State of Queensland (Department of Communities, Child Safety and Disability Services) v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 177
•14 October 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | State of Queensland (Department of Communities, Child Safety and Disability Services) v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 177 |
PARTIES: | State of Queensland (Department of Communities, Child Safety and Disability Services) v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2014/265 |
PROCEEDING: | Appeal against decision of the Workers' Compensation Regulator |
DELIVERED ON: | 14 October 2015 |
HEARING DATES: | 19, 20, 22, 23 January 2015 |
HEARD AT: | Brisbane |
MEMBER: | Deputy President Swan |
| ORDERS | 1. The appeal is dismissed. 2. The decision of the Regulator's Review Unit dated 24 July 2014 is confirmed. 3. The Appellant to pay the Regulator's costs of and incidental to the Appeal. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Worker's Compensation Regulator - the injury is Helicobacter Pylori Disease - was the type of work performed by Ms Baumann a significant contributing factor to her injury - Ms Baumann worked as a Residential Care Officer in Disability Services - questions of causation considered by medical practitioners - protective equipment not one hundred percent reliable - factual conditions of Ms Baumann's work considered. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 |
| APPEARANCES: | Dr M. Spry of Counsel instructed by Crown Law for the Appellant. |
Decision
This Appeal has been made by the State of Queensland (Department of Communities, Child Safety and Disability Services) ("the Appellant") against a decision from the Workers' Compensation Regulator ("the Respondent") dated 24 July 2014 to confirm the acceptance of Ms Baumann's application for compensation dated 3 June 2013.
It is not contested that Ms Baumann is a 'worker' for the purposes of the Workers' Compensation and Rehabilitation Act 2003 ("the Act") and that she has sustained a personal injury. The injury is described as "Helicobacter Pylori Disease" ("H Pylori").
The Appeal to the Commission is treated as a hearing de novo. The Commission is required, on the balance of probabilities, to determine whether Ms Baumann has an 'injury' arising out of, or in the course of, her employment with the Appellant and was the employment a significant contributing factor [s 32(1) - Act].
The medical evidence is that H Pylori is understood to be transmitted faeco-orally. By way of example, Professor Whitby (who is one of the medical specialists giving evidence in this hearing) has, amongst other medical specialties, the specialty of Internal Medicine and Infectious Diseases.
He describes H Pylori as an "organism" which produces inflammation of the stomach lining with symptoms of gastritis including pain and reflux.
He stated that "in developed countries, including Australia, the organism is found in about 30% of the population with a much higher proportion found in less industrialized countries" [Exhibit 1].
Ms Baumann had undergone tests for H Pylori in 2006 and 2010 and the tests were negative. After that date she was diagnosed with H Pylori.
The Respondent will submit that Ms Baumann is not a witness of credit and it will also submit that the primary medical evidence which should be accepted is that which expresses the view that the type of work performed by Ms Baumann was not causative of her injury.
Witnesses
Witnesses for the Appellant were:
· Mr D Yusi - Manager for a disability service;
· Ms J Reeve - Manager, Accommodation Support and Respite Services, Southwest Region;
· Ms J Biddle - Manager, Accommodation Support and Respite Services, Southwest Region;
· Ms D Ison - Team Leader;
· Professor Whitby - Infectious Diseases Physician.
Witnesses for the Respondent were:
· Dr P Crowley - General Practitioner;
· Dr T Holt - Gastroenterologist;
· Ms D Baumann - worker.
Section 32 of the WCRA defines "injury" as:
"32 Meaning of injury
1)An injury is personal injury arising out of, or in the course of, employment if -
a)for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or
b)for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury.
2)However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.
3)Injury includes the following -
a)a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
b)an aggravation of the following, if the aggravation arises out of or in the course of, employment and the employment is a significant contributing factor to the aggravation;
(i)a personal injury other than a psychiatric or psychological disorder:
(ii)a disease;
(iii)a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation;
ba)an aggravation of a psychiatric or psychological disorder, if the aggravation arises out of, or in the course of, employment
c)loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing;
d)death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to casing the injury;
e)death from a disease mentioned in paragraph a), if the employment is a significant contributing factor to the disease;
f)death from an aggravation mentioned in paragraph b), if the employment is a significant contributing factor to the aggravation.
4)For subsection (3)(b) and (ba), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
5)…"
Ms Baumann was employed by the Appellant for 22 years as a Residential Care Officer (RCO).
Ms Baumann is 50 years of age and was initially employed as a RCO from age 37. She had worked at the Challinor Centre until the Centre closed around 2007. In that period, Ms Baumann's clients were disabled children.
For a period of time after that (2010 to 2013 - the period under consideration in this Appeal), Ms Baumann held the position of Team Leader with the Appellant and worked with adults only. In this role Ms Baumann says that she was still required to be a 'hands on' leader, helping co-workers when they needed her assistance.
The clients were adults with moderate to profound intellectual disabilities and with high complex support needs which were both behavioural and/or physical. Ms Baumann's evidence was that a typical household included 3 to 5 people supported by a single member of staff who is part of a team of RCOs which is rostered over 24 hours a day 7 days per week.
Ms Baumann described the work generally performed by her as follows:
· Attending to the personal hygiene of the clients on a daily basis.
· If a client had an accident, the RCO was required to clean up.
· Whilst cleaning, Ms Baumann would wear gloves, but she was required to clean the client and any areas that may have been affected including wall smears, toilets, floors, clothing etc.
· The RCO must dress the clients.
· The RCO must provide all daily needs including breakfast, feeding if required, washing dishes, washing clothes, making beds, all domestic duties and taking clients to and from activities such as shopping, banking etc. and
· Bathing clients twice daily.
RCOs were provided with protective equipment such as goggles, plastic aprons, gloves and a protective mask to do mouth to mouth resuscitation. The goggles were infrequently worn because Ms Baumann said they were rarely available.
Ms Ison's evidence was that the nature of toileting involved reminding the client about going to the toilet and not that the person could not toilet themselves [T2-17].
Ms Baumann said that she frequently came into contact with client's faeces when she had to clean them. She also stated that she had faeces thrown at her, that faeces had been smeared on walls and spread over light switches, telephones and door handles. She also said that she was exposed to vomit at least weekly. Often diarrhea was accompanied by vomiting. These events continued to occur during the period in question while she was in the position of Team Leader. The Appellant says that events as described by Ms Baumann had not formed part of her WorkCover statement.
The Appellant has not accepted that Ms Baumann was a credible witness. It queried the truthfulness of her description of her work duties especially when she advised that she had frequently come into contact with vomitus and faeces.
It says that Ms Baumann's evidence was that she would wear gloves at work and that she would change these often throughout the day. Also, when she was required to go outside the house she would always wear her protective clothing.
In cross-examination however, Ms Baumann said that gloves were not always readily available for use and if her size glove became unavailable, then she would not wear any. She also had not mentioned vomit or being vomited upon by clients in her WorkCover application.
An Appellant witness, Mr Yusi said that a large part of the day of an RCO involved "teaching and training people with a disability". He said that clients from time to time required showering but "the majority of people are reasonably independent in most areas of showering and personal care. It may only require that a residential care officer check to make sure that the worker is not too hot or give a – give a prompt, you know, ask the questions, you know, do you think it's shower time" [T1-20, 20-29].
Ms Ison was a direct supervisor of Ms Baumann in her role as a RCO. She saw Ms Bauman's role as that of overseeing staff practice, to guide and support and mentor staff [T2-6, 7]. She reinforced the role undertaken by Ms Baumann as submitted by Mr Yusi. She said that in her 28 years of working with disabled persons, she had never known any worker to run out of gloves [T2-9, T2-25].
Ms Ison had prepared a document [Exhibit 13] which was headed "Work locations, known cases of helicobacter pylori, personal hygiene and toileting hygiene support needs regarding clients supported by Ms Baumann".
The information in this Report was sourced from Accommodation Support and Respite Services client information systems and staff rostering systems. Table C of that Report concerned the Hygiene and Toilet Support Needs of Clients supported by Ms Baumann.
Work Illness Report Forms were forms which were compiled by employees and related to employees (including Ms Baumann) coming into contact with hazardous substances such as vomit or faeces. There had been no report made by Ms Baumann being vomited on nor was there any report from Ms Baumann coming into contact with hazardous substances. Ms Baumann had said that just because the forms did not include incidents of that nature, did not mean that the incidents complained of had not occurred.
The Report also identified that it was not enough that a worker was exposed to faecal matter or vomitus; the worker must be exposed to the faecal matter or vomitus of a person carrying the H Pylori bacterium. From the Appellant Records of the workplace, the Appellant states that "not one of the Department's clients or employees, with whom Ms Baumann worked, were found to be carriers of the bacterium" Exhibit 13 pages 4‑7; T2-23].
Notwithstanding that there had been no event recorded by Ms Baumann of hazardous events, her evidence was that if she had to clean up vomit, she wore gloves and appropriate equipment and had washed her hands afterwards [T5-71]. Similarly, if Ms Baumann was required to clean up spills, including faeces, she would wear protective gear. However, while Ms Baumann contended that she always wore protective gear, she was never sure when she came to work whether staff before her had cleaned the house as she would always do.
The Appellant's claim that Ms Baumann was not a credible witness
The Appellant referred to the evidence given by Ms Baumann where it says it is clear that she was not a truthful witness. These were:
· Ms Baumann's evidence concerning her work duties and her frequent exposure to vomitis and faeces in the workplace. This was not borne out by the evidence of other work colleagues. Nor was there any reference in Ms Baumann's work forms of this occurring.
· Ms Baumann's evidence that gloves were not always available for her use. This is not supported by Ms Ison. But more significantly, Ms Baumann maintained that she always wore gloves, but when her size was not available she would not wear any gloves.
· Ms Baumann gave contradictory evidence concerning her son, who was aged 9 in 2010. Initially, she said that she would clean up after her son if he vomited at home, but later said if her son ever vomited at home he would do so outside of the house and just wash himself afterwards as she lived in the country and that was what country people did in those circumstances.
Mr Yusi received a medical certificate from Ms Baumann on 31 May 2013. He said at that time he had been concerned about her health and asked her to provide more information and whether there were any restrictions on her ability to work or where she could work.
Mr Yusi said that Ms Baumann had responded by saying that there was "nothing really wrong" with her. Ms Baumann denied saying this to Mr Yusi. But when she received advice from Mr Yusi that he would see her on the following Monday, 3 June 2013, Ms Baumann said it was for the purpose of pleading her case with Mr Yusi that she was well enough to work. The Appellant states that the inconsistency in her evidence on this point makes it clear that she was not a credible witness.
Dr Crowley was Ms Baumann's General Practitioner for a long time and his view was that Ms Baumann was always comfortable raising issues with him. Dr Crowley agreed that there was no record in his clinical notes of Ms Baumann reporting the need to clean faeces off walls, being hit by clients in the bathroom, needing to clean up vomit etc. and had something like that been reported to him he would have recorded it in his clinical notes [T2-78].
From the incidents cited by the Appellant, the submission is that the Commission should not accept her evidence given concerning her work duties.
The Medical Evidence
There were three medical practitioners called to give evidence. Two were called by the Respondent - Dr Paul Crowley, General Practitioner and Dr Terry Holt, Gastroenterologist. The Appellant called one medical practitioner, Professor Michael Whitby, an Infectious Disease Physician.
The Respondent said Ms Baumann's oral evidence to WorkCover in support of her claim covered the following points:
· "The only way the disease can be transferred is via faecal matter through the mouth. However, bacteria can be transferred via touch - light switch being touched by an infected person, and another touching the same light switch and transferring the bacteria to their mouth unknowingly;
· She was first diagnosed in 2010 and the treatment for it has been continuing since 2010;
· She is submitting her claim as her manager rang to advise that there were staff members concerned that she was so sick and so weak that she may not be able to continue to provide quality care;
· She has not submitted a claim previously because she had been able to continue working. However, an appointment with her GP on 3 June 2013 resulted in her being advised that she is now at the point that she needs to consider WorkCover because her role is in question at the present time due to her ailing health;
· She did not understand at first why she had contracted the disease. She began researching the disease and found that she was at higher risk when working with people with intellectual disabilities and this leads to lower standards of hygiene; and
· She wears gloves, but must clean the client and any areas that have been affected including wall smears, toilets, floors, clothing etc."
The Appellant had tendered a report from Dr Sharma dated 31 May 2013 who said that Ms Baumann has H Pylori infection and the transmission of this infection is by way of oral to oral route or faecal to oral route. The Respondent says that this certification is consistent with the other available evidence.
Dr Paul Crowley is a General Practitioner who practices at the Stellar Medical Centre/Lowood Medical Centre and who has ordinarily treated Ms Baumann over a period of 20 years. Dr Crowley had provided various Workers' Compensation Medical Certificates supporting Ms Baumann's claim. The date when Ms Baumann was first seen for this disease is recorded as 3 June 2010 and the stated date of the injury is 3 June 2009. Ms Baumann said that the cause of the injury was that it had been "contracted from clients at work."
Dr Crowley said he had been treating patients who lived in community and residential facilities for more than 30 years. He also treated patients who came from the type of households in which Ms Baumann had worked.
The Appellant stated that Dr Crowley could not be considered to be an expert witness when it came to issues such as H Pylori. However, while that is accepted by the Commission it is also accepted that Dr Crowley, in his position as a General Practitioner, performing the type he had done over the years with patients with varying levels of intellectual disability, had a level of knowledge of H Pylori and how patients who might possibly be carrying this infection, had this matter dealt with.
Dr Crowley referred to the protective approach he had adopted when he worked with patients with disabilities (i.e. gloves when needed and washing his hands in-between patients) and discussed the concern he had experienced because of the potential for the disease to be transmitted through saliva and vomit. His belief was that employees working with people with disabilities over an extended period of time had an increased possibility of contracting the disease, but that overall the statistics show that the difference was not much between a shorter or longer term exposure [T2-56].
Dr Crowley held the view, from his experience, that there was a higher incidence of helicobacter infection in institutionalised clients.
Dr Terry Holt, Gastroenterologist, provided a WorkCover report on 19 July 2013. In that Report, he had responded to various questions posed by WorkCover. He was asked whether Ms Baumann's nominated work event is a significant contributing factor in causing her injury. He stated:
"Dorothy has chronic gastric ulceration and evidence of structuring of the pyloric sphincter, probably secondary to ulceration. The cause of her ulceration is undoubtedly due to chronic Helicobacter infection. Helicobacter infection is strongly associated with poor hygiene conditions and is endemic worldwide. Most often, it is acquired in childhood, but working in an environment with disability patients probably represents a high risk environment for acquiring the organism. It is impossible to know how long Dorothy has had the infection, though there is a reasonable chance she may well have acquired it while working in her capacity of personal care of patients with severe intellectual and physical disabilities, due to their inherent lack of poor self care. The organism is most commonly transmitted faceo-orally."
Dr Holt had been asked to consider whether or not employment was a significant contributing factor to the causation of the disease or social environments were the more likely cause. He stated:
"It is impossible to be absolutely sure where Dorothy acquired the organism. She has worked in an environment where she would be expected to be at high risk of contracting this organism. The organism is transmitted faeco-orally as I outlined above. It is impossible to be 100% certain whether she acquired it in her workplace or as a child, which is when most people in our society probably do acquire it. If there is no medical history to suggest she had the organism prior to commencing work with Disability Services and had no preceding symptoms, this would make acquisition in the work environment a little more likely. I think on the balance of probabilities, she may well have acquired it in her workplace. Dorothy has had serious sequelae from acquiring this organism. She is likely to have lifelong morbidity as a result of this infection" [WorkCover Report 19 July 2013].
Dr Holt did add that it was not sufficient to come into contact with vomitus or faeces, in order to contract H Pylori but that "It requires the organism (H Pylori) to be ingested" [T4-7].
Dr Holt knew that Ms Baumann had been exposed to children and others when at work. The Appellant reiterated that Ms Baumann was not exposed to children but adults in her workplace. Dr Holt understood that Ms Baumann had worked in a 'care facility' for a long time. He said that the duration of the period one had worked in that environment only increased one's risk of infection, if anything [T4‑19].
In cross-examination, Dr Holt said that Ms Baumann could have acquired H Pylori either at home or the workplace. He agreed with Professor's Whitby's opinion that H Pylori could not be cultured from the faeces of adults but could be cultured from the faeces of infants and younger children [T4-13]. Dr Holt agreed that the contraction of H Pylori as an adult was extremely rare.
Dr Holt's evidence was that the H Pylori infection was common in adults but that acquiring the infection as an adult was extremely uncommon. He said that the "estimates from the literature are 0.3% - 0.5%" [T4-7]. Dr Holt said that the mode of transmission was not well established. He agreed with Professor Whitby that there were three potential modes of transmission - faceal-oral, saliva, and gastro-oral. All modes require the organism to be ingested.
Dr Holt agreed that precautions reduced one's risk of infection. When asked by the Appellant as to whether it was more probable than not that Ms Baumann acquired her condition in the workplace, he responded: "…I think if there was evidence of this in her family then - I mean, the two likely places she could acquire it, based on just exposure, would be at home or her workplace. I - I'm unaware of any family history of this, amongst the people she cohabits with. She lives in a semi-rural environment, so she's not in a - in a crowded urban environment, so if there's no evidence of her having contracted it at home; where's she probably got it from? The next most probable place would be her workplace [T4-20].
The Appellant asked Dr Holt: "Doctor, it's more likely that she would be taking precautions in the workplace, correct? That is wearing gloves, wearing protective clothing, that in the house?" Dr Holt responded: "Well, you'd - you'd expect so. You'd expect so, and I think that's the standard of most of these facilities these days. It doesn't always apply that those things are practical, and, in fact, I mean, I take universal precautions myself in my practice, but I have been - I've had patients vomit on me, I've had faeces splashed on me, even though you do your best it doesn't - they're not a hundred percent universal precautions, by any means. People still get needle stick injuries, but we do everything that's possible, but they are only barriers to reduce your risk. But, I mean, it's impossible to quantify the - the risk accurately in this situation. It's all speculation" [T-21].
Dr Holt stated that "it's more probable that she acquired it in her workplace or at home, and with that exposure I would - I would expect that it's more likely she acquired it at work, but it's impossible to prove" [T4-21].
Dr Holt was not aware of any family history of that infection (i.e. no family history of stomach disease) and he had that recorded in his medical notes.
Upon re-examination from the Regulator, Dr Holt agreed that if it was found that Ms Baumann had been exposed to contact with faeces and vomit, that would constitute a theoretical mechanism of transmission. He stated that there had been no evidence of this infection transmitted from adult to adult by faeces, but if Ms Baumann was exposed to body secretions, as in vomit, and in faeces, "she's more likely to acquire it in that environment as opposed to living in a normal suburban home, with other members of the family who we don't know have the organism" [T4-26].
Dr Holt said in relation to Ms Baumann's symptoms that they were "at the extreme end of the outcomes of having a stomach ulcer" [T4-7].
Professor Whitby said that the mode of transmission of H Pylori is largely unknown, however the principal evidence relates to the following factors:
· The epidemiological data providing evidence of possible risk factors associated with transmission; and
· The identification of potential sources from which H Pylori could be acquired. Evidence exists to say that it is feasible that the transmission of H Pylori varies according to the cultural and demographic circumstances. But the most likely recognized source of H Pylori is the human stomach. It is not known how the organism is transmitted to the stomach. Evidence suggests close personal contact is important and that acquisition occurs mostly in childhood.
Professor Whitby said expert reports find it difficult to be precise as to when anyone acquired H Pylori. It is a very common organism in the community, often contracted in childhood, but in Ms Baumann's case she did not contract this until after 2010.
Professor Whitby said "the vast majority of people who have got it don't have symptoms" he went on to say "the H Pylori test is not regularly tested in people unless they present with symptoms" [T1-9].
Professor Whitby did not accept, on the balance of probabilities, Ms Baumann's claim to have contracted H Pylori at work. However, he did accept that the modes of transmission can be faceo-orally (which is contact with faeces and then ingesting it) and spread by saliva [T1-8].
Part of Professor Whitby's reasoning in rejecting Ms Baumann's work related basis of her claim was that he believed Ms she would always be utilizing protective equipment.
Professor Whitby addressed Ms Baumann's evidence concerning faecal contamination during her work by stating:
"…And I've accepted that this is a faeco-orally transmitted disease. But it's a faceo-orally transmitted disease if you are dealing with young children, and as the children get older the incidence of Helicobacter in the faeces becomes less and less. So the logic is, therefore, that the older the children are you are dealing with the less likely there is to be transmission … So the fact that there is faeces in the environment doesn't necessarily mean that there's going to be lots of Helicobacter there. It does, however, I agree pose a risk" [T1-11].
Professor Whitby agreed that if a person had contact with faeces without personal protective equipment on them, then they are at risk of contracting H Pylori. Professor Whitby said that the vast majority of people who have this organism do not have symptoms, but even if they are asymptomatic, they can pass the organism on [T1-9]. The test for H Pylori is not regularly undertaken unless a person has shown some symptoms of it.
Professor Whitby also stated:
"I would accept your basic premise, but I think you've got to recognize that the phenomena I've discussed is fairly prevalent in humans. Vomitus to most people is disgusting, faeces to most people is disgusting, including your own which isn't a risk to you. So most people avoid that. So most people, in dealing with these things which are offensive substances, use their personal protective equipment. Where we run into trouble with personal protective equipment failing is where people don't perceive a particular risk, where there's no disgust, and where the risk of transmission is much higher than Helicobacter in faeces or in vomitus."
Professor Whitby added:
"So you'd need to come in contact with vomitus or you would need to come into contact with faeces. And if I could, I hope clarify, maybe complicate the issue slightly more, one of the reasons that people think that there may be person to person transmission is that you can find evidence of transmission of Helicobacter within families, families of adults and kids ... So Helicobacter can be transmitted in families and we don't know why" [T1-16].
Professor Whitby said that Ms Baumann could have acquired H Pylori at her workplace, but that if she used her protective equipment carefully, then it would provide a foolproof barrier to the contraction of H Pylori [T1-11].
Conclusion
The Appellant reiterated its claim that Ms Baumann was not a credible witness and that the Commission should not accept her evidence as to her level of exposure to vomitus and/or faeces in the workplace.
It was also claimed that the evidence highlighted that H Pylori is difficult to transmit from adult to adult and it is most likely contracted from children and as Ms Baumann had not worked with children in the time period nominated by her, her evidence could not be accepted. Dr Holt said that she contracted H Pylori either in the workplace or at home.
The Appellant states that while it was possible that Ms Baumann contracted H Pylori in the workplace, it remained highly unlikely, and on the balance of probabilities, Ms Baumann did not contract H Pylori in the workplace.
Ms Baumann said that if her son was unwell, and if she was at home, she would care for him and she would not use protective equipment and the Appellant submits that this constitutes another 'potential' cause for Ms Baumann contracting H Pylori to be considered by the Commission.
The transcript on that point shows the evidence concerning Ms Baumann's son was as follows:
Appellant: And so from 2010 through to 2012 how old was he?
Worker: 2010 to-he was born in 2001.
Appellant: Right. So he was nine years old in 2010?
Worker: Yes.Appellant:And over the course of those years he would have had occasions to be sick. Correct?
Worker: Yes, yes.
Appellant: May well have vomited. Correct?
Worker: Yeah. Yes
Appellant: And you would have cleaned that up?
Worker: Yes. Well no.
Appellant: No?Worker:Well if he was outside I wouldn't. I'd - if he was 12 years old and he was outside when he vomited, he would just wash him - go and have a shower.
Bench:If he was outside and he was sick you wouldn't have done that?
Worker: I just recalled the time that he was sick, your Honour.
Appellant:So are you saying your son in that two year period only vomited once?
Worker:I don't know.
Appellant:But, young boy, from time to time he would've been sick. Correct? He would've been unwell?
Worker: Yeah.
Appellant:And from time to time you would've cleaned it up. Correct?
Worker: Yeah. If I was home, yes. I would've.
Appellant: And him being your son, you wouldn't have worried about gloves or anything like that, would've you? You would have just gone and cleaned it up. Correct?
Worker:I can't recall I've ever had to clean his vomit up. I'm sorry. I've never had to clean up my son's vomit and he's severe anaphylaxic. I've never had to clean up his vomit. Never, ever had to. We live in the country, sir, and country people, if they're going to be sick, they normally go out to the garden [T5-45, 46].
I have accepted Ms Baumann's evidence on this point to the extent that if her son was to vomit, at his age he would go outside and do so and look after himself. In my view that is believable because he was not a small child who would be incapable of cleaning up after himself.
The Respondent says that the medical evidence supports a finding that it is possible that Ms Baumann may have been exposed to contaminants during the course of her employment that could have caused her to contract H Pylori if protective equipment was not a completely reliable barrier. The medical evidence is that there was a possibility of contracting H Pylori, but all agree that her duties as a RCO increased the risk of infection.
In this regard I have given due consideration to Professor Whitby's evidence in respect to his expertise in infectious diseases.
Within this context, the Respondent referred to Cowen v Bunnings Group Limited[1], where Justice Wilson stated, inter alia that:
[1] Cowen v Bunnings Group Limited QSC14 301
"Neither the defendant nor any of the expert medical witnesses called in the case dispute the first proposition: i.e. that the bacterium was present in Ms Cowen's upper respiratory tract when she did the work of cleaning up the fertilizer dust. Nor is there any dispute that once the bacterium reached her blood stream, and then her meninges and brain, she became very ill with the disease which required her admission to hospital, and intensive care there.
Rather, it is the second part of the process - what it was that caused the bacterium to travel from her upper respiratory tract to her bloodstream and, thence, her brain – which is in issue. Was it caused by her exposure to the dust or was it coincidental, with other possible causes, outweighing or negating the possible effects of the dust exposure such that it cannot properly be categorized as causative, in law?"
"The task confronting a court, adopting this legal approach to causation, had earlier been explained by Mahoney JA in Fernandez v Tubemakers of Australia Ltd[2]: medical science may say in individual cases that there is no possible connection between the alleged causative event and the injury, and in that event the court cannot act as if there were a connection; but, if medical science is prepared to say the connection is possible, then it is up to the court to decide if it is probably, to the requisite degree".
…..
"More recently the High Court again both explained this approach to causation, and confirmed its continuing validity, in Talbet v Gett[3]. Keifel J (with whom Hayne, Crennan and Bell JJ agreed) said that the purpose of proof at law, unlike science of philosophy, is to apportion legal responsibility - and that requires the courts, by a judgment, to "reduce to legal certainty questions to which no other conclusive answer can be given."
[2] Fernandez v Tubemakers of Australia Ltd (975) 2 NSW LR
[3] Talbet v Gett [2010] HCA 12
…
Earlier, Keifel J had spoken of the way the courts undertake this exercise. The common law, Her Honour said, requires proof by the person seeking compensation that the negligent act or omission caused the loss or injury constituting the damage; but all that is necessary for that purpose is for the plaintiff to show that, according to the course of common experience, the more probable inference arising from the evidence is that the defendant's negligence caused the injury or harm. "More probable" means, she said no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood. But it does not, as Keifel emphasized, require certainty.
After considering those matters, Justice Wilson concluded:
"Absent any other potential cause, the evidence in its totality is in my view sufficient to warrant the conclusion that there is a causal connection, on the balance of probabilities, between irritation of Ms Cowen's respiratory muscosa and her subsequent grave illness."
In response to the Respondent's comments upon the abovementioned decision, the Appellant states that, in this case, there is another "potential" cause. That is that Ms Baumann contracted H Pylori in the family context. It is submitted that not only is that another 'potential' cause, on the basis of the evidence before the Commission, it is the more likely cause. It says that it is not struggling to proffer another explanation as to how Ms Baumann contracted H Pylori, rather on the evidence before the Commission, the most likely source of Ms Baumann's contracting the condition is through her family at home, and in particular her young son.
In Seltssam Pty Ltd v McGuinness & Anor[4], a number of High Court decisions show how, and why, the way the common law approaches causation is quite different from accepted, and customary, scientific methods. His Honour said:
"The common sense approach to causation at common law is quite different from a scientist's approach to causation … An inference of causation for the purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference".
[4] Seltssam Pty Ltd v McGuinness & Anor [2002] NSWCA 210
In Fernandez, Mahoney JA stated that medical science says in individual cases that there is no possible connection between the alleged causative event and the injury, and in that event the court cannot act as if there were a connection, but, if medical science is prepared to say the connection is possible, then it is up to the court to decide if it is probable, to the requisite degree.
The Respondent submits that it is the unanimous evidence of the medical practitioners that the work duties performed by Ms Baumann could have contributed to the development of her H Pylori under certain circumstances.
The Respondent acknowledges that while Professor Whitby believes that the personal protective equipment should have acted as a suitable barrier against Ms Baumann contracting the disease, Professor Whitby also said that Ms Baumann's knowledge of the potential to contract the disease would have meant that she would have been more vigilant in taking the appropriate precautions.
The Respondent says that the mere fact that an employee had to always wear protective equipment highlights the real risk of an illness or disease contracted in the workplace in which Ms Baumann worked.
I have accepted Ms Baumann's evidence to the effect that while she tried to protect herself from the known contaminants in her work place, the reality was that she worked with disabled people and workplace events could be unpredictable. I accept that she was exposed to faeces and vomitus (either directly or on surfaces in the house etc.) in the workplace and while that was not a constant factor, her degree of protection could not be always assured to be at its optimal best. To this end, I have accepted the evidence of Dr Holt where he stated that protective equipment was only a barrier to reduce the risk of something adverse happening. In my view this is a very realistic perspective which is apposite to this situation. Even when people do their best errors occur.
In my view, there has been no other realistic cause for the illness. The Appellant's submission that Ms Baumann was more likely to have contracted H Pylori at her home from her son is not accepted.
Attempting to relate the possibility of a son who might vomit (in the yard) with the environment in which Ms Baumann worked was so remote as to be unrealistic.
It was quite clear from the evidence of both Dr Holt and Dr Crowley that Ms Baumann was very ill. There was no challenge on that point. That is a factor which I have taken into account in terms of her confusion at times with regard to her responses. She was clearly unwell while giving evidence. Primarily, I found Ms Baumann to be a credible witness who experienced difficulty at times in relaying her version of events to the Commission. I have attributed much of that difficulty to her acute ill health. Her state of health was the subject of evidence not only from her, but from her treating medical practitioners over time.
After considering all of the evidence I find that Ms Baumann's "injury" was contracted in the course of her employment and the employment is a significant contributing factor to the injury [s 32].
The Department of Communities, Child Safety and Disability Services has not discharged the burden of proving the injury is removed from the definition of injury by virtue of s 32(5) of the Act and orders to be made are:
(a)The appeal is dismissed;
(b)The decision of the Regulator's Review Unit dated 24 July 2014 is confirmed; and
(c)The Appellant to pay the Regulator's costs of and incidental to the Appeal.
Order accordingly.
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