New South Wales Court of Appeal CITATION: Manildra Flour Mills (MFG) Pty Ltd v Ross Michael Britt [2007] NSWCA 48 HEARING DATE(S): 2 March 2007 JUDGMENT DATE: 16 March 2007 JUDGMENT OF: Mason P at 1; Handley AJA at 2; Einstein J at 36 DECISION: 1. Appeal allowed with costs.; 2. Set aside the answer of the Dust Diseases Tribunal to question (i) referred for separate determination.; 3. In lieu thereof answer the question as follows: The worker's occupational asthma caused by the flour mill dust he inhaled at the defendant's flour mill will constitute a dust disease as defined in s 3(1) of the Workers Compensation (Dust Diseases) Act 1942 as amended if and only if the dust he inhaled was also capable of causing Farmer's Lung.; 4. Proceedings returned to the Tribunal to be heard and determined according to law.; 5. The plaintiff is to pay the defendant's costs of the separate hearing.; 6. The respondent is to have a certificate under the Suitors' Fund Act 1951. CATCHWORDS: DUST DISEASES – statutory definition – Farmer's Lung – occupational asthma caused by flour dust – whether dust may also cause Farmer's Lung – causative potential actual or theoretical Dusts Diseases Tribunal Act 1989 LEGISLATION CITED: Workers Compensation (Dust Diseases) Act 1942 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 CASES CITED: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 PARTIES: Manildra Flour Mills (MFG) Pty Ltd (Appellant) Ross Michael Britt (Respondent) FILE NUMBER(S): CA 40166 of 2006 COUNSEL: A S Sullivan QC/A C Scotting (Appellant) D Campbell SC/T Moisidis (Respondent) SOLICITORS: Moray & Agnew (Appellant) Campbell Paton & Taylor (Respondent) LOWER COURT JURISDICTION: Dust Diseases Tribunal LOWER COURT FILE NUMBER(S): DDT 00022 of 2005 LOWER COURT JUDICIAL OFFICER: Duck J LOWER COURT DATE OF DECISION: 1 March 2006 LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWDDT 3 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40166 of 2006 MASON P HANDLEY AJA EINSTEIN J 16 MARCH 2007 MANILDRA FLOUR MILLS (MFG) PTY LTD v ROSS MICHAEL BRITT CATCHWORDS DUST DISEASES – statutory definition – Farmer's Lung – occupational asthma caused by flour dust – whether dust may also cause Farmer's Lung – causative potential actual or theoretical FACTS The plaintiff suffered from occupational asthma as a result of his exposure to flour dust at the defendant's flour mill. The Workers Compensation (Dust Diseases) Act 1942 defined dust disease as "any pathological condition of the lungs … that is caused by dust that may also cause a disease so specified" in Sch 1. Occupational asthma was not a dust disease specified in Sch 1 but Farmer's Lung was. In some, but not all, circumstances exposure to flour dust is capable of causing Farmer's Lung. The plaintiff contended that his asthma was therefore a dust disease as defined. Farmer's Lung is very rare in Australia and there had been no report of the disease affecting flour millers. There was no evidence that the dust in the defendant's flour mill could cause Farmer's Lung. In answer to a preliminary question the Dust Diseases Tribunal held that the plaintiff's asthma was a dust disease as defined because some flour dust, in some circumstances, could cause Farmer's Lung. On appeal HELD: (1) The definition was not concerned with theoretical possibilities but with the properties of the dust to which the plaintiff was exposed; (2) The plaintiff's occupational asthma would only be a dust disease as defined if the flour dust he inhaled was itself capable of causing Farmer's Lung. ORDERS 1. Appeal allowed with costs. 2. Set aside the answer of the Dust Diseases Tribunal to question (i) referred for separate determination. 3. In lieu thereof answer the question as follows: The worker's occupational asthma caused by the flour mill dust he inhaled at the defendant's flour mill will constitute a dust disease as defined in s 3(1) of the Workers Compensation (Dust Diseases) Act 1942 as amended if and only if the dust he inhaled was also capable of causing Farmer's Lung. 4. Proceedings returned to the Tribunal to be heard and determined according to law. 5. The plaintiff is to pay the defendant's costs of the separate hearing. 6. The respondent is to have a certificate under the Suitors' Fund Act 1951. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40166 of 2006 MASON P HANDLEY AJA EINSTEIN J 16 MARCH 2007 MANILDRA FLOUR MILLS (MFG) PTY LTD v ROSS MICHAEL BRITT Judgment 1 MASON P: I agree with Handley AJA. 2 HANDLEY AJA: This is an appeal by leave granted on 25 September 2006 from the decision of Judge Duck in the Dust Diseases Tribunal on 1 March 2006 answering a preliminary question in favour of the respondent (the worker). 3 The worker, who was and possibly still is employed in the appellant's flour mill at Orange, commenced proceedings in January 2005 alleging breaches of duty in exposing him to flour and wheat dust (flour mill dust) which caused his occupational asthma. The claim is within the jurisdiction of the Tribunal because occupational asthma is within para (b) of the definition of dust-related condition in s 3(1) of the Dusts Diseases Tribunal Act 1989. 4 Preliminary questions were referred for determination pursuant to a consent order of 13 February 2006. They were: "(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 question (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?" 5 The first question arises because Farmer's Lung is listed in Sch 1 to the Workers Compensation (Dust Diseases) Act 1942 (the 1942 Act). It was common ground that the worker was suffering from occupational asthma but does not and never has suffered from Farmer's Lung. It was also common ground that in some circumstances flour mill dust can cause Farmer's Lung. On this basis the worker argued that his occupational asthma fell within the definition of dust disease in s 3(1) of the 1942 Act which includes: "any pathological condition of the lungs, pleura or peritoneum, that is caused by dust that may also cause a disease so specified (ie in Schedule 1)." 6 It was common ground that occupational asthma was a pathological condition of the lungs, specifically the bronchial tubes (blue 13), which can be caused by flour mill dust. It is also common ground that flour mill dust can cause Farmer's Lung when it carries a sufficient concentration of certain pathogens (thermophilic actinomycetes) (blue 27). This pathogen affects the gas exchanging tissues but does not cause occupational asthma (blue 27). 7 The appellant's case is that the inquiry is focussed on the particular dust which the worker inhaled. On its view the question is whether the dust which the worker inhaled "may also cause" Farmer's Lung. 8 The answer does not affect the jurisdiction of the Tribunal but will affect the procedural and substantive law. If his occupational asthma is within the definition in the 1942 Act the action will be governed by its ordinary procedure, and if he succeeds he will be entitled to common law damages. 9 If his occupational asthma is not within that definition the action will be subject to the procedural conditions in the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and the restrictive damages regime under the Workers Compensation Act 1987 (the 1987 Act) following the 2001 amendments. 10 This flows from exclusions in similar terms in the definitions of injury in s 4 of the 1987 Act and s 4(1) of the 1998 Act. The definitions, in a "means and includes" form, contain exclusions for dust diseases as defined in the 1942 Act, and the aggravation etc of such a disease. 11 Chapter 7 Pt 2 of the 1998 Act requires a claims procedure to be followed by an intending plaintiff who seeks work injury damages. It applies to claims made after the commencement of the 2001 amendments even if the injury was received before their commencement (s 259(1)). Section 261 requires claims to be made within certain time limits but it is not clear whether it applies since s 12A of the Tribunal Act excludes the operation of the Limitation Act 1969 "or any other statute of limitations". 12 Part 6 Court proceedings for work injury damages will also apply. Where there is a dispute as to whether the degree of permanent impairment resulting from an injury is sufficient for an award of damages the worker cannot commence court proceedings unless that has been assessed by an approved medical specialist under Pt 7 (s 313). Section 314(1)(a) provides that the necessary degree of permanent impairment is at least 15%. 13 Section 315 requires the worker to serve a pre-filing statement and s 318A(1) and (4) then provide for compulsory mediation to be completed before proceedings can be commenced. 14 If the worker's occupational asthma is not a dust disease within the 1942 Act it will be an injury for the purposes of the 1987 Act and within Div 3 of Pt 5 dealing with modified common law damages (s 151E(1)(a)). The worker may recover damages for his economic loss but not for his non-economic loss (s 151G), and will not recover at all unless his degree of permanent impairment exceeds 15% (s 151H(1)). 15 It is common ground that the procedural pre-conditions imposed by the 1998 Act were not satisfied before the action was commenced and the worker's degree of permanent impairment was not assessed. It is also common ground that if the worker's occupational asthma is not a dust disease within the 1942 Act the proceedings will have to be dismissed. 16 The primary judge said (red 28): "I accept the dust which caused the occupational asthma was the dust at the defendant's flour mill. The dust which caused the occupational asthma is capable of causing Farmer's Lung. In this regard I note the defendant's internal memo instructing employees what to do with mouldy or sprouted wheat … and mouldy wet flour … I accept the scientific evidence … to the effect that the dust from mouldy wheat can cause Farmer's Lung." 17 There was evidence to support these findings, insofar as they were findings of fact, and as such they cannot be disturbed. 18 The evidence of the late Dr Julian Lee, a former member of the Dust Diseases Board, which the Judge also accepted, was that Farmer's Lung is virtually unknown in this country, that there have been no reports of Farmer's Lung affecting flour millers in the Australian medical literature and no cases affecting flour millers have been reported to the Dust Diseases Board. 19 The findings referred to raised the question of law which is central to the appeal. It emerges from the Judge's reasoning: "I accept the dust which caused the occupational asthma was the dust at the defendant's flour mill. The dust which caused the occupational asthma is capable of causing Farmer's Lung" (emphasis supplied). 20 It will be apparent that the meaning of "the dust" shifted in this passage. "The dust" in the flour mill that the worker inhaled was the only dust that could cause him injury. Dust which he did not inhale could not cause him injury and is irrelevant. His Honour continued: " The dust which caused the occupational asthma is capable of causing Farmer's Lung" (emphasis supplied). 21 Flour mill dust contaminated with an appropriate concentration of pathogens can cause Farmer's Lung, but not all flour mill dusts can do this. If the definition is concerned, as a practical question, with the dangerous properties of the dust the worker inhaled there was no evidence that this was "capable of causing" Farmer's Lung. 22 If the definition is concerned with theoretical possibilities which have no application to the dust which the worker inhaled it was satisfied on the medical evidence. On that construction evidence that the dust in the mill had this dangerous property is unnecessary. The primary judge held that this was the correct construction. I respectfully disagree. 23 The point is a narrow one that depends on a close analysis of the text of the definition. The relevant part reads: "… and includes any pathological condition … that is caused by dust that may also cause a disease so specified." (emphasis supplied) 24 Dust is defined as "dust of such a nature that the inhalation thereof may give rise to a dust disease". There was no evidence that the dust the worker inhaled was "of such a nature that the inhalation thereof may give rise to" Farmer's Lung. The evidence that dust of a different nature could do this does not satisfy this definition. It is not just a question of the concentration of the dust. It is flour mill dust of a different nature with a different composition. It is the contaminant carried on the dust that causes Farmer's Lung not the dust which carries it. 25 The first limb of the definition of dust disease is satisfied if the disease, in this case occupational asthma, "is caused by dust". This must refer to the actual dust the worker inhaled. Other dust which he did not inhale could not cause him to suffer anything. The requirement for causation in fact anchors this limb of the definition in the actual and not the theoretical. 26 The definition then asks whether that dust "may also cause a disease so specified". Since it is the same dust the requirement for causative potential must again be actual, not theoretical. 27 In my judgment therefore the worker's occupational asthma caused by flour mill dust will only be a dust disease as defined in the 1942 Act if the dust he inhaled was capable of causing him to suffer from Farmer's Lung. The appellant is therefore entitled to have the substance of the first preliminary question answered in its favour. 28 On this basis the appellant asked us to decide that there was no evidence in the preliminary hearing capable of satisfying that test and the Court should answer the second question in its favour and dismiss the action. 29 There was no evidence before the primary judge that the dust inhaled by the worker at the mill "may cause", that is was capable of causing, Farmer's Lung. However in my judgment this does not entitle the appellant to a favourable answer to question (ii). 30 Question (i) did not ask the Tribunal to decide whether the worker's exposure to dust was capable of causing Farmer's Lung. It asked the Court to determine a general question of mixed fact and law divorced from the worker's actual exposure, and its possible consequences. 31 The answer to the question would define, in accordance with law, the question of fact the tribunal of fact would have to determine: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 156 per Glass JA. 32 Although the worker's case before the primary judge included some general evidence about the presence of mouldy flour and wheat at the mill, there was no evidence that this occurred in or near the areas where he worked, or the quantities involved, or the frequency of these occurrences. There was also no evidence, lay or scientific, about dust levels in the parts of the mill where he worked. 33 The preliminary questions did not include a question directed to the existence or otherwise of evidence that the worker had been exposed to dust that could cause Farmer's Lung. Without a favourable answer to such a question, the appellant is not entitled to a favourable answer to question (ii). 34 The worker should not be deprived of the opportunity of proving, if he can, that the level of pathogens in the dust in this mill to which he was exposed during the relevant years was capable of causing Farmer's Lung. 35 The following orders should be made: 1. Appeal allowed with costs. 2. Set aside the answer of the Dust Diseases Tribunal to question (i) referred for separate determination. 3. In lieu thereof answer the question as follows: The worker's occupational asthma caused by the flour mill dust he inhaled at the defendant's flour mill will constitute a dust disease as defined in s 3(1) of the Workers Compensation (Dust Diseases) Act 1942 as amended if and only if the dust he inhaled was also capable of causing Farmer's Lung. 4. Proceedings returned to the Tribunal to be heard and determined according to law. 5. The plaintiff is to pay the defendant's costs of the separate hearing. 6. The respondent is to have a certificate under the Suitors' Fund Act 1951. 36 EINSTEIN J: I agree with Handley AJA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.