Wright v New South Wales

[2006] NSWCA 152

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Wright v State of New South Wales [2006]  NSWCA 152

FILE NUMBER(S):
40760/2004

HEARING DATE(S):               3 May 2006

DECISION DATE:     20/06/2006

PARTIES:
Bruce Wright v State of New South Wales

JUDGMENT OF:       Giles JA Hodgson JA Grove J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 3112/02

LOWER COURT JUDICIAL OFFICER:     Naughton DCJ

COUNSEL:
Appellant:           B.J. Gross QC with K. Earl
Respondent:     P. Taylor SC with P. Sternberg

SOLICITORS:
Appellant:       Baker & Edmunds (Beecroft)
Respondent: I.V. Knight (Crown Solicitor)

CATCHWORDS:
NEGLIGENCE
POLICE OFFICER STATIONED IN COUNTRY TOWN SENT TO WESTERN TOWN FOR TEMPORARY DUTY
SUMMER MOSQUITO RISK
GENERAL WARNING PUBLICISED IN WESTERN DIVISION OF STATE
NO SPECIFIC WARNING TO OFFICER
BITTEN BY MOSQUITOES WHILE OFF DUTY FISHING
ROSS RIVER FEVER
DUTY OF CARE OF EMPLOYER EXTENDS FURTHER THAN FOUND BY TRIAL JUDGE BUT NO BREACH OF DUTY DEMONSTRATED - (ND)

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40760/2004
DC 3112/2002

GILES JA
HODGSON JA
GROVE J

Tuesday 20 June 2006

BRUCE WRIGHT  v  STATE OF NEW SOUTH WALES

JUDGMENT

1. GILES JA:     I agree with Grove J.

1. HODGSON JA:     I agree with Grove J.

1. GROVE J:     This is an appeal against judgment for the respondent in an action which sought damages for personal injuries claimed to have been caused by a breach of duty of the respondent in its capacity as the appellant’s employer.

1. At material times the appellant was a detective senior constable of police.  He was stationed at and lived in Coonabarabran.  He had entered the police service in 1987 and served at postings to Narrabri, Goulburn, Robertson and Bowral until transfer to Coonabarabran in March 1998.  He was there engaged in criminal investigation duties as a plain clothes officer.  He had had in the past some minor illnesses and injuries from which he had fully recovered and he was in early 2000 in good health.

1. During the week preceding Monday 7 February 2000 he was directed by Detective Inspector Payne of Mudgee Local Area Command to travel to Bourke and attend duty there (and at Brewarrina) for one week, providing assistance in investigations into a homicide and a mail plane robbery, which it was thought may have been connected.  No information or warning was tendered to him about any conditions which he might encounter at those places and, specifically, nothing was said to him about the presence of mosquitoes in or about the two towns. 

1. On Sunday 6 February he travelled to Bourke with Senior Constable Spradbrow, an officer from Mudgee who was similarly assigned, and they arrived at about 4 pm and booked into accommodation at the Darling River Motel.  They went fishing that evening at a weir in the Darling River.  On two further evenings after 6 pm following the conclusion of duty they similarly engaged themselves.  On these excursions they wore shorts, t-shirts and open footwear.  They were bitten by mosquitoes.  Apparently Senior Constable Spradbrow was not particularly annoyed by the insects but the appellant was.  This is consistent with the circumstance that mosquitoes are attracted to chemical and physical signals which vary from individual to individual.  The appellant testified that he was, from arrival in Bourke until the middle of the week exposed to mosquitoes and bitten “excessively, a lot”.

1. In the mid week (the appellant located it as Wednesday or possibly Thursday) he heard a broadcast on the radio.  It was authored by a newsreader based upon a press release issued by the Far West Area Health Service for reading on the regional news at 12 noon and 5 pm on Monday 7 February and was put to air on those and on later occasions, of which precise records do not exist.  It is apparent that the appellant was referring to hearing one of these latter broadcasts.

1. The broadcast item was in these terms:

   “Residents living the Bourke area are being warned to protect themselves against the mosquito born (sic)..Ross River Virus.

   Far West Area Health Service has detected the virus in mosquitoes trapped in Bourke last month.

   Environmental Health Officer… Mark Nolan says a combination of Christmas rain, lush new vegetation and a spell of hot weather has produced good conditions for mosquitoes.

   He says everyone in the Far West should take precautions as mosquitoes can pick up the virus from practically anywhere and pass it on…..”

2. Upon hearing this, the appellant purchased insect repellent (Aerogard roll-on) and applied it to the exposed areas of his body, liberally and frequently.  There was no further fishing excursion. 

1. The appellant returned to Coonabarabran after lunch on Friday 11 February and commenced a period of leave.  On about Saturday 19 February he became aware of symptoms of fatigue and joint pain as well as stiffening in his joints and signs of a type of rash.  It was medically diagnosed that he had been afflicted by Ross River Fever.

1. This condition is an infection produced by a germ (Ross River Virus) conveyed to a human being through the medium of a bite by a female mosquito which is likely to be of the species Culex Annulirostris which is prevalent in rural and outback New South Wales (and elsewhere).  The learned trial judge found that the fever from which the appellant suffered was caused by a bite or bites which occurred while he was fishing in the Darling River on one or more of the three occasions when he engaged in fishing between Sunday 6 and Wednesday 9 February.  This finding is not challenged.

1. The assignments of negligence relied upon by the appellant were particularized in his pleading as follows:

   “It is alleged that the Police Service through its servants and/or agents was guilty of negligence for which the Defendant is liable in that it:-

   (a)failed to observe the Plaintiff was in a position of peril in the circumstances.

   (b)placed the Plaintiff in a position of danger which could have been avoided by reasonable care.

   (c)failed to warn the Plaintiff of the danger of contracting Ross River Fever as a result of mosquito bites.

   (d)failed to advise and/or warn the Plaintiff to cover his arms and legs with long clothing and use insect repellent to avoid the danger of contracting Ross River Fever from mosquito bites.

   (e)failed to advise and/or warn the Plaintiff of an increase in reported cases of Ross River Fever in the Bourke Brewarrina area.

   (f)failed to provide the Plaintiff with suitable overalls or other suitable protective clothing to lessen and/or avoid the risk of injury and infection.

   (g)failed to provide suitable insect repellent or other product to avoid the risk of infection from mosquito bites.

   (h)failed to take any or any adequate precautions for the safety of the Plaintiff in the circumstances.

   (i)failed to implement a safe system of work so as to avoid the risk of contracting Ross River Fever which it knew or ought to have known existed in the area where the Plaintiff was required to work.”

2. Whilst the diversity of expression in these particulars can be noted, the essential thrust of the appellant’s allegation of negligence was that the respondent ought to have known that there was a higher risk of mosquito borne Ross River Fever at Bourke than the risk at Coonabarabran where he lived and worked and that, as he was being exposed to this higher risk, the respondent’s duty was to warn him of it and the need to take precautions.  This duty was breached by its silence in simply assigning him to duty and necessary temporary residence in the area where this higher risk would be encountered.

1. I will recite the entirety of the expression of the various grounds of appeal, but it will not be necessary to deal independently with much of the elaboration which is appended in various sub-paragraphs.  These are frequently merely differently formulated assertions of the same complaints and on some occasions amount to imprecise generalities. 

Ground 1

His Honour erred in law in concluding that the NSW Police Service owed the Plaintiff no duty of care while he was outside his rostered hours of work in the Bourke region.

1. His Honour’s finding was epitomized in this expression:

   “The Police Service owed the plaintiff no duty of care while he was not engaged in work related activities, and did not breach its duty of care to him while he was engaged on work related activities.”

2. His conclusion was developed from analysis of a number of authorities including statutory compensation cases and, acknowledging that the duty of care of the employer can extend to places away from the employee’s place of work, he opined that there “must still, in law, be a realistic nexus between what the employee was doing when he, or she, had an accident and the work which that employee was required to do for the purpose of his (or her) employment, before the employer can be held liable for personal injury”. 

1. The nexus prescribed by his Honour lies within overly narrow boundaries.  As Hayne J remarked in Crimmins v Stevedoring Industry Finance Committee 1999 200 CLR 1 at 98:

   “The common law imposes a duty on the employer because the employer is in a position to direct another to go into harm’s way and to do so in circumstances over which the employer can exercise control.”

2. It was the respondent exercising control through the inspector, who determined that the appellant go to work in Bourke (and Brewarrina) and the duty of care extended to taking reasonable steps to protect the appellant from dangers of which it ought to have been aware.  So to say does not, of course, answer the critical enquiry as to whether the content of the duty in these circumstances extended to a warning for the provision of precautions against mosquito bite while the appellant was in the assigned area.

1. To the extent that his Honour determined the duty to lie within the narrow compass of engagement in work related activities, the challenge articulated in the ground is made out. 

Ground 2

His Honour erred in law in holding that the Appellant (hereinafter called ‘the Plaintiff’) was not required to work and did not work at dusk and dawn in that:

(a)the Plaintiff was required by virtue of his secondment by the NSW Police Service and his obligation to be in the Bourke region in the performance of his duties;

(b)the course of the Plaintiff’s employment included periods at dusk and dawn in the Bourke region, even when he was outside his rostered hours of duty.

1. This ground raises essentially the same point as the previous ground, namely, whether, bearing in mind the finding that the “injury” occurred when the appellant was bitten whilst fishing, the respondent’s duty of care was limited to times when the appellant was engaged in actual performance of duties or there was a nexus with them of the kind postulated by his Honour.

1. The reference to the “course of employment” can be identified in the language used in statutory compensation schemes and it would be difficult to conceive that the appellant’s fishing excursions were within even a very extended concept of the course of employment, however, as already discussed, the duty of care extended to the incidents of the placement of the appellant in the particular location.  The real issue is whether the content of that duty extended to a requirement to warn the appellant of the possible consequences of mosquito bite.
   

Ground 3

His Honour erred by misapprehending the facts in that:

(a)His Honour found that the danger to the Plaintiff being bitten by a mosquito and contracting Ross River fever was “slight” and

(b)Such finding was indisputably contradicted by each of the matters stated in the Press release by the Far West Area Health Service, which showed that the risk was not “slight” and should be guarded against;

(c)The calculus of risk to the Plaintiff required that such risk at that time of the year should, without any real cost or inconvenience, have been warned about to the Plaintiff by the Defendant as his employer.

1. His Honour’s finding that the danger was “slight” should be understood in the context of the subject matter with which he was dealing, which focussed upon the Health Department monitoring programme, which he noted, provided “some evidence of how slight this risk was”.  In the season from November 1999 to May 2000, 254,524 mosquitoes of sixty seven species were trapped, of which eighteen were detected as containing Ross River Virus.  As his Honour observed, that is equivalent to 1 in 14,140 over the whole State.  His Honour’s finding and his observation were abundantly supportable.

1. The fact that a particular detection had been made in mosquitoes trapped in Bourke does not demonstrate that it is an area of special or elevated risk to be distinguished from the rest of the Far West, to the whole of which precaution was recommended in the radio broadcast.

1. The appellant drew attention to the evidence of Professor Lloyd whose report of 21 July 2004 included:

   “….prevention of RRV infection essentially relies upon prevention of mosquito bites, including via use of protective clothing, repellents, and avoidance of outdoor exposure in high risk setting (e.g. local water sources as well as the dawn and dusk time periods).  In rural NSW, this information is regularly disseminated to resident via the local public health units (see for example the attached flyer from the NSW Department of Health which is freely available via the internet from Thus, the information is readily accessible for employers to provide to their employees in advance of a relocation to a high risk setting”.

2. The obvious issue is whether the appellant was so “relocated” to a high risk setting.  Considerable attention was paid to what was exhibit 9 at trial which consisted of some representations by graph of Ross River infections notified and notification rates for Coonabarabran and for Bourke between 1993 and 2002.  Whilst it can be appreciated that debate is available about the precise reading of the graphically conveyed information, it is beyond dispute that Coonabarabran (like Bourke and elsewhere throughout various parts of the whole State) is a place where infection has been reported.  Counsel has pointed to the absence of necessary coincidence between the place of reporting and the place at which infection was received and it can be acknowledged that it could be conducive to error to use the information as determinative of any issue.  It does reveal, however, that neither Bourke nor Coonabarabran could be regarded as an infection free zone.

1. The evidence of Professor Lloyd was germane.  The species Culex Annulirostris is endemic to rural New South Wales.  The species breeds particularly in relatively stagnant water pools including slow flowing rivers, billabongs, farmers dams and water sources around homes.  Some emphasis was placed by the appellant on the propinquity of Bourke with the Darling River, however, it might be noted that his Honour observed the geographical features that Coonabarabran was itself located on the Castlereagh River, Brewarrina on the Barwon and Narrabri (where the appellant had previously served) on the Namoi.  The evidence did not suggest that Coonabarabran was free of the presence of stagnant water features.

1. Professor Lloyd specified that Ross River Virus had significantly elevated incidences of reporting in the Macquarie Health Area in which Coonabarabran lies when compared, for example, with the metropolitan areas.  In relation to exhibit 9 he accepted that without a mathematical tool, assessment would be impressionistic but he agreed that in the overall ten year period spanned by the graphs, the Coonabarabran statistics showed a report of incidences of about two thirds of those at Bourke.  He agreed that, given variation from year to year, it cannot necessarily be said at any particular point of time that, if proceeding from Coonabarabran to Bourke, one would be coming into “worse mosquito country”. 

1. The absence of any area qualifying as being of special or particularly elevated risk is demonstrable in the absence of the Department of Health warning being confined to any particular location but, as already discussed, the warning was applicable to the entire Far Western area.

1. It is essential to the proposition advanced by the appellant that Bourke was (and ought to have been known by the respondent to be) a location of significantly greater risk of mosquito borne infection than Coonabarabran.  The evidence did not support the existence of any such greater risk. 

Ground 4

When assessing the risk to the Plaintiff of contracting Ross River fever from mosquitoes in the Bourke region, and when having regard to the incidence of Ross River fever in the Bourke region his Honour erred by failing to take into account a relevant matter, namely the likelihood that the local citizens, unlike the Plaintiff, had superior local knowledge as to community risks of Ross River fever at such times, and thus were taking the effective precautions against mosquito bites causing Ross River fever which the Plaintiff, who not being warned lacked such knowledge, was not taking.

1. The evidence showed that mosquitoes of various species were capable of transmitting a variety of diseases.  What the local Bourke police practised, according to, for example, the evidence of Senior Constable Speedie, was that they engaged in protecting themselves against insect bite.  They were not, because of some superior knowledge, taking precautions against Ross River fever or any other specific risk but taking common sense precautions against insect pests.  There can be no relevance in the circumstance that the Bourke police had concocted a local “brew” in the absence of any evidence that its quality was in some way superior to generally available insect repellents or that it had some special quality to guard against those mosquitoes which convey Ross River Virus.

Ground 5

His Honour erred by misapprehending the facts:

(a)in concluding it was likely that the Plaintiff knew mosquitos could cause Ross River fever, when there was insufficient evidence to support this conclusion;

(b)in failing to take into account the difference between any knowledge by the Plaintiff that mosquitos could cause Ross River fever and awareness by the Plaintiff when he went to Bourke at that time, that he needed to take adequate protective measures against the significant risk to him of Ross River fever in the Bourke region from being exposed to mosquito bites.

1. Submissions in support of this ground acknowledge that the appellant knew that mosquitoes could bite him while he was fishing, that such insects are a fact of life and a daily hazard in country New South Wales, that Aerogard was an effective insect repellent with which to guard against mosquitoes and that he knew that mosquitoes could cause malaria. However, he denied that he knew that they could cause, specifically, Ross River fever.

1. It was then submitted that none of these concessions sufficiently armed him with information which he needed before he went to Bourke as to how to guard against being bitten by mosquitoes which would lead to a consequential Ross River fever.  It is noted that his Honour did not accept the credibility of the appellant as to his professed ignorance but the evidence showed that the precautions to guard against being bitten by mosquitoes did not differ, irrespective of what particular threat of disease transmission might be borne in mind.

1. The absence of any precaution by the appellant against being bitten by mosquitoes during the fishing excursions implies that he was prepared to take some risks but it is asserted that the respondent is in breach of its duty for failing to inform him of one of many categories of risk and he points to his reaction, by taking precautions after hearing the radio broadcast, as evidence that he would have responded to a warning if it had been given.

1. Whether he would have responded or not, the argument is dependent upon the initial establishment of the existence of a significant risk at Bourke as distinct from the risk at Coonabarabran in particular, and as already noted, the evidence did not establish this.

Ground 6

His Honour erred in finding that if a duty of care existed, such duty of care was not breached, in that:

(a)His Honour had erred in law in confining the duty of care which was capable of being breached to the periods of time during which the Plaintiff was in his rostered hours of duty, thus excluding from consideration on the question of breach the Plaintiff’s activities outside those rostered hours of work;

(b)His Honour erred on the facts in holding that the risk of contracting Ross River fever was low or very low and not relevantly higher in Bourke than in Coonabarabran, Narrabri or Wee Waa, and that there was no risk peculiarly referrable to Bourke, when these conclusions could not be sustained on the evidence.

(c)His Honour placed undue reliance upon the other factors stated in his Judgment which did not individually or collectively warrant the conclusion that there was no breach of any duty of care that existed.

(d)His Honour failed to take into account the risk which the Plaintiff would have in the Bourke region by reason of his ignorance of the particular risk of Ross River fever at such times of the year, of which he could easily and conveniently have been advised and warned by the NSW Police Service (but was not so advised and warned).

(e)His Honour failed to take into account the practicability of a system of warning and information to Police Officers such as was subsequently implemented by the NSW Police Service.

1. As quoted his Honour’s finding was that the respondent did not breach its duty of care to the appellant while he was engaged on work related activities and this did not limit activity necessarily to the hours of work, but activity which had a work related relationship.  His Honour did not explore the existence of work related activity outside the hours of duty beyond his findings that the fishing excursions during which the appellant was relevantly bitten by mosquitoes were not so related. 

1. As above indicated, the scope of duty is not inevitably so confined, but the subparagraphs in this expression of ground are essentially repetitive of previous contentions and do not require to be dealt with again in isolation.

1. The ultimate question for this Court is to consider what, if any, is the consequence of the error in determining that the duty of care excluded the possibility of the respondent being liable for placing the appellant in harm’s way by being assigned to Bourke.  In order to sustain a case that such a duty had been breached it was, and particularly in the way in which the case was conducted, essential that the evidence be capable of sustaining a finding that there was some significantly elevated risk to the appellant in Bourke rather than in Coonabarabran, so that the respondent was negligent in not warning the appellant to take precautions against being bitten by mosquitoes whilst he was there.

1. As already observed, the evidence did not reach that level.  Along with all other citizens in the State, he was exposed to the risk of being bitten by mosquitoes from time to time, and the duty of care of the respondent was not breached by failing to advise the appellant to take precautions against mosquitoes at Coonabarabran or at Bourke or anywhere else in the State.  It is true that, (chronologically) since the affliction of the appellant, the Police Service has published information concerning Ross River fever and a variety of other possible afflictions.  That it has done so with apparent consciousness of the occupational health and safety of all its employees does not establish that it was negligent in failing to give a particular warning to the appellant in these circumstances.

1. I would dismiss the appeal with costs.

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LAST UPDATED:               20/06/2006