Badenoch v Granite Transformations Pty Ltd

Case •

[2022] NSWDDT 1

•

17 March 2022

No judgment structure available for this case.

Dust Diseases Tribunal


New South Wales

  • Amendment notes
Medium Neutral Citation: Badenoch v Granite Transformations Pty Ltd [2022] NSWDDT 1
Hearing dates: 15 March 2022
Date of orders: 17 March 2022
Decision date: 17 March 2022
Before: Russell SC DCJ
Decision:

(1)   Dismiss the Notice of Motion filed by the first defendant on 11 February 2022.

(2)   Order the first defendant to pay the costs of the plaintiff relating to the Notice of Motion.

Catchwords:

PROCEDURE – application for proceedings to be dismissed for want of jurisdiction – whether the proceedings are an abuse of the process of the court - whether the proceedings are so obviously untenable that they cannot possibly succeed

JURISDICTION – whether the Tribunal has jurisdiction to hear the plaintiff’s claim – whether the plaintiff suffers from a dust-related condition – whether silica-related lymphadenopathy is a dust-related condition – whether silica-related lymphadenopathy is a pathological condition of the lungs that is attributable to dust

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) r 13.4

Dust Diseases Tribunal Act 1989 (NSW), ss 3, 11, Sch 1

Cases Cited:

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Category:Procedural rulings
Parties: Kevin George Badenoch (Plaintiff)
Granite Transformations Pty Ltd (First Defendant)
Representation:

Counsel:
A Giurtalis (Plaintiff)
J Sharpe (First Defendant)

Solicitors:
Maurice Blackburn (Plaintiff)
Robert James Lawyers (First Defendant)
File Number(s): DDT 2021/337182

Judgment

Introduction

  1. The plaintiff has brought a claim in the Dust Diseases Tribunal seeking damages for four specific conditions. The first defendant filed a Motion seeking to strike out the Statement of Claim on the basis that the Tribunal has no jurisdiction to hear the plaintiff’s claim.

  2. At the hearing of the Motion, counsel for the first defendant made it plain that he was moving under r 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) which provides as follows:

“If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

…

(c)   the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.”

  1. The argument that there is no jurisdiction to hear the plaintiff’s claim is clearly an argument that the proceedings are an abuse of process of the court. Rather than striking out the Statement of Claim (as was originally sought in the first defendant’s Notice of Motion filed on 11 February 2022), the application was treated as one to dismiss the entire proceedings under r 13.4.

  2. Counsel for the first defendant accepted that his client had to satisfy the test laid down by the High Court in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125. In that case Chief Justice Barwick said that the jurisdiction to summarily terminate an action must be employed sparingly and is not to be used except in a clear case – at pp 128-129.

  3. At p 129 Chief Justice Barwick said:

“It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’. At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or ‘so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument’; ‘so to speak apparent at a glance’.”

The Statement of Claim

  1. By the Statement of Claim filed on 26 November 2021 the plaintiff sued four defendants. He alleged that all four defendants, at various times, supplied products which exposed him to silica dust. He also alleged that he had performed work for the first defendant.

  2. The Statement of Claim seeks provisional damages for the following diseases:

  1. Silica-related lymphadenopathy.

  2. Systemic sclerosis.

  3. Raynaud’s syndrome.

  4. Silica-induced scleroderma.

Jurisdiction of the Tribunal

  1. The primary jurisdiction of the Tribunal is found in s 11(1) of the Dust Diseases Tribunal Act 1989 (NSW) (“the DDT Act”). This provides as follows:

“Claims for damages for dust diseases etc to be brought under this Act

(1) If:

(a) a person is suffering, or has suffered, from a dust-related condition or a person who has died was, immediately before death, suffering from a dust-related condition, and

(b) it is alleged that the dust-related condition was attributable or partly attributable to a breach of a duty owed to the person by another person, and

(c) the person who is or was suffering from the dust-related condition or a person claiming through that person would, but for this Act, have been entitled to bring an action for the recovery of damages in respect of that dust-related condition or death,

proceedings for damages in respect of that dust-related condition or death may be brought before the Tribunal and may not be brought or entertained before any other court or tribunal.”

  1. The phrase “dust-related condition” is defined in s 3 of the DDT Act to mean:

“(a) a disease specified in Schedule 1, or

(b)   any other pathological condition of the lungs, pleura or peritoneum that is attributable to dust.”

  1. Schedule 1 to the DDT Act contains a list of prescribed dust diseases. One of the prescribed dust diseases is silicosis. Counsel for the plaintiff conceded that his client does not suffer from silicosis. For the Tribunal to have jurisdiction in relation to the claim, at least one of the four diseases pleaded by the plaintiff must fall into the second limb of the definition of “dust-related condition” in s 3 of the DDT Act. It must be a pathological condition of the lungs that is attributable to dust.

  2. It is important to keep in mind that at this stage of the proceedings, the court is not required to make a finding whether or not the plaintiff does suffer from a dust-related condition. Rather, in accordance with the test in General Steel Industries, the question is whether the proceedings are so obviously untenable that they cannot possibly succeed.

  3. Counsel for the plaintiff submitted that:

  1. Only one of the four conditions pleaded came within the definition of “dust-related condition”.

  2. Silica-related lymphadenopathy was a dust-related condition of the lung.

  3. The other three diseases pleaded were not diseases of the lung, even though they were arguably caused by exposure to silica dust.

  4. If there is one dust-related condition, then the plaintiff could bring his claim for damages for the other three conditions by virtue of s 11(3) of the DDT Act.

  1. The threshold question is whether silica-related lymphadenopathy is a dust-related condition within the meaning of the DDT Act. Lymphadenopathy is a condition of the lymph glands resulting in lymph nodes which are abnormal in size or consistency.

Evidence for the First Defendant

  1. The first defendant attached to an affidavit by its solicitor (DX 1) copies of medical reports which had been served by the solicitor for the plaintiff.

  2. A report from Dr Robert Edwards dated 3 February 2021 was included in the annexures to the affidavit. Dr Edwards noted that a CT scan of the chest performed on 7 February 2019 showed the following:

“CT scan of the chest performed at Queensland X-ray on the 07th February 2019. This showed mild centrilobular and paraseptal emphysema, mainly in the upper zones. There was (sic) a number of moderately enlarged lymph nodes in the mediastinal, parenchymal, hilar and subcarinal area, measuring up to 18mm in diameter. There was no evidence of lymph node calcification. There was no evidence of interstitial fibrosis.”

  1. Dr Edwards reported that there was no radiological evidence of silicosis. Dr Edwards thought that the plaintiff had silica-related lymphadenopathy. He said:

“He has had a large exposure to silica dust during his working life, and he had bilaterally enlarged mediastinal and hilar lymphadenopathy. This is in keeping with silica related lymphadenopathy.”

  1. Dr Edwards referred to a paper entitled “Silicosis in the Lymph Nodes: The Canary in the Miner?”. This report was tendered and became Exhibit DX 2. After referring to this paper, Dr Edwards said:

“Their results are consistent with silicosis potentially occurring in lymph nodes before the lung parenchyma. Lymph node damage could impair silica clearance and increase the risk for parenchymal silicosis. Therefore, although there is not much evidence, this particular paper suggests that it is likely that the silica-related lymphadenopathy will progress to parenchymal silicosis.”

  1. In relation to lung function Dr Edwards said:

“There is no evidence to suggest pulmonary silicosis or interstitial pulmonary fibrosis. Therefore, I consider that the impairment in lung function that Mr Badenoch experiences is directly related to the emphysema and cigarette smoking.

At this stage there is no significant restrictive defect or airway obstruction on the lung function assessment. The only impairment is related to the carbon monoxide gas transfer and this is most likely related to the emphysema.”

  1. In the documents annexed to the affidavit by the solicitor for the first defendant, there were reports by specialists who had examined the plaintiff. Dr Ferdowsi referred to “lung nodules”. While Dr Ferdowsi did not view the CT scans, counsel for the plaintiff submitted that it is instructive that Dr Ferdowsi referred to the enlarged lymph nodes as being “lung nodules”.

  2. In the material annexed to the affidavit by the solicitor for the first defendant, there is a report of Dr Slaughter dated 30 July 2020. He is a specialist radiologist who provided a medico-legal report to the solicitors for the plaintiff. Dr Slaughter offered the following “Comment”:

“Mr Badenoch has evidence of moderately enlarged mediastinal and hilar lymph nodes which are present on three examinations in 2019 and 2020. The nodes are not calcified and they are stable in appearance. There is no evidence of significant interstitial lung disease.”

  1. Dr Slaughter also said:

“Enlargement of lymph nodes of this type is commonly seen in conditions such as sarcoid lymphoma and in inflammatory lung conditions. Enlarged lymph nodes, either calcified or non-calcified are a feature of pulmonary silicosis, but have been reported in the presence of silica exposure without evidence of lung disease. The significance of enlarged lymph nodes in silica exposed patients without lung disease is not fully understood, but it has been suggested that involvement of mediastinal and hilar lymph nodes with silica, may reflect an additional risk for parenchymal silicosis.”

  1. In a footnote to the report, Dr Slaughter referenced the article referred to above (DX 2).

  2. The objective of the study referred to in that article was “To investigate evidence that lymph node silicosis can precede parenchymal silicosis”. The conclusion expressed in the abstract to the article is as follows:

“Our results are consistent with silicosis potentially occurring in lymph nodes before the parenchyma. Lymph node damage could impair silica clearance and increase the risk for parenchymal silicosis.”

Evidence for the Plaintiff

  1. The solicitor for the plaintiff affirmed an affidavit on 11 March 2022. He annexed two letters of instruction to Dr Slaughter and the two reports obtained. The first report is dated 30 July 2020 and has been referred to above as part of the evidence for the first defendant. The second report of Dr Slaughter is dated 10 March 2022. Dr Slaughter said that the plaintiff suffered from enlarged mediastinal and hilar lymph nodes. There was no other cause for these enlarged nodes, except for silica exposure in the course of the plaintiff working with engineered stone bench tops. Dr Slaughter said that Mr Badenoch suffered from silica-related lymphadenopathy.

  2. Dr Slaughter said that the enlarged lymph nodes are present in the pulmonary hilum. Dr Slaughter said:

“The pulmonary hilum is in essence the root of the lung. The hilum of the lung is a region of the lung situated on its medial aspect which connects the lung and mediastinum. All the structures entering and leaving the lung do so through this region. These include the pulmonary arteries, the major airways (bronchi), lymphatics and pulmonary veins. Lymph nodes and other fatty and supporting tissues are present in the hilum. The pleura surrounds the lung on all sides and physically separates it from adjacent structures such as the chest wall, diaphragm and most of the heart and mediastinum. There is no pleura separating the lung parenchyma from the structures including the lymph nodes in the hilum.”

  1. Dr Slaughter said: “I believe that the hilum is part of the lung”.

  2. Dr Slaughter attached copies of some CT scans of the lungs to his report. Clearer copies of two of those were separately tendered (PX 2). In those two scans Dr Slaughter has drawn an arrow pointing to various features of the scan. The node to which he refers is adjacent to the pulmonary artery and to the bronchus. In both scans (one being a cross section and one being a supine or prone scan) the node appears to be within the outline of the lung, and more towards the centre of the lung than the identified bronchus.

  3. Counsel for the plaintiff also tendered a coloured drawing of an anterior view of the lungs (PX 3). The hilar nodes appear on that drawing to be within the boundary of the lung.

Submissions for the First Defendant

  1. Counsel for the first defendant submitted that the only matter of significance shown on the CT scans was enlargement of lymph nodes. He submitted that the mediastinum was a space between the middle of the chest and the two pleurae. He submitted that the hilum was a recess or opening in an organ for the entrance or exit of vessels or ducts.

  2. Counsel for the first defendant submitted that the enlargement of the mediastinal lymph nodes and the enlargement of the hilar nodes occurred in a part of the body which was not the lung.

Submissions for the Plaintiff

  1. Counsel for the plaintiff made it plain that the plaintiff was not making an allegation that he had contracted silicosis. His submission was that hilar lymphadenopathy was present in the lungs themselves. He pointed out that Dr Slaughter said that the hilum is part of the lung. Counsel also submitted that the CT scans showed that the nodes sit beyond the bronchus and at the entrance to the lung. In particular, he submitted that the scans in PX 2 showed that the hilar nodules sat within the boundary of the lung.

Submissions in Reply for the First Defendant

  1. Counsel for the first defendant accepted that the test to be applied was that in General Steel Industries. The ultimate submission put for the first defendant was that the hilum is not part of the lung.

Consideration

  1. The key issue for consideration is whether silica-induced lymphadenopathy, as diagnosed radiologically and clinically in the plaintiff, is a pathological condition of the lungs attributable to dust.

  2. For the Tribunal to have jurisdiction the plaintiff must have a case, which is not obviously untenable, that he suffers from:

  1. A pathological condition.

  2. Of the lungs.

  3. That is attributable to dust.

  1. The phrase “pathological condition” is not defined in the DDT Act. The Shorter Oxford English Dictionary defines “pathological” as follows:

“Pertaining to or dealing with pathology; that is or may be the subject of pathology.”

  1. The same dictionary defines “pathology” as follows:

“The science or study of disease; that department of medical science, or of physiology, which treats of the causes and nature of diseases, or abnormal bodily affectations or conditions.”

  1. The evidence of Dr Edwards and of Dr Slaughter establishes that the plaintiff suffers from enlarged lymph nodes (lymphadenopathy). His lymph nodes are abnormal, in that they are enlarged. This is something which has been observed on CT scans. It could be precursor to the later development of silicosis, but the science in that regard is uncertain. The plaintiff thus has evidence that he suffers from a pathological condition.

  2. Dr Slaughter says that the hilum, where the hilar lymphadenopathy is observed, is part of the lung. Dr Ferdowsi referred to these nodes as being lung nodules. From where they are located on the CT scans (PX 2) they appear to be within the boundary of the lung. From where they appear on the colour drawing of the lung (PX 3) they appear to be within the boundary of the lung.

  3. Counsel for the defendant pointed to a dictionary definition of “hilum” to mean a recess or opening in an organ for the entrance or exit of vessels or ducts. Whether or not such a recess is part of the lung will be a matter which could only be determined at a trial after expert evidence was received. The evidence at the moment suggests that the hilum is part of the lung. There is no opinion presently in evidence to the contrary. The plaintiff thus has evidence that he suffers from a pathological condition of the lungs.

  4. Both Dr Edwards and Dr Slaughter offer the view that the hilar lymphadenopathy has been caused by the plaintiff’s alleged extensive exposure to silica dust. While lymphadenopathy can be caused by other agents, such as tuberculosis or cancer, the plaintiff is not suffering from any of those conditions. By process of elimination the diagnosis of both Dr Edwards and Dr Slaughter is that of silica-related lymphadenopathy. In other words, the hilar lymphadenopathy is attributable to dust.

  5. The plaintiff has evidence for an arguable case that in suffering from silica-induced lymphadenopathy he suffers from a pathological condition of the lungs that is attributable to dust. Such a claim, if established at a final hearing, falls within the definition of “dust-related” condition in s 3 of the DDT Act, and is thus justiciable under s 11(1) of the DDT Act.

  6. The first defendant cannot satisfy the test in General Steel Industries. That is not to say that the plaintiff will succeed at the hearing. There will have to be expert evidence, and the testing of expert evidence, at a final hearing.

  7. On the evidence presently before the court, I find that the Tribunal has jurisdiction to deal with the allegation made by the plaintiff that he suffers from silica-induced lymphadenopathy. I make no comment about whether the other three pleaded conditions could be dealt with under s 11(3), as that is not a matter which falls for decision on the present motion.

Orders

  1. My orders are:

  1. Dismiss the Notice of Motion filed by the first defendant on 11 February 2022.

  2. Order the first defendant to pay the costs of the plaintiff relating to the Notice of Motion.

**********

Amendments

17 March 2022 - Corrected representation

Decision last updated: 17 March 2022

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0