29 June 2020
Perils of the kitchen bench
There has been considerable publicity in the media recently about respiratory problems caused to people from the cutting of engineered stone kitchen benches.
As the engineered stone is cut to fit the required benchtop, the resulting dust can cause various respiratory diseases, the most common of which is silicosis.
Several legal issues can then arise.
What is silicosis?
Silicosis is a lung disease which can afflict people who breathe in dust which contains silica, which is a tiny crystal found in rock, sand and some mineral ores. Over time, it creates scarring of the lungs, which then leads to breathing problems and other associated difficulties. For instance, silicosis can sometimes lead to lung cancer.
Silicosis can vary in intensity, which in turn has an impact on the length of time between the exposure to silica and the onset of the disease. If someone has acute silicosis, then the symptoms could manifest themselves within weeks or months of that person being exposed to the silica dust. These symptoms start with a cough, and may progress to fever, chest pain and general difficulty with breathing.
Much more commonly, someone with chronic silicosis will not start to experience symptoms until decades after their exposure to silica dust. In many of the silicosis cases currently before the Dust Diseases Tribunal, the plaintiff was exposed to silica dust – often in several positions of employment – in the 1960s to the 1980s.
Historically, silicosis was relatively common in Australia in that era, being particularly prevalent in the demolition and construction industries. It also tended to afflict workers who were required to cut into the sandstone which lies beneath so much of the Sydney metropolitan area.
As knowledge of the disease grew, so did the extent of relevant preventative measures, which is why the current influx of claims from people working with engineered stone products has come as a very unwelcome surprise.
There has been a suggestion in the media that some of the engineered stone companies are finding it very difficult to obtain public or products liability insurance. Such insurance would potentially cover a company if it was sued by a customer or contractor who had acquired silicosis from dust being liberated from the cutting of a stone kitchen bench. For similar reasons, most modern public and product liability policies exclude cover for injuries acquired from the inhalation of asbestos products.
However, different considerations apply when the person who has inhaled the silica is an employee of an engineered stone company.
Where the injured person is an employee of the company, a workers compensation claims manager needs to be alert to the benefits made available to the worker by icare Dust Diseases Care. In other words, a case manager needs to remember that silicosis (and indeed other compensable respiratory claims which are classified under the Dust Diseases Tribunal Act as “dust-related conditions”) are handled in a very specific way.
For the same reason, it is important to bear in mind that people with silicosis, or any dust disease, cannot bring a claim for work injury damages in the Supreme Court or District Court. Rather, the Dust Diseases Tribunal Act stipulates that any claim for damages arising from a dust-related condition disease (a term which is defined in the Act) must be brought in the Dust Diseases Tribunal, not in any other court or tribunal.
Further complications arise when identifying the correct insurer to respond to a claim for silicosis or any other dust disease. Some people mistakenly think that it is the insurer on risk when the worker’s symptoms emerge which is the relevant insurer to look after the claim.
In fact, the High Court has made clear that the worker suffers an “injury” at the time the silica dust or asbestos is inhaled, even though that worker may have no symptoms of ill-health for years or decades. Because the “injury” is deemed to have occurred at the time of inhalation, it is the insurance policy which is current at that time which needs to respond to the claim. This means that a company often needs to trawl back through its insurance records from decades ago; good record-keeping is king!
Many workers who suffer from silicosis will have been exposed to silica dust in more than one position of employment. However, silicosis is regarded by the medical and legal profession as being what is known as a “divisible disease”, which in practical terms means that each employer (and its workers compensation insurer) should only be liable for the extent to which that employer contributed to the plaintiff’s overall respiratory symptoms. This assessment is not always easy to make.
It is very unfortunate that this recent resurgence of silicosis claims has occurred, at a time when it was thought, and hoped, that the disease was fading away. This in turn means that workers compensation claims managers can potentially find themselves handling a type of claim with which they have very little familiarity.
It is imperative that claims handlers immediately realise the special legal, medical and insurance issues which accompany claims by workers who suffer respiratory problems from dust-related conditions such as silicosis.
The first and most important step for a claims handler is to recognise from the outset that a substantially different approach needs to be taken to these claims. Unfortunately, it will now be less of a surprise to find a silicosis claim come across your desk than was the case in even the recent past. Even so, the claims handler needs to be alert.
Author: David Greenhalgh