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​Damages case for dust-related industrial asthma

A worker has been given the green light to pursue damages.
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​Damages case for dust-related industrial asthma

​Damages case for dust-related industrial asthma

21 September 2020

A worker who developed industrial asthma from exposure to dust has been given the green light to pursue damages for pain and suffering.

The injury

The man was engaged in the construction of a wind farm project in western Victoria from 2011. He operated a 30-tonne loader and worked at the stock pile, an area where different products such as limestone, blue stone dust, gravel, track top, scalpings, rock and rock dust were stored. He loaded smaller trucks with one of these materials and the smaller trucks then delivered the product to where the wind towers were being erected as part of the foundation works, and for tracks and roads around the area.

He was not provided with any respiratory protection. The cabin of the loader was not sealed and was subject to dusts and contaminants getting in. He regularly had to get in and out of the cabin to direct truck drivers, and was constantly exposed to dusty conditions during his shift. He was not warned or trained regarding the risk of respiratory conditions due to dust exposure.

In early 2014 he noticed tightness in his chest and breathlessness when on site. His breathing became increasingly restricted. From April 2012 he reported his wheezing to a medical practitioner who prescribed an inhaler.

When the wind farm job finished he moved with his employer to a jetty construction job located on Barrow Island, Western Australia, where the air was very clear and dry and his symptoms eased. This job was followed by one in Darwin, where his symptoms worsened.

On returning to Victoria he visited his doctor, who increased the dosage of the inhaler and referred him for further investigations.

Before he started work at the wind farm he’d been very fit and active, training each night after work and every weekend and competing in triathlons. But by August 2016 he was struggling to run his usual distances without suffering significant symptoms, including wheezing, chest tightness and shortness of breath.

Since 2015 he’d been working at cattle and dairy farms, initially on the compost pad, where his symptoms would worsen. He was diagnosed as having asthma, and this was confirmed by a respiratory physician.

The worker applied to the County Court of Victoria for leave to sue his employer for damages.

In Court

Despite attempts to discredit the worker during cross-examination, the Judge found him a credible witness, characterising him as ‘extremely stoic in relation to his condition’.

Having considered all the medical evidence from the worker’s treating doctors as well as the medico-legal experts on both sides, the Judge was satisfied that the worker suffers from the consequences of an injury that he developed in the course of his work with his employer between April 2011 and October 2012. That injury is in the form of industrial asthma, which continues to affect the function of his respiratory system.

The Judge found that the man ‘endures permanent, daily impairment of the function of his respiratory system, which causes significant discomfort and restrictions in various aspects of his life’. The condition interrupts his sleep, affects his ability to interact with his children or engage in the recreational activities he used to enjoy. He must take medication multiple times a day to manage his symptoms, and ‘will have a lifelong need to avoid occupations and activities that expose him to dust, fumes, smoke, humidity or extremes of temperature’. He remains vulnerable to, and fearful of, an acute exacerbation of his asthma.

The Judge found that the injury should be considered permanent and serious, and granted him leave to bring proceedings for damages in relation to pain and suffering.  

The bottom line: Dusty jobs have long been implicated in a range of debilitating respiratory conditions. Dust-related diseases are not limited to asbestosis from asbestos, silicosis from sandstone dust and black lung disease from coal dust.

Read the judgment

O'Donnell v CPB Contractors Pty Ltd [2020] VCC 1345 (2 September 2020)

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