SAMARDZIC v STATE OF NEW SOUTH WALES [2004] NSWSC 15

New South Wales Supreme Court

CITATION : SAMARDZIC v STATE OF NEW SOUTH WALES [2004] NSWSC 15 HEARING DATE(S) : 31 March 2003-7 April 2003 JUDGMENT DATE : 4 February 2004

JUDGMENT OF : Hulme J at 1 DECISION : Orders to be entered at a later date

PARTIES : Zlatko Joseph Samardzic State of New South Wales FILE NUMBER(S) : SC 20062/98 COUNSEL : Plaintiff: CA Evatt, MK Rollinson Defendant: MB Williams SC, M Lynch SOLICITORS : Plaintiff: Teakle Ormsby George Defendant: I V Knight Crown Solicitor

- 35 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HULME J Wednesday 4 February 2004 File No: 20062/98 Zlatko Joseph SAMARDZIC v STATE OF NEW SOUTH WALES JUDGMENT 1 HULME J: In January 1986, the Plaintiff in these proceedings joined the New South Wales Police Service. After 3 months spent in a training course at Goulburn he commenced work at Campbelltown Police Station and then was transferred to Liverpool. 2 On 15 October 1987 he was subjected to a blood test which in due course revealed that he was infected with Hepatitis B. He claims that this infection arose from negligence on the part of the Defendant or persons for whom the Defendant is responsible. After some time off, the Plaintiff resumed work, albeit on light duties. In May 1994 he was dismissed on the grounds of ill health and has not worked since. He claims that a consequence of the infection is that he suffers from chronic fatigue which has substantially affected his life and rendered him unable to work since 1994. 3 The Defence placed all elements of the Plaintiff's claim in issue. The proceedings were set down for hearing with a jury. On the first day counsel for both parties suggested or agreed that the jury be dispensed with because of the complexity of issues which seemed likely to arise and the case proceeded before me without a jury. 4 Included in the topics on which the parties were at issue was whether the Plaintiff's contraction of hepatitis was something which arose out of his employment in the Police Service. Medical reports, statements made during the course of discussion about dispensing with the jury, and remarks during the tender of evidence directed to showing that prisoners or offenders with whom the Plaintiff had come into conduct were infected with hepatitis tended to confirm the existence of that issue. 5 However late in the Plaintiff's case there were tendered two documents which became Exhibits S and T. The first was a letter over the signature of the Deputy Director of Police Medical Services. Its terms were:- "It is quite impossible to give an absolute incubation time for Hepatitis 'B' but it is accepted that sixty to ninety days incubation is the usual range. The contamination of an officer with a minute fraction of a millilitre could result in an infection. Contamination could result from any offender, victim or even traffic accident attended to by the Officer. If the Officer presents as a person unlikely to be exposed to other sources of infection (i.e. blood transfusion, drug use) then it is extremely likely that he sustained the infection from a work related event. The balance of probability would be for the infection to be attributable to Hurt on Duty events." 6 Exhibit T was a letter from a Delegate for the Commissioner of Police, dated 20 May 1994. So far as is relevant, it said:- "In terms of section 10B(3)(a) of the Police Regulation (Superannuation) Act, 1906, (as amended), I have decided that the suffering by Constable Z. J. Samardzic of the infirmity "Chronic fatigue syndrome secondary to Hepatitis B carrier state", as specified in the certificate to the Police Superannuation Advisory Committee, dated 29 April, 1994 was caused by the member being hurt on duty. Notional date of injury: 15 October 1987. Former Constable Samardzic is being advised direct of my decision." 7 During the evidence of one of the Plaintiff's witnesses, Professor Cossart, it was suggested that she and Dr Vickers, a doctor who had prepared a number of reports at the instigation of the Defendant, might confer with a view to identifying the differences between them. Such a conference occurred and the result was a joint report which became Exhibit 5. The document includes the following:- "The consensus opinion was the hepatitis B infection in the plaintiff was more likely to have been acquired during the course of occupational duties in the NSW Police Force between 1986 and 15 October 1987, than would have occurred prior to his employment through other potential causes. The reasons for this conclusion are as follows: …. On balance therefore, we have agreed that it is more probable that the plaintiff acquired his hepatitis B through an occupational risk in his handling of prisoners rather than through other means unknown prior to joining his work with the Police Force." 8 Despite this, I was informed that the question of whether the Plaintiff acquired hepatitis in the course of his employment remained theoretically in issue. 9 Putting aside some reports of Dr Vickers which pre-dated his agreement with Professor Cossart, the Defendant in fact adduced little evidence – and none of it persuasive - that argued for the Plaintiff's acquisition of hepatitis otherwise than in the course of his police duties. In light of the matters to which I have referred, I am satisfied that the Plaintiff's hepatitis was acquired in the course of his duties as a police officer. (In fairness to Dr Vickers I should acknowledge than at the time of his first report, one of the issues was whether the Plaintiff contracted hepatitis on particular dates.) 10 By the time of final submissions, it was not suggested that the Defendant did not at relevant times owe the Plaintiff a duty of care. Clearly, as the Plaintiff's employer – a fact admitted on the pleadings - it did.