Knight v CPSM Pty Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Knight v CPSM Pty Ltd [2021] QCA 199

PARTIES:

MEGAN HAZEL KNIGHT

v
CPSM PTY LTD
(appellant)ACN 145 835 981
(respondent)

FILE NO/S:

Appeal No 2501 of 2021
DC No 4874 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


District Court at Brisbane – [2021] QDC 3 (Sheridan DCJ)

DELIVERED ON:

17 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

13 August 2021

JUDGES:

Morrison JA and Boddice and North JJ

ORDERS:

1.   The application to adduce further evidence is refused.

2.   Appeal dismissed.

3.   The appellant pay the respondent’s costs of the appeal on the standard basis.

CATCHWORDS:

TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – CAUSATION – AT COMMON LAW – FAILURE TO TAKE PRECAUTIONS, WARN, INFORM ETC – where the appellant was employed by the respondent as a personal care assistant at an aged care facility – where the appellant was exposed to the chemical Didecyldimethylammonium Chloride (D4) during her employment – where the appellant alleges that exposure to the chemical Didecyldimethylammonium Chloride (D4) caused her personal injury – whether the learned primary judge erred in dismissing the claim

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, applied

COUNSEL:

The appellant appeared on her own behalf
O K Perkiss for the respondent

SOLICITORS:

The appellant appeared on her own behalf
BT Lawyers for the respondent

  1. MORRISON JA:  Ms Knight was employed by CPSM Pty Ltd (CPSM) as a personal care assistant on a casual basis, working at a facility known as Mount Coolum Aged Care.

  2. She commenced working at the facility in about 2010.  CPSM had purchased the facility from the previous owner and Ms Knight, who had worked there for the previous owner, became an employee of CPSM.

  3. Ms Knight’s duties included serving meals to residents and cleaning up after meal service.  As with other carers, she worked in conjunction with the domestic staff and the cleaners, assisting those staff at mealtimes.  That assistance included cleaning the dining tables and servery at the end of mealtime.

  4. Spray bottles containing a diluted chemical known as D4 were used during cleaning.[1]  The pure form of D4 was classified as a hazardous chemical according to the Australian Safety and Compensation Council’s criteria, and at the relevant time was the subject of a Material Safety Data Sheet, which had been issued on behalf of the manufacturer and supplier.  That data sheet was on a wall displayed in the cleaners’ room where the raw chemical was kept at the facility.

    [1]The full name is Didecyldimethylammonium Chloride.

  5. The cleaners were responsible for diluting the D4 into spray bottles.  The cleaners’ rooms were located in the facility and each of several connected hostels.  The spray bottles and other cleaning products were kept on cleaning trolleys, which were used by the cleaners as they moved around the facility.

  6. In about September 2013 Ms Knight began to experience intermittent headaches when D4 was used in her presence, or when she walked…

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Details
Case
[2021] QCA 199
Decision Date

CaseChat Overview and Summary

Knight v CPSM Pty Ltd is a case concerning a claim of negligence brought by Ms Knight against her former employer, CPSM Pty Ltd, an aged care facility. Ms Knight alleged that her exposure to the chemical Didecyldimethylammonium Chloride (D4) during her employment resulted in personal injury, specifically Multiple Chemical Sensitivity (MCS). The primary dispute in the case was whether the learned primary judge was correct in dismissing Ms Knight's claim, primarily on the grounds of causation.

The primary legal issue the court had to address was whether Ms Knight had successfully established a causal link between her exposure to D4 and the symptoms she claimed to suffer from. The trial judge had rejected Ms Knight's evidence and preferred that of expert witnesses called by CPSM Pty Ltd. Ms Knight argued that the trial judge erred in her assessment of the evidence and in her findings on causation. The court was required to examine whether the trial judge's conclusions were supported by the evidence and whether there was any error in the application of the legal principles concerning causation.

The court found that the trial judge's conclusions were supported by the evidence presented. The judge identified several deficiencies in the medical evidence provided by Ms Knight's experts, particularly Dr Oliver, including the lack of direct examination of Ms Knight, reliance on self-reported symptoms without independent verification, and inaccuracies in the understanding of the chemical's properties. The court held that the trial judge was entitled to prefer the evidence of CPSM Pty Ltd's witnesses over that of Ms Knight's experts. Furthermore, the court concluded that even if Ms Knight could prove a breach of duty, the failure to establish causation meant her claim would still fail. The appellate court found no error in the trial judge's reasoning and dismissed the appeal.

The orders of the court were to refuse the application to adduce further evidence, dismiss the appeal, and order Ms Knight to pay the respondent's costs of the appeal on the standard basis. The court emphasised the importance of the trial judge's ability to assess witness credibility and the appellate court's limited role in overturning such findings unless they are clearly erroneous or based on incontrovertible facts.

Orders

Orders of the court

1. The application to adduce further evidence is refused.

2. Appeal dismissed.

3. The appellant pay the respondent’s costs of the appeal on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The medical evidence called at the trial can be separated into two compartments. First, there are the doctors who gave evidence about whether Ms Knight was suffering from conditions caused by her exposure to the chemical D4. Specifically, the doctors dealt with whether she had been correctly diagnosed as suffering from Multiple Chemical Sensitivity (MCS) due to her exposure to D4. The second compartment consisted of the evidence from two psychiatrists as to whether Mr Knight was suffering from a psychiatric condition caused by her exposure to D4.Evidence from Dr Oliver Dr Oliver, a physician with expertise in occupational and environmental medicine, was called by Ms Knight. Dr Oliver had made a diagnosis, first recorded in a report in March 2018, that Ms Knight was suffering from MCS caused by her exposure to D4 at the facility. The learned trial judge summarised the evidence of Dr Oliver, noting a number of features which led her Honour to ultimately reject Dr Oliver’s evidence:(a)Dr Oliver had not examined Ms Knight;(b)in her report in March 2018 when she made her first diagnosis, Dr Oliver referred to telephone conversations with a Dr Gupta (a specialist GP who had treated Ms Knight and also made a diagnosis of MCS), and reports by Dr Gupta and Dr Higgins (Ms Knight’s treating GP since May 2015);(c)neither Dr Gupta nor Dr Higgins were called as witnesses in the trial, and Dr Gupta’s reports were not admitted into evidence; the report of Dr Higgins was admitted into evidence, but not as proof of its contents;[19](d)in her March 2018 report Dr Oliver had referred to materials she had reviewed including emails from Ms Knight detailing her symptoms; those emails were not identified in the report but were provided after an adjournment; the emails detailed the symptoms Ms Knight claimed to be experiencing; at the time of providing the 2018 report, Dr Oliver wished Ms Knight “good luck in Court”;[20](e)Dr Oliver gave a second report in 2019, confirming her diagnosis of MCS; however, the report did not justify, by reference to Ms Knight’s history, symptoms or clinical course, the basis for her conclusion that Ms Knight fitted the criteria for MCS;[21](f)neither the 2018 nor 2019 report identified the symptoms relied upon for the diagnosis;[22](g)in her oral evidence Dr Oliver said the symptoms she relied on were headaches, fatigue, loss of concentration and breathing difficulties; however, it became apparent that Dr Oliver depended upon Ms Knight’s self-report of those symptoms, without any testing or challenging of them by Dr Oliver;[23](h)Dr Oliver regarded D4 as a hazardous chemical and that inhalation of it posed a great threat to health; however, Dr Oliver did not refer to any literature or research to support that assertion;[24](i)during the course of her oral evidence it became apparent that Dr Oliver misapprehended the dilution rate of D4 in the form in which it was used; she understood the solution to contain five per cent of the product whereas the solution contained no more than 0.04 per cent of D4; notwithstanding that significant difference, Dr Oliver said it would not change her opinion, saying it would “not be unexpected that [Ms Knight] would have a reaction to more dilute product”; however, no attempt was made to explain the basis for that conclusion;[25] and(j)Dr Oliver did not accept that D4 was commonly found throughout the world or used in general household cleaning products; that was contrary to the evidence of other witnesses, particularly those from the supplier of D4.[26][19]Reasons below [235].[20]Reasons below [234].[21]Reasons below [236]-[239].[22]Reasons below [240].[23]Reasons below [241]-[244] and [251].[24]Reasons below [245].[25]Reasons below [246].[26]Reasons below [248].

Decision

Reasons for decision

The consequence is that even if Ms Knight could prove a breach of duty in a form that would advance her case, it would fail at the point of proving causation. That position applies even if Ms Knight could successfully attack the findings rejecting her evidence and preferring that of the witnesses for CPSM. In other words, an essential component of succeeding in the claim simply cannot be proved. The findings by the learned trial judge in that respect cannot be shown to be an error.Conclusion and orders In the result, the consequence is that the appeal must be dismissed. I propose the following orders:1.The application to adduce further evidence is refused.2.Appeal dismissed.3.The appellant pay the respondent’s costs of the appeal on the standard basis. BODDICE J: I agree with Morrison JA. NORTH J: I agree with the reasons of Morrison JA and the orders proposed. It was open to the trial judge to hold that the appellant had not proved a breach of the duty of care her employer owed her. The findings quoted by Morrison JA demonstrate why that was so and why, as Morrison JA observed, “the evidence did not establish a causal link between the use of D4 and the symptoms of which [the appellant] complained.” For the reasons given by Morrison JA the appellant’s challenge to the findings made by the trial judge fails. I agree, for the reasons given by his Honour, that the application to adduce further evidence should be refused and that each of the grounds of appeal are either misconceived or lack merit.

Ratio Decidendi

Legal Principle Established

No special circumstances can be shown to warrant the grant of leave in respect of any category of evidence sought to be adduced. That application should be refused.Grounds of appeal - consideration The notice of appeal contains a number of grounds attacking, in general terms, the learned trial judge’s preference for the evidence of some witnesses over the evidence given by Ms Knight. Those grounds confront the principles with respect to the appellate procedure laid down in Fox v Percy.[44] Where facts are undisputed an appellate court will often be in as good a position as a trial judge to decide what inferences should be drawn from those undisputed facts. However, where trial decisions are affected by the judge’s impression about the credibility of witnesses, an appellate court must respect the advantages of the trial judge who is able to see the witnesses whereas the appellate court is not. The mere fact that a trial judge necessarily reaches a conclusion favouring the witnesses of one party over the witnesses of another does not, and cannot, prevent the performance by the Court of Appeal of the functions imposed on it by statute. However, in some particular cases it may be that incontrovertible facts or uncontested testimony demonstrate that the trial judge’s conclusion is erroneous, even when it is based on credibility findings. Thus, the High Court said:[45]“[28] Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.[29]That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must ‘not shrink from giving effect to’ its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.”[44](2003) 214 CLR 118, at 126-129 [25]-[31].[45]Fox v Percy at [28]-[29]; emphasis added; internal citations omitted.