Finn v Roman Catholic Trust Corporation for Diocese of Townsville [1995] QSC 165

J1'a·Stilte 4fe • Reporting Buteau \ i.t5~Ck .;c_ q~J!t~ TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sola without the written authority of the Director, State Reporting Bureau.) . SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION· FRYBERG J No 113 of 1993 GEOFFREY MAURICE FINN and THE ROMAN CATHOLIC TRUST CORPORATION FOR THE DIOCESE OF TOWNSVILLE TOWNSVILLE .. DATE 12/05/95 JUDGMENT 1 REVlSED COPIES ISSUE[ Court R~ptJrting Bureau Date /, / ~ , q ~ i Plaintiff Defendant 4th Floor~ The Law Courts, Geol'/le Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 26 -- ,,. 120595 HIS HONOUR: Order as per draft handed to me and placed with the file. That is. judgment for the plaintiff $287,835.34 and costs. ~ 10 20 () 30 40 50 60 .. --· --.-~.,',..:·.,___ .. . JUDGMENT ·... ; -:_, • -- 2 of 26 -- ,'. rd--, {)V-"" ~- St~te -~ Reporting Bureau · Sc__ 7<;)!~~) TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) . ,,-.-----REVISED COPIES ISS ... , 7-~- ··--: -~~ Court faiporting Bureau SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION Date /(, 1 s I t!f S___________, r· · FRYBERG J '· I I \. ' No 113 of 1993 GEOFFREY MAURICE FINN and THE ROMAN CATHOLIC TRUST CORPORATION FOR THE DIOCESE OF TOWNSVILLE TOWNS VILLE .. DATE 11/05/95 JUDGMENT Plaintiff .. Defendant ___--_------·-····--···-------______________1 ___________--_______--------------------------------ifil -- 3 of 26 -- - ,;-- .,'.110595 -- HIS HONOUR: The plaintiff is dying from a lung disease. The disease was caused by a fungus, aspergillus. He cannot be operated on because of a previous operation for another lung disease. He alleges that the defendant, his employer, is legally liable for both diseases in negligence and for breach of statutory duty. To rinderstand his claims it is necessary to refer to his occupational and medical history. The plaintiff was first seen at the Townsville General Hospital in 1974, many years before he began his current employment. He was at the hospital because of recurrent pneumothorax problems. A pneumothorax is an air bubble which occurs between the lung and the chest wall due, in this case, to the leakage of air from the lung. It is commonly caused by structural weaknesses in the lung relating to spaces in the lung which have for some reason lost their integrity and become enlarged. In theory, they therefore lack strength. They have in the medical reports been called bullae. 10 20 30 C) 40 He had operations for this condition in his left lung in-1977 -, and in his right lung in 1982. It is highly likely that a person who has had operations of this type has the structural weaknesses which I have just described, and that is _a fact known generally to medical practitioners. I find that the plaintiff had such structural abnormalities in his lungs . . -- . -···· . ·,···-· .. .. •· - . --~=---L=-~~u~~ 50 60 -~-- --· ~- -- .:...:;!.-!,..• ..• -- 4 of 26 -- i \ '-. 11 0'595 A consequence of the structural weakness is an increased vulnerability to lung infection. There is in the present case,. I should mention, some suggestion that the plaintiff also had increased vulnerability to infection by reason of operative scarring in his lungs, but as far as I can recollect that was not put to Dr Matthiesson and, in any event, it is unne_cessary to make a finding in relation to that point. It is, however, necessary to point out that it is not only 10 20 people who have had operations to their lungs who suffer from structural abnormalities of this type and consequential vulnerability but in fact some 10 per cent of the population has such a disability and most of them go through life without undue consequence as a result of it. However, a person who suffers this vulnerability and knows it, would be advised by a doctor, I find, against taking up an occupation which the doctor was told would involve a threat to his lungs. Coal mining, for example, I was told by Dr Matthiesson would not be recommended. There are numerous sources of potential infection to the lungs and particularly to a person suffering this vulnerability found in our everyday environment. Two such sources are the mica bacterium intracellulare and the fungus aspergillus. Th~ type in the present case which is relevant 30 40 50 ~-- _____________ being__ aspergillus _fumigatis. To infect a normal person these . - .. --· -·- ...... . - ·- --· -- ... ---- ··--··-•---.. --· .... must be present in massive doses. No quantitative evidence __ was put before me_9f the magnitude or concentration of the dose needed to achieve such an infection. However, Dr Graves 60 JUDGMENT . - ..... · ........ ---·.•· ....... , . .,. -~~---- -----... -·-·. -- 5 of 26 -- 110595 gave evidence that the bacterium was what he described as avirulent and the aspergillus of low virulence. A person with a disability - not only the sort of disability which has been referred to so far, but also for example, an auto immune disability - is more vulnerable to such infections. But the point of relevance in the present case is that such infections are a threat to a person with lungs in the condition of the plaintiff's lungs as indicated after 10 1982 by the two operations to which I have already referred. Q 20 A person in his position is much more likely to contract an infection if exposed to large doses of the relevant infective source than if exposed to low concentrations of the infective source. That seemed to be common ground among the various experts who gave evidence before me. Again, no quantitative evaluation was made or indeed, in my view, would have been (1 30 practically possible. That conclusion, however, is supported () by the description of the two agents as avirulent and of low virulence. The intracellulare bacterium is ubiquitous and is found everywhere in the environment, particularly in soil. The aspergillus fungus is found ubiquitously also but particularly in decaying vegetation and in some moulds. 40 () 50 _____ ----~-~-~-~-1J:!1Y_ pe~~-°-Il _Q~ J?_Qrmal physical make up would, as I have -- ... - -- said, be vulnerable to these infections only if exposed to massive doses of them. But to any person, particularly to a vulnerable person, the level of the risk which the sources .. -~ ,.:·:··:· ~~--~- ·:. ·,·,~~:::1;~::-:::·:: ':: __ -~;~:, .•. ,.: •.:·'.·.·_· ::~;~c;~·' :·. ·. ::.. •... · . ·-··· -- 4 JUQGMENT ·-· . . . ----· . - . . . ~- ... --~ --_..:._~>. -:· .__._. ,.:~_ ",:. -~~~-:~::~:" .~-!- -~~- ~:-~ -~- . -... 60 -- 6 of 26 -- ( I ( -·. -·- - -.. ·-·-··- .. --· - -····••·-·· 11 0595 create depends upon the volume of air inhaled and the quality of that air. The volume of air inhaled in turn depends on the duration of exposure and th~ activity being undertaken by the target person at the time of exposure; for example, whether he or she is sleeping or working energetically. quality of the air depends upon the environment and any activity taking place in that environment. For example, The there will be an increased concentration of the offending agent if it source, mould perhaps or rotting vegetation, is disturbed. The same applies with soil, both moist and dry, which can be stirred into the air creating what was called by the experts in this case regardless of its moisture content, aerosol. Proving in a scientific way and in a quantitative sense the degree of risk which these factors create is in my judgment completely impracticable. It would not be practicable (to take the circumstances of the present case) to test all of the possible sources from which the plaintiff might have received an infection and then make a comparative risk assessment in scientifically quantitative terms. I return now to the plaintiff's history. He applied for employment with the defendant in 1985. His application is dated 17 January of that year. The defendant at that time operated St Margaret Mary's College in Townsville and it was ·--- __ at_th~t- college _that _the plaintiff appli~d ~or_ t~_e po~i~-~c,n -- .. ----·····- .... of groundsman. He filled in an application form although there is some debate about whether the form was filled in completely by him. It seems to me that his evidence that he . •.·. ' .. 10 20 30 40 50 60 ! . . . •• > • • . : •-~• :-::-f';... -.~f-.~ _ _',, • ,;.. , •.. ::,i.••,,1:- ..C~-••.--:•:••• :.~,.-:- .•.. ; __ ~:.;~~s-;.··.;,;~~..:--··~/.••--...:i:.1~.t..-'A;.. ~k~~~::..~~~~-:.-.:.::_:~·..:..~.. .:.....:.;:.:~ - ·-· . ~:;\).:....;;.: -·-;;;-~\~·;--.s~~~::---- . . .._:_::.'.·=·..'..~.-.- :~;~~~¾--;-_:~~~~ ~~1i~i:t~~~:·::::~.. .<,.·: ·.:... ·-~· ~ ·-~.·· ~ .. ,-_·_. .. -. - 5 .. c ·"· ····-. •-. ·•...· -·, .. ·, +<. L;; , <·:=~~~ ·•·· _· .. JU_~~~~N~. •;·h~;~'.~~_b1[:~~'. .c ..• ··-· • i .:-...~•.·J·_;·:·::<; ,: .. --~ =- -~ .· .·. ~0-,: :;;;~~:.-~;::~ .. -- 7 of 26 -- 110595 did not fill in anything after his phone number is correct for that writing is in a different pen and moreover his asse~tion was not challenged in cross-examination. The form had a section entitled, "Health:" and with two subsections, "General" and "Any noteworthy disabilities." The form is blank against the first of those subsections and the word, "No", has been written in as I find by someone else against the second. The plaintiff had an interview with the head of the school and as I understand it, it was not suggested that at any time during this interview was he asked anything of his health history. It may be thab he was asked whether he had any disability during that interview. He was given the job and a letter of 17 January 1985, wrongly dated 1984, sets out what were his duties at that time. They were to clean andmaintain the toilet areas daily, to mow and attend to the college grounds, to be responsible for seeing the outside areas of the college are kept clean and to attend to a wheelchair student when necessary. It is not suggested and there is certainly no evidence that asking the plaint~ff about his previous health and history of operations would have been burdensome. It is not suggested that for reasons of a desire for privacy or otherwise the plaintiff would not have answered any such question if asked. _____________ The fact is that he was not askeq _and __ the s9~e>o_l _had:_~o __ _ 1::..:. 1:-: - F.:•:;'~--:. knowledge after he began employment of the two operations to which I have already referred. 10 20 • • 30 40 ( ) 50 60 ~,~..::.~•·..~.t...·.:.·i,..·""·::_:,~~..~.•.:_·..:~ ...::~···~.:..~-:.;:.-:~-:.-~~.~-:~.·.·~-·-:_.·.·•..:.·.~_-.:_-_~~.::·..: .. •._. ·· ...........-.-_:··.. ,.~·-_;__... i--.·.· :·.·......··___·,·.~··.·.·..:.-~··:. - .. ·, .-.... - - . - . · - , •. ·?::..·~'·-~ ·-"6 ::_i .. - , ~,·~-:· __ _.-.::. ·::.-.:.·. -~;_:·-.-:_~/.... -~;~,.!.~~~\{::·;~tJji;~f-JUDGMENT ~-·--:--~·:":~:~~-~_-_··,-:;:i:':~_:_~: ~£i,~.i~-= ..:~: : -• . -·-. ... .:.. __·. ~. . ._: ~ ·:_:; -~~ ::~~-~~;.tt~~i;~~~:±~Z::~:~;=:t~: }_:~.~>----~- ~;~~'~}_f:!;:'~-~ :· i:T~•c=-:·: ~·- . ~·• ~ ::,<~~3.-~:f;~0.~ -- 8 of 26 -- ( 11 0'595 I should record at this point that the school employed some 30 staff full-time and part-time and I infer that the school was not the only organisation at which the defendant employed workers. There were some 1,000 students at the school at the time the plaintiff commenced work. In the year following his employment the school acquired a water blasting machine. This machine appears in photographs· which were placed in evidence. It consists of a compressor and an input hose and an output hose, the compressor being driven by a petrol motor. Water is drawn in and then expelled at high pressure - relevantly on the evidence, 2,200 pounds per square inch. When that machine was acquired the plaintiff was given some documents which together form Exhibit 29. They consisted of a warning document, a document headed, "Operating Instructions", and a document headed, "Check list to prevent unnecessary component failure." Despite its name, the operating instructions document is simply a two page leaflet and it is clear from internal references in that document that it is not the instruction manual or operating manual for the machine. The warning document contained no warning in relation to the inhalation of any product of the operation of the machine. To mow the lawns as part of his duties the plaintiff was provided with two mo_\'lers, a ride on mower and an ordinary motor mower which he pushed. Again he was given no manual, nor any warnings regarding any risks to him from dust created by these machines. I interpolate at this point that the 10 20 30 40 50 ... 60 _....,.,. __ _______ ___________________ .., - __ •-· _"- --•·:·- :· ~:. !_:·:-: :.;·~·~·'tt}'.:~.: ~<:•~~/:-:<·>_:__ : ·.. -~'c ~U~.?.~~-NT__ < ..~, ~-~-:. -~ -. .. _...'. ·.:~ :,,..:~-~-~~--.-~-;~·. -~~-~~~- ~- ·.~·, _· _,_ , -··. ·---·~ ~ ~~- ;~~ ~:.~-- ·_· ~. •.~::~-~-~--~~-- ·:. --~-·:· __;,::::... ·.-- ,·. -~·-:: -:~ :... , :_.,~ -· ---. - .:·::;;:_ -~-:.·.·__ ~~::_:_ .,;·~:\~f~;;.+~~-;:;6_;~---~~ -~-- _;;_ ·_ .._·::: -· .- - · -- ·- --- _., ·''·• '--~-----•"'--'L ... :.:.:.:;::.C,CC- ,_ ~---, ----· •.. -- 9 of 26 -- :· .. ·.,·· ::•.::, ,. _· ___ ··· .. - ···- ···110595 plaintiff did not complete grade 7 at school and had difficulty writing though he said he was able to read. He worked at the school in a manner which I will refer to in a little more detail later, until 1989. In April of that year an X-ray of his chest disclosed no relevant problem but~- by September of 1990 he had been infected by the bacterium, intracellulare. He described his condition. without challenge in this way. "I remained unwell with a very productive cough. This cough interfered with my sleep and I lost weight. Dr Matthiesson was of the opinion that surgery offered the only hope of controlling the atypical tuberculosis." I interpose that that is another term which was used to describe his condition. "I initially wanted to avoid surgery because I had believed that I should try drug control first. Howev~r, acting on Dr Matthiesson's advices, on 3 January 1991, Dr Barry Hicks, the general surgeon of the 10 20 30. hospital carried out an extensive resection which removed the ..(_) left upper lobe of my left lung and the atypical segment of the left lower lobe of my left lung. In addition I had extensive thoracoplasty, an operation which deform~ the rib cage. Dr Matthiesson said this procedure would reduce the chances of a recurrence of atypical tuberculosis." In layman's-terms what happened was that a considerable part of his left lung was surgically removed and his chest caved in to prevent _complicatiol)s __ .w_hich __ w_ould. otherwi_se llave_ bee11 _ - : ...:___.,_._. .;·, .. .. likely to result. The operation.which was performed was describ~d by Dr Matthiesson, his physician, in terms which suggest that the passage which I read from the plaintiff's 40 50 60 c·-- _J -- 10 of 26 -- ( 11 d59:.. statement, Exhibit 14, a moment ago, was in fact prepared not by him but by his solicitors: "In 1990 Mr Finn developed extensive pathology in the left upper lobe consisting of consolidation with cavitation. These changes were associated with a productive cough. Sputum consistently grew M.Intracellulare, which is an environmental baccillus related to M.Tuberculosis, which produces a Tuberculosis-like disease in an occasional individual. There is frequently evidence of emphysema or other structural lung damage prior to the establishment of such an infection. M.Intracellulare infection responds poorly to antibiotics and this was so in Mr Finn's case. He remained unwell, with a very productive , cough. The productive cough interfered with his sleep and he lost weight. It became apparent that surgery offered the only hope of controlling the disease. He initially wanted to avoid surgery, but agreed to this, and had an extensive resection, which removed the left upper lobe and the apical segment of the left lower lobe. An extensive thoracoplasty, an operation which deforms the rib cage, was performed, as this procedure reduces the chances of a recurrence of the diseas'e." 10 20 30 The operation was successful. Dr Matthiesson said that thereafter the plaintiff would be able to lead a normal life albeit of course that he would retain his original vulnerability and would perhaps also be subject to possible arthritis as a result of the operation to his chest wall. 40 However, his vulnerability now became a matter of greater significance because the operation which was performed -to rid him of the infection is an operation which can only be performed once. That is because it removes a large part of the lung and there is not enough left to perform it for a so second time._ 60 •: -- 11 of 26 -- ·----•-• . ~ - ..... ~ ....... ·-- ·•-· . -- .... -·~- .. 110595 To have that operation the plaintiff sought from the defendant and was given a total of four months leave without pay .. He $Ubmitted a medical certificate from Dr Matthiesson to the defendant after the operation which informed the defendant that he had had atypical pulmonary tuberculosis. The certificate certified him fit to return to work. Upon its receipt the defendant made no further inquiry as to his state of health. He returned to work on 1 May 1991. The plaintiff was regularly reviewed medically during 1991 and 1992. In August 1992 he was producing significant amounts of sputum and by November was complaining of not feeling well. An X-ray taken at that time showed new pathology and tests were undertaken which after a short time isolated the fungal infection aspergillus. For the reasons which I have already explained, the only possible treatment was drug_s. To those drugs the plaintiff has not responded or at least not to the extent-of ridding him of the fungus. His condition led Dr Matthiesson for the first time to inquire for a detailed description of his work environment. The plaintiff told Dr Matthiesson of the water blasting machine and was immediately advised that the use of such a machine to remove mould should only be considered by _him while wearing an appropriate breathing mask. The plaintiff informed the school immediately of that advice and was . p~~[!\P~!Y _prc,y~~-~~- ~-i-~:11 _m~~~y ~-<? __ (J~-~~~ _1?~x __ ?r.>-.e.- .... ~llcl~- _he did. The invoice is Exhibit 30. 10 ('1 \._ , 20 30 () 40 50 60 -- 12 of 26 -- ( .-;~. r.~.~·::::.: .- 11 0'59!) It shows that the mask which on the evidence before me would have been suitable to prevent each of the infections which he acquired, together with two spare cartridges, would have cost in total, $39.40. He never in fact used that mask because the school directed him not to use the machine again. Arid in fact he ceased working for the school in early May 1993. has been permanently unfit for work since that time. He has suffered a consequential shoulder disability described as a frozen shoulder. It is described in more detail in the report of Dr Gavin Douglas, which is Exhibit 3, but it is sufficient to refer ~o the plaintiff's own description of the condition which he first noticed in October 1994. He says he is informed that it is due to the tightening of muscles associated with the deterioration and/or shrinkage of his lungs. "The muscles are always sore. At first the pain was fairly severe but a physiotherapist has worked on these muscles and has got me to a fairly stable position at this stage. I have reduced use of my right arm because use of the arm causes pain. I expect that condition to be ongoing and to possibly deteriorate over time." Again the pass.age is quoted from Exhibit 14. The first question which arises is what caused the plaintiff to suffer the infections.· There is in my judgment little doubt that. the activities of water blasting and mowing _stirr_ed up _the _bacte_ria__a_nd _t:._he__ fungus spores. Those bacteri~ arid spores were on dust,. on water droplets and in the air. I find that when the plaintiff was using the blasting machine and the mow~rs he was periodically and for .- 10 ., 20 30 40 50 60 ·' i~~~;::;;;t_::~-'..:.C.C.~.:;;,,_:c;c;3Ji01 L "<C:S,-,'~.~::.... .•....., . . .. . . ".', ... ,:_: ::;;~·:.... ;. __:·..·.. -.\::::;~~;~~:~0;:;;:.::--.~,;_._:·:_J_;:-:•:~ _- __ -_· ·. -~_::~~-·: JUDGMENT . . _, __ ... ;.;;., :-. , .... --------------- ..,,.•;;;-,-·,-,,.-- . . .~ __ :-.:.-~-~- -~~ \ -- 13 of 26 -- I ·- ·-· -····-····----- -·-· ··• . 11059~ some time enveloped in clouds of dust, water droplets and airborne bacteria and spores. I find that the plaintiff exaggerated the time which he spent on activities productive of this effect. However, I am satisfied that he carried out water blasting in each schoo1·-. vacation, that is four times per annum, over extensive areas of the school including areas containing considerable amounts of mould and some rotting leaves, and that he used the 10 machine not only at ground level but also at waist, head and (-) above head height. That is to say that he directed water from the machine to targets at those heights. I find also that he used the machine to clean the school on other occasions when a function was to be held at the school. I am satisfied that he used the machine on bricks and paint work. To the extent that any evidence by Mr Doran is the contrary, it results from a misunderstanding between him and the plaintiff. I find he would use the machine for hours at a time and that after his use of it black mucus would emerge from his nose when it was blown. As far as mowing was concerned I again find that the plaintiff exaggerated the extent of his activities in this area. Probably he mowed more frequently than was necessary but certainly he did not spend as much time as he alleged~ _ Nonetheless.he did spent significant periods of time with the mower and this inevitably caused dust to be disturbed and microbes to be inhaled. I find that when he had finished mowing he would often, when blowing his nose, emit brown 20 30 40 C)I ..~- • 50 60 -- ·-···-··-··----·--·. ,.---~ ·--· "-r···-·-- ----·-· - ·•-·-- ... ,_:_ -- 14 of 26 -- ~. . : :.... ·.-~•-,.; 11059!:> mucus. Of course the presence of discoloured mucus in a sense shows that the respiratory system is doing its job. I refer to it not necessarily to show that the material has reached his lungs, but to show that the activities in which he was engaged did result in him being enveloped in clouds of offensive material. In short I find that the activities which the plaintiff engaged in as part of his employment resulted in his having to work in areas where the concentrations of potentially infective material were massively increased by the tasks which he performed. The defendant argued that it was not open to me to find on the balance of probabilities that the plaintiff's condition was caused by these activities. For the defendant, the point was made that the infective materials were ubiquitous and that the infection could have occurred at home or elsewhere. It was argued that to prove his case it would have been necessary for the plaintiff to carry out an overall survey of the places which he attended or used apart from the school, and to show at least that at those places he carried out no like activities and that there was no significant chance of any comparable activity occurring at some other location. To some extent the plaintiff did undertake such a task. He gave evidence that he did not mow his lawn at home and I infer at any other place, and I am also prepared to infer 10 20 30 40 50 60 -- 15 of 26 -- .. 11059!> that he did not stand in close proximity to the mower at his home when his de facto wife or children were using it. He gave-evidence that he did not in his non working houri engage in any activities that caused him to come in contact with excess ~mounts qf dust or mould such as what seems to have been the position at school. That evidence was not challenged in cross-examination nor was it suggested that he had at any time engaged in any other activity or been present at any other time when any activity was engaged in by others, which would have exposed him to high concentrations of either of the infective sources relevant in this case. In my judgment the evidence given by the plaintiff is sufficient albeit, just sufficient, to cast an evidentiary onus on the defendant, given that the plaintiff has proved the existence of a high risk occasion at his work. Really the defendant's case of arguing that the onus of proof is on 10 20 30 • the plaintiff and the amount of evidence led is insufficient, (J is an attempt to force the plaintiff to a degree of precision of proof which is impossible and unnecessary in a legal environment. The defendant fixed not only upon th~ areas where the plaintiff might have been, that is the variety of sources, but also upon the degree of concentration and relied upon the failure of the plaintiff to quantify either the degree of offensive sources at the school or elsewhere. 40 50 (_) ------· ··- --·----- ..., ·. r·.-- - ·-···- -·-- ~·:_'."'."' ......... - ~j_-- 1.i:.;_ r-- ~ft·;. - 'f.: i~1.: ~= -· •( - ~~-1;·: -. : r.;-.::.: .. i ..... 60 ~.:.,_·~·i·r-~_:_~.l_t_:.._~--.·.~.'..~_:__:~.,,.i_..-.~-.-.•.,;··~.-~_:-.:.•...:·._,.-·;•:·:,··.·•.-.~.,..;,......,:.·_:.-_-_:.".· ...·.,-:-.·::.-·.·.·;.·_:.;-_}.•·.~.:.·_•·:_•.·,.:;.··_-.~.~-:_•·.~.·...·:..·•···•··:·_.~_:_~_•·····--.·_•·--·•--·······----·~~~:~~-~~.-.}·~~-(1- 4.:·:t~:;::fiI*r::c.~~"i-?{i~:~:i~~f~t~:~'.It4~:~·Gr.i~~~:··'.··:-· ..........--,,..,...~--~~.:-n •• - - ••-• - - ... •••--• ",••••_-,_:_H•-:~---•_-.:~"':•:._:)~_:••::-.'._~•:~--_:-...:;•••:-::•,-:.-••.•: __ , .. •••••••->:•,•,~:-:_:.::;:~;~-•-_,,_•,•,••_-:•::••••":••: __ •.-•-•,• ••• --••••,CC',C,"•·~c. -- 16 of 26 -- ( "· / 110595 In my judgment such an approach might be appropriate if a scientific inquiry were being conducted but it is not necessary in litigation. In March v. Stramare Proprietary Limited, (1991) 171 Commonwealth Lawk Reports, 506 at page 509, Sir Anthony Mason, then Chief Justice of the High Court of Australia, said: 10 "rt has often been said that the legal concept of causation differs from philosophical and scientific notions of causation. That is because, 'questions of cause and consequence are not the same for law and for 20 philosophy and science', as Windeyer J pointed out in National Insurance Company of New Zealand Limited v. Espangne. In philosophy and science the concept of causation has been developed in the context of explaining phenomena by reference to the relationship between conditions and occurrences. In law on the other hand, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence." In law it is only necessary to be satisfied that a condition 30 ( is so on the balance of probabilities. In the present case I \.__ __ ,' am satisfied on the balance of probabilities that both infections were caused in the course of the plaintiff's employment while he was engaged in what were, though unknown to him, the hazardous activities to him of mowing and water blasting. The defendant expressly conceded that its systems of instruction, advice and training, were deficient. rt is therefore unnecessary to consider those systems in any ·detail. Plainly such deficient systems would be·enou~h if oth~r necessary conditions of liability are sati~fied to render the defendant liable. However, the defendant 40 50 60 • • -- 17 of 26 -- 110595 contended that it was nonetheless not negligent because there was no risk to a normal person from carrying out the impugned activities and that it, the defendant, had no knowledge nor any reason to inquire regarding the plaintiff's condition. The case for the plaintiff may be put on two bases. First it 10 can be said that he is one of a class of people of a sufficiently large number for it to be said that the defendant owed a duty to the class. On the plaintiff's behalf Mr Wall of Queen's Counsel made ·reference to Shirt v. C) Wyong Shire Council (1980) 146 CLR 40 at 47 to 48. In my view it does not matter whether the case be considered as one where the plaintiff is a member of a significant class or whether he be considered simply as a vulnerable individual. It is clear that if the defendant had known of the plaintiff's condition it would have been liable: Paris v. Stepney Borough Council [1951] AC 367. I have found that the defendant did not know of the condition, that is to say the condition which was signalled by the two pneumothorax operations, namely the lung abnormality and I find .that the defendant did not make any inquiry which would have disclosed the plaintiff's vulnerability and condition. The application form to which I have already referred did make inquiry regarding the existence of disability, but in my _judgment that does not go far_enough. In my judgment _the_ .. defendant should have sought from the plaintiff a medical history. Had it been ~lerted regarding the operations carried out ·in 1977 and 1982, it would have had a duty to 20 30 40 50 60 CJ C) J( •• • ~-~ -- 18 of 26 -- c/ 11 059~ seek advice as to the implications of the operations having regard to the defendant's knowledge of the nature of the tasks which the plaintiff would be required to carry out in is employment. I form that judgment having regard to the relationship of proximity which existed between the plaintiff and the defendant and the circumstances of the case, but I am reinforced in it by the evidence of Mr King and Mr O'Sullivan. I find that if advice had been sought the obvious advice would have been to do what ultimately was done and that is to buy the relatively inexpensive mask which, on the evidence, would have been adequate to prevent the plaintiff developing either of the infections which he developed. Should I be wrong in relation to that finding in relation to th~ intracellulare condition, I would still make the same finding in relation to the second infection based upon the defendant's knowledge of the carrying out of the operation which was reported to it as a typical pulmonary tuqerculosis and the information which apparently after that operation the plaintiff conveyed to his superior, Mr Gorton, about the operation. Inquiries made after the first infection would have disclosed that the plaintiff had in effect lost most of one lung and that any further infection would likely be terminal. 10 20 30 40 50 60 ~ ~;;.c;,,,~~~tj'-~;;,~{~1,-.Lc.· i.~~:tJ:1 .p~.L........:2=.~~;::. .•.•.· ..JU 0 GMENT .. . -- 19 of 26 -- :·:-- r: 11 059;.. I should interpolate also that there is some evidence which might reasonably be interpreted as referring to a conversation had with Mr Gorton prior to the operation which reinforces the position regarding the intracellulare. However, the defendant argued that it was entitled to.be satisfied by Dr Matthiesson's certificate. At first sight there is some attraction in that argument. The certificate which was provided to the defendant was in general terms, to whom it may concern. It certified that the plaintiff, "will be fit to return to work on Wednesday 1 May 1991 • II It was accompanied by a further certificate that the plaintiff was admitted to hospital suffering from atypical tuberculosis in consequence of which he was totally incapacitated for work and was unfit for duty up to 30 April. However, when that certificate is viewed in the context of 10 ( -\ "-... ) 20 30 the circumstances of this case it is apparent that there was () a common assumption both by the doctor and by the defendant that prior to contracting the intracellulare infection the plaintiff was fit for work. In other words the certificate related to the plaintiff's illness and was not a certificate resulting from an overall medical examination of the plaintiff and was not intended to be the sort of certificate which might result from a full medical of the type for example, administered before a person joins the army or the 40 50 60 -- 20 of 26 -- I do not regard it as reasonable for the defendant to have viewed the certificate as a certificate of the plaintiff's suitability for all of the tasks allotted to him. The doctor in fact had no specific knowledge of what those tasks were and there was no reason why it should be thought that he did ~ have such knowledge. It is unnecessary to consider in these-- circumstances whether the defendant can, as it were, delegate its duty to another. In summary, I find that the defendant owed the plaintiff a duty of care and that the breach of that duty caused both of the infections which the plaintiff suffered. I find that the l defendant was negligent and is liable in negligence in respect of both of those infections. ( '· Alternative claims were made for breach of statutory duty. It is unnecessary to deal with the two claims based on regulations 63 and 72 of the Workplace Health and Safety Regulations (1989). Section 9 of the Workplace Health and Safety Act of the same year provides, "(1) An employer who fails to ensure the health and safety at work of all his employees save where it is not practicable for him to do so, commits an offence against this Act." It is plain from the exclusion of sections 23 and 24 of the Criminal Code that mens rea is not an element of the offence _t:h_e;r::~l:,Y.. c~e.~t;~q~_~ __ J:n__ Illy j~dgment _that section does create a ,- . ···-·· -· " ~ight of action and it is of the type which traditionally has been regarded as creating such a right of action. I think it was practicable for the defendant in the present case to 10 20 30 40 50 60 .. JUDGMENT,, , • -- 21 of 26 -- 11059!:. ensure the health and safety of the plaintiff. It could have done so simply by the provision of the mask and it could have asce~tained the need for such a provision by a few simple questions. In my judgment therefore, the defendant is also liable under section 9 of that Act. I turn to the question of quantum of damages. The plaintiff is entitled to general damages for pain and suffering and loss of amenities of life including loss of expectation of life. There is no doubt that he has suffered considerable pain and will suffer a great deal more before his death. He has endured and will continue to endure distress. He is forced not only into regular bouts of socially unattractive coughing but also into disposal of the phlegm thus produced by methods which are also socially unattractive and must be embarrassing to him. His activities are severely limited and he has of course complete consciousness of his loss of expectation of life. Dr Matthiesson in a report of 28 April 1995 estimated that if the infection persists without any intervening adv~rse event, and I might say that it seems on the evidence inevitable that the infection will persist, he estimated that the plaintiff has less than 20 per cent chance of surviving five years and less than 50 per cent chance of surviving two years. Any significant adverse event could cause a sooner death. 10 20 30 40 ( . ' i j 50 60 -- 22 of 26 -- ' ( ' / ·-----•.--:,. ..:--· _.. ' 11059~ In my judgment an appropriate award for general damages, for pain and suffering, loss of amenities and loss of expectation of life is $90,000. Interest should b~ allowed on $50,000 of that amount at two per cent per annum over a period of four years. Special damages are agreed between the parties in the sum of $5,148.58 with interest of $130.87. Past economic loss has been agreed in the sum of $44,310.72 with interest agreed thereon in the sum of $1,800. Future economic loss is agreed between the parties at $376.21 per week and in my judgment the amount proposed by the defendant of five years is, if anything, generous to the plaintiff. I would not be prepared to allow any longer period. The plaintiff claims future loss of superannuation benefits and various figures have been put before me in relation to this factor. I am not satisfied by the methodology adopted by the accountants who gave evidence in this regard, nor am I satisfied with the failure of the plaintiff to lead evidence of the actual position regarding the superannuation fund of which he was a member. I think the correct approach in these circumstances is and should be a conservative one. I am prepared to allow the plaintiff the sum of $18,000 in respect of superannuation foregone. The parties have agreed the plaintiff is entitled to an amount to represent the loss of savings during what have been _perhaps euphemistically called, "the lost years." And in that respect in my judgment it is proper to allow $50 per week for the period of the lost years based on an assumption consistent with that already made of death in five years. . '·! ,. -~...-~ ·· ..-·( ::, . ·: -·· ' ...... . -----··'···· -- 21. . .. JUDGMENT ,. :-·· '~..:·:<._~1E·•~;._:~_~:,·:.·~:-~,.·,··., .. _._,.. -... ,..... · ---.-.,---.·-···· .. ··----- -· ..... :~ ...:,:.::,,_:.·, _: ..... : •....· .- --- ;~~~1~?ii:~t{~:.;:_s:,,~.:~;;~c'~ _. ;_-- -- 10 •: 20 30 40 • 50 60 -... · ...... " .. ·... :· .-..... ': . ... _-.- ...... - .. ·_ -- 23 of 26 -- : . 11 059!:. The period for which that should be allowed is to be calculated, in my judgment, not up to the age of 65 but to the age of 59 as contended for by the defendant. I might say that I would regard that as, if anything, generous to the plaintiff, since it allows a discount of only six years for the contingencies of life and the vicissitudes of life which in the plaintiff's case are considerable having regard to his pre-employment vulnerability. The parties are agreed in relation to a Griffith v. Kerkemeyer claim in respect of past services in the sum of $4,420 with interest thereon in the sum of $353.60. For the future the parties are agreed that the claim should be based on $30 a week and consistently with my findings that amount should be calculated over a period of five years. The plaintiff has claimed an amount for future expenses of lawn mowing. I do not regard that as a proper amount to claim and I am not prepared to make any allowance in respect of it. It is an expense which is not specifically ?rought about by the plaintiff's condition. It is an expense which one might expect to be paid out of the plaintiff's ordinary income, and in any event the evidence before me was that the plaintiff did not before the accident mow his lawn. That was done by his de facto wife and sons. 10 20 c-1.• ! 30 CJ 40 C).. 50 60 L".:'""-~: ....;..;_.._,,_., ___ ,,,_~:;._:.,., ..... ·--•_.- . . 22 . ·-. G '~'·'""'·•".;>···--•·· ., .......,.. ·· · · · · .... ·.. ·.. · ...•- -· · .... ··-· .......... -·--- -·· _.-.: .~_·... .·.. ··.·.· ..··.. --- ·.. ·-··· ··.. • . .::c,..~'.C:~.:;.,~i..fJ.:,.,,_:cq-.;..·.:J.U .....o..·..... M ...· .E..N.. T. ··""'····'•':...:;;.,,:~:;.. . t:f;.t:.._·_·;"f:·i~.?~:~;;;.TI~.~.:~;~_--.. --.. ~:.:~~~-----~-~,.--;, - _ __,...,~_ .....·•. ., ....... -·-· .. ----·-··>···-··-..... --...··· .·· ···-•··· ·- ----~· . . . _;·_-,,_--- .... .--- . - :-:·, ~:'.·::-:::~:-:-"":: =.-·::-<:r,::::::;~:_"'~~-~--·: __ -._ .. _______________;.'. :::·. • •.• - .••• - ·--- - !. .··.-••.....•.•• :-.. ·. ••. . . • ··- . • • .• . . .. ·-·-··,·.~ ·.·,·._··.·.,·-·.• ·-···.•····'.,-·.•-•••·.·.·_..;:.-.·.•-_••·,.•·.,::..··':,·~.·._·.~~:·.·.,·,·...:.·.···.·:·:··•..·.,.. ,. ---,.·_··.·-:-··~-.,·•::_·,.~.·:•-··. • • • •· •..•,-:· .• :.·.?.:.·,·.·-,:~··...,..~~... ":·".·_c'..-~··.··:.-.,•.,.,·.·...•,~.'.·,-·.·,·,··, ....· -·.·,:...·:...... ~·: ........··:·.·.·.· =~··••.·,•~•._:..••••~····.....·..•.· •'~•-:.,~~j:_.~~:•\:;'•:•~f;~.;;,:i_~~:~~•--!;:-.:.;;~~••>-\:::_.;:;;_.~~-.::,;:~.::-;••~~f~~;•• .."- .. _.• _.. _-_•; ~••::~- :•.. - _- -•--z• ~.- • -::: ~ ,...;, •-•~: .. _ •=.: - ~~•• -- 24 of 26 -- ·r i I " 11 659:. Future pharmaceutical expenses have been agreed in the sum of $5 a week and consistently with my findings should be calculated over a period of five years. I think that comes to a sum of $1,157.50. There will be a need for future nursing care at home for the plaintiff. That is based on 10 visits to the plaintiff's home by a nurse periodically from.- time to time. I find it is reasonable to allow the commercial rate of $24 per visit. The amount should be calculated on the basis of eight visits per week for a period of 12 months deferred for four years. The parties are agreed that there will be the need for oxygen in the future, particularly an oxygen concentrator with back up cylinders for a period of two years and that an appropriate amount is $5,000. In my judgment the method adopted by the defendant in calculating that is appropriate and after adjustments for present value the amount is $4,320. There will be incurred in the future hospital and medical expenses during an expected terminal stage of the plaintiff's illness. The parties are agreed on a future expens~ of $30,000. That expense will consistently with my findings be deferred for five years and I think the figure for that subject to correction comes to $23,52-0. I think it is appropriate to make an allowance for short periods of hospitalisatio~_and medical_care prior to that_ terminal stage and an amount of $2,500 should be allowed for that. That allowance is somewhat arbitrary but seems appropriate. 20 30 40 50 60 h .~•-~ ..,,.,.._ . .'."" ...--•- ,. ---· -.....:, ·- .,.; , ,. . ,, '. ,.',.,. ..,,_·.,..·· .. ·.-.- -- 25 of 26 -- -· 110595 T -111/HG M/T TSYSC2168/69 (Fryberg J) From the total there should be a deduction of the agreed amount to be refunded to the Workers' Compensation Board of $35,058.97. MR BAULCH: Your Honour, the amount that Your Honour last stated for the deduction was the amount I think of the original letter. The current amount is $35,347.12. HIS HONOUR: That is the appropriate amount for the deduction. MR BAULCH: For the deduction. HIS HONOUR: $35,347.12. Gentlemen would you please prepare a draft order setting out - or perhaps a calculation which can go on the file setting out the amounts and I will make an appropriate order. You can mention the matter at a convenient time later in the sittings. , . 10 20 30 40 50 60 .. ·.. : .... ·._ ...:_· _· __ ._. ·. :,,·.:.. ; /:::;;::\Sl:l::.,;' .:.~' '. : _·:< •.. 24~- ..':~::::;~;s:;:;.;•. ··.; ~: ... : : · . .. :;:<":'JUDGMENT . . . .. .. . . .. - ' .:.. ::-~ >> :.: ~.::--;;:~:-·,- :-' ·..:·. _. .. ..... .. . .. ... ..-...'. ,:::::!,; ~-~<:/ ... - , - . - -- . - ~ -~ .:: ;.--_ .. -' ... . :~- -- ·- -- --~. -.- .. ·- - .. ·~ :..,_~ ;;_:.~- ·_ '.~,-; ~-_:.-_.;:.: ; ."7-: --~ -~_:; _:·· --:. - -.. :· -~- -- - . . -- .. --~~ ~~#.~: -~--~,-~---' ·: :·_.:: ...'_- .--~. ·: -. -- -. -- .·....... >-~ -.. . --- ,. ~-'~--- ~~~-: -----~ -.-- ~ .... --·. ·_ -- 26 of 26 --