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Plaintiff awarded damages after Q-fever diagnosis

Thomson v State of Queensland & Anor [2019] QSC 95

Justice Applegarth

10 April 2019

Background

A 57 year old supervisor/carpenter was employed to oversee a group of people on a Skilling Queenslanders for Work program. He, along with others, was refurbishing animal pens at the school farm at Southport State High School from September to December 2011.

In January 2012, Mr Thomson was diagnosed with Q-Fever that has since developed into Q-Fever Debility Syndrome. Mr Thomson has been unable to return to work. He claimed damages from his employer and from the State of Queensland as the controller of the school/school farm.

Evidence was given that in its mild state, Q-Fever can present like influenza and the body's natural immune system will overcome the infection. In rare cases, the symptoms can persist as they did with Mr Thomson. There is a highly effective vaccine that is available to those working in high risk areas.

Mr Thomson has been severely disabled by the infection and both he and his wife gave evidence that his quality of life fluctuates. On good days, he can perform very light activities, but on bad days he is barely able to get out of bed due to fatigue and generalised aches and pains. He needs considerable assistance from his wife who has, in effect, been his nurse and carer for the past seven years.

Liability

Liability was admitted by both Defendants at the conclusion of the trial and an agreement was reached that responsibility for damages would be apportioned with the State carrying 80% of the damages and the employer 20% of the damages.

Damages are assessed differently against an employer under the Workers Compensation and Rehabilitation Act 2003 (WCRA) and a non-employer.

An employer is not generally responsible for care (with the exception of some limited circumstances) or interest on general damages. The interest rates on past economic loss and past medical expenses are also different where the WCRA applies and against non-employers. In this, case it was agreed that the employer was only responsible for 20% of those damages that could be assessed under the WCRA.

Judgement/ findings

The Judge awarded Mr Thomson damages of $1,179,872.00.

Damages that were assessed when applying the WCRA were $429,702.

The main difference between the two assessments was the award for care. A total of $374,304.00 was awarded for care and interest provided by Mrs Thomson in the past. A further $343,406.00 was awarded for care in the future. This was calculated to be 25 hours of care per week in both the past and the future at a rate of $33 per hour.

Mr Thomson is almost 65 years old, but he and his wife gave evidence that he would have worked as long as possible.

The Judge accepted this evidence and allowed future economic loss until age 70. However, he accepted that it was unlikely employment would have been fulltime, in part because the programs Mr Thomson was overseeing were no-longer operating but also, he had developed other medical conditions that were unrelated to the Q-Fever. The Judge allowed $34,650, inclusive of superannuation for future economic loss.

General damages, which were assessed under the common law against the State of Queensland, were $100,000. Under the WCRA they were $76,530.

Discussion/ implications of decision

This decision highlights the necessity of a thorough risk assessment and for employers to be aware of the potential for their workers to be exposed to infection.

There was information readily available on the Queensland Health website highlighting the risks to employees working on school farms. The information sheets available recommended consideration be given to use of the Q-Fever vaccine.

The amount of damages awarded for care was very significant. It will most often be the case that an injured worker is unable to recover damages for care from an employer except in limited circumstances.

Those who are not employers, such as companies that use labour hire employees or who control the place where the work is being conducted, can be held liable for care provided gratuitously. That can be very important when damages are being assessed.