Risk Management Update:
In a service industry so focused on the care and wellbeing of children, it is easy for operators of child care centres to forget about the duty of care owed to staff. This update is intended to remind child care centre operators of the duty of care owed to their workers. While the facts arise in the specific context of cytomegalovirus (CMV) and the risks posed by CMV to pregnant women, the principles apply broadly to all infectious diseases and workplace risks.
The National Law
The Educational and Care Services National Law came into effect on 1 January 2012, together with the Education and Care services National Regulations.
The Regulations set out at Division 1, section 77, that adequate health and hygiene practices must be implemented at an approved child care centre. Regulation 168(2)(c) in Division 2 of the Regulations also provides that an approved provider of a childcare service must implement policies and procedures (amongst others) that deal with infectious diseases.
Centres will need to consider reviewing existing policies or writing new policies to ensure compliance with the National Regulations. While doing so, and in the context of risk of spread of infectious diseases, operators should be mindful also of the duty of care owed to staff members to take reasonable care to ensure a safe work environment for staff, but also to warn of the risks of their employment.
Implementation and enforcement of good hygiene and sanitary policies and procedures will reduce the risks to staff of contracting infectious diseases. But even with such policies and procedures in place, a child care worker will still be at increased risk of exposure to a virus such as CMV than if they worked in a non-childcare setting.
CMV has the potential to cause catastrophic injuries in a developing foetus if the mother is infected while pregnant.
It is this increased risk of exposure to the virus, together with the potential for catastrophic consequences to a developing foetus if the mother is infected while pregnant, which gives rise to the duty to warn female workers of the risk of exposure to CMV while working in Childcare. And as the case of Hughes (discussed below) illustrates, the duty of care even extends to the unborn child of a worker.
What is CMV?
CMV is part of the herpes family of viruses. It is common throughout the population. Most carriers of the virus may not even know they have it, and may not have displayed any noticeable symptoms when they were infected.
The virus is prevalent in affluent western populations as it is in developing areas. Greater than 50% of western populations may be healthy carriers of the virus.
The virus does not usually pose any health threat to a healthy person, but it can be fatal to immuno-compromised people (such as those recovering from transplant surgery) and can cause catastrophic injuries to a developing foetus if the mother is infected during pregnancy.
The unborn child is most at risk of catastrophic injuries if the mother is infected with CMV for the first time during pregnancy (a primary infection).
A secondary intrauterine infection (or reinfection) may also occur if the pregnant mother is a carrier of CMV and the virus reactivates itself while she is pregnant.
Both primary and secondary intrauterine infections carry risk of serious injuries to the developing unborn child. But primary infection is more often associated with more serious injuries and disabilities in the unborn child.
How is CMV transmitted?
A significant percentage of the population are healthily unaffected carriers of CMV and most carriers may not even know they are carrying the virus.
Further, CMV is not an excludable disease according the Australian Government National Health & Medical Research Council (NHMRC).
So we have a virus that is prevalent within the population, is difficult to detect and can pose serious risk of injury to a developing foetus if contracted by the mother while pregnant. Thankfully, the risk of spread of this virus can be significantly reduced through good hygiene practices. The virus exists in the saliva and blood and can be spread through contact with blood, faeces, urine or saliva.
The NHMRC publishes posters for hand washing and nappy change techniques, which reduce the risk of spread of infectious diseases including CMV. These publications are updated regularly and centres should ensure they are aware of the most recent publications at all times (see http://www.nhmrc.gov.au/guidelines/publications/ch55).
The 5th edition of Staying Healthy in Childcare (www.nhmrc.gov.au, site viewed 14 October 2013) has a dedicated section on CMV, which discusses the risks posed to pregnant workers. Staying Healthy in Childcare states that the spread of infection can be reduced by:
- good hand washing, particularly after contact with body secretions and especially after changing nappies or assisting with toileting;
- washing shared toys;
- not kissing infants around the mouth, though hugging is acceptable.
Hence, while the virus is prevalent within the population, the risk of its spread can be reduced through good hygiene practices.
Notwithstanding, studies have shown that people who work with children are at increased risk of exposure to the virus (‘Cytomegalovirus in Child Care’, Workplace Health and Safety Queensland, April 2002, viewed 26 May 2005, www.whs.qld.gov.au). It follows, and for the reasons previously discussed, that operators of child care centres have a duty to inform female workers of the risks of CMV. The Court upheld this duty of care in the case of Hughes & anor v Sydney Day Nursery.
Hughes & anor v Sydney Day Nursery 
Linda Hughes was a child care worker employed by Sydney Day Nursery. She was so employed before falling pregnant with Jacob in 1991. Jacob was born in August 1992. At around 3 months of age, Jacob was diagnosed as suffering from CMV infection which had been acquired transplacentally, that is, during his mother’s pregnancy. Jacob became severely disabled as a result of the intrauterine CMV infection.
Jacob and Linda Hughes commenced proceedings against Sydney Day Nursery in the Supreme Court of NSW seeking $4.5 million in compensation for Jacob’s injuries, and to fund the treatment he would require for the remainder of his life.
To succeed in the claims Jacob and Linda needed to prove that Sydney Day Nursery breached its duty of care to Linda and to Jacob, and that the alleged breach caused Jacob’s injuries. It was clear that Sydney Day Nursery owed a duty of care to Linda by reason of the employment relationship. While it was less clear whether a duty of care existed towards Jacob, who was not yet born at the time of the alleged negligence, the court held that such a duty of care did exist to an unborn child.
The allegations of negligence were that Sydney Day Nursery breached its duty of care to Linda and to Jacob by allowing Linda to work with babies and by failing to warn her of the risks of CMV in circumstances where the centre knew or ought to have known of the risks of CMV to pregnant women. Linda maintained that she would have ceased her employment had she been so warned. Linda also alleged that hygiene facilities and practices at the centre were inadequate, but she later abandoned those allegations.
Of relevance to the state of knowledge of child care centres as at 1991, the trial judge was satisfied that:
By mid 1991 [Sydney Day Nursery] had such knowledge available to it of the risks of exposure of child care workers to the CMV virus as attracted a duty in the [Sydney Day Nursery] to alert [Linda Hughes] to the risk in her work environment of CMV infection, not only to her, but to any child she might be carrying… the duty extended to requiring that a warning be given that CMV virus could damage any such unborn child.
The trial judge made the above finding on the basis of publications in the early 1990s regarding CMV and the risks posed to pregnant women and the unborn child.
On the basis of the precedent established in Hughes, and with the subsequent inclusion of pages dedicated to CMV and its attendant risks in numerous editions of Staying Healthy in Childcare, all operators of child care centres would be expected today to know of the risks of CMV to pregnant workers. It follows that operators of child care centres have a duty to warn workers of those risks. The duty arises regardless of how good the centre’s health and hygiene policies and procedures may be.
Linda Hughes succeeded at trial in establishing that Sydney Day Nursery was negligent as at 1991 for failing to warn her of the risks of CMV during pregnancy.
However, as with any claim for compensation due to negligence, Linda and Jacob still had to prove that the negligence which had been established had caused Jacob’s injuries. Linda (and Jacob) had to prove two things:
- that had she been warned of the risks of CMV, she would have ceased working at Sydney Day Nursery; and
- that Jacob’s intrauterine CMV infection was caused by a primary CMV infection which Linda acquired while working at Sydney Day Nursery, and not by a secondary reinfection.
The trial judge accepted Linda’s evidence that had she been warned about the risks of CMV, she would have ceased working. However, his Honour was not persuaded by the evidence that Jacob’s intrauterine CMV infection was more likely due to primary infection of his mother than secondary re-infection of a CMV virus that was dormant in Linda’s system.
If Jacob’s intrauterine CMV infection was caused by reactivation of a pre-existing virus which was dormant in Linda’s body – that could not have been caused by Sydney Day Nursery’s negligence and hence is not something for which Sydney Day Nursery is responsible.
To succeed in their claims Linda and Jacob needed to prove that Jacob’s intrauterine infection was more likely due to primary infection of his mother than secondary CMV reinfection. Extensive medical evidence was led at trial on this issue. Ultimately, the trial judge was unable to determine on balance of probabilities (the legal test) whether the cause of Linda’s infection was primary or secondary, and the Hughes’ claims failed.
Although negligence was established, causation was not. Whether a claim is successful will always turn on the specific facts of the case and the evidence, in this case medical evidence. But the legal implications for child care centres arising from the trial in Hughes are as follows:
- Since 1991, and certainly today, child care centres knew and ought to know of the risks of CMV to child care workers, and in particular to female workers of child bearing age.
- This gives rise to a duty at law to warn child care workers of the risks of CMV in the event of pregnancy.
- This duty of care also extends to the unborn child.
Hughes v Sydney Day Nursery – appeal decisions
Jacob and Linda Hughes successfully appealed the trial judge’s decision to the NSW Court of Appeal, which set aside the original decision and handed down judgment in favour of Linda Hughes in the amount of $150,000 and in favour of Jacob Hughes in the amount of $4,500,000. The appeal only concerned the issue of whether Jacob’s injuries were more likely caused by primary infection or secondary reinfection.
The Court of Appeal found that the trial judge made errors in his assessment of medical evidence, and that on balance of probabilities (the legal test), Jacob’s injuries were caused by congenital primary CMV infection.
Sydney Day Nursery sought leave to appeal to the High Court of Australia. That leave was refused. The Court of Appeal’s decision was final.
Implications for child care centres
Since the case of Hughes in 1991, there has been extensive medical and legal documentation of the risks of CMV to pregnant women.
Meridian Lawyers has recently fielded enquiries from operators of child care centres seeking advice about their responsibilities to employees upon learning that a worker may be pregnant. It is common knowledge that under the National Law and at common law generally, child care centres must implement and enforce good hygiene practices and procedures, which in turn will minimise the risk of spread of infection.
However good these hygiene and infectious diseases policies are, the risk of exposure to a virus like CMV is still going to be higher in a child care setting by virtue of the characteristics of that virus and a child care worker’s duties, than that risk may otherwise be. These factors, together with the known risks of CMV to pregnant workers, give rise to the duty to warn staff members of the risk posed by CMV.
As a starting point, unless already doing so, operators of child care centres should consider taking steps to implement the following policies:
- Ensure that Staying Healthy in Childcare (or its equivalent publication) is always visible and accessible to staff at the centre.
- That the induction process for new female employees, whether pregnant or not, include drawing the employees attention to Staying Healthy in Childcare (or its equivalent publication) and in particular the pages regarding CMV and infectious diseases.
- That written confirmation be obtained from the new employee that they have read and understood Staying Healthy in Childcare and in particular the sections regarding infectious diseases.
- That upon learning that a child care worker is pregnant, the worker again be referred to Staying Healthy in Childcare (or its equivalent publication), and given time to read all sections regarding infectious diseases including CMV, and that this be documented.
- That upon learning that a female child care worker is pregnant, she be advised by the centre director to see her GP to consider the risks of continuing to work in child care and to take advice from her GP about undergoing blood tests to check for susceptibility to things like primary CMV infection.
- That pregnant workers be given the option or be restricted to work with toilet trained children, and that pregnant workers not be permitted to perform nappy changing or to assist with toileting.