Lean v Cosmorex Coffee Pty Limited - [2016] ACTSC 309

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Lean v Cosmorex Coffee Pty Limited
Citation:	[2016] ACTSC 309
Hearing Dates:	5, 6, 7 August, 24 September, 24, 27 November 2015
DecisionDate:	21 October 2016
Before:	Mossop AsJ
Decision:	See [175]
Catchwords:	STATUTORY DUTY – Dangerous Substances Act 2004 (ACT) –Plaintiff employed by coffee roasting company – Exposed to green coffee bean dust at workplace – Alleges that she suffered an aggravation of pre-existing asthmatic condition –– Whether green coffee bean dust is a “dangerous substance” for the purposes of the Act – Whether defendant failed to put in place a “safety management system” for handling beans required by ss 31, 34 of the Act – Whether defendant took all reasonable steps in relation to the risk – Plaintiff established breach of obligation to have safety management plan in s 31 and 34 of the Act TORTS – Negligence – Whether defendant breached its duty of care – Extent to which obligations under statutory provision relevant to duty of care – Knowledge required by statutory provisions makes risk foreseeable – Breach of duty established TORTS – Causation – Whether plaintiff’s condition caused by exposure to green coffee bean dust – Test for causation where breach of statutory duty – Not established on balance of probabilities that exposure triggered aggravation of asthma – Whether adoption of measure required to avoid breach of statutory duty would have avoided aggravation of condition – Lack of evidence that the proposed measures would have avoided aggravation of condition
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT), ss 42, 43, 45 Court Procedures Rules 2006 (ACT) Dangerous Substances Act 2004 (ACT), ss 6, 10, 11, 15, 16, 17, 19, 31, 34, 220(2)(a) Dangerous Substances (Incorporated Document) Notice 2005 (No 2) Occupational Health and Safety Act 1989 (ACT), s 223 Work Health and Safety Act 2011 (ACT), s 267
Cases Cited:	BonningtonCastings Ltd v Wardlaw [1956] AC 613 Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 CSL Australia Pty Ltd v Formosa[2009] NSWCA 363; (2009) 235 FLR 273 Govic v Boral Australian Gypsum Ltd [2015] VSCA 130 Henwood v Municipal Tramways Trust (SA) [1938] HCA 35; (1938) 60 CLR 438 John Pfeiffer Pty Ltd v Canny [1981] HCA 52; (1981) 148 CLR 218 Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 McGovern v British Steel Corp [1986] 1 ICR 608 O’Connor v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464 Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424 Sovar v Henry Lane Pty Ltd [1967] HCA 31; (1967) 116 CLR 397 Tucker v McCann [1948] VLR 222 Quality Roads Pty Ltd v Baw Baw Shire Council (No 1) [2016] VSC 477
Texts Cited:	Thomson Reuters, The Laws of Australia, vol 33
Parties:	Sharan Lean (Plaintiff) Cosmorex Coffee Pty…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] ACTSC 309
Decision Date: 21 October 2016

CaseChat Overview and Summary

The plaintiff, Lean, brought a claim against Cosmorex Coffee Pty Limited, her employer, alleging that her exposure to green coffee bean dust at work caused an aggravation of her pre-existing asthmatic condition. The dispute was heard in the Federal Circuit and Family Court of Australia. The central issue was whether the green coffee bean dust constituted a "dangerous substance" under the Dangerous Substances Act 2004 (ACT), and if the defendant failed to implement a "safety management system" as required by sections 31 and 34 of the Act. Additionally, the court needed to determine whether the defendant took all reasonable steps in relation to the risk and whether there was a breach of the duty of care under the statutory provisions.

The court ruled that the green coffee bean dust was indeed a dangerous substance under the Act, and that the defendant was required to have a safety management system in place for handling the beans. The court found that the defendant failed to implement such a system, thereby breaching sections 31 and 34 of the Act. However, the court also held that there was insufficient evidence to establish that the plaintiff's asthmatic condition was caused by her exposure to the green coffee bean dust. Although the plaintiff's condition was aggravated, the court could not conclude on the balance of probabilities that the aggravation was triggered by the exposure. Moreover, there was a lack of evidence to show that the adoption of measures required to avoid a breach of the statutory duty would have prevented the aggravation of the plaintiff's condition.

As a result, the court dismissed the plaintiff's claim for damages. The court found that while the defendant had breached its obligations under the statutory provisions, the plaintiff failed to establish that her condition was caused by the exposure to the green coffee bean dust, or that the adoption of measures to avoid the breach would have prevented the aggravation of her condition.

Orders

Orders of the court

See [175]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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