Norrie Williams v Dust Diseases Board [2006] NSWDC 38

New South Wales District Court

CITATION: Norrie Williams v Dust Diseases Board [2006] NSWDC 38

HEARING DATE(S): 11/09/2006 - 12/09/2006 EX TEMPORE JUDGMENT DATE : 10/12/2006

JURISDICTION: Civil (Residual Jurisdiction)

JUDGMENT OF: Neilson DCJ at 1

DECISION: Appeal Dismissed; Exhibits to remain in file

CATCHWORDS: Worker's Compensation (Dust Diseases) Act 1942 - Appeal under s 8I - Whether plaintiff has asbestosis or asbestosis related pleural disease - Indicia of disease diagnosis considered - Whether plaintiff discharges onus of proof

LEGISLATION CITED: Worker's Compensation (Dust Diseases) Act 1942

PARTIES: Norrie Williams (Plaintiff / Appellant) Dust Diseases Board (Defendant)

FILE NUMBER(S): RJ607/04

COUNSEL: Mr C Heazlewood (Plaintiff / Appellant) Mr J Sheller (Defendant)

JUDGMENT

1 HIS HONOUR: This is an appeal pursuant to s 8I of the Worker's Compensation (Dust Diseases) Act 1942 from a decision of the Worker's Compensation (Dust Diseases) Board made on 8 July 2004. On that date the medical authority established under the Act, certified that the plaintiff had not contracted a dust disease within the meaning of the Act. On this appeal the plaintiff seeks to establish that he is suffering from either asbestosis or an asbestosis related pleural disease. Both those conditions are contained in Schedule 1 of the Act.

2 There is no dispute that the plaintiff was exposed to asbestos. It is common ground that the plaintiff has pleural plaques which confirm the plaintiff's exposure to asbestos. Perhaps the most graphic description of the plaintiff's exposure to asbestos is contained in the history given by the plaintiff to Dr Anthony Johnson, who examined the plaintiff at his home at Yamba on 4 August 2005. The plaintiff told Dr Johnson that he had been employed over a number of years as a labourer at the Baryulgil Asbestos Mine. Dr Johnson's history continues thus: "He did various jobs during his time at the asbestos mine. He initially worked in a quarry, breaking up the rock for two years with a sledgehammer. He helped the crusher and also helped to fill bins with crushed rock. Later he helped store the asbestos fibre in storage bins and then helped bag the fibre. He did recall to me that some of the bags that they used to put the asbestos in had some blue fibre in them. They would shake them out before putting the asbestos from Baryulgil into it. He also worked in the mill that was beside the quarry. He would feed material with a shovel into the crusher. The end product was then bagged. The product would come down a chute into Hessian bags and it was very dusty. A new mill was built while he was there. The asbestos product would come down in chutes into bags which he would then sew up and place a new bag under the chute. The bags were then put onto a conveyer. He recalls he spent at least three years doing this bagging. He also involved in cleaning up the mill and working on the crusher. He does not recall doing jack hammering or drilling. He cleaned out bins that had contained asbestos material. He stopped working in 1978 and has not worked since. During his time at Baryulgil, he estimates he had daily asbestos exposure. He lived in Baryulgil Square and built a fibro home himself. The fibro material was supplied by the mine. Originally he lived in a tin hut with bags as doors until he built the fibro home. The table they used was a sheet of fibro. Truckloads of waste from the mill were dumped onto the square to be used as covering for the ground. He also used the bags that the asbestos had come in for blankets."