Orr v Burkhan Pty Ltd

IN THE MAGISTRATES’ COURT OF VICTORIA
AT BALLARAT
WORKCOVER Division of court

Case No. L12935303

DARREN ORR	Plaintiff
v
BURKHAN PTY LTD	Defendant

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MAGISTRATE:	M A HOARE
WHERE HELD:	Ballarat (via WebEx)
DATE OF HEARING:	24 – 26 November 2021
DATE OF DECISION:	11 February 2022
CASE MAY BE CITED AS:	Orr v Burkhan Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VMC 5

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WORKERS COMPENSATION – Rejection of claim – Cleaner undertaking cleaning duties of public toilets – Two claimed incidents of needlestick injury - Human immunodeficiency virus (HIV) diagnosis - Whether injury in the course of or arising out of employment – Whether disease contracted in the course of employment - ‘Injury’ - ‘Disease’ - Whether employment a significant contributing factor – Capacity - Credit of the plaintiff – Workplace Injury Rehabilitation and Compensation Act 2013, ss 3, 39(1), 40(3)(b).

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APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Ms S Bailey	Stringer Clark
For the Defendant	Ms M Tsikaris	IDP Lawyers

HER HONOUR:

Introduction and Overview

1 From November 2018, Mr Darren Orr, the plaintiff, was employed by Burkhan Pty Ltd as a cleaner of public toilets in and around the City of Ballarat. Mr Orr claimed he had contracted human immunodeficiency virus (HIV) from one or either of two needlestick injuries that it was alleged he suffered while carrying out his cleaning duties. He also claimed consequential psychiatric injury.

2 Mr Orr claimed that two incidents involving needlestick injuries had occurred in the course of his work approximately nine weeks apart: on 1 April 2020 (‘the first incident’ originally claimed as 27 March 2020) and on 6 June 2020 (‘the second incident’).

3 Relief is sought under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘the Act’) in respect of two WorkCover claims, both rejected, as follows:

a. A claim for ‘needlestick injuries’ and ‘HIV positive’ dated 7 July 2020 (‘the first claim’) for dates of injury 27/3/20 and 6/6/20 and rejected by notices dated 5 August 2020 and 6 October 2020.

b. A claim for ‘needlestick injury to right hand’ dated 21 December 2020 (‘the second claim’) relating to date of injury 1/4/20 and rejected by notice dated 20 January 2021.

By way of Amended Notice of Defence dated 24 August 2020, Burkhan Pty Ltd (‘Burkhan’) denied the claims on grounds that: no injury had been sustained; employment was not a significant contributing factor to any injury or disease; he was not incapacitated; or, any such incapacity, did not result from nor was materially contributed to by employment.

5 Burkhan also relied on statutory defences under s.20(8) of the Act in relation to the delay in lodging the claims and relating to the plaintiff’s failure to report the first incident.

Evidence of Mr Orr

Background and History

6 Mr Orr is 56 years of age. After year 11, he did an apprenticeship in radio-communications in the Army. Thereafter, he worked in a wide variety of jobs including as a production worker, photocopy technician, welder, cleaner and part-time private investigator. In 2016, he obtained a certificate IV in disability support. Before commencing with Burkhan, he was a cleaner at Edenhope hospital.

7 By way of prior medical history, in 2006, there was a left arm injury and, after a motor vehicle accident injury in 2009, he underwent cervical fusion spinal surgery. Mr Orr had chemical dermatitis from a previous workplace.

8 Mr Orr agreed with the extensive prior history of workers compensation claims put to him in cross-examination. In 1995, he received workers compensation for a back injury. In 1997, for the chemical dermatitis, he received weekly payments of compensation for two years and common law damages. In 2006, a WorkCover claim for a back injury was investigated, but no compensation was paid. In 2007, there was a neck injury in a work-related motor vehicle accident for which he received weekly payments of compensation. In 2012, he had the cervical fusion resulting from the motor vehicle accident for which he was paid medical and like expenses.

9 In May 2005, Mr Orr had a test for HIV which was negative. Under cross-examination, he said he took the 2005 test because he wanted to get checked due to an ex-partner being an intravenous drug user.

Also, in cross-examination, Mr Orr was taken through the clinical records from his usual GP practice where he had been a patient since 2004. Mr Orr did not dispute that he had presented with some frequency for skin infections, abscesses and cellulitis in 2016 and from around April 2018.

On 15 June 2018, Mr Orr attended his GP and asked for blood tests for hepatitis and HIV because of concerns that his former partner was an intravenous drug user. However, at that time, Mr Orr did not go through with those blood tests.

Employment with Burkhan

On 5 November 2018, Mr Orr began with Burkhan as a casual cleaner of public toilet blocks. He usually worked about 36 hours a week. He did induction and training which involved a week of accompanying other cleaners on their cleaning runs.

In cross-examination, Mr Orr agreed he was familiar with the ‘Orientation/Information Booklet’ which was provided on induction and he had signed an acknowledgement of that. He was taken to two specific sections of the booklet.

Firstly, under ‘Incidents/Accidents and Medical Treatment’, employees were informed of the need to complete an incident/accident form within 24 hours or as soon as possible after any occurrence. Mr Orr agreed he was aware of that requirement.

Secondly, under ‘Needle Stick/Hazardous Waste Procedure’, staff were informed of the risks of encountering needles, of needlestick injuries and blood spillage. There was information about the process to follow to reduce the chances of being pricked with a needle and what do if they found a used syringe. Mr Orr said he either didn’t know or didn’t recall that section.

In cross-examination, as for equipment provided, Mr Orr denied that cleaners were provided with disposable gloves as well as outer gloves. Because of his dermatitis, he purchased cotton gloves himself and wore them under the outer gloves. The employer also provided metal tongs used to pick up sharps if they were noticed in the course of a cleaning job.

First Incident

On a date that Mr Orr initially claimed was 27 March 2020 (later claimed as 1 April 2020), he did two shifts for Burkhan working alone as usual. The first was from 4:00 am to 1:00 pm, then he did an afternoon shift from 3:30 pm.

On the afternoon shift, he had to clean the toilet block in the Big W carpark. He saw a plastic bag of clothes which he grabbed with one hand. He felt a sharp pain in the right palm of his hand. When he took his glove off, he saw blood on the palm of his hand. He opened the bag and saw two syringes with needles. He felt a cold feeling all over his body and immediately ‘shut down’. He felt panicked and could not breathe. He had pain in his chest. He sat down on one knee and struggled to get back up again. He wanted to ring somebody as he was crying and very upset. He got his phone out and then put his phone back as he was too upset to see properly.

Eventually, he washed his hand and put the bag in the bin. He sat outside for a while before finishing off cleaning the toilet block. He then continued on his usual run and completed his shift.

He did not report the incident to anybody. As to why he did not report the first incident, he was scared and in shock. He didn’t know what to think. He pretended it didn't happen and hoped it would go away. He was not in the right state of mind, he was stressed and thinking about preserving his life and being safe.

In cross-examination, he was questioned about why if he thought the incident was so serious, he made no report of the first incident that day, the next day or at any point until after the second incident had occurred. He agreed he was aware of the reporting policy, but he just wasn't thinking about that.

In cross-examination, Mr Orr agreed that he also made no mention of the first incident to his partner, Ms Frehley, until after the second incident. He agreed they had a close relationship and lived together. She also had part-time employment with Burkhan and they talked about work especially out of the ordinary things. Nevertheless, he didn't tell her about the first incident. When asked why not, he said ‘because I just didn't’.

It was put to Mr Orr, in cross-examination, that the reason he hadn't told Ms Frehley about the first incident was because it didn't happen. Mr Orr denied that, saying it did happen but because of his fear and feelings of being overwhelmed, he didn't tell anyone.

Mr Orr said another reason for not reporting the first incident until after ceasing work was because ‘when you did report, you get the blame’. That happened one time when he had an infected cut on his hand, and he kept working because they were short-staffed. He did report that incident to his GP who told him to get proper gloves. He passed that onto the boss, Ms Paton, but she said she couldn't get supplies.

In-cross examination, Mr Orr said there were several periods when there was a lack of gloves. He and other cleaners had the same problem, and all approached Ms Paton who said because of the cost she couldn't get more gloves. Ms Paton denied there was ever any issue with glove supplies.

Mr Orr kept working his normal hours and usual cleaning runs, although with difficulty as his mental health was impacted and he felt anxious, moody, forgetful and had a fear of the unknown. He felt very upset going to work, but he had to keep going. He did not seek any medical assistance.

These mental health difficulties had then continued on to the current day ever since the time of the first incident.

In cross-examination, he was asked why, given his prior experience with WorkCover claims, he kept on working rather than going off work. Also, given his evidence regarding his level of distress, he was asked how he coped with performing the very same cleaning run the next day and subsequent days, including the Big W toilet block, according to the employer’s records. Mr Orr said he had no choice as he needed the money and he needed the job.

Between the first incident and the second incident, Mr Orr thought his mood may have improved a bit.

In cross-examination, Mr Orr agreed that the changes to his demeanour and mental state were such that they would have been apparent to people around him in the period between the first and second incidents.

Second incident

On 6 June 2020, Mr Orr began work at 3:30 pm and was working alone as usual. His cleaning run on this day included the public toilet block in the Coles carpark. Whilst cleaning that toilet block, he picked up a blue toilet tissue box with his right hand. He felt a prick immediately. He then saw the box contained a needle which had pierced the glove into his middle finger. He saw something on his skin, although no blood. He finished the job and completed his usual run returning the van to the depot.

In cross-examination, he agreed that his reaction to the second incident was different to the first and was not as bad. However, the second incident did bring memories of the first incident flooding back.

After he finished his shift, he rang his supervisor, Mr McCurdy, and told him that he had suffered a needlestick injury into his finger during the shift. He wanted to do something this time because he had had enough. Mr McCurdy told him that Ms Paton needed to know what happened.

In cross-examination, Mr Orr was asked why, given his evidence that the memories of the first incident had flooded back after the second incident, he did not mention the first incident to Mr McCurdy when he rang him. Mr Orr could not explain this, other than his focus was on what had just happened.

Mr Orr spoke with Ms Paton the same evening and told her about the second incident. She was concerned and told him to attend the hospital about it.

In cross-examination, Mr Orr could not say why he did not tell Ms Paton about the first incident other than he was not thinking straight.

Mr Orr attended Ballarat Health hospital that evening. A history was taken of a needlestick injury that day whilst working as a cleaner in toilets at Coles. On examination, a small pinprick was noted on the middle finger. He was given a tetanus shot and blood tests for Hepatitis B, Hepatitis C and HIV. He was told to see his GP. Ms Frehley came along to the hospital for support.

In cross-examination, Mr Orr agreed that the initial triage referred to the fourth finger but later referred to the middle finger. There was a detailed medical history taken. Mr Orr disagreed with the proposition that this was an opportunity to disclose the first incident which was clearly relevant. Mr Orr said that he didn’t tell them, so it wasn’t relevant.

On 8 June 2020, he saw his usual GP, Dr Chowdhury. Mr Orr was cross-examined in relation to the clinical note of that attendance which referred to the hospital discharge summary of 6 June 2020. The note recorded: ‘doing well’ with nil acute physical symptoms after injuring the right index finger and results were pending.

On 9 June 2020, Mr Orr attended the workplace and completed a report of the second incident in the employer’s registry of injury.

After the second incident, Mr Orr felt a big change in himself including increased confusion, anxiousness, depression and sleeplessness.

Human immunodeficiency virus (HIV) diagnosis

Following his discharge on 6 June 2020, Mr Orr received two phone calls from hospital informing him that he had tested positive for human immunodeficiency virus and he should attend his GP.

On 20 June 2020, Mr Orr saw Dr Chowdhury for counselling regarding the HIV positive result. The history recorded him feeling frustration, being upset with the employer and describing the Coles toilet block as high-risk site because there were used needles everywhere. The further history recorded was of never having used drugs, no history of sexual activity outside of his relationship and no acute physical concerns. The notes also recorded that he presented on this day crying and upset. Dr Chowdhury provided a medical certificate for stress leave.

In cross-examination, Mr Orr was asked about why he had talked to his GP about the second incident, but not the first incident. He denied it was because the first incident didn't happen.

In cross-examination, Mr Orr agreed he was a long-standing patient at the practice from 2004 including throughout all his Workcover claims and other issues. He also agreed he had seen Dr Chowdhury many times and felt free to talk to him, yet made no mention of the first incident.

Also on 20 June 2020, Mr Orr called Ms Paton and told her of the HIV positive result and that he was awaiting a confirmation result. He was told by Ms Paton that his employer would support him and not to worry.

In cross-examination, Mr Orr said he could not recall what was discussed in a further phone call from Ms Paton on 25 June 2020. He could not recall her saying that initial results were sometimes wrong and also that it took weeks or even months for HIV to develop or show up in the body.

Mr Orr was then cross-examined about a phone call with Ms Paton on 27 June 2020 when he told her of the positive HIV test being confirmed. He agreed that it was on this call that he told her of the first incident for the first time. He told her he had been too scared and upset to report it sooner. Also, he had felt Ms Paton was blaming him for the second incident because he picked up the box with his hand and he had felt sort of crushed.

Mr Orr was distressed, upset and in shock. Dr Chowdhury put him off work as he was in shock and he never went back to work for Burkhan.

WorkCover Claims and Subsequent Events

After Mr Orr lodged the first claim, he was informed that the claimed date of 27 March 2020 could not be correct. He had struggled to work out the correct date, knowing it was at the start of the COVID-19 pandemic and Mr McCurdy was on leave and stranded overseas. He had also rung the council for the dates of the first lockdown.

He then worked out the first incident’s correct date was actually on 1 April 2020. That was by checking the dates on which he had done two shifts. He then lodged the second claim for the first incident with the correct date of 1 April 2020.

Mr Orr did not resume work after the second incident. As for what stopped him returning to work after that, he felt like he could not function. He felt panicky, emotional and fearful of another incident. He could not think straight and felt stressed and down. His sleep was poor and Dr Chowdhury prescribed sleep medication. He was referred to a psychologist, Dr Henderson, whom he saw via tele-health.

From late November 2020, Mr Orr began working as a personal care attendant in an aged care village in Ballarat. He did three or four shifts per week and the shifts were 6 to 8 hours long. He felt this work was safer and avoided the risk of what happened to him with Burkhan. He loved the aged care job, but it became too much and he was pulled up for forgetting things. He felt exhausted and withdrawn after finishing a shift.

In May 2021, Mr Orr stopped that work because his mind was not right to cope with the stresses of work. He has not returned to any work since that time.

Subsequently, he and Ms Frehley moved to Queensland with his son to have a fresh start and to do something new. Since the move he has felt somewhat better, but still feels affected by what happened to him with Burkhan. He had applied for jobs, but not in cleaning.

In cross-examination, Mr Orr said he had made an effort to obtain work in Queensland, but had not had any interviews.

As for his mental health currently, he still felt anxious, emotional and was easily overwhelmed. He no longer took sleeping tablets as he found they made him feel drowsy.

Other matters

In cross-examination, Mr Orr was asked whether he agreed that in March or April of 2020, he was aware of the importance of reporting workplace injuries. He said a number of times that he was aware of that requirement ‘in normal circumstances’.

In cross-examination, Mr Orr was asked about how frequently he would see Ms Paton and Mr McCurdy around the depot which he said was from time to time before or after shifts.

He was asked about his attendance at the staff OHS meetings. He disagreed he attended these regularly and only went to about two because of when they were scheduled. He received an email afterwards with minutes of what was discussed.

Mr Orr was cross-examined about an occurrence at work on 5 June 2020 (the day before the second incident). He recalled Ms Paton calling him on around 11 June 2020 about the occurrence after she was contacted by the City of Ballarat. What happened was that a woman complained to the council about Mr Orr opening the cubicle toilet door on her. He explained to Ms Paton that he did so inadvertently as the woman had left the door unlocked. After that, he heard nothing more. Mr Orr denied feeling troubled by that complaint or worrying his job was at risk.

Ms Frehley’s evidence

Ms Kelly Frehley, a security guard by occupation, was Mr Orr’s partner and they were living together in Queensland. They had known each other for about 25 years and been intimate partners for about four years. She had also been employed as a casual cleaner for Burkhan up until about two weeks after Mr Orr stopped working there.

As for whether Ms Frehley had noticed any change in Mr Orr in about April 2020, she had felt something was wrong as he seemed ‘a little bit off’. But he just brushed her off when she asked him what was wrong.

Ms Frehley recalled meeting Mr Orr at the hospital on 6 June 2020 after he phoned her to say he had suffered a needlestick injury to his hand. He seemed very upset and stressed. Then, while waiting for confirmation of the test result over the next few weeks, he remained anxious.

Following the confirmed diagnosis, he was more anxious and stressed. He was sleeping poorly and was crying a lot. It was after the confirmed the HIV diagnosis that he told her about the first incident. He had explained he hadn’t told her sooner because he didn't want to face reality.

From what she observed, Mr Orr did not seem to cope well with the aged care work.

Ms Frehley agreed she was aware of the tests Mr Orr had requested in June 2018.

Ms Paton’s evidence

Ms Margaret Paton was the HR administrator and also owner of Burkhan for the past twenty years.

When Mr Orr began working for Burkhan on 5 November 2018, he went through induction. This included going over the ‘Orientation and Information Booklet’ and signing an acknowledgment of having read it. Training involved shadowing an experienced cleaner for about a week on the cleaning runs. Equipment provided included gloves. Mr Orr used two sets of gloves, a cotton pair because of his dermatitis and an outer pair.

Mr Orr's performance was satisfactory, and he cleaned the toilets well. He could be forgetful at times.

Every four to six weeks, informal information meetings were run by the supervisor, Mr McCurdy, for staff to chat and go over OHS issues. As Ms Paton didn’t attend them herself, she couldn’t say whether Mr Orr ever raised any issues in these sessions.

In cross-examination, Ms Paton disagreed that Mr Orr would have only attended two of these meetings. He was a very conscientious employee and she thought he would have attended most of them.

Ms Paton recalled the phone call with Mr Orr on the evening of 6 June 2020 when he told her about a needlestick injury on his shift that day. He said he ‘barely felt it’ and was fine, but he was annoyed it happened. Ms Paton told him to attend the hospital and to do an incident report at work after the weekend.

On 11 June 2020, Ms Paton was contacted by the City of Ballarat regarding a complaint by a woman using the public toilets when Mr Orr had walked in on her. She spoke to Mr Orr who explained he hadn’t expected to anyone to be in there and the door hadn’t been locked. The City of Ballarat then advised they would not take the matter any further and there was nothing further heard about it.

On 20 June 2020, Mr Orr called her to say he had tested HIV positive. He seemed shocked and Ms Paton tried to console him, saying she believed initial results could be wrong and to have the confirmation test. This time Mr Orr told her that the needle had gone ‘right into the bone’ of his finger whereas in the previous phone call he told her that he ‘barely felt’ the pin-prick. Mr Orr said he had a medical certificate putting him off work for a week.

On 25 June 2020, Ms Paton phoned Mr Orr and he told her that he was OK, but anxious. She told him what she had learned from a medical person she had spoken with about HIV. The first thing was that virus did not live on the needle for a very long, maybe 30 seconds. Also, she told him that if there had been an exposure, the virus took weeks or months to show up in the body.

On 27 June 2020, Mr Orr rang her to say his HIV positive result was confirmed. He was very upset and shocked. He also told her for the first time about a previous needlestick injury in the Big W carpark toilet block. He explained he had not told anyone or done an incident report because he was too shocked.

Ms Paton could not recall anything about Mr Orr’s demeanour that was out of the ordinary in the period of April and May of 2020.

In cross-examination, Ms Paton agreed that Mr Orr did the cleaning runs alone and there was nobody with him at the time of either of the incidents. As for how much time she spent in the presence of Mr Orr between 1 April 2020 and 6 June 2020, that would have been about twice a week at the depot.

As for availability of gloves, Ms Paton could not recall any times when there were shortages of gloves and, although another manager was responsible for ordering supplies, there were always ‘boxes and boxes of gloves’ there. In response to a specific question, she could not recall the business being impacted by any shortages of gloves due to the COVID-19 pandemic.

In cross-examination, Ms Paton agreed that the reason that the ‘Orientation and Information Booklet’ contained specific information on needlestick injuries was because such events were a real risk for cleaners.

In re-examination, Ms Paton said Mr Orr was made permanent part-time on 2 June 2020 (just before the second incident). She also said there were some weeks Mr Orr would say he would be unavailable to be on the roster because of his work as a private investigator.

Mr McCurdy’s evidence

Mr Paul McCurdy, a supervisor/toilet cleaner, had been with Burkhan since March 2013 and in a supervisory role for most of that time. He had trained Mr Orr when he first started. Induction included going over the ‘Orientation and Information Booklet’.

As for training, new employees would shadow other staff including himself on the cleaning runs. Mr McCurdy gave instructions on using gloves, looking out for needles and using tongs when picking up rubbish. Also, the work vans had syringe disposal containers in them.

As for how often he would see Mr Orr around the depot, they might see each other at the start or end of shifts. He could recall Mr Orr turning up at the lunchtime staff meetings but couldn’t say how often and didn’t recall him raising any issues at these catch ups.

As for the phone call from Mr Orr on 6 June 2020 in which he reported a needlestick injury in the toilets in Coles carpark, Mr McCurdy could remember telling him to go the hospital and to ring the boss (meaning Ms Paton).

Prior to 6 June 2020, he could recall no incidents or complaints about Mr Orr’s work. There was nothing he could recall by way of observing any changes in Mr Orr’s demeanour between March and 6 June 2020.

Medical Evidence

Dr Azam Chowdhury, treating GP, completed a practitioner questionnaire dated 17 July 2020 and reports of 5 October 2020 and 23 August 2021. He completed a DHS Notification of Infectious Disease dated 7 July 2020. The history was of a needlestick injury after picking up a plastic bag containing a needle whilst working as a cleaner. There was no other risk factor for the infection noted. The diagnosis was HIV. In October 2020, and also in August 2021, Mr Orr was unfit for pre-injury or suitable employment due to his condition. He was referred to a HIV specialist (Dr Pickett) and a psychologist. Mr Orr would not be fit for work till there was further recovery and his active infection was a risk to others. As Mr Orr had relocated to Queensland, there had been only telehealth consultations.

In examination in chief, Dr Chowdhury stated he had qualified as a GP in 2014 and, before that, he worked in hospitals in psychiatry and emergency medicine. Mr Orr had been a patient at his clinic since 2004 and first been treated by him in 2016. In 2005 he had tested negative for HIV. There was a request in 2018 to be tested for HIV because of concerns about a former partner, but that had not been followed up. Dr Chowdhury was not sure why. He continued to provide certificates of incapacity for work based on both his physical and mental condition.

In cross-examination, Dr Chowdhury agreed that, from around 2016 there were recurrent episodes of cellulitis which he said were in the context of the contact dermatitis. As for recurring infections in 2018, these were unsurprising for a cleaner and were topical rather than systemic. Dr Chowdhury disagreed that the recurring infections and cellulitis were signs of compromised immunity. Dr Chowdhury said that cellulitis is a bacterial infection whereas HIV is viral. He disagreed that Mr Orr had been immuno-compromised before and said people got infections regardless of whether they have HIV. He conceded that he would defer to the opinion of an infectious diseases’ specialist.

In cross-examination, Dr Chowdhury was asked about the process of seroconversion (when body produces anti-bodies in the blood serum) after infection with HIV with signs of seroconversion being flu-like symptoms and lethargy. Dr Chowdhury agreed that did happen, but not always. He disagreed that signs of compromised immunity (such as fatigue and insomnia) were necessarily indicators of seroconversion as people presented with these signs for different reasons.

Dr Chowdhury was cross-examined on the records of attendances on Mr Orr between 1 April 2020 and 6 June 2020. On 4 April 2020, he presented for a flu vaccine with nil acute symptoms. On 14 May 2020, the reasons for contact were the prior cervical fusion, insomnia and the dermatitis. As for there being no recorded reference to mental health issues on these dates, Dr Chowdhury said appointments were too brief for an assessment of mental health without a specific complaint.

In cross-examination, Dr Chowdhury conceded that he was unaware Mr Orr was working in aged care between November 2020 and May 2021 as Mr Orr had never mentioned it to him. Had he been made aware of it, it would have changed his current opinion on capacity.

Dr Claire Pickett, a physician with the Ballarat Community Sexual Health Clinic, prepared a letter of 22 September 2020 and reports of 26 September 2020 and 23 June 2021. The diagnosis was HIV. The history given at Ballarat Health emergency was of a needlestick injury that day whilst cleaning toilets in the course of work. The further history was of the June 2020 needlestick injury bringing back memories of a needlestick injury earlier in the year. He had been shocked, but ‘soldiered on’. As for capacity for work, the condition had resulted in severe deterioration in mental health for which he was under the care of a psychologist. He had severe anxiety near the location and avoided going there. That was why he had started work in the care sector. HIV would have ramifications for life and would require management through life-long medication.

Dr Joe Sasadeusz, infectious diseases physician, provided a medico-legal report dated 23 July 2020 for the Agent. The history was of a needlestick injury on 27 March 2020 whilst working as a cleaner, after which he kept working without telling anybody. There was a further needlestick injury on 6 June 2020 after which he made a report to his manager and attended the hospital. There had never been a HIV test in the past. He gave a history of being in long-term relationships with no sex outside those partnerships, of never having sex with men, never injecting drugs nor blood transfusions and not having sex nor medical treatment overseas. As for causation, that was incredibly difficult to tease out. The likelihood of HIV transmission from needlestick injury was incredibly low but not impossible. It was estimated it would be a chance of one in 10,000. That estimate was based on the likelihood of a needle being contaminated with HIV infected blood being around 1% based on figures of the prevalence of HIV in an Australian injecting drug use population. Then, the likelihood of actual transmission from a known contaminated needle was around 1%. It would also assume Mr Orr was indeed working on 27 March 2020 which he noted was contentious given the time-sheet. Mr Orr was physically well, save for the psychological trauma associated with the HIV diagnosis. Otherwise, Mr Orr had a full capacity to work.

Dr Rasanjali Rathnayake, consultant psychiatrist, prepared two medico-legal reports for the Agent dated 22 July 2020 and 31 March 2021. The history was of two needlestick injures, firstly on 27 March 2020 and then on 6 June 2020, and of then testing positive for HIV. Mr Orr felt the employer was unsupportive. He reported feeling anxious, irritable, having disturbed sleep, poor concentration and forgetfulness. On examination, insight and judgement were not impaired. Attention, concentration and short-term memory appeared intact. The diagnosis was an adjustment disorder with anxiety. Symptoms were persistent and mild and of a sufficient level to constitute a diagnosable psychiatric condition. It was a new condition with no reported past psychiatric history and no non-work-related factors. There was no capacity for pre-injury duties due to the psychological condition and employment was a material contributory factor to that incapacity.

A/Prof Justin Denholm, infectious diseases physician, prepared a medico-legal report of 12 June 2021 for Mr Orr’s solicitors. There was a needlestick injury on 1 April 2020 which Mr Orr had initially reported having occurred on 27 March 2020 cleaning toilets near the Big W store. He reported feelings after this of being distressed and overwhelmed, crying and not thinking straight. He finished his shift, did not report that incident nor seek medical attention. There was a needlestick injury on 6 June 2020 in the public toilets near Coles after which he presented at the local emergency department. Testing was arranged, resulting in the diagnosis of HIV. Mr Orr reported a psychological impact from the diagnosis but no physical impact. As for causation, he opined that the HIV infection was not acquired from the needlestick injury on 6 June 2020. That was because the time for tests to become positive after infection is typically a minimum of four weeks after HIV infection up to several months. Therefore, the testing on 6 June 2020 which was diagnostic of HIV established that infection occurred at least several weeks prior. The timing could not be firmly established more precisely other than it was sometime after the negative test recorded in 2005. Based on Mr Orr’s history of the 1 April 2020 needlestick injury and given his report was clear and consistent, he opined that Mr Orr’s HIV infection was acquired through the needlestick injury on that date at work. He agreed with Dr Sasadeusz that the likelihood of HIV acquisition from needlestick injury in Australia was extremely low. Nevertheless, it was plausible that HIV transmission could have occurred in this way. Whether it was most likely depended on other possible opportunities for exposure. Mr Orr had denied HIV testing between 2005 and 2020 and denied other risk factors such as blood transfusion, unprotected sex in high HIV risk settings or intravenous drug use. As for capacity, Mr Orr had physical capacity to perform pre-injury duties as a cleaner, but as for the psychological impact of the diagnosis, he deferred to the opinion of a psychologist and psychiatrist. HIV infection was not curable and ongoing treatment and life-long review would be needed.

Analysis

The legal and evidentiary onus of proof rested with Mr Orr to establish, on the balance of probabilities, an entitlement to compensation in accordance with the Act.

In essence, this case turned on whether the incidents on 1 April 2020 (originally claimed as 27 March 2020) and/or on 6 June 2020 occurred as Mr Orr alleged or not. Further, even if it were found that either or both incidents involving needlestick injury did occur, Mr Orr had the burden of establishing on the balance of probabilities a causal relationship between employment and the diagnosed disease of HIV (and his claimed consequential psychiatric injury).

100 Of course, it was not for the Court to decide when, where or how Mr Orr sustained HIV, but merely to make determinations in relation to the claims before it, which were the subject of notices of decision of the Agent.

The definition of ‘injury’ in s.3 of the Act includes ‘disease’, which itself is a defined term.

Counsel agreed that s.40(3)(b) was applicable to a consideration of the causal relationship between employment and ‘disease’. S.40(3)(b) provides that there is no entitlement to compensation unless employment was a ‘significant contributing factor’ to ‘a disease contracted by a worker in the course of the worker’s employment (whether at, or away from, the place of employment’.

Accordingly, the first threshold was for Mr Orr to establish he had ‘a disease contracted by a worker in the course of the worker’s employment (whether at, or away from, the place of employment’.

In determining whether employment is a ‘significant contributing factor’ to a worker’s injury or disease, the Act sets out mandatory considerations in Clause 25 of Schedule 1.

In examining the medical evidence, I am guided by the well-known principles set out by his Honour Justice Bell in Pulling v Yarra Ranges Shire Council.[1] In particular, I note the obligation to examine the whole of the medical evidence even where it may have been undermined by other evidence, including evidence that the worker may not have been fully frank with a doctor.[2]
[1] [2018] VSC 248 at [50] to [55]
[2] Ibid at [50]

I now turn to the evidence and submissions.

The thrust of the defendant’s case was simple. There had been no injury or disease contracted in the course of employment. The first incident had not occurred at all. The second incident, if it had occurred, could not be, and was not in fact, productive of HIV.

In considering the evidence, it is convenient to first make findings regarding the second incident (which was reported initially) and then regarding the first incident (which was reported after the second incident).

Second incident

The weight of the evidence supports a finding that the second incident occurred, as claimed by Mr Orr, on 6 June 2020 whilst performing cleaning duties in the public toilets in the Big W carpark. Both Ms Paton and Mr McCurdy gave corroborative accounts of Mr Orr reporting the second incident the same day. His contemporaneous account of the second incident was recorded in the Ballarat Health Casualty triage notes on 6 June 2020. Whilst there was minor confusion between the presenting complaint referring to the ‘to 4^th finger’ and the more detailed history of ‘a sharp prick to ‘the middle finger, proximal phalanx R hand,’ the evidence was that on examination a pinprick is observed on that section of the middle finger.

For these reasons, I am satisfied, on the balance of probabilities, that the second incident occurred on 6 June 2020 involving a needlestick injury to Mr Orr’s right middle finger in the course of his employment.

Having made that finding, I turn to the question of whether the second incident was productive of the claimed disease of HIV.

Of course, as Counsel for Burkhan defendant submitted quite correctly, even finding (as I have) that the second incident occurred, Mr Orr’s case as to causation and HIV was not made out.

On causation, the Court had the benefit of two infectious diseases specialist physicians, A/Prof Denholm and Dr Sasadeusz. There was also the evidence of the treating GP, Dr Chowdhury to which I will return although he said in examination-in-chief he would defer to the expertise of the infectious disease specialists.

I consider the opinions of A/Prof Denholm and Dr Sasadeusz to be highly persuasive on the issue of causation and disease transmission given their considerable expertise and knowledge.

In medical terms, Dr Sasadeusz assessed the likelihood of HIV transmission from needlestick injury as ‘incredibly low but not impossible’. He estimated the likelihood of HIV transmission from needlestick injury as a chance of one in 10,000 based on statistical analysis of likely needle contamination and the prevalence of HIV in Australian injecting drug-use population. That analysis was endorsed by A/Prof Denholm, who provided a medico-legal opinion for the plaintiff.

However, on the question of whether second incident was, or could have been, actually productive of the HIV infection detected in testing on the same date, A/Prof Denholm went beyond a statistical estimate. He opined resoundingly that it did not and could not. That was because of the period of time it took for tests to become positive after infection which was typically a minimum of four weeks up to several months. Accordingly, it followed that the testing conducted on 6 June 2020 that was diagnostic of HIV established that infection occurred at least several weeks prior. Moreover, A/Prof Denholm observed that the testing could not firmly establish the timing of infection any more precisely than sometime after the negative HIV test in 2005.

In response to the issue of a work relationship and the HIV infection, Dr Sasadeusz also opined that for the disease to be contracted in employment, that assumed Mr Orr was indeed working on 27 March, a fact he noted was contentious. Whilst Dr Sasadeusz does not specifically say so, he appears to be of the same view as A/Prof Denholm that infection had to have occurred at least some weeks prior to (and not on the day of) the diagnostic testing of 6 June 2020.

Accordingly, whilst my finding is that there was a needlestick injury on 6 June 2020, I accept the expert medical opinions of the two infectious diseases specialists that HIV was not contracted by Mr Orr on 6 June 2020 in the course of his employment.

First incident

In relation to the first incident, Counsel for Burkhan submitted that it just did not happen at all. The first incident was a later invention by Mr Orr for the purpose of attributing the HIV diagnosis to his employment with Burkhan and to succeed in claiming compensation. Mr Orr’s evidence lacked credibility and was entirely unreliable.

On the other hand, Mr Orr’s Counsel submitted that it was completely far-fetched for the defendant to contend that Mr Orr arrived at a sophisticated plan to concoct the first incident. Further, it was ‘stretching a very long bow’ to say that he did that purposefully to overcome what he found out from Ms Paton on 27 June 2020. On that date, Ms Paton had shared with him her understanding that there was a time lapse of at least a matter of weeks between HIV infection showing up and the exposure. According to his Counsel, at that time after learning of the diagnosis, the evidence was that Mr Orr was extremely anxious and nervous and simply not in the frame of mind to come up with such a story.

It would also require, it was submitted by Mr Orr’s Counsel, a level of sophistication that a man such as Mr Orr would be unlikely to possess being not particularly eloquent nor highly educated.

Counsel for Mr Orr submitted that the simple fact was that Mr Orr was a genuine person who worked alone without any witnesses or anyone to corroborate (or for that matter dispute) his evidence as to what happened during his toilet cleaning runs. Weighing the whole of the evidence, Mr Orr’s account about the first incident was consistent, plausible and likely. There was a credible explanation for the delay in reporting relating to his understandable fear and anxiety.

Whilst it was conceded, in submissions for Mr Orr, that Dr Sasadeusz and also A/Prof Denholm assessed the likelihood of HIV infection from a needlestick injury as being chance of 1 in 10,000 and ‘incredibly low’, it was nevertheless possible. Importantly, A/Prof Denholm, having given the question of causation careful consideration, accepted that based on Mr Orr’s ‘clear and consistent’ account of the first incident, it was indeed ‘plausible’ that HIV transmission could have occurred in this way.

Mr Orr gave a credible explanation, it was submitted, for why he simply told no one including his partner about the incident. He was frightened about the potential consequences. Moreover, if Mr Orr had really set out to concoct a story, it would have been relatively simple for him to say that he told Ms Frehley at the time and have her corroborate that.

Certainly, the central (but not the only) attack on Mr Orr’s credit related to the first incident and whether or not it had happened at all. The thrust of the attack related to the absence of any contemporaneous report or any complaint until after the second incident and after he had ceased work.

The authorities are clear as to the critical importance of the plaintiff’s credit in cases of this kind as was recently observed by the Court of Appeal in Johns v Oaktech Pty Ltd[3].
[3] [2020] VSCA 10 at [76].

Mr Orr therefore had the burden of persuading me that his account, including of the first incident, was credible and reliable. The medical practitioners’ opinions were also premised on the accuracy of Mr Orr’s accounts to them.

Mr Orr was cross-examined at length on the circumstances of the first incident and his reasons for his failure to either report, or complain of, the first incident immediately afterwards or at any time up until the telephone call with Ms Paton on 27 June 2020.

Mr Orr’s evidence in chief regarding the first incident included a vivid and dramatic account of an immediate emotional and physical reaction to being pricked by a needle. He described having ‘a cold feeling all over’ and his body ‘shutting down’. He had chest pain and could not breathe. He struggled to get back up from a kneeling position. He described such a state of distress and upset that he could not even see the keypad numbers on his mobile phone to a make a call.

It seems to me that, if that were a true description of how Mr Orr reacted to the first incident, then his evidence as to the course of events afterwards is rather perplexing and, to my mind, somewhat implausible. Mr Orr’s evidence was that, soon after being in that state of extreme distress, he carried on cleaning that toilet block and completed the rest of his cleaning run.

Indeed, in cross-examination, Mr Orr conceded he carried out the identical cleaning run (including the same Big W toilet block) the very next day and on subsequent days (according to the employer records).

Beyond that day, Mr Orr continued to perform his normal duties and hours for the next nine or so weeks. This was in spite of his evidence that following the first incident, he was very emotional and felt upset going to work. His focus was ‘preserving his life’ and ‘being safe’. Again, if that evidence were accepted, it strikes me as improbable that Mr Orr took no steps to share his safety concerns with his employer (or at the very least, to share his fears with his partner or his GP, a matter to which I will return).

This was partly explained by Mr Orr by referring to a culture of blame at Burkhan which he wanted to avoid and also that he would have been unsupported by his employer. He gave a somewhat vague example of a time when he kept working despite an infected cut on his finger saying, ‘when you did report, you get the blame’.

To my mind, that evidence is contradicted by Mr Orr’s own evidence about what happened when he did report the second incident to Ms Paton, whom he conceded was ‘concerned’. As for a culture of blame, on a different matter, the evidence was that his employer was notified of a potentially serious allegation by a member of the public by the City of Ballarat. On Mr Orr’s own evidence, Ms Paton accepted his explanation that it was inadvertent without demur and nothing came of it.

However, even if it were accepted that was some reluctance to report the incident to the employer, the further question is why Mr Orr did not share his fear and concern to ‘preserve his life’ with his intimate partner, Ms Frehley, or his GP Dr Chowdhury with whom he had an established clinical relationship.

Mr Orr described his relationship with Ms Frehley as being a close one, they lived together and his evidence was that they talked about work ‘especially out of the ordinary things’. Nevertheless, Mr Orr never told her until after the second incident.

Having the benefit of observing Mr Orr while he was giving evidence to the Court, I formed the view that, on contentious matters, he was frequently uncooperative, and his responses were evasive or lacked directness. That was particularly evident under cross-examination regarding the failure to report the first incident and not complaining or disclosing it to his partner or GP. For example, when pressed in cross-examination about why he had not told Ms Frehley given the closeness of their relationship, he said, ‘because I just didn’t’. Another example was when being cross-examined about his awareness of the requirement to report injuries, his response was defensive and indirect, stating a number of times, he was aware of the requirement to report ‘in normal circumstances’.

At other times, Mr Orr’s evidence seemed to me to be exaggerated or embellished on the matters in dispute, as I have observed in relation to his both his immediate reaction to the first incident and his state of mind in the weeks afterwards.

Following the second incident, by contrast, Mr Orr conceded, under cross-examination, that his reaction that time was ‘different to the first’ and ‘not as bad’. However, in what struck me as a rather colourful account, he gave evidence of his ‘memories of the first incident flooding back’ when the second incident occurred. Yet, despite evidence of being flooded with memories of the first accident, it seemed to me to entirely contradictory and improbable that Mr Orr then failed to mention to report the first incident in any of the numerous opportunities to do so that followed:

·In the telephone call with Mr McCurdy on 6 June 2020.
·In the telephone call with Ms Paton on 6 June 2020.
·In the history given at the hospital on 6 June 2020, when he otherwise does give a history of his 2006 left brachial plexus injury and of otherwise being ‘fit and well’. In another example of a frankly uncooperative and defensive response to a question in cross-examination, Mr Orr disagreed with Counsel that the presentation at the hospital was an opportunity to disclose a prior and recent needlestick injury. His response was to that was: ‘I didn’t tell them, so it was not relevant’.
·On 8 June 2020, when he saw Dr Chowdhury to discuss the pending test results after his discharge from the hospital emergency department.
·On 9 June 2020, when he attended the employer’s premises to fill out a registry of injury form regarding the second incident.
·In an apparently lengthy counselling session with Dr Chowdhury on 20 June 2020 including a detailed discussion about the risks of needlestick injuries in his work and there being ‘needles everywhere’ in the Coles toilet-block. There was also a detailed history of risk factors relevant to the HIV diagnosis in response to Dr Chowdhury’s questioning. This included never having been a drug-user and of no sexual activity outside his relationship yet includes no mention of another needlestick injury some ten weeks beforehand (nor of his June 2018 concerns about the risk of HIV infection because of his ex-partner’s intravenous drug habit a matter to which I will return).
·In the telephone calls about the HIV diagnosis with Ms Paton on 20 June 2020 and on 25 June 2020 (which is when she gives him some further information regarding timing of exposure to HIV infection)002E

Weighing the whole of the evidence, particularly Mr Orr’s evidence, I formed the impression that he was not a truthful or credible witness. It seemed to me, as I have observed, that his answers were often either uncooperative or even deliberately misleading in order to advance his interests.

I now turn to the evidence of Ms Frehley which I consider lacked impartiality and to which I attribute minimal weight given her intimate relationship with Mr Orr. I do not agree with the submission of Mr Orr’s Counsel that his account was lent credibility by reason of Ms Frehley not saying she had been told at earlier time. Ms Frehley did attempt to corroborate Mr Orr’s evidence of him having an altered emotional state after the first incident. I do not accept that evidence as credible and prefer the evidence of Ms Paton and Mr McCurdy who observed no change in Mr Orr over the weeks between 1 April 2020 and 6 June 2020.

I formed a generally favourable impression of Ms Paton. She made a number of concessions against interest such as that Mr Orr’s performance was satisfactory, and he cleaned toilets well. She also described him as ‘very conscientious’ when asked whether he would have attended the staff meetings and she had accepted his explanation about the allegation made by the member of the public. She also conceded that needlestick injuries were a very real risk for the cleaners. It is true that she was slightly self-serving on some aspects of her evidence such as that there were ‘boxes and boxes’ of gloves. On the whole, however, I accepted her evidence as credible and reliable. To the extent there was any inconsistency, I therefore, as I have said, prefer her account to Mr Orr’s.

For example, I accept Ms Paton’s evidence that Mr Orr did embellish his account of the second incident between the phone calls of 6 June 2020 when he had said he ‘barely felt’ the pinprick and 20 June 2020 when he described the needle going ‘right to the bone’.

Mr McCurdy was also a credible and straightforward witness whose evidence did not add a great deal to that of Ms Paton but nevertheless he answered questions directly. I accept his evidence that there was no discernible alteration in Mr Orr’s demeanour or conduct at work between 1 April 2020 and 6 June 2020.

As I indicated previously in these reasons, apart from making no report or complaint to his employer about the first incident, it seems to me to be a matter of considerable difficulty in terms of credibility that Mr Orr did not share his fears about a needlestick injury with his long-standing GP. Under cross-examination, Mr Orr had agreed that he felt ‘free to talk Dr Chowdhury’. That certainly seemed apparent on 18 June 2018 when, as I have observed, Mr Orr expressed his worry to Dr Chowdhury about his former partner’s activities and asked for blood tests including for HIV.

It is also perplexing that, given the nature of the relationship, Mr Orr would not have talked to Dr Chowdhury between the first and second incidents when he was apparently very emotional and intent on ‘preserving his life’ and ‘being safe’. The evidence was that Mr Orr attended Dr Chowdhury on two occasions between these dates: on 4 April 2020, for a flu vaccine; and, on 6 June 2020, for various reasons including insomnia.

I now turn to the evidence of Dr Chowdhury whose opinions were subject to cross-examination.

Under cross-examination, Dr Chowdhury was asked to explain why he thought the attendances on 4 April 2020 and 6 June 2020 contained no reference to mental health given Mr Orr’s evidence about his state of mind in this period. Dr Chowdhury said the attendances were too brief for assessing mental health unless there was a specific complaint of low mood. I accept Dr Chowdhury’s evidence in that regard, but it nevertheless does not explain why Mr Orr did not himself raise a major health worry that impacted on preserving his life when he had a similar such discussion in June of 2018.

It seems to me that Dr Chowdhury was very much endeavouring to be an advocate for his patient when he disagreed with the proposition that the various presentations for cellulitis, infections and abscesses in 2016 and 2018 were in no way indicative of a compromised immune system. At the same time, he conceded that he would defer to the expert opinion of a specialist in infectious diseases.

Dr Chowdhury also stated that Mr Orr had given a history to him of ‘there being no other risk factor for the infection’. In that regard, I can only assume that Dr Chowdhury had overlooked the history given by Mr Orr on 18 June 2020 regarding the activities of his ex-partner.

Finally, Dr Chowdhury’s reports seem only to make reference to the second incident and do not really deal with the issue of the first incident (reported later in time).

Dr Pickett does not add much in relation the question of causation, but she appears to have accepted Mr Orr’s account of the second incident ‘bringing back nagging and uncomfortable memories’ of the first incident.

As I have already stated in these reasons, I have not found Mr Orr to be a witness of truth and he has not persuaded me of the accuracy of his accounts to the doctors.

For example, A/Prof Denholm’s opinion that it was plausible and that he accepted that HIV transmission could have occurred in the course of his employment was conditional. He said: ‘Whether it was most likely depended on other possible opportunities for exposure’. Most importantly, A/Prof Denholm had no history of the ex-partner being an intravenous drug user.

Counsel for Burkhan submitted that it was extremely significant that Mr Orr’s first report of the first incident occurred in the phone call to Ms Paton on 27 June 2020. That was after she shared with him her understanding that HIV infection takes weeks or even months to show up in the body after an exposure. I agree with that submission for the reasons I have stated.

I find that the first incident was a deliberate fabrication on Mr Orr’s part when he realised he could not, as Counsel for Burkhan put it, ‘sustain a narrative’ that the HIV infection had been contracted on 6 June 2020. That finding is, in my view, supported by the fact that Mr Orr had to alter his originally reported date. Having initially told Ms Paton the first incident was on 27 March 2020, it became apparent to Mr Orr that the incident could not have occurred on 27 March 2020 due the roster schedule. Accordingly, he reported that the first incident actually occurred on 1 April 2020.

It may be so that Mr Orr was not an overly sophisticated person and had relatively minimal education. On the other hand, I consider he was not an honest witness and so, weighing the whole of the evidence, I consider that it likely that Mr Orr did make up the first incident. There is also a constellation of other matters that added together persuade me that to reject his Counsel’s submission that it was beyond him to fabricate this story including:

·His failure to inform Dr Chowdhury that he was working between November 2020 and May 2021 when certificates of incapacity were being issued.
·His failure to tell A/Prof Denholm or Dr Sasadeusz, on their specific questioning, of other risk factors for HIV infection, namely his ex-partner being an intravenous drug user and, further, his failure to tell Dr Sasadeusz that he had in fact had a prior HIV test in 2005 which was negative.
·The lack of any real clarity in the evidence on the important matter of when Mr Orr’s relationship ended with his former partner who had used drugs intravenously. That was a matter that I questioned Mr Orr on without gaining any clarity. On the one hand, his evidence seemed to be that the relationship had ended in 2002 prior to the 2005 HIV test. On the other hand, he told Dr Chowdhury in June 2018 that it was a present concern and the reason for him seeking a test for HIV at that time.
·Mr Orr’s extensive past history and experience of compensation claims and periods of weekly payments.
·Finally, for completeness and although there was only limited evidence about it, his experience of working as a private investigator.

For these reasons, in respect of the first and second incidents, I find that Mr Orr has failed to establish, on the balance of probabilities, that he has ‘a disease contracted … in the course of his employment’ with Burkhan.

Significant Contributing Factor

Accordingly, therefore, in light of that finding, it not necessary for me to proceed to consider the test in s.40(3)(b).

Consideration of the ‘significant contributing factor’ test, as the Court of Appeal made clear in St Mary’s School v Askwith, involves resolution of an essentially factual enquiry, the question being one of degree requiring evaluation[4].
[4] [2011] VSCA 90 at [13]

For completeness, therefore, and essentially for the reasons previously stated, I find that Mr Orr has failed to establish, as claimed, that employment on either date of incident was, on the balance of probabilities, a ‘significant contributing factor’ to the HIV infection. That is based on my findings of fact on the evidence regarding the first incident not having occurred as claimed and my findings regarding HIV infection not having been contracted in the second incident.

Psychiatric Injury

Mr Orr also claimed ‘consequential psychiatric injury’ arising out of or in the course of employment with Burkhan.

To my mind, it would seem to follow that Mr Orr must necessarily fail in his claim for psychiatric injury resulting from, or materially contributed to, by the development of HIV given my finding that he does not have a disease contracted in the course of employment.

However, in light of my finding that Mr Orr suffered a needlestick injury on 6 June 2020 in the course of his employment, it is appropriate to consider the evidence in relation to the claimed ‘consequential psychiatric injury’. Specifically, I turn to the question of whether any psychiatric injury resulted from, or was materially contributed by, the needlestick injury itself on 6 June 2020.

Mr Orr’s own evidence was that his emotional distress and anxiety started with the first incident (which I have, of course, found, as a matter of fact, did not occur) and continued after the second incident and diagnosis to the current day.

In light of my findings that Mr Orr was neither a credible nor honest witness, his evidence in relation to any psychological sequalae resulting from the needlestick injury on 6 June 2020 could not be considered reliable without other corroborative evidence.

Dr Chowdhury’s evidence was of referring Mr Orr to a psychologist, Dr Henderson. However, in response to specific questions regarding diagnosis in the reports of 5 October 2020 and 23 August 2021, it is notable that Dr Chowdhury does not actually include any diagnosis of any psychological condition or injury. I also note that the referral for psychological treatment by Dr Henderson occurred, moreover, not in response to the needlestick injury on 6 June 2020 itself but following confirmation that Mr Orr had contracted HIV (which I have found was not work-related).

According to Dr Pickett, Mr Orr’s condition had resulted in severe deterioration in mental health for which he was under the care of a psychologist. He had severe anxiety near the location and avoided going there. That was why he had started work in the care sector. Dr Pickett was not a psychologist, and her evidence (unlike Dr Chowdhury) was not tested in cross-examination.

Regarding the treating psychologist, Dr Henderson, Counsel for Burkhan submitted that Mr Orr’s failure to rely on or tender evidence of Dr Henderson by way of reports or clinical records to corroborate Mr Orr’s claim of consequential psychiatric injury ought to lead to an adverse inference pursuant to the principles in Jones v Dunkel[5].
[5] (1959) 101 CLR 298

Counsel for Mr Orr, in closing submissions, gave no explanation for this and I accept the defendant’s submission that it is likely the psychologist’s evidence would not have been helpful to Mr Orr’s case.

Finally, Mr Orr relied upon the medico-legal opinions of consultant psychiatrist, Dr Rathnayake, who provided two reports dated 22 March 2020 and 31 March 2021. Dr Rathnayake obtained a history of the first incident and second incident and diagnosed an adjustment disorder with anxiety. As for whether the diagnosed adjustment disorder with anxiety was work-related or non-work-related, Dr Rathnayake states that he was ‘not aware of non-work-related factors impacting on his current condition’.

For these reasons, even if Dr Rathnayake’s opinion was accepted regarding Mr Orr having a diagnosable consequential psychological condition, in my view, the weight of evidence is that such a condition did not result from, nor was materially contributed to, by the needlestick injury on 6 June 2020. It may or may not be consequential to the non-work-related HIV diagnosis which is not a matter for me to decide.

For these reasons, Mr Orr has failed to discharge the burden of evidence in relation to any consequential psychiatric condition nor has he persuaded me of the reliability or credibility of his account to Dr Rathnayake.

Work Capacity

As for capacity, given my previous findings, it is only necessary that I deal with this aspect in brief.

The evidence was that Mr Orr told Ms Paton on 20 June 2020 he had been given a certificate for ‘stress leave’. However, before that date, and while the evidence was that Mr Orr elected not to work after the second incident, there is no evidence of him being unfit for work before the certificate issued on 20 June 2020. There is no reference in the hospital discharge summary to a medical certificate being provided at that time. On 8 June 2020, the note recorded by Dr Chowdhury (the first attendance after discharge) was of Mr Orr ‘doing well’ with nil acute physical symptoms and there is no record of a certificate being issued.

Certainly, from 20 June 2020, the evidence was that Dr Chowdhury provided continuous certificates of no work capacity on physical and psychological grounds. He conceded that he did so on the basis of tele-health attendances only and without an awareness that Mr Orr was in fact working between November 2020 and May 2021. Dr Chowdhury agreed that information would have altered opinion regarding current work capacity.

To the extent that Dr Chowdhury did consider there was no work capacity on and from 20 June 2020, his opinion was based on his HIV positive status and his psychological state.

Accordingly, I am not persuaded on the balance of probabilities that Mr Orr has established an incapacity for pre-injury employment that resulted from or was materially contributed to by the needlestick injury itself on 6 June 2020 from that date or at any time.

Conclusion

For the grounds set out in these reasons, I find:

a.Mr Orr did not suffer a needlestick injury on 1 April 2020 (or for completeness on 27 March 2020) in the course of his employment.
b.Mr Orr did suffer a needlestick injury on 6 June 2020 in the course of his employment.
c.The needlestick injury on 6 June 2020 did not result in, nor was a material contributing factor to, any further injury (including any disease) beyond the needlestick injury itself.
d.For completeness, Mr Orr’s injury or disease of HIV did not arise out his employment on either of the claimed incident dates nor was his employment a significant contributing factor to any injury or the disease of HIV.
e.The needlestick injury on 6 June 2020 did not result in, nor was a material contributing factor to, any claimed consequential psychiatric injury.
f.If there has been incapacity for work, it has not resulted from or been materially contributed to by the needlestick injury itself on 6 June 2020.
g.Save for any reasonable medical expenses incurred by Mr Orr specifically relating to appropriate testing and confirmation of testing immediately following the needlestick injury on 6 June 2020 (but not beyond 20 June 2020), he is not otherwise entitled to reasonable medical and like expenses in accordance with the Act.

Given these findings, it is not necessary to proceed to consider the statutory defences raised by the defendant.

The proceeding will be adjourned to a date to be fixed for parties to consider the form of final orders including as to costs and the appropriateness of an award of costs under s.278(1)(b) of the Act.

[2022] VMC 5

11 February 2022