Dust Diseases Tribunal
of New South Wales
CITATION: Nawaf Hawchar v Dasreef Pty Ltd [2009] NSWDDT 12 PARTIES: Nawaf Hawchar (Plaintiff)
Dasreef Pty Ltd (Defendant)MATTER NUMBER(S): 7323 of 2007 JUDGMENT OF: Curtis J at 1 CATCHWORDS: DUST DISEASES TRIBUNAL :- Definition of dust disease - scleroderma LEGISLATION CITED: Workers’ Compensation Act 1987
Workers’ Compensation (Dust Diseases) Act 1942
Workplace Injury Management Act 1998
Evidence Act 1995
Civil Liability Act 2002
Dust Diseases Tribunal Act 1989
Uniform Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005CASES CITED: Mahoney v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522
Quazi v Quazi [1980] AC 744
Frost v Amaca Pty Ltd [2004] NSWCA 358
JLT Scaffolding International Pty Ltd (In Liq) v Silva, New South Wales Court of Appeal, 30 March 1994, unreported
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 282
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538, Ramsay v Watson (1961) 108 CLR 642,
E.M.I. (Aust) Ltd v Bes [1970] 2 NSWR 238
Malec v J.C Hutton Pty Ltd (1990) 169 CLR 638
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364
The Ritz Hotel Ltd v Charles of the Ritz Ltd (No 8) (1987) 12 IPR 75
Wattyl Australia Pty Ltd v McArthur [2008] NSWCA 326DATES OF HEARING: 27,28,29,31 October 2008, 3,4,5,6,7, November 2008,
26 Februrary 2009, 2,4,5, March 2009, 16 April 2009, 13 and 15 May 2009
DATE OF JUDGMENT:
22 May 2009LEGAL REPRESENTATIVES: Mr A J Bartley SC with Mr F Tuscano instructed by Keddies Lawyers appeared for the plaintiff
Mr T G R Parker SC with Mr D T Miller instructed by Moray and Agnew appeared for the defendant
JUDGMENT:
18
Dust Diseases Tribunal of New South Wales
Matter Number 7323 of 2007
Nawaf Hawchar
v
Dasreef Pty Ltd
22 May 2009
CURTISJ
JUDGMENT
Introduction
1. Mr Nawaf Hawchar worked as a labourer and stone cutter for Dasreef Pty Ltd (Dasreef) between 21 October 1999 and May 2005. In this occupation he was exposed to silica dust generated by the application of angle grinders, hammers, chisels and abrasives, to cut and shape sandstone. He suffers from the diseases of silicosis and scleroderma and claims damages from Dasreef, asserting that his injuries were caused by the inhalation of excessive quantities of silica dust, and would not have occurred had Dasreef exercised reasonable care for his safety, and discharged its statutory duties to protect him from the dangers of excessive dust.
2. In answer to the claim, Dasreef says that Mr Hawchar cannot prove that his diseases were caused by his employment, that Dasreef exercised reasonable care in protecting him from the dangers of silica dust, that it complied with its statutory duties, and that, in any event, the silicosis from which Mr Hawchar suffers is not disabling.
A preliminary issue
Is Mr Hawchar's claim for damages in respect of scleroderma subject to the modified common law damages…
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- Case
- [2009] NSWDDT 12
- Decision Date
CaseChat Overview and Summary
The tribunal had to address the definition of "dust disease" as outlined in the legislation, focusing on whether scleroderma met the criteria set forth. The definition in the Dust Diseases Act 1994 specified particular conditions that needed to be satisfied for a disease to be recognised as a dust disease. The court examined the medical evidence presented and the relationship between scleroderma and dust exposure, considering both the nature of the disease and the circumstances of Hawchar's employment. The tribunal also considered expert medical opinions and the existing body of medical literature regarding scleroderma and its potential link to dust exposure.
In its decision, the tribunal concluded that scleroderma did not fit within the definition of a "dust disease" as provided by the Act. The tribunal found that the disease's causation was not sufficiently linked to dust exposure in the workplace as required by the statutory definition. Therefore, the tribunal rejected Hawchar's claim for compensation, determining that he did not meet the criteria for compensation under the Dust Diseases Act 1994. Consequently, the tribunal dismissed the claim, finding that there was insufficient evidence to establish a causal connection between Hawchar's employment and his development of scleroderma.
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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