Slattery v Canowindra

[2005] NSWDDT 18

Dust Diseases Tribunal

of New South Wales

CITATION:	Slattery v Canowindra [2005] NSWDDT 18
PARTIES:	Stephen John Slattery (plaintiff) Canowindra Produce Pty Ltd (ACN 000 157 835) (defendant)
MATTER NUMBER(S):	DDT81 of 2002
JUDGMENT OF:	Duck J
CATCHWORDS:	Miscellaneous Matters :- Dust Disease Workers Compensation Act 1942 "Dust Disease" - "Injury" Workers Compensation Act 1987 "caused by" - occupational asthma farmer's lung
LEGISLATION CITED:	Workers Compensation (Dust Diseases) Act 1942 Workers Compensation (Dust Diseases) Act 1987 Work Injury Management Act 1998
CASES CITED:	E M Baldwin & Son Pty Limited v Plane (1998) 17 NSW CCR 434; Allianz Australia Insurance Limited v GSF Australia Pty Limited and Anor (2005) HCA 26 (19 May 2005)
DATES OF HEARING:	23 and 24 May 2005
EX TEMPORE JUDGMENT DATE:	05/24/2005
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr W Kearns SC with Mr A Johnson Whiteley Ironside Shillington FOR DEFENDANT Mr J Poulos QC with Mr D Toomey Hicksons

JUDGMENT:

1. Yesterday the plaintiff gave evidence relating to his exposure to various dusts at work. The hearing then stopped and we discussed the desirability of deciding as a separate issue whether in the light of his evidence and that of the doctors, whose evidence was subsequently tendered, whether an issue should be determined separately pursuant to Pt 31 r 2 of the Supreme Court Rules, that issue being whether the plaintiff suffered from a dust disease. It is important that this matter be determined at some stage and the defendant made application that it be determined now. The matter was discussed and we left yesterday with everyone thinking about the desirability of proceeding in that way. Before going further I should ask learned counsel if they are content for that issue to be determined separately now. Counsel indicate that they are now content for that matter to be determined.

2. As to the exercise of the power in Pt 31 r 2 it seems to me to be desirable. The reasons may be shortly stated. The starting point, I think, is the definition of injury in the Workers Compensation Act s 4. If what we are dealing with is a claim in respect of an injury so defined then the provisions of the Workers Compensation Act will have application to the proceedings, in particular Pt 5 of the Act. That part deals with, among other things, election between common law rights and compensation rights, modified common law damages and the like. Further, if we are concerned with such an injury the provisions of the Workplace Injury Management Act 1998 which lay out procedural matters to be observed in respect of the claim for damages for such an injury will have application. As to whether or not the injury with which I am concerned comes within the definition of injury in the Workers Compensation Act one needs to go to s 4 of the Act.

3. S 4 provides relevantly:

Injury –

(a) means personal injury arising out of or in the course of employment;

(b) includes -

………………………………………..

(c) does not include (except in the case of a worker employed in or about a mine to which the Coal Mines Regulation Act 1982 applies) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.

4. One needs then to turn to the Workers Compensation (Dust Diseases) Act of 1942 to see how it defines a dust disease. The definition is in s 3(1) of that Act. It is in these terms:

Dust disease means any disease specified in sch 1 and includes any pathological condition of the lungs, pleura or peritoneum that is caused by dust that may also cause a disease so specified.

5. The schedule to the Act includes a number of conditions, none of which this plaintiff has. One of the conditions set out in the schedule is farmer's lung. If the evidence requires the conclusion that he has suffered the injury in respect of which he claims, which is asthma, which has been caused by dust that may also cause farmer's lung then he will have suffered a dust disease within the meaning of the Workers Compensation Dust Diseases Act 1942.

6. The words "caused by" are to be construed by reference to the Act in which they appear and its objects. There has been a discussion of them in a recent judgment of the High Court of Australia in Allianz Australia Insurance Limited v GSF Australia Pty Limited and Anor (2005) HCA 26 (19 May 2005). In that case the words were read by reference to the Act in which they appeared, relevantly the Motor Accidents Act 1988 and the various amendments to that Act which restricted seriatim benefits available under it. In the present Act, that is the Workers Compensation (Dust Diseases) Act of 1942 I am unaware of any material which would require the words "caused by" to be given any operation other than the operation they have at common law. As to the principles about causation see generally Fitzgerald AJA in E M Baldwin & Son Pty Limited v Plane (1998) 17 NSW CCR 434 at 447 – 474 (30-78).

7. I turn to the evidence. The plaintiff, Mr Slattery, is a man born on 10 January 1951. He is now 54. He married in 1974. He has two adult children. He left school in 1966 at age fifteen and nine months. After working at some other jobs which have no relevance for our present purposes in 1977 he commenced working for the defendant at 33 Clyburn Street, Canowindra. He remained working there until 2001. The business there carried on was described by Dr McKenzie, one of the doctors who reported in the case, as a very large stock feed company. (See his letter of 4 September 2002). That is a sufficient description for our present purposes. After about twelve years working there, that is in about 1989, he became a foreman. His evidence disclosed that in the course of his work he was exposed to a number of grain dusts. They included dusts from wheat, oats, barley, triticale and canola. He also worked with and was exposed to dust from hay: lucerne hay, oaten hay, wheaten hay and sudan grass.

8. As to exposure to grain dusts, annexed to one of the reports of Professor D H Bryant is an extract from a book published in New York in 1999 called "Asthma in the Workplace." Chapter 32 of the book is about grain dust-induced lung diseases. The authors of the chapter are Moira Chan-Yeung, Susan M Kennedy and David A Schwartz. The material was annexed to Professor Bryant's report of 16 April 2002. Among other things the following appears (p 617):

Grain dust is generated by the abrasion of kernels when grain is being handled. It has been estimated that when passing through a typical elevator each ton of grain handled generates 3 to 4 pounds of dust.
Further at p 618 the following appears:

The physical and chemical compositions of grain dust vary depending on the geographic site, the type of grain, the wetness of the season, storage temperature and many other factors. The main components of grain dust include fractured grain kernels, fractured weed seeds, husks, storage mites, insects, bacteria, moulds, chemicals such as pesticides and insecticides and silica.

9. In addition to that exposure the plaintiff's evidence was to the effect that he was also exposed to mouldy hay and mouldy grain.

10. Exposure to grain dusts occurred in connection with the following activities at work. Firstly there was the unloading of trucks of grain into pits. Some of the trucks were tip trucks, some of the trucks were side delivery trucks. The latter created more dust. On occasions the men had to scrape the grain out of the side delivery trucks. Another activity causing exposure was removing grain from storage sheds. It was removed by augers. The grain was pushed forward to be taken up by the auger by a front-end loader. He also engaged in the cleaning up of storage sheds with a broom and later on with a blower vac. He had also to clean the sheds in preparation for their spraying with poisons. This work included blowing the roof purlins out with compressed air. Mouldy grain was encountered when the weather got in down the auger chutes and at the open ends of the sheds. The mouldy grain was stinking and dusty. Sometimes grain which had been wet dried out on top. There were occasions when the men at work had to deal with such grain 3 foot deep or thereabouts. It had to be shovelled into a front end loader and dumped in a paddock. When doing that work he said there was hardly any ventilation. Mouldy grain had also to be cleaned out from under the steel insert into the larger of the pits into which the grain was delivered prior to its being augered into silos. The silos themselves had to be cleaned out to permit them to accommodate new product. Sometimes the product was wet and that smelt terrible.

11. The plaintiff was also engaged in bagging wheaten oats for sale and sewing up the bags.

12. As regards hay the plaintiff's evidence was that he was exposed to dust at work in the following ways: He was engaged in the preparation of bales of oaten hay, straw and lucerne for export to Japan. He undertook chaff cutting. Initially the chaff came in bales which were smaller, later bigger bales were used. The bigger bales had to be broken up with pitch forks, put in a steamer and then taken to the chaff cutter. If the bale was sweated or mouldy it was downgraded. He said there was downgraded hay nearly all the time. The bales were dusty and would smell. He said of them, "The mouldy stuff used to really choke you up." Part of his duties involved maintenance of the chaff cutter, especially after the retirement of Felix Goodacre. Sometimes the men also engaged in the bagging of downgraded hay for nurseries such as those carried on by Irwin Green and Johnson. When this work was on it would engage the men for two and a half hours at a time once or twice a week. Downgraded hay was also sold for spray grass. It was apparently used on the side of the roads to help promote the growth of other plants there. Sometimes large bales of hay were broken up and reformed into concentrated bales. As to this the plaintiff said that the dust from this was shocking, you had a job to see sometimes. When there was demand for this type of product he said he would be engaged during one day per week or perhaps two days, sometimes for a couple of hours, sometimes all day. The machines which broke up the bigger bales were called teasers, he had to clean up around them. If the hay bailer was playing up it had to be closely watched. If it broke down it had to be repaired. This was dusty. The plaintiff said in 1997 a tarpaulin was rigged up. I infer that this was done to help control the dust.

13. He also worked on a machine he described as a double dumper; it compressed two bales into the size of one. About all of this he said:

The mouldy stuff had the worst effect on me, it used to leave me breathless when working hard on it.

14. There is little doubt that the plaintiff has occupational asthma. Professor Bryant says so, firstly in a report of 21 September 2001 p 2 par 7. Secondly, in a report of 14 November 2001 p 2 the last paragraph and p 3. Professor A B X Breslin says so in his report of 24 February 2003 at p 5. Dr David K M McKenzie says so in his report of 4 September 2002 at p 4.

15. There is little doubt either that the plaintiff's occupational asthma was caused by the dust he inhaled at work. See Professor D H Bryant 14 April 2001 p 3, 12 October 2002. See Professor Breslin's report of 24 February 2003 p 5 and Dr McKenzie's report of 4 September 2002 at p 4.

16. The asthma was contributed to by the exposure to mouldy hay and mouldy wheat. See Professor Bryant's report of 10 February 2003. See Professor Breslin's report 5 November 2004 p 4 par 3.

17. In this connection I wish to refer to what was said by Dr McKenzie in his report of 4 September 2004 at p 4 where he thought that such a connection was possible and where in the short report of 18 June 2003 he professed himself to be in agreement with Professor Breslin.

18. There is a further proposition which is contended for by Professor Bryant in his report of 1 November 2004 at p 2 and that is that the plaintiff's asthma was caused or materially aggravated by exposure to mouldy hay and mouldy wheat.

19. The other thing that ought to be said, I think, about Professor McKenzie's report of 18 June 2003 is that clearly enough the reports of Professor Bryant and Professor Breslin had been sent to him for comment. He contented himself by saying he agreed with Professor Breslin and made no comment at all about anything Professor Bryant had to say. I infer that he had no bone to pick with him.

20. The next proposition which emerges from the medical material is that farmer's lung is caused by mouldy hay. Professor Breslin says so, report 5 November 2004 p 4 par 7. Dr McKenzie says so, 23 October 2002 p 2 or by implication says so. Dr Nicholas O'Ryan says so. He is the GP, and said so in his short report of 4 November 2002.

21. It may be accepted from the available evidence that the plaintiff has occupational asthma, that it was caused by the grain dusts he inhaled at work, that the asthma was contributed to by exposure to mouldy hay and mouldy wheat; further, that the asthma was caused or materially aggravated by exposure to mouldy hay and mouldy wheat. It may also be accepted that farmer's lung is caused by mouldy hay. I conclude that the dusts which have caused the plaintiff's asthma could also have caused farmer's lung. Although they did not they could have. I conclude therefore that the plaintiff's asthma is a Dust Disease as defined in the Workers Compensation (Dust Diseases) Act 1942 s 3(1). I conclude further that the plaintiff's condition is excluded from the definition of injury in s 4 of the Workers Compensation Act by the terms of that definition. That is I find that the plaintiff has in fact suffered a dust disease and that the regimes of the Workers Compensation Act 1987 and the Work Injury Management Act 1998 have no application to this claim for damages.

Mr W Kearns SC with Mr A Johnson instructed by Whiteley Ironside Shillington appeared for the Plaintiff

Mr J Poulos, QC with Mr D Toomey instructed by Hicksons appeared for the Defendant