KELLY v ROADS & TRAFFIC AUTHORITY [2000] NSWCA 292

New South Wales Court of Appeal

CITATION : KELLY v ROADS & TRAFFIC AUTHORITY [2000] NSWCA 292 FILE NUMBER(S) : CA 40643/99 HEARING DATE(S) : 5 October 2000 JUDGMENT DATE : 5 October 2000

PARTIES : TERENCE JAMES KELLY v ROADS & TRAFFIC AUTHORITY JUDGMENT OF : Mason P at 1; Giles JA at 37; Davies AJA at 38

LOWER COURT JURISDICTION : Compensation Court LOWER COURT CC 6368/96 FILE NUMBER(S) : LOWER COURT Maguire J JUDICIAL OFFICER :

COUNSEL : Appellant: M L Brabazon; J K Kinross Respondent: P M Hall QC; L V Gyles; J Connors SOLICITORS : Appellant: Emery Partners Respondent: Hunt & Hunt CATCHWORDS : Workplace injury - appellant argues contraction of pneumonia in workplace - consideration of evidence from microbiologist - not proven that virus contracted in workplace sewerage water - microbiologists's evidence only a possibility - ND. DECISION : Appeal dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40643/99 CC 6368/96

MASON P GILES JA DAVIES AJA

Thursday 5 October 2000

Terrence James KELLY v ROADS & TRAFFIC AUTHORITY

JUDGMENT 1 MASON P: The appellant failed in his application for worker's compensation for incapacity stemming from contracting an unusual strain of pneumonia called Chlamydia Pneumoniae. There was an award for the respondent employer which is now challenged "in point of law" (Compensation Court Act 1984 s32). 2 The debilitating illness was diagnosed in September 1995. 3 The issue fought and lost at trial was whether that injury arose out of or in the course of the appellant's employment with the respondent. 4 In his Application for Determination, the appellant pleaded that the injury happened through exposure to infection-inducing agents while working as a driver for the Roads & Traffic Authority at the F3 extension Minmi Swamp Stockrington. The date of injury was pleaded as July to September 1995. 5 In fact the appellant worked at the site between 17 and 21 July 1995. He used a tip truck to haul crushed slag and sand. He said that he was splashed with grey water which smelled strongly of sewage and at times he drove through a mist containing traces of such water. 6 It was found by the primary judge, Judge Maguire, that a week or so after starting at the Minmi job the appellant became ill with symptoms of fever, chills and a lung infection: but this was not pneumonia. 7 The hearing took place on 30 March 1998, 23 June 1998 and 4 February 1999. 8 The case initially advanced by the appellant and maintained during the first two hearing days was that the grey water at Minmi was the source of the Chlamydia bacteria which led to the pneumonia detected in September 1995. This case failed when it became apparent that the incubation period for Chlamydia infection detected in September was too long to be consistent with the onset of the symptoms revealed back in July. The appellant accepts this. Indeed the appellant appears to have accepted the inevitability of such a conclusion during the hearing because the case left to the court at the conclusion of the hearing on 4 February 1999 was, as the appellant admits, of a different complexion. 9 On the third hearing day the appellant sought to rely upon the evidence of a microbiologist, Dr Marianne Muir. Her draft report is dated September 1998 and her final report November 1998. Dr Muir expressed the opinion 10 that: A. In July 1995 the waste water at Minmi STP used for dust suppression, exceeded NSW EPA and ANZECC faecal coliform levels recommended for reuse of this type of water. (Moreover the NSW EPA recommends exclusion of the public while spraying.)