SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Lean v Cosmorex Coffee Pty Limited

Citation: [2016] ACTSC 309

Hearing Dates: 5, 6, 7 August, 24 September, 24, 27 November 2015

Decision Date: 21 October 2016

Before: Mossop AsJ

Decision: See [175]

Catchwords: STATUTORY DUTY – Dangerous Substances Act 2004 (ACT) –Plaintiff employed by coffee roasting company – Exposed to green coffee bean dust at workplace – Alleges that she suffered an aggravation of pre-existing asthmatic condition –– Whether green coffee bean dust is a “dangerous substance” for the purposes of the Act – Whether defendant failed to put in place a “safety management system” for handling beans required by ss 31, 34 of the Act – Whether defendant took all reasonable steps in relation to the risk – Plaintiff established breach of obligation to have safety management plan in s 31 and 34 of the Act

TORTS – Negligence – Whether defendant breached its duty of care – Extent to which obligations under statutory provision relevant to duty of care – Knowledge required by statutory provisions makes risk foreseeable – Breach of duty established

TORTS – Causation – Whether plaintiff’s condition caused by exposure to green coffee bean dust – Test for causation where breach of statutory duty – Not established on balance of probabilities that exposure triggered aggravation of asthma – Whether adoption of measure required to avoid breach of statutory duty would have avoided aggravation of condition – Lack of evidence that the proposed measures would have avoided aggravation of condition

Legislation Cited: Civil Law (Wrongs) Act 2002 (ACT), ss 42, 43, 45Court Procedures Rules 2006 (ACT)Dangerous Substances Act 2004 (ACT), ss 6, 10, 11, 15, 16, 17, 19, 31, 34, 220(2)(a)Dangerous Substances (Incorporated Document) Notice 2005 (No 2)Occupational Health and Safety Act 1989 (ACT), s 223Work Health and Safety Act 2011 (ACT), s 267

Cases Cited: Bonnington Castings Ltd v Wardlaw [1956] AC 613Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410CSL Australia Pty Ltd v Formosa [2009] NSWCA 363; (2009) 235 FLR 273Govic v Boral Australian Gypsum Ltd [2015] VSCA 130Henwood v Municipal Tramways Trust (SA) [1938] HCA 35; (1938) 60 CLR 438

John Pfeiffer Pty Ltd v Canny [1981] HCA 52; (1981) 148 CLR 218Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506McGovern v British Steel Corp [1986] 1 ICR 608O’Connor v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424Sovar v Henry Lane Pty Ltd [1967] HCA 31; (1967) 116 CLR 397Tucker v McCann [1948] VLR 222Quality Roads Pty Ltd v Baw Baw Shire Council (No 1) [2016] VSC 477

Texts Cited: Thomson Reuters, The Laws of Australia, vol 33

Parties: Sharan Lean (Plaintiff)

Cosmorex Coffee Pty Limited (Defendant)

Representation: CounselR Crowe SC (Plaintiff)

A Muller (Defendant)

SolicitorsMaliganis Edwards Johnson (Plaintiff)

Sparke Helmore (Defendant)

File Number: SC 157 of 2014

MOSSOP AsJ:

Introduction

1. The plaintiff has sued the defendant, a roaster of coffee beans, for damages alleged to have arisen from exposure to the dust of green coffee beans. The plaintiff’s claim alleges a breach of the defendant’s statutory duty under the Dangerous Substances Act 2004 (ACT) (DS Act) as well as negligence on the part of the defendant.

The plaintiff’s work and health history

2. The plaintiff was born in 1950 and was 64 years old at the date of the hearing. She commenced smoking at the age of 16. She smoked from the age of 16 to 28, 31 to 41, 45 to 55, a total of at least 32 years. She quit smoking in 2006.

3. The plaintiff had a diverse work history in many parts of Australia. Her work history is characterised by a variety of generally low skilled jobs and movement from city to city. She left school in Adelaide in year 11 and worked as a checkout operator in supermarkets in Adelaide until 1971. There were a few months in 1971 when she worked as a bar attendant in Sydney. Between 1971 and 1976 she worked in bars or as a waitress in Adelaide. She completed year 12 in 1976 and did two years of a Diploma of Teaching (Early Childhood). She did not complete that qualification, withdrawing after the end of the second year. In 1980 and 1981 she worked at the

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Phoenician Bakery in Adelaide doing mainly delivery work, but also a few weeks working on the night shift in the bakery itself. In 1981 she moved to Sydney and did some work in bars. In 1982 she moved to Melbourne and in September 1983 got a job with Ego Pharmaceuticals as a chemical compounder. That work involved mixing the ingredients of skin and hair care products. In September 1986 she moved to Darwin. She worked as a casual employee of G & R Wills clothing company in its warehouse. In 1989 she became a licensee of the Northern Territory TAB and operated outlets at Palmerston and then Karama until February 1996. In March 1996 she travelled overseas for six months. Upon her return she stayed in Cairns before moving to Melbourne at the end of 1996. She worked on the counter at a dry-cleaning business there until the end of 1997 when she moved to Cairns. She stayed in Cairns until November 2004, first working for Yakka Clothing then working as a cashier at the Cairns airport for Travelex. In November 2004 she moved to Canberra. She was able to obtain some part-time casual work at Travelex in Canberra. In September 2005 she obtained six months work in the Australian Public Service performing administrative duties. After that she took a break from work and in May 2007 she moved to Perth. There she worked in three different warehouses doing picking and packing work and in one of those she also was responsible for driving a delivery van. One of the reasons why she took the warehouse work was because she considered herself to be overweight. She had been diagnosed in 1998 as suffering from an underactive thyroid and had consequently put on weight. As a result of having a physical job in the warehouse and exercising at a gymnasium she managed to reduce her weight to 62 kg within around four months. She described herself as at 2009 as feeling “trim taught and terrific”.

4. She had previously suffered from asthma. She suffered from it up until the age of six years. She then did not suffer from it and was able to participate in school sport effectively during the latter part of primary school and also during her high school years. In 1987 she suffered from an asthma attack involving shortness of breath and tightness in her bronchial system. She was prescribed Ventolin and used it for approximately one and a half weeks. She suffered a further asthma attack in June 2006. She attended her general practitioner and was prescribed a Seretide puffer and a course of cortisone tablets. She used these for a week before weaning herself off the medication. After this asthma attack she also stopped smoking.

5. On 1 August 2009 she returned to Canberra. Her goddaughter was aware of the defendant’s business and suggested she apply for employment. The plaintiff provided the defendant with her curriculum vitae and was offered employment.

6. I will describe the nature of the defendant’s business and the operations undertaken at its premises in more detail below. Her job at the defendant’s warehouse involved different activities including picking packed coffee and other products for delivery to customers, packing roasted beans using a packing machine, assisting in the loading of green beans into various hoppers and cleaning the floor of the warehouse (particularly near those processes which led to the floor becoming dirty).

7. The plaintiff worked for the defendant from 12 August 2009 until 8 February 2012. Her decision to leave her employment with the defendant was unrelated to any health issues. Rather, she had become tired of the work environment and the attitude, so far as she perceived it, of some of the other staff there.

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8. Some weeks after commencing work with the defendant she noticed that she was suffering from dry eyes. She made sure that she drank more water but that did not fix the problem so she used eyedrops to moisten her eyes. She used those eyedrops for the rest of the period that she worked for the defendant. After finishing work with the defendant she noticed that her eyes were no longer dry and she did not continue to use the eyedrops.

9. In approximately August or September 2011 the plaintiff noticed that she became “puffed” when she undertook physical activity. She did not seek medical advice at that stage although in November 2011 on a holiday in Hawaii she had a more significant episode of shortness of breath. She was walking on the beach at Waimea Bay and found it very difficult to breathe. The severity of the episode scared her. On 5 and 13 December 2011 she returned to her general practitioner, Dr Choong, and, in the course of the consultation which was principally related to another condition, she raised the issue of shortness of breath and was prescribed Ventolin and Serotide. She used those for a couple of weeks and felt better.

10. On 9 January 2012 the plaintiff gave notice that she would be resigning from her job with the defendant on 29 February 2012. She was no longer enjoying the job and decided that it was time to move on. As it turned out she actually finished on Wednesday, 8 February 2012. The next day she sought casual work through a company known as Skilled Labour Hire and on the Friday was placed in a position with Revlon, doing light work over labelling products and gift packs. That work was casual on-call work which she did approximately two days per week on average. She also obtained other work through a different employment agency with Australian Pharmaceutical Industries and also with Lexdata. The work with Lexdata commenced in May 2012 and as at the date of the hearing she was doing casual work with full-time hours preparing documents for scanning.

11. The plaintiff’s shortness of breath gradually became more constant. She noticed that after a steamy shower she found it difficult to breathe and that she felt that it was as though she was breathing through a fur ball. In December 2012 she consulted her new general practitioner, Dr Saburova, complaining of a worsening shortness of breath. She underwent spirometry tests at the practice and on 12 December 2012 the general practitioner reviewed her x-rays and advised that she had chronic obstructive pulmonary disorder (COPD). She was prescribed a medication called Onbrez. Initially she found the result of Onbrez to be “wonderful”, however, the benefits of that medication wore off so that they were not as great as when she initially used it. She continued using the medication until April 2013.

12. In March 2013 the plaintiff told her doctor that she was still getting some benefit from Onbrez and was thinking to move to the Gold Coast. She thought that the warmer weather might help her breathing as she would not have the chilly winds and antigens that were present in the Australian Capital Territory. She did move to the Gold Coast in May 2013, but was unable to find work and returned after a period of three weeks. During her time on the Gold Coast she did not notice any improvement in her condition. She returned to the ACT and indicated her availability for employment to Skilled Labour Hire and Lexdata. She pursued some naturopathic and Chinese medicine remedies but found them to be of no help.

13. Towards the end of 2013 the plaintiff was asking herself how she could have been so well and then become so unwell. She noted that she had had no problem when she

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ceased smoking and identified in her own mind that the only thing that had changed was her employment with the defendant. She did some internet research which indicated to her that green coffee beans may have been affecting her health. After first seeing her solicitor she consulted her general practitioner, stating that she thought her COPD may be related to work hazards. She sought a referral to a respiratory physician and was ultimately referred to Dr Bill Burke who she saw in February 2014. In March 2014 Dr Burke diagnosed her with mixed lung disease with significant emphysema due to smoking and marked asthma. She was prescribed with Symbacort. Approximately 10 days after that the sensation of breathing through a fur ball disappeared and she noticed a significant improvement in her condition. In June 2014 Dr Burke also prescribed Seebri for her although she did not notice an improvement from that medication. Between August and October 2014 she attended a pulmonary rehabilitation course at the Canberra Hospital. That was an exercise program designed to address aspects of diet and lifestyle that would assist in her management of her condition as well as providing an exercise regime.

The operations at the defendant’s warehouse

14. The business of the defendant involved the roasting and sale of coffee beans and ground coffee on a wholesale and retail basis. In addition to roasting and selling coffee the business also sold associated products such as cups, syrups and tea. It was also involved in the sale and service of coffee machines. Shortly before the plaintiff commenced with the defendant it had moved into new premises. Those premises also included a retail cafe.

15. The process involved in roasting the coffee beans was described in some detail in the evidence and was also the subject of a demonstration at the defendant’s premises. While the layout of the defendant’s premises was altered in late 2010 the process in relation to roasting of beans remained the same.

16. Unroasted or green coffee beans were delivered to the premises on pallets. On those pallets were a number of 60 kg hessian bags containing green beans. Roasting occurred on two days each week. On each day approximately 1000 kg of beans were roasted. In preparation for roasting, the green beans needed to be elevated so that they could be put in hoppers from which they were then dispensed in the appropriate quantities for roasting. The hoppers are approximately two metres tall. Green beans go into the top of the hoppers and can then be dispensed from the bottom of the hoppers. In order to elevate the beans so that they could be put into the top of the hoppers two methods were used. The first method involved a “Floveyor” or bean elevator. This is a machine approximately three metres tall which takes the beans from a hopper at the base, conveys them up a tube and then ejects them in the direction of the top of the hopper. A photograph of the device is Exhibit 2 and a demonstration of its use shown in videos which became Exhibit 7. Those demonstrations in Exhibit 7 differed from the manner in which the Floveyor was used when the plaintiff was working for the defendant in that the hessian tube at the top end of the Floveyor, which had the effect of suppressing dust at the point where the beans were discharged, was not present when the plaintiff worked for the defendant.

17. The second method by which beans were loaded into the hoppers was to drive a forklift with the pallet carrying the bags of beans to a point adjacent to the hopper and then elevate the forks and hence the pallet to a point close to the top of the relevant hopper.

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A worker would stand on the elevated pallet and simply empty the bags of beans directly into the hopper.

18. Different hoppers contained different types of green bean. Coffee beans from the different hoppers could be mixed so as to achieve different blends of roasted coffee. This was done by measuring out beans from the different hoppers and putting the appropriate quantity of the different types of beans into the roaster. Beans would be taken from the bottom of the relevant hopper and put into plastic tubs. Those plastic tubs were moved on a trolley to the roaster. They were then emptied into a tray at the base of the roaster from which they would be conveyed in a vacuum tube to the top of the roaster for roasting.

19. Once the beans had been roasted they were then conveyed to a different set of hoppers. Between one roasting day and the next it was necessary to empty these hoppers by packing the roasted beans which were stored in them. This was done in a packing area.

20. Two or three days per week the plaintiff would work in the packing area. This was located about two or three metres from the roaster and three or four metres from the receptacle from which green beans were vacuumed into the roaster. The beans were packed into 1 kg, 500g and 250g packets. The process involved getting the correct weight of coffee in each packet and then sealing it.

21. When not involved in either of these tasks the plaintiff would be involved in picking and packing particular customer orders or doing cleaning work. The picking and packing was done at a workbench and involved gathering coffee and other items for particular customer orders. The other items were stored on pallet racking in the workshop. The cleaning work involved keeping, in particular, the floor clear. That was particularly necessary in those areas where beans were worked with because beans or ground coffee could fall onto the floor. The plaintiff used a vacuum cleaner as well as a broom about 750 mm wide. The vacuum cleaner was not strong enough to easily pick up dropped beans and it was for that reason that she used a broom. She would clean up as needed during the course of the day, particularly where beans had fallen onto the floor. That was necessary because the green beans were quite hard and would, like a piece of gravel, form an obstacle for any of the wheeled devices used in the warehouse. She would also clean for about 15 minutes at the end of the day.

Dust

22. While it is clear that the process of getting green beans into the hoppers and from the hoppers to the roaster generated green coffee bean dust, there was conflicting evidence given by the witnesses called by the plaintiff and defendant as to the amount of dust. Any assessment of the true position is made more difficult by the fact that the descriptions given in evidence bear no necessary relationship to any particular level of dust and the best finding that can be made is impressionistic and descriptive. Further, the perception of dust levels and the actual levels of dust to which any individual was exposed would be significantly affected by where the person worked and what particular activities they undertook.

23. The plaintiff gave evidence that dust from the green beans was created by the process of conveying them into the storage hoppers and also during the process of moving them from those hoppers to the roaster. Her evidence was that the dust would settle on items within the warehouse. Dust would also be disturbed when she was sweeping

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the floor. She noticed that her clothing and hair had dust on them at the end of the day and she would notice that she had accumulated dust in her ears and nose as well as, if it was hot, seeing dust on her skin.

24. Maria Muse worked in the retail section of the business as a barista. She would have to go into the warehouse area on a daily basis, but only for short periods to collect the supplies that she needed. Her observation was that there was residue on people’s clothes on a roasting day or when there had been preparation for a roasting day. She said that there was also dust around the roaster where green beans were handled in order to get them into the roaster. She said that was the case during the whole time that the plaintiff worked at the business. She had been dismissed from the business because of her behaviour.

25. Helen Tonacia worked in the administration area and the coffee shop, both of which were separated from the warehouse by walls. She gave evidence that the warehouse area was quite dirty. Her hands got dirty, she got a film on her glasses and a dirt film in her hair, eyes and ears at the end of every day. She was no longer employed by the defendant and had left on bad terms.

26. Michael Sloggett was employed by the defendant in May 2010 and ceased full-time work with the defendant in January 2012, just before the plaintiff departed. He subsequently returned to do some consulting work with the defendant. He had previous experience with a coffee roaster in Sydney, Karmee Coffee, where he had worked for four years. He became operations manager with the defendant. He had loaded green beans on many occasions. He said that a visible amount of dust was produced over a short period. He wore a dust coat and mask if he was loading the beans. During the period of his employment dust levels were “quite steady”. In the normal course of his duties it was only when physically pouring the green beans into a hopper or into the roaster that he got dust on his clothing. He could not recall seeing dust like that shown on the motorcycle in Exhibit 10 (referred to below at [31]) on a workbench because the surfaces were wiped down or otherwise cleaned.

27. Anne Sciannimanica, one of the owners of the business, gave evidence that she did not notice any difference in dust levels in the warehouse between August 2009 and February 2012. She had not noticed dust on her clothing from performing her usual duties with the defendant although that did not involve a significant amount of work in the warehouse. She said that workbenches were wiped down daily and that there was no dust in the office area.

28. Attilio Sciannimanica, the other owner of the business, gave evidence that between 2009 and 2012 there was an increase in dust because there was an increase in production. He experienced dust on his clothing when performing coffee roasting or coffee loading duties, but not when performing office duties. He did get coffee dust in his hair if loading or roasting, but not in his eyes or ears. He observed dust on work surfaces but his policy was that they would be cleaned during the last half hour of each day. He noticed dust on his glasses when he was working directly over the Floveyor.

29. Observation of the bean loading process on the view undertaken on 5 August 2015 demonstrated the production of dust as a consequence of that process. The observed process differed from that in place during the plaintiff’s employment, because the use of the hessian tube at the Floveyor’s outlet now confined the spread of dust at the top of the Floveyor.

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30. The data recorded by Robson Environmental in 2014 (see [44] below) is consistent with there being a spike in dust levels as a consequence of particular activities being undertaken in the warehouse, namely green bean loading and roasting.

31. Evidence was given in relation to the petrol tank of a motorcycle shown in Exhibit 10. That motorcycle was located near the back doors of the warehouse, some distance from the green bean hoppers. Mr Sciannimanica said that when given notice of the plaintiff’s claim in November 2013 he directed that it not be cleaned in order to demonstrate the accumulation of dust within the warehouse. He put a note on it directing that it not be touched. Only a lawyer involved in the case could not resist the temptation, hence the finger mark shown in Exhibit 10. The level of dust shown on the petrol tank is consistent with there being only a modest accumulation of dust over time in areas which were not routinely cleaned.

32. During 2010 the layout of the work areas within the warehouse was altered. The layout before the rearrangement was shown in Exhibit 6 and the layout afterwards shown in Exhibit 8. It did not substantially change the relationship between the plaintiff’s principal place of work in the area around what was described as the “work bench” and the dust generating activities around the green coffee bean hoppers and roaster.

33. As pointed out above, it is difficult to make any useful findings of fact in relation to the level of green coffee bean dust. However, generally speaking, I prefer the evidence of the witnesses for the defendant to that of the plaintiff. In my view, the plaintiff’s evidence tended to overemphasise the amount of dust. The evidence of Mr and Mrs Sciannimanica, which I accept, indicated that the plaintiff had a tendency to be very focused on cleanliness and hence this is likely to have affected her description of dust levels. Further, I consider that, having regard to the events which have occurred, her description of the dust levels is likely to be somewhat overstated. Clearly the loading and unloading of the hoppers generated green coffee bean dust. So too did the loading of the coffee roaster although the coffee roaster had a system for capturing that dust. Other non-green coffee bean dust was generated during the roasting process. In the ordinary course of a day, dust would accumulate on the working surfaces which were cleaned each day. The amount of dust which accumulated in any particular area would be related to the distance from the dust generating locations around the hopper or the roaster. Persons immediately involved with the loading and unloading of the hopper or the loading of beans into the roaster would get dust on their clothing, on their skin and in their hair. The plaintiff would get some exposure to dust as a consequence of her sweeping activities. Other persons less closely associated with the dust generating activities in the warehouse might notice some dust on their hair, clothing or glasses during the course of the day. Notwithstanding the focus on dust for the purposes of this case, it was not a dominant feature of the workplace.

Air conditioning and ventilation

34. Although there was an air-conditioning system installed in the warehouse, that was not routinely used to ventilate the premises. It was, however, used in the latter parts of the plaintiff’s employment to heat the premises on cold winter mornings. When it was hot, one of the roller doors at the back of the warehouse was lifted up about 30 cm so as to permit some fresh air to get into the building.

35. Because of the heat of the building in summer the plaintiff suggested, in January or February 2010 or 2011, to Mr Sciannimanica that some “whirly vents” be installed so as to let out some of the heat and dust. While Mr Sciannimanica said that it would be a

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good idea, nothing was done. After Mr Sloggett was engaged and the plaintiff, in April or May 2010, mentioned to him the possibility of having “whirly vents” installed so as to let out some of the heat and dust. Once again he said it sounded like a good idea. The plaintiff had seen an advertisement in a Sydney newspaper and brought it in to him. Nothing further was done. In both of these conversations the emphasis appeared to me to be on managing the summer heat within the premises and the issue of dust removal was a subsidiary one.

36. There was no mechanical extraction directed specifically to the area involved in loading and unloading the green bean hoppers.

37. Having regard to the evidence about how hot and cold the warehouse was and the use of the door for loading vehicles, it is likely that there was a significant degree of air turnover within the warehouse area. However, apart from that, it is not possible to make more detailed findings about the extent of passive or mechanical ventilation of the warehouse area.

Introduction of a dust management policy

38. Up until mid-2011 the person principally responsible for loading the hoppers was Ray Dewesk. It is clear that Mr and Mrs Sciannimanica had considerable difficulty getting him to adopt appropriate practices when loading the hopper. He would load the hoppers whilst standing on a pallet that had been elevated by a forklift, an obviously hazardous approach which he was told not to use by Mr and Mrs Sciannimanica whenever they were aware of him doing it. He had a disagreement with Mr Sciannimanica about the use of the hessian tube on the Floveyor and, because of his views, the tube was not used. Similarly he did not use the dust mask and coat which was available even though he was told to do so by Mr and Mrs Sciannimanica. As a consequence of Mr Dewesk’s approach, on those occasions when the plaintiff assisted him with the use of the forklift she did not wear any personal protective equipment.

39. At some point after the plaintiff left the defendant’s employment, the defendant adopted a modified system for loading green beans into the hoppers by using the hessian tube on the end of the Floveyor. This had the effect of confining the green beans that were ejected from the top of the Floveyor to within the tube until they were within the hopper, reducing the escape of dust.

40. During the period of the plaintiff’s employment the defendant had no documented dust management policy. Mr Sciannimanica described that there was such a policy, but it was not documented in a notice displayed within the workplace. By the time of the hearing a dust management policy was in place and displayed within the warehouse. The dust management policy contained three sections dealing with green bean silos, the coffee roaster and the warehouse generally. In relation to the green bean silos the policy was as follows:

When loading the grey silos, staff concerned are to wear a provided dust coat and use the provided facial dust masks. When the carton of the dust masks runs down to a minimum, a new box of dust masks must be purchased.

Only double elastic masks are to be purchased and used, single elastic masks are not appropriate to the task.

It is expressly prohibited to engage in loading operations without a dust mask.

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Green bean coffee bags are to be handled with care and either unstitched at the top or carefully along the line of stitching. The bags must be tipped into the Floveyor hopper from the side rather than from a height above the hopper (which would create more dust).

The exit chute at the top of the Floveyor must have a sock fitted at all times, in order to extend the exit level to inside the top of the silo, rather than above the silo.

The sock must be inspected at regular intervals and replaced when necessary to keep it operating in an efficient manner.

During operation, the level of green beans in the Floveyor hopper must be kept above the intake hole to avoid back draft of dust out the bottom. At the end of loading when the low level of beans exposes the intake hole, cover the hopper to prevent the back draft.

Any accumulation of dust around the loading area must be cleaned at regular intervals. If not weekly, then no less frequently than every fortnight.

Operators must wear the supply of ear muffs during operation of the Floveyor.

41. In summary, this aspect of the policy requires a mask and a dust coat to be worn during green bean loading, a sock to be fitted on the Floveyor, management of the Floveyor to minimise dust generation and cleaning the loading area. The section of the policy dealing with the warehouse requires it to be cleaned weekly.

Evidence of occupational hygienists

42. Both the plaintiff and defendant tendered reports from occupational hygienists. Those reports went to:

(a) the scientific literature available to demonstrate the occupational hazards posed by exposure to green coffee beans and castor bean dust;

(b) the capacity to categorise green coffee bean dust under the “NOHSC approved criteria” and hence as a “dangerous substance” for the purposes of the DS Act;

(c) the levels of respirable and inhalable dust within the defendant’s premises;

(d) whether there was any accepted standard for levels of green coffee bean dust in a workplace; and

(e) measures that were available to reduce the level of dust within those premises.

43. The plaintiff relied upon an expert report of Carl Strautins, an occupational hygienist. The defendant relied upon two reports prepared by John Robson and Nicola Power, both occupational hygienists. Mr Strautins and Ms Power gave oral evidence.

44. Ms Power and Mr Robson undertook an assessment of airborne particulates within the defendant’s premises between 7 April and 22 May 2014. This was done at the request of the defendant and using an aerosol monitor which measured the respirable dust concentrations in four locations within the defendant’s building. This involved static monitoring. It was therefore not an appropriate means of measuring or estimating the personal exposure of any individual worker. That monitoring showed that in the warehouse area there was a peak in respirable suspended particulates during green bean loading as well as during grinding and roasting. The report made recommendations as follows:

1. Controls should be implement to reduce coffee dust exposure to workers to as low as is reasonably practical.

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a. This could best be completed by enclosing or partially enclosing systems to reduce the dust produced and/or by using extraction ventilation to remove dust from the working area. Any system should be designed by a ventilation engineer or other appropriately qualified person.

b. Priority should be given to dust produced from green coffee beans as they are dustier then roasted coffee beans and have a higher concentration of antigens. Sampling within the processing areas clearly indicated that the highest levels of dust were produced during roasting; particularly sample roasting, and during green bean loading.

c. Good housekeeping practices should be maintained to keep dust levels within the workplace low. Cleaning should be undertaken regularly and be conducted in a manner that does not increase the dust load in the air, for example; the use of high efficiency particulate air (HEPA) vacuum cleaners, and wet mopping rather than dry sweeping.

2. Consideration should be given to conducting pre-employment allergy testing to identify workers who may have relevant sensitivities. Safe Work Australia dictates that workers who are sensitised to a particular substance should not be further exposed to the substance. Consultation with an occupational physician or other medical specialists will give a better idea of whether this would be practical.

45. The first expert witness report (by Mr Robson and Ms Power) identified the measured mean respirable dust concentrations during particular sampling periods. It then compared the mean respirable dust concentrations measured with those reported in the scientific literature. Those comparisons have the potential to be misleading because the scientific papers, where they identified the measurement of the respirable fraction of the coffee dust, did not describe the environment in which they were measured in detail and may or may not have had equivalent proportions of green coffee dust, as opposed to roasted coffee dust, to those in the defendant’s premises.

46. The report identified that there was no specific occupational exposure standards for coffee dust in Australia or overseas and there is currently insufficient data available to determine a scientifically supported safe exposure level.

47. It identified that health risks posed to employees in the plaintiff’s circumstances could involve irritant effects, inflammation or lung overload caused by exposure to high dust levels or allergic or hypersensitivity reactions.

48. The report then discussed those different types of effects. It concluded that the irritant effects would be transient and that there was no evidence that could be found in the scientific literature of the occurrence of non-transient irritant symptoms associated with exposures to any level of coffee bean dust. It concluded that inflammation or lung overload would not arise based upon the respirable dust concentrations measured at the premises. In relation to allergic or hypersensitivity reactions, the report stated that coffee dust was a respiratory sensitiser that can induce airway sensitivity causing occupational asthma. The report identified that as a matter of general principle there is no safe level of exposure to a substance to which a person is sensitised. Workplace exposure standards are not intended to protect sensitised individuals because the practicalities of implementing controls to reduce exposures to zero are not reasonable. The report identified that controls that the defendant’s workplace were not adequate to protect against sensitisation, however, also stated “this would not be a reasonable expectation”.

49. The second report identified that green coffee beans could be classified as a sensitiser pursuant to Risk Phrase R42 of the “Approved Criteria for Classifying Hazardous

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Substances”. The Approved Criteria for Classifying Hazardous Substances is a document approved by the National Occupational Health and Safety Commission and is picked up by the DS Act where it is referred to as the “NOHSC Approved Criteria”: see [68]-[69] below. Mr Robson and Ms Power indicated a disagreement with Mr Strautins’ opinion that a limit of 0.5 mg/m³ as inhalable dust was appropriate. That is because there was no current occupational exposure standard and there were a range of levels set for other plant-based respiratory sensitisers that were significantly higher than the 0.5 mg/m³ figure for flour dust and Western red cedar dust which had been adopted by Mr Strautins.

50. The report also identified that care must be taken in reading the scientific literature in relation to green coffee bean exposure because many studies appear to classify transient symptoms such as coughing, sneezing and a runny nose as sensitisation effects, but that the symptoms would not be characterised as such under the Approved Criteria for Classifying Hazardous Substances.

51. The report of Mr Strautins identified that the likelihood of injury could be reduced by maintaining a level of 0.5 mg/m³ in addition to health monitoring. He identified that the degree of injury could be limited by preventing the plaintiff, who had a history of asthma, from being exposed to an asthmagen or removing her from exposure to the respiratory sensitiser if there were significant changes or symptoms that indicated respiratory injury. He recorded the scientific literature which identified coffee dust as being associated with the respiratory symptoms, including asthma and changes in lung function. He also identified that a dust which was a respiratory sensitiser with a Risk Phrase R42 under the NOHSC Approved Criteria would trigger the operation of the DS Act.

52. He expressed the opinion that, having regard to the information in the public domain that identified green coffee beans as a non-negligible hazard to health, specialist advice ought to have been sought. That should have included a review of relevant scientific papers, consideration of exposure standards for similar plant-based respiratory sensitisers, a review of current exposure levels with the prevalence of respiratory symptoms or changes in lung function and “consultation with industry associations and government workplace health and safety regulators”.

53. He identified that the scientific literature does not indicate a level of exposure where there is a documented level of no adverse effect. He recorded that flour dust and wood dust from Western red cedar had an exposure standard of 0.5 mg/m³ as an inhalable particulate level for those dusts. He therefore suggested that as being a reasonably practicable level to minimise risks. He referred to the level identified in two previous scientific papers. He estimated that based on his inspection of the premises in February 2015 the exposure to dust would be between 0.25 mg/m³ and 1 mg/m³. That was based on his inspection, discussions with the plaintiff and experience in undertaking dust measurements. The basis or methodology for arriving at those figures was not further disclosed.

54. He expressed the opinion that health monitoring ought to have been undertaken prior to a worker being exposed to a respiratory sensitiser and that specialist advice should have been sought in relation to workers with a history of asthma. In the event that such monitoring disclosed significant symptoms or changes then the plaintiff should have been removed from exposure to limit any further respiratory injury.

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55. In oral evidence he explained that the respirable fraction was dust less than 10 microns in diameter whereas the inhalable fraction was dust less than 100 microns in diameter. He identified that it was the inhalable fraction that was relevant to an asthmatic response, as that occurred in the upper airways and was not dependent upon penetration to the smallest airways.

56. He identified that static monitoring was not sufficient to permit any assessment of the exposure of an individual because the activities of the individual would significantly affect that person’s level of exposure.

57. He expressed the opinion, based upon the relationship between the respirable and inhalable fractions disclosed in one of the scientific papers, that an estimate of the inhalable fraction could be derived by multiplying the respirable fraction by 12 to 15 times. That appears to be a figure based upon locations were green bean dust would have been present as opposed to roasted coffee dust where the multiplier would be lower.

58. He agreed that there was no Australian Standard for occupational exposure. He thought he might have read that there was a Norwegian exposure limit, but did not disclose any more about it.

59. He accepted there were limitations on making a comparison between levels in the defendant’s premises and levels identified in the various studies, because he did not know the specifics of the work environments referred to.

60. He agreed with the proposition in the Robson and Power report that there was no safe level of exposure to a substance to which a person is sensitised and that workplace exposure standards were not intended to protect sensitised individuals because the practicalities of implementing controls to reduce exposures to zero are not reasonable. However, he did identify that an occupational hygienist will seek to prevent people being sensitised and hence exposure should be reduced to reduce sensitisation.

61. In re-examination he provided a “best guesstimate” of what the background levels could be as 0.5 to 2 mg/m³ in the inhalable fraction with maximum levels as high as 5 mg/m³. He accepted that it was a very difficult thing for him to do. He also expressed the opinion that it was reasonable for the company to have conducted a risk assessment with specialist advice and to put in place measures including health monitoring and personal exposure sampling. He recorded that he would be concerned about exposing someone who had a history of asthma to an environment where there was an asthmagen.

62. In oral evidence Ms Power identified that there was not enough evidence to say that there is or is not a constant ratio between respirable and inhalable dust. She accepted that based on the static monitoring it was not possible to assess the plaintiff’s actual exposure. She accepted that it had been recognised for quite a long time that transient symptoms from green coffee bean dust existed but she had not seen evidence of ongoing symptoms. Similarly, she had not read anything that had talked about symptoms extending beyond the period of exposure. She was asked about the practices that could be undertaken to reduce levels of exposure and she emphasised the simple practical measures over monitoring: “Normally, just implementing good basic controls should be sufficient, depending on the contaminant, in most environments”. In answer to the next question she said:

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Yes, general, broad controls will be sufficient for most exposures in most workplaces, and certainly the recommendations from the government are not that people rush out and measure things, if they implement good, easy controls to begin with and then look at whether they are still going to have problems.

63. She was asked by senior counsel for the plaintiff about vacuum cleaners, masks and respirators and ventilation enclosure of areas. She identified that the measures that had been suggested in the initial report following the particular monitoring were “very broad” and any specific recommendations would have required further assessment.

64. In the light of this evidence my conclusions are as follows:

(a) There is no accepted standard for exposure to green coffee bean dust in Australia. There is insufficient evidence to permit an appropriate level to be set by reference to other plant-based respiratory irritants.

(b) The sampling of the respirable fraction of dust within the defendant’s premises does not provide a reliable means of assessing the inhalable fraction because it has not been established that the ratios of respirable to inhalable green coffee dust disclosed in the study by Thomas at al (which commences at page 38 of Exhibit 14) would be replicated in the defendant’s premises.

(c) The static monitoring undertaken at the defendant’s premises would not provide an appropriate basis for estimating the exposure of any person to dust, because that exposure is very dependent upon the particular activities undertaken by that person and the location of those activities.

(d) In the absence of any accepted standard, the approach that would be recommended by an occupational hygienist would be to take simple measures to reduce the exposure to green coffee bean dust and adjust the controls in the light of any identified health effects from exposure.

(e) Pre-employment health screening of some sort would be a measure which could be adopted so as to avoid exposure to green coffee bean dust by persons more likely to be adversely affected by such exposure.

Breach of statutory duty

65. The plaintiff contended that as a result of the operation of the DS Act, statutory duties were imposed upon the defendant to put in place a safety management system for handling green coffee beans. In closing submissions, the defendant accepted that, by reason of the classification of green coffee bean dust as a “dangerous substance”, particular statutory duties arose. Notwithstanding this concession it is appropriate to outline the chain of reasoning that leads to that position.

Statutory provisions

66. The starting point is the statutory framework in which the defendant operated its business during the period August 2009 to January 2012. The DS Act commenced substantive operation on 5 April 2004. The following is based upon republication 35 of the Act (in force in December 2011). The objects of the Act set out in s 6 included:

(a) to eliminate the hazards associated with dangerous substances;

(b) if it is not reasonably practicable to eliminate the hazards—to minimise as far as reasonably practicable the risks resulting from the hazards by, for example—

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(i) ensuring that the hazards are identified and the risks are assessed and controlled; and

(ii) requiring information and training about the hazards and the safe handling of the substances to be made available to people handling the substances.

67. “Dangerous substance” is defined in s 10, which relevantly provides:

(1) For this Act, a substance is a dangerous substance if it—

...

(f) can be classified as a hazardous substance under the NOHSC approved criteria

68. The NOHSC approved criteria is a concept which is defined by s 10(3) as follows:

NOHSC approved criteria means the Approved Criteria for Classifying Hazardous Substances approved by the National Occupational Health and Safety Commission under the National Occupational Health and Safety Commission Act 1985 (Cwlth).

69. By operation of ss 10(4) and 220(2)(a), the relevant version of the NOHSC approved criteria was that identified by the Dangerous Substances (Incorporated Document) Notice 2005 (No 2). That took effect on 2 September 2005 and continued in effect during the plaintiff’s employment.

70. The inclusion of a substance within the definition of dangerous substance in s 10(1)(f) is dependent upon whether it “can be” classified as a hazardous substance under the NOHSC approved criteria. In the present case the expert evidence was that green coffee bean dust “can be” so classified. The expert evidence of Mr Strautins was that coffee bean dust had been classified as a respiratory sensitiser and was appropriately classified as a dangerous substance within Risk Phrase R42 in accordance with the NOHSC approved criteria. Mr Robson and Ms Power agreed.

71. Because coffee bean dust can be classified as a hazardous substance under the NOHSC approved criteria, it was at the relevant time a “dangerous substance”.

72. As a consequence of coffee bean dust being a “dangerous substance” for the purposes of the Act, the plaintiff alleged breaches of various duties set out in ss 31 and 34 of the Act.

31 Safety duties of people in control of premises

(1) A person in control of premises where a dangerous substance is handled must—

(a) ensure that a safety management system for handling the substance at the premises is prepared and documented; and

(b) take all reasonable steps to ensure that—

(i) the safety management system is implemented and kept up to date; and

(ii) everyone to whom the safety management system applies complies with their duties under the system; and

(iii) people’s compliance with their duties under the safety management system is documented under the system.

Note A failure to comply with this section may be an offence (see pt 3.2).

(2) A person in control of premises where a dangerous substance is handled must take all reasonable steps to ensure that—

(a) the premises (including any plant or systems at the premises for handling the substance) are safe to handle the substance; and

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...

34 Safety duties of people in control of plant and systems

(1) A person in control of plant or a system for handling a dangerous substance must—

(a) ensure that a safety management system for the handling of the substance by the plant or system is prepared and documented; and

(b) take all reasonable steps to ensure that—

(i) the safety management system is implemented and kept up to date; and

(ii) everyone to whom the safety management system applies complies with their duties under the system; and

(iii) people’s compliance with their duties under the safety management system is documented under the system.

Note A failure to comply with this section may be an offence (see pt 3.2).

(2) A person in control of plant or a system for handling a dangerous substance must—

(a) take all reasonable steps to ensure that the plant or system is safe to handle the substance; and

...

73. These obligations incorporate a number of defined terms which are, most relevantly as follows:

(a) To “handle” a dangerous substance includes processing, receiving, storing possessing or using the substance: s 11.

(b) A “hazard” is a thing or situation with potential to cause harm to a person: s 15(1).

(c) A “risk” includes the likelihood of harm to a person from a hazard: s 15(2).

(d) In assessing what are “reasonable steps” to be taken to minimise the risk, the following matters are required by s 16(2) to be considered :

(a) the seriousness of the risk;

(b) the current state of knowledge about—

(i) the hazard giving rise to the risk and the risk itself; and

(ii) any ways of eliminating the hazard or minimising the risk;

(c) the availability and suitability of ways to eliminate the hazard or minimise the risk;

(d) the cost of eliminating the hazard or minimising the risk;

(e) anything else prescribed by regulation.

(e) “Person in control” is defined in s 17 in a way which would include the defendant.

(f) “Safety management system” is defined in s 19. It defines the term “safety management system” and, for the purposes of that definition, outlines matters which must be considered for the purposes of the elements of that system. The section provides:

19 What is a safety management system

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(1) A safety management system for handling a dangerous substance is a system that does each of the following:

(a) identifies the hazards associated with the substance, having regard to the current state of knowledge about the hazards;

(b) identifies and assesses the risks resulting from the identified hazards, having regard to the current state of knowledge about the risks;

(c) controls the risks by eliminating the hazards or, if this is not reasonably practicable, minimising the risks as far as reasonably practicable;

(d) provides for how compliance with the system is to be documented;

(e) complies with any requirement prescribed by regulation (either in addition to or instead of a requirement mentioned in paragraphs (a) to (d)).

Example for par (e)

A regulation may provide that a supplier of a stated dangerous substance may identify the hazards associated with the substance, and identify and assess the risks resulting form the hazards, by reviewing the safety information supplied by the substance’s manufacturer under section 26 (1) (e) instead of complying with subsections (2) and (3).

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) For subsection (1) (a), the matters that must be considered in identifying the hazards include, for example—

(a) the chemical and physical properties of the dangerous substance; and

(b) any chemical and physical reactions that may happen if the substance comes into contact with other substances; and

(c) the premises, plant and systems for handling the substance; and

(d) anything else prescribed by regulation for this subsection.Examples for par (c)

1 access to the premises or plant at the premises, including access by members of the public

2 the design, physical location and arrangement of areas and plant

3 the characteristics of the materials used in plant

4 activities, systems of work and non-dangerous substances that could interact with the substance

Note Plant includes a building or other structure (see dict).

(3) For subsection (1) (b), the matters that must be considered in identifying and assessing the risks include, for example—

(a) the matters mentioned in subsection (2); and

(b) the consequences, at premises where the dangerous substance is to be handled and elsewhere, of incidents that may happen because of the handling of the substance at the premises; and

(c) anything else prescribed by regulation for this subsection.

(4) For subsection (1) (c), the matters that must be considered in controlling the risks include, for example—

(a) implementing, operating, maintaining and repairing systems to ensure the dangerous substance is handled safely; and

(b) allocating responsibilities to people involved in the handling of the substance to ensure the substance is handled safely; and

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(c) appropriately inducting or supervising people handling the substance; and

(d) giving appropriate information, education and training to people handling the substance about the hazards associated with the substance, and the risks resulting from them; and

(e) anything else prescribed by regulation.Examples of systems for par (a)

1 safe systems of work and safe handling systems

2 security systems for premises where the substance is manufactured or stored

3 a system to identify and rectify any incidents of noncompliance (including minimising any risks resulting from the noncompliance) with the safety management system

Cause of action for breach of statutory duty

74. The plaintiff submitted that a breach of these provisions gave rise to a civil cause of action for breach of a statutory duty. That is because the provisions, in their context, were consistent with an intention that the duties created under it should be enforceable at the suit of a person injured by their breach.

75. In support of that she relied upon the summary of the relevant principles provided in the recent decision of the Victorian Court of Appeal in Govic v Boral Australian Gypsum Ltd [2015] VSCA 130 at [122]-[126]. The case referred to the decisions in O’Connor v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464 at 477-478, Sovar v Henry Lane Pty Ltd [1967] HCA 31; (1967) 116 CLR 397 at 404-405, Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 424, 460-461 (Byrne) and Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 at [44]. A summary of the position is provided by the plurality judgment in Byrne (at 424) which expressed the principle as follows:

A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection. The question is one of the construction of the statute ... One generalisation that can be made is that where the persons upon whom the statutory obligation is imposed are under an existing common law duty of care towards the persons whom the statute is intended to benefit or protect, the statutory prescription of a higher or more specific standard of care may, in the absence of any indication of a contrary intention, properly be construed as creating a private right. Thus ... legislation designed to protect the health and safety of employees in the workplace [has] been held to impose duties the breach of which gives rise to a right to sue for damages. [Citations omitted]

76. The plaintiff submitted that there was nothing in the DS Act suggestive of an intention to displace the presumption and that a breach of the statutory duties imposed under ss 31 and 34 gives rise to a civil cause of action for that breach.

77. I accept that submission. While the obligations imposed by the DS Act are clearly potentially onerous, there is nothing either expressly stated in the Act or to be implied from the Act that would indicate that the statutory duties created under it were not intended to give rise to obligations enforceable in civil proceedings seeking damages. The legislature might readily have adopted a formula such as that contained in s 223 of the Occupational Health and Safety Act 1989 (ACT) (repealed) or s 267 of the Work Health and Safety Act 2011 (ACT) had it intended to leave civil obligations unaffected.

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Defendant failed to comply

78. Further, I accept the plaintiff’s submission (not really contested by the defendant) that the defendant had failed to comply with its obligations under the DS Act. That is because it had:

(a) failed to put in place a safety management system within the meaning of the Act;

(b) failed to take reasonable steps to ensure that the safety management system was implemented, complied with, and documented;

(c) failed to take reasonable steps to ensure that the premises (including the plant and the system in place) were safe to handle the substance.

79. I will describe in more detail below the “system” adopted by the defendant in relation to dealing with dust generated by the green coffee beans. It is clear, in my view, that this system could not be a “safety management system” because on any view the system failed to comply with the requirements in s 19(1)(a)-(b).

80. Paragraphs (a) and (b) of the definition of “safety management system” define what must be done by reference to the “current state of knowledge” about the hazards or risks. Sections 19(2) and (3) identify some of the matters which must be considered for the purposes of identifying the hazards and risks. Those mandatory considerations and the reference to “the current state of knowledge” indicate that the exercise is one which must be undertaken by a person with specialised knowledge or experience. In order to comply with the Act it would be necessary to have regard to “the chemical and physical properties of the dangerous substance” and “the consequences… of incidents that may happen because of the handling of the substance at the premises” for human health: ss 19(2)(a), 19(3)(b) and 16(2).

81. While Mr and Mrs Sciannimanica had a general understanding that it was appropriate to minimise the inhalation of dust, no part of what was done by the defendant “[identified] the hazard associated with [green coffee beans], having regard to the current state of knowledge about the hazards” or “[identified and assessed] the risks resulting from the identified hazards, having regard to the current state of knowledge about the risks”. Because Mr and Mrs Sciannimanica had not identified or taken steps to have identified the allergenic risk posed by green coffee beans that was part of the “current state of knowledge”, any system put in place by them was not a “safety management system” within the meaning of the Act. This conclusion necessitates a further conclusion that the defendant failed to comply with its duty to take reasonable steps to ensure that the safety management system was implemented and kept up-to-date.

82. The third obligation relied upon, namely, the obligation to take all reasonable steps to ensure that the premises and plant or system for handling the dangerous substance was safe to handle a substance, is not contingent upon there existing a safety management system. In final submissions the plaintiff identified the measures that she submitted should have been adopted by the defendant:

(a) The provision of a warning to new employees on induction that there were health risks associated with the inhalation of green coffee bean dust.

(b) The implementation of extractive ventilation, specifically in the areas of loading and roasting.

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(c) The provision of written instructions along the lines of the dust management policy issued after service of the plaintiff’s claim: see [40] above.

(d) The enforcement of the written instructions so provided.

(e) Some enclosure of the green bean silos.

(f) The use of HEPA vacuum cleaners and wet mopping for cleaning duties.

(g) The use of properly fitted breathing protection if working on or near tasks which generated increased levels of dust, such as loading, roasting and cleaning. This would clearly have involved the provision of specific training and instruction to those workers.

83. The evidence of Ms Power was that in the absence of any accepted standard for exposure to green coffee bean dust the approach that would be adopted would be to encourage simple measures to reduce overall exposure to it. The response would then be able to be adjusted in the light of any reported health effects. To the extent that Mr Strautins expressed the opinion that substantial further study of levels might be warranted, I prefer the evidence of Ms Power that the appropriate approach would be to reduce exposure and monitor health effects.

84. Each of the measures identified by the plaintiff are certainly measures that would have the effect of reducing exposure to green coffee bean dust. In that way it could be reasoned that they would make the system “safer”.

85. At the level of generality at which the measures were pitched, it is hard to assess whether or not they were necessitated by the obligation to take “all reasonable steps” to ensure the premises and the system for handling green coffee beans were safe: ss 31(2)(a), 34(2)(a), or by the obligation in s 19 to include in a safety management system “reasonably practicable” measures to “minimise the risk” posed by the green coffee beans.

86. Measures (a), (c), (d) and (f) are clearly measures which were reasonably available to be taken. They are measures which involve an attempt to reduce the level or effect of green coffee bean dust levels and would involve minimal cost or operational impact.

87. So far as (a) is concerned it is clear that there was no warning given as to the possible consequences of exposure to green coffee beans. The plaintiff gave evidence that if she had been given a warning that there was a risk faced by a person, particularly a person who had suffered from asthma attacks, from exposure to coffee dust, she would not have continued to work there. Her exact answer was: “well if I had have been aware of that and in light of the fact that there is no systems in place, dust extraction, dust filtration, personal protective equipment, I wouldn’t have continued to work there”. I do not accept that evidence. It appeared to me that this evidence involved a reconstruction with the benefit of hindsight as to what the plaintiff would have done. In my view, it is likely that had she been given a warning of the risk of a reaction she still would have been likely to have commenced working there and continue working there as she did. That is because she did not have health concerns at that time and a reasonable warning would not have been required to be in such dramatic terms as to put her off working there.

88. So far as (c) is concerned, the provision of written instructions was clearly a reasonable measure that would assist in reinforcing the importance of compliance with basic dust

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reduction measures. More significant would be (d), the enforcement of those measures. It is in this respect that the system was deficient during the period the plaintiff was employed. Mr Sciannimanica described the disagreement that he had with Mr Dewesk about the use of the hessian tube on the Floveyor and the use of personal protective equipment when loading green beans. It is clear that during Mr Dewesk’s tenure there was regular departure from the desired system.

89. As for measure (f), the use of HEPA vacuum cleaners and wet mopping are low cost and apparently otherwise convenient measures. Although Mr Sciannimanica was cross-examined on the assumption that the vacuum cleaner shown in Exhibit 23 was not a HEPA vacuum cleaner, Exhibit 26 demonstrated that it was. The vacuum cleaner in these photographs was a HEPA vacuum cleaner which was purchased and used during the period of the plaintiff’s employment. There was evidence that the business owned another vacuum cleaner and there was no evidence as to whether this had a HEPA filter or not. There was no evidence that would permit quantification of the difference between non-HEPA industrial vacuum cleaners and sweeping on the one hand and HEPA vacuum cleaners and wet mopping on the other so far as overall levels of dust are concerned. Mr Sloggett gave evidence that mopping occurred, that it was mostly done by Mr Dewesk and, after he left, by the plaintiff. The evidence does not establish the extent to which mopping occurred or the difference between the level of mopping that ought to have been undertaken and that which was in fact undertaken. While I am satisfied that measure (f) was a measure that could reasonably be taken, the plaintiff has not proved that it was not taken or not taken to a sufficient degree.

90. Measures (b), (e) and (g) are harder to assess because of their imprecision. Whether they ought to be taken would depend upon the effectiveness of the other measures. They also depend upon precisely what was proposed and the cost and operational impact of that measure.

91. In relation to (b), the implementation of extractive ventilation, it might have been possible to install “whirly vents” in the warehouse at a relatively modest cost. However, there is no evidence as to the extent to which the installation of such vents would actually reduce the exposure of individuals to green coffee bean dust. They appear to have been proposed by the plaintiff to deal primarily with summer heat rather than dust. In contrast, a more sophisticated mechanical extraction system targeted at the loading and unloading of the green coffee bean hoppers might reduce the overall level of green coffee bean dust more effectively, but the cost of such a system and the other operational consequences of it are, on the evidence, unknown.

92. The position is the same in relation to (e), some enclosure of the green coffee bean hoppers.

93. So far as measure (g), properly fitted breathing protection, is concerned, it is clear that a reasonable person with knowledge of the irritant effect of green coffee beans would have required some form of breathing protection at times of greatest exposure, but it is not possible on the evidence to go further than that. Ms Power emphasised the difficulty with reliance upon dust masks or respirators as a control measure, but appeared to accept that some form of mask would be appropriate as part of a combination of controls. This would have involved at least the enforcement of the requirement to wear facemasks while loading green beans which is incorporated into measure (d).

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94. In the light of the nature of the duty and the advice that would have been received from an occupational hygienist, had it been sought, I am satisfied that a safety management system would have involved at least (a), (c), (d) and (f). It has, however, only been demonstrated that the measures in (a) (c) and (d) were not in fact undertaken. Measure (f) was undertaken. In relation to the balance of the measures, because of the lack of evidence about what would be involved in those measures, the plaintiff has not established that the additional benefits that would be achieved over the system that was in place (or that would be in place if measures (a), (c), and (d) were adopted) render them reasonably practicable measures to minimise the risks for the purposes of s 19 of the DS Act or “reasonable steps” for the purposes of ss 31(2) or 34(2) of the DS Act.

95. In summary, the defendant breached its statutory duty by not taking measures (a), (c), and (d).

Negligence

96. The particulars of negligence are quite general in their terms. They are:

2.1. Failure to institute and/or maintain a safe system of work;

2.2. Failure to provide a safe place of work;

2.3. Failure to perform a risk assessment of the work site and the duties required of the Plaintiff;

2.4. Failure to implement any, or any adequate, system of hazard identification and management;

2.5. Failing to take reasonably practicable steps to minimise the risk of injury;

2.6. Failing to provide the Plaintiff any, or any adequate, personal protective equipment such as a face mask;

2.7. Failure to warn the Plaintiff of the risk of injury incidental to her work, such as the effects of being exposed to green coffee bean dust;

2.8. Requiring the Plaintiff to handle or interact with the green coffee bean dust without first warning that Plaintiff of the risks;

2.9. Failure to install adequate ventilation at that premises;

2.10. Requiring the Plaintiff to work in an area without proper ventilation or [dust] extraction;

2.11. Failure to take responsive and precautionary action following that Plaintiff complaining to their Principal of the Defendant, Mr Attilio Sciannimanica; and

2.12. Exposing the Plaintiff to a risk of injury of which is Defendant knew or ought to have known.

97. In final submissions the plaintiff identified the steps that the defendant should have taken as being those steps outlined at [82] above.

98. The claim in negligence is affected by the terms of ch 4 of the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act). Of most significance are the terms of ss 42 and s 43. Section 42 identifies the standard of care as being “that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had”. Section 43 requires that the plaintiff establish that the precautions against a risk of harm be precautions that “a reasonable person in the person’s position would have taken”.

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99. Were it not for the obligations under the DS Act I would have found that there was no breach of duty on the part of the defendant. That was because

(a) The directors of the defendant were not aware of the allergic potential of green coffee beans. I do not accept the plaintiff’s submission that they were aware. The answers given in cross-examination indicated that they were generally aware of the appropriateness of minimising dust inhalation, but not of any particular allergenic properties of the dust from green coffee beans.

(b) There was no evidence of any adverse consequence (prior to the plaintiff’s claim) in the defendant’s business arising from the inhalation of green coffee bean dust apart from one employee who appears to have been generally susceptible to hayfever, suffering from that condition if he did not take his usual medicine. That was notwithstanding that Mr Sciannimanica had been in involved in the coffee roasting business since 1985. Thus the actual experience of the defendant appears to have been significantly different from that which appears to be recorded in some of the scientific papers in evidence. Those papers disclosed rates of reaction to green coffee bean dust (and/or castor bean dust) at significant levels. The difference between those levels and that of which there is evidence in the defendant’s business suggests that caution must be applied in translating those results to a business in Australia such as operated by the defendant.

(c) There was no evidence of any conduct by other equivalent coffee roasters so as to demonstrate a departure from some industry norm. Nor was there any evidence that it was generally known amongst persons involved in the coffee roasting business that green coffee beans had an allergic potential and hence it was not established that the level of knowledge of the directors involved a departure from what reasonable persons in their circumstances would have had. The only evidence of the state of knowledge of other coffee roasters was from Mr Sloggett, who had worked at a Sydney based coffee roaster for four years and who was not aware, and had not been made aware, of risks, particularly to people who have been asthmatic, of exposure to coffee dust.

(d) There was no accepted standard setting an appropriate level of exposure to green coffee bean dust.

(e) The evidence as to levels of dust in the workplace was not such as to indicate that there was some obvious deficiency in the manner in which the dust was handled.

100. I would therefore have found that the risk of an allergic or asthmatic response to green coffee beans was one which was not foreseeable, that is, not “a risk of which the person knew or ought to have known”: CLW Act s 43(1)(a). If it was foreseeable then I would have found it to be a not insignificant risk, but not one, having regard to the factors in s 43(2) of the CLW Act, that required greater steps, so far as the plaintiff was concerned, than were taken.

101. However, in determining whether or not there has been a breach of a duty of care it is relevant to have regard to the obligations under a statutory provision, even if that statutory provision does not give rise to a separate cause of action: Henwood v Municipal Tramways Trust (SA) [1938] HCA 35; (1938) 60 CLR 438 at 449, 453 and 461; Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424 at 427; Tucker v McCann

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[1948] VLR 222 at 225–226 and 237 (Tucker); CSL Australia Pty Ltd v Formosa [2009] NSWCA 363; (2009) 235 FLR 273at [61]; Quality Roads Pty Ltd v Baw Baw Shire Council (No 1) [2016] VSC 477 at [62]. That appears to be because, as Herring CJ said in Tucker: “Now it is the duty of everyone to know and to obey the law, and so to know and obey the precautions laid down in the regulations.” In these days of all enveloping statute law that may be a very burdensome duty, but it appears to have been accepted as the basis upon which the common law proceeds.

102. In the present case the terms of ss 19, 31, 34 of the DS Act appear to compel the conclusion that a reasonable person engaged in the handling of green coffee beans would be aware of the capacity of green coffee bean dust to be categorised as a dangerous substance for the purposes of the DS Act and aware, as a result of having developed a “safety management system”, of the hazards and risks associated with the substance having regard to the current state of knowledge about those hazards and risks.

103. By this route the duty of care closely resembles the obligation under the DS Act because with knowledge of the hazards and risks associated with the handling of green coffee beans, foreseeability is established because the risk was one of which the defendant “ought to have known”: CLW Act s 43(1)(a). The risk was not insignificant: s 43 (1)(b). The duty of the defendant was then to take reasonable precautions to address the risk: CLW Act s 43(1)(c). Compliance with that duty must be assessed by reference to the matters in s 43(2).

104. For the reasons I have given in relation to the allegations of breach of statutory duty, my conclusions are the same as those set out at [86] - [94] above. In summary, the defendant breached its duty of care by not taking measures (a), (c) and (d) to the extent described at [94] above.

Causation

105. The defendant’s principal contention in the case was that notwithstanding breaches of (at least) its statutory duty, the plaintiff had not established that her present condition was caused by exposure to green coffee bean dust during the period of her employment.

106. There are, in fact, two issues. The first is whether the plaintiff’s condition was caused by exposure to green coffee bean dust during the period of her employment. The second is whether the adoption of the measures required to avoid a breach of statutory duty or duty of care would have avoided that consequence.

Chronology relevant to causation

107. In assessing the expert evidence it is necessary to have regard to the evidence which provides for the chronology of the onset of the plaintiff’s symptoms.

108. The plaintiff commenced working for the defendant on 12 August 2009.

109. Around August/September 2011 her evidence was that “I noticed that I was starting to feel puffed out when I did exactly the same duties I had been doing for a couple of years”. She did not seek medical advice.

And was it something that was at that stage always with you or was it something that just happened intermittently?---It seemed to be-well, I would say it was always with me whenever I did something that exerted myself like if I was walking quickly. Even out of

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hours, I just noticed that I was just getting puffed out, you know, shopping, carrying a couple of bags of groceries to the car. I just noticed I was feeling puffed out doing-doing those sorts of things whereas before I had never had any problems with any of that.

110. In November 2011 she went on holiday to Hawaii. She had an episode of breathlessness while walking at Waimea Bay:

We were walking along in the loose sand and I-I became quite short of breath. It was difficult to breathe and I was actually-I was bent over and I just couldn’t catch my breath and I was actually dribbling. I was trying to, you know, get myself calm and breathe. It was a bit scary actually and my friend with me stopped and she was concerned and I just relaxed, got my breath and we went over and sat-there was a log fence or something nearby. We just went and sat their hands, you know, I have to say five or 10 minutes I felt okay again.

111. She described it as being different to her earlier asthma episodes and quite severe.

112. She saw Dr Choong for an apparently unrelated complaint on 5 December 2011. She saw him again on 13 December 2011. On that occasion, although the doctor’s notes do not specifically record her history or symptoms in relation to shortness of breath, she appears to have raised her attack of breathlessness and he gave her a prescription for a Ventolin inhaler and Seretide inhaler.

113. Her last day of employment with the defendant was on 8 February 2012.

114. She gave evidence of the position following the end of her employment with the defendant as follows:

MR CROWE: Now in the year after you left the defendant’s employment, so this is 2012 I am asking you about, what was the condition of your shortness of breath, feeling puffed that you had had in the latter part of your employment?---Yes. Well it became more constant, I was finding that in the mornings when I had a shower, the steam was worrying me, I was finding it difficult to breathe. As the year progressed I developed this sensation of having-I felt as though-here, I was breathing through a fur ball or a wad of cotton wool…

[The plaintiff was pointing at the centre of her chest where the sternum meets the rib cage]

So that worried me-started to worry me and I went to see my-my GP in December-December 2012.

115. Consistent with the evidence of the plaintiff, the next reference to shortness of breath or to the prescription of drugs to deal with it is in 6 December 2012 when Dr Saburova’s notes record:

[Feeling] very well but stating getting breathless very quickly. More often since last two [months]. TSH is slightly deranged but as long as patient is feeling very well, advised to continue with same dose. Review in 4-6 [months] time. Spirometry and x-ray for breathing difficulties.

116. The spirometry took place on 10 December 2012. She saw the doctor again on 11 December 2012 and received the diagnosis of COPD. The doctor provided her with medication called Onbrez.

117. On 20 December 2012 she saw the doctor again who recorded that she was “very happy with Onbreze” (sic).

118. On 31 January 2013 the doctor’s notes recorded: “Breathing is [better] than prior to medication but not the best, [feeling] that had it better in [initial] period after [commencing] medication.”

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119. She saw Dr Saburova again on 12 March 2013 who recorded that she was “[f]eeling better on Onbrez 150 mg”. The plaintiff foreshadowed that she was moving to the Gold Coast in April.

120. After her unsuccessful move to the Gold Coast she returned to her doctor on 16 July 2013.

121. On 5 November 2013 Dr Saburova recorded:

Worried and wants to investigate as thinks of COPD may be related to work hazards. Spoken to solicitor and was advised to [proceed] with [claim] and to see a respiratory specialist. Using Lyprinol now for COPD and found it helpful.

122. She saw Dr Burke, a respiratory and general physician, on 3 February 2014, 27 March 2014, 23 June 2014, 23 September 2014 and 2 April 2015. After the first consultation he asked her to have some detailed lung function tests and a high resolution CT scan. On 27 March 2014 he recorded:

Her lung function and CT confirmed the presence of moderately severe emphysema but she has very significant asthmatic component as you will see on the lung function with marked bronchodilator reversibility demonstrated.

It is hard to know if this is just an adult recrudescence of her childhood asthma or whether it is related to the coffee bean exposure although she had been out of that environment now for a couple of years.

123. By June 2014, although the post bronchodilator FEV1 had not improved, Dr Burke said that her treatment was controlling the asthmatic component of her airways disease.

124. On 23 September 2014 Dr Burke recorded that her lung function had stabilised and not improved.

125. In April 2015 Dr Burke recorded that the plaintiff had had a little further improvement in lung function and was clinically stable.

Expert evidence relevant to causation

126. The expert evidence as to the existence of a causal link between green coffee bean exposure and the plaintiff’s asthma was given by two well qualified experts. The witness called by the plaintiff was Professor David Barnes, a cardiothoracic physician. The evidence called by the defendant was that of Associate Professor David McKenzie, a respiratory physician.

Professor Barnes

127. Prof Barnes prepared three reports for the plaintiff dated 31 July 2014, 27 October 2014 and 26 July 2015.

128. In his first report, Prof Barnes recorded the history and the results of his examination. In his diagnosis he made the following points:

(a) The plaintiff had childhood asthma with a resolution at a young age.

(b) She redeveloped adult asthma which was episodic rather than persistent.

(c) She had both radiological and respiratory function test evidence of COPD with emphysema. This was due to her previous smoking.

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(d) She has had worsening of her asthma with exposure to the green coffee beans.

(e) Laboratory testing earlier in 2014 confirmed a significant reversible component to her airflow limitation meaning that she had a significant degree of asthma and not just fixed airways disease secondary to previous smoking.

(f) The COPD is long-standing and smoking-related but her episodic asthma has been aggravated by coffee bean exposure.

129. In reaching his conclusion about the causal link between green coffee bean exposure and occupational asthma he referred to two journal articles one from the British Journal of Industrial Medicine in 1985 and another from the journal Clinical and Experimental Allergy in 1995 (the Romano study).

130. The abstract of the first article was put into evidence. It involved a study of nine “coffee workers” who complained of job-related respiratory symptoms. The testing on those subjects indicated that bronchoprovocation with green coffee allergen or green coffee dust may be used to identify subjects sensitive to green coffee beans. This article made reference to previous articles on the subject.

131. The Romano study involved a study of 211 employees exposed to green coffee dust in “a coffee manufacturing plant”. The article contained no details of the plant, its location or the nature of the operation except for the fact that it had a “green coffee department”. The study aimed to assess the prevalence of allergic respiratory symptoms among the workforce and to address the relationship between the effect of green coffee beans and castor beans, the latter which had been shown to be a distinct primary cause of allergic sensitisation in coffee workers. The study involved skin prick tests for green coffee beans, castor beans and 15 common inhalant allergens. The result of the study showed that 10% of workers complained of difficulties with their eyes only and 16% complained of asthma nearly always associated with oculorhinitis. Skin sensitisation was 15% for green coffee beans, 22% for castor beans and 22% for common allergens. The study concluded that there was a strong association between skin positivity to common and occupational allergens which suggested that atopy (the genetic predisposition to allergic diseases) acts as an enhancing factor toward occupational sensitisation. The study concluded that castor bean is the major cause of occupational sensitisation among coffee workers whereas smoking and atopy act as enhancing factors.

132. The second report from Prof Barnes commented upon the report of A/Prof McKenzie. In his second report he made the following points:

(a) Referring to the February 2014 spirometry study of the plaintiff he said that the significant response to a bronchodilator in the respiratory lab demonstrated she has both smoking-related airflow limitation and asthma, the latter unrelated to her smoking history.

(b) Smoking cessation results in a rate of decline of lung function that mirrors non-smokers and her development of symptoms strongly supported an additional impact from her occupational environment.

(c) He altered his previous statement that the plaintiff had developed “occupational asthma” because he considered it more appropriate to say that her pre-existing asthma was aggravated by exposure to coffee beans. That

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was because he considered that the term “occupational asthma” was best applied in circumstances where there was no previous history of asthma apart from the occupational exposure.

133. In his third report dated 26 July 2015 he reported upon a further examination of the plaintiff. He reported her results, in particular her FEV1 result which I will refer to below. He said:

The critical issue in my view is the change in behaviour of her respiratory symptoms over time. Having had 2 episodes of brief asthma in 1987 and 2006 she developed chronic respiratory symptoms in 2011, 2 years after commencing her occupational exposure to coffee beans. This is despite cessation of smoking in 2006.

The natural history of both asthma and COPD can be variable. However once smokers with COPD cease smoking their rate of decline in lung function then parallels that of non-smokers. Therefore her progressive decline from 2011 onwards is highly atypical for that of a smoker with COPD who then quit smoking. The changing pattern of respiratory disability coincides with exposure to a known asthma irritant.

Occupational asthma, or asthma aggravated by a known occupational irritant, does not necessarily improve when away from that occupational environment.

Indeed cessation of employment is no guarantee of remission of the condition. This is well known in other cases of occupation related asthma, for example sensitivity to Western red cedar.

134. It was for these reasons that he considered that her pre-existing asthma and airways disease was aggravated by the exposure to coffee beans and that explained the significant change in behaviour of her lung disease.

135. In oral evidence:

(a) Prof Barnes identified that the inhalable, rather than respirable, fraction of dust was that which was relevant to assessing the impact upon asthma because the inhalable fraction was that which got into the upper areas of the bronchial system (bronchi) where the asthmatic reaction occurred rather than the smaller Airways (bronchioles or alveoli).

(b) He said that he thought the effect of exposure would be permanent now that the symptoms have persisted for four years.

(c) He reiterated that the most significant factor for the purposes of his evidence was the change in the pattern of the plaintiff’s disease.

(d) He was asked about the different FEV1 readings taken by himself and associate A/Prof McKenzie.

(e) The FEV 1 readings for the plaintiff taken by Prof Barnes and A/Prof McKenzie were as follows:

(i) 8 July 2014 (McKenzie) 61%;

(ii) 31 July 2014 (Barnes) 49%;

(iii) 27 May 2015 (McKenzie) 71%;

(iv) 26 July 2015 (Barnes) 42%.

(f) All of these readings were taken at a time when the plaintiff was taking medication for asthma. As a consequence, the level of disability which was

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demonstrated by these readings was one which related to underlying COPD as well as any component caused by asthma that was not effectively treated by the medication. The variability in these readings was said by Prof Barnes to be consistent with a patient suffering from asthma because that condition was likely to be more variable and dependent upon the effects, at the particular time of testing, of the plaintiff’s asthma medication.

(g) Both asthma and COPD are variable conditions and hence you will find variations in the readings of FEV1 from day to day.

(h) With occupational asthma, removal of the offending agent does not necessarily result in clinical or lung function improvement or a reduction in the requirement for therapy.

(i) He summarised the statistical conclusions of the Romano study reported in the Journal of Clinical and Experimental Allergy which was annexed to his report.

136. In cross-examination:

(a) He said that he expected the plaintiff to be able to continue in a sedimentary job.

(b) He explained his retraction of the use of the term “occupational asthma” referred to in his first report and retracted in his second report. That was because the term referred to the onset of asthma in a person who did not have pre-existing asthma, whereas, on his assessment, the plaintiff suffered from a worsening of pre-existing asthma due to a new exposure to an offending agent.

(c) Asthma may commence long after exposure to the irritant and continue after the withdrawal of the irritant. He described the symptoms of COPD secondary to smoking as being exercise impairment with breathlessness as the major symptom as well as a cough or wheeze. In relation to asthma he said that chest tightness, wheezing and coughing were the typical symptoms. In asthma the history is typically related to weather changes and dust exposure with symptoms on physical activity also present. In COPD the symptoms were predominantly related to physical activity.

(d) He identified that it was significant for his opinion that the impression that he gained was that the plaintiff’s pattern of symptoms had changed. She had childhood asthma which disappeared by the age of five, two episodes as an adult in 1987 and 2006 and then from 2006 to 2009 no symptoms. She then developed progressive exercise impairment in 2011. In 2014 she had clear-cut evidence of asthma. The respiratory laboratory testing in February 2014 confirmed emphysema with a measurement called DLCO (which measured transfer of carbon monoxide across the membrane in the lung tissue), but there was also a significant response to a bronchodilator which was consistent with active asthma as opposed to pure COPD.

(e) He accepted the proposition that a stronger case would be made for a link between exposure to green coffee bean dust and asthma where the symptomatic response was contemporaneous.

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(f) He agreed with the proposition that the studies to which he had referred did not enable him to assess the nature and extent of the exposure to green coffee bean dust of the workers who participated in the studies. Similarly, other than describing the plaintiff’s job as including sweeping up spillage of material on the floor, he could not give a volume or duration of her exposure.

(g) He identified that the skin testing used in the Romano study was something that was not available clinically in Australia and a positive or negative test would not be conclusive in the present case.

(h) “In [the plaintiff’s] case, absent in the green coffee bean dust exposure of which you are aware, you wouldn’t be looking for any other cause for the symptoms of which she complains in terms of the shortness of breath than her emphysema condition, would you?---I would not look any further than her pre-existing asthma and her COPD, no. She had no evidence clinically of any other cause for her symptoms.”

(i) Having regard to the variability in FEV1 readings it was not possible to say whether the changes that he observed in her readings over time indicated an ongoing deterioration or not. He explained the difference between his readings and those of A/Prof McKenzie as reflecting ongoing variable asthma as opposed to decline as a result of COPD.

(j) He said:

What struck me was the changing pattern, is that from 2006 to 2009 she had absolutely no symptoms, and from 2011 onwards she developed significant symptoms and that coincides with exposure, and I have no other rational explanation to explain why she had this change in her pattern of respiratory symptoms. It is, in my view, not explained by natural progression of COPD.

137. In answer to a question that I asked him, Prof Barnes described the manner in which asthma may occur at different ages and described three different scenarios:

Asthma can occur at any age. We talk about a condition called late onset or adult onset asthma, and that is usually triggered by a non-specific viral infection, it can occur just out of the blue. So you can have childhood asthma which has a strong genetic allergic basis, or you can have adult onset asthma which is less allergic related and can occur for no clear reason. But this particular person had a history of childhood asthma with recurrences in later adult life. So about a third of patients with childhood asthma grow out of their asthma, it never comes back. A third it never disappears. And the third it goes away and then returns later in life, and [the plaintiff] fits the third case in that she had two significant asthma episodes in adult life, having grown out of her asthma at five.

138. In re-examination he emphasised the significance that he placed upon the change in the pattern of her illness. He said: “… so it was the changing pattern of her symptomology that struck me that there was a feasible link between her occupational exposure and the symptoms in someone who had no symptoms beforehand, and who had stopped smoking.”

Associate Prof McKenzie

139. A/Prof McKenzie prepared three reports for the defendant’s solicitors.

140. In his report on 8 July 2014 he recorded a detailed occupational and medical history as well as his clinical findings and the FEV1 findings set out above. His conclusions can be summarised as follows:

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(a) The plaintiff has two distinct respiratory conditions, moderately advanced pulmonary emphysema and bronchial asthma. The former related to her past smoking and the latter was long-standing and dated back to her childhood.

(b) Asthma tends to be worse in patients with pulmonary emphysema where there is significantly pulmonary emphysema, because elastic recoil pressure of the lungs is reduced and asthmatic bronchospasm tends to be unopposed so that the narrowing of airways can be more severe and develop more quickly.

(c) The history did not support a diagnosis of occupational asthma because there was no objective evidence of exacerbation of respiratory symptoms from the work environment during the time she worked with Cosmorex, the first consultations for asthma or respiratory problems being 10 months after leaving Cosmorex. The history that he obtained was for a gradual worsening of breathlessness during the period of employment, but with no significant improvement during holidays away from work and after resignation. He said that COPD and emphysema typically develop insidiously over many years until a threshold is reached and breathlessness starts to become apparent.

(d) The plaintiff’s prognosis was good because Dr Burke recorded significant reversibility in an airway function confirming an asthmatic component.

(e) Because of the COPD and asthma he estimated that her life expectancy had been reduced by approximately six years.

(f) The plaintiff would be capable of working in most forms of employment that required only moderate exertion and there was no reason why she could not work five days per week.

141. In his second report he provided some commentary on the report of Prof Barnes. In this report he expressed the opinion that the diagnosis of occupational asthma required more than exposure to a potential respiratory irritant or allergen. He placed significance upon the medical and occupational history. He said that depending on the immunological mechanism for the asthma, symptoms typically develop within minutes with an allergic cause or six to 24 hours with a nonallergic cause. He said that the symptoms may be mild initially, but they will remain tightly associated with exposure to the offending agent. They typically resolved within hours or days of treatment with asthma medications and especially with removal from exposure. He said that the symptoms tended to improve over a weekend away from work and especially during a holiday of one to two weeks. He said that a suspected diagnosis of occupational asthma could be confirmed by spirometry or peak flow monitoring over a one to two week period. He said that typical measurements of airway function will decline over the duration of a shift and they may decline progressively over the working week, usually with some improvement overnight or between shifts and greater improvement during days off.

142. His view was that the respiratory symptoms did not support a diagnosis of occupational asthma:

(a) She did not report symptoms of coughing and wheezing in relation to a work environment or a sensation of nasal, oral or bronchial irritation. The only symptom was breathlessness on exertion, particularly walking up stairs or carrying heavy weights, which were insidious and slowly progressive.

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(b) There were no measurements of airway function during her period of employment or any consultations with a medical practitioner for symptoms of asthma or breathlessness between August 2009 and February 2012.

(c) There was good evidence of chronic airflow limitation and pulmonary emphysema with some significant reversibility of airway function.

143. He concluded that the clinical history, pulmonary function tests and radiology were all consistent with a diagnosis of COPD with emphysema and asthma. The COPD and emphysema were caused by smoking and cannot be attributed to the work environment at Cosmorex.

144. In oral evidence in chief:

(a) He indicated that he did not attach significance to the plaintiff’s complaints of dry eyes and her use of eyedrops during her period of employment.

(b) He said that with the plaintiff’s COPD he would expect that her medication regime involving a corticosteroid component and a long acting bronchodilator would continue forever.

(c) He was asked to comment upon Prof Barnes’ assessment based on the plaintiff’s history. Consistently with what he had said in his reports, he said that it was likely that the plaintiff’s lung function had been progressively declining over a long period of time because that is what happens with people who are developing COPD and emphysema. The decline in lung function will then reach a threshold at which symptoms appear.

(d) He said that it was very likely that the plaintiff’s lung function was declining because when it was finally measured it was in the range of around 60% and sometimes below. Airway function declines with time in asthmatics and the decline is faster in asthmatics who are smokers than the decline in asthmatics who are not smokers and faster than the decline in smokers who are not asthmatics. For people who do not have asthma, stopping smoking leads to the rate of lung function decline slowing down and becoming more or less parallel with the rate of the non-smoking healthy population. In non-smokers the average rate of decline is 10 to 15 mL per annum. In a smoker it is 30 mL per annum. In an asthmatic who is not a smoker it is roughly 25 to 30 mL per annum. The rate of decline in a person who has asthma and smokes is somewhere between 50 and 100 mL per annum.

145. In cross-examination:

(a) It was suggested to A/Prof McKenzie that as at the date when the plaintiff stopped smoking in mid-2006 there was no scientific basis for being able to make a prediction about how long she could have continued living an ordinary active life without suffering symptoms from COPD or emphysema or asthma. He did not accept that proposition. That was because the extent of her emphysema as at 2014 was such that there was no question that she had emphysema in 2006. While the majority of smokers were resistant to the effects of smoking in terms of COPD and emphysema, the evidence demonstrated that the plaintiff was not in that group. As a consequence, her lung function would have been declining faster than smokers who were resistant to those effects. It was possible, based upon her lung function in

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2014, to identify the extent of the lung function in 2006. He said that between 2006 and 2011 her lung function would have been in the order of 70 to 75% and below the threshold at which he would expect her to be getting symptoms of breathlessness. If he had access to spirometry testing and a CT scan in 2006 he would have been able to make a prediction based upon rates of lung function decline as to her condition in the future depending upon whether she stopped smoking and obtained optimal treatment. He did not accept the proposition that in 2006 the plaintiff had a prospect of being able to remain active in her current lifestyle for 10 or 15 years. That was because he knew now that she has developed chronic airway narrowing and pulmonary emphysema.

(b) He explained why any history of eye irritation did not change his opinion as to what happened. That was because it was uncommon for an allergic reaction to only affect the eyes. Normally there would be a reaction in the nose and possibly the throat as well. Some people develop eczema or even urticaria upon exposure to dust. He did not accept the proposition that an asthmatic reaction might start with the eyes because if it was an inhaled problem then the reaction would start elsewhere.

(c) He was asked about baker’s asthma and the potential for a period of latency. He described how triggers such as a respiratory infection resulting from a common cold virus can result in a change in the reaction to allergens. He explained that people with pre-existing asthma who are exposed to an allergen will mostly develop allergic rhinitis before they develop asthma.

(d) He accepted that the plaintiff did have asthma and would characterise it as intermittent rather than chronic asthma. He accepted that green coffee dust had the potential to aggravate a tendency to asthma. He also accepted that there may be a degree of latency, but that the latency of the condition could not carry on beyond cessation of exposure. He indicated that he could explain that in mechanistic terms, but was not asked to.

(e) It was suggested to him that in 2011 the plaintiff’s shortness of breath was the result of a combination of asthma, COPD and emphysema. He agreed that was probably the case but noted that the plaintiff did not describe asthma symptoms in 2011 until the holiday in Hawaii. He said that he could not find the evidence to tie her asthma or a decline in airway function to exposure to green coffee dust as a result of her employment.

(f) He indicated that asthma was a condition which was substantially reversible. He indicated that the typical history of occupational asthma was that it gets better when the sufferer goes away from the work environment, either getting better overnight and usually getting better over the weekend. It would get better over a one or two week holiday away from exposure.

(g) He did not accept the proposition that there was a slowly increasing occurrence of asthma in circumstances where there were not symptoms of asthma.

(h) He accepted that if the plaintiff's breathlessness was variable and she could not remember whether it was variable that could be consistent with asthma. However, he said that even COPD patients will say that their breathlessness is

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variable. The degree of variability is that which distinguishes an asthmatic history from a COPD history. As a consequence he considered that if her breathlessness was variable and the variability was due to asthma then she would remember that. Given that she had asthma episodes before then he would have expected her to seek treatment for them if she had some episodes during her work.

(i) He agreed with the proposition that it was a coincidence that the deterioration in a lung condition which occurred in 2011 occurred after she had been exposed to green coffee dust for about two years. When asked about the change in pattern of her lung condition after exposure to green coffee dust he said that apart from the episode in Hawaii the next change in pattern was almost a year later and any shortness of breath that continued was because she was declining anyway; she had reached the point where she had shortness of breath because of the chronic airflow limitation or COPD with an asthmatic component on top of that. He said:

I think if the Cosmorex exposure was important for previous asthma or breathing problems she should have had symptoms then and after removal from exposure the symptoms should have improved. And that wasn’t the pattern of this. The pattern seemed to be a fairly insidious and inexorable downward decline over that period of time. There has been significant improvement with the institution of appropriate treatment.

(j) It was suggested to him that the baker’s asthma studies indicated that most individuals never completely recovered from their symptoms. He said that those studies related to occupational asthma which involved the triggering of an asthmatic tendency which did not go away. The plaintiff already had that asthmatic tendency. If she had an allergic reaction to coffee dust then the symptoms would abate and resolve, but the asthmatic tendency would remain.

146. In re-examination he was asked to explain why, if there had been an aggravation of her respiratory condition as a result of exposure, an improvement would be expected when she ceased work. He said that if it was an allergic kind of reaction then stopping exposure should have given rise to some improvement, because it was the repeated and continuing exposure to the allergens that was fostering the inflammatory reaction in the airways. While the asthmatic tendency never goes away there is usually some improvement. The absence of improvement in the shortness of breath or the gradual worsening of symptoms was inconsistent with those symptoms being related to an aggravation of her asthma condition as a result of coffee dust.

Test for causation

147. So far as the claim for breach of statutory duty is concerned the provisions in ch 4 of the CLW Act do not apply. That is because s 41 provides that the chapter only applies to claims for damages for harm resulting from “negligence”. Section 40 defines negligence to mean “failure to exercise reasonable care and skill”. As a consequence, s 45 of the CLW Act does not apply. Therefore the causal requirement is that provided by the common law. In a case such as the present that is the common law test which involves the plaintiff proving that the breach of statutory duty caused or materially contributed to the injury complained of: Bonnington Castings Ltd v Wardlaw [1956] AC 613 at 620; Laws of Australia, vol 33 at [33.5.270]. While the “but for” test provides a useful starting point for the purpose of examining the issue of causation, it is an inadequate criterion by which to determine liability: McGovern v British Steel Corp

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[1986] 1 ICR 608 at 624; March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506. In the judgment of Mason J in John Pfeiffer Pty Ltd v Canny [1981] HCA 52; (1981) 148 CLR 218 at 230 his Honour discussed the possibility that the terms of the statute might be such that they disclose that a less stringent causal relationship might be required than would be required in a negligence case. His Honour illustrated that proposition by reference to a statutory provision that would have the effect of creating a presumption that the injury was caused in circumstances where the statute had been breached and placed an onus on the defendant to show that the injury was due to some other cause. No submission was made in the present case that the DS Act had that effect. Therefore I approach the issue of causation in the present case on the basis that the causal requirement is in substance the same as that required in a cause of action based upon negligence involving the unmodified common law.

148. So far as the negligence cause of action is concerned, that is governed by s 45 of the CLW Act which requires the application of the but for test (s 45(1)(a)) as well as consideration of the scope of liability (s 45(1)(b)).

Conclusion on causation

149. The evidence establishes that the COPD suffered by the plaintiff was not caused by any exposure to green coffee been dust. It is only the asthmatic component of her condition that might be attributable to green coffee been exposure. Dr Burke, who examined her in 2014, identified the issue as being whether or not the asthmatic condition was a “recrudescence” of her earlier asthma or whether it was an instance of “occupational asthma”. Prof Barnes, although initially referring to it as “occupational asthma”, clarified the position in his second report by identifying that “occupational asthma” should properly be confined to situations where asthma first appears as a result of an occupational exposure. That was to be distinguished from the situation where a person with a pre-existing history of asthma has a recurrence or aggravation of the asthmatic condition by reason of an occupational exposure.

150. The difference between Prof Barnes and A/Prof McKenzie was that Prof Barnes was persuaded by the change in pattern of the plaintiff’s asthma as indicating a causal link with her occupational exposure whereas A/Prof McKenzie considered that the pattern of exposure was inconsistent with it having an occupational cause.

151. So far as Prof Barnes was concerned, significance lay in the history of only two previous adult occurrences of asthma (1987 and 2006) followed by the occurrence during her employment. So far as A/Prof McKenzie was concerned, it was significant that there was no apparent association between occupational exposure and the occurrence of asthma. In particular there was no pattern of asthma worsening during periods of employment and lessening outside those periods. There were no other pre-asthmatic symptoms such as rhinitis and he placed no significance upon the dry eyes suffered by the plaintiff.

152. Both doctors were eminently qualified and there is no reason outside of the cogency of their expressed opinions, such as the manner in which they gave evidence, for discounting their opinions. The most significant difference of opinion between them appeared to be as to whether or not an allergic reaction to green coffee bean dust could manifest itself long after the exposure to the antigen had ceased. This issue was not explored in detail and certainly not clearly resolved by their oral evidence.

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153. Underlying the requirement to establish causally related damage arising from the breach of statute or breach of duty of care is the onus lying on the plaintiff to prove on the balance of probabilities that the occupational exposure provided at least a material contribution to her asthmatic condition. I am not satisfied that the plaintiff has discharged that onus. In order for her to discharge that onus I would have to prefer the evidence of Prof Barnes to A/Prof McKenzie. I do not. Rather, if the opinion of one of the experts had to be preferred over the other I would have preferred that of A/Prof Mackenzie. That is because of the following matters:

(a) The past history of asthma including the fact that previous occurrences of asthma were not triggered by any particular identified exposure.

(b) The absence of variability of her breathlessness condition during the period of employment, her condition during employment being consistent with the expected deterioration in her lung function due to COPD.

(c) The absence of any association between the severity of her symptoms and occupational exposure:

(i) no daily pattern of symptoms;

(ii) no rhinitis associated with exposure;

(iii) no pattern of her symptoms improving when away from work;

(iv) the severe event in Hawaii occurring when there was no exposure;

(v) no recalled level of variability of symptoms during her period of employment consistent with asthma as opposed to COPD.

(vi) the apparent gradual worsening of breathlessness over the 10-month period after leaving the employment of the defendant, most notably in the two months prior to seeing Dr Saburova in December 2012.

(d) The absence of evidence in the scientific literature referred to that green coffee beans had been demonstrated to either continue to have an asthmagenic effect beyond the period of exposure or a latent effect extending beyond the period of exposure (as distinct from the situation with Western Red Cedar referred to by Prof Barnes). Further, the absence of evidence would indicate that because of the nature of the asthmatic response it was likely that green coffee beans would produce a similar response to those asthmagens, the effects of which can continue beyond the period of exposure.

(e) The fact that Prof Barnes accepted that in the absence of exposure to green coffee bean dust he would not be looking for any other cause other than her emphysema condition for the symptoms of which the plaintiff complained.

154. On the evidence I am readily able to accept that it is possible that exposure triggered a recurrence or aggravation of asthma (or at least was a material contribution to the recurrence or aggravation), but I do not accept that the plaintiff has established that on the balance of probabilities.

155. For this reason the plaintiff’s claim for damages for breach of statutory duty or negligence fails.

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Would the position have been any different without the negligence or breach of statutory duty?

156. If the plaintiff had established on the balance of probabilities that her occupational exposure caused or contributed to the recurrence or aggravation of her asthmatic condition she would have also been required to establish that the position would have been different in the absence of a breach of statutory duty or breach of duty of care. In other words she would be required to prove on the balance of probabilities that compliance with the statute or the absence of a breach of duty of care would have led to a different situation.

157. That would have involved a comparison between the situation which in fact existed and the situation which would have existed if there was no breach of statutory duty or breach of duty of care.

158. Clearly enough, having regard to the medical evidence, the plaintiff would still have suffered from COPD. The essential question would be whether compliance with the statute or the absence of a breach of duty would have avoided the recurrence or aggravation of her asthma. The difficulty for the plaintiff is that even if the evidence established, on the balance of probabilities, that her asthma had been aggravated by the occupational exposure, the relationship between the following levels of exposure is not clear:

(a) the level of occupational exposure was necessary to produce the asthmatic response in the plaintiff;

(b) the level of occupational exposure actually experienced by the plaintiff;

(c) the level of occupational exposure that would have been experienced by the plaintiff in the absence of breach of duty.

159. In relation to (a) it could be said (on the hypothesis that causation had been established) that the level in (a) was less than the level in (b). That is because the exposure did in fact cause the aggravation. It could also be said that the level in (c) would be lower than the level in (b). That is because the measures would reduce overall exposure to green coffee bean (or castor bean) dust. However, those postulates do not demonstrate that the level in (c) is less than the level in (a). It is clearly possible that the level in (a) is less than the level in (c) so that even with a reduced level of exposure the plaintiff would still have had her asthma aggravated.

160. The expert evidence did not provide a basis for determining the level that would be reached if the measures that the plaintiff says should have been adopted were adopted. It is notable in this regard that there is no accepted standard identifying acceptable levels of exposure that might have been adopted. Also, both the common law and statutory duties are qualified by the concept of reasonableness and would not have involved complete elimination of exposure.

161. The expert evidence did not establish that the relationship between risk of aggravation of asthma and overall cumulative exposure was a linear one. Further, it did not establish that any such relationship was applicable to the plaintiff. Thus the situation was distinguishable from that in Bonnington Castings where the expert evidence established that the cause of pneumoconiosis was caused by “gradual accumulation” of silica particles in the lungs and hence it could be said that where those particles came from two sources, one source could be said to constitute a material contribution

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to the plaintiff’s disease. If, in the present case, it was not a linear relationship then the basis for saying that the measures contended for would have made a difference to the aggravation of asthma in the plaintiff’s case is not established. It may instead have been long term (or short term) exposure to even very low levels of the antigen that provoked the recurrence of asthma. I do not consider that, in an area like this, it is possible to reach a conclusion based upon “common sense” that less dust would make it more likely than not the aggravation of asthma would have been avoided.

162. As a consequence, even if the plaintiff had discharged the onus upon her to establish that exposure to green coffee bean dust was the cause of her asthma, her claim would still have failed because of the absence of proof to the relevant standard that the measures that the plaintiff alleges should have been taken would have avoided the aggravation of her asthma.

Contingent assessment of damages

163. In the light of my conclusions in the sections above, the plaintiff is not entitled to damages. However, in case I am wrong, I set out below what my assessment of damages would have been if the plaintiff had established on the balance of probabilities that the breaches of statutory duty and duty of care caused or materially contributed to the aggravation of her asthma.

General damages

164. To the extent that the plaintiff’s condition is asthma related, it is able to be reversed by medication. The extent that it is not reversible her condition of COPD is a result of her long history of smoking. However, A/Prof McKenzie identified that having asthma as well as COPD would make each condition worse. He also identified that the rate of decline of lung function in a person who was asthmatic was greater than that in a person who was not. In the light of the uncertainty about the extent of the additional impact upon the plaintiff even where the asthmatic symptoms are controlled, the assessment of damages is not easy. In my view, having regard to the COPD condition already faced, the significance of any aggravation of that condition by reason of an overlay of largely controllable asthma and the permanence of her condition, an award of general damages of $100,000 would be appropriate.

165. Interest on this amount would be $3,200 (4 years, 2%, $40,000).

Out of pocket expenses

166. In relation to the past out-of-pocket expenses the plaintiff claimed the amounts identified in Exhibit 18. These totalled $3,370.10. I would allow an amount of $2,824.10. That comprised payments for pharmacy medication, an appointment with Dr Burke, gap payments on various Medicare funded treatments and the amount identified in a Medicare notice of charge dated 20 June 2015. I would not allow the amount of $346 claimed for consultation with a Chinese medicine practitioner or $240 claimed for consultations with a naturopath. The utility of such treatments was not demonstrated. The evidence of the plaintiff was that she was treated with herbs and acupuncture and that the treatments led to no improvement in her condition.

167. No interest was claimed on this amount in the plaintiff’s schedule of damages and in those circumstances, consistent with the standard trial directions, I will not award any.

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168. In relation to the future, Prof Barnes estimated that the plaintiff would require medication costing approximately $120 a month indefinitely. This involved the use of Symbicort and Seebri. That would equate to $27.69 per week. A/Prof McKenzie estimated her life expectancy at 16 years based on his most recent examination of her. That would result in a medication cost of $18,422 ($27.69 per week, 16 years, multiplier of 665.3). However, A/Prof McKenzie’s evidence was that those medications are medications which the Australian and New Zealand guidelines for the treatment of COPD would recommend in any event. The evidence was not clear whether in the absence of asthma she would have been at the stage when, in accordance with those guidelines, she required those medications based on her COPD alone. In those circumstances I would not consider it appropriate to award damages for future expenditure on medicine on the basis of the figures in Prof Barnes’ report. However, because of the uncertainty about the effect of the treatment guidelines for COPD I would have considered it appropriate to award an amount of $5,000 to take account of increased out-of-pocket expenses as a result of suffering from asthma in addition to COPD.

169. The plaintiff also claimed a buffer of $4,000 for the cost of regular GP reviews and occasional specialist review. This is the equivalent of six dollars per week over her expected life. In my view, this is reasonable and I would have allowed that amount.

170. These amounts give a total of $9,000 for future out-of-pocket expenses.

Loss of earning capacity

171. The plaintiff’s submissions in relation to the past were that the weekly gross earnings in FYE 2011 and FYE 2012 were $831 and $919 respectively giving an average of $875. If she was fully fit she would have found full-time work by mid-2012 and in that year her earning capacity of $875 gross per week would have resulted in a net $740 per week. In the FYE 2013, 2014 and 2015 she in fact earned $82,613 net. Had she been earning at her previous rate she would have earned $115,440. The difference between these figures is $32,827. The plaintiff submitted that taking account the possibility of periods between jobs an award of $30,000 should be made. The difficulty with the submission is that it assumes that her earning capacity would have remained unaffected by reason of her COPD. Symptoms consistent with COPD, namely breathlessness upon exertion, existed from August/September 2011. That is a condition which would have manifested itself in any event although, as pointed out above, may have been less severe in the absence of asthma. I therefore do not consider it appropriate to make an award of damages on the basis that her earning capacity was unaffected. Recognising the imprecision in the approach, I will award damages for past economic loss of $15,000. Interest on that amount calculated at Court Procedures Rules 2006 (ACT) rates is $1,850.

172. In relation to future, the plaintiff’s evidence was that prior to her symptoms developing she intended to work until the age of 70. The plaintiff identified a net loss of $740 a week for a period of five years to the age of 70 as $179,450 ($740/wk x multiplier of 242.5). The plaintiff then submitted that an award of $90,000 should be made having regard to the prospect that the plaintiff would have reduced the level of work as she approached 70. I consider that the submission fails to adequately account for the fact that the plaintiff’s COPD was not caused by any workplace exposure to green coffee bean the dust. That is a condition which would have affected the plaintiff in any event. On the one hand, having regard to her response to her condition, namely, making the

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decision to retire at age 65 and collect the age pension, I think any award for future loss must have regard to the significant prospect that her COPD would have led her to retire even if she did not suffer from asthma and even if her COPD was not made worse by her suffering from asthma. On the other hand, the evidence of her work history and life more generally would be consistent with her wishing to continue work, not only to increase her material wellbeing but also in order to continue to engage in purposeful activity. Taking these uncertainties into account, in my view, a buffer the equivalent of two years employment appropriately balances the various contingencies. That would give a figure of $75,000.

Superannuation

173. The plaintiff submitted that superannuation at the rate of 11% for the past award and 13% for the future was appropriate. The defendant made no submissions on this. In the absence of any contest over the rates to be applied I would adopt those contended for by the plaintiff. This would give an award of $1,650 for the past and $9,750 for the future.

Summary

174. In the event that the plaintiff’s claim was successful the award of damages that I would have made is summarised in the following table.

General damages $100,000Interest on past component $3,200Past out-of-pocket expenses $2,824Future out-of-pocket expenses $9,000Past loss of earnings $15,000Interest on past loss of earnings $1,850Future loss of earnings $75,000Past superannuation $1,650Future superannuation $9,750Total $218,274.00

Orders

175. The orders of the Court are:

1. Judgment be entered for the defendant.

2. The plaintiff is to pay the defendant’s costs of the proceedings.

3. Order 2 is not to take effect for a period of 14 days and, if either party notifies my associate by email (copied to the other party) that it wishes to be further heard in relation to costs, does not take effect until further order of the Court.

I certify that the preceding one hundred and seventy-five [175] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop.

Associate:

Date: 21 October 2016

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