Dixon v Whisprun Pty Limited (formerly known as Northwest Exports Pty Ltd) [2000] NSWSC 955

New South Wales Supreme Court

CITATION : Dixon v Whisprun Pty Limited (formerly known as Northwest Exports Pty Ltd) [2000] NSWSC 955 CURRENT JURISDICTION: Civil FILE NUMBER(S) : SC N105/97 HEARING DATE(S) : 29-31 August 2000, 3-5 October 2000 JUDGMENT DATE : 13 October 2000

PARTIES : Sonya Lea Dixon (Plt) Whisprun Pty Limited (formerly known as Northwest Exports Pty Ltd) (Def) JUDGMENT OF : Newman J

COUNSEL : P Webb QC/K Ryan (Plt) K Dodd SC (Def) SOLICITORS : Walter Kissane & Plummer (Plt) Hickson Wisewoulds (Def) CATCHWORDS : Negligence - master and servant duty - damages - Workers' Compensation Act s 151 - threshold LEGISLATION CITED : Workers' Compensation Act 1987 DECISION : See para 61

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

NEWMAN J

NEWCASTLE: FRIDAY, 13 OCTOBER 2000

N105/97 - DIXON v WHISPRUN PTY LIMITED (formerly known as NORTHWEST EXPORTS PTY LIMITED

JUDGMENT

1 HIS HONOUR: This is a claim for damages for an illness brought by a former employee against her former employer. While breach of duty is admitted by the defendant employer, liability for damages pursuant to the provisions of s 151 of the Workers' Compensation Act 1987 is denied. 2 The plaintiff was employed by the defendant at its Inverell abattoirs from 11 April 1994 performing a task of removing foetal blood from the hearts of unborn calves. It appears that this blood was used for research purposes. 3 Her duties required her to suck blood from the foetal calves' hearts using a pipette for this purpose. Unfortunately, this process resulted in the plaintiff, occasionally ingesting some of the blood so removed. 4 It was not in issue that as a result of performing this work in this manner the plaintiff contracted a malady known as Q fever. 5 The uncontested evidence reveals that Q fever is an infectious disease which as a causative organism known as Coxiella burneti which prevalent in animals such as cattle particularly in pregnant or parturient animals. It is transmittable from animals to human beings and gives rise, when so transmitted, to symptoms which are similar to influenza. 6 In the plaintiff's case when first seen by Dr Hall of Inverell on 27 July 1994 she was suffering from severe headaches, vomiting, back and chest pains. Later she complained of being febrile. She was diagnosed after pathological tests had been performed, as suffering from Q fever. 7 Subsequent seriological tests carried out and again the evidence is uncontested, revealed that while she had an acute episode of Q fever, fortunately she did not have a chronic infection. 8 While the evidence in the case is not precise as to dates it seems that following the original diagnosis of the plaintiff suffering from this malady she ultimately returned to work with the defendant. The plaintiff's evidence was that she was unable to perform her work properly on that return. 9 She consulted a Dr Thatcher who was a colleague of Dr Hall on 1 November 1994. Dr Thatcher confirmed Dr Hall's diagnosis of Q fever. The seriology tests which indicated that the condition was not chronic were carried out at Dr Thatcher's behest. 10 As Professor Boughton who was an expert in the field, pointed out, and again his evidence is not the subject of any challenge, Q fever is a hazard associated with persons such as abattoir workers who deal with animals. It is entirely preventable by the administration of a vaccine to such workers. It was the failure of the defendant company to have the plaintiff vaccinated prior to taking up her work which constituted the breach of duty in this case. 11 In short the risk of the plaintiff becoming infected by Q fever was well known at the relevant time and the fact that an effective prophylactic measure was available was equally well known. Hence it is hardly surprising that the defendant conceded breach of duty at the hearing. 12 The seriology testing which established that the plaintiff did not have a chronic infection was carried out in February 1995. In a report dated 8 May 1995, Dr Thatcher stated that the results of the seriology carried out showed that she has had Q fever but does not have a chronic infection. Again there is no evidence before me to suggest that Dr Thatcher's diagnosis in this regard was other than correct. Indeed, the evidence of all medical practitioners on this topic coincides that the views expressed by Dr Thatcher. 13 However, she continued to complain of headaches, fever and sweating. Not only that her complaints included severe fatigue. On the history he received Dr Thatcher concluded that she had as a sequelae to the acute episode of Q fever which she had suffered, a chronic fatigue syndrome. Dr Thatcher in May 1995 observed that this syndrome was likely to persist for months and indeed possibly for years. 14 It was the plaintiff's case that the symptoms of post Q fever chronic fatigue syndrome have persisted to the time of the trial and will continue to persist in the future. Essentially the plaintiff's complaints of fatigue, fever and headaches are subjective symptoms. Dr McGuirk, physician, who saw her on 7 March 1996 underscored the nature of these symptoms when he said: "In the absence of a true chronic Q fever, however, she could be described as having a diagnosis of post-Q fever syndrome. As has been documented previously, this is a clinical diagnosis and there is no way any objective test could either substantiate or disprove same." 15 As I read the medical reports in evidence, Dr McGuirk's statement is representative of all medical practitioners whose opinions are before the court. 16 Again the uncontested evidence was that if in fact she was suffering from these symptoms that they constituted post Q fever chronic fatigue syndrome and that syndrome is severely debilitating. So debilitating that the plaintiff would be, if suffering from the symptoms, unable to live a normal life and would certainly be unfit for work, particularly any work for which she was suited by her abilities. 17 From the beginning of 1995 to the present time the plaintiff has been seen by a large number of medical practitioners. She has presented to all of them, with one exception, a consistent history of continuing headaches, nausea and fatigue. The only exception and that exception does not include her reported symptoms was a history she gave to a Dr Sutherland who saw her on behalf of the defendant. 18 That inconsistency related not to her continuing symptoms but to the original onset of the acute attack of Q fever. Dr Sutherland on the history he received, agreed with all other practitioners who have seen her that she was suffering from a chronic fatigue state. For the purposes of this case I believe I can safely disregard the history received by Dr Sutherland as to the onset of the original Q fever symptoms. 19 When examined in chief, the plaintiff gave evidence which was consistent with the history of continuing symptoms which she had given to medical practitioners. Because the continuing symptoms are entirely subjective the only issue which arose in the case was whether the plaintiff's account of her continuing symptoms was credible. In other words has the plaintiff established on a balance of probabilities that she has had the symptoms of which she has complained. 20 In chief the plaintiff deposed that prior to entering into her subject employment at the defendant's abattoir she was in a relationship with one, David Cross. That relationship, she stated, broke up because of Cross' inability to cope with her mood swings following her contracting Q fever - that was in 1995. She said that she had been living with her parents and her daughter since that time. She said: "Q. I think the only movement in your accommodation is that you have moved out of your parents' house into a shed - A. That's right. Q. – that has been done up, but still on your parents' property? A. Yep. Q. How far from the house is it? A. Maybe 200 metres, I think. I'm not quite sure. Q. It's not far? A. No." 21 She said that just before contracting Q fever she had been riding in gymkhanas on a horse which was kept at her parent's place. 22 Her daughter Sarah who was eight at the time of trail, having been born on 27 June 1992, had taken up horse riding as a past time. In chief, she said as follows, as to the assistance she was able to give her daughter: "Q. Has Sarah picked up your love of horseriding? A. Yes. Q. And are you able to help her with that? A. I have watched Sarah. I don't, like, saddle Sarah's horse or things like that. Sarah gets a bit disappointed sometimes. Q. Do you get disappointed about that too?