Britt v Manildra Flour Mills (Manufacturing) Pty Limited

[2006] NSWDDT 3

Dust Diseases Tribunal

of New South Wales

CITATION:	Britt v Manildra Flour Mills (Manufacturing) Pty Limited [2006] NSWDDT 3
PARTIES:	Ross Michael Britt Manildra Flour Mills (Manufacturing) Pty Limited
MATTER NUMBER(S):	DDT00022 of 2005
JUDGMENT OF:	Duck J
CATCHWORDS:	Miscellaneous Matters :- Schedule 1 Workers Compensation (Dust Diseases) Act 1942 Farmer's Lung Pathological condition of the lungs caused by dust that may also cause a disease specified in Schedule 1.
LEGISLATION CITED:	Workers Compensation (Dust Diseases) Act 1942 Workplace Injury Management and Workers Compensation Act 1998
DATES OF HEARING:	24 February 2006
DATE OF JUDGMENT:	03/01/2006
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr D R Campbell, SC with Ms T Moisidis instructed by Campbell Paton and Taylor FOR DEFENDANT Mr A Scotting instructed by Moray and Agnew

JUDGMENT:

18

Dust Diseases Tribunal of New South Wales

Matter Number DDT00022 of 2005

Ross Michael Britt

v

Manildra Flour Mills (Manufacturing) Pty Limited

1 March 2006

JUDGMENT

1. The plaintiff has commenced proceedings for damages against his employer the defendant. The statement of claim alleges that between February 1993 until November 2002 the plaintiff, in the course of his employment by the defendant , was exposed to and inhaled large quantities of dust including dust emanating from wheat, flour and other material used or generated by the defendant in the course of milling and/or refining wheat grain and wheat grain related products. The plaintiff pleads he has contracted occupational asthma as a result of exposure to the grain dust.

2. Pursuant to consent orders the Tribunal is to determine as a preliminary matter the following issues:

i. Can the exposure to flour and/or wheat dust cause any of the diseases in schedule 1 of the Workers Compensation (Dust Diseases) Act 1942, specifically Farmer’s Lung?

ii. If the answer to I is no, can the plaintiff maintain the present proceedings without having satisfied the procedural requirements contained in the Workplace Injury Management and Workers Compensation Act 1998.

3. Consideration of the issue should commence with the definition of injury contained in the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998. In both Acts injury is defined so that the Acts do not apply to a dust disease. A dust disease is defined in the later Act in this way: “dust disease” has the same meaning as it has in the Workers Compensation (Dust Diseases) Act 1942.

4. Pursuant to s 4 of the Workers Compensation Act 1987 the definition of injury, including the exclusion of a dust disease, continues as follows:

…………As defined by the Workers Compensation (Dust Diseases) Act 1942 or the aggravation, acceleration, exacerbation or deterioration of a Dust Disease as so defined.

5. Provided the plaintiff’s condition is properly to be regarded as dust disease so defined his action for damages is not subject to the constraints as to damages imposed by the Workers Compensation Act 1987 or to the procedural requirements of the Workplace Injury Management 1998.

6. The Workers Compensation (Dust Diseases) Act 1942 defines Dust Diseases as follows:

Dust Disease means any disease specified in schedule 1, and includes any pathological condition of the lungs, pleura or peritoneum that is caused by dust that may also cause a disease so specified.

7. One of the diseases specified in schedule 1 is Farmer’s Lung.

8. It is common ground that this plaintiff does not suffer from Farmer’s Lung.

9. What is at issue is whether or not exposure to the relevant dusts at the defendant’s mill have caused a pathological condition of the lungs (ie asthma) and whether those dusts may also cause Farmer’s Lung.

10. For the purposes of determining the present issue what has been pleaded may be accepted as fact. In addition short evidence has been adduced. The additional evidence has been contained in a folder which was handed up and marked as an exhibit. The folder contains both medical evidence and factual evidence.

11. As regards factual evidence there is an internal memo of Manildra Flour Mills bearing date 24 June 2005. The subject of the memo is Waste Disposal. The memo is as follows:

From Friday 1st July 2005 Manildra Flour Mills will implement major changes to the way we dispose of all waste products. From that date –

6. All flour spills will be delivered to the new screening process for ultimate return to the speciality plant with the exception of mouldy/wet flour which will be removed for composting.

7. All brand spills…………

8. The only waste which will be sent to Council Landfill will be items which cannot be recycled, reworked or composted.…………

9. There will be designated bins for rework, screening, composting and recycling. It will not be accepted to use these bins for any other that their label suggests………

12. I infer that mouldy or sprouted wheat and mouldy/wet flour are common problems at the defendant’s mill. I infer also that they have been such over the years including during the time in respect of which the plaintiff pleads exposure to dusts in the course of his employment.

13. There are some factual matters about which the parties have expressed agreement. They are as follows:

1. That exposure to wheat and flour dust is capable of causing occupational asthma.

2. That the appropriate common law jurisdiction in which to pursue any valid claim of this nature is the Dust Diseases Tribunal.

3. That the plaintiff does not and has never suffered from the condition known as Farmer’s Lung.

14. There is a report from Dr Maneesha Dinker Patel bearing date 15 November 2002. The doctor says that the plaintiff attended her surgery on 2 October 2002 with a breathing problem and coughing spasms. Her diagnosis was that of excerbation of asthma. She went on to say he has not had an attack of asthma prior to this incident. As regards prognosis the doctor wrote that it was guarded “………as inhalation of wheat dust is not good for his respiratory system”.

15. There is a report from Professor Saul Zwi, consultant physician which bears date 28 November 2002. Under the heading Diagnosis and Opinion the Professor wrote:

Mr Britt is a 28 year old man whose asthma started three years ago while working with wheat and flour as a mill hand. His symptoms of tight chest and wheezing gradually worsened until recently when he was moved to a much less dusty open area where he feels ‘100 per cent better’. However examination today revealed wheezes in his chest .

In my opinion Mr Britt suffers from occupational asthma due to wheat and his condition is entirely consistent with his history.

16. A report has been provided by Professor ABX Breslin a specialist physician which bears date 23 March 2003. It was provided to Royal and Sun Alliance Workers Compensation. Professor Breslin’s opinion is expressed as follows.

Opinion

Exposure to flour may also cause asthma and this is particularly seen in bakers. Although this particular patient Mr Britt did not work in the Mill producing or packing the flour he often went into the Mill to clean it up and I believe he was at risk.

Thus I have no doubt that this man has occupational asthma as a consequence of his work at Manildra Flour Mill and through that work exposure to grain dust and flour…………

A little later Professor Breslin went onto say

8…………his current asthma is entirely due to his work at Manildra Flour Mill.

17. Dr Brendon Yee, consultant physician has provided a report which bears date Monday 27 September 2004. The doctor examined the plaintiff. Under the heading Impressions he wrote:

I think Ross has occupational asthma probably from exposure to his previous wheat and flour dust at his current working environment………

18. The plaintiff’s solicitors armed with the opinion from Professor Zwi and the opinion of Professor Breslin wrote to Associate Professor Bryant on 22 June 2004. They wrote:

We advise that we act for the above named who has been diagnosed as having occupational asthma as a result of his ongoing exposure to the wheat dust whilst employed at Manildra Flour Mills as labourer/mill worker. In this regard we enclose copies of the following medical reports which have been provided to us by the Worker’s Compensation insurer for the Manildra Flour Mills

We are now seeking to obtain an opinion as to whether exposure to wheat grain dust is capable of causing the condition known as Farmer’s Lung. It would now be appreciated if you could let us have a report expressing your opinion as to whether exposure to wheat grain dust is capable of causing the condition known as ‘Farmer’s Lung’ In this regard would you please note that we are simply seeking opinion as to whether exposure to wheat grain dust can cause Farmer’s Lung not whether it will in all instances result in this condition.

19. Professor Bryant replied by letter bearing date July 8 2004. He said

Thank you for your letter 22 June 2004 to which was attached a report from Professor S Zwi dated 28 November 2002 and a letter from Professor A Breslin dated 23/3/03.

I am pleased to answer the question set out in your letter dated 22 June 2004.

I am of the view that exposure to wheat grain dust is capable of causing the condition known as ‘Farmer’s Lung’. To support this opinion I quote the views of the authors in three prominent text books on this matter (Rose, Page 1867 in Textbook of Respiratory Medicine, Edited by Murray & Nadel, 3rd Edition, 2000, W B Saunders Co Philadelphia; Fink and Zascharisen, Page 1373 in Allergy, Principles & Practice, 6th Edition,Edited by Adkinson et al, 2003, Mosby, Philadelphia; and Newman Taylor, Page 667 in Occupational Lung Disorders, Edited by Parkes, 3rd Edition, 1994, Butterworth, Oxford. All of these authors are of the view that contaminated wheat grain dust is capable of causing Farmer’s Lung…………

20. The plaintiff’s solicitors wrote again to Professor Bryant on 29 August 2005. They had obtained two publications from the internet which they sent to him:

The letter went on as follows:

It is our understanding from these publication that:-

We understand that wheat grain is a grain of a kind that can (given the appropriate conditions), foster the growth and development of the mould spores and bacteria which, if they were to be inhaled in the dust particles from such wheat grain, may cause the condition known as Farmers Lung.

It would be greatly appreciated if you could let us have your further short report confirming that the foregoing accords with your view as to the circumstances in which exposure to wheat grain dust may cause the condition known as ‘Farmers Lung’.

21. Dr Bryant wrote back to the solicitors a letter which bears a date September 1 2005. He said:

Thank you for your letter dated the 29th August 2005 regarding your client together with the copies of the documents that were attached. I have read your letter and am pleased to answer the question raised in it.

This letter is to be read as supplementary to my previous reports to you concerning this matter.

I am in agreement that the opinions expressed in your letter dated the 29th August 2005 accord with my own views as to the circumstances in which exposure to wheat grain dust may cause the condition known as ‘Farmers Lung’. …………

22. The Canadian material referred to above contains the following material inter alia:

What is Farmer’s Lung?

Farmers Lung is an allergic disease usually caused by breathing in the dust from moldy hay. However, dust from any moldy crop – straw, corn, silage, grain, or even tobacco can also cause Farmer’s Lung.

The technical name for Farmers Lung is ‘extrinsic allergic alveolitis’. ‘hypersensitivity alveolitis’ or more generally ‘hypersensitivity pneumonitis’. The ‘-itis’ means inflammation so alveolitis means inflammation of the alveoli. ‘Pneumonitis’ means inflammation of the lungs (‘pneumon’ Greek for lung)……….

As the name suggests Farmers Lung is caused by inhaling certain allergy-causing dust found in some agricultural operations. However, extrinsic allergic alveolitis or hypersensitivity pneumonitis are general medical terms that include other lung conditions resulting from exposure to allergy causing dusts found in different kinds of work places or locations. ……………

What causes Farmers Lung?

People can get Farmers Lung by breathing in dust containing the spores of special, heat tolerating bacteria or moulds often found on moldy crops. Spores from two types of bacteria, ‘Micropolyspora faeni’ and ‘Thermoactinomyces vulgaris’, and certain types of moulds called “Aspergillus” are the major causes of Farmer’s Lung.

In areas where crops are harvested in wet or rainy weather, crops usually undergo self-heating while in storage. When this happens, heat-tolerating bacteria and moulds grow rapidly and cause spoilage. As spoiled hay dries, it darkens, crumbles easily, and is extremely dusty. This dust that contains bacteria and mould spores is extremely fine. People can breathe these spores into the innermost regions of the lungs (alveoli) where the problem begins.

The spores that cause Farmer’s Lung are not infectious. Instead, they trigger an allergic reaction. ……………

Who is at risk of developing Farmer’s Lung?

Farmer’s Lung is a risk for adults who breathe dust from moldy hay or other moldy crops. For reasons not completely understood, children rarely develop Farmer’s Lung.

………………

There is little danger working with loose hay in an open field. However, the risk increases when farmers or farm workers are breaking open bales of moldy hay or straw inside closed barns or cow sheds. ………

Other people exposed to dust from moldy hay, straw or grain include grain handlers, stable employees, poultry workers …………Studies also show that Farmer’s Lung is a risk for city dwellers who visit stables, even occasionally.

23. The Textbook of Respiratory Medicine for which the editors are John F Murray and J A Nadel contains at 686 – 687 a discussion of grain dusts and the developments of micro flora in grain dusts. At about point 6 of the first column on 687 the following appears:

As the water content and temperature increase respectively to about 30 per cent and 50 to 60 c the greater will be the number of organisms such as Absydia corymbifera, Mucor pusillus, T. vulgaris, F rectivirgula (M. faeni), A fumigatus and possibly others that may present a risk of extrinsic allergic alveolitis or lung infection………A study in grain elevators in Canada (Manitoba) has shown that the microflora were similar in all and consisted almost entirely of bacteria, Penicillium, yeasts, Aspergillus flavus, A. fumigatus, T. vulgaris and Streptomyces albus.

The development of new techniques in harvesting and storing grain has, to some extent, increased the risks of microbial growth and the quantities of air borne dust produced.

24. Medical reports were also tendered from Dr Julian Lee specialist thoracic physician. They were tendered by the defendant.

25. The first of Dr Lee’s reports bears date 8 June 2005. He thought that when he saw the plaintiff the plaintiff had normal ventilatory function. The opinion went on:

Whether his respiratory symptoms are attributable to grain dust-induced occupational asthma or a non-specific irritative response is unclear in the absence of confirmatory clinical evidence or demonstrable increased bronchial reactivity.

26. He thought the plaintiff had no impairment.

27. The second report from Dr Lee bears date 22 August 2005. He dealt with a series of questions.

1. Does the plaintiff suffer from Farmer’s Lung?

Response: Negative.

Response: Negative.

The doctor then offered the following opinion:

Hypersensitivity pneumonitis (also known as extrinsic allergic alveolitis) is an immune reaction involving the gas exchanging tissues of the lung and quite distinct from occupational asthma.

Thermophilic actinomycetes do not cause occupational asthma.

The next comment was to the following effect:

The statement by Associate Professor Bryant that ‘I am of the view that exposure to wheat grain dust is capable of causing Farmer’s lung’ requires clarification.

28. The doctor went on to describe a form of pneumonitis termed wheat weevil lung.

The next paragraph is in these terms:

The plaintiff has described no characteristic features to indicate the development of any form of hypersensitivity pneumonitis.

29. I understood that this was not disputed.

30. Annexed to the doctor’s letter was an extract from the book Occupational Lung Disorders Third edition by W. Raymond Parkes. Chapter 20 appears to have been written by C.A.C. Pickering and Anthony J. Newman Taylor and is entitled Extrinsic Allergic Bronchioloalveolitis (hypersensitivity pneumonia). At 667 in the second column the authors write:

This is a generic term for a common manifestation of a variety of causes.

31. At 671 a table is reproduced. It is entitled Table 20.1 Types of extrinsic allergic alveolitis. The first entry seems to me to have significance. The table has three columns: firstly Type; secondly Nature of responsible aerosol; and thirdly Nature of antigen. The first entry in the table is as follows:

Type Farmer’s lung

Nature of responsible aerosol Mouldy hay, straw or grain

Nature of antigen Faenia reactivirgula, Thermoactinomyces vulgaris, T. thalpophilus

32. Dr Lee’s third report bears date 30 October 2005. The material from the plaintiff’s solicitors and Dr Bryant had been referred to him for an opinion. He wrote at the foot of the first page of his letter:

Consideration of the condition known as ‘Farmer’s Lung’ is unnecessary and irrelevant to consideration of this claim for the following reasons

· The worker has not developed the form of hypersensitivity pneumonitis known as Farmer’s Lung

· Farmer’s Lung is virtually unknown in this country because hand feeding stock with incompletely dried grain during harsh climatic conditions is rarely necessary in rural Australia

· There have been no reports of hypersensitivity pneumonitis affecting flour millers in the Australian medical literature

· No cases of hypersensitivity pneumonitis affecting flour millers have been reported to the Dust Diseases Board of New South Wales

· The introduction to chapter 20 of ‘Occupational Lung Disease’, (3rd edition) contains the following statement

‘The range of extrinsic organic agents that can be inhaled as fine particulate matter or aerosols in occupational or other circumstances and give rise to lung disease is large and include vegetable dusts (notably fungal spores), proteins of animal and piscine origin, various pathognomonic micro-organisms, vegetable and mineral oils and certain organic chemicals’
The doctor’s letter continues:

Apart from the inclusion of ‘wheat weevil lung’ attributable to the inhalation of Sitophilus granaris, the chapter contains no further information concerning hypersensitivity pneumonitis affecting flour millers. I am unaware of any reports of this type of hypersensitivity pneumonitis affecting an Australian flourmill employee

· Grain dust is a complex mixture of organic and inorganic matter. The organic component contains fractured grain particles, pollen and other plant material, insect parts, mites, mammalian debris and large numbers of microorganisms and spores. The microrganisms are predominantly bacteria, the most prevalent fungi are yeasts Aspergillus, Pennicillium and Ustilago. Additionally chemical compounds ranging from mycotoxins and plant enzymes to fumigants and pesticide residues may be present (reference: Occupational and Environmental Respiratory Disease, Chapter 36, page 629 published by Mosby)

33. The doctor notes that the other references cited by Dr Bryant have not been made available. I presume that means to him. His conclusion is as follows.

The scientific evidence does not support the claim that agents causative of Farmer’s Lung (thermophilic actinomycetes), can cause occupational asthma.

34. One may observe immediately that in drawing this conclusion the doctor may be addressing the wrong question. The issue is whether the dust, complex as it is, can cause both occupational asthma and farmer’s lung. One might be forgiven for thinking that the table set out above in the documents which accompanied the doctor’s earlier letter was compelling evidence of the fact that mouldy grain can be responsible for farmer’s lung.

35. Dr Lee gave some oral evidence expanding the material in his reports. He emphasised that Farmer’s Lung was rare in Australia. This was, he said, because the climate in Australia was different from the climate of many countries in the northern hemisphere. He confirmed that the agent causative of Farmer’s Lung (thermophilic actinomycetes) had not be shown to have caused occupational asthma. Further, broadly speaking, the material obtained by the plaintiff’s solicitors from the Canadian National Occupational Health and Safety Resource was put to him and he accepted the soundness of the propositions contained in it.

36. The principal argument advanced by the defendant’s solicitors and repeated by Mr Scotting of Counsel was the argument set out in their letter of 26 August 2005 addressed to the plaintiff’s solicitors. Its essence is contained in the following parts of the letter:

5. It is uncontroversial that wheat dust and/or grain dust in themselves cannot cause farmer’s lung. Rather farmer’s lung arises from a particular spore being thermophilic actinomycetes.

37. The following observations may be made about this analysis. Firstly mouldy grain can cause farmer’s lung (see firstly the table 20.1 types of extrinsic allergic alveolitis extracted by Dr Lee and sent with his letter of the 22 August 2005; See too the material from the Virginia Co-operative Extension sent by the plaintiff’s solicitors to Professor Bryant; See also the material from the Canadian National Occupational Health and Safety Resource page 2; See also the material under the heading Extrinsic Allergic Bronchioloalveolitis (hypersensitivity pneumonia) by C.A.C. Pickering and Anthony J. Newman Taylor at pg 684 second column; See further the same article at 685 first column; See the Textbook of Respiratory Medicine John F. Murray and Jay A. Nadel page 686 first column under the heading Prevention; See too the discussion at 687 under the heading of Microflora of Grain dusts;

38. I add to these considerations the opinion of Dr Bryant which may perhaps have been casually expressed but the broad thrust of it is beyond doubt.

39. Further in this regard it does not assist to isolate the precise organic agent which may cause Farmer’s Lung namely Thermoactinomyces vulgaris. What the legislation is concerned with is the dust. Its complexity has been described by Dr Lee.

40. It was also submitted that because Farmer’s Lung is very uncommon in Australia when construing the meaning of the definition of dust disease one must adopt a construction which bears in mind the legislative competence of the Parliament of New South Wales. In other words it is not sufficient, so it is submitted, to say that in Northern Europe you can get Farmer’s Lung in particular but that is not a matter which concerns those in New South Wales because New South Wales’ Parliament has a limited legislative competence and its function is to make provision for those affected so that they are entitled, in this State, to claim compensation.

41. Accepting for the moment the factual premise upon which the submission is based, namely, Farmer’s Lung does not happen very much in New South Wales, it seems to me that the submission ought not be accepted. Parliament was clearly alert to the fact that certain conditions can bring about the contracting of the disease Farmer’s Lung. They have made provision that if it happens here (and, I interpolate, even if it is not common) then a person is entitled to be compensated in accordance with the provisions of the Workers Compensation (Dust Diseases) Act 1942. That really is the end of the matter. Further however, Parliament may have well taken the view that while such disease is more common in Northern Europe in the cold, wet climates there nonetheless they do not want it becoming commonplace here. The fact that is presently not common is not material.

42. A related submission was advanced that in construing the definition of “Dust Disease” the possibility that a specified disease might be caused by a particular exposure must not be a far fetched and fanciful possibility because it would make the provision in the definition a nonsense. It is submitted that the possibility must be a reasonable possibility. I do not accept the submission for the reasons set out above.

43. It was also submitted by the defendant that there was no evidence the bacterium required to cause Farmer’s Lung was present at Manildra. In a circumstance in which the composition of the chemicals and microbes associated with mouldy grain are variable but nothwithstanding the variability the scientific evidence is to the effect they can cause Farmer’s Lung, that submission it seems to me ought not to be accepted. The legislation speaks of dust, not microbes.

44. I conclude that the evidence is overwhelming that the plaintiff suffers from occupational asthma. There is room to argue about the severity of it but that argument is for another time. I accept the dust which caused the occupational asthma was the dust at the defendant’s flour mill. The dust which caused the occupational asthma is capable of causing Farmer’s Lung. In this regard I note the defendant’s internal memo instructing employees what to do with mouldy or sprouted wheat (para 5d) and mouldy wet flour (para 6). I accept the scientific evidence referred to above to the effect that the dust from mouldy wheat can cause Farmer’s Lung.

45. I answer the questions referred for separate determination as follows:

i. Yes

ii. No need to answer

46. I stand the matter over for directions on Friday 31st March 2006.

47. I order the defendant to pay the plaintiff’s costs relating to the determination as a preliminary matter of the issue the subject of this judgment.

Mr D R Campbell, SC with Ms T Moisidis instructed by Campbell Paton and Taylor appeared for the plaintiff.

Mr A Scotting instructed by Moray and Agnew appeared for defendant.