Jang v Australia Meat Holdings P/L
[2001] QCA 51
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- Unreported Judgment
- Appeal Determined (QCA)
- Jang v Australia Meat Holdings P/L[2001] QCA 51
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Jang v Australia Meat Holdings P/L[2001] QCA 51
Jang v Australia Meat Holdings P/L[2001] QCA 51
SUPREME COURT OF QUEENSLAND
CITATION: | Jang v Aust Meat Hold P/L [2001] QCA 51 |
PARTIES: | PETER KEITH JANG (plaintiff/respondent) v AUSTRALIA MEAT HOLDINGS PTY LTD ACN 011 062 338 (defendant/appellant) |
FILE NO/S: | Appeal No 3332 of 2000 SC 21 of 1995 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Townsville |
DELIVERED ON: | 23 February 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 November 2000 |
JUDGES: | Pincus JA, Cullinane and Wilson JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: | Appeal allowed with costs. Vary judgment given by learned primary judge by substituting the figure of $163,080.87 for $259,973.63. |
CATCHWORDS: | TORTS – NEGLIGENCE – Damages - loss of a chance – methods of categorising such cases – whether Malec approach should be used TORTS - NEGLIGENCE - Essentials of Action for Negligence – Causation - whether failure of defendant employer to warn plaintiff employee of risk of contracting Q fever in workplace caused plaintiff to contract Q fever - where plaintiff already aware of risk of Q fever TORTS – NEGLIGENCE - Essentials of Action for Negligence – Causation - whether failure of defendant employer to advise plaintiff employee to seek advice from general practitioner about Q fever vaccination caused plaintiff to contract Q fever - whether general practitioner would have given plaintiff vaccination Chappel v Hart (1998) 195 CLR 232, distinguished Green v Chenoweth [1998] 2 Qd R 572, applied Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, followed Wardley Australia Ltd v Western Australia (1992) 175 CLR 514, distinguished |
COUNSEL: | M Grant-Taylor SC with G Cross for the appellant J R Baulch SC with G T Reithmuller for the respondent |
SOLICITORS: | Thompson & Hannan for the appellant Connolly Suthers (Townsville) for the respondent |
- PINCUS JA: The respondent plaintiff sued the appellant defendant for damages relating to a disease, Q fever, which he contracted while in the appellant's employment at an abattoir. The action succeeded, the respondent being awarded a little under $260,000; the appellant has appealed with respect to both liability and quantum.
- The respondent's case was that he contracted Q fever as a result of his employment at the appellant's meatworks at Townsville. At the time when he got the disease he could have been protected by an injection of a vaccine which had been developed by Commonwealth Serum Laboratories (CSL) and was then available.
- The learned primary judge dealt in his reasons with three aspects of the respondent's allegations of breach of duty against the appellant. The most prominent case was that the appellant should have instituted a general program of compulsory vaccination against Q fever early enough to have protected the respondent against that disease; he contracted it in June 1993. The judge rejected this allegation against the appellant. His Honour found that by 1992 the appellant had set up a consultation process to determine whether the workforce could be vaccinated against Q fever and that from then until 1994 there were protracted negotiations between the appellant's union representatives, employer groups and doctors. The program was instituted in 1994. His Honour observed:
"One of the reasons why the consultative process took so long was a scepticism both at the employer and the employee level as to the efficacy of the vaccine which was to be used. There were some indications that it was not effective or had some deleterious side effects".
- Having rejected this broader case, the judge considered two other allegations, both of which were of culpable failure to give some advice of a medical nature to the respondent. His Honour considered whether the appellant was liable because it failed to warn the respondent about the danger of Q fever and that it was endemic in abattoirs; he also considered whether the appellant should have told the respondent "that he ought to seek advice in that regard from his general practitioner", by which was meant advice about vaccination against Q fever.
- The learned primary judge held both these allegations to be made out. As will appear, I am of the respectful opinion that his Honour erred in relation to the first allegation, but that the finding on the second allegation must be upheld. There remains a question of the causal link between the failure to recommend that a GP be consulted and the contraction of the disease.
- In 1992, the year before he contracted Q fever, the respondent had considerable contact with doctors, some details of which are discussed below. As a result, he became aware in 1992 that he was being exposed or possibly exposed to the Q fever virus at the meatworks; that this posed particular dangers to him; that he was being medically tested to see if he had Q fever; and that Q fever was a risk he ran by working at the meatworks. It appears that most of this information was obtained from a Dr Peterson, who was a relation by marriage (60, 61). The learned primary judge perhaps overlooked this evidence, which came from the respondent himself, in making the finding that there was relevant negligence on the appellant's part, in failing to warn about the risk of Q fever. Well before he contracted Q fever the respondent was adequately informed on that topic; so that any failure on the appellant's part, in that respect, could not have been causative.
- A more difficult question is whether the judge's finding, that the cause of the contraction of the disease was a culpable failure by the appellant to advise the respondent to get advice from a general practitioner about the vaccine against Q fever, should stand. If the advice had been given at any time in 1992, that would have been amply early enough. The respondent said that he was a man who was concerned about his health. Certainly he took a considerable amount of medical advice, in 1992; apart from being referred to a number of specialists and having various blood tests, he saw two general practitioners, a Dr Hunter and also Dr Peterson, mentioned above, a total of about a dozen times (784, 795). He was thought to have some sort of viral illness and in August 1992 tests were done to see if he had Q fever (39). As the respondent acknowledged, he no doubt discussed Q fever with Dr Peterson (60).
- As between the two doctors, Drs Peterson and Hunter, on the one hand, and the appellant on the other, one might have expected the doctors to be at least as conscious of the implications of the risk of Q fever as the appellant was. Yet there is no evidence that any of the doctors ever discussed with the respondent means of protection against Q fever. More strangely, there is no evidence that the respondent ever asked any of them about that, although he was a person who was concerned about health matters and had in 1992 serious symptoms which, he was advised, could be due to Q fever; as he was told, he did not in fact have the disease at that stage.
- The respondent has said that if he had been told of the risk of Q fever he would have been –
"... pretty wary I suppose, because I take fairly good care of my health, my teeth and I take vaccinations and – for tetanus and flu shots, I take flu shots, things like that. I'd probably query it".
The fact is that in 1992 for some months he had chest pains, lethargy, headaches, tiredness, nasal congestion, hypertension and anxiety; hand and elbow joints and ankle joints were giving him trouble (51). He was told that this could be due to Q fever and that working at the meatworks created a risk of Q fever (61). When the question of his having asked his doctor questions about Q fever was raised, he answered:
"Yeah. I think I would have said – yeah whatever it entails and what happens". (60)
- The judge has found that if appropriately warned the respondent would have consulted his local GP and would have been vaccinated. I have already concluded that one finding about the warning – that the employer is liable because the respondent should have been warned that employment at the meatworks brought a risk of Q fever – cannot stand, because he knew about that risk well before he contracted the disease. Mr Grant‑Taylor SC, who led Dr Cross for the appellant, did not challenge the proposition that if the respondent had been advised to do so by the employer he would have consulted his GP. This concession loses some of what might otherwise have been its force when it is kept in mind that, at relevant times, the respondent was in contact with GPs about symptoms which were suggestive of Q fever and that Q fever was in fact discussed with one or both of Drs Hunter and Peterson.
- The appellant's central complaint, on this aspect of the case, appears to be the reasoning of the learned primary judge embodied in the finding that:
"... had the [respondent] been warned appropriately he would have consulted his GP who could have explained to him the fact that Q Fever was endemic in abattoirs and could have obtained the necessary vaccine for him".
For the reasons I have already given, the first "could have" was, with respect, an error; the respondent knew that Q fever posed a risk and he had ample opportunity to obtain whatever information GPs could give him on that subject. The finding that the GP could have obtained the necessary vaccine is in my view correct, although it was a matter which would have involved some slight trouble.
- But it is another question whether seeking medical advice about the vaccine in 1992 or early 1993 would necessarily have resulted in the respondent being vaccinated; the judge has moved from the proposition that the GP could have obtained the vaccine to the proposition that he certainly would have got it and administered it.
- There was much evidence from which a contrary inference could be drawn. One category of such evidence, just referred to, is the fact that even when there was every reason to be concerned about Q fever, it appears that the doctors did not mention the possibility of using the vaccine. Of course, if at the relevant time the respondent already had Q fever in 1992, the vaccine could not help; but the tests then done showed he did not have the disease.
- There was a substantial amount of evidence capable of explaining the absence – on the respondent's case – of any mention of the vaccine by his doctors. One part of this was from the witness Ms Hanrahan, on whose evidence the primary judge relied – par 17. Ms Hanrahan said that at the relevant time demand for the Q fever vaccine was very small, that the vaccine is an unusual one "in that it requires ... intradermal skin testing and serology to be taken from the patient to avoid adverse reactions and so we have always gone to great lengths to give a good deal of direction to anyone who wishes to use the product" (333). It was not until June 1993, she said, that there was recruitment of vaccine specialists (337), by which was meant recruitment by CSL of people whose job it was to explain the use of the vaccine to doctors and others. Similar evidence was given by a Mr Newman; he also swore (347) to a CSL document (830) (apparently prepared in 1994) which explained the necessity for "screening" before administration of the vaccine. It included the following:
"While such screening is cumbersome and time-consuming, it is of fundamental importance with the current vaccine. Because of the need, before immunisation, to:
- elicit any history of past Q fever infection, immunisation or tests, recent or current possible Q fever, immunocompromising conditions, pregnancy or egg allergy
- obtain and interpret serological results
- perform and read a skin test, requiring skill and experience
health staff undertaking Q fever immunisation should be well informed and experienced. Q fever immunisation should preferably not be performed by the "occasional player". A number of reactions to the vaccine have occurred when it was inappropriately given, and the contraindications to immunisation have been modified and somewhat extended over the period the vaccine has been available in Australia.
... an individual needs be identified as suitable for taking the blood for serology and performing skin tests identified and trained. A local doctor (not all abattoirs have their own medical practitioner) needs be found and skilled up on the disease and giving the vaccination. It is labour intensive and long term work – with returns sometimes years after initial contact has been made with an abattoir".
- It can be seen from the tone of the document that it consists of instructions by CSL to representatives such as Mr Newman. The evidence just referred to was not challenged in cross-examination, or contradicted by any evidence from another witness. The basis of the judge's moving from the proposition that a general practitioner could have given the vaccine to the proposition that he or she would certainly have done so appears to be solely the evidence of Dr T T Pietzsch, who said in effect that the vaccine could have been obtained and vaccination could have been performed by Dr Pietzsch at the relevant time.
- The weakness of Dr Pietzsch's evidence, from the respondent's point of view, is that although he indicated he was personally confident about doing the job, he did not claim to know what other GPs in the area would be likely to do if asked about Q fever vaccine in 1992 or early 1993. He exhibited some caution, being unprepared even to swear to the fact that GPs would have necessarily known of the existence of Q fever, although he "certainly would hope so" (327).
- The paucity of the evidence on this point was not, it has to be said, entirely the respondent's fault; the judge appeared to be of the view, at the trial, that it was very clear that if the respondent had asked a GP about the vaccine, it would certainly have been administered to him. I can, with respect, discern no basis in the evidence for that view and it could hardly be a matter of which judicial knowledge could be taken. It should be added that there was other evidence tending to show that GPs at the relevant time had little knowledge of Q fever (281, 312, 321) and that evidence was also unchallenged.
- To draw the inference from Dr Pietzsch's evidence that the respondent would certainly have been vaccinated against Q fever if he had asked, say, Dr Peterson about it, appears to me to be unjustified. At the relevant time there was no general distribution of the vaccine; there was uncontradicted evidence of much lack of knowledge and expertise among general practitioners, relating to Q fever; the procedure of administration, on the evidence, has its complexities; there is no evidence that any doctor in the area other than Dr Pietzsch performed the procedure at the relevant time; and none of the doctors who were consulted in 1992 (including the "works doctor" Dr Peterson) prescribed the vaccine for the respondent, even though the circumstances discussed above pointed to the necessity for its administration.
- Despite these considerations, I have come to the conclusion that it would be wrong to find, contrary to the learned primary judge's opinion, that the appellant's failure to suggest to the respondent that he seek advice about administration of Q fever vaccine from a general practitioner was in no sense causative. But I am in respectful disagreement with his Honour's view, which is implicit rather than explicit, that once the respondent asked the advice of a general practitioner about the vaccine he would, as a matter of certainty, have got it. What he lost by not being told to discuss the matter with his GP was a prospect of being vaccinated.
Loss of a chance
- Where a wrongful act is done which might or might not have caused the plaintiff loss, then the law puts the case in one of a number of categories:-
- The plaintiff succeeds 100%, on the ground that the contingency affects liability, not quantum, and the loss would probably have occurred. In Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 642, the discussion about damages for loss of a chance is preceded by: "When liability has been established and a common law court has to assess damages ...". The facts relating to liability have to be found on the balance of probabilities.
- The plaintiff fails completely, because the contingency affects liability, not quantum, and the Court is not satisfied on the balance of probabilities that a tort was committed. For example, a plaintiff who complains of having been injured in a brawl would fail if the court thinks it possible but unlikely that it was the defendant who caused the injury. I cannot think the respondent's case is to be considered in this category.
- The plaintiff fails completely, on the principle of Wardley Australia Ltd v Western Australia (1992) 175 CLR 514, that:
"... a plaintiff can only recover compensation for actual loss or damage incurred, as distinct from potential or likely damage ...". (526)
The scope of this rule need not be considered here, for it seems safe to assume that it has no application to a case such as the present.
- The plaintiff succeeds completely, on the basis of Chappel v Hart (1998) 195 CLR 232. That was a case of failure to warn, like the present, and the principle there adopted is discussed below.
- The plaintiff recovers a percentage of the loss, on the principle of Malec.
- Here the appellant argues that the second or fifth category applies; if so, the plaintiff either fails altogether because there was no tort proved, or recovers a percentage of the damages, on the basis that there is a tort proved but the extent of the loss is uncertain.
- In Chappel, the plaintiff was damaged in the course of a surgical operation which was "performed [by the defendant] with skill and care" and the damage "was a random event which might occur no matter when or by whom the surgery was performed" [4]. The operation was performed for a condition which was "relentlessly progressive" and would "inevitably have required surgery of the kind performed". The plaintiff succeeded against the doctor, not because he did the operation badly, but because he failed to warn the plaintiff about the possibility of the random event occurring.
- There are three principal themes in the majority reasons: first, that had the plaintiff been warned she would have got another and better surgeon [19]; second, that the plaintiff had to succeed unless the doctor proved that the injury would have occurred, warning or no [20] [68]; and, more generally, that commonsense dictated the result. The third consideration does not necessarily give practical guidance in marginal cases.
- The broadest general proposition which one can deduce from Chappel v Hart is that if the failure to warn against the risk of some adverse consequence is followed by the occurrence of just that consequence, an onus falls on the defendant to prove that the consequence would have ensued, warning or no. If, in Chappel v Hart, a warning from the defendant would have induced the plaintiff to hire another surgeon, it is impossible for the defendant to show that the damage suffered would then have ensued; even if the second surgeon was somewhat less competent than the defendant, it would be quite unlikely that the random event would take place when the operation was done. So the rule becomes, as a practical matter, that the plaintiff wins if the Court is satisfied that the operation would have been deferred, had a warning been given. That seems an odd outcome. Even if the plaintiff having had the warning used the same surgeon (the defendant), and had the operation done a day later, it would have been quite unlikely that the random event would have occurred; it was only a faint chance.
- One could apply Chappel v Hart here to reach the result that, because the risk failure to warn against which eventuated, an onus fell on the appellant to prove that, warning or no, the respondent would have contracted Q fever. The alternative approach is along Malec lines: to hold that an assessment must be made of the likelihood that a warning would have avoided the damage. This has the advantage of avoiding the "all or nothing" approach towards which Chappel v Hart appears to point; under the Malec doctrine, the plaintiff can recover some damages even if the Court thinks it unlikely that a warning would have averted the damage.
- It should be noted that although both Chappel v Hart and the present case have in common that there is a complaint of failure to warn, the critical point here is whether the appellant was liable because it failed to give advice about vaccination, as part of or consequential upon the warning which, the judge held, should have been given. The advice failure to give which produced judgment against the appellant was advice to take positive action, namely to consult a GP about vaccination. There are factual grounds which justify declining to apply, or adapt, the reasoning of the majority in Chappel v Hart.
- We were referred to Green v Chenoweth [1998] 2 Qd R 572, which is authority for the proposition that a failure to warn cannot give rise to a cause of action unless it is shown to have brought about some relevant action or inaction. Here, on the judge's findings, the appellant's failure to give appropriate advice resulted in inaction, namely the failure to consult a GP about vaccination. It seems to follow from Green v Chenoweth that, subject to proving that the appellant's failure caused the loss of, at least, a chance of effective vaccination, liability is established.
- It appears to me that the appropriate principle to apply is that used in Malec. The Malec technique is commonly used in solving problems of this sort in personal injury cases and I am inclined to think that the approach taken in Chappel v Hart may perhaps be confined to sets of facts having a close resemblance to those which were then before the High Court. I would award damages of two‑thirds of the amount assessed, on the basis that the respondent's proofs go no further than showing, as to "an event which it is alleged would ... have occurred", (Malec at 643), that the respondent, if he had raised the matter with one such as Dr Peterson, might well have been vaccinated. The outcome would have depended on such factors as whether Dr Peterson knew anything about the vaccine, whether he had reservations about its safety, how prepared he was to take the time and trouble to inform himself, and how insistent the respondent was that the vaccine be given.
Quantum
- The appellant's main arguments under this heading related to past and future economic loss. A number of points were made, but those which have the most substance are that the respondent did not earn much money from jobs he had before he came to work for the appellant and, secondly, that the judge should have found that, Q fever or no, the respondent would have worked for no more than a few months after the date when he contracted the disease.
- The judge's findings about economic loss – par [26] and par [27] – were in substance that the respondent's claim for past economic loss, at $368.00 per week should be reduced to $300, with a discount rate of 20%, and that there should be a 40% discount with respect to future economic loss because of the possibility of early retirement from the workforce.
- As to the appellant's first contention, until the 1992/1993 years the respondent's earnings were poor; in 1991 he earned nothing at all. The evidence to which the appellant points suggests, to my mind, that the figure of $300 per week which the learned primary judge adopted in respect of past economic loss was a generous one. The evidence referred to above, as to the respondent's physical condition in 1992 (the year before he contracted Q fever) gives support to the appellant's argument. On the other hand, the judge's apparent generosity may be explicable on the basis that he formed a favourable opinion of the respondent, as to the likelihood of his continuing to persist with work despite difficulties.
- A point which was pressed was that the judge should have found on the basis of the evidence of a Dr Hossack (in Exhibit 57) that the respondent could have worked for only a few months after the date of becoming sick with Q fever, even if he had not got that disease. It was argued for the appellant that Dr Hossack's view was unchallenged; a Dr Bidstrup gave, the respondent's counsel said, evidence of the likelihood of a much more substantial working life (159). Mr Grant-Taylor SC submitted that, properly read, Dr Bidstrup's evidence did not go so far; but it appears to me that the primary judge was entitled to treat Dr Bidstrup's evidence as supporting the expectation of working life on which the assessment is based.
- I have been troubled about the overall level of damages, in view of the solid evidence that the respondent had significant health difficulties before he got Q fever. But, on the whole, it does not appear to me that one would be justified in characterising the learned judge's assessment as so generous as to require correction; my view applies to the assessment of general damages as well as to that of economic loss.
Summary
- (a).The principal basis of the respondent's case at trial, that a general program of compulsory vaccination should have been introduced, was rejected by the primary judge.
(b).His Honour found that there was a causative breach of duty in failing to tell the respondent about the risk of Q fever; but on his own evidence the respondent was well aware of that at relevant times.
(c).The judge found that the appellant should have told the respondent about the Q fever vaccine and that he should seek advice from a GP about it; in my opinion this finding should be upheld.
(d).Damages have been assessed on the basis that if the respondent had given the advice just mentioned it was 100% certain that vaccination would have ensued; that finding was in my respectful opinion not reasonably open and damages should be assessed as for the loss of a chance. There was much evidence to support the view that an enquiry in 1992 about the vaccine would not necessarily have resulted in a vaccination.
(e).I would uphold the judge's assessment of quantum.
Conclusion
- The orders I propose are –
- Appeal allowed with costs.
- Vary the judgment given by the learned primary judge by substituting the figure of $163,080.87 for $259,973.63.
- CULLINANE J: I have had the advantage of reading the reasons of Pincus JA. I agree with the reasons and the orders proposed.
- WILSON J: I agree with the reasons of Pincus JA, and with the orders proposed by him.