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? A. I do, sometimes. Q. Who does that for her? A. My dad. Q. Does she ride a horse every day? A. Yes, depending on the weather. Q. And sometimes you go and watch her, do you? A. Yes. 23 She was then asked, in chief, as to the social life she led. The following exchange occurred: "Q. Have you had much social life in the last few years? A. No, not really. In what way? Q. Well, do you go out? A. I have been out. Q. Where have you been? A. I have went to a dinner we had for Sarah's birthday. Q. When was that? A. It was in June. Q. This year? A. Yep. Q. Where did you go? A. We just went to the club, it is just a bistro sort of affair. Q. Who did you go out with? A. My mum and dad and Sarah. Q. Have you been out with anyone your own age lately? A. No. not with any - no. Q. Do you feel like going out? A. No. Q. Why not? A. Because after I go out I get tired, and it takes me a couple of days to get back into rhythm again, sort of thing." 24 As I have already mentioned the plaintiff in histories given to medical practitioners has emphasised that she becomes quickly fatigued following exercise. Indeed, she told a Dr Burke on 3 March 1999 that simple walking about the pool with her daughter who is trying to swim, tires her out and makes her feel exhausted. 25 The plaintiff's evidence as to her symptoms from 1995 to date of trial was the subject of a searching cross-examination by senior counsel for the defendant. Not only did the cross-examination take the form of a direct attack upon the plaintiff's evidence as to the symptoms she suffered but also as to a number of peripheral matters. 26 For instance when challenged as to her agreement in chief that she still lived at her parent's property she conceded when confronted with details of the transaction that in fact she is the owner of the land upon which the shed in which she lives, stands. When pressed as to why she had not revealed this in chief the following exchange occurred: "Q. Why didn't you say, when you were asked about the shed having been done up but still being on your parents' property, why didn't you say, 'No, it's on my property'? A. I've got no idea." 27 However, as I have said, the bulk of the challenge to the plaintiff's evidence in chief and indeed to the history she had given medical practitioners over the years was directed towards her activities. When taken to the history she had given Dr Burke involving walking around the swimming pool the following questions and answers eventuated: "Q. It is correct that as of March 1999 something as simple as walking around the pool with your daughter made you tired and exhausted? A. No. Q. Well, if it was not true, why did you say it to the doctor? A. It's - I would have meant it in other ways, like, I wouldn't have just said it like that." 28 When questioned about how far she could walk - while she agreed that she could walk between the Newcastle court house and Newcastle station the following questions and answers occurred: "Q. Would that be a comfortable maximum distance for you, or a maximum distance for walking comfortably? A. Downhill, yes. It's a bit much walking up." 29 When taken to her social life she stated that over the last year she had watched her daughter ride but could not think of anything else other than the dinner with her daughter adverted to in chief. When asked if she had attended any race meetings since she left the employ of the abattoir, she originally replied, "not that I can remember." 30 However, on being shown photographs in the local Inverell paper of her being present at race meetings at Inverell as recently as New Year's Day 2000 and October 1998 and a video of the Inverell race meeting on New Year's Day 1998 in which she was depicted, she conceded that she in fact had attended such meetings. That video demonstrated the plaintiff showing no signs whatsoever of fatigue and was demonstrative of the plaintiff enjoying herself at that meeting. Indeed, in respect of the race meeting of 1 January 1998 she conceded that she was present for no less than four hours and twenty minutes. 31 A further video showed her walking briskly an extensive distance between Railway Square, Darling Harbour and streets of Sydney. When it was put to her that that walk involved her travelling some two if not three or more kilometres by foot, and that she was capable of so walking, she responded that she did not know and indeed would have sat down if she had walked that far. 32 Again, the plaintiff's actions as depicted in that video were quite inconsistent with the picture she had painted of herself both in chief and in histories to doctors. 33 When asked if she had been to the Copeton Dam she responded that she had been out there for a barbecue tea around Christmas with her parents and her daughter. When pressed she agreed she had been there with a Mr and Mrs Mair. 34 While initially she stated on that occasion she had been in Mr and Mrs Mair's speedboat when her daughter was being towed in an inner tube, when pressed she agreed that had been herself in a tube but had not been towed. Later she agreed that she had been towed but could not handle the experience. 35 She denied that she had been on a jetski. Mr and Mrs Mair and Mr Pelja gave evidence that she had in fact been on a jetski on the Copeton Dam in the last twelve months in their company and had in fact been towed without complaint behind a speedboat in a rubber tube. 36 While for reasons I shall come to later, there is plainly enough animosity now existing between Mr and Mrs Mair and the plaintiff, the evasive nature of the evidence she gave in relation to her activities with them at the Copeton Dam did not enhance her credibility. 37 Indeed, when questioned about her presence at the wedding of Mr and Mrs Mair in 1999, she originally stated that she was at the wedding reception for a couple of hours maybe longer. When it was suggested that she had been there for nine and a half hours, her response was "I'm not quite sure." 38 Earlier when pressed as to the history she had given a Dr Robertson, psychiatrist, that she did not smoke or drink, she stated that what she meant when she had told the doctor that, some people smoke and drink every day but she did not. When it was put to her that she was drinking at the Mair's wedding reception, her response was "I had a couple of drinks but I was not drunk or stupid or anything like that." 39 The video, which admittedly only lasted some eight minutes, taken of the plaintiff's activities at the Mair wedding, demonstrated her to be very active both in terms of dancing and socialising and drinking. I should add that the video was taken by a wedding guest and the plaintiff was clearly well aware that her actions were being recorded. 40 As I have already said, animosity now exists between Mr and Mrs Mair and the plaintiff. While there is a clear conflict of evidence between Mr and Mrs Mair and the plaintiff as to the manner in which that animosity developed it is common ground that problems between them arose as a consequence of the sale of a saddle by the plaintiff to Mrs Mair. It is not necessary for the purposes of these reasons to analyse the manner in which that animosity developed. 41 It is also true, as was revealed in evidence, that both Mr and Mrs Mair have infringed the criminal law. Mr Mair in relation to the supply of illegal drugs and Mrs Mair with theft. Be that as it may at the time of the Mair's wedding reception relations between the plaintiff and the Mairs were obviously very friendly. 42 The response which I have referred to above that while the plaintiff may have had a couple of drinks but was not drunk or stupid at the wedding was adduced prior to the plaintiff being shown the video. In re-examination the plaintiff claimed that Mrs Mair had told her on the day after the reception that she had spiked the plaintiff's drinks with amphetamine. 43 This statement, of course, came after she had seen herself depicted on the video. It is an answer in stark contrast to her earlier response to which I have referred. 44 I should add that Mr Pelja who was in fact Mr Mair's best man at the wedding and was present at the Copeton Dam did not give evidence of the plaintiff's activities at the dam which coincided on all fours with that of the Mairs. His evidence was indicative of the plaintiff, while being active, including riding on a jetski could only remember the plaintiff being towed on a tube behind a speedboat on one occasion. 45 The Mairs' evidence was that the plaintiff carried out this latter activity on a number of occasions. In any event the evidence of Mr and Mrs Mair and Mr Pelja is quite contrary in its tenor to the picture painted by the plaintiff of her activities at the Copeton Dam on that occasion. I formed the view that Mr Pelja was a witness of truth. 46 Other video film showed the plaintiff in attendance when her daughter was taking part in an equestrian event. Other than the plaintiff showing no signs of fatigue on this occasion nothing of great import relating to the plaintiff's credibility arose on the material thus exposed. 47 Again, a video showing the plaintiff moving around the town of Inverell at times in company with her mother, was demonstrative only of the fact that the plaintiff was exhibiting no fatigue. 48 A further matter going to the plaintiff's credibility but not involving any physical activity was her evidence relating to her relationship with David Cross. As I have indicated above she originally deposed that the relationship had broken up because of her mood swings following her contracting Q fever. 49 In histories given to a number of doctors over the years she adverted to the fact that she was still living in a de facto relationship with Mr Cross. True it is to Dr Robertson on 1 September 1998 she described her relationship with Mr Cross as being on and off and would go away when she became angry. To other practitioners she adverted to the relationship as being on going. 50 Ultimately she stated, in cross-examination, that her relationship with Mr Cross was similar to that she recounted to Dr Robertson stating that while he sometimes spent night after night at her place it was not permanent, twenty-four hours around the clock but "comes and goes because Sarah always wants him." 51 The plaintiff was corroborated to some extent as to her lethargy by evidence given by her mother. Her mother stated that when the plaintiff had a good week she would give her assistance for some four hours and in a bad week up to fifteen hours. 52 Mr Cross' mother gave evidence which was corroborative of the plaintiff being difficulty to get on with. 53 Despite this support I have concluded that the matters raised in cross-examination with the plaintiff and her responses to them effectively destroyed her credibility. 54 While senior counsel for the plaintiff submitted that the matters going to credibility were not put to any doctor in cross-examination (all doctors evidence was received by way of reports) the fact is as I have earlier mentioned, that the on going symptoms from February 1995 are matters for which no objective tests can be performed by medical practitioners to ascertain whether the symptoms in fact exist. 55 I have formed the view that from the time when the plaintiff had recovered from the acute episode of Q fever, which the seriological evidence indicates was in February 1995, I am not satisfied, on a balance of probabilities, that the plaintiff has in fact suffered from the symptoms which she recounted to medical practitioners and in chief to this Court. 56 Section 151G of the Workers' Compensation Act relevantly provides that at the time the plaintiff contracted Q fever damages for non-economic loss are not to be awarded if damages of less than $38,050 are to be awarded. Under that section at that a maximum $215,550 was stipulated for non-economic loss. 57 Effectively what I have held is that the plaintiff suffered symptoms from Q fever for a little over six months. I am of the view that this could sound in an award for damages for non-economic loss of not more than fifteen percent of the maximum sum which gives rise to a figure of $32,332. I believe that fifteen percent of the maximum sum is almost a generous allowance for the symptoms encountered by the plaintiff during that period. It falls well short of the sum of $38,050 which is the sum required by s 151G.4 for the plaintiff to obtain damages under this head therefore no allowance for damages for non-economic loss can be awarded on this finding. 58 Section 151H prescribes that no damages are to be awarded for economic loss unless the injured worker has received a serious injury. A serious injury for the purposes of s 151H(2A) is one for which compensation payable under s 66 of the Act is not less than twenty-five percent of the maximum amount from time to time referred to s 66(1) or is an injury in which damages for non-economic loss of not less than $50,750 are to be awarded, that is at the time she contracted Q fever. 59 In view of my finding as to the duration and severity of the plaintiff's illness, she, in my view, fails to reach the required level of the stipulated matters referred to in s 151H. 60 All the plaintiff's medical expenses as I understand the evidence, were paid pursuant to the Workers' Compensation Act. It follows that the provisions of s 151 of the Act stand in the way of the plaintiff obtaining a judgment albeit that she has satisfied the court of the relevant breach of duty by the defendant. 61 There will thus be a judgment for the defendant plus costs. I shall hear argument as to any special order for costs following the delivery of these reasons. ********** Last Modified: 10/20/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.