Kevin’s story: Why the Dust Diseases Tribunal Act needs urgent amendments

Kevin Badenoch has been a stonemason for much of his working life, cutting and installing engineered stone benchtops for household kitchens.

These benchtops can be found in many Australian homes, but their popularity has led to devastating health consequences for the tradespeople involved in the work.

Silica is found in the engineered stone used to make these benchtops, and exposure to the silica dust created when the material is cut, drilled, and shaped can be deadly.

The incurable lung disease silicosis is the most common condition linked to silica dust – but many other conditions are also linked to this dangerous dust.

Kevin’s story

For Kevin, two decades of working with engineered stone has left him with several silica-related conditions, the most disabling of which is scleroderma.

Scleroderma is an autoimmune condition affecting connective tissue that can cause significant pain, immobility, and muscle wastage. 

Kevin’s scleroderma is felt most severely in his fingers, meaning everyday tasks like opening a jar or making a sandwich can be very difficult.

He knows his condition will only worsen and is understandably worried about what his future holds. Kevin’s scleroderma will ultimately lead to his early death.

Recent legal changes in NSW

The scleroderma Kevin lives with is one of several silica-induced autoimmune conditions broadly related to ‘systemic sclerosis’.

Other conditions captured by this category include rheumatoid arthritis and related inflammatory diseases – which are increasingly common among many of our clients, especially tunnellers, miners and stonemasons.

In 2022, the NSW Workers Compensation (Dust Diseases) Act was recently amended to cover ‘systemic sclerosis’.

The amendment means affected workers can now at least access modest workers’ compensation benefits – such as a weekly pension and medical expenses – for their silica-related autoimmune conditions through iCare Dust Diseases Care NSW.

However, the same amendment was not applied to the NSW Dust Diseases Tribunal Act, which has resulted in unintended negative consequences for affected workers when it comes time for them to pursue their common law damages claims.

Caught in a legal gap

The NSW Dust Diseases Tribunal was created to deal exclusively with dust-related common law legal claims, recognising that dust disease victims previously often died before their cases could be heard and determined.

Under the Dust Diseases Tribunal Act, the Tribunal is given exclusive jurisdiction to hear cases involving dust diseases. Beneficial rules at the Tribunal allow for fast-tracked hearings in case of poor health, and victims can pursue unrestricted common law damages.  

The inclusion of ‘systemic sclerosis’ to the Workers Compensation Act – but not the Dust Diseases Tribunal Act – means affected workers:

• cannot pursue common law damages for their autoimmune conditions like every other person with a dust-related condition; and
• must pursue multiple statutory workers’ compensation claims for their dust-related condition and their autoimmune conditions.

Under the regular workers’ compensation rules for non-dust-related injuries, workers are significantly restricted to capped economic loss damages and they can only access such compensation if they have been assessed with at least 15% whole-person impairment.

However, via the Tribunal, workers with dust-related conditions can claim significant common law damages, including damages for pain and suffering, commercial and gratuitous care, unrestricted economic loss, and medical and out-of-pocket expenses. 

This is a significant issue for workers living with debilitating autoimmune conditions who must leave their jobs to deal with their physical disabilities and who often need care over many years, which can cost hundreds of thousands of dollars.

It is grossly unjust for affected workers to be so severely limited in what they can claim in the Dust Diseases Tribunal.

What’s needed to fix the problem?

The good news is the fix is relatively simple.

The solution is to amend the Dust Diseases Tribunal Act – specifically the definition of “dust-related condition” – to cover silica-induced autoimmune diseases such as systemic sclerosis, rheumatoid arthritis, and scleroderma.

Doing so would mean that not only would the Tribunal have the exclusive jurisdiction to deal with these injuries but also that affected workers would be able to claim unrestricted common law damages. 

For workers like Kevin, this would mean a streamlined process through the Tribunal to secure the compensation he needs to plan for his care, his loss of income and the immense pain and suffering he will endure in the future.