Elborough and Comcare (Compensation)

[2016] AATA 29

Elborough and Comcare (Compensation) [2016] AATA 29 (28 January 2016)

Division	GENERAL DIVISION
File Number	2014/0325
Re	Reginald Elborough
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Deputy President K Bean
Date	28 January 2016
Place	Adelaide

The decision under review is affirmed.

......... [Sgd] ..........................................

Deputy President K Bean

CATCHWORDS

COMPENSATION – Commonwealth employees – Whether applicant’s claimed conditions caused by exposure to ionising radiation at Maralinga – Whether conditions contributed to by applicant’s employment with Postmaster-General’s Department – Low-level radiation exposure did not make any contribution to conditions – Decision under review affirmed.

LEGISLATION

Commonwealth Employees' Compensation Act 1930

Compensation (Commonwealth Employees) Act 1971
Safety, Rehabilitation and Compensation Act 1988, ss 5B, 7(1), 7(4), 124

Safety, Rehabilitation and Compensation (Specified Diseases) Notice 2007(1)

CASES

Jovanovski v Telstra Corporation Limited (2008) 101 ALD 526

Re Hannaford and Telstra Corporation Limited [2008] AATA 879
Comcare v PVYW (2013) 250 CLR 246
Hatzimanolis v A.N.I. Corporation Limited (1992) 173 CLR 473
Coward v Military Compensation and Rehabilitation Service (2006) 153 FCR 535

Abrahams v Comcare (2006) 93 ALD 147

SECONDARY MATERIALS

Walker F, Maralinga: The Chilling Exposé of Our Secret Nuclear Shame and Betrayal of Our Troops and Country (Hachette Australia, 2014)

REASONS FOR DECISION

Deputy President K Bean

28 January 2016

1. The applicant, Mr Elborough, is 83 years old. On 22 June 2010, he lodged a claim for compensation in respect of a number of conditions which he contends resulted from exposure to ionising radiation while he was stationed at Maralinga in 1957, during his employment with the Postmaster-General’s Department (PMG) as a postal clerk.

2. The conditions Mr Elborough attributes to his time at Maralinga were specified before the Tribunal as follows:

   1)Tinnitus;

   2)Dry ears, eyes, nose and mouth;

   3)Ear pain;

   4)Migraine;

   5)Hepatitis;

   6)Calcification of costal cartilage;

   7)Osteoarthritis;

   8)Rheumatoid arthritis;

   9)Honey bee sting allergy;

   10)Sinuses;

   11)Disseminated Idiopathic Skeletal Hyperostosis (DISH);

   12)High cholesterol;

   13)Overactive immune system;

   14)Bridging of thoracic vertebrae;

   15)Skin cancers;

   16)Prostate cancer and removal;

   17)Irritable bladder/infection;

   18)Hypertension;

   19)Bowel and urinary tract;

   20)Impotence;

   21)Irritable bowel and gastrointestinal tract;

   22)Scarring of both lungs;

   23)Osteoporosis;

   24)Cataracts;

   25)Mouth ulcers;

   26)Muscle cramps;

   27)Hay fever;

   28)Viral infection;

   29)Alcohol allergy; and

   30)Chronic Obstructive Pulmonary Disease (COPD).[1]

   [1]     Exhibit 8.

3. On 2 December 2010, the respondent (Comcare) denied liability for Mr Elborough’s claimed conditions (which did not include all of those listed above[2]), and that decision was affirmed upon reconsideration by a Comcare Review Officer on 5 December 2013.

   [2]     Ear pain, hepatitis, bee sting allergy, high cholesterol, impotence, mouth ulcers, muscle cramps, hay fever, viral infection, alcohol allergy and COPD were not referred to in Mr Elborough’s claim for compensation: PT3/41.

4. On 22 January 2014, Mr Elborough applied for review of that decision by this Tribunal, giving rise to these proceedings.

   ISSUES

5. It follows that in broad terms the issue for my determination is whether any of the claimed conditions are attributable to Mr Elborough’s employment with the PMG, such that compensation is payable with respect to them. I understand Comcare’s position to be that it does not dispute that Mr Elborough suffers from each of the conditions, notwithstanding the limited medical evidence.

6. I also note that Comcare does not press the issue of whether adequate notice of his ‘injuries’ was given by Mr Elborough within the periods required by the applicable legislative provisions. Ms Walker, who appeared as counsel for Comcare at the hearing, confirmed that it was not necessary from the respondent’s point of view for the Tribunal to decide this issue, and accordingly I do not propose to do so.

   LEGISLATION

7. As the ‘dates of injury’ in respect of Mr Elborough’s claimed conditions range from 1958 to 2010, each of the Commonwealth Employees' Compensation Act 1930 (the 1930 Act), Compensation (Commonwealth Employees) Act 1971 (the 1971 Act) and Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) are potentially applicable to determining whether the relevant conditions are compensable.[3]

   [3] See SRC Act, ss 7(4) and 124.

8. However, given the number of claimed conditions, I will first consider the evidence regarding their association with ionising radiation, before setting out and applying the relevant legislative provisions insofar as it is necessary for me to do so. 

   ARE ANY OF THE CLAIMED CONDITIONS KNOWN TO BE ASSOCIATED WITH EXPOSURE TO IONISING RADIATION?

9. The only specialist medical evidence before me on this issue is that of Dr Stevenson, Consultant Physician. Dr Stevenson prepared two reports dated 11 June 2014 and 8 December 2014 respectively[4] and also gave oral evidence at the hearing.[5]

   [4]     Exhibits 14 and 15.

   [5]     Dr Bhise, Mr Elborough’s treating general practitioner, has also provided some written reports. However, these simply indicate that some of Mr Elborough’s conditions “could” have been contributed to by his time at Maralinga. Dr Bhise does not address the issue of causation in any detail, or positively state that any condition suffered by Mr Elborough was contributed to by his time at Maralinga : See for example T9/58.

10. Of the 30 conditions listed above, Dr Stevenson opined that only certain types of skin cancers, hypertension, certain types of cataracts, and mouth ulcers have a known association with exposure to ionising radiation. However, he said that mouth ulcers arise in the context of acute radiation sickness and he would not expect them to be an ongoing issue even in those cases.

11. Dr Stevenson’s evidence was that he was not aware of any association between exposure to radiation and the other claimed conditions. He qualified this opinion in respect of “sinuses”, noting that a “monstrously high” dose of radiation to the local area may have an effect, but said that this was not applicable in Mr Elborough’s case.

12. As I accept Dr Stevenson’s evidence on this issue, it follows that, aside from the conditions of skin cancer, hypertension and cataracts, I do not need to consider whether the remaining conditions claimed by Mr Elborough were contributed to by his employment.  That follows from the fact that there is simply no evidence before me that they are linked with exposure to radiation (or, in the case of mouth ulcers, that Mr Elborough has suffered from acute radiation sickness), and therefore no basis for a conclusion that any of the remaining conditions are related to Mr Elborough’s employment with the PMG.

13. Accordingly, I propose to next consider whether the three conditions identified by Dr Stevenson as having some known association with exposure to ionising radiation were contributed to by Mr Elborough’s time at Maralinga.

    WERE MR ELBOROUGH’S SKIN CANCERS, HYPERTENSION AND CATARACTS CONTRIBUTED TO BY HIS EMPLOYMENT?

    Mr Elborough’s exposure

14. There is no real dispute between the parties as to the circumstances of Mr Elborough’s exposure to ionising radiation while he was at Maralinga. Mr Elborough was stationed in Maralinga village between 21 February 1957 and 30 September 1957, which included a period during which there were two major British nuclear tests, both in September 1957. In addition, he visited the area where the actual tests were undertaken, approximately 40 kilometres north of Maralinga village (known as the “Forward Area”) on two occasions. During his first visit, Mr Elborough recalls going to one of the 1956 test sites, and being able to see the “glazing”. During the second visit, he recalls visiting a tower which he believes was used as a “detonation point” during the 1957 tests.

15. As to the precise nature and extent of Mr Elborough’s exposure to ionising radiation, I have also been assisted by the evidence of Dr Philip Crouch who has 35 years of experience in radiation protection and was also involved in the clean-up of the Maralinga test site. Dr Crouch holds a Bachelor of Science with Honours, as well as a PhD in Physics, from the University of Adelaide. He provided written reports dated 1 October 2014[6] and 24 November 2014[7], and also gave oral evidence at the hearing.

    [6]     Exhibit 16.

    [7]     Exhibit 17.

16. Based on his understanding of Mr Elborough’s movements at Maralinga, including his visits to the Forward Area, Dr Crouch stated in his second report that he considered the dose of ionising radiation Mr Elborough would have received whilst he was at Maralinga “would have been less than 1mSv, and probably significantly less”.[8] He also stated:

    I consider that the majority of such exposure would have arisen while viewing the “glazing”, probably from the Breakaway test, with possible additional exposures from inhalation of dust, and visiting a site being prepared for a 1957 test.[9]

    [8]     Exhibit 17.

    [9]     Exhibit 17.

17. Having regard to when he was at Maralinga, Dr Crouch concluded that it was unlikely that Mr Elborough would have been exposed to ionising radiation above background levels whilst in Maralinga village[10].

    [10]    Exhibit 16.

18. Dr Crouch essentially adhered to these opinions during his oral evidence, confirming he had taken into account Mr Elborough’s recollection of having been “smothered in dust”, during his first visit to the Forward Area.

19. In the absence of any contrary expert evidence, I accept Dr Crouch’s opinions as to the extent of Mr Elborough’s exposure to ionising radiation whilst at Maralinga.

    Dates of injury

20. Mr Elborough recorded in respect of his skin cancers “numerous removed since FEB 1995”. He indicated the onset of hypertension as being “1996? 1997”. With respect to cataracts, he recorded the relevant date as being 19 May 2010.[11]

    [11]    Exhibit 8.

21. At the hearing, Ms Walker accepted that, given the limited evidence before the Tribunal, the dates nominated by Mr Elborough as the relevant dates of onset/first medical treatment ought to be adopted by the Tribunal.

22. Proceeding on that basis, it follows that liability for these conditions is to be determined by reference to the SRC Act[12].

    [12] SRC Act, subs 7(4).

    Applicable legislative provisions

23. I do not understand it to be in dispute that each of the three conditions are ‘diseases’ for the purposes of the SRC Act. Section 5B relevantly provides:

    Definition of disease

    (1)    In this Act:

    disease means:

    (a)    an ailment suffered by an employee; or

    (b)   an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

24. However, prior to the amendments made in 2007, the relevant test (then in subsection 4(1) of the SRC Act) was whether the employment made a “material” contribution to the disease. Accordingly, in respect of skin cancers and hypertension, the relevant test is whether Mr Elborough’s employment made a material contribution to those conditions. With respect to cataracts, the “significant” contribution test in section 5B is applicable.

25. Bearing those amendments in mind, section 7 of the SRC Act also currently provides:

    (1)    Where:

    (a)an employee has suffered, or is suffering, from a disease or the death of an employee results from a disease;

    (b)the disease is of a kind specified by the Minister, by legislative instrument, as a disease related to employment of a kind specified in the instrument; and

    (c)the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth or a licensed corporation in employment of that kind;

    the employment in which the employee was so engaged shall, for the purposes of this Act, be taken to have contributed, to a significant degree, to the contraction of the disease, unless the contrary is established.

    The Safety, Rehabilitation and Compensation (Specified Diseases) Notice 2007(1) relevantly includes the following:

24 Diseases caused by ionising radiation. Employment involving exposure to the action of ionising radiation.

Does the deeming provision in subsection 7(1) apply?

1. Ms Walker contends that Mr Elborough cannot avail himself of the deeming provision in subsection 7(1) of the SRC Act because he was not engaged in employment involving exposure to ionising radiation. She referred me to Gyles J’s judgment in Jovanovski v Telstra Corporation Ltd,[14] in which his Honour said:

   [14] (2008) 101 ALD 526.

   In practical terms, the question is whether the condition presented is known to be caused by vibration or, put another way, whether it is consistent with being caused by vibration. Then, if employment involved the exposure to vibration, the statutory presumption applies.[15]

   [15] At [22].

   Ms Walker also referred me to the following paragraphs in the Tribunal’s decision upon remittal by the Federal Court in ReHannaford and Telstra Corporation Limited[16]:

   Item 28 of the Declaration made under Ss 7(1) of the Act specifies “occupational infectious or parasitic diseases” as a kind of disease and specifies the kind of employment involving exposure to risk as:

   Employment carrying a particular risk of contamination including:

   (a)  Health or Laboratory Work;

   (b)  Veterinary Work;

   (c)  Work handling animals, animal carcasses, parts of such carcasses, or merchandise which may have been contaminated by animals, animal carcasses or parts of such carcasses.

   The words of the schedule referred to “employment” as carrying a particular risk of contamination. That is to say, it is the employment per se that must carry the particular risk, as for example in the occupations specified, and not, as in this case, the geographical area in which the employment is carried out.[17] (emphasis added)

   [16] [2008] AATA 879.

   [17]    At [12]-[13].

2. As I understand it, Mr Elborough does not contend that there was any aspect of his employment duties with the PMG that required him to leave the Maralinga village and go on trips to the Forward Area. Rather, he contends that he went on these trips voluntarily as it was “something to break the monotony” of the camp, which he described as being “boring and sparse” as well as “isolated and isolating”.

3. Having regard to the fact that Mr Elborough’s employment duties did not require him to leave the Maralinga village and risk exposure to ionising radiation above background levels, I am not satisfied that Mr Elborough can avail himself of the deeming provision in subsection 7(1) of the SRC Act.

4. Having concluded that the deeming provision does not apply, the next issue for my consideration is whether any of the relevant three conditions suffered by Mr Elborough were contributed to by his employment, to the requisite degree.

   Were Mr Elborough’s conditions contributed to, to the requisite degree, by his employment?

   The relevant case law

5. Ms Walker submitted that the relevant questions were whether Mr Elborough was exposed to ionising radiation and, if so, whether the exposure was at a level which could be said to have made a significant or material contribution to his conditions. She also contended that his only exposure above background levels was on two visits to the Forward Area, which were “not within the course of employment” in any event, and drew my attention to the High Court cases of Comcare v PVYW[18] and Hatzimanolis v A.N.I. Corporation Limited[19]. Ms Walker acknowledged that those authorities were not directly relevant in this context because they related to injuries simpliciter. Nevertheless, she submitted that they were the “closest analogy” available.

   [18] (2013) 250 CLR 246.

   [19] (1992) 173 CLR 473.

6. However, I am not persuaded that those authorities are applicable to diseases. In assessing whether a person’s employment has contributed to their disease, the authorities make clear that regard may be had to whether, by reason of their employment, they were exposed to some risk or some state of affairs they would not otherwise have been exposed to. Some of the relevant cases were summarised by Cowdroy J in Coward v Military Compensation and Rehabilitation Service (2006) 153 FCR 535 where, having discussed the authorities, his Honour observed:

   26A definition of employment which rests solely on a temporal distinction between periods on-duty and periods off-duty is likely to be inconsistent with the authorities outlined above. As was the case in Roncevich, there may be periods when a person is officially off-duty and yet is engaged in activities which, as a matter of practicality, form part of their employment. In Wall the Court also accepted that employment in the military may contribute to an injury if it places a person in circumstances which lead to an injury, even where the injurious activity is not specifically required or expected by the employment. I note that in the passage of Roncevich quoted above, the High Court referred to the need to take into consideration the circumstances in which employment is undertaken. This is consistent with previous authority to the effect that matters ancillary or incidental to employment form part of employment … .

   27Following the above authorities, I consider that the appropriate approach is to consider the nature of the activity being undertaken at the time the injury is received or the disease is contracted, and the circumstances in which that activity is being undertaken. If the activity is the cause of the injury or disease, and that activity is something which is required or expected as part of the person’s duties, then clearly the employment contributes to the injury or disease: see Roncevich.

   28However, even where the specific activity which leads to injury or disease is not itself required or expected as part of the person’s duties, where the injury or disease flows from the circumstances in which that activity is undertaken, and those circumstances result from the employment, it may be concluded that the injury or disease was contributed to by the employment: e.g. where an injury results from drinking contaminated water from a tap at barracks. Similarly, when the activity is undertaken solely or party (sic) because of the circumstances of the employment (as was the case in Wall), the employment may be found to have contributed to the injury or disease.

   29As the Full Court noted in Wall, causation is a question of fact, and it may be difficult to establish that an injurious activity was engaged in as a result of the circumstances in which a person was placed by their employment: see Wall at [35]. In summary, I consider that an injury or disease may be contributed to by a person’s employment if caused by an activity which forms part of that employment or if caused by the circumstances in which the employment is undertaken.

7. Given the particular and unusual circumstances of Mr Elborough’s employment at Maralinga, it appears to me to be at least arguable that Mr Elborough would not have been exposed to ionising radiation if he had not been stationed at Maralinga by the PMG. It is therefore also arguable that any diseases resulting from that exposure were contributed to by his employment with the PMG.

8. However, this issue will only arise squarely for determination if I am satisfied that Mr Elborough’s exposure to ionising radiation contributed, to the requisite degree, to any of the relevant conditions. Accordingly I will first address that issue, before returning to this question if necessary.

   Skin cancers

1. Dr Stevenson gave evidence that the likelihood of a person developing skin cancer is “profoundly determined by childhood exposure” to the sun. He said that a comparison of UK and Australian workers at Maralinga showed that the UK workers did not have a high incidence of skin cancer, but the Australian workers did, suggesting that the latter were susceptible by virtue of having grown up in Australia and not because of their time at Maralinga.

2. Dr Stevenson also said that melanomas are not thought to be related to exposure to radiation, while basal cell carcinoma is strongly related to childhood exposure to the sun, as well as high-dose radiation. He also acknowledged that squamous cell carcinoma is “more related to radiation”. He noted that over the years, Mr Elborough had had all three types of skin cancer.[20]

   [20]    Exhibit 14, p 2.

   Hypertension

3. Dr Stevenson regarded the relationship between hypertension and exposure to radiation as being “dose-dependent”, such that the greater the exposure to radiation, the greater the likelihood of a causal relationship between that and the subsequent onset of hypertension. He stated in his report that there was “marginal evidence of increased hypertension and excess vascular events in the highly exposed atom bomb cohort but not otherwise.”[21]

   [21]    Exhibit 14, p 5.

   Cataracts

4. Dr Stevenson’s evidence was that a subgroup of cataracts was more common in Hiroshima and Nagasaki survivors, who were exposed to high-dose radiation. However, he was not able to confirm whether Mr Elborough’s cataracts were of that type, and nor is there any evidence before me which answers that question.

5. Relevantly, Dr Stevenson noted that there was no evidence of cataracts in the study of the UK workers at Maralinga, who were exposed to lower doses of radiation. He added that cataracts are common in the community, often associated with ageing, and possibly more common in sunny countries like Australia.

   Dr Stevenson’s overall opinion

6. Dr Stevenson was “very confident” that there was no connection between Mr Elborough’s conditions and his exposure to relatively low levels of ionising radiation. In response to Mr Elborough’s contention that his particular sensitivities may have caused him to have a greater reaction to low-dose radiation exposure, Dr Stevenson indicated that he could see no reason why that would be the case.

   Consideration

7. Noting that there is no contrary expert evidence, I accept the opinions of Dr Crouch and Dr Stevenson respectively, as to the likely extent of Mr Elborough’s exposure to ionising radiation whilst at Maralinga, and the likelihood of a causal relationship between this and his subsequent medical conditions. I note that their evidence is to the effect that Mr Elborough’s exposure to ionising radiation was relatively low, and there is unlikely to be any causal relationship between that exposure and any of the medical conditions he has subsequently developed, including skin cancers, hypertension and cataracts.

8. In these circumstances, I have concluded that it is unnecessary for me to determine the issue of whether Mr Elborough’s exposure to radiation was sufficiently connected with his employment so as to potentially give rise to compensation liability. That is because I am not satisfied in any event that Mr Elborough’s exposure to ionising radiation made any contribution to any of his claimed conditions. That being the case, and regardless of which Act applies to which condition, I am not satisfied that Comcare is liable to pay compensation with respect to any of those conditions.

   OTHER MATTERS

9. For completeness, I should acknowledge that Mr Elborough also relied on the evidence of Mr Stephen Walters, Naturopath, who provided a report dated 6 January 2015[22] and also gave brief oral evidence. During his evidence Mr Walters acknowledged that he had no expertise in ionising radiation. He confirmed that he considered a number of Mr Elborough’s comorbidities may be related to his employment with the PMG, with the causal relationship being based on stress caused to Mr Elborough by his perception of being exposed to something toxic during his employment. However, he indicated this was something he regarded as possible rather than probable. Accordingly, Mr Walter’s evidence did not support the existence of any causal connection between Mr Elborough’s claimed conditions and his employment by the PMG, on the balance of probabilities.

   [22]    Exhibit 13.

10. Mr Elborough also provided me with a copy of a book written by Mr Frank Walker entitled “Maralinga: The Chilling Exposé of Our Secret Nuclear Shame and Betrayal of Our Troops and Country”[23], and directed me to particular parts and passages of the book. However, so far as I have been able to ascertain, there is nothing in this book which is specifically directed to quantifying Mr Elborough’s precise exposure to ionising radiation, or the effects of this upon him. As such, I have found it of little assistance in resolving the issues arising for my determination in this matter.

    [23]    Walker F, Maralinga: The Chilling Exposé of Our Secret Nuclear Shame and Betrayal of Our Troops and Country (Hachette Australia, 2014).

    CONCLUSION

11. I accept that Mr Elborough has multiple comorbidities which he believes were caused by his exposure to radiation at Maralinga. However, the medical and expert evidence before me is to the effect that the low level of radiation he was exposed to did not make any contribution to those conditions. In those circumstances, I have concluded that none of the conditions attract compensation liability, and I am therefore obliged to affirm the decision under review, which denied compensation liability for the claimed conditions.

12. In light of my conclusions, I have considered whether I should vary the decision under review so as to deny liability for the additional conditions not referred to by Mr Elborough in his initial compensation claim. However, as I am not satisfied that I have jurisdiction with respect to those additional conditions[24], I have ultimately concluded that it is more appropriate for me to simply affirm the decision under review.

    [24]    Abrahams v Comcare (2006) 93 ALD 147.

    DECISION

13. The decision under review is affirmed.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

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Associate

Dated 28 January 2016

Dates of hearing	27 and 28 July 2015
Date final submissions received	18 September 2015
Applicant	In person
Counsel for the Respondent	Ms G Walker
Solicitors for the Respondent	Sparke Helmore Lawyers

[13]    This provision was in substantially the same terms before the 2007 amendments, but reflected the “material” contribution test which was then applicable.