Scarr v Australian Sugar Cane Feeds Pty Ltd
[2010] QDC 8
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- Unreported Judgment
- Scarr v Australian Sugar Cane Feeds Pty Ltd[2010] QDC 8
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Scarr v Australian Sugar Cane Feeds Pty Ltd[2010] QDC 8
Scarr v Australian Sugar Cane Feeds Pty Ltd[2010] QDC 8
DISTRICT COURT OF QUEENSLAND
CITATION: | Scarr v Australian Sugar Cane Feeds P/L [2010] QDC 8 |
PARTIES: | IAN STEPHEN SCARR (plaintiff) V AUSTRALIAN SUGAR CANE FEEDS PTY LTD (defendant) |
FILE NO/S: | MD 124/2009 |
DIVISION: | Civil jurisdiction |
PROCEEDING: | Hearing |
ORIGINATING COURT: | District Court at Maroochydore |
DELIVERED ON: | 5 February 2010 |
DELIVERED AT: | District Court at Maroochydore |
HEARING DATE: | 1, 2 February 2010 |
JUDGE: | J.M. Robertson DCJ |
ORDER: | Claim dismissed with no order as to costs |
CATCHWORDS: | NEGLIGENCE - causation - whether plaintiff was bitten by a spider which caused Streptococcal cellulitis, whether circumstantial evidence sufficient to satisfy onus and/ or the degree of risk. WorkCover Act 1996 (Qld) St George Club Ltd v Hines (1961-62) 35 ALJR 106 at 107; cited with approval by Spiegleman CJ in Seltsam Pty Ltd v McGuiness; James Hardie & Coy Pty Limited v McGuiness [2000] NSWCA 29. |
COUNSEL: | Mr P. B. de Plater for the plaintiff |
SOLICITORS: | Schultz Toomey O'Brien Lawyers for the plaintiff |
- [1]In 2007 Mr Ian Scarr was employed by Australian Sugar Cane Feeds Pty Ltd (the defendant) as a machine operator. The company operated at premises at Bli Bli in where it conducted a business of manufacturing and selling a form of compressed sugar cane known as “cow candy”. The business was then in a start up phase and had been established by a group of cane farmers as an outlet for their product in the wake of the closure of the Nambour mill.
- [2]Dr Warren Weitemeyer who was the managing director during 2007 gave evidence on behalf of the defendant. He said that in 2007 the business premises comprised a large shed, an office area and an external plant area where chopped cane was processed and compressed and made into small bales of cow candy which was to be sold as high grade stock feed to China and India. A quantity of product had been produced earlier by using a prototype of the machines in operation in 2007, and this was stored in the shed and available for sale to the general public. Mr Scarr said that any bale which touched the ground during production was not to be placed in containers for export but was to be stored and available for local sale from the shed.
- [3]Mr Scarr’s work predominantly involved operation of a forklift and a Manitou but he was also required to sell product to local customers. The bales of cow candy weighed approximately 40 kilograms each and if the sale was for a small number of bales, Mr Scarr was required to manually lift the bales into the customer’s vehicle.
- [4]He was also responsible for administering a vermin control program instituted by the defendant which required Mr Scarr on a weekly basis, to check and record various bait cages in the premises aimed specifically at rat and mice control.
- [5]He says that prior to 1 November 2007 he noticed a significant infestation of spiders in the shed. He says that he asked at least two of his superiors to “call in the Flick man” but that nothing was done. This evidence is disputed and will be discussed later.
- [6]In the afternoon of 1 November 2007, he was loading bales of product into a customer’s utility. He recalls that he had put about five bales into the tray by lifting the bales and using his right knee to facilitate lifting. In evidence he said that as he did this he felt something bite him on the shin of his right leg and he brushed the area which was covered in cow candy. He described a pricking sensation in the area of his right shin. He thought it was a mosquito bite and he did not think anything of it initially. He said in evidence that this incident occurred at about 2.45 pm. He began to feel unwell and by the time he clocked off at 3.30 pm he was “crook in the guts”. He made no mention of any bite or injury to his employer either then or at later stage apart from his notification pursuant to the WorkCover Act 1996 (Qld).
- [7]He went home and his wife noticed he was hot and flushed. He had a shower and then at around 6 pm went to bed without eating dinner, which his wife said was unusual. There is no doubt that he was quite unwell at this time and that he was having an attack of chronic cellulitis.
- [8]The following day after a bad night, he saw a general practitioner Dr Rebecca Kerr at around 8.30 am. She noted an area of cellulitis on his right lower limb and that he was febrile and unwell with nausea, dizziness, hot flushes and swollen lymph glands in his groin. She treated him with injections of antibiotics, and drew a black line around an area of erythema on his right lower leg. She advised Mr Scarr that if he got worse he should go to hospital.
- [9]Later that day the red area spread, and his wife called an ambulance and he was admitted to the Nambour General Hospital where it was confirmed that he had Group A Streptococcal cellulitis in his right lower limb. He was treated with intravenous antibiotics in hospital for approximately three weeks. He was off work until he returned to his employment with the defendant on 29 January 2008.
- [10]His claim is that the chronic cellulitis was caused by a spider bite at his workplace during the afternoon of 1 November 2007. He claims damages against the defendant for negligence and breach of statutory duty. He alleges that the defendant did not exercise reasonable care in providing for adequate control of spiders in the workplace and for otherwise providing for his workplace health and safety.
- [11]Mr Scarr has the onus of proving negligence on the balance of probabilities. Mr de Plater on his behalf accepts that the evidence on this issue is entirely circumstantial, and that the test of balance of probabilities is not satisfied by evidence which fails to do more than establish a possibility: St George Club Ltd v Hines (1961-62) 35 ALJR 106 at 107; cited with approval by Spiegleman CJ in Seltsam Pty Ltd v McGuiness; James Hardie & Coy Pty Limited v McGuiness [2000] NSWCA 29.
Discussion
Was the plaintiff bitten by a spider?
- [12]There is no direct evidence that a spider did in fact bite Mr Scarr. When he spoke to Dr Kerr at around 8.30 am on 2 November 2007 he said that “he thought he had been bitten by a spider the day before” but “at the time he did not distinctly recall seeing the spider”. Dr Kerr drew a black line around an area of erythema which she observed on examination.
- [13]Both Mr Scarr and his wife now say that the doctor drew a line around a black dot which they say was at the centre of the red area. Mr de Plater asked me to infer that this is in fact a spider bite. The “dot”, on the plaintiff’s case, can be seen in at least two of the photographs in Exhibit 3 which were taken at the Nambour Hospital some days after Mr Scarr’s admission.
- [14]Dr McCormack (specialist infectious diseases physician who gave evidence for the plaintiff) found these photographs (and/or other photographs) convincing. The difficulty is that these photographs were taken well after any circle drawn by Dr Kerr had disappeared; and she mentions no “dot” in her report at a time when it had been suggested to her by Mr Scarr that he may have been bitten by a spider. This evidence is quite equivocal in my opinion.
- [15]Dr Whitby (specialist infectious diseases physician), who gave evidence for the defendant, also described as common the appearance of reddish spots in an area of skin affected by Streptococcal cellulitis, and indeed, other “spots” can be seen in at least one of the photographs. I regret to say that in examining and reviewing the actual photographs I accidentally marked one of these other “spots” in the right upper part of the leg as it appears in the top colour photograph, but this “spot” can be seen in my working copies of Exhibit 3 which I will attach to the actual exhibit.
- [16]There are other reasons why I am not prepared to draw the inference that the plaintiff was in fact bitten by a spider. I have already referred to Mr Scarr’s disputed evidence about spider infestations and complaints to superiors prior to 1 November 2007. He said in evidence that there were a lot of spiders of different types in the shed; “heaps” all over the cow candy. He said he went to see Ross Stirrup, his immediate superior, and said to him in relation to the spiders “why don’t we get a Flick man to come in and give it a basic spray?”. He says that Mr Stirrup told him that he would take it up with the manager but that nothing happened and the shed was never sprayed. Mr Scarr said he also approached Dr Weitemeyer in his office and mentioned “insects” to him, and Dr Weitemeyer said he would take it up with the committee to see if they would spend some money.
- [17]The defendant called three lay witnesses – Dr Weitemeyer, Ross Stirrup and the engineer Paul Peterson and their evidence on these issues conflicts significantly with the evidence of the plaintiff. All three deny that there was ever an infestation or a problem with spiders in any part of the workplace. All accept that there were spiders in the workplace but deny that they ever presented a problem or were ever in plague proportions.
- [18]In my view the evidence establishes that this start up business was in fact quite diligent in controlling pests in the workplace. The rodent control system was quite significant. I think it highly improbable that if there was in fact a spider infestation and it was brought to the knowledge of Dr Weitemeyer (who was then working on a workplace health and safety manual for the business), that he would not have responded. He was a careful, impressive witness with no interest given that he resigned as managing director of the company on 1 November 2007. He could not recall Mr Scarr mentioning spiders although he did recall him asking about the Flick man which he associated with rodent control. He denied any mention of a “committee” as there was no committee, and he would have had personal authority to approve such expenditure without reference to the Board of Directors. Mr Stirrup, who still works for the defendant, was also a careful and credible witness. He could not recall any complaint about spiders or a conversation with Mr Scarr about the Flick man and said that there was never a problem with spiders. Similarly, Mr Peterson the engineer gave evidence that he worked at that time throughout the plant and that he saw no unusual infestation of spiders. He recalled no complaint being made to him or in his presence about spiders and he heard nothing about a Flick man.
- [19]I prefer the evidence of these three witnesses to that of Mr Scarr on these two issues.
- [20]I think it is probable that Mr Scarr has convinced himself that his nasty attack of cellulitis in November 2007 was caused by a spider bite when in all probability it was not. He accepted in cross-examination that when he was admitted to Nambour Hospital he described two earlier occasions when he had suffered similar symptoms which he had attributed to the bite of a white-tailed spider, and that on these occasions he also did not actually see the spider. Although the hospital records are not in evidence the discharge summary was reproduced in Dr Whitby’s report. It states:
“He reports he was bitten by ?white-tail spider two days previously whilst at work. He has a history of three episodes of cellulitis previously with similar presentations. On examination, there was an area of cellulitis of the right leg involving the anterior and medial areas just proximal to the ankle”.
The admission notes further state:
“?white-tail spider bite at approximately 4 pm yesterday – has had x2 previous bites with similar symptoms – increased redness plus heat at right shin from ankle to mid-shin”.
- [21]The defendant’s solicitors initially referred Mr Scarr to Dr McCormack. Dr McCormack provided two reports dated respectively 1 September 2008 and 23 February 2009. It is reasonable to assume that the plaintiff was encouraged to commence the proceedings on the basis of Dr McCormack’s opinion in his first report. In his report he states inter alia:
“He gave me some colour photos which showed an area of diffuse cellulitis (skin and soft tissue infection) with a single black spot. He tells me that no organisms were identified as the cause of this cellulitis and this is verified by perusal of the hospital records. He also gave me later photos which showed some resolution of the cellulitis. There was a greenish discharge from that area.”
- [22]Later in his report Dr McCormack addresses a number of questions put to him by the defendant’s solicitors. He responds in part as follows:
“There is no absolute proof to support Mr Scarr’s contention that he suffered from the spider bite. He did not see a spider bite him, but unfortunately this is very common since the initial bit[e] is not painful. He was wearing long pants. He noted that there were lots of spiders in the shed where the bales of sugar cane were stored and that statement is probably the strongest evidence supporting the role of a spider. It is not possible to say that any spider was white-tailed or some other variety. There is no doubt that he developed an acute cellulitis in association with significant fevers. The timing of lifting the bales of sugar cane and the onset of these symptoms is certainly consistent with a spider bite. The cellulitis and the fever can be caused by the spider bite itself with exudation of toxins however more frequently the cellulitis is caused by an organism (usually a Staphylococcus or a Streptococcus) which was colonising the patient’s skin at the time of the bite. These organisms are very common and all of us have organisms on every square millimetre of our skin at all times. If you happen to have a bite or another injury at a time when you are colonised with a particularly virulent organism these can change from being harmless colonising agents to cause a deep seated infection. While there is no doubt that Mr Scarr suffered from a cellulitis it is not possible to prove that this was initiated by a spider bite. However the suddenness and severity of onset of his illness is consistent with a spider bite as the initiating event for his cellulitis. On the balance of probabilities I think it is reasonable to ascribe a spider bite as the likely cause of his injury.”
- [23]Prior to giving evidence Dr McCormack had seen Dr Whitby’s report under cover of a letter dated 26 June 2009. He described the report as “excellent”, but he didn’t think that it altered his original opinion.
- [24]A difficulty that only emerged later during Dr Whitby’s evidence is that although both doctors received copies of photographs, it is reasonably clear that some of these photographs may have been different from the photographs in Exhibit 3. When this problem arose, a copy of a photograph apparently supplied to Dr Whitby by the defendant’s solicitors was tendered and marked as Exhibit 10. It has a little “spot” which appears to be black in the black and white copy circled in ink. It may be a copy of the top photo in Exhibit 3 (which I accidentally marked) but certainly it appears that the circle may have been placed on the copy later by someone else. It is certainly not suggested by any party that this is the circle placed in the area of erythema by Dr Kerr on 2 November 2007.
- [25]In any event I have no hesitation in preferring Dr Whitby’s evidence to that of Dr McCormack’s where it conflicts.
- [26]Dr Whitby carefully researched the issue of cellulitis attacks being wrongly associated with spider bites, and annexed to his report a series of learned articles to which reference is made in his report. Neither he nor Dr McCormack assert expertise in spiders however these articles form part of the evidence as I was told that none of the authors were required for cross-examination.
- [27]In his report Dr Whitby says this in relation to the condition known as cellulitis:
“The condition often presents very suddenly and frequently with a stabbing or pricking pain in the area which is later affected. This is often interpreted by patients as being an insect bite. Subsequently and often a period of hours, the area becomes intensely painful, red, swollen and the patient often has systemic symptoms of high temperature and sometimes sweats and throbbing. Not infrequently a patient presents with a temperature with no features of cellulitis and the diagnosis of cellulitis can only be made some hours later once the redness and swelling develop. The condition is usually caused by a Group A Streptococcus, an organism commonly found on the skin. The condition is not uncommon and extensive work has been done on predisposing factors. These include damage to either the venus drainage or lymphatic drainage system of the lower limbs, such that the patient at the end of the day has swelling of that limb. It is the swelling which predisposes to recurrent episodes of cellulitis. It is also thought that the organisms enter not through the shin, but often through the spaces between the toes, i.e. the interdigital spaces and therefore tinea between the toes may provide a portal of entry for entrance of this normal resident organism on the skin. Often episodes become recurrent. Each episode produces further damage to lymphatic and venus drainage of the leg and if corrective measures are not put in place to try and reduce the swelling in the leg on a regular and continuous basis, recurrent presentations for cellulitis and often hospital admission for cellulitis are the end result.”
In his report he then refers to a number of reputable journal articles which debunk what he describes as an urban myth associating the white-tailed spider with toxic envenomation that produces significant swelling, redness and subsequent ulceration with the ulcers persisting for months and being difficult to treat.
- [28]He then goes on to say this in his report:
“It is highly unlikely that Mr Scarr suffered a spider bite. Not only has the myth of white-tail been debunked but there are two other reasons that I think this event is unlikely:
- The patient has recurrent Streptococcal cellulitis. While it is clear that Mr Scarr is under the impression this is induced by spider or insect bites, in fact cellulitis has nothing to do with spider bites.
- Dr Robert Raven, arachnoidologist at the Queensland Museum, has for many years been publicly arguing that no biting insect in Queensland, let alone a spider can move so fast that a patient would not see it if they were truly bitten by a spider.
It is not uncommon for patients who present with cellulitis to describe an initial pricking sensation that they attribute to being bitten by something. None however, ever see the insect thus confirming Dr Raven’s assertion.”
- [29]In his consultation with Dr McCormack, Mr Scarr described the onset of his symptoms as commencing about 30 minutes after moving the bales of cow candy on 1 November 2007. Dr McCormack thought this was consistent with spider bite but he also said it was consistent with some other form of breakage of the skin. In his later report dated 23 February 2009, he said this:
“3. It is entirely feasible and plausible that no spider was ever involved in the genesis of his cellulitis. In order for this to happen he would have had to sustain an injury to his right leg preceding the cellulitis. It is possible that the non-specific rubbing of the bale of hay that he lifted could have induced such an injury although it would have had to have occurred through his long pants and above his sock line.” (Mr Scarr gave evidence that he was wearing shorts and denied telling Dr McCormack that he was wearing long pants).
- [30]It was assumed by Mr de Plater in his cross-examination of Dr Whitby that Mr Scarr in his evidence to the court had said that the symptoms came on after about 15 minutes. This may have been a little unfair to Mr Scarr however, whatever the time 15 or 30 minutes, I am satisfied that it is much more consistent with the onset of cellulitis for a reason other than a bite in that time frame.
- [31]In his cross-examination by Mr de Plater, Dr Whitby gave very persuasive evidence about the mechanism of the onset of symptoms associated with Streptococcal cellulitis. Both doctors accepted that a break in the skin was necessary to enable the bacteria to penetrate below the surface of the skin although only a microscopic breach ie one invisible to the naked eye, was necessary. Dr McCormack accepted that the rubbing of the leg across bales of compressed cane, especially as Mr Scarr says he was wearing shorts, could have been the source of such a microscopic breach of the skin thus enabling the bacteria to enter. Dr Whitby explained the onset of symptoms as being in effect, the body’s response to the bacterial invasion. He was firmly of the opinion that it was highly unlikely that such symptoms would manifest within such a short time after the entry of the bacteria under the skin. He said in cross-examination (at 1-87 line 41):
“Bacteria don’t reproduce that quickly. A Streptococcus, which is a gram positive coccus, has a new generation every 40 minutes. So they don’t hang around, they certainly reproduce quickly, but not 15 minutes. You’re talking you know hours”.
- [32]It follows from these factual conclusions that the plaintiff has failed to prove on the balance of probabilities that the Streptococcal cellulitis that he suffered in November 2007 was caused by a spider bite which occurred at the workplace on 1 November 2007.
- [33]Even if the plaintiff had overcome this initial hurdle nevertheless his claim would fail, because on the evidence the risk of a worker in his position suffering a spider bite causing cellulitis was at best trivial. There is no evidence that any other worker was bitten and my acceptance of the evidence of the three lay witnesses who gave evidence on behalf of the defendant of the lack of a spider problem confirms such a conclusion. The risk was so low that no further step by the defendant was reasonably necessary.
- [34]The plaintiff’s claim is dismissed.
Quantum
- [35]In accordance with usual practice it is necessary for me to assess quantum.
- [36]Mr Scarr is 50. He still complains of pain in his leg after being on his feet at work for some hours but I am satisfied that this is most probably due to his ongoing health problems and increased propensity to having cellulitis by virtue of his diabetes. His weight (he is 6 feet tall and was 150 kilograms at the time of the trial) may also be a contributing factor. I accept Dr McCormack’s evidence that the cellulitis which commenced in November 2007 has resolved and that his employability is unaffected. He returned to work with the defendant at the end of January 2008 and left of his own accord in July. I am satisfied that he left for reasons other than any disability associated with the November 2007 cellulitis attack. He is presently employed as a security guard. In my view the evidence is insufficient to support even a modest component for future economic loss. He is entitled to a modest award for pain and suffering which I fix at $12,000 with interest on that sum of two per cent per annum for 2.3 years. I allow past economic loss for 13 weeks (1 November 2007 to 29 January 2008) at $535 net per week (plaintiff’s 2006-2007 tax return) an amount of $6,955 and interest on that sum at five per cent for 2.3 years; past loss of superannuation assessed at nine per cent of past economic loss and specials of $2,051.41.
- [37]The order is the plaintiff’s claim is dismissed with no order as to costs.