00 Total $10,545.00 Future expenses: (i) medications $13,328.00 (ii) medical treatment $3,332.00 Total $16,660.00 Fox -v- Wood component $3,445.90 Future loss of superannuation (at the agreed rate of 7%) $5,595.66 29. I therefore assess the Plaintiff's damages at $290,571.37. The charge in
favour of WorkCover is $30,633.74.
30. Accordingly I give judgment for the Plaintiff against the Defendant in the
sum of $259,937.63 together with costs including reserved costs (if any) to
be assessed.
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