Davies v Manildra Flour Mills (Manufacturing) Pty Limited [2006] NSWDDT 23

Dust Diseases Tribunal of New South Wales

CITATION : Davies v Manildra Flour Mills (Manufacturing) Pty Limited [2006] NSWDDT 23

PARTIES : Anthony Joseph Davies Manildra Flour Mills (Manufacturing) Pty Limited

MATTER NUMBER(S) : 152 of 2003

JUDGMENT OF: Duck J

Dust Diseases Tribunal :- Dust disease Occupational asthma CATCHWORDS: Farmer's lung Whether a dust which caused asthma might also have caused farmer's lung Damages

Workers' Compensation (Dust Diseases) Act 1942 LEGISLATION CITED: Workers' Compensation Act 1987, s 4 Workplace Injury Management and Workers Compensation Act 1998

Britt v Manildra Flour Mills (Manufacturing) Pty Limited (2006) NSW DDT3; CASES CITED: Hampton Court Limited v Crooks (1957) 97 CLR 367 at 371; CSR Limited v Darcy (1996) 40 NSW LR 721; Griffiths v Kerkemeyer (1977) 139 CLR 161

DATES OF HEARING: 20 September 2005 and 19, 21, 22 and 23 June 2006

DATE OF JUDGMENT: 07/07/2006

EX TEMPORE JUDGMENT DATE : 07/07/2006

Mr A J Bartley, SC with Mr G Sarginson instructed by Higgins and Higgins appeared for the plaintiff LEGAL REPRESENTATIVES: Mr A C Scotting instructed by Moray and Agnew appeared for the defendant

JUDGMENT:

DUCK J: 1. The plaintiff was born on 23 April 1964. He is now 42 years old. He has worked for the defendant Manildra Flour Mills (Manufacturing) Pty Limited since 1981 ie from age 17. He worked in the defendant's flour mill at Manildra. He alleges that in his employment he was negligently exposed to and inhaled dust particles and fibres which have caused the condition known as occupational asthma. He seeks damages. 2. The reason the proceedings are brought in the Dust Diseases Tribunal is that the plaintiff asserts that his occupational asthma comes within the definition "dust disease" set out in the Workers' Compensation (Dust Diseases) Act 1942. That definition is in the following terms: 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. One of the diseases specified is farmer's lung. It is not suggested that the plaintiff has farmer's lung. Rather he contends that the dusts which he has ingested have caused the occupational asthma and that they may have also caused farmer's lung. 3. The defendant's amended defence admits employment from 14 January 1981 to date. It also admits that it was in breach of a duty owed to the plaintiff and that the breach caused the plaintiff to develop occupational asthma. 4. The defendant disputes that the plaintiff's occupational asthma comes within the definition of dust disease in the Workers' Compensation Dust Diseases Act 1942. If the defendant is successful on that issue then it is common ground that the plaintiff has not complied with the modified common law provisions contained in the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998. 5. It is helpful in this regard to remember that the definition of injury in the Workers Compensation Act 1987 s 4 is in the following terms: In this Act – Injury – (a) means personal injury arising out of or in the course of employment; (b) includes – (i) ……………….. (ii) ……………….. (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. 6. A similar argument was had in a matter of Britt v Manildra Flour Mills (Manufacturing) Pty Limited (2006) NSW DDT 3. Mr Britt was a work mate of the plaintiff's. In Mr Britt's case the matter was determined as a preliminary matter pursuant to consent orders made in the Tribunal. The question was resolved in Mr Britt's favour. The defendant has appealed and the matter is set down for argument in the Court of Appeal some time in September to the best of my knowledge. The evidence in the present case is a little more extensive than was the evidence in Mr Britt's case. 7. The plaintiff's first job at the mill was filling hessian bags with flour, weighing them and sowing them up. The flour came down through a chute into the bags. This was associated with some dust (T12). During the time he was doing that job namely the first two or three years the plaintiff went into other areas in the mill (T12). As time passed, he said, he worked in every part of the mill. (T12) 8. He described how wheat was delivered by truck and rail to the mill. It was dropped into a hopper from which an elevator took it to storage in the wheat silos. The wheat went into tempering bins into which water was introduced. (T13) The purpose of wetting the wheat was to permit it to be milled without shattering. The tempering bins varied in size but they held about 60 to 100 tons of wheat. As later evidence demonstrated in the tempering bins water comprised up to 12.5 per cent by weight of the contents of the bin. The plaintiff said (T13) that condensation ran down the in side of the bins. It took three or four hours to fill a bin. (T14) 9. Before the wheat was milled there was a second tempering. The wheat was moved to the next lot of bins. Further water is added at that stage. (T14) To get the wheat out of the first tempering bin the wheat is released through the bottom of the bin onto conveyors. (T14) The plaintiff said the bins were tall and skinny and perhaps 60 foot high although he wasn't sure of the height. (T14) 10. Then the wheat apparently goes from the second tempering bin into the first break bin. (T15) Then it is crushed, then it goes through a second break. The by-product from the first break mill is bran. That is the outside of the wheat. After going through the second break mill the wheat is close to flour. Any that is not in the appropriate state is sent back through the mill again. About this aspect of the treatment of the wheat the plaintiff said at T16 lines 14 to 17 "there's four break rollers which is still breaking the wheat up and after that they call them flour, the rest of it sort of coming up to flour then, and there's probably a dozen other rolls for it to go through back and forward before it becomes flour." 11. The better quality flour is white. The lesser quality flour is not as white and has small bran particles in it (T16). Bleach and chlorine are added to some of the flour to make sponge flour which is the whitest of the lot. (T16) Whoever does the milling, and this included the plaintiff, the responsibility includes making sure the chemicals are in the chemical mixer and fed out at the desired rate to the flour being milled. (T16) 12. As time passed the plaintiff was rotated around three jobs. They were flour milling, mixing plant operator who worked on the wheat silos, and storeman . (T16) He worked on a three week roster. He said at the foot of T16 "I work three weeks on the wheat and three weeks in the mill" . And about store work he said: "Store was just loading the flour or any trucks that come in for mill mix or bran or whatever, loading, and unloading trucks". (T17) The mill had three shifts per day and operated twenty four hours per day seven days per week. (T17) When working at the wheat silos, the plaintiff said: "my job was to test the wheat and unload all the wheat into the appropriate silos." (T17) The main storage silos at the mill were big and round and held thousands of tons. There were four of those and one a little bit smaller. (T18) When working in that part of the mill the plaintiff's duties included operating the elevators that transported the wheat from the hoppers into the huge silos. (T18) He said there was dust associated with that. The machinery actually leaked wheat dust. (T18) As wheat was dumped into the hoppers there was dust. (T18) Sometimes wheat was shot as it arrived. If it was accepted it was simply unloaded. If it was rejected, I imagine, although it is not entirely clear, that it was simply taken away. The plaintiff noticed that his breathing was being affected after a couple of years. (T18) He said it was just a slow sort of progress. He noticed: "Just a shortness of breath and dry cough and that was the main sort of thing and just a sort of irritation in my chest." 13. The plaintiff married on 6 May 1989. He was having breathing problems by that time. He had been playing rugby league with the Manildra Rhinos but he stopped playing in the year that he married. He had seen doctors about his breathing by that time. He had also had time off work because of breathing difficulties. (T18) 14. When the wheat was transported from the big silos to the tempering bins there were sometimes blockages of the bins (T19). They had to be unblocked. About the blockages the plaintiff said at T19: Once the water had been added to the wheat in first temps the wheat wants to hold, it doesn't want to run naturally because it's had that water added, it doesn't want to run through the holes at the bottom. The plaintiff said that at the bottom of the silo there are holes,