Coutts v CSR Ltd (ACN 000 001 276) & Ors

[2006] NSWDDT 21

Dust Diseases Tribunal

of New South Wales

CITATION:	Coutts v CSR Ltd (ACN 000 001 276) & Ors [2006] NSWDDT 21
PARTIES:	Brian Coutts CSR Ltd (ACN 000 001 276) Government Insurance Office of NSW (As Insurer for J Odlin Shopfitting (International) Pty Ltd Government Insurance Office of NSW (As Insurer for J Odlin Shopfitting Pty Ltd) Woodland Pty Ltd (ACN 009 691 196) Anfor Investments Pty Ltd (ACN 003 136 329) Amcor Ltd (ACN 000 017 372) NZFP Resources Pty Ltd (ACN 000 026 086) (Discontinued 07/03/2003) Laminex (Australia) Pty Ltd (ACN 001 887 789) t/as Laminex Industries Amatek Ltd (ACN 004 093 092) t/as Laminex Industries
JUDGMENT OF:	Duck J
CATCHWORDS:	Dust Diseases Tribunal :- Dust related condition - Jurisidiction - Attributable to dust
LEGISLATION CITED:	Uniform Civil Procedure Rules, Part 28 Rule 2 Dust Diseases Tribunal Act 1989, ss 3(a) & (b) 11(1)
CASES CITED:	Anderson v Kaufman (1991) 7 NSWCCR 198
DATES OF HEARING:	26, 27, 28 June 2006
EX TEMPORE JUDGMENT DATE:	06/28/2006
LEGAL REPRESENTATIVES:	Mr A J Bartley, SC with Mr F Tuscano instructed by Doherty Partners appeared for the plaintiff Mr J Fernon, SC instructed by Landers & Rogers appeared for the first and fourth defendants Mr J Sharpe instructed by Hunt and Hunt appeared for the second and third defendants Mr T M Rowles instructed by Sparke Helmore appeared for the fifth and sixth defendants Mr T G R Parker, SC instructed by Clayton Utz appeared for the eighth and ninth defendants

JUDGMENT:

8

Dust Diseases Tribunal of New South Wales

Matter Number DDT106 of 2000

Brian Coutts

v
CSR

Ltd (ACN 000 001 276)

Government Insurance Office of NSW
(As Insurer for J Odlin Shopfitting (International) Pty Ltd
Government Insurance Office of NSW
(As Insurer for J Odlin Shopfitting Pty Ltd)
Woodland Pty Ltd (ACN 009 691 196)
Anfor Investments Pty Ltd (ACN 003 136 329)
Amcor Ltd (ACN 000 017 372)
NZFP Resources Pty Ltd (ACN 000 026 086) (Discontinued 07/03/2003)
Laminex (Australia) Pty Ltd (ACN 001 887 789) T/as Laminex Industries
Amatek Ltd (ACN 004 093 092) T/as Laminex Industries

28 June 2006

JUDGMENT

DUCK J

1. In 2001 at a time when there were two defendants in this action a challenge was launched by those defendants to the jurisdiction of the Tribunal. A judgment was given on 22 May 2001 which it was held that the Tribunal in fact had the necessary jurisdiction to hear the case. Since then the pleadings have gone through many amendments. There are now eight defendants effectively and the identity of some has changed. Pursuant to leave granted yesterday the plaintiff filed in court a seventh further amended statement of claim. It is helpful I think to state briefly the case now being made against the various defendants. The matter with which the Court is concerned now is that defendants three to nine, seven no longer being sued, each raise by defences filed yesterday the issue of whether or not the Tribunal has jurisdiction. I propose to identify the pleadings briefly and then go to the arguments raised in support of the position contended for by the defendants.

2. On the application of the plaintiff and pursuant to Part 28 Rule 2 of the Uniform Civil Procedure Rules I directed that this issue be tried first and separately, for reasons which are probably fairly apparent. Stated shortly there seemed to be no point in having a trial go for three weeks if the proper conclusion was that the Tribunal had no jurisdiction.

3. I come then to the seventh further amended statement of claim. The pleadings against the first and second defendant remain substantially as they were. Perhaps it is best if I refer to par 3 of the statement of claim. The case brought by the plaintiff is that he was exposed in the course of his employment to dusts from fibreboard and other wood products as a consequence of which he contracted an ethmoid cancer, that is a cancer which was described as being about the size of a pigeon's egg or a chicken's egg and which was located behind his nose and close to his brain.

4. The employment relied on in the pleadings is as follows: he was employed by J Odlin Shopfitting Pty Ltd, later known as Melbaron Pty Ltd between 21 February 1975 and 1976 and later between 1977 and 22 June 1981 as a shopfitter. He was employed by J Odlin Shopfitting (International) Pty Ltd between 23 June 1981 and 1985 as a shopfitter. He was then a member of a partnership between himself and his son known as Coutts Joinery between 1985 and 1987. He was employed by Coutts Shopfitting Pty Ltd between 1987 and 1992 and by Coutts Shopfitting Australia Pty Ltd between 1992 and 1998. The third defendant is the Government Insurance Office of New South Wales and it is sued as the insurer for J Odlin Shopfitting Pty Ltd.

5. The fourth defendant Royal and Sun Alliance Insurance Group PLC UK is sued as the insurer for Woodland Pty Ltd, a company no longer registered, which it is alleged, was the supplier of medium density fibreboard. It is alleged against Woodland that it manufactured and distributed its products knowing that the dust from them was injurious. Various other allegations are made, including promoting the product and in failing to warn about the dangers to health associated with its use.

6. The fifth defendant is sued similarly as the manufacturer and distributor of medium density fibreboard and other wood products.

7. The sixth defendant, Amcor Ltd, is sued similarly as the manufacturer and distributor of medium density fibreboard and other wood products. Similar assignations of fault are made against it as were made against the fourth and fifth defendants.

8. The seventh defendant is no longer sued.

9. The eighth and ninth defendants are Laminex companies. They are sued as manufacturer and distributor of medium density fibreboard and other wood products. Against them similar assignations of fault are made in the statement of claim.

10. The defences filed by each of the defendants raise the jurisdictional question. The defences of the Laminex companies, the eighth and ninth defendant, for example, plead at par 9 the following: Further, the eighth defendant says that the plaintiff does not suffer from and has not suffered from a dust related condition within the meaning of the Dust Diseases Tribunal Act 1989 NSW and therefore the Dust Diseases Tribunal does not have jurisdiction to hear and determine this proceeding.

11. A similar defence is pleaded by Royal and Sun Alliance Insurance Group PLC UK as the insurer for Woodland Pty Ltd at par 14 of its defence.

12. The fifth defendant Amfor Investments Pty Ltd pleads a similar defence by par 10 of its amended defence.

13. The sixth defendant similarly pleads at par 10 a defence in similar terms.

14. The way in which the parties chose to proceed in having the issue determined was that the documentary evidence which had been tendered in 2001 was tendered again, and the transcript of oral evidence received at that time was also tendered. Submissions were then made about the effect of the evidence. In that respect Mr Parker, learned senior counsel for the eighth and ninth defendants, was the primary advocate for the defendants' positions. Mr Fernon, learned senior counsel for the first and fourth defendants, made a further submission but supported what Mr Parker had to say. Mr Sharpe adopted and supported Mr Parker's submissions. Mr Rowles I think remained relatively silent. I do not mean to do him a disservice in saying so, but in any event that is the way in which the matter was conducted.

15. It is convenient to remember what s 11 says in the Dust Diseases Tribunal Act, and how dust related condition is defined. S 11(1) provides as follows:

1. If -

(a) A person is suffering or has suffered from a dust related condition or a person who has died was, immediately before the 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 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.

There are other subsections in s 11 to which for the moment I do not need to go.

16. Dust related condition is defined in s 3 of the Dust Diseases Tribunal Act 1989 in the following terms:

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.

17. It is common ground, firstly, that the plaintiff does not suffer from the disease specified in sch 1 of the Act. If he suffers from a pathological condition of the lungs, pleura or peritoneum it is a condition of the lungs in which they are chronically irritated and infected because the surgical treatment made necessary by the ethmoid cancer has removed from his body the filtering mechanisms normally in place. There was another matter adverted to in this regard and that was that for a limited time the plaintiff suffered from an atelectasis in one of his lungs following surgery. This was present for a relatively short time and then cleared up.

18. The submission made firstly by Mr Parker was that the plaintiff does not suffer from a pathological condition of his lungs. He said that in effect the plaintiff has nothing wrong with his lungs, that they are quite normal; it may be the fact that they become infected regularly but the lungs themselves are not the site of a pathological condition at all.

19. Mr Bartley, learned senior counsel for the plaintiff, contends in response to that submission that the fact that the plaintiff has constantly recurring chest infection amounts to a pathological condition of the lungs. On balance I accept that submission. As was submitted "pathological" means abnormal in a wide sense, "condition" means a disease or state of affairs affecting the lungs. So that if it be the fact, which is pleaded and which the evidence adduced supports, that the plaintiff has recurrent infection, and giving those words their ordinary meaning I find that the plaintiff does have a pathological condition of the lungs.

20. The next submission related to whether or not either pathological condition, that is the recurrent infection or the atelectasis was attributable to dust. Considerations of this type were considered at length in the judgment in 2001. I came to the view then that the words "attributable to" have an element of causation at their foundation but required less than causation in the common law sense, rather some causal connection needed to be demonstrated. There is no point, I think, in simply restating what was stated five years ago. The view that I there expressed I maintain.

21. Mr Parker raised a consideration which was conceptual in nature and which he said demonstrated that the conclusion I had previously come to could not be correct as a matter of principle. As I understand and recollect the submission it proceeded this way: the plaintiff has a cause of action, he does not have multiple causes of action in respect of the multiple aspects of his damage. So much is not contested. The cause of action was complete when damage was first suffered or evident. That may have been in 1998. It was certainly complete when the ethmoid cancer manifested itself, and at that stage there was nothing affecting the plaintiff's lungs at all. It was only after surgery to treat the cancer that the plaintiff was left with lung troubles, about which I have spoken. The submission was then developed by saying, the plaintiff could bring proceedings in the Supreme Court in respect of the cancer and the sequelae of treatment would be aspects of damage which could be considered in the proceedings. It was submitted that it cannot be right that the plaintiff has some separate action for those sequelae affecting his lungs needing to be brought in the Tribunal on the one hand, and the other sequelae which can be the subject of the proposed action in the Supreme Court. Hence it is submitted that to consider the matter in that way demonstrates that the proposition that the pathological condition of the lungs identified may be sued upon only in the Tribunal is just wrong.

22. In further development of the submission learned counsel also pointed out that s 11(1) deals with a cause of action for damages in respect of a dust related condition and does not deal with separate heads of damage being separated out to be dealt with separately.

23. The analysis of the correct position I think ultimately requires the Tribunal to go to the terms of the statute conferring jurisdiction to see what they say. It is an obvious approach, it is probably correctly the only approach, and it was certainly the approach taken, for example, in Anderson v Kaufman (1991) 7 NSWCCR 198. Firstly, the section directs attention to the person who is suffering or has suffered from a dust related condition. It is by reference to the sequelae of exposure to dust that the section commences to address the conferring of jurisdiction. I think to attempt to analyse the jurisdictional question by reference to the conceptual matters raised by learned counsel for the eighth and ninth defendant turns the attention of the Court away from what the parliament has provided in the Act and that the correct answer will be found by considering the Act itself.

24. Accepting, as I have found, that the plaintiff is a person who is suffering and has suffered from a dust related condition, namely, the atelectasis following surgery, which may fairly be regarded as extremely minor, and the recurring lung infections which affect the plaintiff because his filtering mechanisms have been surgically removed, then par (a) of s 11(1) seems to have been satisfied.

25. As regards par (b) I find that the dust related conditions, about which I have spoken, are at least partly attributable to the negligence pleaded against the various defendants. It is submitted by Mr Bartley that the pathological condition is both directly caused by dust because the plaintiff is unable to effectively filter the air which he breathes which causes the dust to enter and irritate his lower airways. It is also indirectly caused by dust because the exposure to dust caused the cancer which in turn created the need for surgery which has produced his present state. The plaintiff is a person who is entitled to bring an action for the recovery of damages, assuming the matters pleaded are accepted as fact, which is, necessary at this stage of the hearing. I conclude therefore that pursuant to s 11(1) the Tribunal has jurisdiction.

Mr A J Bartley, SC with Mr F Tuscano instructed by Doherty Partners appeared for the plaintiff

Mr J Fernon, SC instructed by Landers & Rogers appeared for the first and fourth defendants

Mr J Sharpe instructed by Hunt and Hunt appeared for the second and third defendants

Mr T Rowles instructed by Sparke Helmore appeared for the fifth and sixth defendants

Mr T G R Parker, SC instructed by Clayton Utz appeared for the eighth and ninth defendants