Bunnings was found liable for negligently causing injury to an employee after she developed life threatening pneumococcal meningitis, encephalitis and septicaemia from cleaning up large amounts of dust from a chicken manure based fertiliser.
In March 2008, Ms Cowen worked for Bunnings in Mt Isa. She worked in an area called the “Trade Shed” and her duties included keeping the area tidy, both inside and outside. Ms Cowen alleged that bags of a chicken manure based fertiliser, called “Rooster Booster” had been stored outside, uncovered and exposed to the weather. Over time the bags began to deteriorate and to split, spilling their contents over the floor. The fertiliser was moist when packaged but the fertiliser that had spilled from the split bags had dried in the sun and was a very fine dust. Customers were complaining about the smell, so on 24 March 2008, Ms Cowen started to clean up the mess. She worked for over two hours, sweeping, dusting, re-bagging and disposing of the spilled fertiliser. She did not wear any personal protective equipment or respiratory mask. By the time she had finished, she was absolutely covered in fertiliser dust. She immediately started to sneeze and cough. After she went home that afternoon, she continued to cough and sneeze. She went to work the next morning, still coughing, sneezing and with a headache, which worsened. She quickly deteriorated at work and was taken to Mt Isa hospital, where she was in a coma, and then urgently transferred to Townsville hospital. She was diagnosed with pneumococcal meningitis, encephalitis and septicaemia. She remained in intensive care for some time and required lengthy rehabilitation. She suffered some residual cognitive dysfunction.
Ms Cowen sued Bunnings. Damages were agreed before trial at $700,000. It was accepted between the parties that Ms Cowen’s illness was caused by an infection of the organism streptococcus pneumoniae. That organism is very commonly found in the upper respiratory tract, and in about 10–40% of the general population. However, in Ms Cowen’s case, that organism which was initially in her upper respiratory tract descended into her lungs, and via her bloodstream to her meninges and brain, which was a very rare occurrence. The issue in dispute between the parties was the cause of the organism descending to Ms Cowen’s lungs, meninges and brain. Ms Cowen accepted that before she began cleaning up the fertiliser dust, the organism was already colonised in her upper respiratory tract, but alleged that the dust she inhaled caused irritation of her respiratory tract that lead to the organism entering her lungs, blood stream, and brain, which led to her life threatening illness. Bunnings admitted it breached its duty of care owed to Ms Cowen as an employee and that the risk of injury was foreseeable, but denied that its breach caused Ms Cowen’s injury. It argued that her illness was simply coincidental with the work she did that day and was not caused by her exposure to the fertiliser dust. Bunnings argued that alternative factors, such as a pre-existing respiratory illness, smoking or the presence of atmospheric sulphur dioxide in Mt Isa (or a combination of those factors) caused Ms Cowen’s illness and not her exposure to fertiliser dust.
Various medical evidence was led at trial, and there was a difference of medical opinion as to the scientific cause of Ms Cowen’s illness. However, his Honour Wilson J emphasised that the process of making findings about causation was based upon degrees of probability and not scientific precision; medical views about causation were relevant and of interest but were not conclusive when measured against the legal test, the balance of probabilities. Wilson J accepted that the work Ms Cowen was undertaking exposed her to a large amount of fertiliser dust, some of which she breathed in, and which seriously irritated her upper respiratory tract and that there was a causal connection, on the balance of probabilities, between the irritation (the exposure to the dust) and her illness. Wilson J found in favour of Ms Cowen and awarded damages in the agreed sum of $700,000 plus costs: Cowen v Bunnings Group Limited  QSC 301.
This story first appeared in the Australian Tort, Personal Injury, Health & Medical law Tracker.