Black v Warwick Shire Council [2009] QSC 123

SUPREME COURT OF QUEENSLAND CITATION: Black v Warwick Shire Council [2009] QSC 123 PARTIES: NEVILLE JOHN BLACK (plaintiff) v WARWICK SHIRE COUNCIL (defendant) FILE NO/S: BS 8548 of 2007 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court Brisbane DELIVERED ON: 25 May 2009 DELIVERED AT: Brisbane HEARING DATE: 5, 6 and 7 May 2009 JUDGE: White J ORDER: The plaintiff’s claim against the defendant is dismissed. CATCHWORDS: EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – SAFE PLACE OF WORK – where plaintiff was employed by defendant Council as a back hoe operator – where plaintiff worked on road repairs near a cattle feedlot and at a sewerage treatment plant involving contact with cattle waste – where plaintiff contracted Q fever encephalitis – where plaintiff was not vaccinated under the defendant’s workplace health and safety infection control procedure – where defendant owed plaintiff a common law duty of care not to expose him to risk of injury it knew or ought to have known whilst carrying out his work – whether there was a reasonably foreseeable risk of injury to plaintiff in the course of employment – whether defendant breached common law duty of care EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – DISCHARGE AND BREACH – GENERALLY – where plaintiff was employed by defendant Council as a back hoe operator – where plaintiff worked on road repairs near a cattle -- 1 of 19 -- 2 feedlot and at a sewerage treatment plant involving contact with cattle waste – where plaintiff contracted Q fever encephalitis – where plaintiff was not vaccinated under the defendant’s workplace health and safety infection control procedure – whether defendant breached statutory duty of care imposed by provisions of the Workplace Health and Safety Act 1995 (Qld) Workplace Health and Safety Act 1995 (Qld), s 22(2), s 26(3), s 28(1), s 29B, s 37(1)(b) New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20, applied Sheridan v Warrina Community Co-operative Ltd [2005] 1 Qd R 187; [2004] QCA 308, considered Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35, considered Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62, applied Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, applied COUNSEL: Dr G J Cross for the plaintiff Mr W D P Campbell for the defendant SOLICITORS: Shine Lawyers for the plaintiff Bruce Thomas Lawyers for the defendant [1] The plaintiff, Neville John Black, is a 64 year old married man who was diagnosed as suffering from Q fever encephalitis in March 2004. He was then employed as a back hoe operator by the defendant, Warwick Shire Council (“the Council”), which after amalgamation with the Stanthorpe Shire Council is now the Southern Downs Regional Council. [2] It is not in contention that as a consequence of the effects of the disease the plaintiff is unable to work or to care for himself. [3] The parties have reached agreement that the quantum of the plaintiff’s damages is $350,000 clear of the Local Government WorkCover refund of $158,958.34. Liability remains in issue. [4] Although conceding that on the balance of probabilities the plaintiff contracted Q fever in the course of his employment, the Council denies that it breached the common law duty of care which it owed to him as an employee or that it breached the duty of care imposed by the provisions of the Workplace Health and Safety Act 1995 (Qld). Background [5] The plaintiff worked for most of his adult life (about 30 years) for the Council as a back hoe and plant operator (including as grader, roller, bulldozer and truck driver). [6] On Sunday 14 March 2004 the plaintiff had an abrupt onset of illness with headache, mental confusion, agitation, vomiting and speech disturbance. He was admitted to the Warwick Hospital and then transferred to the Toowoomba General -- 2 of 19 -- 3 Hospital where he was admitted to the intensive care unit and required incubation and ventilation. He was diagnosed after tests with Q fever encephalitis, a rare complication of Q fever.1 The plaintiff has been left with a persistent confusional state, severely impaired long term memory and a residual motor deficit with right sided weakness. He further suffers from severe fatigue, recurring headaches and musculoskeletal pain. He is troubled by emotional instability and requires the constant care of his family. His evidence was given by agreement in the form of a written statement. Q fever [7] The court heard evidence from Professor Andrew Lloyd AM, a National Health and Medical Research Council Practitioner Fellow and consultant in infectious diseases at The Prince of Wales Hospital in Sydney. His research has included, amongst many other infectious diseases, Q fever. Dr Michael Whitby, whose specialist qualifications include infectious diseases and pathology and who is Director of Infectious Management Services (Southern Queensland) based at the Princess Alexandria Hospital, and an Associate Professor of Medicine at the University of Queensland and Visiting Professor in the School of Public Health and Community Medicine in the University of New South Wales, also gave evidence. Both doctors had prepared a number of reports. [8] Dr Christine Selvey, Senior Director of the Communicable Diseases Branch of Queensland Health gave evidence about the implementation of the National Q fever program in Queensland. [9] Q fever is caused by the Rickettsial organism, Coxiella burnetii. Cattle, sheep and goats are the main sources of Q fever in humans although kangaroos and other macropods are potentially significant sources in rural areas.2 The disease was first described in abattoir and farm workers in Brisbane in 1937. Infected animals rarely show symptoms, but bacteria are shed in faeces and urine and especially at parturition. The organism when encased in a spore is resistant to drying, humidity and ultraviolet light. It is light and can travel some kilometres in the wind attached to dust particles. It is highly contagious and the inhalation of a single organism is thought to be sufficient to cause infection. Inhalation is the most common way in which the disease may be contracted but it may also be contracted through ingestion or through cuts. The incubation period in humans is from four days to six weeks with the average being about two weeks. It commonly presents with rapid onset of high fever, rigors, extreme fatigue and muscle and joint pain but others may have obtained immunity to the disease after exposure with no overt symptoms. [10] The Commonwealth Serum Laboratories produced a vaccine against Q fever which has been available in Australia since 1989. Dr Whitby described the logistics of delivery of the vaccine as “complicated”. This is because individuals must first be tested for previous exposure to Q fever prior to vaccination. Many abattoir workers, for example, have contracted Q fever without apparent symptoms and others are immune. Vaccination in that circumstance can lead to significant side effects. On a first visit, blood is collected for testing and hypersensitivity to the vaccine tested by depositing a small amount of the vaccine under the superficial layers of the skin. The results are read a week later, and, if indicated, the vaccine may then be 1 Report of Dr M Whitby, Exhibit 20; report of Professor A Lloyd AM, Exhibit 6. 2 Report of Dr M Whitby, Exhibit 23, p 2. -- 3 of 19 -- 4 administered. It is thus appropriate to describe the immunisation against Q fever as complicated and also as “not inexpensive”.3 [11] At the end of the 1990s, approximately 600 cases per annum of Q fever were being notified in Australia. In 2001 the National Q Fever Management Program began in Australia under the auspices of the Commonwealth Department of Health and Ageing and was implemented in Queensland by Queensland Health. The Commonwealth provided Queensland Health with funding and identified specific target groups most at risk of contracting the disease. A Q Fever Management and Reference Group (QMaRG) was established to provide expert guidance and advice to Queensland Health with particular reference to the specific target groups identified by the Commonwealth Department of Health and Ageing. According to Dr Selvey, Local Government was not represented on QMaRG because Local Government did not represent any of the target groups. Interests such as the Australasian Meat Industry Employees Union, the Australian Workers’ Union and Queensland Dairy Farmers’ Organisation were represented.4 [12] The Information for Industry sheet5 stated: “The aim of this program is to reduce the incidence of Q fever by vaccinating those who require Q fever vaccination in ‘at risk’ occupation groups.” The program was divided into two parts. Phase 1 commenced in Queensland on 1 November 2001. According to the Information for Industry sheet: “Principal target groups are: abattoir/meat processing plant workers, contractors to abattoirs/plants, sheep shearers, field/wild game harvesters, graziers and dairy farmers”. The readers of the information sheet were directed to the Eligibility Table for the full list: “• Abattoir workers (inclusive of wild game and pet food abattoirs and processing works) • Contractors to abattoirs* • Sheep shearers* • Cattle and sheep livestock farmers • Dairy farmers • Employees (paid workers) of cattle and sheep livestock/ dairy farms* • Contributing family workers (unpaid workers aged 15 years and over) of cattle and sheep livestock/dairy farms* Additional phase 1 target groups identified by QMaRG were: • Registered commercial game meat harvesters • Tanning and hides processing workers • Specific abattoir labour hire companies * (see Appendix One)” 3 Dr M Whitby, Exhibit 23, p 5. See also The Australian Immunisation Handbook, 8th edition (2003) pp 242 and ff, Exhibit 32. 4 Exhibit 31. 5 Exhibited to the report of Dr C Selvey of 11 November 2008, Exhibit 26. -- 4 of 19 -- 5 Appendix One contained broader definitions of “employees”, “contributing family workers”, “shearers” and “contractors to abattoirs”. The latter were defined as: “Maintenance contractors and tradespersons involved in the day to day operation of the abattoir; truck drivers transporting livestock and associated material to and from the abattoir.” [13] The Commonwealth Department of Health and Ageing extended the primary target group for the program in June 2002. Phase 2 commenced in Queensland on 1 July 2002. QMaRG agreed that the following be included in the program: “• Commercial goat breeders • Feed Lot workers • Registered wildlife carers/handlers • Registered stock/station agents • Registered livestock auctioneers • Veterinary Surgeons and associate practice staff.” Dr Whitby indicated that these categories were chosen for ease of identification of those perceived at most risk. The program was extended in Queensland until 30 June 2007. The plaintiff’s workplace [14] The plaintiff worked for the Council predominantly as a back hoe operator from 7.00 am to 4.00 pm with a 30 minute lunch break and a 20 minute ‘smoko’ mid-morning. He worked a 38 hour week with one rostered day off per fortnight on every second Friday. His work was principally in the road gang. Prior to 14 March 2004 he smoked while he worked. The Council had a smoking policy which permitted its employees to smoke in Council vehicles as long as the smoker was the sole occupant, the air conditioning was switched off and the window and/or door of the vehicle was open to allow ventilation. The plaintiff operated the vehicles in which he worked with the doors and/or windows opened so that he could smoke. Furthermore, it was necessary to have the windows open so that the driver of the back hoe could see below the vehicle and hear any warnings or directions being given by workers on the road. [15] The plaintiff and other employees who had worked with him gave evidence that working on road repairs can be dusty. The road to be repaired would be graded or cut out, gravel laid and then damped with water. In March 2004, the Shire was quite dry and there was a lot of dust about. [16] From 3 February until 27 February 2004 the plaintiff was absent from work due to his wife’s illness. During that period they resided at Buderim with their son not far from the coast. It was accepted that during that period his exposure to Coxilella burnetii was very limited and unlikely to have been responsible for his contraction of the disease. The plaintiff returned to work on 1 March 2004. He worked from 1 March to 4 March and from 8 March to 12 March. His rostered day off was on 5 March. The plaintiff worked at a number of locations during those days but the evidence identified two sites which were most likely the occasion for his contraction of Q fever. [17] The plaintiff worked on the re-sheeting of Allens Road, a dirt road outside the town of Warwick. The Freestone Feedlot was located on Allens Road. In March 2004 the feedlot was holding 1500 head of export cattle and 500 head of trade cattle. The -- 5 of 19 -- 6 feedlot was within 25 metres of Allens Road. Mr Samuel Bryce, a director of the company which owns the feedlot, said that the manure generated at the feedlot was cleaned out of the pens at regular intervals once its depth reached approximately six inches. It was then taken to an open stockpile near the feedlot site and stored for approximately six to 12 months until required by the fertilizer industry. As at March 2004 approximately one to two thousand tonnes of manure were stored at the feedlot about 500 metres from Allens Road. Consent to build the feedlot had been obtained from the Council but the feedlot itself was managed under the auspices of the Environmental Protection Authority, a State Government entity. [18] The plaintiff was driving the roller on Allens Road and said that it was very dusty. Furthermore, there was “a terrible smell” coming from the feedlot which the wind was blowing towards the road workers and a lot of flies. Even though water trucks were used the dust could not be kept down completely. The plaintiff operated his roller with the window open. He had ‘smoko’ and toilet breaks out of the roller. The smell was so offensive and the flies such a nuisance that the road gang had their breaks at an old gravel pit some distance and height away. [19] The other site where the plaintiff worked which more likely than others may have exposed him to the risk of contracting Q fever was at the sewerage treatment plant. He drove the back hoe to remove semi-dried and treated waste from the concrete sludge pits. He was also required to shovel out the sludge manually. Those pits contained animal products as well as human products. The contents of the sludge pit were dry when they were cleaned. Cattle yards on McAvoy Street operated by the Council received stock delivered by cattle trucks. The truck drivers were required to wash down their trucks at the saleyard from which waste went into the sewerage system and formed part of the sludge to be cleaned out from the pits. The sludge in the pit would splash over the back hoe operator either when on the shovel or when washing down the back hoe. [20] A mode of possible contraction of Q fever at the sewerage treatment works was inhalation by transference from the hand to the mouth. Smoking by the plaintiff on the job was a possible mode but evidence in the Council’s case6 suggested that smoking would not have been permitted in the area and hand washing before smoking was a policy. [21] The plaintiff lived a short distance from the main highway through Warwick where cattle trucks passed and re-passed regularly everyday. [22] The preponderance of opinion was that the most likely source of infection was from working near the feedlot on Allens Road, as inhalation is the most usual method of contraction. [23] Prior to contracting Q fever the plaintiff was unaware of the disease. No one at work told him about it, the risk of contracting it or that there was a vaccine to prevent it. It was not discussed amongst his fellow workers and, although the Council had a workplace health and safety co-ordinator, no mention of Q fever or its vaccine was made to the plaintiff. [24] The plaintiff was very health conscious prior to contracting Q fever. His general practitioner, Dr Ross Hetherington, had seen the plaintiff rarely over the previous years before his illness. The plaintiff said that had he been told of the risk of 6 Mr Stephen Kemp, transcript pp 3–19. -- 6 of 19 -- 7 contracting Q fever he would have sought advice from his general practitioner and would have had the vaccine even if he had to pay for it. He had been vaccinated pursuant to the Council’s workplace health and safety requirements for hepatitis A and B before working at the sewerage plant. The plaintiff’s evidence was not challenged. The Council’s conduct [25] From at least 1995, the Council employed a workplace health and safety officer who was trained on a nine day course at Toowoomba in compliance with the relevant workplace health and safety legislation. Mr Stephen Kemp occupied and continues to occupy that position in the Council. He gave evidence of developing within the Council an integrated safety management system across the various departments within the Council, such as environmental management and technical services, which was implemented in 2001. [26] In that year an infection control procedure was developed by the environmental health officers in the Council. Mr Kemp produced a document dated 3 April 2001 which illustrated the approach. “ POINTS TO CONSIDER WORK PLACE Immunisation of employees 1. At risk employees are to be vaccinated against Hepatitis A & B by Council’s medical officer of health. 2. Blood tests to confirm that employee has seroconverted (seroconvert means to gain immunity) 3. Immunisation records 1.1 Employees working in the following areas are considered at risk to Hepatitis A & B and are to be vaccinated against these diseases. • Water & Sewerage • Parks & Gardens • Environmental Health Officers • Any other employees likely to work in areas that are contaminated with human effluent. 2.1 Employeees who have been injected with hepatitis B vaccines must have blood tests to confirm that they have seroconverted. 3.1 All Council employee immunisation records are maintained on a computer database (Microsoft Word address:- G:Drive/Plan- Dev/Health/Immunise/ -- 7 of 19 -- 8 Council Employees). Records include name of employee, type of vaccine (Hepatitis A, B and Tetanus) and date of vaccinations. Records are also kept on personnel files. ” [27] Some employees of the Council were identified as at risk of Q fever and vaccinated. The records of the Council7 indicate that between April 2001 and November 2006 10 employees had been vaccinated (or tested) against Q fever. Five of those who were vaccinated in 2001 worked in the cattle saleyards. The others were local laws officers (animal, weed and pest control). These small numbers might reflect the stability of the employee cohort in those positions. They were, and still are, the only categories of employees vaccinated against Q fever by the Council. The Council had approximately 200 employees in 2004 and approximately 60 to 80 of those would have been employed in road works and drainage. [28] The Council had a workplace health and safety committee and at a meeting of 30 May 20028 there was discussion about hepatitis B injections, flu vaccines and Q fever. Of Q fever the minutes recorded: “Matthew Fraser advised that Council also provides Q Fever vaccines to those employees who come into contact with cattle. Karina MacCarthy will also develop a procedure for this vaccine.” Members were asked to provide comments at the next meeting on the procedures tabled. [29] Ms MacCarthy, who was the human resources manager, sought advice from Dr Ross Hetherington, a member of a private medical practice who was retained as the Council’s medical officer, in a letter dated 6 June 2002. She wrote: “I am writing to you to request your advice to assist us with reviewing Council policy for staff vaccinations. We would appreciate your advice regarding the risk factors for which Council should be vaccinating employees. Presently we provide the following vaccinations to the listed groups of staff or for the listed risk areas: Hepatitis A … Hepatitis B … Q Fever • Saleyards employees • Local Laws officers who are involved in the handling and impoundment of stock. Flu … ADT … 7 Exhibit 38. 8 Exhibit 39. -- 8 of 19 -- 9 At present we do not require any staff member as a condition of their employment to have vaccinations. If you feel that any of the above vaccinations should be mandatory for particular risk activities, we would appreciate your identifying these.”9 [30] Dr Hetherington responded by letter dated 17 July 2002.10 He discussed vaccination against hepatitis A and B and then wrote: “Q fever definitely needs to be given to those employees dealing with stock in any way…” [31] Ms MacCarthy reported to the workplace health and safety committee meeting of 18 July 2002 about the advice which she had received from Dr Hetherington on the Council’s vaccination procedures. The minutes record11 that: “Dr Hetherington advised Council procedures were generally fine but some changes were recommended for Hepatitis vaccinations...” The Council took action to reflect Dr Hetherington’s recommendations on hepatitis. There was no mention of Q fever. [32] A revised infection control procedure document was produced by the integrated management system on 9 August 2002 to reflect the recommendations emanating from the safety committee meeting and Dr Hetherington’s advice. Under the heading “Points to Consider” appears “Immunisation of Employees” where the following is set out: “At risk employees are to be vaccinated against Hepatitis A & B and Q fever by Council’s medical officer of health.”12 Under the heading “Work Procedures” appears the following: “1.3 Employees working in the following areas are considered at risk to Q fever and are to be vaccinated against this disease: • Sale yards • Animal Control 2.1 Employees who have been injected with hepatitis B and Q fever vaccines must have blood tests to confirm that they have seroconverted.” On 19 June 2003 the infection control procedure was again reviewed. The identification of at risk employees for Q fever was unchanged from the previous year.13 [33] For completeness, the current infection control procedures is headed: “To provide guidelines for the prevention of communicable diseases and to ensure work is conducted safely and without risk to Council Employees”. 9 Exhibit 10. 10 Exhibit 10. 11 Exhibit 40. 12 Exhibit 41. 13 Exhibit 42. -- 9 of 19 -- 10 A review had been undertaken in May 2008 and a further review in March 2009 after the amalgamation of the two Councils. Although there were changes in the identification of at risk employees with respect to hepatitis A and B by expanding the group, employees considered at risk to Q fever remained identified as those working in saleyards and animal control.14 [34] Mr Kemp said that the environmental health department of the Council monitored any changes to legislation relating to health and then informed him of any necessary changes to the safety system. Information about health and safety was also provided from the Local Government Association of Queensland. In cross-examination Mr Kemp said that as a consequence of the plaintiff’s contraction of Q fever, the Council reviewed its documentation and procedures but made no changes. He had consulted with the environmental health officers of the Council but since the plaintiff’s was the only case known in 15 years it was not thought necessary to change procedures. Any employee who requested vaccination outside the identified at risk groups was given it. He was unaware whether the Council had assessed how close to feedlots road maintenance gangs worked. The issue had never arisen in the local government safety officer networking group to which he belonged. He was unaware of any risk to general road workers. Mr Kemp did not know as at March 2004 that Q fever could be contracted by inhaling infected dust particles. Q fever has not been the subject of a workplace health and safety meeting since August 2002. Mr Kemp could not say that anyone in his department had access to or had read the 8th edition of The Australian Immunisation Handbook prior to 1 March 2004, nor had considered any articles about Q fever. [35] Mr Matthew Fraser, manager of environmental services for the amalgamated Council and previously senior environmental health officer with the Council, was aware prior to March 2004 that employees who had engagement with animals were at a higher risk of contracting Q fever than others. He was aware that inhalation by way of dust particles was one of the modes of transmission of the disease. He was also aware that those particles could be blown some distance depending on the weather. He was also aware that the organism could emanate from feedlots and cattle. When asked what steps he took to warn road gang members working in the vicinity of a feedlot in dry and dusty weather of potential for infection from organism laden dust, he responded that he was not aware of how long Q fever could survive or be infectious if it were blown outside a feedlot area. He presumed the high risk occupations identified were those actually conducted within a feedlot or an abattoir in close proximity to animals and assumed that the organism could not survive for prolonged periods. If that were not the case, he expected that other high risk occupations would have been identified in addition to those involving dealing with animals. [36] Mr Fraser did not consult the Australian Q Fever Register to determine what publications were disseminated nor had he sought out any articles on Q fever. The Council had identified those employees at risk from Queensland Health publications and took advice from its medical officer, Dr Hetherington. [37] The plaintiff’s solicitors issued notices of non-party disclosure directed to all rural councils in Queensland seeking documents evidencing the policy of that council or its predecessor as at March 2004 in relation to the inoculation of employees against the Q fever. Those notices were responded to but no evidence was called of any 14 Exhibit 43. -- 10 of 19 -- 11 system that was said to be equal to or better than that adopted by the Council. Mr WDP Campbell for the Council invited an inference that there was no evidence to support any other method of dealing with the category of employees of which the plaintiff was a member. Dr GJ Cross for the plaintiff did not resist this inference being drawn. Dr Hetherington’s evidence [38] Dr Hetherington had been the plaintiff’s general practitioner, although he had last seen the plaintiff in 1999. Other doctors in the practice would also have seen the plaintiff. He did not know what work the plaintiff did for the Council. In June 2002 Dr Hetherington said he did not profess any expertise or knowledge greater than any other general practitioner about Q fever. However, there were doctors in the practice who had experience in vaccinating against Q fever and, if asked, Dr Hetherington would have directed the inquirer to one of those practitioners. [39] It will be recalled that Dr Hetherington in response to Ms MacCarthy’s request for advice on vaccination for Council staff members wrote that Q fever vaccination “definitely needs to be given to those employees dealing with stock in any way”. The plaintiff’s solicitors wrote to Dr Hetherington by letter dated 29 April 2008 that they had: “been advised that you are engaged by the Council on a contract basis as the Council’s Medical Officer of Health to advise on health issues affecting the Council, such as immunisations.”15 The solicitors asked for information about vaccinations performed in relation to Q fever. Dr Hetherington responded by letter dated 1 May 200816 that he was employed on a contractual basis by the Council as their Medical Officer of Health but that he was “not engaged as an advisor regarding what vaccinations the council workers should have”. He added: “At no stage have I ever documented any such recommendations regarding vaccination policy for the council. I do not do Q-Fever vaccinations. I consider this to be a specialist field and any person who requests or who I consider should have a Q-Fever Vaccine I refer to one of the other doctors in our practice who runs a regular Q-Fever clinic. At no stage in the several years that I have been fulfilling this role for the council have I been requested to formulate a policy regarding Q-Fever Vaccination.” [40] The plaintiff’s solicitors provided Dr Hetherington with his response of 17 July 2002 to which reference has been made. By his letter of 19 May 2008,17 referring to recent telephone conversations, Dr Hetherington wrote: “My current policy regarding council workers who attend for their medicals is that I check their job description that comes with the medical request and if they are dealing with animals/livestock whether dead or alive I tell them that they must see the Council Health Officer and organise a Q-Fever Vaccine.” 15 Exhibit 11. 16 Exhibit 11. 17 Exhibit 12. -- 11 of 19 -- 12 [41] In response to correspondence from Dr Cross, Dr Hetherington wrote by letter dated 25 March 200918 that: “If [the plaintiff] had attended this surgery in 2004 and advised me of his work activities that is, working very near a feedlot I would have advised him that a Q-Fever Vaccination would be appropriate for him given his working conditions.” In cross-examination Dr Hetherington conceded that everyone in Warwick was potentially exposed to Q fever and that he did not advise all of his patients to be vaccinated. He agreed that people walking in the main street were in close proximity to the cattle trucks passing through and the reason that he would not advise them to be vaccinated was because: “…it’s around the accumulated risk of continual exposure as opposed to a one-off exposure.”19 When challenged that Q fever could be contracted from an isolated spore he responded that if a person was continually being exposed then that person had a risk from that continual exposure; it would be much less for those walking down the street when a cattle truck passed. [42] Dr Hetherington agreed that his policy of advising all his farmer and grazier patients as well as cattle truck drivers, livestock agents and meat workers be vaccinated against Q fever started after he saw how sick the plaintiff had been made He agreed that he did not advise people who simply live in rural areas but who do not come into direct contact with animals to have the vaccination. Dr Hetherington said that he had been informed by a recommendation in The Australian Immunisation Handbook, 8th edition (2003),20 published by the National Health and Medical Research Council which stated: “Epidemiology Q fever is primarily an occupational disease of workers from the meat and livestock industries, with non-immune new employees or visitors being at highest risk of infection. Nevertheless, Q fever is not confined to occupationally exposed groups – there are numerous reports of sporadic cases or outbreaks in the general population in proximity to infected animals in stockyards, feedlots or processing plants.” And “Recommendations Q fever vaccine is recommended for those at risk of infection with C. burnetii. This includes abattoir workers, farmers, stockyard workers, shearers, animal transporters and others exposed to cattle, sheep, goats and kangaroos or their products. It also includes veterinarians and laboratory personnel handling veterinary specimens.” 18 Exhibit 12. 19 Transcript 2–19. 20 Exhibit 32. -- 12 of 19 -- 13 Breach of duty of care? [43] The Council owed a duty to the plaintiff not to expose him to risk of injury of which it knew or ought to have known whilst carrying out his work. The issue is whether, as at March 2004, there was a reasonably foreseeable risk of injury to one of the road workers of contracting Q fever in the course of that employment and, if so, what was the appropriate response. [44] The particulars of negligence/breach of contract of employment which were actively pursued by the time Dr Cross made his submissions for the plaintiff were: • failing to have the plaintiff inoculated in order to prevent the plaintiff contracting Q fever; • failing to advise the plaintiff that there existed a vaccine for the prevention of Q fever which would have prevented his contracting Q fever; • failing to adequately or at all warn the plaintiff as to the dangers of Q fever and that the plaintiff could be exposed to this virus in the areas that he worked and of the availability of a vaccine which would have prevented the plaintiff contracting Q fever; • failing to adequately or at all to keep its employees informed of the risks of exposure to Q fever; • failing to obtain appropriate advice from an experienced medical specialist as to those of the Council’s employees who were at risk of contracting Q fever; • failing to vaccinate the Council’s employees including the plaintiff who had direct and indirect dealing with stock.21 [45] The approach to the questions posed in these proceedings must be that identified in Wyong Shire Council v Shirt22 in the judgment of Mason J (as his Honour then was). His Honour said:23 “A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being ‘foreseeable’ we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable. In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a 21 Exhibit 1, paragraph 11(j), (k), (m), (p), (q) and (r) of the Amended Statement of Claim. 22 (1980) 146 CLR 40. 23 (1980) 146 CLR 40 at pp 47–48. -- 13 of 19 -- 14 risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.” [46] Whatever support there might be for the concern expressed by McHugh J in Tame v New South Wales24 about the test in Shirt and the unequivocal rejection of it by Callinan and Heydon JJ in New South Wales v Fahy25 the fact remains that if a risk is not characterised as far fetched or fanciful it must be held to be foreseeable and, reasonably foreseeable. It cannot be said that the risk of the plaintiff contracting Q fever whilst undertaking his duties as a road worker in proximity to a large feedlot was far fetched or fanciful. The risk for residents in the town could not be so characterised either. I reach that conclusion with some reluctance because the Council had a policy of actively managing an inoculation program for its employees, sought appropriate advice and responded to it. In those circumstances, it seems correct to conclude, in reality, that the risk of injury from contracting Q fever by a person employed on the road was not reasonably foreseeable. But because the contraction of the disease was not far fetched or fanciful given its nature and the modus operandi of the bacterium, the risk was, applying Shirt, reasonably foreseeable. [47] However, the test is two-staged. Having ascertained that the risk of injury through the contraction of Q fever was reasonably foreseeable, the response of a reasonable employer in the position of the Council to that risk must be considered. In Fahy, Gummow and Hayne JJ warned against the danger of arguing from the fact of injury to what might have been done to forestall the injury. Their Honours said:26 “This approach [in Shirt] to questions of breach and duty has come to be known as the ‘Shirt calculus’. The description may be convenient but it may mislead. Reference to ‘calculus’, ‘a certain way of performing mathematical investigations and resolutions’, may wrongly be understood as requiring no more than a comparison between what it would have cost to avoid the particular injury that 24 (2002) 211 CLR 317 at [102]. 25 (2007) 232 CLR 486. 26 (2007) 232 CLR 486 at [57]. -- 14 of 19 -- 15 happened and the consequences of that injury. Shirt requires a more elaborate inquiry that does not focus only upon how the particular injury happened. It requires looking forward to identify what a reasonable person would have done, not backward to identify what would have avoided the injury.” [48] Their Honours approved the explanation by Hayne J in Vairy v Wyong Shire Council27 of what was entailed when the tribunal of fact engaged in that identification exercise:28 “That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.” Hayne J continued:29 “If, instead of looking forward, the so called Shirt calculus is undertaken looking back on what is known to have happened, the tort of negligence becomes separated from standards of reasonableness. It becomes separated because, in every case where the cost of taking alleviating action at the particular place where the plaintiff was injured is markedly less than the consequences of a risk coming to pass, it is well nigh inevitable that the defendant would be found to have acted without reasonable care if alleviating action was not taken. And this would be so no matter how diffuse the risk was…” His Honour said a little earlier:30 “But the apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was the cause of the plaintiff’s injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be ‘nothing’.” [49] A reasonable employer in the position of the Council ought not be cloaked with the knowledge and interest of researchers like Professor Lloyd and Dr Whitby. And, whatever he now believes he would have advised the plaintiff in March 2004, Dr Hetherington did not, then, foresee the class of employees of which the plaintiff was one as at risk from contracting Q fever. His advice to the Council in July 2002 to vaccinate for Q fever those employees “dealing with stock in any way” reflected 27 (2005) 223 CLR 422. 28 (2005) 223 CLR 422 at [126]. 29 (2005) 223 CLR 422 at [128]. 30 (2005) 223 CLR 422 at [124]. -- 15 of 19 -- 16 the prevailing opinion amongst public health professionals that it was the direct dealing with carrier animals in any form which constituted the risk. Of course, there was academic literature available to be researched but it would have revealed that spores encasing the bacterium were hardy and could be dust borne for many kilometres. As the experts agreed, everyone in Warwick not already immune was at risk of contracting Q fever. At the time there were no known cases of Q fever amongst Council employees much less road gang members. In the whole Shire during the 2003–2004 calendar years, there were 13 notifications of Q fever with nine in the 12 months prior to 6 March 2004.31 [50] What, then, would a reasonable Council do as at March 2004 by way of response to the risk? One thing is clear – this Council would not take refuge in “expense, difficulty and inconvenience in taking alleviating action”. It had an active, integrated safety committee which monitored workplace risks to employees’ health and made readily available whatever vaccines etc. that were identified as needed including, for example, universal influenza injections. A reasonable Council would do what this Council did through its safety officers and their programs – have an awareness of the Commonwealth/State Q fever program; keep itself informed of health issues around the State through review of health and workplace legislation, its Local Government association emails and newsletters; and seek advice from its medical consultant about its vaccination programs for its employees. Dr Hetherington did not say, when asked for his advice, that the Council should look elsewhere for advice on Q fever and did not, then, purport to be familiar with the passage in The Australian Immunisation Handbook much relied upon by the plaintiff under the heading “Epidemiology” quoted above at [42]. [51] As Hayne J explained in Vairy,32 when a body such as a Council is said to have breached its duty to a particular plaintiff, the inquiry about what its reasonable response would have been to the risk includes recognising that a Council has a multitude of responsibilities around the welfare of its employees and also to the public. That is why it is unreasonable to expect, as the plaintiff’s submissions (and pleadings) suggest, that the Council’s relevant officers should have gone a great deal further in their researches than their competent medical consultant did when asked expressly for his advice and what Queensland Health in conjunction with the Commonwealth Department of Health and Ageing via its specialist committee, QMaRG, recommended in The Australian Immunisation Handbook. Since the risk was not, in real terms, identified, not only was the Council’s response about carrying out a vaccination program adequate, it had no obligation to warn or advise as contended by the plaintiff. [52] The response to the risk was appropriate. There is no doubt that with the plaintiff’s distressing symptoms becoming known locally, greater attention is now given to the risk of Q fever, but that is truly in hindsight. Breach of statutory duty [53] Once the correct version of the Workplace Health and Safety Act 1995 (“the Act”) was identified,33 the parties exchanged fresh pleadings about the allegations of statutory duty.34 Pursuant to s 28(1) of the Act, the Council as employer had an 31 Exhibit 19. 32 (2005) 223 CLR 422 at [122]. 33 Reprint 5B 1 January 2004; Reprint 5C 1 March 2004. There are no relevant differences. 34 Exhibits 33 and 34. -- 16 of 19 -- 17 obligation to ensure the workplace health and safety of each of its workers in the conduct of its undertaking. The Council does not submit that the plaintiff has not established a prima facie breach of s 28(1) or that the Workplace Health and Safety Risk Management Advisory Standard 2000 (“the Advisory Standard”)35 does not apply to the circumstances of this case. The Council does contend, however, that it has established a statutory defence pursuant to s 26(3) and 37(1)(b) of the Act. [54] The breach identified by the plaintiff was that he was impermissibly exposed to the Q fever organism and thereby acquired Q fever and suffered encephalitis. The plaintiff particularises the breach, inter alia, as the failure of the Council to identify Coxiella burnetii as a workplace hazard in the form of a biological substance located at or near places occupied by road workers in the course of their employment. This is alleged to have been a failure to comply with step one of the Advisory Standard or s 29B(a) of the Act. The five-step process identified and elaborated in the Advisory Standard is set out in s 22(2) of the Act, namely: “Workplace health and safety can generally be managed by – (a) identifying hazards; and (b) assessing risks that may result because of the hazards; and (c) deciding on control measures to prevent, or minimise the level of, the risks; and (d) implementing control measures; and (e) monitoring and reviewing the effectiveness of the measures.” [55] An employer can discharge its obligation by adhering to the provisions of s 26(3). It provides relevantly: “If an advisory standard … states a way of managing exposure to a risk, a person discharges the person’s workplace health and safety obligation only by– (a) adopting and following a stated way that manages exposure to the risk; or (b) adopting and following another way that gives the same level of protection against the risk.” [56] Section 37(1) provides that it is a defence to a proceeding for a contravention of an obligation imposed under the Act for the employer to prove: “(b) if an advisory standard … has been made stating a way or ways to manage exposure to a risk– (i) that the person adopted and followed a stated way to prevent the contravention; or (ii) that the person adopted and followed another way that managed exposure to the risk and took reasonable precautions and exercised proper diligence to prevent the contravention…” [57] The stated way in the Advisory Standard for managing exposure to risk requires working through the five basic steps in the workplace health and safety risk management process. The first step involves identifying hazards. The Advisory Standard states: 35 Exhibit C for identification. -- 17 of 19 -- 18 “This means looking for those things at your workplace that have the potential to cause harm. The desired outcome of this step is a list of all the hazards at your workplace. Workplace hazards are not always obvious.” The Advisory Standard suggests consulting with workplace health and safety committees in identifying hazards in the workplace. Here the Council was aware of the hazard to its employees of contracting Q fever from contact with infected livestock. That is clear from the minutes of meetings of the integrated safety committee and schedule of employees’ injections.36 [58] The plaintiff contends, however, that identification of the workplace hazard was incomplete and the Council breached its obligation under the Act by failing to identify from The Australian Immunisation Handbook that persons working at or in proximity to infected animals, stockyards, feedlots and processing plants were at risk of contracting Q fever; failing to consider the literature and articles identifying that Q fever could be contracted at or near locations such as feedlots, sewerage treatment plants or farms; and failing to assess whether its workers worked in a high risk environment. It must be noted that the recommendations in The Australian Immunisation Handbook did not extend to recommending vaccination for “the general population in proximity to infected animals in stockyards, feedlots or processing plants”, which were mentioned in the general text. [59] Step two in the Advisory Standard and s 22(2)(b) requires the assessment of “risks that may result because of the hazards”. The risk is the likelihood that death, injury or illness might result because of the hazard.37 The Advisory Standard states: “To assess risk, you need to consider both likelihood and consequences.” In assessing those risks it is the Council’s contention that from about April 2001, through its human resource manager/environmental services manager/workplace health and safety coordinator and in consultation with the Council’s medical consultant, it developed and maintained an infection control procedure for the immunisation of its employees against contagion, including Q fever. As observed when discussing the common law standard of care, those procedures were in accordance with current industry knowledge and practice for Q fever vaccination which was then available to employers in Queensland and it was not contended expressly that those practices were inappropriate. The inference may be drawn that there was no better practice identified by any local government body in the State. That will not necessarily set the standard but, against a background of constant review and seeking external expert advice, this may be regarded as satisfying the obligation. There was no risk assessed to employees other than those dealing directly with livestock (living or dead) and livestock products. [60] Having reached that conclusion it was unnecessary to proceed to control measures which step three requires or steps four and five which concern the implementation of the control measures and monitoring and reviewing the risk and control measures in the workplace. 36 Exhibits 38–41. 37 Section 22(1)(a). -- 18 of 19 -- 19 [61] The plaintiff contends that the Council fell short of its obligations to the plaintiff by failing to advise of the way in which the disease could be transmitted, that is, by air borne dust particles and inhalation, and the possibility of contracting the disease by working in dust generating activities in close proximity to feedlots and cattle yards or working at sewerage treatment plants. Further, the Council should have had in place a compulsory vaccination program for employees exposed to an increased risk of Q fever or, at the least, advised them to consult with their medical practitioner if concerned. From what has been discussed above, it will be clear that the Council was not required to do all or any of these things. [62] Alternative to following the Advisory Standard, the Council contends that its infection control procedure38 constituted another way that managed exposure to the risk and that it took reasonable precautions and exercised proper diligence to prevent the contravention in compliance with s 26(3) and s 37(1)(b) of the Act. If necessary, I would conclude favourably to that contention. [63] There has been no breach of the obligations imposed upon the Council by the provisions of the Workplace Health and Safety Act 1995. Order [64] The plaintiff’s claim against the defendant is dismissed. 38 Exhibits 10 and 37–43. -- 19 of 19 --