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Bindaree Beef Pty Ltd & v Raymoon Pty Ltd [2006] NSWCA 35 (2 March 2006)

CITATION: Bindaree Beef Pty Ltd & Anor v Raymoon Pty Ltd [2006] NSWCA 35

FILE NUMBER(S):

40728 of 2004

HEARING DATE(S): 24/10/05

DECISION DATE: 02/03/2006

PARTIES:

Bindaree Beef Pty Ltd T/as Orange City Beef - First Appellant

Yolarno Pty Ltd - Second Appellant

Raymoon Pty Ltd - Respondent

JUDGMENT OF: Santow JA McColl JA Brownie AJA

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 20066 of 2004

LOWER COURT JUDICIAL OFFICER: Dowd J

COUNSEL:

B R McClintock SC/J Downing - Appellants

M L Williams SC/J Catsanos - Respondent

SOLICITORS:

Hunt Partners - Appellants

Blake Dawson Waldron - Respondent

CATCHWORDS:

Judges and judgments - insufficient reasons, and findings. Pleadings - admissions of allegations of fact - whether assertion of implied contractual term is an allegation of fact.

LEGISLATION CITED:

DECISION:

1. Appeal allowed. 2. Judgment and orders made in respect of the cross-claim set aside. 3. Matter remitted to the Common Law Division for a new trial, in respect of the cross-claim . 4. Respondent to pay the costs of the appellants of the appeal, but to have a certificate under the Suitors’ Fund Act 1951 if otherwise qualified. 5. Costs of the first trial, as between the parties to the cross-claim, to be in the discretion of the judge who conducts the new trial.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40728/04

SC 20066/02

SANTOW JA

McCOLL JA

BROWNIE AJA

Thursday 2 March 2006

BINDAREE BEEF PTY LTD and another v RAYMOON PTY LTD

Judgment

1 SANTOW JA: I respectfully agree with the reasons given by Brownie AJA in his judgment, which I have had the advantage of reading in draft, subject to the following observations.

2 An implied term of what can be assumed to be an oral contract between the parties was that the appellants “would take all reasonable measures to ensure the health and safety of those persons lawfully entering the abattoir in the course of their employment with [the respondent]”. It was so pleaded in paragraph 7 of the respondent’s cross-claim but never traversed by the appellants. The question is whether that failure to traverse operated as an admission of the allegations there made; SCR Pt 15 r20 as amplified by SCR Pt 6 r6.

3 One begins with the proposition that this contract, being oral, requires intention to be determined as a fact (Hanbury v Nolan (1977) 13 ALR 339, HCA). Intention covers both intention to be bound and what it is one intends to be bound to. Moreover, this is not a term implied by law based on some “written trade code or similar writing”; §222(2) of the Restatement (Second) Contracts (1979); contrast the existence and scope of a usage of trade not so embodied which is determined as a question of fact.

4 When a term is implied by reference to what is necessary to give business efficacy to the parties’ contractual arrangement, or by reference simply to uncodified custom or usage, as here, a legal test determines whether a term may be so implied. But it is predominantly a factual question what term satisfied the test. I believe that properly explains Auld LJ’s observations, agreed in by Saville and Rose LJJ, in Friends’ Provident Life Office v Hillier Parker May & Rowden (1997) QB 85 at 110. He concluded that implication is a mixed question of law and fact, so that it was not appropriate to deal with that issue under rules of court for determination of issues of law. I should add that the boundary line between the content of a contract and its proper construction, the latter being a question of law, is not always clear. However, the question of the implication of a term appears to me to be clearly enough in the former category.

5 I would therefore respectfully concur with Brownie AJA that, for purpose of Pt 15 r20 SCR, the alleged implied term constituted an allegation of fact, or, I would add, predominantly of fact, which must be taken to be admitted when not traversed. But even if it were an allegation of law, I agree with Brownie AJA that:

“In any event, it seems likely that if the appellants intended to deny the implied term pleaded, and if the allegation in paragraph 7 was not one of fact, then Pt 15 r13(b) required them to plead their contention, as not to do so was likely to take the respondent by surprise.”

6 In any event, the circumstances pleaded in paragraphs 2, 4 and 5 were clearly factual. They did require to be traversed if not admitted, and they were not traversed. Those paragraphs were as follows:

“2. At all material times, Bindaree and Yorlano were the owners and/or occupiers of abattoir located at Clergate Road, Orange in the state of New South Wales.

........

4. At all material times Raymoon was engaged by Bindaree and/or Yorlano, pursuant to a contract, to perform plumbing duties in and around the abattoir.

5. At all material times, Raymoon employed the plaintiff to assist in the completion of duties at the abattoir.”

7 It appears not unlikely, subject to what I say in [9] below, that in May 1992 “reasonable measures” satisfying the implied term would have included testing the plaintiff for vulnerability to Q fever at the least. If that be correct, by failing to do so, the appellants would be in breach of that obligation and thus their associated duty of care. The earlier pleaded paragraphs 2, 4 and 5, untraversed as they were, preclude the appellants contending that the premises were not to be treated as an abattoir at the time that Mr King was engaged in performing plumbing duties. Mr King performed his plumbing duties on behalf of the respondent and at the request of the appellants.

8 The evidence demonstrates

(a) though only de-boning activities were at the time (1998) being carried out, the premises had been used for slaughtering some ten years earlier, and

(b) that the intention was that there would recommence slaughtering activities on the premises would recommence in the near future.

That de-boning activity sufficiently partook of the activities of an abattoir in such circumstances may be the reason why there was no traverse of the pleading that the premises were an abattoir at the time of the plaintiff’s exposure.

9 However, regrettably there were no findings at trial, nor it appears, sufficient evidence that directly addressed the question, what were “reasonable measures” that would satisfy the standards as applicable when the plaintiff contracted Q fever in 1998.

10 The fundamental problem was, as explained by Brownie AJA twofold:

(a) there was no determination or findings as to whether the implied term operated according to the medical standards of what was reasonable as at May 1992, or had an ambulatory operation to import the medical standards as they evolved and in particular as they had evolved by 1998, and

(b) if the implied term did not have such an ambulatory operation, there was no finding as to whether medical standards of what was reasonable as at 1998 were higher than those in May 1992 or relevantly the same.

That in turn led to the conclusions reached by Brownie AJA at [63] and [64]. Essentially the practitioners who gave evidence were not directed to the relevant questions.

11 In those circumstances, I regret that I must agree that the appeal should be allowed and a new trial ordered.

12 McCOLL JA: I agree with Brownie AJA.

13 BROWNIE AJA: The appellants were the occupiers of premises that had formerly been used as an abattoir (the premises). They engaged the respondent to carry out certain plumbing work at the premises. The respondent employed a Mr King (the plaintiff) to perform some of that work. The plaintiff contracted Q fever, and sued the respondent and the appellants for damages, contending that he had contracted the fever whilst working at the premises. The respondent brought a cross-claim against the appellants, claiming contribution or indemnity as between tort-feasors, or a contractual indemnity.

14 During the course of the trial the plaintiff and the respondent agreed upon a compromise of the litigation as between themselves, but no agreement was reached, either as between the plaintiff and the appellants, or as between the respondent and the appellants. In the result judgment was given, by consent as between the plaintiff and the respondent, for the plaintiff against the respondent for an agreed sum; the plaintiff announced an intention not to proceed further as against the appellants, and withdrew; the respondent proceeded upon the hearing of its cross-claim against the appellants and obtained a judgment, upon an indemnity basis; and the plaintiff’s claim against the appellants remains on foot, part heard, no party having taken any effective step to bring this proceeding to an end.

15 The appeal is concerned directly only with the judgment on the cross-claim. Whilst there are many disputed questions, there is no question but that the plaintiff did contract Q fever, somehow, and there is no question about the reasonableness of the amount of the judgment obtained by the plaintiff against the respondent.

16 Humans usually contract Q fever by inhaling an organism called Coxiella burnetii (the organism), which is widely distributed amongst many animals, including cattle. The organism is highly infectious, both in animals and humans, but infected animals appear to be symptom free, and infected humans are often symptom free. In some cases in humans, the infection is acute, and significant symptoms are produced.

17 The plaintiff had a congenital coronary artery stenosis, and prior to the events in question he had had an aortic valve replacement. As a result of his contracting Q fever, he developed a life-threatening prosthetic aortic valve endocarditis, and, on his case, continuing disability resulted.

18 There was a disputed question as to how the plaintiff became infected with the organism. Four possibilities were suggested. First, the organism persisted in dust at the premises, as a result of the former use of the premises as an abattoir, the plaintiff did some work at the premises in a closed, dusty environment, and he inhaled the organism with some dust. Secondly, he inhaled the organism in some aerosol, that aerosol being a product of meat boning operations carried out at the premises by the appellants during the period that the plaintiff worked there. Thirdly, he was infected whilst present on an occasion when a cow was slaughtered, about two months before he started working for the respondents. Fourthly, he was infected even earlier, when living in a boarding house, near which there were some animals.

19 The medical evidence (which was entirely documentary) gave different versions of the incubation period, that is, between the time of the exposure of a human to the organism and the development of noticeable symptoms. Professor Broughton, an infectious diseases physician with specific experience in the area of Q fever and its likely transmission, said that the range was from two to thirty days (Blue 25), and that the likely minimum period was three to four days (Blue 80). Dr Anderson, an occupational physician, said that the range was between two and four weeks (Blue 77). Dr Lee, a thoracic physician, provided a copy of an extract from a textbook that also described the period as two to four weeks (Blue 144). Professor Lloyd, an infectious diseases physician with a particular interest in Q fever and its chronic sequelae, said that the reported extremes of the period were approximately five days and six weeks (Blue 183).

20 The symptoms of Q fever are non-specific (that is, they are indistinguishable from the symptoms of many other infections), and the only way to make a definitive diagnosis of Q fever is by conducting serological tests. However, the plaintiff did not consult any medical practitioner for some months after any occasion when he might have been infected by any of the four suggested mechanisms. He developed the condition of endocarditis, consequent upon his having an acute fever, and the condition of endocarditis led to his being admitted to hospital in early 1999, when tests where first carried out.

21 The period during which the plaintiff was employed by the respondent to work at the premises was from 23 March 1998 to 24 April 1998. Boning operations at the premises commenced (or recommenced) on 16 April 1998. That is, during the period 23 March to 24 April 1998, the plaintiff might have been infected by reason of working in dusty conditions, and during the period of 16 to 24 April 1998 he might also have been infected by reason of inhaling some aerosol, the product of the boning operations.

22 There was no contemporary record of when the plaintiff first suffered from any febrile illness, being the first perceived symptom on his part of the Q fever. The plaintiff’s recollection when asked much later about this was, understandably, imprecise, and his accounts given on different occasions, sometimes when he was quite ill, varied.

23 The first of the possible causes of the plaintiff’s infection arose from the fact that Coxiella burnetii spores are unusually hardy, and might survive for long periods in various environments. It was common ground that they might survive for a long time in dust such as is found in places where cattle had been housed or slaughtered or processed, or even in dust blown in the wind, although estimates of the maximum time during which these spores might survive varied.

24 Professor Broughton said that the organism was known to remain viable in the dust typically found in abattoirs for at least two years, but that the full duration of the viability of the organism was not known (Blue 30). Later, asked to comment upon a report from Professor Sim (which report is not in evidence) Professor Broughton said that “while it is thought unlikely that the organism would survive for ten years”, this could not be accepted until appropriate studies on viability were conducted. However, it was unlikely that anyone would ever carry out those studies (Blue 80). Dr MacLeod, the treating microbiologist, said that the organisms can survive in dust for “many years”, and that it was impossible to be more precise than this, although the survival rate would diminish with time (Blue 31). He also said that the organisms “could certainly have been present in the dust”, described to him as having been present in the premises, assuming that infected animals had been slaughtered there. Dr Anderson, an occupational physician, said that it was well known that the organism could persist for several months, but that so far as he knew nobody had suggested that the organism could exist for anything like 12 years (Blue 78). Dr Lee said that it was improbable that the spores would remain viable after ten years, referring to the attached extract from a textbook already mentioned (Blue 140). The extract in evidence refers to various ways in which the infection can spread, and to the hardiness of the organism, but does not deal directly with its longevity. Professor Lloyd spoke of the prolonged survival of the organism in a spore-like form, as if considering it possible that it might survive for ten years, but did not deal with the subject specifically (Blue 183-184), and later said that the mechanism of the survival of the organism in the environment remained poorly defined, but there was strong epidemiological and microbiological support for the plausibility of long-term persistence and viability (Blue 186). Since the inhalation of only one or two organisms may result in infection, a low rate of viability is not of itself particularly telling (Blue 30).

25 The significance of these views is linked to the question of the lapse of time between the premises last being used as an abattoir, and the plaintiff’s first entry upon them on 23 March 1998. No witness with knowledge of the date of the cessation of the use of the premises as an abattoir gave evidence, although there were in evidence various hearsay statements, or statements in the nature of mere assertions, by people who, prima facie, did not know the facts of their own personal knowledge. However, the trial seems to have been conducted on the basis that the period was likely to have been ten years or longer. It was not in contest that, when the plaintiff worked at the premises in 1998, they had formerly been used as an abattoir, that they were not being so used then, although the appellants had acquired the premises with a view to later resuming slaughter operations (Blue 149), and that after the events the subject of the litigation they were again used as an abattoir.

26 The second of the possible causes of infection arose from the presence of aerosols in and around the boning room at the premises, once boning operations commenced, or recommenced, on 16 April 1998. It does not seem to have been in contest that the boning work resulted in the presence of aerosols, or that the aerosols might have contained the organism. The plaintiff said that he only entered the boning room once, to check a pipe, and that he was only in the boning room for about a minute (Black 25-26 and 130). The people working there wore protective clothing, including masks. He described the atmosphere in the room as misty. He also spoke of boning room employees hosing down their clothing and boots, and showering, evidence that might lead to an inference being drawn that there were aerosols in and around the shower room, where the plaintiff worked more frequently.

27 There was ample evidence that, if the plaintiff had inhaled one or more of the organisms through one or the more of these aerosols, that might have resulted in his contracting Q fever.

28 The third of the possible causes for infection concerned events fixed as having occurred on 12 and/or 13 January 1998. The plaintiff was then at a farming property called Paddy’s Pinch, consisting of about 125 acres, where the plaintiff’s parents had a bull and some twenty or thirty cows. The plaintiff, riding a motorcycle, assisted with the rounding up of these cattle, and herding them into a cattle crush. At the end of this operation one of those cows was slaughtered. Professor Richmond recorded a history (Blue 5) that the plaintiff had “participated” in the slaughter of a cow at Paddy’s Pinch, but in evidence the plaintiff denied having been physically involved in the slaughtering, and said that he had merely observed the cow being slaughtered. The plaintiff said that he was not particularly close by at the time, but there was a question about this. In evidence he said he was about ten metres away, but on some earlier occasion he said he was three or four metres away.

29 The significance of this incident is linked to the question of the incubation period mentioned at [9] above and to the question when the plaintiff first suffered any symptom of Q fever.

30 The fourth possible cause suggested arises from the fact that for a period commencing at about the end of August 1997, or soon thereafter, the plaintiff lived in a boarding house called Towri, situated near Bathurst. Near the boarding house, and separated from it by about 25-30 metres, there was a paddock of about 100 acres (Blue 29) containing cattle (Blue 182). There was also a cattle sales yard about a kilometre away (Black 13-14).

31 At trial both the plaintiff and the respondent contended that the appellants had been negligent, amongst other ways, in having failed to arrange for the plaintiff to have been tested for Q fever, and if appropriate, to be vaccinated against Q fever, before being allowed onto the premises to work. A vaccination for Q fever is readily available, and is safe and effective. Some people are immune from Q fever (perhaps because they have previously suffered from it, but without experiencing symptoms), so that the practice is to test people to see whether they are immune, and only to vaccinate them if they are not: to vaccinate a person who is immune might result in adverse consequences.

32 Dr MacLeod said (Blue 17):

“The strong association between working in abattoirs and the acquisition of Q fever has long been known. Staff and visitors who are exposed to the environment are at risk as well as persons who handle animals. In recognition of this it is recommended practice that abattoir workers be evaluated for immunity to Q fever and be strongly encouraged to be vaccinated if they are deemed to be non-immune ...

I believe that any tradesman working in an abattoir and likely to be exposed to animals, carcasses or animal-contaminated dust should have a pre-employment assessment for Q fever, just as a slaughterman would.”

33 Others expressed generally similar sentiments, and there was no evidence to the contrary. A principal point of contention now is that these reporters spoke of workers in (or visitors to) an abattoir whereas, the appellants say, the premises had not been used as an abattoir for ten years or more before 1998. It seems quite clear that at all relevant times in the period leading up to 16 April 1998 the appellants were intending to use the premises for boning work, that is boning the carcasses of cattle slaughtered elsewhere, and that the boning operations in fact commenced on 16 April 1998.

34 On 25 March 1998 Central Western Pathology Services wrote to the first-named appellant (it is generally unnecessary to distinguish between the appellants) giving a quotation for the costs of pre-vaccination testing, and of vaccinations where appropriate. That offer was accepted on the same day, in the sense that it was arranged for eleven persons, said to be employees of the appellants, to be tested on 27 March 1998. Other persons who worked at the premises, including three employees of the respondent, were tested and/or vaccinated, the appellants say in June 1999.

35 There was a question debated on the appeal, but not at trial, about the last-mentioned date. The Court admitted evidence on the appeal on this topic, on the basis that special circumstances had been shown: the trial of the cross-claim proceeded on a set of facts, inferred at trial from documentary evidence, and found in favour of the respondent, now shown by the newly admitted evidence to have been false to the knowledge of the respondent at the time of the trial (although not to knowledge of the respondent’s lawyers, and there being no suggestion of any dishonesty or impropriety – it appears to be the fact that at trial the litigation was conducted in the name of the respondent by its workers compensation insurer). After this ruling, the respondent sought leave to file a Notice of Contention out of time. The appellants opposed this, but since the perceived need to file the notice arose from the granting of the leave to the appellant to adduce the evidence mentioned, it appeared to be appropriate to grant leave to file the notice out of time.

36 I referred earlier to the course of the trial, but should say more about it. At a time when each of counsel for the respondent and counsel for the appellants had cross-examined the plaintiff, but before he was re-examined, the plaintiff and the respondent arrived at the compromise mentioned above. The plaintiff’s counsel informed the learned trial Judge, Dowd J, of the agreement, and asked for an adjournment overnight so that terms of settlement could be prepared. He also said that he did not propose to call any further evidence as against the appellants, and that he would close the plaintiff’s case without re-examining the plaintiff. Counsel for the respondent announced an intention to prosecute the cross-claim, counsel for the appellants foreshadowed an objection to this, and the matter was adjourned until the next day.

37 On the next day, without opposition, judgment was entered in favour of the plaintiff against the respondent, consistently with the terms of settlement then produced. Counsel for the appellants asked his Honour to give judgment for the appellants, as against the plaintiff, counsel for the respondent objected to that course, and his Honour declined to accede to the appellants’ submission.

38 Counsel for the appellants then sought an adjournment, both of the hearing of the plaintiff’s claim against the appellants, and the hearing of the cross-claim. He took various points, which I need not mention, spoke of the need to consider the position of the appellants generally, and of the possibility that he would further cross-examination of the plaintiff. Over the objection of the respondent, his Honour granted the adjournment sought; and in the event the hearing did not resume until some seven months later.

39 At the resumed hearing, various procedural points were taken by the appellants, including the proposition that the respondent could not proceed on the cross-claim, having regard to the events that had occurred. This submission did not find favour with his Honour, and the hearing proceeded. For reasons that are not clear, some of the evidence already admitted was tendered again, and the hearing continued into the next day. Overall, the only person to give oral evidence was the plaintiff. There was no further cross-examination of him, as had been earlier foreshadowed.

40 The appellants contend that his Honour erred in various respects, including not making findings about some of the disputed facts, and not giving adequate reasons for judgment. With respect, I consider that this is correct. For example, there were no findings as to when the plaintiff first suffered from any symptoms of his Q-fever, and no findings as to which of the four possible causes of the plaintiff’s infection was the probable one; and in relation to the claim made for contribution between tort-feasors, there were no findings, or at least no clear findings with adequately stated reasons, either that the respondent was a person liable to the plaintiff for damage arising from some specified tortious conduct on its part, or that the appellants were also persons liable to the plaintiff for the same damage arising from some specified tortious conduct on their part, or weighing up those two pieces of conduct so as to make the requisite judgment assessing what contribution by the appellants was just and equitable. These circumstances and/or the lack of reasons means that unless the litigation can be resolved otherwise, a new trial is inevitable, without the need to go on to consider other points taken by the appellants, attributing error to the trial judge: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Mifsud v Campbell (1991) 21 NSWLR 725, and Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430.

41 However, one strand of the case brought by the respondent against the appellants was that there was a contract between the parties, that the appellant had breached the terms of that contract, and that the respondent was therefore entitled to be indemnified by the appellants: Florida Hotels Pty Ltd v Mayo [1965] HCA 26; (1965) 113 CLR 588; and it is necessary to consider whether the appeal should be dismissed, by reference to this claim.

42 No witness gave evidence concerning the formation of the contract. However, in its cross-claim the respondent pleaded that at all material times the appellants “were the owners and/or occupiers of [an] abattoir located at” a given address (paragraph 2), that the respondent was engaged by the appellants “pursuant to contract, to perform plumbing duties in and around the abattoir” (paragraph 4), that the respondent “employed the plaintiff to assist in the completion of duties at the abattoir” (paragraph 6), and that it was an implied term of the contract that the appellants “would take all reasonable measures to ensure the health and safety of those persons lawfully entering the abattoir in the course of their employment with [the respondent]” (paragraph 7). No particulars of this allegation were given in the cross-claim.

43 In their defence to the cross-claim the appellants, whilst putting other allegations in issue, did not plead to any of these paragraphs, so that they were taken to have admitted the facts pleaded: SCR Pt 15 r 20, as amplified by Pt 6 r 6. However, there was some evidence on the point, in the form of the appellants’ statement in answer to interrogatories administered by the respondent. The appellants said that they first engaged the respondent when they acquired the premises, possibly as early as May 1992, and that thereafter they engaged the respondent to perform services from time to time; that the request from the appellants to the respondent was made by Mr Skinner, an employee of the second appellant, and that it was made orally.

44 The appellants submit now that their failure to traverse paragraph 7 of the cross-claim does not operate as an admission of the allegation made there, because Pt 15 r 20 only operates in respect of “an allegation of fact”. They say that the allegation was not one of fact, but rather a legal conclusion or characterisation. The submission was not supported by argument, or reference to authority, and is unpersuasive. Whilst courts sometimes imply terms in contracts, as legal incidents to particular classes of contracts (for example Liverpool City Council v Irwin [1976] UKHL 1; [1977] AC 239), the contract under consideration cannot be recognised without evidence on the point as falling within such a class of contracts. On the evidence, it appears to be a case where, if there had been a dispute on the question, a court might have found the implied term pleaded on the basis that the term reflected the actual intention of the parties, although they had not fully stated the term, or on the basis that the term was one that the parties did not actually consider, but would have agreed upon if they had actually turned their minds to it: Codelfa Constriction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337, 345-346. In my view the allegation made in paragraph 7 was one of fact.

45 In any event, it seems likely that if the appellants intended to deny the implied term pleaded, and if the allegation in paragraph 7 was not one of fact, then Pt 15 r 13(b) required them to plead their contention, as not to do so was likely to take the respondent by surprise.

46 The appellants also submitted that the use of the word “abattoir” in paragraph 7, and the allegations made generally in that paragraph were not sufficiently precise to make the supposed admission worth anything, citing Ellis v Allen [1914] 1 Ch 904, 909 and Ash v Hutchinson & Co (Publishers) Ltd [1936] Ch 489, 503. I take it that an abattoir is a building or place where animals are slaughtered for food, or a slaughterhouse: The Macquarie Dictionary, and the evidence shows that the premises were not being used in this sense during the period that the plaintiff worked there, but the point for immediate consideration is a pleading point.

47 I consider that the admission made in the pleadings meant that it was unnecessary for his Honour to consider what the implied term was. All that was to be considered was the content of the obligation to “take all reasonable measures to ensure the safety and health of those persons lawfully entering the abattoir in the course of their employment with” the respondent, that is, the class of persons of which the plaintiff was a member. What was “reasonable” in this context was a question of fact.

48 As the appellants point out, his Honour appears to have found that the contract contained an implied term, and to have expressed it in terms different to the term pleaded. At [58] (Red 42) he rejected a submission of the appellants that the contract did not include an implied term that the appellants would take reasonable steps to ensure that the plaintiff was vaccinated against Q fever. I take this to have been an error.

49 The appellants seek to avoid the admissions they made on the pleadings, by reference to the conduct of the trial. They say that the respondent should not now be able to depart from that course, but the submission fails at a factual level. The hearing of the cross-claim (as distinct from the earlier hearing, involving the plaintiff) commenced on 21 July 2004. The transcript records that, at the end of that day, it was agreed that the parties would provide written submissions to the trial judge, by facsimile transmission, that evening. The respondent’s written submissions proceeded on the basis that the existence of the term was admitted on the pleadings (Black 173). The appellants’ written submissions referred to paragraph 7 of the cross-claim, but not to the defence to the cross-claim, and went on to submit that the term in question ought not to be implied.

50 The next day, one further document was tendered, and then counsel addressed orally. The transcript contains only the summaries of the reporters of what counsel said (Black 166-172), but counsel for the respondent is recorded as beginning, on this topic, by referring again to the pleadings (Black 168). The appellants did not, at any stage, apply to amend the defence to the cross-claim. That is, whilst the appellants argued at trial as to whether the term pleaded should be implied, the respondent maintained that the position was governed by the pleadings.

51 As to the content of the term set out at [41] above, it is difficult to see any sensible reason for not relying upon the evidence mentioned at [31] – [34]. However, the submissions tended to focus, instead, on questions concerning the actual practice of the appellants, such as whether it actually did require its own employees and/or employees of the respondent to undertake pre-vaccination testing and, when appropriate, to be vaccinated. With respect, this is not the appropriate approach. The risk of infection was well known, it was possible to avoid that risk at little trouble or expense, and the appellants in fact took that avoidance action in respect of some, but not all, of the members of the class of persons to be protected. Once the contract is taken to have contained the term that the appellants would take all reasonable measures to ensure the health and safety of the people in question, the conclusion that those measures should have included pre-vaccination testing and, when appropriate, vaccination, seems to follow naturally.

52 In order to decide whether the respondent made out its case of breach of contract, it is necessary to look in some detail at the facts, and the appellants are on strong ground when they refer to the lack of findings made by the learned trial judge. This Court has not, of course, seen or heard the plaintiff, and his Honour made no findings about the credit of the plaintiff, whose evidence was vigorously challenged. In these circumstances, I consider that the appeal must be allowed, unless it can now be said that the respondent proved its case, notwithstanding every criticism that was advanced concerning the plaintiff’s case, not the subject of findings by the trial Judge.

53 The appellants referred to the difficulties attendant upon deciding upon when the plaintiff first suffered from a febrile illness, which can now (with the benefit of hindsight) be recognised as his first symptom of his Q fever. As mentioned above the plaintiff had given different accounts on different occasions. A large number of medical reports were tendered, objections were taken to the admission into evidence of these documents, to the extent that the histories recorded might be treated as containing evidence of the facts, and on each occasion his Honour admitted the relevant passages, as evidence only of the histories given, and not as to the truth of what the plaintiff had said (Black 78-79). The plaintiff gave evidence (Black 27) that was not challenged that on the night of 22 April 1998, when he went to dinner at a club, and again at work on the next day, he experienced symptoms that he attributed to coming down with flu: feeling hot and cold, shivering, and a sense of malaise.

54 Nor was it disputed that, after finishing his employment with the respondent, the plaintiff was employed for a period of six weeks, commencing on 5 June 1998, and that during the course of that employment he started to feel unwell, prompting him (he said) to resign. His health seems to have generally declined thereafter, until he was admitted to hospital in January 1999.

55 The appellants submitted however that the plaintiff had been ill before 22 April 1998 so that, it was said, it ought now to be found that the febrile illness first noticed on that date should not be regarded as the first manifestation of his Q fever.

56 The plaintiff suffered from pneumonia, and was in hospital on this account for six days in August 1997, but although the hospital records relating to that admission were in evidence (Exhibit C), no medical practitioner suggested that this illness was connected to his Q fever. The appellants suggested various other illnesses (Orange 19): night sweats and fever in August/September 1996, pain in the abdomen in October 1996, being generally unwell and lethargic in about January 1998, experiencing trembling and night sweats in late January or early February 1998, and being ill “from day 1” of his employment with the respondent, on 23 March 1998; but the plaintiff either denied these matters or said that he could not remember them (Black 57, 65, 98 and 66), and there was no evidence to support the submissions, other than various histories given, or said to have been given by the plaintiff (not suggested to be evidence as against the respondent).

57 In short, the evidence established that the plaintiff experienced the symptoms of a febrile illness on 22 and 23 April 1998, and, apart from the pneumonia of August 1997, there was no evidence of his suffering from any earlier (presently relevant) febrile illness. If one considers that fact in conjunction with the incubation period discussed at [19] above, it is likely that the plaintiff had inhaled the organism at the premises, either from working in the dusty environment on or after 23 March 1998 or from inhaling some aerosol on or after 16 April 1998; and on the evidence one cannot link the onset of the symptoms on 22 April 1998 with the Paddy’s Pinch incident occurring more than nine weeks earlier, much less with the plaintiff having inhaled the organism whilst living at Towri even earlier.

58 (Professor Broughton took a history that the febrile illness commenced on 24 April 1998. There was no suggestion that the difference in dates was significant.)

59 The plaintiff described the boning operations, in a way that was not in contest. He spoke of the boning room employees cutting up meat, and later cleaning their clothing and boots with hoses before showering, of there being “blood and stuff” on their clothing and boots, and of there being “bits of meat and stuff” collected on a drain, near where the employees hosed themselves (Black 24- 25).

60 Dr MacLeod compared the likelihood of inhaling the organism from working in the premises with inhaling it during the Paddy’s Pinch incident, and said that the risk associated with working in an abattoir would have been high, since “organisms are shed much more during slaughter and cutting up carcasses than during normal animal husbandry” (Blue 18). Later, asked about the comparative chances of the plaintiff having inhaled the organism from dust or from an aerosol, he said that it was “more likely that the plaintiff would have acquired the organism from the atmosphere in the boning room if he were exposed to it, assuming that infected carcasses were treated there, as organism-rich aerosols are created in such conditions” (Blue 31). Professor Broughton, after speaking of the possibility that the organism might remain in dust for a long time, said (Blue 26):

“However there were boning and packing activities with use of the freezer; it would be most unwise for any individual with a congenital heart lesion or a prosthetic valve to enter such a premises where beef was being processed and where [there] is a risk of acquiring Q fever. Cuts and carcasses of such meats are contaminated with Coxiella burnetii and the organism remains viable when frozen. The procedures of boning, slicing, packing, cartage and the hosing down of work benches, floors and walls, create aerosols and dusts which carry the infection; infection most commonly occurs by inhalation of such materials.”