Brian Coutts v CSR Limited anor

[2001] NSWDDT 9

Reported Decision (2001) 21 NSWCCR 745

Dust Diseases Tribunal

of New South Wales

CITATION:	Brian Coutts v CSR Limited anor [2001] NSWDDT 9
PARTIES:	Brian Coutts CSR Limited Odlin International Pty Limited
MATTER NUMBER(S):	106 of 2000
JUDGMENT OF:	Duck J at 1
CATCHWORDS:	Damages :-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	22/05/01
DATE OF JUDGMENT:	05/22/2001
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr A Bartley SC instructed by Doherty & Partners FOR DEFENDANT: Mr J Fernon instructed by Toomey Pegg & Drevikovsky appeared for the 1st defendant. Ms Moisidis instructed by Goldrick Farrell Mullan appeared for the 2nd defendant.

JUDGMENT:

1. The plaintiff sues the defendant for damages for negligence and breach of statutory duty. Pursuant to leave granted on 14 May 2001 a further amended Statement of Claim was filed in court. Stated shortly it is alleged that the plaintiff was employed by the second defendant as a shop fitter between 1972 and 1976 and between 1977 and 1985. He claims that in the course of his employment he was negligently exposed to fine wood dust and fine dust from fibreboard with the result that he developed a cancer behind his nose and eyes. Consequent upon the treatment of that cancer the plaintiff claims that he is left with a pathological condition of the lungs.

2. Against the first defendant it is alleged, stated shortly, that it was the manufacturer and distributor of medium density fibreboard and other wood products the dust from which resulted in the development of the cancer. The period over which he was so exposed is said to extend between 1972 and 1998.

3. The defendants dispute that the Tribunal has jurisdiction to hear the case.

4. I ordered that the issue of jurisdiction be separately tried. (See part 31 Rule 2 Supreme Court Rules). Exodus 18: 26 was not available to me.

5. For the purpose of determining whether the Tribunal has jurisdiction the parties have proceeded on the footing that whether or not there has been a breach of duty is something that can be left until later. That is breach of duty has been assumed for the purposes of this argument.

6. It may be noted in this regard that in the bundle of material tendered by the plaintiff (PX1) there is a report of Dr K S Basden bearing date 21 August 2000 which provides opinion evidence to show that the hazards of wood dust were well known and that means were available to alleviate exposure to it.

The Plaintiff

7. Mr Coutts was born on 5 July 1946 in the United Kingdom and first commenced work as an apprentice carpenter/joiner at the age of 15 years. He continued this work in England for a period of 7 years until the age of 22. This involved continuous daily exposure to wood dust with the majority of woods involved being of the hard wood variety.

8. Subsequent to this Mr Coutts emigrated to Australia continuing his occupation as carpenter and joiner working for a number of companies. Throughout the next 20 years this involved generally daily exposure to dust. The most common material from which it came was medium density fibreboard. In 1985 he purchased his own shop continuing the work of carpentry and joinery outfitting shops. This involved ongoing moderate to heavy daily exposure to wood dust with approximately 90% of the wood involved being medium density fibreboard. (See Report Professor John Levi 7 July 1999 part of PX1).

The Nature of the Cancer

9. The plaintiff became aware of regular nose blockage and loss of sense of smell for at least 5 years prior to 1999. (See Professor Levi 7 July 1999 supra).

10. The plaintiff underwent CT scanning and was referred to an ear nose and throat surgeon Dr Corlette who arranged his admission to hospital in late February 1999 to undertake biopsy. Adenocarcinoma of the sinuses was diagnosed. The plaintiff was referred to Dr M L Farrell, head and neck surgeon at St George Private Medical Centre. MRI films demonstrated evidence of a soft tissue mass within the ethmoid air cells bilaterally. The tumour extended into the left orbit, displacing the left eye slightly laterally. The tumour had also invaded superiorly through the floor of the anterior cranial fossa, but was not seen to be invading the brain. There was also evidence of tumour invasion into the medial aspect of both sides of the frontal sinus involving the medial wall of the right orbit, but there was no definite evidence of invasion. Inferiorly the tumour extended into the nasal canal with destruction of the middle nasal turbinates on the left and both superior nasal turbinates. There is also some suggestion of invasion of the posterior superior aspect of the left maxillary sinus. (Professor Levi supra). Professor Levi’s comment about all of this was:

All this of course indicates a very extensive malignancy arising from the ethmoid air cells and invading other sinuses bilaterally and superiorly to the anterior cranial fossa and laterally into the left orbit of the eye.

11. On 1 April 1999 the plaintiff came to operation by Dr Farrell. The malignancy was resected. His left eye was enucleated. Resection of portion of the anterior cranial fossa of the skull and widespread resection of ethmoid frontal and sphenoid sinuses was undertaken together with a portion of the nasal canal. (Professor Levi supra).

12. The procedure involved specialist surgeons from 3 disciplines: Dr Farrell head and neck surgeon, Dr Mark Sheridan neurosurgeon and Dr Tony Fernandes reconstructive surgeon. The procedure took some 16 or 17 hours.

13. In reciting details of the nature of the tumour affecting the plaintiff I have adopted for convenience the description of matters provided in the report of Professor Levi. There is ample material from Dr Farrell and others to substantiate Professor Levi’s descriptions.

14. The tumour was described by Dr Farrell (1T14) as ".....like a pigeon’s or maybe a hen’s egg sitting between your eyes and just at the base of the brain....". The tumour is described as an ethmoidal tumour, that is one in the ethmoidal air cells. The anatomy of the area is described in detail by Dr Farrell at 1T14 - 16. The following proposition from the report of Professor D W Henderson part of Exhibit 1 was put to Dr Farrell at 1T19 in cross examination:

That the paranasal sinuses including ethmoid sinus represent appendages to the nasal cavity forming part of the upper respiratory tract, located in the facial bones of the skull and clearly located above the larynx.

Q. Is that something that you would adopt ?

A Yes.

15. The parties have approached the case on the footing that the cancer was in the upper airways of the plaintiff above the larynx.

16. As a result of the surgery the plaintiff now inhales air which has not been warmed and filtered by the nasal passages and that causes irritation to the lower respiratory tract which in turn causes cough. See the report of Associate Professor David Bryant 30.11.2000 page 2. The tendency to cough will continue indefinitely (ibid).

17. Between the time of operation on 1 April 1999 and an x-ray taken on 12 August 1999 the plaintiff suffered from a subsegmental atelectasis. This was a post operative complication which cleared up. See radiological report of Dr McGoldrick dated 4 April 1999 and the comments of Dr Julian Lee in his letter of 29 September 2000 part of 1DX2. Dr McGoldrick’s report is part of 1DX4.

18. Submissions were made about the way in which Dr McGoldrick expressed his view in the report:

....there is perhaps a little subsegmental atelectasis at the left base...

It seems to me that the mode of expression reflected not so much doubt about the existence of the condition in the author’s mind but rather its clinical significance in the context of the plaintiff’s other problems. If nothing were present, nothing need have been said. On the balance of probabilities I am satisfied that the condition was present for a relatively short time. In so far as the plaintiff makes complaint about breathing difficulties extending for a number of weeks or months after the procedure, in light of the evidence of the x-ray of 12 April 1999 which was clear and of the guarded answer given by Dr Bryant at 1T23 line 31 - 33 I am not satisfied that it has been proved, on the balance of probabilities that those breathing difficulties resulted from the atelectasis, after 12 April 1999.

19. For the limited period that the condition of atelectasis was present the evidence of Dr Bryant at 1T23 makes it clear that it was a pathological condition of the lung (see lines 21 - 27 inclusive).

20. The condition of low grade irritation in the lungs suffered by the plaintiff because the air he breathes is not warmed or filtered (IT24 ll 2-10) is similarly a pathological condition of the lungs. (see too IT25 ll 6-11).

Jurisdiction

21. Jurisdiction is conferred on the Tribunal relevantly by sections 10 and 11 of the Dust Diseases Tribunal Act 1989. Those provisions are as follows:

[DDTA 10] Jurisdiction and functions of the Tribunal

10 (1) The Tribunal has, except as provided by sections 29 and 32, exclusive jurisdiction to hear and determine proceedings referred to in sections 11 and 12.

(2) The Tribunal has such other jurisdiction as may be conferred on it by or under any other Act.

(3) The Tribunal has, wherever sitting, jurisdiction throughout New South Wales.

(4) In any proceedings brought under section 11 or transferred under section 12, the Tribunal has the same power to make decisions as the Supreme Court would, but for this section, have had in relation to similar proceedings brought in the Supreme Court.

(5) Subject to sections 13(6) and 14, a decision of the Tribunal has the same effect as, and may be enforced in the same way as, a decision of the Supreme Court.

(6) In relation to proceedings within the jurisdiction of the Tribunal, the Tribunal has the functions of the Supreme Court under section 371(2) of the Companies (New South Wales) code with respect to the stay of proceedings.

[DDTA 11] Claims for damages for dust diseases etc to be brought under this Act

11 (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.

(2) In subsection (1), a reference to a duty includes a reference to a duty imposed by statute as well as a duty imposed under common law.

(3) If the cause of action giving rise to proceedings to be brought under subsection (1) also gives rise to a claim in respect of some other matter, the claim may be included in those proceedings even though it does not relate to a dust-related condition from which a person is suffering or has suffered

(4) Any matter that is ancillary or related to a matter that is the subject of proceedings to be brought under subsection (1) may also be included in those proceedings.

(5) In subsection (1)(c), the reference to a person claiming through a person who is or was suffering from a dust-related condition includes a reference to a relative for whose benefit an action may be brought under the Compensation to Relatives Act 1897. [subs (5) insrt Act 226 of 1989 s 3 and Sch 1 opn 21 Dec 1989]

22. Section 11A deals with provisional damages a matter with which we are not presently concerned. Section 12 deals with transfer of proceedings from the Supreme Court or District Court to the Tribunal.

23. Dust related condition is defined in section 3 as follows: "Dust related condition" means -

a) A disease specified in schedule 1; or

b) Any other pathological condition of the lungs pleura or peritoneum that is attributable to dust;"

24. It is common ground that the plaintiff does not suffer from a disease specified in schedule 1.

25. "Dust" is not defined.

26. The nature of the jurisdiction has been the subject of consideration by the Court of Appeal in Anderson v Kaufman (1991) 7NSWCCR 198; Mangion v James Hardie & Co. Pty Limited (1990) 20NSWLR 100; Goliath Portland Cement v Bengtell (1994) 33NSWLR 414. In these cases there was no question that the nature of the injury alleged satisfied the test for the Tribunal to have jurisdiction.

27. In the present matter the defendants’ position is reasonably easily stated: it is submitted that the plaintiff does not suffer from a dust related condition and hence does not meet the first of the criteria set out in section 11. It is submitted that an ethmoidal cancer is not a pathological condition of the lungs pleura or peritoneum. Secondly if the chest condition which troubles the plaintiff in an ongoing way and/or the atelectasis are pathological conditions of the lung they are not attributable to dust. (see paragraphs 18 and 19 of the defendant’s written submission).

28. The plaintiff seeks to invoke the jurisdiction of the Tribunal in two different ways. In the first place he alleges that the upper airways ought be treated as part of the lungs. In making this submission learned counsel points to the decision of O’Meally J (as he then was) in Kent Bradley v Pillar Industries Pty Limited trading as Trend Windows (14 February 1991). The thrust of that decision was that the bronchial tubes within the lungs are part of the lungs. The learned Judge accepted evidence to the effect that one could no more have a lung without airways than one could have a tree without leaves. It is submitted that having regard to the purposes for which the Dust Diseases Tribunal Act was passed which purposes have been referred to by the Court of Appeal in the decisions above mentioned, the argument accepted by O’Meally,J in Bradley ought to be extended so that the upper airways are properly to be treated as part of the lungs.

29. I do not accept the submission. In giving words their ordinary meaning there is no way in which air passages in and behind ones nose and above the larynx form part of the lungs.

30. The second way in which the plaintiff submits that he is entitled to the jurisdiction of the Tribunal is developed as follows: The plaintiff now suffers from a dust related condition namely the condition of the lungs in which they are constantly irritated producing constant cough. Further, the plaintiff has suffered from a dust related condition in the past namely the subsegmental atelectasis. It is submitted therefore that he is a person who meets the requirements of section 11(1)(a)

31. The defendants submit that the conditions are not attributable to dust. What does "attributable to" mean here? A discussion about these words appears below.

32. Next it is alleged that the dust related conditions thus identified namely the constantly irritated lung and the atelectasis were attributable or partly attributable to a breach of duty owed to the plaintiff by the defendant. For the moment breach of duty may be assumed. Can it be said that the dust related condition identified by the plaintiff was attributable or partly attributable to the breach of duty pleaded against the defendant. It is submitted that this question turns on the meaning of the words "attributable or partly attributable to".

33. The words have been the subject of consideration in Anderson v Kaufman (supra). Mahony JA said (at 202):

T he word "attributable to" means or includes in this context something which has been caused by the breach of duty in question and it is the causal relationship which is averted by clause 7 of the Statement of Claim.

34. Priestly JA said (at 204)

I have not come to a final view of the meaning of the word “attributable” either in the definition or in section 11(1)B in this appeal. That task seems to me to be one which can be done much better in the light of all the facts of a trial than on the bare allegations of the Statements of Claim.

35. At 207 Clarke JA said, having referred to comments of Lord Reid in Central Asbestos Co Limited v Dodd (1972) 2ALL ER1135 at 1141:

It seems to me that, broadly speaking, the phrase “attributable to” in section 11(1) bears the same meaning. The court is concerned with a relevant connection and in this sense there is no difference of substance between an assertion that an injury was caused by breach of duty or resulted from breach of duty and one that the injury was attributable to a breach of duty.

36. On the basis of his analysis Clarke JA was satisfied that the pleading then in question satisfied the requirements of section 11(1)(b).

37. What is "a relevant connection"?

38. The Shorter Oxford Dictionary defines the verb "attribute" as "to ascribe as an effect to the cause" (1530).

39. The words "attributable to" were considered in Law v Repatriation Commission (1979-80) 29ALR64 at 71-2 by Toohey J. He said

Thus the notion of some causal relationship between death and war service is introduced. But the extent of the relationship is not as direct as the expression "caused by" might require.

40. He then referred to a passage quoted from the judgment of Donaldson J in Walsh v Wather District Council (1978) 1AllER510 at 514:

...these are plain English words involving some causal connection between the loss of employment and that to which the loss is said to be attributable. However this connection need not be that of a sole dominant direct or proximate cause and effect. A contributory causal connection is quite sufficient.

41. At 72 Toohey J concluded that the words "attributable to" required

...some causal connection.

42. The words "attributable to" are discussed in Kotz v Repatriation Commission (1992) 28ALD 909; Hawkins v Repatriation Commission (1993) 30ALD 59; D W Brown v Repatriation Commission (1989 -90) 18ALD 85 at 86.

43. Hence it is submitted that as regards the plaintiff his dust related conditions namely the constant coughing and the atelectasis were attributable to the breach of duty on the part of the defendant which caused the ethmoid cancer. They are the by-product of necessary treatment for that cancer. Hence it is submitted that the conditions referred to are attributable to the conduct of the defendant that caused the cancer.

44. In a similar way the plaintiff submits that the identified conditions are attributable to dust for the purposes of the definition of dust-related condition: s3.

45. The plaintiff seeks to obtain further comfort from the fact that the test in s(11)(1)(b) is “attributable or partly attributable to....”. It is submitted that the legislature clearly intended a causal connection much broader in concept than simply direct cause and effect.

46. The plaintiff then submits that He is a person who is or was suffering from the identified dust related conditions and that he is entitled to bring an action for the recovery of damages in respect of those conditions. Hence it is submitted that the Tribunal has jurisdiction, indeed, in respect of those conditions exclusive jurisdiction.

47. It is then submitted that the substance of the matter relating to the tumour can be considered in the proceedings pursuant to section 11(3) in that the claim gives rise to a claim in respect of some other matter. It is submitted that the section does not say anything about the relative size or importance of the claims available to the injured person.

48. It may be noted that if this approach is permissible the substance of the claim would not be dealt with in the exclusive jurisdiction of the Tribunal. The major part of the claim relating to the cancer would be dealt with pursuant to section 11(3) as to which the Tribunal’s jurisdiction would not be exclusive (see Amaca Pty Limited formerly known as James Hardie & Coy Pty Limited v CSR Limited (2001) NSWSC263 at page 8 paragraph 31.)

49. In other words the plaintiff submits that notwithstanding that those parts of his claim which he can point to as being dust related conditions and within the jurisdiction of the Tribunal are minor by comparison with his other problems, nonetheless they are sufficient to enliven the jurisdiction of the Tribunal. Further it is submitted that the only place in which he can obtain compensation for them is the Tribunal because of the exclusive nature of the Tribunal’s jurisdiction. Hence the proceedings which include as items in respect of which damages are sought those items are within the Tribunal’s jurisdiction.

Discussion

50. My initial reaction to the plaintiff’s submissions was that they seemed to be producing an unlikely result. In particular the proceedings for damages it seemed to me were really not in respect of the two relatively minor dust related conditions identified but rather in respect of the ethmoid cancer and that the plaintiff did not come within the terms of section 11. An examination of the various stages through which the Statement of Claim has passed confirms that the plaintiff’s real complaint and the substance of his action is to do with that cancer rather than the minor dust related conditions. Learned counsel for the plaintiff submits however that the proceedings for damages are in respect of those two minor matters inter alia and the only place the plaintiff can go to be compensated for them is the Tribunal.

51. If the plaintiff is correct about jurisdiction then a position will be achieved in which a very small tail is wagging a very big dog. The defendant submits (2 T56) that a construction of the section which produces such an outcome is not correct. The plaintiff submits that if the words of the section are met then the jurisdiction is enlivened.

52. As to whether a decision to adopt the submissions will open flood gates to litigants I am unable to say. Matters of policy are not in the province of a first instance Judge.

53. It seems to me that the submissions of the plaintiff ought to be accepted. The submissions have identified the basis upon which this conclusion ought be reached. I find that the claim is within jurisdiction.

Conclusion:

54. It may be accepted that the plaintiff has two pathological conditions of the lungs from which he is suffering or has suffered, namely chronic irritation of the lungs producing constant coughing and subsegmental atelectasis. The first question to be addressed is are these conditions attributable to dust? (s 3 definition of dust-related condition).

55. It seems to me that the matter of Anderson v Kaufman (supra) is distinguishable from the present case in that it was a matter being decided on the pleadings and one in which the medical condition of the plaintiff was not in issue. It was sufficient for the court’s purposes to establish that the injury was caused by breach of duty or resulted from breach of duty. (see Clarke JA of 207).

56. I note in this regard that the observations of Toohey J in Law supra are to the contrary in that the extent of the causal relationship required is not as direct as the expression "caused by" might require. I note that Toohey J ultimately came to the view that some causal connection was required. I note the views of Donaldson J referred to above to the effect that the causal connection need not be that of a sole, dominant, direct or proximate cause and effect. A contributory causal connection is quite sufficient. Applying those expressions of principle to the present circumstances I conclude that the after affects of the operation made necessary by the tumour which resulted from exposure to wood dust are attributable to that exposure.

57. I conclude by similar reasoning that the identified pathological conditions of the lung are dust-related conditions.

58. As regards s 11 I find that the plaintiff is a person who is suffering from and has suffered from dust-related conditions; I find that those dust-related conditions were attributable to the breach of duty which is assumed for present purposes. Alternatively, I find that the dust-related conditions were partly attributable to such breach. For present purposes the plaintiff is to be taken to be entitled to claim damages in respect of the dust-related condition above referred to. I conclude that those proceedings may be brought before the Tribunal and may not be brought before any other court or tribunal.

59. I note the comment of Priestly JA in Kaufman at 207 which raises the possibility that "attributable to" in s3 might have a different meaning from "attributable or partly attributable to" in s11.

60. The cause of action giving rise to the proceedings in respect of those dust-related conditions also gives rise to another matter that is the entitlement to damages arising from the tumour and its treatment. Those matters may be dealt with in those proceedings. Alternatively the substantial claim relating to the tumour and its treatment is a matter which is related to the claim relating to the two minor identified dust-related conditions. I conclude therefore that the matter is within the jurisdiction of the Tribunal.

Mr A Bartley SC instructed by Doherty & Partners appeared for the plaintiff.

Mr J Fernon instructed by Toomey Pegg & Drevikovsky appeared for the 1st defendant.

Ms Moisidis instructed by Goldrick Farrell Mullan appeared for the 2nd defendant.