Judgment date: 1 April 2010, East West Airlines Limited v Turner  NSWCA 53, New South Wales Court of Appeal1
- The Court of Appeal was asked to consider whether the trial judge erred in finding that the Dust Diseases Tribunal had jurisdiction to hear a claim relating to smoke.
- A crucial consideration was the meaning to be attributed to the terms "dust" and "dust-related condition" as they appear in the Dust Diseases Tribunal Act 1989.
- The Court of Appeal held that unless a plaintiff was exposed to "dust" so as to develop a "dust-related condition", the Dust Diseases Tribunal would not have jurisdiction to hear the matter. The word "dust" in this context however should be given its ordinary meaning and extends to include particulate matter contained in smoke.
On 4 March 1992 the plaintiff, Joanne Turner, was employed by East West as a flight attendant. On that date she was on a flight between Sydney and Brisbane on a BAE 146 aircraft operated by East West. Although the plaintiff was not on active duty on that flight, she was in the course of her employment.
As the aircraft was descending into Brisbane, for a period of about 20 minutes, smoke was emitted into the cabin. The immediate effect of that smoke upon the plaintiff included coughing, a burning throat, sore eyes and a headache. Thereafter the plaintiff suffered from a persistent cough and on 23 November 2001 she commenced proceedings in the Dust Diseases Tribunal of New South Wales (Tribunal) seeking damages for her injury.
The plaintiff initially commenced proceedings against Ansett Australia Limited (Ansett). It was later discovered by the solicitors for Ansett however, that the plaintiff had not been employed by Ansett, but was employed by East West at the time of the alleged incident. Accordingly, on 1 December 2006, the plaintiff applied, by way of Notice of Motion, to "join" East West to the proceedings as if East West was a party from the date of filing of the original statement of claim.
In allowing the plaintiff's application to join East West, the trial judge characterised the application as one to "substitute a party rather than to add one" and applied s 64 of the Civil Procedure Act 2005 (CPA) on the basis that there had been "a mistake in the name of the party" within the meaning of s 64(4) of that Act. Although the trial judge did not make an order to that effect, he made it clear that the date on which the statement of claim was filed was the date on which the amendment should take effect, i.e. on 23 November 2001.
Proceedings against Ansett were discontinued on 6 March 2009.
Dust Diseases Tribunal Decision
Judgment was entered in favour of the plaintiff in the sum of $138,757.20 and East West was granted leave to appeal.
At the hearing, the trial judge was asked to consider whether the Tribunal had jurisdiction to hear the plaintiff's claim. Section 11(1) of the Dust Diseases Tribunal Act 1989 (DDT Act) relevantly provides:
To the extent that there is a definition relevant to the meaning of "dust", this is provided by s 3 of the DDT Act which states as follows:
It was common ground that the plaintiff did not suffer from one of the diseases specified in Schedule 1. Accordingly, the issue before the trial judge was whether the plaintiff's injury fell within subs (b).
The evidence at trial on this issue came from the plaintiff and two experts. The plaintiff's evidence was that the cabin of the aircraft became filled with a thick, dense smoke, white-grey in colour, which continued to pour through vents into the cabin for about 20 minutes. The two experts agreed that if one could look through a microscope or other aid, what one would have seen in the smoke was ultra small particles of carbon.
In considering the question of jurisdiction, the trial judge stated, at paragraph 86, as follows:
The trial judge also stated at paragraph 90:
The trial judge held that the smoke to which the plaintiff was exposed contained particulate matter that could be described as a "dust" and accordingly, the Tribunal had jurisdiction to hear her claim. The trial judge awarded the plaintiff damages pursuant to ss 151G and 151H of the Workers Compensation Act 1987 (WCA) (as they were at 23 November 2001).
Court of Appeal Decision
The Court of Appeal delivered a unanimous decision dismissing East West's appeal.
On appeal, East West argued that the failure of the DDT Act to refer to "smoke" in the context of a dust-related condition and the absence of any mention of "smoke" in the Second Reading Speeches relating to the DDT Act, meant that, implicitly, the DDT Act intended that the concept of "smoke" should not be included in the meaning of "dust". East West also argued that the word "dust" as used in the DDT Act should not be given its ordinary meaning. It submitted that the meaning to be given to the word "dust" was to be qualified by the overall context of the DDT Act and by its purpose as indicated in the Second Reading Speeches.
The Court of Appeal rejected East West's submissions, stating at paragraphs  to :
In relation to the appellant's first submission, His Honour did not find that, as a matter of general principle, "smoke" was a "dust" within the meaning of the Act. What he found was that the specific smoke to which the respondent was exposed contained small particles of particulate matter which would settle after being suspended in air and which could be correctly described as "dust". This was not a decision as to a point of law but a factual determination."
The Court of Appeal held that what was being challenged by East West was not a decision in point of law within the meaning of s 32(1) of the DDT Act, but rather, was a factual finding of the trial judge and accordingly, it was not appealable.
East West also challenged the trial judge's interlocutory decision, that the joinder of East West to the proceedings should have effect from the date of the commencement of the proceedings (23 November 2001) and not from the date of joinder (27 August 2007), as well as his assessment of the plaintiff's damages.
The Court of Appeal confirmed the trial judge's finding that the circumstances in which East West was joined to the proceedings amounted to a mistake in the name of the party and accordingly, engaged s 64(4) of the CPA. That being so, East West was to be treated as if it were a party from the commencement of the proceedings.
As to damages, the Court of Appeal rejected East West's submission that the trial judge's findings were so absurd as to amount to an error of law and noted that an assessment of this kind involves the exercise of discretion and findings of fact. Accordingly, since the appellant's challenge was to a finding of fact and not to a decision in point of law, a challenge to s 151G of the WCA was not made out. East West's challenge to s 151H of the WCA was dependent upon a successful challenge to the application of s 151G and accordingly, it was also not made out.
The Court of Appeal also held that the trial judge had taken into account questions of mitigation when considering economic loss and noted that the trial judge had referred to the plaintiff's capacity for work and her applications for employment in his judgment. Accordingly, the Court of Appeal held that there was no error of law in the trial judge failing to refer specifically to s 151L of the WCA which deals with mitigation of damages.
The Court of Appeal's findings in relation to jurisdiction, namely, that particulate matter contained in smoke may be a "dust" within the meaning of the DDT Act, potentially broadens the jurisdiction of the Tribunal. It is apparent that all smoke contains particulate matter, whether ultra small particles invisible to the naked eye or macroscopic particles which are readily visible. Arguably, the same could be said of any airborne substance such as a gas, fume or vapour despite the Court's apparent attempt to distinguish those substances.
Accordingly, cases such as fire fighter cases, tobacco smoke cases, airline cases, industrial exposure cases and related occupier and public liability cases could all conceivably be brought in the Tribunal. It appears that the only caveat to the jurisdiction of the Tribunal being enlivened is that the particulate matter in the smoke or other airborne substance must be causative of the plaintiff's injury (i.e. attributable to dust) and that the injury itself must relate to the lungs, pleura or peritoneum.
The decision may have national implications given that each state and territory has similarly worded legislation which does not currently embrace "smoke cases". An Application for Special Leave is currently under consideration.
1. Judgment of Allsop P, Handley AJA and Hoeben J
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.