Clarity-Workplace-Solutions-Investigating- personal-injury-claim- silicosis

Investigating a personal injury claim for silicosis

In October 2018, WorkSafe attended the premises of a small family business in outer Melbourne. This employer cut and installed benchtops for kitchens and bathrooms, using a mixture of natural and engineered stone. Their six employees used extractors, misters and a curtain while cutting, but did not always wear masks. WorkSafe screened staff for silicosis as part of an industry-wide review, and two of the six employees tested positive.

Engineered stone declared a health & safety hazard

In February 2023, the Victorian Government formally stated that it will support a national ban on engineered stone ‘to protect workers from this devastating lung disease’. The Occupational Health and Safety Amendment (Crystalline Silica) Regulations 2021 (Vic) are now in force and apply to manufacturers, suppliers and employers from 15 May 2023. WorkSafe has also provided this guide to Preventing Exposure to Crystalline Silica Dust.

The duties for employers under the regulations include the reduction of risk through water delivery or dust extraction systems, PPE, instructions, training, and clear warnings to employees. The regulations also mandate health monitoring by specialist physicians, atmospheric reports and a statement of service issued to leaving employees, with advice to continue regular medical checks. 

We trust that these regulations will eventually result in a reduction of silicosis cases. In the meantime, increasing numbers of workers are receiving this devastating diagnosis.

What’s unique about silicosis investigations?

The primary focus of a silicosis investigation is gathering as much evidence as possible regarding the system of work and steps taken by the employer to mitigate risk. This should include:

  • Obtaining video footage of the relevant system of work, if the Employer is still operating, and detailed descriptions including specifications of equipment when attending the site is not possible.
  • Obtaining witness statements, not only from the Employer’s representatives, but former and current employees who can provide evidence regarding the system of work, the Worker’s duties and the use of PPE and safety equipment.
  • Collecting documentation regarding:
    • Duties and equipment involved in the cutting of engineered stone
    • Risk assessments and OHS expert consultant reports
    • Induction and safety training
    • Policies and procedures (particularly related to PPE and safety equipment)
    • Atmospheric testing and monitoring
    • The involvement of third parties such as manufacturers
    • Prior silicosis cases in the workplace
    • Prior investigations by WorkSafe
  • Clearly setting out the information gathered in a report that answers a client’s specific questions and includes a Chronology of key events to provide context to witness statements and documentation attached to the report. 

The primary difficulties associated with silicosis matters generally relate to the common occurrence of the employer having ceased operations. This can result in records having been lost or destroyed, witnesses who have long since moved on, former employer owners being unwilling to cooperate and difficulty identifying third parties such as manufacturers and suppliers who may be implicated in the claim.

Clarity’s factual investigation team includes several investigators who are highly experienced in silicosis and dust-disease matters. Contact us and speak with Peter Donegan, Manager – Factual Investigations, or Martin Gannoni, Senior Consultant, for advice on complex and urgent investigation matters or join our community to hear more about the latest developments in investigations.