Britt v Manildra Flour Mills (Manufacturing) Pty Limited [2006] NSWDDT 3

Dust Diseases Tribunal of New South Wales

CITATION : Britt v Manildra Flour Mills (Manufacturing) Pty Limited [2006] NSWDDT 3

PARTIES : Ross Michael Britt Manildra Flour Mills (Manufacturing) Pty Limited

MATTER NUMBER(S) : DDT00022 of 2005

JUDGMENT OF: Duck J

Miscellaneous Matters :- Schedule 1 Workers Compensation (Dust Diseases) Act 1942 CATCHWORDS: Farmer's Lung Pathological condition of the lungs caused by dust that may also cause a disease specified in Schedule 1.

LEGISLATION CITED: Workers Compensation (Dust Diseases) Act 1942 Workplace Injury Management and Workers Compensation Act 1998

DATES OF HEARING: 24 February 2006

DATE OF JUDGMENT: 03/01/2006

FOR PLAINTIFF: Mr D R Campbell, SC with Ms T Moisidis instructed by Campbell Paton and Taylor LEGAL REPRESENTATIVES: FOR DEFENDANT Mr A Scotting instructed by Moray and Agnew

JUDGMENT:

18 Dust Diseases Tribunal of New South Wales Matter Number DDT00022 of 2005 Ross Michael Britt v Manildra Flour Mills (Manufacturing) Pty Limited 1 March 2006

DUCK J JUDGMENT 1. The plaintiff has commenced proceedings for damages against his employer the defendant. The statement of claim alleges that between February 1993 until November 2002 the plaintiff, in the course of his employment by the defendant , was exposed to and inhaled large quantities of dust including dust emanating from wheat, flour and other material used or generated by the defendant in the course of milling and/or refining wheat grain and wheat grain related products. The plaintiff pleads he has contracted occupational asthma as a result of exposure to the grain dust. 2. Pursuant to consent orders the Tribunal is to determine as a preliminary matter the following issues: i. Can the exposure to flour and/or wheat dust cause any of the diseases in schedule 1 of the Workers Compensation (Dust Diseases) Act 1942, specifically Farmer's Lung? ii. If the answer to I is no, can the plaintiff maintain the present proceedings without having satisfied the procedural requirements contained in the Workplace Injury Management and Workers Compensation Act 1998. 3. Consideration of the issue should commence with the definition of injury contained in the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998. In both Acts injury is defined so that the Acts do not apply to a dust disease. A dust disease is defined in the later Act in this way: "dust disease" has the same meaning as it has in the Workers Compensation (Dust Diseases) Act 1942. 4. Pursuant to s 4 of the Workers Compensation Act 1987 the definition of injury, including the exclusion of a dust disease, continues as follows: …………As defined by the Workers Compensation (Dust Diseases) Act 1942 or the aggravation, acceleration, exacerbation or deterioration of a Dust Disease as so defined. 5. Provided the plaintiff's condition is properly to be regarded as dust disease so defined his action for damages is not subject to the constraints as to damages imposed by the Workers Compensation Act 1987 or to the procedural requirements of the Workplace Injury Management 1998. 6. The Workers Compensation (Dust Diseases) Act 1942 defines Dust Diseases as follows: Dust Disease means any disease specified in schedule 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. 7. One of the diseases specified in schedule 1 is Farmer's Lung. 8. It is common ground that this plaintiff does not suffer from Farmer's Lung. 9. What is at issue is whether or not exposure to the relevant dusts at the defendant's mill have caused a pathological condition of the lungs (ie asthma) and whether those dusts may also cause Farmer's Lung. 10. For the purposes of determining the present issue what has been pleaded may be accepted as fact. In addition short evidence has been adduced. The additional evidence has been contained in a folder which was handed up and marked as an exhibit. The folder contains both medical evidence and factual evidence. 11. As regards factual evidence there is an internal memo of Manildra Flour Mills bearing date 24 June 2005. The subject of the memo is Waste Disposal. The memo is as follows: From Friday 1st July 2005 Manildra Flour Mills will implement major changes to the way we dispose of all waste products. From that date – 1. All paper and cardboard will be bundled………….Foil and plastic coated paper cannot be recycled or composted and such waste will be sent to Council landfill. 2. All plastic will be segregated……… 3. All scrap metal including aluminium ………into the waste metal bin. 4. All 'green' waste will be segregated for the removal to a composting situation. 5. All wheat spills will be treated as follows – a. dry wheat will be returned to the wheat hopper. b. Clean conditioned wheat will be delivered with appropriate notice to the Speciality Plant. c. Conditioned wheat, collected in a process where dirt or foreign items may also be involved will be delivered to a new screening process for ultimate return to the Speciality Plant. d. Mouldy or sprouted wheat will be removed to the composting area. 6. All flour spills will be delivered to the new screening process for ultimate return to the speciality plant with the exception of mouldy/wet flour which will be removed for composting. 7. All brand spills………… 8. The only waste which will be sent to Council Landfill will be items which cannot be recycled, reworked or composted.………… 9. There will be designated bins for rework, screening, composting and recycling. It will not be accepted to use these bins for any other that their label suggests……… 12. I infer that mouldy or sprouted wheat and mouldy/wet flour are common problems at the defendant's mill. I infer also that they have been such over the years including during the time in respect of which the plaintiff pleads exposure to dusts in the course of his employment. 13. There are some factual matters about which the parties have expressed agreement. They are as follows: 1. That exposure to wheat and flour dust is capable of causing occupational asthma. 2. That the appropriate common law jurisdiction in which to pursue any valid claim of this nature is the Dust Diseases Tribunal. 3. That the plaintiff does not and has never suffered from the condition known as Farmer's Lung. 14. There is a report from Dr Maneesha Dinker Patel bearing date 15 November 2002. The doctor says that the plaintiff attended her surgery on 2 October 2002 with a breathing problem and coughing spasms. Her diagnosis was that of excerbation of asthma. She went on to say he has not had an attack of asthma prior to this incident. As regards prognosis the doctor wrote that it was guarded "………as inhalation of wheat dust is not good for his respiratory system". 15. There is a report from Professor Saul Zwi, consultant physician which bears date 28 November 2002. Under the heading Diagnosis and Opinion the Professor wrote: Mr Britt is a 28 year old man whose asthma started three years ago while working with wheat and flour as a mill hand. His symptoms of tight chest and wheezing gradually worsened until recently when he was moved to a much less dusty open area where he feels '100 per cent better'. However examination today revealed wheezes in his chest . In my opinion Mr Britt suffers from occupational asthma due to wheat and his condition is entirely consistent with his history. 16. A report has been provided by Professor ABX Breslin a specialist physician which bears date 23 March 2003. It was provided to Royal and Sun Alliance Workers Compensation. Professor Breslin's opinion is expressed as follows. Opinion 1. Based on the history this man has had significant exposure to wheat dust and to flour. His exposure only occurred while working at the Manildra Flour Mill. 2. He now has occupational asthma………… 3. Workers exposed to grain dust are at risk of developing airways disease. About 25 per cent of grain harvesters develop occupational asthma. It is considered moulds from the grain are the major cause but during storage the grain may be contaminated by other organisms endotoxins and storage mites and weevils, any of which may be responsible for occupational asthma. Occupational asthma in grain handlers may be associated with the toxins mentioned above but also may occur because of immune mediated reactions. Exposure to flour may also cause asthma and this is particularly seen in bakers. Although this particular patient Mr Britt did not work in the Mill producing or packing the flour he often went into the Mill to clean it up and I believe he was at risk. Thus I have no doubt that this man has occupational asthma as a consequence of his work at Manildra Flour Mill and through that work exposure to grain dust and flour………… A little later Professor Breslin went onto say