Harris v Lend Lease
[2016] VMC 16
•22 SEPTEMBER 2016
| IN THE MAGISTRATES COURT OF VICTORIA |
AT LATROBE VALLEY
WORKCOVER DIVISION
Case No.F10906442
| WAYNE HARRIS | Plaintiff |
| v | |
| LEND LEASE SERVICES PTY LTD | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | LATROBE VALLEY |
DATE OF HEARING: | 16, 17, 18 & 19 AUGUST 2016 |
DATE OF DECISION: | 22 SEPTEMBER 2016 |
CASE MAY BE CITED AS: | HARRIS v LEND LEASE |
MEDIUM NEUTRAL CITATION: | [2016] VMC016 |
REASONS FOR DECISION
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Catchwords: Rejection of claim – exposure to dust – nature of and extent of exposure to dust - causative effect of the exposure on workers respiratory condition and incapacity for employment.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Horner | Slater & Gordon |
| For the Defendant | Mr Richards | Minter Ellison |
HIS HONOUR:
1 Mr Harris is 60 years of age and was employed by the defendant as a rigger/spotter at Loy Yang A Power Station between 29 August 2013 and 21 September 2013 during shutdown work on one of the boilers and worked for 18 days in total during this period. He alleges that during the course of his employment he was exposed to dust particles and refractory powder containing alumina silicates which caused injury to his lungs resulting in his incapacity for all employment since that date. In his Amended Statement of Claim dated 5 July 2016, Mr Harris alleges that his exposure to the dust and powder caused; injury to his lungs, reactive airway dysfunction syndrome, endobranchial burn, breathlessness and haemoptysis. He claims weekly payments of compensation together with reasonable medical and the like expenses from 21 September 2013.
2 By way of an Amended Defence, the defendant denies that Mr Harris was exposed to airborne dust particles and refractory powder containing alumina silicates, denies that he sustained an injury or disease and contends that his employment was not a significant contributing factor to any recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury or disease. At the commencement of the hearing the defendant indicated that it accepts that Mr Harris was exposed to dust but takes issue as to the nature and extent of that exposure and the causative effect of it.
3 The court heard evidence from Mr Harris and co-workers at Loy Yang A being; Mr Savage, Mr Hasson, Mr Stephens and Mr Matthews concerning the work conditions and level of dust exposure. Evidence was also given by Associate Professor Sasse, treating Respiratory Specialist and Dr Hocking, Specialist in Occupational Medicine. The parties tendered numerous documents including reports from Dr Perry, General Practitioner, Mr Kottek, Occupational and Environmental Health Consultant, Professor Pain, Thoracic Physician, Dr Trembath, Respiratory Physician and Dr Burdon, Respiratory Physician. A Safe Work Method Statement and Material Safety Data Sheets relating to the ingredients of chemicals used at Loy Yang A during the relevant period were also tendered.
4 As indicated, it is not in dispute that Mr Harris was exposed to dust in the course of his employment as a spotter. The real issues are; what type of dust was he exposed to, what was the level of dust exposure and did that exposure cause injury as alleged. The evidence revealed that the defendant is a major contractor who in turn sub-contracts work to Veolia who were engaged to remove old refractory from the boiler and apply new refractory to it. Refractory is a heat retardant chemical. The evidence also revealed that there are 4 boilers on site, each containing 30 floors and being 102 metres in height. Apparently one boiler is shut down each year for refurbishment and repair. During the shutdown, which lasted 4-6 weeks, approximately 600 workers were engaged by the various contractors to perform maintenance work.
5 The Safe Work Method Statement prepared by the defendant relating to the Loy Yang 2013 Outage indicated that there was a potential hazard of dust exposure to employees working on the auxiliary burners and wind boxes. The Material Safety Data Sheets indicate that one of two types of chemical was used in the refractory process. The product used was either Surgun 70AR or Cergun 1450. The Data Sheets state that both chemicals are not classified as hazardous and they are recommended as a refractory mix used as a heat containment lining for industrial furnaces. The chemicals are of a solid composition and are noted to be a calcium aluminate cement bonded refractory mix. They contain alumina-silicate aggregates, aluminium oxide, silica, calcium aluminate and polypropylene fibres. It is also noted that the product contains no synthetic mineral fibre and the crystalline silica is chemically combined within the base aggregate and is not present as respirable free crystalline silica.
6 If inhaled it is recommended that the worker be removed to a dust free area. It is also recommended that an approved dust respirator and safety glasses should be worn and that care should be exercised to minimise the generation of fugitive dusts. It is recommended that dry sweeping of materials should be avoided to minimise dust emissions into the air and that settled dust and particles should be cleaned up using wet sweeping techniques.
7 The Safety Data Sheet directs that during installation, modification or demolition of existing lining, the dust and particles generated may contain crystalline silica and that local exhaust ventilation should be used to control dust and that a P2 type dust respirator should be worn together with safety glasses with side shields or goggles.
8 The physical and chemical properties of the chemical are said to be solid and their appearance is aggregate and powder with a musty odour. It is also noted that the calcium aluminate cement will hydrate and solidify when mixed with water. In relation to toxicology, the Material Safety Data Sheet states that long term inhalation of high concentrations of respirable crystalline silica has been shown to cause silicosis and that evidence exists that suggests chronic exposure to respirable crystalline silica may result in lung cancer, especially when combined with smoking and that the acute exposure to nuisance dust may result in upper respiratory irritation. It further states that during installation, modification or demolition of existing lining may result in acute exposure to dust and particles generated from these activities causing eye irritation.
9 Mr Harris gave evidence that he has been a smoker since he was 16 years of age and averaged 20 cigarettes per day until he reduced his intake to, on average, 10 per day from 2009 or 2010. He told the court that he believed that he passed a pre-employment medical examination with the defendant in August 2013 which included a urine and lung function test. His evidence on this issue was disputed by others who could not recall undergoing a pre-employment medical check and no documents were tendered verifying that he did. He told the court that he was employed as part of the shutdown of the boiler and was required to assist in performing maintenance work. He said that during his limited period of employment he would work 6 days per week and 10 to 12 hour shifts each day. Mr Harris told the court that his primary role was that as an observer or spotter of the leading hand whilst he was working in a confined space in the auxiliary burner situated inside the boiler on Level 6. He subsequently conceded that he could have been working on levels 3, 4 or 5. He said that the leading hand was grinding off rust and using an ultrasound to determine the thickness in order to ascertain whether that part of the boiler required replacing. Mr Harris gave evidence that he did not work inside the boiler although he said he had to go inside the boiler on some occasions. His evidence that he was required to go inside the boiler on occasions was disputed by co-workers.
10 Mr Harris told the court that whilst working he wore a P2 respirator made of paper but said that the mask did not seal around his face and it did not allow him to adjust or tighten it. He gave evidence that whilst performing his role as an observer, workers on levels above him were pouring refractory into the pipework inside the boiler. He said he noticed ‘fibreglass shards’ which were a ‘shiny substance’ dropping from above and floating in the breeze which then settled on the bottom of the boiler levels below him. He told the court that it was ‘refractory dust or residue’ and was ‘glistening in the light’. He told the court that in the area he was working the breeze created a wind tunnel. He also said that the dust was microscopic or minute and he could only see it in the light.
11 In cross examination, he agreed that he did not actually see the refractory being applied and he ‘assumed’ the dust material he saw was refractory. In his opinion, the extraction fans used were not efficient. Mr Harris told the court that at toolbox meetings employees requested a copy of the Material Safety Data Sheets to ascertain what chemicals they were being exposed to because they were concerned having regards to the amount of dust exposure. He disagreed that the dust issues raised at the meetings was confined to dust exposure inside the boiler only.
12 Mr Harris gave evidence that prior to ceasing work on 21 September 2013 he was coughing, had a dry throat and eye irritation. He told the court that on Sunday 22 September, he woke coughing up ‘red and black blood’ and mucus from his lungs and attended his general practitioner on Tuesday 24 September. He said that as a result of his condition he has been unable to return to work since that time.
13 During cross examination, he said that he still smokes cigarettes once or twice a week equating to 2 to 4 cigarettes per week. He also said that he normally smokes when he drinks too much and that he drinks on most days of the week and consumes approximately 8 to 10 stubbies of beer each day. He conceded that he is an alcoholic. I formed the view that he grossly underestimated the amount of cigarettes he smokes. Mr Harris also estimated his weight prior to commencing employment with the defendant at between 85 to 90 kg. The records reveal his weight at that time to be 110 kg with a body mass index of 40.4. He disputed the suggestion that there was no refractory dust outside the boiler and that the extraction fans and P2 masks were effective. He conceded that he did not actually know what type of dust he was exposed to.
14 Mr Savage gave evidence that he worked at various locations throughout the plant for the defendant during the shutdown period. He told the court that he saw Mr Harris on two occasions during that period when he was employed as a spotter or relay person outside the boiler and said that Mr Harris was not allowed inside the boiler or he would be ‘run off’. He believed the boiler to be approximately 20 floors with one side being open and said that when the sun was shining he observed floating dust particles on some days when he was working on the 18th to 20th floor. He told the court that the dust particles were not confined within the boiler. He said that the workers were provided with protective glasses and masks and the major issue with the dust was in relation to eye irritation. He gave evidence that he did not wear a mask as they were not compulsory for all workers and said the masks provided did not provide a good seal. Mr Savage said that he ‘assumed’ the dust was refractory dust because he had seen it before. He believed that the spraying of the refractory was being conducted on the 7th floor but he did not observe it occurring. He did recall that on one occasion about halfway through the shutdown the whole workgroup stopped working so the dust could be cleaned.
15 Mr Hasson gave evidence that he was in charge of the Windbox project during the 4-6 week outage. He said that his role was to ensure the job was safe as he had to ‘sign off’ on it as he had the necessary permit. He told the court that there are 8 Windboxes bolted to the side of the boiler and that he was not required to enter the boiler to perform his duties.
16 Mr Hasson said that he is a ‘safety freak’ and was critical of the defendant in that the Safe Work Method Statement, whilst identifying potential hazards, did not specify how the jobs were to be done. He told the court that Mr Harris had to observe others and stay outside the boiler on the auxiliary burner duct. He said that prior to the refractory work being done the boilers were cleaned with high pressure water which created dust which he described as being a ‘brown/orange’ colour.
17 He gave evidence that Veolia contractors were engaged to remove and replace the refractory. He described the process as being; the first layer was an insulation layer, followed by a thermal layer and then hard base layer. He said that the contractors had to remove the old refractory by use of jackhammers which caused a loss of dust. He told the court that at the completion of the washing process there was always residual ash remaining in the boiler which he described as ‘gritty, like rice’ which he said was refractory dust. He said that the new refractory was contained in bags which was a dry mix powder which was poured into a blower with a nozzle that applies a ‘mist’ spray. He said that it was sprayed on in a moist, rather than wet form and when it settled against the boiler it was dry and was a fast curer. Mr Hasson told the court that all of the substance did not ‘stick’ to the wall of the boiler and tended to ‘bounce’ off the wall. He described this as being ‘over spray’.
18 Mr Hasson told the court that the Veolia contractors used plastic sheeting around the area where they were spraying but he noticed that the sheeting was blowing in the breeze and did not contain the refractory. He also said that the 12 inch extraction fans were not effective because when he visited level 7 only two of the 8 extraction fans were operating as some were not plugged in to a power outlet as the workers were using their power tools in those outlets. Mr Hasson told the court that when he was on level 7 he saw that the dust escaped from inside the boiler through the access doors. He said he knew it was refractory dust because he ‘has worked in the industry for 40 years’.
19 Mr Hasson also gave evidence that he experienced a sore throat during the outage period and an apprentice was coughing up blood so he decided to take a photo of the bag containing the refractory because he wanted to investigate whether the substance was safe. He said that he took this issue up with Mr Stephens (Safety Advisor) and Mr Matthews (Safety Advisor) and Mr Stephens told him the following day that everything was okay and the workers just needed to wear masks. He said that he regularly brought up the dust problem at toolbox meetings. He also gave evidence that he heard Mr Walker tell Mr Hargraves (Project Officer) that action needed to be taken about the dust but Mr Hargraves replied that they could not halt the refractory work. Mr Hasson said that approximately halfway through the outage they did stop the refractory work until the residue was cleaned up. He said that his crew helped with the clean-up and he estimated they removed 10 to 12 wheelbarrow loads of refractory material. He said that he also saw Veolia contractors sweeping the overspray material through the doorways on levels 3 and 4 to the lower levels and he described them as being ‘Cowboys’. He recalled that this occurred after Mr Harris had ceased work.
20 Mr Hasson told the court that he ceased working for the defendant after 2014 because they were not ‘safety conscious’ in that they did not take adequate safety precautions. In cross examination, he agreed that Mr Matthews was the major safety officer who oversaw the plans and risk assessment during the outage. In his opinion, Mr Matthews was ‘not very good on safety’. He disputed the suggestion that there was no refractory dust outside the boiler but conceded that he did not know the composition of the refractory material or the dust that he observed outside the boiler. He told the court that Mr Harris worked with him as an observer for 8 to 10 days but believed that he ceased Windbox work when the full team commenced after the first day which he thought was either the 1st or 2nd of September. He could not explain the basis on which he believed that Mr Harris worked for him for 8 to 10 days when he was told that Mr Harris commence work on 2 September. He was also unsure as to whether Mr Harris worked on level 3, 4, 5 or 6.
21 Mr Stephens gave evidence that he was employed by the defendant as a safety advisor between 2006 and 2015. He said that prior to this employment he worked as a field inspector with Worksafe in the construction sector. He estimated that there were approximately 600 people employed to do maintenance work during the outage period. He gave evidence that the Safe Work Method Statement was created by a workgroup which identified hazards and mitigates them. He said that he saw Mr Harris on two occasions during the shutdown whilst Mr Harris working as a spotter at the auxiliary burner outside the boiler. He said that Mr Harris was not allowed inside the boiler. He confirmed that there is always residue dust remaining after the boilers have been washed. He said that the boiler extends from level 3 to level 21, is 102 m high and is a metal framed building which is not fully enclosed by walls. He confirmed that the refractory work involved removing old refractory that had not burnt with the residue being removed by use of jackhammers. He said this work started on the second day of the shutdown. He told the court that the new refractory is a mix paste sprayed by a gun inside a plastic wrap bubble and when sprayed it ‘pebbles up’ which can disturb the dust or ash left in the boiler. He said that when sprayed the refractory can bounce back like pellets which he described as ‘half the size of a pea’. He said that the workers were provided with a P2 mask.
22 Mr Stephens said that the boilers contained ‘fly ash’ which he said was orange residue and is fine like talcum powder. He said that after the boiler is initially cleaned and dries it is not uncommon for the workers to have orange residue on them which contributed to the dust problem inside the boiler. He said that the dust inside the boiler was fine coal dust which was visible on windy days as there are drafts in the boilers. He conceded that the refractory dust which he said was white in colour escaped from the boiler but he did not consider it to be excessive. He told the court that dust extractor fans were used by the defendant and other contracting companies. He told the court that there were complaints made about the dust inside the boilers but there were no complaints about the dust outside the boilers.
23 In cross examination, he conceded that the overspray of refractory was not totally contained within the plastic ‘bubble’ and that there was ‘floating grit’. He also agreed that he was told that there was a lot of overspray on the scaffolding so he arranged for it to be cleaned up. He recalled that the coal dust was causing issues with workers suffering from eye irritations outside the boiler and that the initial safety glasses provided were not appropriate. He said that the problem inside the boiler was due to ‘residue dust’ and not coal dust as it had been burnt, so it was the residue from burnt coal. He agreed that there was an increase of dust within the boiler as a result of the refractory drying which was escaping. He also conceded that the defendant only monitored gases and not air-quality and therefore it was not possible to say with any certainty what level of refractory was inside or outside the boiler and the only method of doing so was by observing it. He recalled Mr Savage brought up the dust issue and produced an empty bag of refractory and questioned whether it was safe but he believed that he did this near the end of the shutdown and after Mr Harris had ceased work.
24 Mr Matthews gave evidence that he was employed by the defendant for a period of 11 years as a Health and Safety Advisor and his role included co-ordinating safety related matters on site. He said that he was working on site during the shutdown but he was mainly doing office work but he would attend the worksite on occasions and would walk around the site once per day with Mr Stephens. He said that the boiler was open on the north side and the wind would whistle through it. He gave evidence that the Safe Work Method Statement identified dust as a potential hazard. He confirmed that the refractory process was carried out by Veolia contractors but he did not observe it being done. He said that his understanding is that refractory is a base powder product which is sprayed on the walls of the boiler by the use of water and air pressure to make it pliable. He understood that a plastic bubble was built around the work area to contain as much spray or airborne particles as possible and believed it was 75 to 85% effective. He said that extraction fans were supplied by the defendant for those working outside the boiler and by Veolia for those working inside the boiler. He said that he understood that ash dust, coal dust, refractory and other dust could escape from inside the boiler and the complaints made about the dust was mainly from those working inside the boiler. Mr Matthews said that the residue of refractory dust was swept up and shovelled into a chute which travelled to the bottom of the boiler.
25 Mr Matthews told the court that he could not recall whether Mr Harris had a pre-employment medical. In cross examination, he said that he obtained the Material Safety Data Sheets from Veolia after Mr Harris and Mr Savage raised their concerns about the dust. However, he recalled that most of the complaints about the dust were in relation to workers complaining of grit in their eyes and particularly those working outside the boiler. He agreed that the defendant updated the safety glasses after these complaints and the new safety glasses had rubber seals. He could not recall seeing Mr Harris working, did not dispute that he may have been exposed to dust and could not specify the type of dust that he may have been exposed to. He told the court that he recalled Veolia contractors using vacuums to clean up dust but did not know whether employees of the defendant assisted in the cleaning process. He agreed that the refractory spraying created airborne particles and confirmed that the defendant did not conduct any dust monitoring.
26 Mr Kottek, Occupational and Environmental Health Consultant prepared a report dated 14 November 2014 on behalf of Mr Harris. He noted that he interviewed Mr Harris briefly by telephone on 13 November 2014 for the purposes of preparing his report and based on that interview and without attending the Loy Yang site, stated that it appeared that Mr Harris was exposed to airborne dust during the removal and installation of refractory lining. Mr Harris told him that he was unaware of the work methods used to remove the old lining but that it did involve some grinding of the metal ducting. He also told him that the new refractory coating was sprayed inside the duct and that the dust extraction fans had a short length of flexible ducting so that the dust which was removed from the duct was released into the general work environment near to where he was working. Mr Kottek assumed, based on this history, that Mr Harris experienced periods where his work environment was affected by visible dust being released from the installation or removal of the refractory lining.
27 Mr Kottek reported that the composition of the new refractory lining appeared to be a mixture of aluminosilicate aggregate, calcium aluminate cement, amorphous silica and a small amount of polypropylene fibres. He expressed the opinion that the spraying of this mixture was likely to have generated very high airborne dust levels inside the duct as the process is similar to that which was used to spray asbestos insulation. He noted that the Material Data Safety Sheets for Surgan 70AR notes that silica in the product is contained in the aggregates and that this was not likely to be released during the installation of new refractory but the removal of the old refractory could plausibly involve the release of the respirable crystalline silica. He also noted that in the absence of measurements, it is difficult to determine the dust levels to which Mr Harris was exposed but based on the history he obtained he opined that Mr Harris was likely to have been exposed to respirable dust levels in excess of 3-5mg/m3 or more from time to time during his shift. Mr Kottek based this opinion on his own observations of visible dustiness and measurements of respirable dust measurements made during a range of operations on concrete.
28 Mr Kottek reported that given the presence of some level of silica in the refractory materials and noting that the exposure standard for silica is so low, that visible dust would be an indication that potentially excessive exposure was occurring, unless measurements of silica in the airborne dust had shown otherwise. In his opinion, for silica containing dusts in general, the presence of visible dust has long been seen as being an index of potentially excessive exposure, while an absence of dust was not a clear indication that working conditions were satisfactory. He opined that even if it is assumed that the refractory contained no free silica, his exposure should be seen as being potentially excessive.
29 Mr Kottek also referred to the American Conference of Governmental Industrial Hygienists who recommended that exposure to respirable dust should be kept below 3mg/m3 for Particles Not Otherwise Specified that are ‘biologically inert, insoluble, or poorly soluble’ because such particles may have adverse effects. Based on his estimate of Mr Harris’s exposure, Mr Kottek opined that it is entirely plausible that he experienced exposure in excess of this standard. He also noted that the refractory materials were mainly composed of aluminium containing compounds. He said that since 2008, the American Conference of Governmental Industrial Hygienists adopted a standard of 1mg/m3, averaged over an 8 hour day, for aluminium metal and insoluble aluminium compounds. He noted that given the refractory formulation, this standard could also have been applied to the dust being generated by the refractory installation and removal. He noted that it is difficult to assess whether Mr Harris’s exposure would have exceeded the standard as it would require information on the amount of aluminium contained in the respirable dust being generated by the refractory installation and removal and this could only have been determined by taking measurements. Mr Kottek also noted that Mr Harris had told him that the respiratory protection was ineffective. He commented that even if the respirators were effective, in the absence of airborne dust measurements it is not clear whether his exposure would have been adequately controlled when compared to the exposure standards he has referred to.
30 In the Appendix to his report, Mr Kottek refers to various reports and publications regarding Visibility of Dust Standards. In particular, he noted that in 2009 the US Occupational Safety and Health Administration issued a Guide on Controlling Silica Exposures in Construction. In relation to Visible and Respirable Dust it stated: Visible dust contains large particles that are easy to see. The tiny, respirable sized particles (those that can get into the deep lung) containing silica pose the greatest hazard and are not visible. Most dust generating construction activities produce a mixture of visible and respirable particles. Do use visible dust as a general guide for improving dust suppression efforts. If you see visible dust being generated, emissions of respirable silica are probably too high. Measures that control tool generated dust at the source usually reduce all types of particle emissions, including respirable particles. Do not rely only on visible dust to assess the extent of the silica hazard. There may be airborne respirable dust present that is not visible to the naked eye.
Medical Evidence
31 A Pre-Employment Medical Examination Form dated 20 February 2006 in relation to the prospective employment of Mr Harris with Bilfinger Berger Services was tendered. Mr Harris indicated that he was healthy, engaged in regular exercise, was a smoker and averaged 24 alcoholic drinks each week. He also noted that he did not suffer from wheezing, bronchitis, asthma or shortness of breath. On medical examination it was noted he was 90kg, 165cm in height and had a blood pressure reading of 160/90. A lung function test was performed which according to Associate Professor Sasse indicated that at that stage Mr Harris had a ‘mild to very mild’ airway obstruction and according to Dr Burdon indicated that he had a ‘mild to moderate’ small airways obstruction.
32 Medical Records from the Moe Medical Group for the period 19 November 2007 to 24 September 2015 were also tendered as was a report dated 18 August 2015. The records indicate that on 19 November 2007, Mr Harris reported smoking 10 cigarettes per day, drank 8 standard drinks of alcohol 3-4 days a week and his blood pressure was 152/80. On 5 November 2009, he reported smoking 20 cigarettes per day and was drinking 8 standard drinks of alcohol daily or almost daily. On 4 December 2009, he reported drinking less alcohol, his weight was recorded as 98kg with a BMI of 37.3 and was suffering from problems associated with Gout. By 9 November 2010, his weight was recorded as being 100kg with a BMI of 38.1 and blood pressure of 170/92. On 13 October 2011 his weight was recorded as being 105kg, BMI 38.6 and his blood pressure 160/90. As at 28 June 2013 (approximately 2 months prior to commencing employment with the defendant) he refused to have his blood pressure checked, weighed 110kg with a BMI of 40.4.
33 On 24 September 2013 (3 days after ceasing work), Mr Harris is recorded as attending the Medical Centre and provided a history that he had a cough with haemoptysis two days ago and he coughed out approximately 1 tablespoon of fresh red blood and had an ongoing productive cough for the past 2 days with spots of brown blood in it. He is reported as telling Dr Ambekar that he ‘works in the industry where was exposed to asbestos before and using some other product which can cause skin/eye irritation and lung problems. Uses mask all the time at work. Very concerned about this exposure and upset that employer did not warn about it before’. His blood pressure was recorded as being 174/80. Mr Harris was referred for x-rays and pathology tests. It was also recorded that he smokes 20 cigarettes per day. On 1 October 2013, Dr Ambekar obtained a history that Mr Harris did not have any more haemoptysis, that he had a mild cough but no sputum and he was referred to Dr Sasse and for a lung function test. In May 2014 it was recorded that he had cut his smoking down to 10 cigarettes a day, his blood pressure was recorded as being 155/70, weight being 111kg with a BMI of 40.8.
34 Associate Professor Sasse, treating Respiratory Specialist, gave evidence and medical reports prepared by him were tendered. In his report to Dr Ambekar dated 11 December 2013, he noted that Mr Harris was a 58-year-old smoker who was substantially exposed to refractory namely aluminosilicate. He reported that Mr Harris provided him with a history that the refractory was pumped in somehow to clean some pipes and were all through the air of the boiler he was cleaning. Dr Sasse noted that Mr Harris had a background of minor breathlessness, hypertension and gout and smoked 10 cigarettes a day since the age of 16 and consumes 3 to 4 alcoholic drinks a day. On examination he recorded that Mr Harris had a minor wheeze with no localising signs and normal heart sounds. He also noted that he was overweight. In a further report to Dr Ambekar dated 11 June 2014, he recorded that Mr Harris had recently almost stopped smoking, had a normal CT scan and normal bronchoscopy with bronchial inflammation complicated by his difficult airway (almost certain sleep apnoea). He also noted that Mr Harris had continued to cough up some blood. In a report to the Conciliation Service dated 17 July 2014, he reported that a CT of the chest performed on 10 December 2013, showed no infiltrates in his lungs, no evidence of COPD, fibrosis or lung cancer. He also reported that that a Bronchoscopy revealed a minor patch of inflammation on the posterior bronchial wall and that Mr Harris had an unsatisfactory response on various medications and inhalers which included oral steroids, antibiotics and inhaled steroids. Dr Sasse stated that in his opinion the exposure to the airborne material contributed to the symptoms, namely cough, haemoptysis and breathlessness and that his smoking also contributed. In a report to Dr Wu at the Moe Medical Group dated 23 April 2015, he noted that a sleep study showed that Mr Harris had severe sleep apnoea. In a report to Mr Harris’s lawyers dated 23 July 2015, he stated that his condition had stabilised but he had not significantly improved and was he not capable of full-time or part-time employment.
35 When giving evidence, Dr Sasse told the court that he has been practising as a Respiratory and Thoracic Physician for 25 years. He said that it is well-known that refractory ceramic fibres are an airway irritant which is more powerful when combined with smoking. He stated, by reference to the lung function test performed in 2006 that Mr Harris had a ‘mild to very mild’ airway obstruction at that time. By reference to the lung function test performed on 14 May 2015, he noted that there was a significant drop in his lung function when compared to 2006 which was twice as much as would be expected and was not due to his cigarette smoking. He said that his exposure to refractory ceramic fibres, assuming he has been given an accurate smoking history had to be considered as a cause of this deterioration.
36 When told that Mr Harris may have been exposed to refractory ceramic fibres for a period of 10 to 18 days only, he opined that the loss of lung function that may be contributed to by his exposure would depend on the level or dosage of that exposure. Dr Sasse told the court that a safe level of exposure to refractory ceramic fibres is considered to be 0.5 fibres per cubic metre. A level above this creates and causes respiratory symptoms and problems. He also told the court that a level of 0.5 fibres per cubic metre is not visible and there needs to be a substantially higher volume of fibres to be able to see them. On this basis he said that it is strongly recommended that monitoring of air quality occur. Dr Sasse opined that Mr Harris’s airway obstruction has been caused by his cigarette smoking and an unknown level of exposure to refractory ceramic fibres. He was also of the opinion that based on the lung function test it would be very difficult for Mr Harris to perform manual labour as he would experience breathlessness on walking, carrying objects and going up and down stairs. He told the court that Mr Harris is currently operating at 39% of lung function capacity.
37 In cross examination, he told the court that Mr Harris’s current condition was caused by his exposure to the irritants at work and his cigarette consumption. He conceded that if Mr Harris was not exposed to refractory ceramic fibres his current condition is comparable with his smoking habits. He told the court that when he last saw Mr Harris on 10 May 2016 he told him that he was still smoking 10 cigarettes a day. He also agreed that based on the evidence Mr Harris gave to the court that he smokes when he drinks and that he drinks 8 to 10 stubbies of beer a day and conceded that he was an alcoholic, that he might be underestimating his cigarette consumption. He agreed with the proposition that the reliability of a lung function test is effort dependent. He told the court that lung function test readings can vary day-to-day as a person’s airflow can vary day-to-day. When informed that the lung function test conducted on 16 June 2015 by Dr Trembath indicated a much better lung function capacity than the test he conducted (14 May 2015 Actual 1.17 - 16 June 2015 Actual 1.79) and that Mr Harris underperformed on his test and the test performed by Mr Trembath was more accurate, he stated that this could be the case or it could have been due to the fact that the treatment Mr Harris was receiving at the time was causing some improvement in his condition. Dr Sasse said that ‘the airflow is not a pipe’ and many things can affect performance including swelling, a virus or other reasons. Dr Sasse stated that even accepting the accuracy of the lung function test on 16 June 2015, it still demonstrated that Mr Harris only had a lung function capacity of 59%, which indicates he could not exert.
38 When it was suggested to him that Mr Harris was not exposed to refractory ceramic fibres on the basis that; he was not working inside the boiler, he was not working on the same level where the refractory work was being done, he was wearing a paper mask albeit alleging that it was which ineffective, but was exposed to other dust, he agreed that his opinion that Mr Harris suffered a work-related injury loses force. When it was suggested to him that Mr Harris may have been exposed to fly ash and other dust he agreed that it was difficult to state with any certainty the contribution of each of the alleged irritants, including smoking, to his condition. However, he said that exposures to irritants are cumulative and refractory ceramic fibres are significant airway irritants and in combination with smoking the risks of sustaining a respiratory condition are much higher. He said that if Mr Harris was exposed to refractory ceramic fibres it is plausible that the exposure was a cause of or aggravated his airway obstruction. He agreed that the length of exposure was relevant but there was no difference between a low level of exposure over the long term (10 years) as opposed to a high level of exposure over a short period. In his opinion it was incumbent on the employer to monitor the air quality having regards to the fact that refractory ceramic fibres are a dangerous substance.
39 Mr Harris tendered medical reports from Professor Pain, Consultant Thoracic Physician, dated 16 July 2015 and 22 January 2016 based on examinations conducted on 16 July 2015 and 21 January 2016. Professor Pain obtained a history from Mr Harris that for a period of 3 weeks he was required to supervise the maintenance work on boilers at Loy Yang. He told him that as part of the maintenance work, a powder was poured into the pipes which acted as a preservative. He said that this was carried out above his workplace but said that the atmosphere where he worked was heavily contaminated with dust from the work above. He also told him that he wore protective clothing and a simple paper mask but within a few days of his exposure he noticed a throat irritation but continued to work. Mr Harris told him that shortly after the work was completed he became unwell with a severe cough which produced a large blood clot and that he continued to cough blood for the next 18 months and still found specks of blood from a nasal discharge or coughed sputum. Mr Harris told Professor Pain that he has breathlessness which has been slowly progressive and that during a full pre-employment medical assessment which included lung function tests he was assessed as being fit. Mr Harris also told him that he smoked up to 10 cigarettes a day for many years until he ceased 2 years ago.
40 Mr Harris told Professor Pain that he was exposed to refractory dust which Professor Pain understood contained fine aluminosilicate powder. On examination, Professor Pain noted that Mr Harris weighed 110kg and had a body mass index of 42. He also noted that his blood pressure was mildly elevated at 168/90. A lung function test performed on that date indicated the presence of considerable airflow obstruction with useful improvement following inhaled bronchodilator (1.81).
41 Professor Pain opined that Mr Harris has obstructive lung disease with an asthmatic component. He stated that his smoking habits have played some part in the genesis of this condition but his history strongly suggests that he sustained severe airway irritation during the course of his employment which has been a major factor in producing his symptoms. He stated that Mr Harris is unfit for his former work as a rigger and crane driver but he would be able to cope with mild sedentary work in a dust free environment. He also noted that the clinical notes he was provided with indicate that he did not have a significant respiratory problem before 2013. He opined that the episodic haemoptysis was probably an expression of chronic bronchitis which would have been aggravated at the time of his exposure in 2013.
42 When seen on 21 January 2016, Mr Harris told Professor Pain that he no longer smoked but was exposed to some environmental exposure because his partner smokes. Professor Pain noted that Spirometry was attempted but was not completed because Mr Harris stated that the manoeuvres produced severe pins and needles over his forehead. Professor Pain opined that Mr Harris sustained an acute respiratory illness following his exposure to refractory at work and that his condition had become chronic. He noted his condition is associated with considerable asthmatic chronic airflow obstruction and represents either activation of previously subclinical asthma, reactive airways dysfunction syndrome or irritative bronchitis. He stated that Mr Harris’s smoking has contributed to his condition although it appears that any smoking induced component was mild in 2013 when he was considered fit for employment. He considered that because he has sufficient impairment of lung function he is totally and permanently unemployable and there will be a steady deterioration in his condition.
43 Dr Burdon, Respiratory Physician, assessed Mr Harris on behalf of QBE on 7 March 2014 and his reports dated 7 March, 17 March, 19 March and 7 April 2014 were tendered. Mr Harris told Dr Burdon that he was involved in the closing down of the power station for the purposes of maintenance and repairs and when the boilers were opened, he and other workers were exposed to a significant amount of refractory which Dr Burdon understood to be aluminium silicates in the air. Mr Harris told him that the job continued for some weeks and the dust was present in the air throughout this time. He told him that the dust was ‘swirling around’ and that the masks provided were inadequate and non-protective. He also told Dr Burdon that after breathing in the dust he could feel an irritation in his throat but this had now settled and had largely disappeared.
44 Mr Harris provided a history that on a Sunday he had a ‘big cough’ (haemoptysis) and coughed up blood. He said this continued for ‘a couple of months’ and he consulted his doctor who arranged for a chest x-ray to be performed and he was prescribed antibiotics. Mr Harris told him that by December 2013 there was still ‘redness’ in his sputum but that on the whole his symptoms had improved significantly. Mr Harris also told Dr Burdon that when he started coughing up blood he noticed that he was becoming short of breath but his breathlessness had improved.
45 Dr Burdon obtained a history from Mr Harris that at present he was not short of breath walking on level ground at his own pace but does become breathless if he hurries or if he walks up hills or stairs. He also noticed breathlessness if he bends over and he continues to have a cough if he is breathless and this is productive of some sputum. Mr Harris also told him that prior to the exposure he did experience shortness of breath on occasions. Dr Burdon obtained a history from Mr Harris that he has been a smoker since the age of 16, recently was smoking 10 cigarettes per day but presently was smoking 2 to 3 cigarettes per day.
46 On examination Dr Burdon reported that Mr Harris’s chest expansion was reduced, percussion note resonate and auscultation revealed an occasional wheeze and the general amplitude of breath sounds was significantly reduced. Dr Burdon noted that the spirometry performed in February 2006 appeared to show evidence of a ‘mild to moderate’ small airways obstruction. He opined that based on the history given that Mr Harris inhaled aluminium silicates he suffered from a lung injury, almost certainly an endobronchial burn (lower respiratory tract) which has resulted in an extensive bronchitic process manifested by wheezing, shortness of breath and haemoptysis. He stated that Mr Harris was unfit for his pre-injury employment but could undertake employment involving sedentary or light duties. In a supplementary report, Dr Burdon stated that if Mr Harris inhaled aluminium silicates of significant quantities as stated by him, they can cause irritation to the respiratory tract and may cause more extensive injury to the lower respiratory tract.
47 Dr Burdon provided a further supplementary report after being given further information via the defendant that Mr Harris was working outside the boiler, extractor fans were used to take in the excess dust and extracted, that he would have been exposed to minimal, if any, dust and that many of the other workers did not complain of respiratory symptoms. Accepting this information as accurate, Dr Burdon opined that it would be much less likely that his respiratory complaint would have been caused by dust inhalation. However, he noted that if dust inhalation is of a light nature and not over prolonged periods that some airway irritation could occur but would resolve in a few days but also noted that significant individual variation occurs in that some workers will develop severe symptoms and others will develop none.
48 Dr Trembath, Respiratory Physician, assessed Mr Harris on behalf of the defendant’s lawyers on 16 June 2015. He obtained a history from Mr Harris that he worked outside the boiler during the shutdown period observing another worker inside the boiler. Mr Harris said that he observed dust coming down in the air and ‘swirling around’ and alleged that the extraction exhaust fans were not always working because other tradesmen would sometimes disconnect them to use the power points for other purposes. Mr Harris told him that he worked for 3 weeks or so. Dr Trembath referred to documents from the employer which noted that Mr Harris was working on the outside of the boiler and he would have been exposed to minimal if any dust on site. He was also informed by reference to those documents that the workers on the inside of the boiler had the most exposure and none of them made any complaints of exposure as the dust was not toxic. Mr Harris told him that over the 3 week period he felt that breathing in the atmosphere where he was working caused a ‘prickly’ feeling in the chest. He told Dr Trembath that 3 other people were ‘affected’ and one of them had ‘ear bleeding’ and another had been coughing blood.
49 Dr Trembath noted that Mr Harris had a recorded history of smoking 20 cigarettes per day as at 24 September 2013 and questioned him about his smoking history. He reported that Mr Harris told him that he smoked ‘4 or 5’ since the age of 16 and when challenged that the documents suggested it was 10 cigarettes a day, he agreed ‘that might be more likely’. Dr Trembath noted that Mr Harris was a somewhat vague and unreliable historian and was markedly overweight with a body mass index of 43.02 in the morbidly obese range. When comparing the lung function test he conducted and the test carried out on 14 May 2015, Dr Trembath stated that the test performed on 14 May 2015 represented a substantial underperformance whereas the test performed by him on 16 June was a more accurate reflection of his lung function. He stated that the test he conducted indicated the presence of a moderate degree of restriction, with the forced vital capacity following bronchodilator being 74% predicted, which was only 6% below the lower limit of normal. He commented that obesity may well account for this reduction in Spirometry and there was evidence of airflow obstruction in the post bronchodilator phase but the forced vital capacity improved 14% after bronchodilator. He noted that the the gas diffusion measurements were reduced in total but when corrected for alveolar volumes it was 83% predicted.
50 Dr Trembath opined that Mr Harris has chronic bronchitis, obesity and most probably sleep apnoea related to his obesity. In his opinion, his obesity compromised his respiratory function to some extent and that his present respiratory state is not related to the claimed injury. He opined that even assuming that there was some exposure to silica dust (aluminium silicates) as stated in the Material Safety Data Sheets it would be possible that there may have been some transient respiratory irritation at the time of such exposure. However, he opined that this would have been unlikely on the balance of probabilities to have materially contributed to any continuing symptoms and the persistence of symptoms was more likely to be attributable to his smoking history. He also stated that if silica dust was inhaled it may have caused some transient irritability but it would not be a significant contributing factor to the persistence of his complaints and it was entirely possible that his complaints would have occurred irrespective of his dust exposure history. He said that Mr Harris has a number of significant co-morbidities including his substantial obesity, probable obstructive sleep apnoea and his smoking which is likely to have an impact on his capacity to undertake employment.
51 Dr Hocking, Specialist in Occupational Medicine gave evidence and a report prepared by him and dated 8 June 2016 was tendered. Importantly, he was provided with the Material Safety Data Sheets, Investigation reports (not tendered), reports of Mr Kottek, Professor Pain, Dr Trembath, Dr Burdon, Associate Professor Sasse, Moe Medical Group Clinical Records and the Respiratory Lung Function Test dated 14 May 2015.
52 Dr Hocking obtained a history from Mr Harris that he was part of a team involved with installing refractory material in the boilers over a period of 17 days. By reference to the medical reports, Dr Hocking noted that when Mr Harris first consulted Dr Ambekar a few days after ceasing work the doctor recorded that Mr Harris had a blocked nose and sinuses, and on examination found a red pharynx, good air entry into the chest with a few coarse crepitations at the lung bases and no wheeze. He further noted that Dr Sasse found that Mr Harris had a background of minor breathlessness, high blood pressure and gout and on examination a minor wheeze with no localising signs. He also noted that Dr Sasse reported a restricted pattern on lung function, a normal CT scan of the chest, no evidence of COPD or fibrosis or lung cancer, a minor patch of inflammation on the bronchial wall, likely secondary to coughing and a difficult airway attributed to sleep apnoea on examination by bronchoscopy on 26 February 2014.
53 Mr Harris told Dr Hocking that he had recurrent epistaxis, difficulty breathing through his nose and had become short of breath. He also told Dr Hocking that he used to smoke 5 to 10 cigarettes a day since he was a teenager but now only smokes one or two cigarettes per week. When giving evidence and being told that Mr Harris has provided a history to others of still smoking 10 cigarettes a day, Dr Hocking said that this would still be causing implications on his respiratory tract.
54 Mr Harris told Dr Hocking that his job as a spotter required him to stand outside a 3 metre diameter boiler looking through a manhole observing a man spraying. He said that he could see the refractory dust scintillating in the air. He told Dr Hocking that he was provided with goggles but they were a poor fit and his eyes became irritated. He said that he was also provided with a P2 mask but it had a poor seal and he could feel irritation on his skin from the dust. Mr Harris told him that the extraction fans were not always working and were weak in extracting dust when they did work.
55 Dr Hocking referred to a statement he was provided with by Mr Gray, supervisor, which was not tendered. Dr Hocking reported that Mr Gray had stated that a high pressure air hose was used to deliver dry refractory compound from a hopper which was then mixed with water in the terminal nozzle and sprayed as a wet mixture onto the burners inside the boiler. Mr Gray stated that the sprayer caused disturbance of dust remnants of expended coal inside the boiler but numerous extraction fans removed the majority of the dust. During his evidence, Dr Hocking stated that if the refractory was a wet mixture, being a slurry or a paste and not a dust there would be a minimal amount of exposure to refractory ceramic fibres. He told the court that based on the information provided, Mr Harris may have been exposed to minimal refractory dust and if as suggested it was sprayed as a ‘mist” which he described as being droplets of moisture, it was possible they were inhaled into his nose or mouth but it was unlikely to get into his lungs. He agreed that the level of dust exposure cannot be accurately stated as the dust levels were not monitored.
56 As Mr Harris refused permission for Dr Hocking to perform a full examination, he only performed a limited examination and noted that he weighed 100 kg with a body mass index of 38, had a respiratory rate of 24 per minute and used a Ventolin inhaler to assist with breathing. By reference to the literature, Dr Hocking noted that silica can cause various lung diseases, typically silicosis (nodular fibrosis of the lung) after many years of exposure to respirable dust or, more rarely, an accelerated form of silicosis may occur after 2 to 5 years of intense exposure. He stated that acute silicosis is a rare consequence of exposure to free silica (silica flour) in very high concentrations causing rapid onset respiratory distress and death. He also noted that silica dust exposure has been shown to cause chronic bronchitis and chronic obstructive pulmonary disease after many years of exposure and that aluminium silicate would be classed as a ‘nuisance dust’ which also can cause chronic bronchitis. He said that crystalline silica is also a recognised cause of lung cancer.
57 Dr Hocking noted that asthma is a common long-term inflammatory disease of the airways of the lungs and is characterised by variable and recurring symptoms, reversible airflow obstruction and bronchospasm. He stated that the symptoms of this condition include episodes of wheezing, coughing, chest tightness and shortness of breath. In relation to occupational asthma he noted that there are 2 main subtypes being; allergic or sensitiser induced asthma in which immunological mechanisms are involved and irritant induced occupational asthma which is asthma that occurs from exposure to agents considered to be airway irritants, in the absence of sensitisation. Dr Hocking stated that a diagnosis of irritant induced asthma relies on a suggestive clinical history along with the demonstration of airflow limitation or airway hyper responsiveness.
58 Dr Hocking then considered other irritants to which Mr Harris may have been exposed including ‘fly ash’ and ‘bottom ash’. He said the ash is derived from the combustion of coal with ‘fly ash’ being very fine and carried away from the furnace in the hot flue gases whereas ‘bottom ash’ is primarily comprised of fused coarser ash particles and forms a residue in the boiler. When giving evidence he said that ‘fly ash’ is fine and can be inhaled into the lungs but most of it goes into the chimney whereas ‘bottom ash’ is coarser and cannot get into the lungs although it can be inhaled into the nose and mouth.
59 After referring to the opinions of Professor Pain, Dr Trembath and Dr Burdon, he opined that Mr Harris’s nasal, sinus and repeated epistaxis symptoms have not been given sufficient attention. He noted that when Mr Harris originally presented to Dr Ambekar it was recorded that he had a blocked nose and sinuses. He noted that Dr Sasse recorded repeated epistaxis and recommended and ENT opinion. Dr Hocking referred to the Material Safety Data Sheets warning that acute exposure to nuisance dust may result in upper respiratory irritation. He concluded that all of this information suggests a diagnosis of irritant rhinitis and possibly sinusitis. He believed that blood and dust from irritant rhinitis may well have been swallowed and coughed up as the red and black blood which Mr Harris described to him. He suggested that the nasal symptoms may be persisting partly from the initial irritation and partly from attempted vigorous clearing of blocked nasal passages and that the blockage of nasal passages could partly contributed to Mr Harris’s ongoing symptoms of shortness of breath.
60 In relation to the issue of causation, Dr Hocking opined that based on the evidence concerning the initial cleaning of the inside walls of the boiler with high-pressure water and the method of spraying of the refractory product, the dust Mr Harris was exposed to is likely to be old, residual dust and a mixture of silica, aluminium silicate (the residual from the refractory material which is generally regarded as a nuisance dust which may exacerbate chronic bronchitis), ‘bottom ash’ (a residue of the combustion of coal which is coarse and is mainly trapped in the nasal passage) and fresh refractory compound. Dr Hocking considered there was sufficient exposure to fugitive emission dust that it caused Mr Harris to suffer from irritating conjunctivitis and irritating rhinitis but doubted that it caused significant lower respiratory tract injury apart from possible exacerbation of chronic bronchitis due to his smoking. During cross examination, he was informed that the old refractory was removed by use of jackhammers and agreed that such a process would create dust. He told the court that he was not informed of this process. When informed that Mr Harris was working beneath the level where it was occurring and complained of the dust falling and being blown around by a wind tunnel effect caused by the openings in the boiler he agreed that if they were smaller particles and less easy to see made it more possible that these particles could lodge in the airways. In re-examination, when told that evidence had been given indicating that the dust from the removal of the old refractory by jackhammers was ‘grit like rice but smaller’ (Mr Stephens) he said this was not dust and would be hard to inhale.
61 In his report, Dr Hocking agreed with the opinion of Dr Trembath and does not consider that Mr Harris’s exposure to silica over the short period to be sufficient to cause silicosis or any other silica related diseases and no such injury was found on CT. He did not consider the exposure was sufficiently intense to cause irritant asthma as was suggested by Professor Pain. He noted that the information found on Mr Harris’s respiratory tract on bronchoscopy was attributed by Dr Sasse to coughing and he favoured this explanation over the ‘burn’ as suggested by Dr Burdon on the basis that silica and aluminium silicate are not sufficiently chemically active to cause a burn.
Conclusion
62 After considering the evidence given by Mr Harris and the lay witnesses, I find that it was probable that Mr Harris was exposed to fugitive dust and minimal refractory dust particles during his 18 day period of employment between 29 August 2013 and 21 September 2013.
63 The evidence indicates that his exposure to dust occurred as a result of;
a. the initial high-pressure cleaning of the boiler;
b. the removal of the ‘old’ refractory material by the use of jackhammers;
c. the spraying of the new refractory material which resulted in over spray and which led to a general clean-up of the residual dust halfway through the shutdown after Mr Harris had ceased employment.
64 The disturbance and distribution of the dust inside and outside the boiler resulting in dust exposure occurred because of;
a. the breeze or wind tunnel effect within the boiler;
b. the inefficient P2 masks worn by some of the workers;
c. the inefficient extraction fans;
d. the ineffective ‘plastic cocoon or bubble’ used by Veolia contractors when spraying the new refractory material.
65 The evidence of Mr Harris, Mr Hasson, Mr Savage, Mr Matthews and Mr Stephens confirms that the ‘dust’ was visible outside the boiler and that workers were suffering from eye irritation because of their exposure to it. Mr Hasson also gave evidence that he suffered from a sore throat which he attributed to breathing in dust and that his apprentice ‘coughed up blood’ as a consequence of his exposure to the dust.
66 Having accepted that Mr Harris was in fact exposed to fugitive dust and refractory dust, the issue to determine is whether the level of exposure during his 18 day employment period was sufficient to cause the injuries alleged. In determining this issue, I am mindful that regard must also be had to Mr Harris’s medical condition and personal habits before and during his period of employment with the defendant. The evidence revealed that he weighed approximately 110 kg and had a body mass index of 40 which is classified as him being ‘morbidly obese’. He was also a ‘heavy’ smoker of 44 years duration and was suffering from sleep apnoea. The lung function test conducted in 2006, 7 years prior to commencing employment with the defendant, indicated that he was suffering from a ‘mild to very mild’ (Associate Professor Sasse) or ‘mild to moderate’ (Dr Burdon) small airways obstruction at that time. It is not in dispute that his smoking habits from that time contributed to a worsening in his lung function condition. As indicated, I do not accept that he gave truthful evidence regarding his smoking habits either before or at the time he commenced employment with the defendant and find that he deliberately understated his smoking consumption in an attempt to influence the opinions of the specialists as to the effect of the exposure to dust had on his respiratory condition.
67 When considering the expert evidence, I have also had regard to the fact that the opinions expressed are to a large extent dependent on the history they obtained from Mr Harris and the information they were provided with and importantly, have been given in the absence of air quality monitoring at the workplace. Therefore, to some extent, the opinions expressed by the experts are speculative. Furthermore, there is no consensus between the experts on the question of the diagnosis of Mr Harris’s condition.
68 The diagnosis’s provided range from an airway obstruction (Dr Sasse), obstructive lung disease with an asthmatic component and severe airway irritation, with the episodic haemoptysis being a symptom of chronic bronchitis (Professor Pain), an endobronchial burn to the lower respiratory tract resulting in an extensive bronchitic process (Dr Burdon), chronic bronchitis (Dr Trembath) and irritant rhinitis, possibly sinusitis and exacerbation of chronic bronchitis (Dr Hocking).
69 The medical experts also gave differing opinions on the question of causation and the relationship between Mr Harris’s exposure to dust, ongoing symptoms and his capacity for employment. Their opinions were necessarily dependent on their acceptance of the history given to them by Mr Harris and the other material provided to them.
70 After considering the expert medical opinions and the basis on which they were formed, I prefer and accept the opinion expressed by Dr Hocking. I have reached this conclusion on the basis that;
a. He was an impressive witness and the CV attached to his report indicated that he is well qualified and has worked as a specialist in occupational medicine for almost 40 years;
b. He had the advantage, unlike the other experts, of having access to all expert reports and considered their opinions when forming his own. He also provided a plausible explanation as to the basis on which he disagreed with their opinions;
c. He considered and evaluated the initial symptoms and examination findings of both Dr Ambekar and Dr Sasse and took into account the various investigation findings;
d. He discussed and took into account the initial cleaning process of the boiler, the removal of the ‘old’ refractory by the use of jackhammers, the refractory spraying process and the possible exposure of Mr Harris to ‘fly ash’ and ‘bottom ash’ when reaching his conclusion;
e. He took into account Mr Harris’s medical condition when he commenced employment and obtained an accurate history of his smoking habits; and
f. His opinion, unlike those of Professor Pain, Dr Burdon and Dr Trembath was tested under cross examination.
71 I find that it is probable that as a result of his exposure to minimal amounts of refractory dust and fugitive dust during his 18 day period of employment that Mr Harris suffered from irritant rhinitis, possible sinusitis and a temporary and transient aggravation of chronic bronchitis, its principal cause being his smoking habits.
72 I find that the injuries he sustained arose out of or in the course of his employment between 29 August 2013 and 21 September 2013 and resulted in him being temporarily incapacitated for his pre-injury employment. After considering the examination findings of Dr Ambekar on 1 October 2013 and Dr Sasse on 11 December 2013 and Mr Harris’s comment to Dr Burdon that his symptoms had improved significantly by December 2013, I find that any work related injury and incapacity had ceased by 11 December 2013. I find that any ongoing symptoms and incapacity for employment beyond that date is due to his underlying condition which is contributed to by his obesity, sleep apnoea and his smoking habit.
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