Hardware giant Bunnings has been ordered to part with $700k after an appeal court ruled against its refusal to pay compensation to a staff member who contracted a life-threatening condition from exposure to fertiliser dust at its Mount Isa store.
Janelle Cowen’s role was to keep the Trade Shed – including the stock of bagged chicken manure on an external display – clean and tidy. Over time, the moist manure burst from the deteriorating plastic bags as a result of exposure to weather. After spilling from the split plastic bags, it dried in the sun turned into a fine dust that wafted through the entire shed with a foul stench.
On 24 March 2008 she set to cleaning it up, working for about 2 1/2 hours, “sweeping, dusting, re-bagging and disposing unsalvageable material into wheelbarrows and garbage bags”. She had no protection from a respirator or mask.
Sneezing and coughing, she went home at the end of the day but her partner insisted she hose herself down before coming inside. She went to bed that night with a running nose and still coughing and sneezing.
Janelle went to work as usual next morning but with a headache that gradually grew worse. She collapsed after serving a customer and has no memory of her five-day intensive care hospitalisation in Townsville or the aerial evacuation that preceded it.
Unable to return to her former work, she considered a compensation claim. Bunnings conceded that the streptococcus bacteria had descended into her lungs and thence – via her bloodstream – to her brain resulting in a rare but very severe case of pneumococcal meningitis, encephalitis and septicaemia.
It agreed that a reasonable measure of damages for the permanent and serious health effects – including for loss of income given it unlikely the 50-yr-old would be able to return to any form of steady employment, was $700k (clear of her WorkCover refund).
The company contended however that – notwithstanding it had been admittedly negligent to allow the Rooster Booster to create the safety hazard – Ms Cowen’s illness was “just a coincidence” to the work she did that day.
The severity of the condition resulted from a relatively benign upper respiratory tract colonisation of the bacteria becoming one that descended into the lungs to allow the organism to invade the blood. What Bunnings argued was that her history of smoking and the presence of atmospheric sulphur dioxide in Mount Isa were all “equally likely” to have caused the illness.
The four-day trial before Justice Alan Wilson in Brisbane Supreme Court was devoted to consideration of the different approaches to “causation” adopted by the medical profession on the one hand and by the law on the other.
Two of the four specialists thought that there was a causal connection between the dust on the condition “on the balance of probabilities” but the other two would only concede the connection as being “not implausible”. A lower level of acceptance was mainly due to the fact that the published literature contained no examples of links between irritation of the nasopharynx by dust and invasive pneumococcal disease.
Judge Wilson observed that the common law approaches “causation” quite differently to the method adopted in science or epidemiology. “For a court,” he reasoned, “a finding of a causal connection may be open even if there is no medical evidence to support it or when the medical evidence does not rise above the opinion that a causal connection is possible”.
“To the layperson, the temporal connection is something which is striking, and not easily dismissed. So, too, is Ms Cowen’s description of the volume, the intrusive nature, and the immediate unpleasant effects of the dust. These are things which raise a powerful impression, in the mind of a layperson, that a causal connection is likely to exist.
“While the event is unusual, the close relation in time between exposure and the development of the illness means that explanation accords with common sense and provides an acceptable causative pathway, according to the appropriate legal test”.
All three participants in a re-enacted clean-up also suffered severe reactions to in their upper tract and eyes despite wearing safety goggles and masks.
Justice Wilson had no hesitation in ordering Bunnings to pay the $700k to Ms Cowen.