In Lean v Cosmorex Coffee Pty Limited [2016] ACTSC 309 the ACT Supreme Court found that while Cosmorex, the defendant employer, had breached provisions of the Dangerous Substances Act 2004 (ACT) (Act) and, as a result, also breached its duty of care at common law to the plaintiff, causation was not established.

The case revolved around exposure to green coffee bean dust which has long been recognised scientifically as a potential occupational irritant. The evidence at trial was that this was not widespread knowledge within the coffee industry in Australia. As it can be classified as a dangerous substance under the Act, entities and employers which handle green coffee bean dust must comply with the obligation to implement management systems as specified in the Act.

Background

The plaintiff had smoked for over 30 years but had quit before starting work for Cosmorex. The defendant operated a coffee roasting and sale business on a wholesale and retail level where the plaintiff was employed as a warehouse store person. She resigned her employment with the defendant, and later that year noted gradually worsening shortness of breath. The plaintiff underwent testing and was diagnosed with chronic obstructive pulmonary disorder (COPD). She then sought legal representation after doing some internet research and finding out that green coffee bean dust is an asthmagen.

In her claim, the plaintiff alleged that her exposure to green coffee bean dust at the place of employment aggravated her pre-existing asthma and COPD with emphysema. At trial, only the alleged aggravation of her asthma remained in issue.

Evidence and findings

The hearing ran for over five days and involved competing expert evidence from occupational hygienists and respiratory specialists, as well as lengthy lay evidence.

Breach of statutory and common law duties

The occupational hygienists agreed that green coffee bean dust was a ‘dangerous substance’ for the purposes of the Act. They also essentially agreed that it was not possible to determine the degree of the plaintiff’s exposure to green coffee bean dust during her employment. There was no safe level of exposure for an individual who was sensitised to the dust, as any exposure would result in allergic or hypersensitivity reactions. There was no Australian standard for occupational exposure. The expert for the defendant considered that reasonable steps to manage the risk of exposure would involve good basic controls, and ongoing assessment of any problems.

Associate Justice Mossop accepted that in the absence of an accepted standard of exposure in Australia, simple measures to limit exposure with ongoing monitoring of any problems would be the appropriate course recommended by an occupational hygienist.

The Act requires the implementation of a documented safety management system for handling a dangerous substance. The defendant employer, which was not aware that green coffee bean dust could be classified as a dangerous substance, had no documented system at the time of the plaintiff’s employment and accordingly had breached its statutory duty under the Act. It had subsequently – on receipt of the proceedings – developed a written dust management policy.

Associate Justice Mossop found that the employer’s system should have included a warning to new employees and the provision and implementation of written instructions along the lines of the later policy. Once His Honour found that the defendant had breached its statutory duty, he found that it was also negligent at common law as the duty of care was informed by the statute.

Interestingly, in the absence of the statutory duty, Associate Justice Mossop stated that he would not have found the defendant negligent as the foreseeability element would not have been satisfied. He found the directors of the defendant were not, and ought not, have been aware of the allergic potential of green coffee bean dust. Furthermore, the risk of injury was such as to not require the defendant to take the additional steps required by the Act.

Causation

The main issue in dispute at the hearing was whether the plaintiff’s medical condition was caused by the defendant’s breach. His Honour also was required to determine whether the adoption of the measures required to comply with the Act would have avoided that consequence if it occurred.

The plaintiff’s respiratory expert considered that the pattern of the plaintiff’s progressive decline was atypical for a smoker with COPD who subsequently quit smoking. He considered the timing in relation to the plaintiff’s exposure to an occupational asthma irritant to be significant. He stated that ‘occupational asthma’ did not necessarily improve once the offending substance was removed. In cross-examination, he agreed that, in the absence of the known exposure to green coffee bean dust, he would not have looked further than the plaintiff’s pre-existing asthma and COPD to explain her symptoms.

The defendant’s expert considered that there was no objective evidence of the plaintiff suffering any exacerbation of respiratory symptoms during her employment with Cosmorex. Her ‘insidious’ development of symptoms was consistent with her pre-existing lung conditions, and her experience of symptoms merely indicated that she had passed the threshold where breathlessness became apparent.

The test for causation for the breach of the statutory was governed by the unmodified common law, while the test for negligence was subject to the ‘but for’ test contained in the Civil Law (Wrongs) Act 2002 (ACT).

In finding that the plaintiff did not suffer damage associated with the employer’s breach, Associate Justice Mossop preferred the evidence of the defendant’s respiratory expert. He accepted that it was possible but not probable that the plaintiff’s exposure to green coffee bean dust contributed to an aggravation of her asthma.

His Honour went on to find that, if the plaintiff had established that the defendant’s breach caused or contributed to her medical condition, “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.”

Take home message

Although the defendant in this case had taken measures to reduce the risk of its employees suffering excessive exposure to dust generally, it was unaware of the more onerous statutory duties imposed by the Act. Unfortunately, ignorance of the law is not a defence. The accepted evidence at the hearing was that the broader coffee industry is unaware of the potential harm posed by green coffee bean dust. Businesses that handle green coffee beans should be aware of the obligations imposed by the equivalent legislation in their State or Territory.

This case also demonstrates the importance more generally of having well documented risk assessments and control measures in place to protect employees from harm, and employers from costly litigation.