HG Insurance and Risk Alert: “Temporal connection” gets plaintiff over the line in difficult causation case - 9 February 2015

In this Alert, Special Counsel Brooke Jacobs and Solicitor Candice Stower consider the Supreme Court’s judgment in Cowen v Bunnings Group Limited [2014] QSC 301.

The Facts

The Plaintiff, a former Mt Isa Bunning’s employee, was diagnosed with pneumococcal meningitis, encephalitis and septicaemia after being exposed to dust emanating from bags of Rooster Booster (chicken manure) while cleaning up her work area on 24 March 2008.

The Plaintiff led evidence that the bags were left uncovered outdoors and exposed to the weather, which caused the bags to deteriorate and burst, spilling the manure. The manure became dry and dispersed through the air like fine dust.

The Plaintiff cleaned up the manure over the course of two and a half hours in 40 degree heat. She did not wear any respirator, mask, filter or other personal protective equipment (PPE). She gave evidence that she began to cough and sneeze and that her eyes became watery. These symptoms persisted even after she returned home. The next day at work, the Plaintiff collapsed in a coma. She remained in a coma for some days and continues to suffer a range of disabilities, including some residual cognitive dysfunction.  

The Judgment

Bunnings admitted that it owed a duty of care to the Plaintiff and that it breached that duty. Before trial, the parties agreed on damages of $700,000, clear of the WorkCover Queensland refund. The dispute in this case was whether any breach by Bunnings caused the Plaintiff’s illnesses that precipitated her coma.

Bunnings argued that the manifestation of the illness was coincidental and that other causes, including the Plaintiff’s pre-existing respiratory illness, her extensive history as a smoker, and the presence of atmospheric sulphur dioxide in Mt Isa, were equally as likely to have caused the Plaintiff’s illnesses as her exposure to the Rooster Booster dust.

Bunnings led evidence that statistically 10 to 40 percent of the population have colonised streptococcus pneumoniae bacterium in their upper respiratory tract. The Plaintiff accepted that at the time of her exposure to the dust, the bacterium was likely present in her respiratory tract. However, the Plaintiff argued that by inhaling the dust, the relatively benign bacterium was severely irritated, causing it to descend into her lungs and enter her meninges and brain through her blood stream.

The Court heard the evidence of four eminent medical specialists, two who concluded that the Plaintiff’s exposure to the dust was a probable cause of the bacterium entering her lungs and two who stated that it was not “implausible”.

In determining legal causation in the Plaintiff’s favour, the Court was persuaded by:

  1. The results of a report provided by an environmental scientist, who was consulted by Bunnings to recreate the incident. The results indicated that one of the three participants suffered an infection to her eye despite wearing PPE, including safety eyewear. These results corroborated the Plaintiff’s evidence about the strong, unpleasant and intrusive effects of the dust.

  2. The close temporal connection between the claimant’s exposure to the dust and the onset of her symptoms, reducing the likelihood that any other factor raised by Bunning’s was responsible for the onset of the Plaintiff’s symptoms. The Court observed that attributing the illness to any other less plausible factor would “defy common sense”.

Key Points

A finding of causation depends on a determination that the breach was “more likely”, as opposed to “equally as likely”, to have caused the harm.

A temporal connection (closeness in time) may be sufficient to establish causation, even if the medical or expert evidence does not support it “on the balance of probabilities”.

In a contest between expert evidence, a court may prefer what it sees as a “common sense approach”.

For more information on Insurance and Risk issues, contact HopgoodGanim’s Insurance and Risk team.

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