New South Wales Supreme Court CITATION : Jamie Alan King v Raymoon P/L & Or (cross claim) [2004] NSWSC 694 HEARING DATE(S) : 21 July 2004, 22 July, 2004 JUDGMENT DATE : 20 August 2004 JUDGMENT OF : Dowd J at 1 DECISION : Verdict for Cross-Claimant; first and second cross respondents to pay cost of loss sustained by cross-claimant; first and second cross-respondents to pay costs of cross-claimant CATCHWORDS : Crossaction to recover judgment from cross-defendants - indemnity - contract apportionment Bauchop v The Commonwealth of Australia, unreported, NSWSC 4/7/97 Birkholz v Gilbertson Pty Limited (1985) 38 SASR BP Refinery (Western Port) Pty Ltd v Hasting Shire Council (1977) 52 ALJR 20 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 LEGISLATION CITED : Factory, Shops and Industries Act 1962 Health Insurance Levies Act 1982 Law Reform (Miscellaneous Provisions) Act 1946 Trade Practices Act 1974 Workers' Compensation Act 1987 Bauchop v The Commonwealth of Australia, unreported, NSWSC 4/7/97 Birkholz v Gilbertson Pty Limited (1985) 38 SASR CASES CITED : BP Refinery (Western Port) Pty Ltd v Hasting Shire Council (1977) 52 ALJR 20 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 James Hardie & Co Pty Limited v Seltsam Pty Limited (1998) 196 CLR 53 Jamie Alan King PARTIES : Raymoon P/L 2 Ors FILE NUMBER(S) : SC 20066/02 COUNSEL : 1st def: Mr M L Wiliams SC, Mr J Catsanos 2nd and 3rd def: Mr M Maxwell SOLICITORS : - 16 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DOWD J Friday, 19 August 2004 20066/02 Jamie Alan King v Raymoon Pty Limited t/as Midstate Plumbing & Roofing & Or JUDGMENT 1 DOWD J: By Statement of Claim filed with the District Court on New South Wales in 2001 (prior to the transfer of the proceedings to this Court) and the subject of amendment in June 2002 and in December 2003, the Plaintiff brought proceedings against three defendants, alleging as against his employer the First Defendant ("Raymoon") negligence and breach of statutory duty (for its obligations as an employee under the Factory, Shops and Industries Act 1962 and in breach of the provisions of the Trade Practices Act 1974) resulting in injuries, loss and damage as a result of the Plaintiff being exposed to conditions at his place of work in March 1998. 2 At that time, the Plaintiff's duties with Raymoon included undertaking work at the premises operated by the Second Defendant ("Bindaree Beef") and Third Defendant ("Yolarno"), an abattoir known as "Orange City Beef" (the "abattoir"). The Plaintiff alleged that as a result of being at the premises of the Abattoir, he was brought in contact with certain conditions, including being exposed to dust and aerosols containing organisms, which led to him contracting "Q fever". 3 The Plaintiff further alleged negligence and breach of statutory duty as against Bindaree Beef and Yolarno, including breaches of the Factory, Shops and Industries Act and the Trade Practices Act. 4 Further, the Plaintiff alleged that the disease "Q fever" was deemed to have been contracted by him in the course of his employment, pursuant to s19 of the Workers' Compensation Act 1987 and regulations thereunder. THE CROSS CLAIM 5 In June 2003, Raymoon issued a Cross-Claim against Bindaree Beef and Yolarno (the "Cross Claim") claiming contribution and/or indemnity; damages in respect of breach of contract, costs and interest, on several bases including the following: (a) although separate legal entities, Bindaree Beef and Yolarno have common directors and shareholders; (b) Raymoon was engaged by either or both of Bindaree Beef and Yolarno to perform plumbing duties in and around the Abattoir (the "Plumbing Contract"), for which Raymoon retained the services of the Plaintiff (the "Employment Contract"); (c) Bindaree Beef and Yolarno owed a duty of care to any and all persons lawfully present at the Abattoir; (d) it was an implied term of the Plumbing Contract that Bindaree Beef and Yolarno would take all reasonable measures to ensure the health and safety of persons lawfully entering the Abattoir in the course of the Employment Contract; (e) the duties undertaken by the Plaintiff pursuant to the Employment Contract were all confined to the Abattoir; (f) Raymoon denied the claim brought against it by the Plaintiff – nevertheless the Plaintiff was paid certain workers' compensation entitlements by or on behalf of Raymoon; (g) although denied, if Raymoon is negligent in breach of its duties owed to the Plaintiff (including the payments made as workers' compensation), then it claimed contribution and/or indemnity against Bindaree Beef and Yolarno pursuant to s5 of the Law Reform (Miscellaneous Provisions) Act 1946 (the "Contribution/Indemnity Claim"); (h) further, Raymoon claims against Bindaree Beef and Yolarno an alleged breach of the implied terms of the Plumbing Contract (the "Implied Terms Claim"); and (i) the particulars of the Contribution/Indemnity Claim and the Implied Terms Claim are the same and in summary, include an alleged failure on the part of Bindaree Beef and Yolarno to take any or any adequate precautions for the safety of the Plaintiff whilst he was lawfully present at the Abattoir, including failing to warn of the disease "Q fever", failing to allow or require the Plaintiff to obtain a vaccination for "Q fever" and exposing the Plaintiff to a risk of damage or injury they knew of or ought to have known of. 6 Raymoon further claimed against Bindaree Beef and Yolarno indemnity or in the alternative, contribution "…in respect of ay damage and/or costs found to be due to the plaintiff from the employer to the extent that this honourable court finds just and equitable…", together with a claim for "…damages for breach of contract" and the repeated claim for costs and interest. 7 On behalf of Bindaree Beef, a Defence to the Cross Claim was filed in June 2003, by which Bindaree Beef did not admit the allegations made in the Cross Claim as to the facts pleaded in the matter, nor the allegations of loss, injury and damage and further, alleged that the Law Reform (Miscellaneous Provisions) Act 1946 was "…not relevant to the Cross-Claimant's request for an order assessing contribution as between the Cross-Claimant and Cross-Defendant…". 8 Instead, Bindaree Beef alleged that "…the relevant legislation in respect of contribution is s151Z(2)( c) of the Workers Compensation Act which provides that any damages that the Plaintiff may be entitled to recover from the Cross-Claimant [Raymoon] are to be reduced by an amount by which the contribution of the Plaintiff would, but for Pt 5 of the Workers Compensation Act, be entitled to recover from the Cross-Defendant [Bindaree Beef] as a joint tort-feasor, or otherwise exceeds the amount of contribution recoverable…". Whilst this last prayer is somewhat in the form of submissions rather than a pleading, it readily encapsulates the position of Bindaree Beef and Yolarno adopted at the hearing of this Cross Claim. 9 The proceedings between the Plaintiff and Raymoon were resolved by agreement between the parties, in about December 2003, after a part hearing before me involving all parties. There remained on foot the proceedings by way of the Cross Claim, which came before me for hearing in July 2004. Certain documents were tendered by Raymoon in support of the Cross Claim and other documentary evidence was relied upon by Bindaree Beef and Yolarno in defence of the Cross Claim. 10 Thereafter, counsel for Raymoon Mr Williams SC and Mr Catsanos provided the Court with written submissions on the Cross Claim, as did Mr Maxwell, counsel for Bindaree Beef and Yolarno. The written submissions of counsel together with counsels' oral submissions were very helpful in assisting the Court in considering this matter. 11 Certain agreed facts were made known to the Court by Counsel, including that the Plaintiff had started work for Raymoon on 23 March 1998. The Plaintiff undertook certain duties at the abattoir, including those performed inside ceiling spaces which were very dusty and working on a threading machine located near the boning room. 12 There was further evidence that frozen or pre-slaughtered meat and carcasses were first brought onto the premises of the abattoir on 16 April 1998, with boning operations commencing on that day. There were cattle at the abattoir at the time the Plaintiff was working there and on 23 March 1998, two days after he commenced his duties, Bindaree Beef and/or Yolarno received a quote for testing and vaccination for "Q fever", for all persons coming onto the abattoir premises. The letter dated 25 March 1998 of the Central West Pathology Services says that the earliest date for vaccination of abattoir workers was 3 April 1998. 13 Further, there was a system in place at the abattoir that required persons attending there, including the Plaintiff, to sign in and therefore there is evidence that Bindaree Beef and/or Yolarno was aware or ought to have known that the Plaintiff was at the abattoir at a time when persons attending there were required to be vaccinated for "Q fever", at a cost of as little as $10.00 per person. Indeed, as arranged by Bindaree Beef and Yolarno other people from Raymoon were vaccinated on or about 28 March 1998, but not the Plaintiff. 14 On 12 January 1998, the Plaintiff was involved in the slaughter of a cow not at the Abattoir but at other, unrated premises. It had been submitted by the defendants that the "Q fever" suffered by the Plaintiff might have arisen from this event and not from his attendance at the abattoir from March 1998. Certain expert evidence adduced argued that the organisms which transmit "Q fever" can subsist for many years, even in areas of dry dust (particularly as the causative agent for "Q fever" is known to be highly resistant to environmental extremes including prolonged survival in a spore like form, the so-called small cell variant in dry and dusty conditions) and further, the weight of expert evidence was that the Plaintiff contracted "Q fever" as a result of his presence at the abattoir, rather than his attendance at the slaughter of a "…single animal of unknown infection status…", as described by Professor Lloyd in his report dated 14 September 2003. 15 The further expert evidence clearly established that the provision of vaccinations for persons in the position of the Plaintiff lawfully attending the abattoir for the purposes of their employment, particularly in circumstances where the presence of the Plaintiff was known to Bindaree Beef and Yolarno by reason (if nothing else) of their requirement that he complete time sheets when attending at the abattoir. 16 Otherwise, a substantial volume of transcripts of oral evidence and documentation was admitted as evidence in the proceedings on the Cross Claim. 17 It is appropriate that the evidence upon which the parties proceeded with the Cross Claim is set out; this is particularly so as the Plaintiff's claim against Raymoon was resolved at a time after the Plaintiff had given evidence and had been cross-examined, with the closing of the Plaintiff's case. However, the settlement resolving the claim by the Plaintiff against Raymoon was reached before Bindaree Beef and Yolarno had opened their case, either against the Plaintiff or on the Cross Claim. 18 Further, as a result of previous Orders made in the matter by Sperling J, the question of the Cross Claim was severed from the hearing of the Plaintiff's claim. 19 Counsel for Raymoon therefore tendered as part of its case on the Cross Claim the evidence arising in the Plaintiff's originating claim against all defendants. 20 It was submitted on behalf of Bindaree Beef and Yolarno however, that evidence could not be tendered at that time on the Cross Claim as the Plaintiff had settled his claim only against Raymoon and therefore, the original claim by the Plaintiff against Bindaree Beef and Yolarno remained on foot; given that the orders of the Court were that the Cross Claim be severed, it was submitted that the hearing on the Cross Claim could not proceed. 21 The position of Bindaree Beef and Yolarno as set out by Mr Maxwell was that, given I would be hearing the Cross Claim, he would elect to not open the case for Bindaree Beef and Yolarno in the originating proceedings but would ask that the issues between those parties be determined on the basis of the evidence adduced in the proceedings prior to the settlement agreed by the Plaintiff with Raymoon. 22 Thereafter, if a decision was made in favour of Bindaree Beef and Yolarno, then application would be made on their behalf seeking orders that the Cross Claim not proceed and only that judgment be entered between the Plaintiff and Bindaree Beef and Yolarno on the original proceedings. 23 Further, it was submitted on behalf of Bindaree Beef and Yolarno that Raymoon were not entitled to any indemnity under the Contribution/Indemnity Claim because of the judgment entered against Raymoon in favour of the Plaintiff, such judgment having been entered without reservation of the Plaintiff's right to claim more. 24 On behalf of Raymoon, it was submitted in response that it was entitled to be heard before any judgment was entered in the proceedings between the Plaintiff and Bindaree Beef and Yolarno and that the Cross Claim should be heard prior to the determination of that part of the originating proceedings which remained before the Court. 25 In an ex tempore judgment I delivered in the matter on 21 July 2004, I made orders allowing Raymoon to proceed on the Cross Claim as pleaded, including the Contribution/Indemnity Claim and the Implied Terms Claim. 26 I also rejected an application made on behalf of Bindaree Beef and Yolarno that the principal action by the Plaintiff against Bindaree Beef and Yolarno be determined by judgment in favour of or against the Plaintiff, on the basis that the Plaintiff (who was not then present nor represented in the Court) and Raymoon were entitled to be heard on the principal proceedings still on foot (being the Plaintiff's claim against Bindaree Beef and Yolarno) and on the Cross Claim before any judgment was entered. 27 I also declined to make orders allowing Bindaree Beef and Yolarno to amend the Defence to the Cross Claim to include a pleading that the Plaintiff is barred from taking action against Bindaree Beef and Yolarno, as a result of the Plaintiff having finalised his claim against Raymoon and that the Plaintiff having received satisfaction of his claim in full, Raymoon was not therefore entitled to rely upon the Contribution/Indemnity Claim to recover contribution or indemnity from Bindaree Beef and Yolarno. 28 It was submitted to me by counsel for Bindaree Beef and Yolarno that there are only two bases upon which a tortfeasor may recover contribution from any other tortfeasor: · either the first basis, for which the alleged second tortfeasor is liable in respect of the same damage; or · the second basis, for which the alleged tortfeasor would, if it had been sued, been liable in respect of the same damage. 29 As was submitted to me by counsel for Raymoon, I considered the decision of Gaudron and Gummow and Callinan JJ in James Hardie & Co Pty Limited v Seltsam Pty Limited (1998) 196 CLR 53, where in contrast to this matter the original proceedings had been wholly resolved against all defendants and therefore the proceedings were formally completed, which resulted in the conclusion of the cross claim as pleaded by the merging of the plaintiff's cause of action against the respondent. 30 In reading s5(2) of the Law Reform (Miscellaneous Provisions) Act (the "Act") with s5(1) at paragraph (c) as was noted by their Honours (at 64 – 65 of that case): "…these provisions create both a right and remedy…par (c) is concerned with the identification of parties by certain criteria, not the measure of liability to contribution. The content of the entitlement and the mechanism for its enforcement are found in s5(2). The distinction has not always been fully appreciated. The appellant urges on this Court the proposition that the justice and equity referred to in s5(2) impose upon the respondent the obligation from which it wrongly seeks immunity. However, that seeks to turn the statute on its head. Entitlement in respect of the new remedy is conferred only between certain parties and they must answer the criteria specified in s. 5(1)(c)…", and continuing (at 67 - 68): "…The first limb of s 5(1)(c) identifies those who, like the respondent, have been sued by the injured party but fixes only upon those who have been made liable. The second limb identifies those who would, if sued at any time, have been liable, not those who were sued but obtained the entry of judgment in their favour, whether by consent or otherwise. There is no third category which identifies a person from whom contribution may be recovered by reference to the circumstances that this person has been sued and has been held not liable…Unless the first or second limb is satisfied, there is, in the terms of s 5(1)(c) itself, no person ' entitled to recover contribution under this section'…" 31 In my view, Raymoon is entitled to have the Contribution/Indemnity Claim resolved in the Cross Claim before any estoppel issue arises from the original claim. Raymoon would otherwise be in the impossible position of not being able to settle the original claim unless the Cross Claim was disposed of first. This would prevent proper resolution of issues properly litigated between the parties. 32 It is also relevant that the proceedings settled by the Plaintiff against Raymoon were on terms that Judgment be entered against Raymoon, who were ordered to pay the Plaintiff's costs (at an agreed figure) and agreed to further indemnify the Plaintiff "…in respect of any costs orders made against the Plaintiff in favour of the second and third defendants…". There was no expressed provision by the Plaintiff to reserve its position as and against Bindaree Beef and Yolarno and therefore, if it is relevant, it may only be inferred that by the Terms of Settlement filed before me on 17 December 2003 that the Plaintiff did not then intend to finalise all his rights and entitlements against Bindaree Beef and Yolarno, and did not do so. This inference, which supports my view that the Plaintiff has his own rights in these proceedings on the Cross Claim in terms specifically of the application by Bindaree Beef and Yolarno to have a verdict entered in their favour against the Plaintiff, arises not only by the indemnity I have set out immediately above given by Raymoon in favour of the Plaintiff with regard to "…costs orders made against the Plaintiff in favour of the second and third defendants…", but also arising in part from the further agreed settlement term that the "…terms not be disclosed except for the purposes of cross claim or as required by law…". 33 It is clear that the Plaintiff settled the original proceedings only as against Raymoon and not as against Bindaree Beef and Yolarno, by or against whom it was contemplated not only possible costs orders in the original proceedings, but against whom it was contemplated that the Cross Claim could proceed. 34 Further, the Cross Claim pleads against Bindaree Beef and Yolarno not only the Contribution/Indemnity Claim, but as well the Implied Terms Claim which is intended to establish an entitlement for Raymoon to recover from Bindaree Beef and Yolarno the amount it has incurred in damage as a result to the alleged breach of the Plumbing Contract. 35 Given the listing of the matter before me as being the hearing of the Cross Claim and the hearing of the Cross Claim could proceed as a verdict had been entered against Raymoon in favour of the Plaintiff, I admitted evidence tendered by Raymoon and thereafter continued the determination of the Cross Claim. The original proceedings therefore as between the Plaintiff and Bindaree Beef and Yolarno therefore remain before the Court and it is appropriate that those parties take steps to either formally resolve that matter by consent orders, or perhaps Bindaree Beef and Yolarno make an application to be released as against the Plaintiff with a verdict on the principle of double satisfaction, or to strike out those proceedings. 36 The evidence therefore before me may be summarised as set out below. 37 For Raymoon, there was tendered T144-147 of 4 December 2003 which was adduced in the original proceedings, together with various exhibits also tendered in the original proceedings (and subject to rulings made on 21July 2004 regarding certain parts of those documents), being principally the medical and other expert reports of the parties, the "Q Fever" Vaccination Program and other documents produced as a result of Notices to Produce issued and other documents setting out various interrogatories administered and answered by the Plaintiff. 38 For Bindaree Beef and Yolarno, there was tendered the letter dated 17 May 2004 from Blake Dawson Waldron (solicitors for Raymoon) to Leitch Hasson Dent (solicitors for Bindaree Beef and Yolarno), part of the statutory declaration of the Plaintiff sworn 18 October 1999, the report dated 7 January 2003 of Dr Lee, the Medical Notes of the South Western Area Health Service dated 27 October 1999 with regard to the Plaintiff and similarly the medical notes of Dr Mistry on the Plaintiff. 39 It was submitted on behalf of Raymoon that the Cross Claim be dealt with as a claim in contract for breach of the implied term of the Plumbing Contract, which required Bindaree Beef and Yolarno to ensure that all employees of Raymoon (including the Plaintiff) who were at the abattoir were vaccinated against "Q fever". 40 Further, it was submitted that there arose any question of apportionment, then it was submitted that Bindaree Beef and Yolarno owed a duty of care to Raymoon as a result of the Plumbing Contract and this duty included a duty to the Plaintiff as an employee of Raymoon under the Employment Contract and indeed to anyone else lawfully present at the abattoir. It was further submitted that Bindaree Beef and Yolarno shoudl fully indemnify Raymoon. 41 It was submitted that the injury and damage sustained by the Plaintiff was considerable, including fever and debilitating sweats, damage to his heart, "…a dominant hemispheric stroke, localised to the speech area of the Plaintiff's brain, likely indicative of an embolic stroke in the middle cerebral artery as a consequence of bacterial endocarditis…" (see report dated 27 June 2003 of Dr Fearnside), the need for long-term antibiotics and blood pressure medication with ongoing care as a result, fatigue and loss of energy, loss of memory, a personality disturbance and the loss of his earning capacity due to his illnesses and disabilities (with the attendant loss of superannuation), together with future care and a programme of rehabilitation, supported by domestic assistance. 42 It was submitted that on the evidence that Bindaree Beef and Yolarno were aware of the risk and did not ensure the Plaintiff was vaccinated, failing thereby to follow their on system established for the vaccination of people attending at the abattoir, in failing to vaccinate the Plaintiff. 43 It was further submitted that there was no evidence that Bindaree Beef and Yolarno took any steps to ascertain whether any active "Q fever" organisms were at the abattoir prior to the commencement of the Plumbing Contract. Therefore the Plaintiff was allowed onto the premises of the Abattoir and remained there without having been vaccinated 44 It was submitted that the reasonable construction of the terms of the settlement between the Plaintiff and Raymoon only included the Plaintiff's costs against Raymoon and not as against any other party, and further, that if a determination was made by the Court as to apportionment, then costs ought be awarded in the same apportion. 45 It was submitted that the settlement of the original proceedings with the Plaintiff was reasonable on the part of Raymoon. The damages incurred by Raymoon, include the settlement monies and the monies paid to the Plaintiff as part of his workers' compensation entitlement, together with payments made by Raymoon towards other of the Plaintiff's costs including that arising under the Health Insurance Levies Act 1982 for the medicare rebate. 46 It was submitted that contributory negligence not in issue, however, if it were arguable there was no evidence adduced by Bindaree Beef and Yolarno in support of a claim of contributory negligence by either the Plaintiff or Raymoon, particularly given that the Plaintiff told his employer about his previous heart condition, which included an artificial aortic valve. 47 Mr Maxwell submitted that causation had not been established. Doctors did not have part of the Plaintiff's medical history which included symptoms of trembling and shivering, perhaps consistent with "Q fever" in late January or early February of 1998, before he began work at the abattoir. Detailed written submissions setting out inadequacies of the Plaintiff's medical reports and inconsistencies of the Plaintiff's history set out in the medical reports to the evidence of the Plaintiff at the hearing, and that if any apportionment, contributory negligence component would arise, perhaps in the proportion of 70 per cent to the employer and 30 per cent to the abattoir. 48 All documents regarding vaccination were directed to Bindaree Beef and not to Yolarno. Submissions made as to the time and steps necessary to ensure the vaccination of all workers – not at all practical in the circumstances. 49 However, as some of Raymoon's employees were vaccinated, Raymoon was aware or ought to have been aware that the Plaintiff should also have been vaccinated and therefore, there ought to be a higher contribution from Raymoon. 50 In my view, it is impossible to not meet the requirements laid down in the judgment of Mason J in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, adopting the conditions necessary to ground the implication of a term which was summarised by the majority in BP Refinery (Western Port) Pty Ltd v Hasting Shire Council (1977) 52 ALJR 20 at 26, including that the implied term must be reasonable and equitable, it must be necessary to give business efficacy to the contract, so that no term will be implied with the contract is effective without it. 51 It was further submitted that the Plaintiff could not have established a causal link between the "Q fever" and his working at the abattoir and even if such causal link was found by the court, Raymoon has failed to establish in the Cross Claim that it was foreseeable that the Plaintiff could or would contract "Q fever", particularly as statistical analysis adduced on behalf of Bindaree Beef and Yolarno showed that only one case per year was identified as coming from Orange in 1998 and 1999. Further, it was submitted that there was no evidence that Bindaree Beef nor Yolarno knew or ought to have known that non-abattoir workers were prone to infection by "Q fever". 52 Finally, it was submitted that should the original proceedings have been finalised by the Plaintiff against Bindaree Beef and Yolarno, then damages would have been assessed under s151Z(2) of the Workers' Compensation Act and an apportionment made accordingly. Given that the Plaintiff's claim has not been concluded, the Court should assess damages and make an allowance for the Plaintiff's contributory negligence (in having knowledge of the necessity to obtain vaccination and failing to act, a position which otherwise was attributed to Raymoon rather than the Plaintiff). 53 I note the unreported decision of Grove J in the unrelated matter of Bauchop v The Commonwealth of Australia, unreported, NSWSC 4/7/97 in which, similar to these proceedings, the plaintiff alleged that he had contracted "Q fever" whilst attending to his employment (in the meat industry rather than as a tradesman) at an abattoir. In that matter, the Court found that the defendant was in breach of its duty to minimise or reduce the risk of the infection and adopted the approach of King CJ in Birkholz v Gilbertson Pty Limited (1985) 38 SASR at 130, which in part sets out the following: "…It might be argued as a matter of strict logic, that the fact that given precautions would substantially diminish the risk, does not prove that failure to take those precautions materially contributed to the appellant's infection unless it can be established how that infection occurred. But the law's view of causation is less concerned with logical and philosophical considerations than with the need to produce a just result to the parties involved. Where a defendant is under a legal duty to take precautions to protect the plaintiff from the risk of contracting disease, and, by omitting those precautions, he substantially increases the risk of the plaintiff contracting that disease, the law treats that increase in risk as a sufficient basis, in the absence of evidence showing how the infection occurred, for an inference that the omission of the precautions materially contributed to the contracting of the disease…". 54 Similar to the approach of Grove J in Bauchop, I adopt this approach of King CJ in Birkholz to the facts in the original proceedings of this matter, for the purpose of establishing the liability of Bindaree Beef and Yolarno on the Cross Claim. 55 I further reject the submissions made on behalf of Bindaree Beef and Yolarno that the Plumbing Contract did not include an implied term that they take all reasonable steps to ensure that the Plaintiff was vaccinated for "Q fever" or warned of the possibility of contracting "Q fever", even in the circumstances outlined which raised the question of the business efficacy of undertaking a programme of vaccination for a tradesman such as the Plaintiff who attending at the abattoir to undertake work pursuant to his Employment Contract, rather than work in the meat industry. 56 I consider that, whether arising under the Contribution/Indemnity Claim or the Implied Terms Claim, each of Bindaree Beef and Yolarno had a duty to protect the Plaintiff from "Q fever" and to at the least offer to arrange for him to be vaccinated for the disease, a position they adopted for the vaccination of other employees of Raymoon. I do not consider that the damage sustained by the Plaintiff as a result of the acts or omissions of Bindaree Beef and Yolarno were not foreseeable, nor do I consider that the Plaintiff contributed to those injuries and damage. 57 Irrespective of those findings with regard to what might have been the Plaintiff's case however, with regard to the Cross Claim I find that Raymoon has established that it is entitled to contribution and indemnity against Bindaree Beef and Yolarno, whether arising as part of the Contribution/Indemnity Claim or as part of the Implied Terms Claim. As a result of the failure of Bindaree Beef and Yolarno, Raymoon has suffered loss and damages and I do not accept that Raymoon has contributed to the loss they have incurred. 58 I consider that because the abattoir knew and ought to have ensured that all workers were vaccinated, the justice and equity is that it should pay for the damage done to the Plaintiff, who was, anomalously, omitted. 59 I therefore make orders in the following terms: i. Verdict for Raymoon against Bindaree Beef and Yolarno on the Cross Claim. ii. Judgment for Raymoon against Bindaree Beef and Yolarno and any liability to meet the cost of the loss sustained by Raymoon, including damages, interest and costs paid by Raymoon to the Plaintiff in the proportion of 100 per cent of the loss and damages sustained by Raymoon. iii. Bindaree and Yolarno to pay the costs of Raymoon of and incidental to the Cross Claim. iv. The Exhibits to be returned to the parties after 90 days. ********** Last Modified: 08/20/2004 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.