Slattery v Canowindra [2005] NSWDDT 18

Dust Diseases Tribunal of New South Wales

CITATION : Slattery v Canowindra [2005] NSWDDT 18

Stephen John Slattery (plaintiff) PARTIES : Canowindra Produce Pty Ltd (ACN 000 157 835) (defendant)

MATTER NUMBER(S) : DDT81 of 2002

JUDGMENT OF: Duck J

Miscellaneous Matters :- Dust Disease Workers Compensation Act 1942 "Dust Disease" - "Injury" Workers Compensation Act 1987 CATCHWORDS: "caused by" - occupational asthma farmer's lung

Workers Compensation (Dust Diseases) Act 1942 LEGISLATION CITED: Workers Compensation (Dust Diseases) Act 1987 Work Injury Management Act 1998

E M Baldwin & Son Pty Limited v Plane (1998) 17 NSW CCR 434; CASES CITED: 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

FOR PLAINTIFF: Mr W Kearns SC with Mr A Johnson Whiteley Ironside Shillington LEGAL REPRESENTATIVES: 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: