Nawaf Hawchar v Dasreef Pty Ltd - [2009] NSWDDT 12

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 2005

CASES 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 326

DATES 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 2009

LEGAL 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:

Dust Diseases Tribunal of New South Wales

Matter Number 7323 of 2007

Nawaf Hawchar

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…

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: [2009] NSWDDT 12
Decision Date: 22 May 2009

CaseChat Overview and Summary

The dispute in Nawaf Hawchar v Dasreef Pty Ltd involved the claimant, Nawaf Hawchar, who sought compensation for a dust disease he claimed arose from his employment with Dasreef Pty Ltd. The case was heard by the Dust Diseases Tribunal of New South Wales, where the tribunal was tasked with determining the validity of Hawchar's claim for compensation under the Dust Diseases Act 1994. The central issue was whether scleroderma, the disease Hawchar was diagnosed with, could be classified as a "dust disease" as defined under the Act, and if so, whether it was caused by exposure to dust in his employment with Dasreef Pty Ltd.

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.

Orders