Freeman and Military Rehabilitation and Compensation Commission (Compensation)

[2016] AATA 741

Freeman and Military Rehabilitation and Compensation Commission (Compensation) [2016] AATA 741 (23 September 2016)

Division:  VETERANS’ APPEALS DIVISION

File Number:  2015/0962

Re:  PENELOPE FREEMAN

APPLICANT

And:MILITARY REHABILITATION AND COMPENSATION COMMISSION

RESPONDENT

DECISION

Tribunal  Deputy President S A Forgie

Date  23 September 2016

Place  Melbourne

The Tribunal decides to:

affirm the reviewable decision made by the respondent dated 12 February 2015 affirming its earlier decision dated 12 September 2014 refusing the applicant’s claim.

………[sgd]…………….

Deputy President

CATCHWORDS – COMPENSATION – melanoma – whether applicant’s melanoma a disease or an injury (other than a disease) – whether occupational disease specified by the Minister – presumption of material contribution rebutted – whether applicant’s service materially contributed to malignant melanoma – reviewable decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975; s 37

Defence Act 1903; s 19
Military Rehabilitation and Compensation Act 2004
Safety, Rehabilitation and Compensation Act 1988 (as in operation before 1 July 2004); ss 4(1), 7(1), 7(1)(a), 7(1)(b), 7(1)(c), 7(4), 7(4)(a), 14(1), 16(1), 16(2), 141, 142(1)(a)
Safety, Rehabilitation and Compensation Act 1988; ss 4(1), 5A, 5B
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007; ss 2, 3; Sch 1
Veterans’ Entitlements Act 1986

Notice S365 in Government Gazette dated 30 November 1988; Items 24 25
Safety, Rehabilitation and Compensation (Revocation of Declaration and Specification) Notice 2007 (1)
Safety, Rehabilitation and Compensation (Specified Diseases) Notice 2007 (1)
Statement of Principles No 40 of 2001 cl 6(a)
Statement of Principles No 80 of 2007 cll 5, 6, 9

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

CASES

Accident Compensation Commission v McIntosh [1991] 2 VR 253

Adelaide Stevedoring Company Limited v Forst [1940] HCA 45; (1940) 64 CLR 538
Australian Telecommunications Corporation v Moffatt (1992) 15 AAR 289
Bird v The Commonwealth [1988] HCA 23; (1988) 165 CLR 1; 78 ALR 469; 62 ALJR 336

Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535; 229 ALR 445; 80 ALJR 1578

Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522; 227 ALR 75; 90 ALD 31; 42 AAR 335
Comcare v Mooi [1996] FCA 1587; (1996) 69 FCR 439; 137 ALR 690; 42 ALD 495; 23 AAR 160
Comcare v Power [2015] FCA 1502; (2015) 238 FCR 187; 149 ALD 286; 68 AAR 228
Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536; 44 AAR 523
Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232; 89 ALD 258; 41 AAR 539
Commonwealth v Beattie [1981] FCA 88; (1981) 53 FLR 191; 35 ALR 369
Dunstan v Comcare [2011] FCAFC 108; (2011) 125 ALD 362
Jovanovski v Telstra Corporation Ltd [2008] FCA 465; (2008) 101 ALD 526
Kavanagh v The Commonwealth [1960] HCA 25; (1960) 103 CLR 547
Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626; 74 ALJR 1298
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626
Ogden Industries Pty Limited v Lucas [1967] HCA 30; (1967) 116 CLR 537
Repatriation Commission v Bendy (1989) 10 AAR 323; 18 ALD 144
Suters v Australian Postal Corporation (1992) 28 ALD 320
The Commonwealth v Hornsby [1960] HCA 27; (1960) 103 CLR 588
Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535
Wiegand v Comcare Australia [2002] FCA 1464; (2002) 72 ALD 795
Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 187 CLR 310; 140 ALR 156; 71 ALJR 32

OTHER MATERIAL

Blakiston’s Gould Medical Dictionary, 4th edition, 1979, McGraw Hill

Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Sybil P Parker, editor in chief, McGraw-Hill Dictionary of Scientific and Technical Terms, 5^th edition, 1994

REASONS FOR DECISION

1. Ms Freeman moved to Townsville with her family in 1976 when she was five years of age.  She joined the Army Reserve (Reserves) in 1991 in Townsville and was diagnosed with melanoma in 1999.  That was the year that she enlisted in the Australian Army.  Ms Freeman’s melanoma has metastasised and she has suffered significant episodes of metastatic disease as a consequence.  She has claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). I have decided that melanoma is a disease and not an injury (other than a disease) for the purposes of the legislation. Even if Ms Freeman’s melanoma is a disease of a kind specified by the Minister as a disease related to a kind that she undertook in the Reserves under s 7(1), I have decided that the presumption that would be raised by that provision does not arise. It does not arise because I am satisfied that Ms Freeman’s employment in the Reserves did not contribute in a material degree to her contracting melanoma. Therefore, I have decided to affirm the decision made by the Military Rehabilitation and Compensation Commission (MRCC) dated 12 February 2015. That decision affirmed its earlier decision dated 12 September 2014 refusing Ms Freeman’s claim for compensation.

BACKGROUND

1. The factual matters forming the background to the issues to be decided in this case were not in dispute between the parties.  They are supported by material lodged by the MRCC in the T documents[1] and I set out the findings of fact I have made on them in this section of my reasons.

   [1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975.

1. Ms Freeman was born in Melbourne and lived there for the first five years or so before moving to Townsville in 1976.  Between January 1988 and September 1993, she worked as a bank teller in Townsville.  In that position, she wore shorts, long trousers and short and long skirts in that time as well as short and long-sleeved shirts.  In July 1991, Ms Freeman enlisted in the Reserve, and so in the Australian Army[2] (Army), as a unit pay clerk/soldier and served until September 1993 when she left to live in London.  She returned to Townsville in 1995 and re-enlisted in the Reserves in January 1996.  Ms Freeman served in the Reserves until November 1999 when, on 3 November 1999, she enlisted in the Regular Army.

[2] The Australian Army consists of the Regular Army and the Army Reserve: Defence Act 1903; s 19.

1. Ms Freeman’s service in the Reserves required her to perform approximately 100 days each year in both indoor and outdoor work.  She was required to participate in unit physical training to maintain the required level of fitness.  During that time, she was posted to Townsville.  Sunscreen was not supplied by the Army during her service in the Reserves.  During her service in the Reserves, Ms Freeman wore a hat, short sleeve shirt or long sleeve shirt with the sleeves rolled up to the elbows and shorts or long trousers.  Ms Freeman continues to be a serving member of the Regular Army.  I will refer to her service as service with the Australian Defence Force (ADF) but note that her relevant service is that with the Reserves for it preceded her diagnosis with melanoma in 1999.

1. In or about September 1999, Ms Freeman had a wide local excision/re-excision of a Level 2 melanoma from her anterior left upper thigh.  Later, in 2010, Ms Freeman was diagnosed with left groin recurrent node positive melanoma with one of 14 nodes positive.  On 30 September 2010, she underwent a left radical groin dissection.  Since then, Ms Freeman has suffered further recurrences of metastatic disease in her brain, left lung and right shoulder requiring surgical and other treatment.  On the basis of the report of Professor Richard Fox dated 10 September 2014, I find that Ms Freeman has had only one skin melanoma and that her subsequent diseases are the recurrence and metastatic diseases from the original primary lesion.[3]

   [3] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) T34 at 80

1. On 11 March 2014, Ms Freeman lodged a claim for compensation for malignant melanoma on her left thigh as a result of her exposure to sun during her service in the ADF.  She first received treatment for that condition in July 1999.  The MRCC disallowed her claim for compensation on the basis that her service had not materially contributed to the contraction of her malignant melanoma.  Therefore, her condition did not meet the definition of “disease” in s 4(1) of the SRC Act. It did so in a decision dated 12 September 2014.

1. When seeking reconsideration of that determination, Ms Freeman’s solicitors submitted that a service related contribution of 4%, as assessed by Professor Fox, was a sufficient foundation on which to conclude that her malignant melanoma had been “contributed to in a material degree” by her employment.  The MRCC took the view that the contribution was “minimal” and, on 12 February 2015, affirmed its earlier decision. 

LEGISLATIVE BACKGROUND

General outline

1. Subject to certain qualifications in ss 14(2) and (3) that have no relevance in this matter, s 14(1) of the SRC Act provides that:

   “Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”

At all relevant times, Ms Freeman has been an “employee”.  Although the provision is expressed in terms of Comcare’s liability, the MRCC has responsibility for determining defence-related claims under the SRC Act.[4]  Ms Freeman’s claim is a “defence-related claim” because she has made it in respect of an injury to which the Military Rehabilitation and Compensation Act 2004 does not apply and relates to defence service that occurred before 1 July 2004.[5]

[4] SRC Act; s 142(1)(a)

[5] SRC Act; s 141

1. In addition to its liability under s 14, the MRCC is also liable to pay compensation in respect of other losses and expenses specified in Part II of the SRC Act. Among them is its liability to pay compensation in respect of the cost of reasonable medical treatment obtained in relation to an injury. Liability to pay and the amount of that compensation is determined under s 16(1). That liability applies whether or not the injury results in death, incapacity for work or impairment.[6]

   [6] SRC Act; s 16(2)

Injury: a disease or an injury other than a disease

1. The word “injury” and related expressions are defined in the SRC Act.  Since Ms Freeman was first diagnosed with her condition in 1999, those definitions have been amended.  Of particular relevance in this case are amendments made by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (SRCOLA Act) in 2007 to s 4(1). Those amendments inserted a new definition of “injury” in s 5A and of “disease” in s 5B[7] with effect from 13 April 2007.[8]  They apply, however, only to an injury or disease suffered after the day on which the SRCOLA Act received Royal Assent i.e. 12 April 2007.[9]  As Ms Freeman’s condition was first diagnosed in 1999,[10] that means that the definitions as they appeared in the SRC Act before that day apply in this case.

   [7] SRCOLA Act; s 3 and Schedule 1; Item 11

   [8] SRCOLA Act; s 2; Item 2

   [9] SRCOLA Act; s 3, Schedule 1; Items 41 and 42

   [10] For the purposes of the SRC Act, an employee is taken to have sustained an injury, being a disease, on the day when he or she first sought treatment for it: SRC Act; s 7(4)(a). That would have been on or before the date of diagnosis. If Ms Freeman’s condition is more accurately described as an injury, the outcome is the same for she must have sustained the injury before that date.

1. The word “injury” is defined in s 4(1) of the SRC Act:

   “injury means:

   (a)       a disease suffered by an employee; or

   (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

   (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment:

   but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”

2. Section 4(1) draws into the meaning of the word “injury” a “disease”.  The word “disease” is defined in s 4(1):

   “disease means:

   (a)any ailment suffered by an employee; or

   (b)the aggravation of any such ailment;

   being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”

1. Section 4(1) defined the word “ailment” to mean:

   “… physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”

The word “aggravation” was defined to include acceleration or recurrence.[11]

[11] SRC Act; s 4(1)

1. Section 7(4) is concerned with the time at which a person is taken to have sustained a disease. It was not amended by the SRCOLA Act and provides:

   “For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:

   (a)       the employee first sought medical treatment for the disease, or aggravation;

   (b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;

   whichever happens first.”

A deeming provision relating to diseases

1. Section 7(1) makes provision for diseases of a kind that have been specified by the Minister in writing. That section was amended by the SRCOLA Act.[12]  The amendments reflect the changes made to the definition of “disease” in 2007 to qualify the ailment or aggravation as one that was contributed “to a significant degree” by the employee’s employment, rather than “in a material degree” as had previously been the case.  They also reflect a change from the Minister’s specifying a disease by “notice in writing” to specifying it by “legislative instrument”. I will set out the provisions of s 7(1) in its form as it was enacted up to and including 12 April 2007.

   “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 notice in writing as a disease related to employment of a kind specified in the notice; 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 in a material degree to the contraction of the disease, unless the contrary is established.”

   [12] SRCOLA Act; s 3 and Schedule 1; Item 14

1. In a Notice published in the Government Gazette dated 30 November 1988 and numbered S365 (1988 SD Notice), the Minister specified kinds of diseases and kinds of employment including the following at Item 25:

DECLARATION UNDER s 7(1)
Specified diseases and specified employments
“Occupational Diseases	Employment involving exposure to risk
…	…
25.       Skin diseases caused by physical, chemical or biological agents not included under other items.	Employment involving exposure to the risk concerned.”
…	…”

The 1988 SD Notice was revoked with effect from 1 July 2007[13] after the Minister made a further Notice dated 21 June 2007 but taking effect from 1 July 2007[14] (2007 SD Notice).  Given that Ms Freeman was first diagnosed as suffering from melanoma in 1999, the relevant SD Notice remains the 1988 SD Notice.  For all practical purposes, I note that Item 25 specified the same kind of disease and the same kind of employment as had been specified in the earlier notice.  The Explanatory Statement accompanying the 2007 SD Notice confirms that there was no substantive change to the original specifications. 

[13] Safety, Rehabilitation and Compensation (Revocation of Declaration and Specification) Notice 2007 (1)

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

THE EVIDENCE

1. The evidentiary material contains the following medical records of Ms Freeman’s condition from February 2000 until October 2013.   They reveal the extent of the metastases, the surgical and other treatment that she has undergone and her stoicism.  I will not set them out but note that the subsequent conditions are sequelae of the original melanoma suffered by Ms Freeman.  They are not, and are not claimed to be, conditions that have been contributed to by exposure to sunlight.  Professor Fox stated in his second report dated 17 December 2015 that sun exposure has no relationship to the development of metastatic disease.

1. Dr Felix Sedal is a Medical Officer (Compensation) was given Dr Brandt’s report dated 8 March 2013 and was aware that Ms Freeman had initially been diagnosed as suffering from progressive metastatic malignant melanoma in 1999 and that it had recurred in 2011.  In his report dated 14 May 2014, Dr Sedal wrote:

   “Causation:  Sun exposure and sunburn are known risk factors for the development of malignant melanoma.  ‘Exposure to sun during GRES service’ is the contention in this claim.  It is beyond the scope of my expertise to comment on the specific defence related activities that may have led to sun exposure in this case.  Note that sun exposure increases the overall risk, not just the risk to exposed areas (even if the thigh is covered by clothing the risk of developing melanoma in this area can be increased by sun exposure to other areas of the body).

   It would be reasonable to test Ms Freeman’s service against the following factors from the MRCA/VEA SOP:

   (a)having sunburn, where the first episode of sunburn occurred at least five years before the clinical onset of malignant melanoma of the skin; or

   (b)having a solar UV exposure factor ratio of at least 1.2 at the time of the clinical onset of malignant melanoma of the skin; or

   Service contribution: Assuming that one of the above factors is met, contribution is significant and greater than 50%

   Non-service related factors:  Genetic factors, skin type, and childhood/adolescent sun exposure are also risk factors for the development of malignant melanoma.  There is no specific evidence in this case to suggest that these factors would have had a greater contribution than service related sun exposure.

   Supporting Evidence: 
   Specialist letter Dr Conrad Brandt (general surgeon) 08/03/2013
   - Progressive metastatic malignant melanoma
   

   [15] T documents; T30 at 53

   - Initially diagnosed 1999, recurrence 2011”[15]

1. Given their content, Dr Sedal’s references to a MRCA/VEA SOP is a reference to a Statement of Principles (SoP)  made by the Repatriation Medical Authority under and for the purposes of the Veterans’ Entitlements Act 1986 (VE Act).  The particular SoP that would seem to be relevant is SoP No. 80 of 2007 entitled “Malignant Melanoma of the Skin” (SoP 80) and directed to claims that the Repatriation Commission is required to decide on the balance of probabilities.  Clause 6 provided, in part, that:

   “The factor that must exist before it can be said that, on the balance of probabilities, malignant melanoma of the skin or death from malignant melanoma of the skin is connected with the circumstances of a person’s relevant service are:

   (a) having sunburn, where the first episode of sunburn occurred at least five years before the clinical onset of malignant melanoma of the skin; or

   (b) having a solar UV exposure factor ratio of at least 1.2 at the time of the clinical onset of malignant melanoma of the skin; or

   (c)-(e) …”[16]

The “solar UV exposure factor” was determined by reference to a series of formulae specified in cl 9 of SoP 80.  Clause 5 provided that at least one of the factors set out in cl 6 had to be related to the relevant service rendered by the person.[17]

[16] SoP 80 revoked SoP 40 of 2001 in which cl 6(a) had prescribed the factor: “suffering from sunburn before the clinical onset of malignant melanoma of the skin”. 

[17] Cll 5 and 6(a) and (b) were drafted in terms similar to those of its predecessor, SoP 40 of 2001 that was revoked with effect from 4 July 2007.

1. On 5 August 2014, Ms Freeman completed a Solar Skin Damage Questionnaire (SSD Questionnaire).[18]  Based on her answers in that questionnaire, I have summarised her early life before her ADF service in [3] above.  In that questionnaire, she set out some of her interests before service.  They were ballet, which she studied indoors, basketball, which she played indoors and outdoors, and sailing.  Later, she indicated that she went to the gym three days each week, running, bike riding and swimming two days each week and, when overseas, walking and hiking three days each week.  On each occasion, Ms Freeman described the clothing that she wore.  For her gym work and, when overseas, walking and hiking, she wore a hat, a long or short sleeved shirt and shorts or long trousers.  Her back was covered.  Ms Freeman noted that she wore the same range of clothes when running, bike riding and swimming. She wore similar clothing for sailing but wore shorts for ballet and basketball.

   [18] T documents; T32 at 55-74

1. While growing up, Ms Freeman noted that she holidayed for various periods on Magnetic Island, Melbourne and, on one occasion, Perisher Valley.  While serving in the ADF, she had holidayed in rural Victoria, in Darwin and in Brisbane and on the Gold Coast.  Again, Ms Freeman noted the type of clothing that she wore. 

1. Ms Freeman described her exposure in her work in the ADF.[19]  I have summarised it in the following table:

   [19] T documents; T32 at 69

Employment areas where exposed	Sunscreen provided	Length of time spent in area	Establishment/Ship served in at the time
Unit pay clerk/soldier duties	No	2 years  1991-1993 3 years 1996-1999	31 RQR Townsville
Clerk admin/soldier duties	No	2 years – Nov 99 – Dec 02 2 years – Jan 02 – Dec 03	HQ3 Bde – Townsville APA - Townsville
Awards clerk/soldier duties	Yes	6 months – July 2005 to Jan 2006	Sinai Egypt

1. In his first report dated 10 September 2014, Professor Fox noted that the level at which Ms Freeman’s primary lesion was located on her thigh was not noted on the medical records.  Her thigh, however, was an area of her body that would normally have been covered by clothing.  He then turned to ultraviolet rays as a risk factor for melanoma:

   “Ultraviolet rays, i.e. sun exposures is a major risk for melanoma.

   Epidemiological evidence demonstrates higher rates of melanoma in people with extensive or repetitive intensive exposure to sunlight.  The majority of melanomas develop on sun exposed skin.  Notes that intermittent exposure and sunburn in adolescence or childhood was strongly associated with increased risk of melanoma while occupation exposure did not confirm increased risk.

   The geographic incidence of melanoma is highest in equatorial areas and decreases proportionally with distance from the equator, i.e. Townsville/Northern Queensland has much higher risk of development of melanoma than Victoria.

   Melanoma is to be associated with intense intermittent sun exposure and sunburns and frequently occur in areas exposed to the sun sporadically, e.g. back in men, legs in women.  Exposure during childhood seems particularly important.

   The incidents of melanoma are higher among people who migrate from a southern to more equatorial latitude in Australia (obviously reverse in northern hemisphere).  The effect is predominantly seen among those who were children at time of migration.

   In terms of assessing Mr [sic] Freeman’s risk I note that her first five years of life was in Victoria and then migrated to Townsville spending most of her childhood and late teens in Townsville and not entering the Army reserve until the age of 21.

   Her total time with his [sic] Army Reserve was 100 days per year over six years which would be the equivalent of just under two years total.  This was that of a pay clerk/soldier implying approximately at least half of the time was spent indoors.  This would approximate to ~ one year of potential outdoor exposure.

   Any sun exposure, post 1999 i.e., after her primary melanoma was excised is not relevant.

   Given her presumed light skinned complexion & had living most of her life in Townsville prior to service, hat [sic] this was the predominant cause of her melanoma.

   I note that the primary was on her thigh on her thigh [sic].  This was presumably an area covered by clothing, in her military work and not exposed to the sun.  In my opinion her military work with the reserve would have played a minimal role, approximately 4% of her sunlight exposure at that time.”[20]

   [20] T documents; T34 at 80-81

1. In his second report dated 17 December 2015, Professor Fox responded to a question regarding the contribution that Ms Freemans’ service related sun exposure would have had to the onset of her primary melanoma or to a metastatic disease.  Professor Fox responded:

   “Sun exposure is not related to the development of metastatic disease.  The only issue is whether sun exposure had relationship to the onset of primary melanoma.  The lesion was on her thigh which is an area presumably covered by clothing.

   I had simply suggested a causation of 4% based on time of the duration of service.”

1. In answer to a specific question regarding how he would describe the extent of the contribution that Ms Freeman’s service with the ADF contributed to her condition, Professor Fox chose the description “Very Minor” from the following descriptions when writing his first report:

“none	trivial	Negligible
very minor	insignificant	Unimportant
inconsequential	incidental	Minor
moderate	significant	Influential
substantial	Important	major”[21]
principal	no other cause

[21] T documents; T34 at 83

1. He identified as relevant three factors unrelated to her ADF service.  They were Ms Freeman’s living in northern Queensland and having a light skin complexion as well as having factors that were inherited, congenital or developmental that were acquired or developed prior to her enlistment.[22]  Professor Fox assessed the contribution of these three factors as “> than 50% (very significant)”.[23]

   [22] T documents; T34 at 84

   [23] T documents; T34 at 85

1. In his second report, Professor Fox was asked to answer a further question on the subject.  The question and his answer are:

   “Do you consider that service related to sun exposure was a factor that ‘actively operated’ or was ‘likely to influence’ the cause of primary melanoma or metastatic disease?

   Sun exposure has no relationship to the development of metastatic disease.  I do not believe that it actively operated or was likely to influence in any significant way the cause of the primary melanoma. 

   I note that she had lived in Townsville from the age of 5 to joining the Army at the age of 21.

   She would have been a high risk of melanoma due to living in that area and to be of primary Anglo-Celtic ethnicity.

   Melanoma is primarily exposed [sic] by sun exposure in childhood and in the period of adolescence.”

THE STRUCTURE OF THE SRC ACT

1. Both Ms Spencer and Mr Wallace referred to Military Rehabilitation and Compensation Commission v May[24] (May).  Subject only to qualifications such as an exception for reasonable disciplinary action, the plurality[25] identified a number of features that need to be kept in mind when considering the meaning of an “injury” in the SRC Act.  I have set them out below and have intermingled with them views to similar effect expressed by Gageler J:

   [24] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626; French CJ, Kiefel, Gageler, Nettle and Gordon JJ

   [25] French CJ, Kiefel, Nettle and Gordon JJ

   (1)The definition of “injury” in s 4(1), which is set out in [11] above, gives it three strands of meaning centred on “disease”, “injury (other than a disease)” and “an aggravation of a physical or mental injury (other than a disease)”.  Each comprises a separate basis of liability.[26] 

   [26] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [41] and [56]; 378, 381; 400, 403; 632-633, 635

   (2)The sets of conditions answering the definition of “injury” comprise two sub‑sets: “disease” and “injury (other than a disease)”. 

   (a)Each has a different meaning in the scheme of the SRC Act but, while separate, they are related bases of liability.[27]

   [27] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [42]; 378; 401; 633

   (b)The structure of the two sub-sets means that, if a condition is a “disease”, there is no need to consider whether that condition is an “injury (other than a disease)”.[28]

   [28] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [44]; 378-379; 401; 633

   (3)A “disease” is defined in terms requiring it to be both:

   (a)an ailment or an aggravation of an ailment; and

   (b)an ailment or aggravation of an ailment that has been contributed to in a material degree by the employee’s employment by the Commonwealth.[29]

   [29] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [43]; 378; 401; 633

   (4)       An “injury (other than a disease)”:

   (a)       is defined in terms requiring it to be both:

   (i)“a physical or mental injury; and

   (ii)to arise out of, or in the course of, an employee’s employment so that the physical or mental injury has a causal or a temporal connection with the employee’s employment.[30]

   [30] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626; at [44]; 378-379; 401; 633

   (b)uses the word “injury” in its primary sense:

   (i)An injury in the primary sense can arise, and be described, in a variety of ways.

   ·An “injury” in the primary sense is not confined to “getting hurt”.[31]

   [31] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [75]; 383; 406; 636-637 per Gageler J

   (ii)A “sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state” may qualify for characterisation as an “injury” in that primary sense.

   ·The nature and incidents of the physiological change are the central elements in the characterisation of an injury.

   ·They may be internal or external to the employee’s body.

   ·The quality of “suddenness” is not necessary to establish that an employee has suffered an injury in the primary sense but it may be useful in distinguishing a physiological change from the natural progress of an underlying disease.[32]

   [32] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [45]-[48]; 379-380; 401-402; 633-634

   ·There must be some definite or distinct physiological change or physiological disturbance for the worse which, if not sudden, is at least identifiable.[33]

   [33] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [75]; 383; 406; 636-637

   ·That necessarily requires consideration of the ‘precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change’…”[34]

   [34] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [60]; 381; 404; 635 citing Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626; 74 ALJR 1298; Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Callinan J dissenting

   ·Where appropriate, account may be taken of common-sense inferences drawn from a sequence of events.[35]

   [35] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [62]; 381-382; 404; 635

   (5)In identifying whether an employee is suffering from a “disease” or an “injury (other than a disease)”, it is necessary to keep in mind both the proper characterisation of the employee’s condition and the causal or temporal terms in which those terms are defined.

   (a)There may be circumstances in which a physiological change, a disturbance of the normal physiological state or a psychiatric disorder satisfies the definition of an “ailment” but is found not to have been contributed to in a material degree by the employee’s employment. 

   (i)That would satisfy the first element of the definition of the term “disease” but not the causation element and so would not be a “disease” for the purposes of the SRC Act.

   (ii)Consideration would then be given to whether that disturbance of the normal physiological state or a psychiatric disorder is an “injury (other than a disease)” and so an injury in its primary sense and whether it arose out of, or in the course of, the employee’s employment. 

   ·There is no overlap between a “disease” and an “injury (other than a disease)” for each is created on a different basis of liability reflected in the different causal or temporal links required to establish each.[36]

   [36] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [53]-[56]; 380-381; 403; 634‑635

   (b)Neither an assertion by an employee of feeling unwell nor a finding that the employee is indeed feeling unwell establishes that the employee has suffered either a disease or an injury (other than a disease) for neither is:

   (i)an ailment being a physical or mental ailment, disorder, defect or morbid condition required by the first limb of the definition of a “disease”; nor

   (ii)a physiological or psychiatric change to bring it within the description of an “injury (other than a disease).[37]

   (c)“Not every ailment or worsening of an ailment can be described as an injury in the ordinary sense.  At least in the case of a physical injury, to suffer an injury is more than just to experience the onset of dysfunction.”[38]

   (i)“          The understanding of an injury as a definite or distinct physiological change or disturbance was first expounded in cases in which catastrophic consequences of pre-existing medical conditions came to be recognised as capable of constituting injuries ….  The exposition has remained particularly useful in cases within that category.  The analysis undertaken in those cases has always looked beyond mere alterations of physical or mental functioning of the mind or body to the identification of the physiological happenings which have resulted in those alterations: …  The point of explaining an injury in terms of a definite or distinct physiological change or disturbance has been to highlight the necessity for such an analysis to be undertaken.

   The need to identify some underlying physiological occurrence to justify the finding of a physical injury is perhaps best illustrated by the reasoning of the majority in Zickar v MGH Plastic Industries Pty Ltd … [(1996) 187 CLR 310; [1996] HCA 31], which concerned a worker who collapsed at work after the rupture of a congenital cerebral aneurism.  Having said that ‘[i]f there was no rupture there would be no event answering the description of personal injury’. Toohey, McHugh and Gummow JJ added ‘[b]ut there was such an event and the presence of a disease does not preclude reliance upon that event as personal injury’ …  Together with Kirby J …, their Honours concluded that the rupture itself was properly characterised as an injury in the normal sense …”[39]

   [37] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [57]; [61]-[62] and [67]; 381‑382; 404-405; 635-636

   [38] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [77]; 384; 406; 637 per Gageler J

   [39] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [78]-[79]; 384; 406-407; 637 per Gageler J

   THE AUTHORITIES

1. In summarising the High Court’s reasoning in the previous paragraph, I have omitted references to previous authorities that were made in the judgments.  I also note that it was not necessary for the High Court to examine some of the concepts that have been considered in those or other authorities.  I need to do that in this matter in so far as those authorities are consistent with the principles considered in May but will not repeat those principles determined in May.

A disease

1. As the High Court identified in May, the definition of “disease” requires that an employee suffer from an ailment, or the aggravation of an ailment, and that the ailment or its aggravation have been contributed to in a material degree by the employee’s employment by, in this instance, the Commonwealth.

A.1      An ailment

1. The concept of disease had been considered by Drummond J in the case of Comcare v Mooi.[40]  At the time it was decided, the definitions of “disease” and “ailment” in s 4(1) of the SRC Act had not been amended and were those set out at [12]-[13] above. Drummond J began by noting that:

   “          By s 4, the term ‘injury’ means physical or mental injury other than disease, while the term ‘disease’ means any physical or mental ailment, disorder, defect or morbid condition. The expression ‘ailment’ is used in s 4 of the Act as a synonym for the term ‘disease’.  It is apparent from the exhaustive meaning given by s 4 to the term ‘ailment’, and from the ordinary meaning of that word – ‘a morbid affection of the body or mind; indisposition: a slight ailment (The Macquarie Dictionary) – that that term is intended to cover the whole range of physical and mental illnesses from major to minor ones.”[41]

   [40] [1996] FCA 1587; (1996) 69 FCR 439; 137 ALR 690; 42 ALD 495; 23 AAR 160

   [41] [1996] FCA 1587; (1996) 69 FCR 439; 137 ALR 690; 42 ALD 495; 23 AAR 160 at [10]; 442-443; 693; 498; 163-164

1. Referring to the ordinary meanings of the word “disease” as well as the meanings given in medical dictionaries, Drummond J concluded:

   “Only conditions involving a disturbance of the normal functions of body or mind are within the term ‘disease’, as defined, and thus ‘injuries’ for the purposes of s 14(1) of the Act.”[42]

33.      Mooi was concerned with a claim for compensation for incapacity as a result of work‑related stress.  In that context, Drummond J explained:

“… The definition provisions, which bring within the concept of ‘injury’ mental diseases and mental ailments, disorders, defects or morbid conditions, do not provide any precise criteria for determining whether an employee’s mental condition is within the concept of an ‘injury’ within s 14(1). In the medico-legal context, the concept of mental illness is a notoriously difficult one to define or describe. … [I]n my opinion, the expressions used in the Safety, Rehabilitation and Compensation Act to define the various forms of mental condition that can amount to ‘injuries’ compensible [sic] under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker’s body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. In short, I consider that Dr Tym, in drawing a distinction between clinically significant, ie, abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensible [sic] under s 14(1).”[43]

[42] [1996] FCA 1587; (1996) 69 FCR 439; 137 ALR 690; 42 ALD 495; 23 AAR 160 at [16]; 445; 696; 500; 166

[43] [1996] FCA 1587; (1996) 69 FCR 439; 137 ALR 690; 42 ALD 495; 23 AAR 160 at [12]; 443-444; 694; 498-499; 164-165

A.2      Aggravation of an ailment?

1. This was a question considered in Ogden Industries Pty Limited v Lucas[44] (Ogden).  Arising out of his employment, Mr Lucas suffered a coronary occlusion and myocardial infarction on 1 February 1965.  That amounted to an injury in the form of an aggravation and acceleration of his coronary artery disease and myocardial degeneration.  The condition progressed and he suffered a further coronary occlusion and myocardial infarction a little before 30 June 1965.  A few days later, on 7 July 1965, he died from a pulmonary oedema.  The parties had agreed that pulmonary oedema was a disease for the purposes of the Workers Compensation Act 1958 (Vic). It had arisen out of a sudden physiological change for the worse in Mr Lucas’s lungs and out of the work-aggravated and accelerated coronary artery disease and myocardial infarction. Mr Lucas’s pulmonary oedema was the terminal event in a long history of cardiac disease.

   [44] [1967] HCA 30; (1967) 116 CLR 537; Barwick CJ, Taylor, Windeyer and Owen JJ; Kitto J dissenting

1. The majority of the High Court decided that Mr Lucas had not suffered a further injury within the meaning of the legislation.  Windeyer J explained it in this way:

   “… It seems to me that it is impossible to bring this occurrence within that definition.  It was not in itself a disease contracted in the course of employment.  Was it the aggravation … of a pre-existing disease?  It seems to me that it cannot be said that it was.  ‘Aggravation’ means, I think, that an existing disease had been made worse, not that it has simply become worse.”[45]

   [45] [1967] HCA 30; (1967) 116 CLR 537 at [29]; 593

B.       Contributed to in a material degree by the employee’s employment

1. An ailment is not a “disease” for the purposes of definition of “disease” in s 4(1) of the SRC Act unless it is an ailment that has been “contributed to in a material degree by the employee’s employment”.

B.1     General principles

1. Under the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act), s 29 provided that an employee was entitled to compensation when “any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence …” of that disease (emphasis added).  In Treloar v Australian Telecommunications Commission[46] (Treloar), the Full Court of the Federal Court held that s 29 required a causal link, established on the balance of probabilities, between the disease or its aggravation or acceleration and the employee’s employment.  Once that link had been established, it did not matter whether the contribution was of any particular size or degree.[47] 

   “… All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration.  They must, in truth, be part of the cause.  If they are not, then, they do not ‘contribute’.

   The use of the word ‘material’ in conjunction with the words ‘contributing factor’ in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature.  It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of.  The causal connection must be established on the probabilities and not left in the area of possibility or conjecture.  Once the link is established, however, it matters not that the contribution be large or small.”[48]

   [46] [1990] FCA 511; (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535; Sweeney ACJ, Sheppard and Foster JJ

   [47] [1990] FCA 511; (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535 at [21]; 323; 328; 541-542

   [48] [1990] FCA 511; (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535 at [21]-[22]; 323; 328-329; 542

1. Where cases such as Repatriation Commission v Bendy[49] (Bendy) had used the word “material” to qualify the expression “contributing factor in expositions of the section, they had considered legislative provisions such as s 9(1) of the Veterans’ Entitlements Act 1986 (VE Act). Section 9(1) had provided that an injury or a disease was to be taken as a “war‑caused injury” or a “war-caused disease”, as the case might be, if it was contracted or suffered in circumstances set out in paragraphs (a) to (e) and it was, in the opinion of the Repatriation Commission “… contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease.”  Davies J had said in Bendy:

   “… [T]he reference to materiality serves to make it clear that the contribution required is a contribution of a causal nature, that a contribution which is de minimis, which did not influence the course of events or which is so tenuous as to be immaterial is to be ignored.  The term material is here used not in the loose sense set out in definition 12 of the Macquarie dictionary, namely ‘of substantial import or much consequence’ but rather in its legal sense of ‘pertinent’ or ‘likely to influence’.”[50]

   [49] (1989) 10 AAR 323; 18 ALD 144

   [50] (1989) 10 AAR 323; 18 ALD 144 at 325; 146

1. It is important to note that, when the Full Court considered s 29 in Treloar, the 1971 Act did not require that there be an ailment that was “contributed to in a material degree” (emphasis added), as is the case the form in which the SRC Act was enacted at the time I am considering or as was the case when Ryan J considered the case of Suters v Australian Postal Corporation[51] (Suters).  The definition of “disease” appearing in the Commonwealth Employees’ Rehabilitation and Compensation Act 1988, as the SRC Act was then known, required that the employee’s employment have contributed in a material degree to the ailment or its aggravation.  His Honour said in Suters[52]:

   “Although it is true that Treloar’s case was expressly limited to a consideration of the 1971 Act, in which the word ‘material’ did not appear, the case none the less contains a valuable exposition of that meaning of that word to which courts and tribunals are entitled to have regard when considering legislation containing it.  My view that the tribunal’s reliance on Treloar’s case was not inappropriate is strengthened by its earlier reference to Repatriation Commission v Bendy … , which discussed a provision of the Veterans’ Entitlements Act 1986 (Cth) containing the expression “contributed to in a material degree’.”[53]

   [51] (1992) 28 ALD 320

   [52] (1992) 28 ALD 320

   [53] (1992) 28 ALD 320 at 331

1. The Full Court of the Federal Court considered the matter again in Comcare v Canute[54] (Canute) and again the definition of “disease” was drafted in terms of material contribution.  French and Stone JJ set out the relevant passage from the Second Reading Speech to the Commonwealth Employees’ Rehabilitation and Compensation Bill 1988:

   “‘Under the existing Act an employee was required to establish only that his or her employment was a contributing factor in the contraction of a disease.  This test does not adequately reflect the rights and obligations of the Commonwealth and its employees in relation to work-related disease and frequently results in the Commonwealth being liable to pay compensation for diseases which have little, if any, connection with employment.  This Bill seeks to remedy that situation by requiring an employee to show that his or her employment contributed in a material degree to the contraction of the disease. The Government believes that this is a test which is firm but fair and which properly reflects the balance between the interests of the Commonwealth as employer and its employees.  An employee will not be required to show that his or her employment caused the disease, or even that it was the most important factor in the contraction of the disease.  It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease.  Accordingly, it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged.

   In determining whether employment contributed in a material degree to the contraction of a disease in a particular case, regard would be had to whether the employment in which the employee was engaged carried an inherent risk of the employee contracting the disease in question and whether some characteristic or feature of the employment tended to cause, aggravate or accelerate the disease.  A disease which has been contributed to in a material degree by employment will be deemed to be an injury.  Compensation will be payable if that injury results in the death, incapacity or impairment of the employee.’

   (Emphasis added)”[55]

   [54] [2005] FCAFC 262; (2005) 148 FCR 232; 89 ALD 258; 41 AAR 539; French and Stone JJ; Gyles J dissenting The judgment was reversed on appeal but not on this point: Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535; 229 ALR 445; 80 ALJR 1578

   [55] [2005] FCAFC 262; (2005) 148 FCR 232; 89 ALD 258; 41 AAR 539 at [66]; 249; 275; 556-557 citing from Second Reading Speech, House of Representatives, 27 April 1988, Hansard at 2191

1. The majority went on to say:

   “          On this basis, the observations of the Full Court in Treloar at 323 that the relevant causal connection must be established on the balance of probabilities and not left in the area of possibility of conjecture are not controversial. Equally, it is plain that the present legislation was not intended to require that an employee demonstrate that their employment caused the disease or that it was the most important factor. It would also appear that the imposition of a ‘but for’ test remains inappropriate. Having said this, the changes brought about by the enactment of the SRC Act were intended to require that the contribution be ‘more than a mere contributing factor’ and, as such, the comments of the Court in Treloar must be assessed in this light.  Content must be given to the word ‘material’ contained in the definition of ‘disease’ in the legislation as it presently stands.  The inclusion of this term imposes an evaluative threshold below which a causal connection may be disregarded.  However, it is not necessary for present purposes to consider the proper meaning of ‘material’ and nothing more need to [sic] said about this issue.”[56]

   [56] [2005] FCAFC 262; (2005) 148 FCR 232; 89 ALD 258; 41 AAR 539 at [67]; 249-250; 275; 557

2. Consistent with that approach is that taken the following year by Branson J, with whom Spender and Nicholson JJ concurred, in Comcare v Etheridge[57] (Etheridge).  The Full Court was considering, in part, the 1971 Act and not the SRC Act.  For the current purposes, it is not necessary to set out the precise definitions of “injury” and “disease” in that legislation.  Branson J made the general observation, which is equally applicable to the scheme of the SRC Act, that:

   “… the scheme of the 1971 Act makes plain that the mere experiencing of an event or condition necessary for the development of a disease contracted by gradual process did not fall within the definition of ‘injury’ contained in that Act.  The 1971 Act contained provisions that dealt separately with claims for compensation as a result of injury and claims for compensation as a result of the contraction of disease. Those provisions included provisions which facilitated proof, in the case of certain diseases, that the employment in which the employee was engaged by the Commonwealth contributed to the contraction of the disease.  The legislative intent behind these provisions would be largely rendered unnecessary if the mere experience of a condition necessary for the contraction by gradual process of a disease were itself to be regarded as an ‘injury’ within the meaning of that Act.”[58]

   [57] [2006] FCAFC 27; (2006) 149 FCR 522; 227 ALR 75; 90 ALD 31; 42 AAR 335

   [58] [2006] FCAFC 27; (2006) 149 FCR 522; 227 ALR 75; 90 ALD 31; 42 AAR 335 at [45]; 532-533; 86; 42; 346

1. When Finn J came to consider Comcare v Sahu-Khan[59] (Sahu-Khan), s 4(1) still defined “disease” in its pre SRCOLA Act amendment form to mean any ailment or aggravation of an ailment that was suffered by an employee “that was contributed to in a material degree by the employee’s employment by the Commonwealth”.  He examined the history of the provision and the way in which the word “material”, has at times, been used to indicate that the employment needs to be a contributing factor without suggesting that the contribution need be of any particular size or degree.  That word was used in that way by the Full Court in Treloar when it was not a word that had been used by Parliament in the definition of “disease” under the 1971 Act.  Parliament’s reference to a “material” contribution in the definition of that word in s 4(1) led Finn J to look to the dictionary definition. He thought:

   “… that one of the meanings of the word ‘materially’ in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying.  That meaning is:

   4.        In a material degree; substantially, considerably

   An example given of this usage is that of contributing ‘materially to the funds required’ for a purpose.  This usage probably comes closer to what Davies J in Bendy [Repatriation Commission v Bendy[60]] described (10 AAR at 325) as the ‘loose sense’ of the definition of ‘material’ in the Macquarie Dictionary ‘namely, “of substantial import or much consequence” [rather than the] legal sense of “pertinent” or “likely to influence”’.”[61]

   [59] [2007] FCA 15; (2007) 156 FCR 536; 44 AAR 523

   [60] (1989) 18 ALD 144; 10 AAR 323

   [61] [2007] FCA 15; (2007) 156 FCR 536; 44 AAR 523 at [15]; 542; 530

1. In summary, Finn J came to the following conclusion as to what would satisfy the causal link in the definition of “disease” in its form in s 4(1) of the SRC Act before its amendment by the SRCOLA Act:

   “ Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:

   (i)requires a stronger causal relationship between employment and the ailment, etc suffered than that exacted by the 1971 Act;

   (ii)‘in a material degree’ requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (‘the threshold evaluation’);

   (iii)whether this will be so in a given case will be a matter of fact and degree.”[62]

   [62] [2007] FCA 15; (2007) 156 FCR 536; 44 AAR 523 at [16]; 542-543; 530

1. In relation to the particular appeal before him, Finn J concluded that the Tribunal had failed to give any obvious consideration of an evaluative threshold beyond a de minimis test and had made use of the observations in Treloar.  That led him to conclude that it had not applied the correct test.[63] 

   [63] [2007] FCA 15; (2007) 156 FCR 536; 44 AAR 523 at [17]; 543; 530

1. The law that the Full Court applied in Dunstan v Comcare[64] (Dunstan) was the same as that applied by Finn J in Sahu-Khan.  Speaking of the judgment of French and Stone JJ in Canute, Gray and Cowdroy JJ said in Dunstan:

   “          Canute must be regarded as authority for the proposition that the intention of Parliament was to impose a more stringent test of the causal relationship between employment and disease than the Full Court in Treloar had thought.  In addition, as the Full Court had done in Treloar, French and Stone JJ in Canute rejected the notion that the ‘but for’ test is an appropriate test of the causal relationship.

   It follows that the tribunal was required to consider whether the applicant’s employment was ‘more than a mere contributing factor’ to his incapacity.  It is unnecessary, however, for a person claiming compensation to demonstrate that it was his or her daily duties, or specific aspects of the workplace environment, that resulted in his or her disease.  Such an approach would constitute too narrow a focus.  The requirement of a material contribution of the employment to the disease is a requirement that the claimant be able to point to his or her employment as a factor that operated actively to bring about the condition.”[65]

   [64] [2011] FCAFC 108; (2011) 125 ALD 362; Gray, Cowdroy and Reeves JJ

   [65] [2011] FCAFC 108; (2011) 125 ALD 362 at [39]-[40]; 371 per Gray and Cowdroy JJ with whom Reeves J agreed

1. In Comcare v Power,[66] Katzmann J considered the definition of “disease” as set out in s 5B of the SRC Act after its amendment by the SRCOLA Act. That definition requires that an ailment, or its aggravation, have been contributed to, to a significant degree, by the employee’s employment with the Commonwealth or a licensee.[67]  The expression “significant degree” is defined in s 5B(3) to mean “… a degree that is substantially more than material.” Section 5B(2) requires that:

   “In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

   (a)the duration of the employment;

   (b)the nature of, and particular tasks involved in, the employment;

   (c)any predisposition of the employee to the ailment or aggravation;

   (d)any activities of the employee not related to the employment;

   (e)any other matters affecting the employee’s health.”

   [66] [2015] FCA 1502; (2015) 238 FCR 187; 149 ALD 286; 68 AAR 228

   [67] SRC Act; s 5B(1)

1. Ms Spencer relied on the judgment of Katzmann J for support for her submission that a “material contribution” is a contribution that is more than trivial.  In the decision from which the appeal had been lodged, the Tribunal had construed the definition of a “significant degree” as “a degree that is substantially more than material” as being synonymous with “more than trivial”. That construction, Katzmann J said, was a misconstruction of s 5B. Her Honour’s view was that:

   “          A contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial.”[68]

   [68] [2015] FCA 1502; (2015) 238 FCR 187; 149 ALD 286; 68 AAR 228 at [78]; 201; 301; 244

1. Katzmann J went on to set out the history of the relevant definitions of “disease” in the 1971 Act and in its various guises in the SRC Act, by whatever name.  In relation to the definition after its amendment by the SRCOLA Act, her Honour said that the purpose of those amendments was to strengthen the connection between the employment and the contraction or aggravation of a disease.  By including a definition of “significant” as “substantially more than material”, Parliament had made that abundantly clear.  That meant that it was insufficient for the contribution of the employment to be “more than trivial”; it had to be substantially more than trivial. Furthermore, that conclusion had to be reached after an evaluative exercise having regard to relevant factors including those set out in s 5B(3).[69]

   [69] [2015] FCA 1502; (2015) 238 FCR 187; 149 ALD 286; 68 AAR 228 at [93]-[94]; 204-205; 304; 246-247

B.2     Presumption that employment taken to have contributed in a material degree

1. Section 7(1) of the SRC Act has three separate limbs, each of which must be satisfied before the employee’s employment will be presumed to have contributed in a material degree to the contraction of the disease. The presumption may be rebutted if the contrary is established. An employee does not have to make an election between relying on the presumption under s 7(1) and launching a positive case in support of a claim made under s 14 of the SRC Act.[70] It follows that an employee might be unsuccessful in adducing evidence satisfying the Tribunal that there is the necessary causal link between the employee’s disease and employment but may still be able to rely on the presumption. Alternatively, an employee who cannot take advantage of a presumption in s 7(1) may nevertheless be able to bring himself or herself within s 14 by showing that his or her employment by the Commonwealth contributed in a material degree to an ailment suffered by the employee or to its aggravation.[71]

   [70] Australian Telecommunications Corporation v Moffatt (1992) 15 AAR 289 at 294 per Heerey J

   [71] See Bird v The Commonwealth [1988] HCA 23; (1988) 165 CLR 1; 78 ALR 469; 62 ALJR 336 at 5; 471-472; 337 per Mason CJ, Brennan and Toohey JJ. The High Court considered s 30 of the 1971 Act which was drafted in terms similar to those in s 7(1).

1. Once it has been accepted that an employee is suffering from a disease and the disease has been identified, s 7(1)(a) is satisfied. Section 7(1)(c) will be established if the employee was, at any time before the symptoms of that disease first became apparent, engaged by the Commonwealth or a licensed corporation in employment of the kind specified in the written notice made by the Minister under s 7(1)(b).

1. Section 7(1)(b) of the SRC Act requires that an employee suffer both from a disease of a kind specified in that notice and that the disease is related to employment of a kind that is also specified in the notice. The terms of s 7(1) reflect the substantive terms of s 30 of the 1971 Act. Section 30, and particularly s 30(1)(b), was considered by the High Court in Bird v The Commonwealth.[72]  Regulation 12 of the Compensation (Commonwealth Government Employees) Regulations provided that, for the purposes of s 30, a disease of a kind specified in the first column of Schedule 1 to those regulations is related to employment of a kind specified in the second column.  Item 4 in the first column specified “Pathological condition cause by – (a) radium or another radioactive substance; or (b) x-rays”.  The employment specified in the second column was “Employment involving exposure to or contact with radium, other radioactive substances or x-rays”. 

[72] [1988] HCA 23; (1988) 165 CLR 1; 78 ALR 469; 62 ALJR 336; Mason CJ, Brennan and Toohey JJ; Deane and Gaudron JJ dissenting

1. A delegate of the then Commissioner of Employees’ Compensation (Commissioner) found that Mr Bird has contracted a disease being right cervical node metastasis from carcinoma of the tongue.  Mr Bird had been a member of the Royal Australian Air Force.  He had fitted and removed canisters from aircraft which had collected radioactive air and dust samples after a nuclear test took place on 3 October 1952.  He had subsequently serviced the aircraft when they were contaminated and taken part in their cleaning.  The delegate did not make a finding that Mr Bird’s exposure to any radioactive substance was the cause of his condition.

1. The majority explained that:

   “… The words "disease of a kind" in par.(b) of s.30 allow a description in terms more general than those which would identify a particular disease.  The kind of disease specified in Item 4 is not a discrete pathological condition.  It is any pathological condition which is in fact caused by one or other of the nominated substances; but it does not comprehend all pathological conditions which could be caused by the nominated substances.  Unless it is found that the pathological condition was in fact caused by one or other of the nominated substances, condition (b) is not satisfied and s.30 does not operate upon the facts of the particular case.

   … The Schedule does not require that the substances to which an employee was in fact exposed or in contact with during his employment be proved to be the actual cause of the poisoning or pathological condition from which a claimant is suffering. The Schedule and s.30 avoid that necessity.  But they do require that the poisoning or pathological condition from which a claimant is suffering be caused by substances of the same description as those to which the employee was in fact exposed or in contact with during his employment.”[73]

   [73] [1988] HCA 23; (1988) 165 CLR 1; 78 ALR 469; 62 ALJR 336 at 6-7; 472-473; 338

1. Applying that statement of principles to the facts of the case, their Honours said:

   “And so, while it was not incumbent on the appellant to show that his exposure to radioactive substances some thirty years earlier was the actual cause of his condition, it was incumbent on him to show that in fact he had a pathological condition caused by radium or another radioactive substance or by x-rays.  Condition (b) is not satisfied in the present case unless it be found that the appellant’s pathological condition was caused by ‘another radioactive substance’. That fact was not found by the delegate but the Full Court remitted the matter to the Commissioner in order that he can find whether or not causal relationship existed. That was the right order to make.  The appeal should be dismissed.”[74]

   [74] [1988] HCA 23; (1988) 165 CLR 1; 78 ALR 469; 62 ALJR 336 at 7; 473; 338

1. The order that the Full Court had made was to remit the matter to the Commissioner to consider whether Mr Bird’s condition had been caused by a radioactive substance. If the Commissioner found that it had been, the question raised by s 7(1)(c) would need to be addressed i.e. was it established that the employment in which Mr Bird had been engaged by the Commonwealth was not a contributing factor to his contraction of cancer.

1. The principles are also illustrated by the case of Jovanovski v Telstra Corporation Ltd[75] (Jovanovski), in which a determination had been made under s 7(1)(b). Item 22 of the determination had provided:

   [75] [2008] FCA 465; (2008) 101 ALD 526; Gyles J

“Occupational diseases	Employment involving exposure to risk
22.      Diseases caused by vibration (disorders of muscles, tendons, bones, joints, peripheral blood vessels or peripheral nerves).	Employment involving exposure to vibration.”

1. Mr Jovanovski’s employment required him to use jackhammers which involved his being exposed to vibration.  The evidence before the Tribunal had been to the effect that his back condition was a disorder of muscles, tendons, bones or joints caused by vibration.  On appeal, Gyles J observed in Jovanovski that the:

   “… finding as to the existence of the occupational disease does not involve any aspect of causation in the particular case.  In particular, it does not require a finding that the disorder was caused by vibration in the particular case under consideration.  That is the ultimate fact to be determined, with the benefit of the statutory presumption pursuant to 7(1) where applicable.  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.  This alleviates the difficulty of diagnosis …”[76]

   [76] [2008] FCA 465; (2008) 101 ALD 526 at [22]; 533

1. In Jovanovski, the evidence established that the disease from which Mr Jovanovski suffered was a disease caused by vibration. Therefore, it was of a kind specified by the Minister by notice in writing as required by s 7(1)(b). That is not enough to meet the requirements of s 7(1)(b) for the disease suffered by an employee (and identified in the first step in s 7(1)(a)) must be a disease of a kind specified by the Minister “as related to employment of a kind specified in the notice”.  The kind of employment specified in the notice was employment involving exposure to vibration and he was able to establish that he had been engaged in employment of that type.  He was also able to establish that he had been engaged by the Commonwealth in employment of that kind at a time before the symptoms of his disease first became apparent.

An injury (other than a disease) being a physical or mental injury

1. This question was at the forefront of the High Court’s consideration in May.  In so far as the issues were addressed by the High Court, I will not repeat my summary of its judgments.  I will, however, refer to some of the cases on which the High Court relied to illustrate the principles that were formulated and refer to principles established in other authorities.  I will set out those principles in each of the following subheadings.

A.An injury might be a disturbance of the normal physiological state.
Change may be internal or external to the body of the employee.
Suddenness is not necessary but it may be useful in distinguishing between a physiological change from the natural progress of an underlying disease.
An injury can arise in a variety of ways.
Identification of an injury requires precise consideration, on a fact by fact basis, of the nature and incidents of the physiological change.

1. The case of Kennedy Cleaning Services Pty Limited v Petkoska[77] (Kennedy Cleaning), to which Branson J referred in Comcare v Etheridge, arose in these circumstances.   Mrs Petkoska had, for some years, suffered from rheumatic mitral valve disease.  Her employment was not a contributing factor to her having contracted that disease or to its aggravation or acceleration.  One day, she collapsed at work.  As a result of a paroxysm of atrial fibrillation, a blood clot had formed in the left atrium and a piece had broken off.  That piece had travelled directly to the left temporo-parietal region of her brain and immediately rendered her incapable of speech and incapacitated for work.  A subsequent CT scan showed a lesion in that area of Mrs Petkoska’s brain.  As Gleeson CJ and Kirby J said in their joint judgment, “… it is appropriate to conclude that the word ‘lesion’ in the medical reports here meant a sudden change or disturbance to the physiological state of …” Mrs Petkoska.[78] 

   [77] [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626; 74 ALJR 1298

   [78] [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626; 74 ALJR 1298 at [8]; 289; 628-629; 1300

1. Mrs Petkoska claimed compensation under the Workers’ Compensation Act 1951 (ACT) (ACT Act).  Where a worker suffered personal injury arising out of or in the course of employment, the employer was liable to pay compensation.  “Injury” had been defined in the ACT Act to mean “any physical or mental injury” and to include “aggravation, acceleration or recurrence of pre-existing disease”.  “Disease” was defined to include “any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development” and “the aggravation, acceleration or recurrence of a pre-existing disease”.  Where a worker’s employment was a contributing factor to his or her contracting a disease or suffering an aggravation, acceleration or recurrence of pre-existing disease, s 9(2)(c) provided that the contraction or the aggravation, acceleration or recurrence were deemed to be a personal injury arising out of the employment of the worker. 

1. On appeal, the employer had argued that the ACT Act had established mutually exclusive classifications of claims for compensation for an “injury” and those for compensation for a “disease”.  This was rejected by the High Court.  In their joint judgment in Kennedy Cleaning, Gleeson CJ and Kirby J underlined previous authority to the effect that:

   “… the inclusion in the definition of ‘injury’ in s 6(1) of the Act of ‘mental injury’ makes it plain beyond argument in this case that the injuries for which the Act provides are not confined to those originating externally to the body of the worker.

   Secondly, the mere fact that a sudden physiological change is in some way connected with an underlying ‘disease’ process does not, of itself, prevent the classification of such a change as an ‘injury’ within the primary statutory provisions that apply to such a case.  All the members of this Court in the majority in Zickar [Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310] referred with approval to the remarks of Murphy J in McIntosh [Accident Compensation Commission v McIntosh [1991] 2 VR 253] with whom both Crockett and Cummins JJ agreed … In McIntosh, the Court was considering a case involving a sudden rupture of blood vessels and a consequent cerebral haemorrhage arising from arteriovenous malformation.  It was called upon to decide whether such a rupture could amount to a ‘physical injury’ within the Accident Compensation Act 1985 (Vict.).  In the passage specifically approved in the joint reasons in Zickar …, this is what Murphy J said:

   “If the rupture is due to blood pressure, arteriosclerosis, arteriovenous malformation, or any other congenital or diagnostic aetiology, it is nonetheless a rupture – something quite distinct from a defect, disorder or morbid condition, which enables it to occur.’”[79]

   [79] [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626; 74 ALJR 1298 at [35]-[36]; 298-299; 635-636; 1305

1. In Zickar v MGH Plastic Industries Pty Ltd[80] (Zickar), the High Court considered s 4 of the Workers Compensation Act 1987 (NSW), which defined “injury” to mean “personal injury arising out of or in the course of employment” and to include “the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration”.  It did so in the context of an employee who suffered severe brain damage after collapsing at work after the rupture of a cerebral aneurism.  The aneurism was a congenital weakness.  The majority of the High Court decided that Mr Zickar had suffered a personal injury in the course of employment:

   “… [T]here may be injury by accident although the injury is not attributable to any external agency but results from some force or pressure exerted from within the body. … The Act … does not require that there be an accident, only that there be injury. …”[81]

   [80] [1996] HCA 31; (1996) 187 CLR 310; 140 ALR 156; 71 ALJR 32 Toohey, McHugh, Gummow and Kirby JJ; Brennan CJ, Dawson and Gaudron JJ dissenting

   [81] [1996] HCA 31; (1996) 187 CLR 310; 140 ALR 156; 71 ALJR 32 at 330; 170; 42 per Toohey, McHugh and Gummow JJ

B.Account may be taken of common-sense inferences drawn from a sequence of events.

1. Mr Forst was a waterside worker and winchman who, after performing two tasks requiring exertion, collapsed and died.  He was a powerful and vigorous man who had previously appeared to be in normal health.  Mr Forst’s death was found to have been due to a coronary thrombosis.  On appeal from a decision denying Mrs Forst’s claim for compensation for the death of her husband, the Full Court of the Supreme Court of South Australia reheard the matter.  It found that the evidence established physical exertion was commonly, although not invariably, the cause of coronary thrombosis.  On the balance of probabilities, it decided that the physical exertion in which Mr Forst had engaged was the cause of his death.  Therefore, his death was the result of an injury by accident arising out of, or in the course of, his employment, the Supreme Court decided.  The High Court dismissed an appeal in Adelaide Stevedoring Company Limited v Forst[82] (Forst). 

   [82] [1940] HCA 45; (1940) 64 CLR 538; Rich ACJ, Starke and McTiernan JJ; Dixon J dissenting

1. The plurality in May cited two references in the report of the judgments delivered in Forst.  The first was from the judgment of Rich ACJ, who was a member of the majority and who took the broadest approach of the majority in drawing an inference:

   “… I do not see why a court should not begin its investigation, i.e., before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed by pathology.  When he finds that a workman of the not-so-young standing attempts in a posture calculated by reason of the pressure on the stomach to disturb or arrest the rhythm of the heart a very strenuous task not forming part of his ordinary work and then collapses almost immediately and dies from a heart condition, why should not a court say that here is strong ground for a preliminary presumption of fact in favour of the view that the work materially contributed to the cause of death?  From this standpoint the investigation of physiological and pathological opinion shows no more than the current medical views find insufficient reason for connecting coronary thrombosis with effort.  Be it so.  That to my mind is not enough to overturn or rebut the presumption which flows from the observed sequence of events.  …”[83]

   [83] [1940] HCA 45; (1940) 64 CLR 538 at 563-564

1. McTiernan J adopted a similar line of reasoning.[84] Starke J reached the same decision but by a slightly different route relying on medical evidence to the same effect.[85]  The plurality in May did not refer to either judgment but, after referring to the judgment of Rich ACJ, added “But see also at 569-570”.  That is a reference to the dissenting judgment of Dixon J in Forst.  By referring to it, it seems to me that the High Court is endorsing a more cautionary and evidence based approach when drawing presumptions or inferences from evidence than might appear to be the case if regard were had only to the judgment of Rich ACJ.  The passage from the judgment of Dixon J must be read bearing in mind that, unlike the position under the SRC Act, the employee carried a burden of proof at the time but that does not detract from its relevance:

   “          First, I think that upon a question of fact of a medical or scientific description a court can only say that the burden of proof has not been discharged where, upon the evidence, it appears that the present state of knowledge does not admit of an affirmative answer and that competent and trustworthy expert opinion regards an affirmative answer as lacking justification, either as a probable inference or as an accepted hypothesis.

   Secondly, I do not read the evidence, considered as a whole, as meaning that physical effort is commonly, although not invariably, the inciting cause of coronary thrombosis.

   Thirdly, whether an inference can or should be drawn from the fact that in the present case the collapse of the deceased occurred after unusual exertion seems to me to depend on the answer first given to the pathological question whether there is any natural connection between exertion and the formation of a thrombus.

   Tempting as it always is, particularly in matters of bodily health, to argue from a sequence of external events, such reasoning is justified only when positive knowledge or common experience supplies some adequate ground for believing that the events are naturally associated. The evidence upon which the special magistrate acted is to the effect that there is no such ground.”[86]

   [84] [1940] HCA 45; (1940) 64 CLR 538 at 572

   [85] [1940] HCA 45; (1940) 64 CLR 538 at 567

   [86] [1940] HCA 45; (1940) 64 CLR 538 at 569-570

C.       Aggravation of a physical or mental injury

1. The approach taken by the Full Court of the Federal Court in Commonwealth v Beattie[87] in relation to the aggravation of an injury is consistent with that taken by the High Court in Ogden in relation to the aggravation of a disease.[88]  It did so in a factual and legislative context requiring consideration of whether incapacitating pain brought on by activity undertaken in the course of employment could constitute the aggravation of a physical injury notwithstanding that there was no pathological change.  In their joint judgment, Evatt and Sheppard JJ said:

   “       It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury.  A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability.  But that is not a case of aggravation.  In such a case any incapacity for work arises only by reason of the pre-existing injury.  The evidence earlier recounted shows this to be a very different type of case.  Thus each case must depend upon its own facts.  For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place.”[89]

   [87] [1981] FCA 88; (1981) 53 FLR 191; 35 ALR 369; Evatt, Sheppard and Kelly JJ

   [88] See [34]-[35] above

   [89] [1981] FCA 88; (1981) 53 FLR 191; 35 ALR 369 at 201; 378

Distinguishing between an injury (physical or mental) and a disease

1. In order to determine whether a person has suffered an injury or a disease, close regard must be had to the evidence.  After reviewing some of the previous authorities, Gleeson CJ and Kirby J said in Kennedy Cleaning:

   “… All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and the incidents of the physiological change accepted at trial.  If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word.  If such an injury happens within the protected period of employment, it is ordinarily compensable without proof of a specific causal connection with the worker’s employment ….  If the propounded ‘injury’ is distinct from the underlying pathology that constitutes a ‘disease’ that directly or indirectly caused the sudden event to occur, it is unnecessary to proceed to the alternative and additional basis whereby, in such cases, compensation may also be recovered for the disease process if the statutory preconditions are met. …

   The foregoing approach does not rob the disease provisions of the Act of utility.  They would apply in cases of a disease in the nature of dermatitis, lead poisoning, brucellosis and many others of a progressive type.  The disease provisions remain as alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an ‘injury’ in the primary sense.  There is no reason to read the word ‘injury’ down because of the alternative and additional definition of compensable disease conditions.  On the contrary, considerations of the language and structure of the Act, of legislative history and of the proper approach to construing such legislation reinforce the conclusion to which the majority came in Zickar.”[90]

[90] [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626; 74 ALJR 1298 at [39]-[40]; 300-301; 637; 1306

IS MALIGNANT MELANOMA A DISEASE OR AN INJURY (OTHER THAN A DISEASE)?

1. Whether an employee relies on the definition of a “disease” or the presumption in s 7(1) on which to base a claim for compensation, the condition in relation to which compensation is sought must be properly characterised. Putting aside causal or temporal issues related to the employee’s employment, is that condition a disease or an injury? On behalf of Ms Freeman, Ms Spencer of counsel submitted in the first instance that malignant melanoma is a disease as that term is defined in s 4(1) of the SRC Act. It is an ailment that was contributed to in a material degree by her employment with the Army or with the Reserves. Mr Wallace of counsel took the same position of behalf of the MRCC. Alternatively, she submitted that it was an injury.

1. Following the High Court’s handing down its judgment in May, Ms Spencer focused on her submission that Ms Freeman had suffered an injury.  She submitted:

   “In this case, the evidence before the Tribunal is that the applicant developed malignant melanoma. This evidence includes the applicant’s evidence, the medical records concerning her diagnosis and treatment and the expert medical evidence before the Tribunal. The applicant’s development of a malignant melanoma, being a cancerous tumour of the skin, involved a ‘physiological state’. It involved a development of an ascertainable lesion on her thigh, a change to the normal state and functioning of her skin cells, and constitutes an ‘injury (other than a disease)’ within s 4(1). …”[91]

   [91] Applicant’s submissions concerning the High Court’s decision in Military Rehabilitation and Compensation Commission v May [2016] HCA 19 at [9].

1. I have omitted the reference in Ms Spencer’s Footnote to the case of Accident Compensation Commission v McIntosh[92] (McIntosh) in support of her submission that Ms Freeman’s malignant melanoma is an injury other than a disease.  I understand the citation to refer to the following passage from Murphy J’s judgment:

   “It has always been accepted in Victoria that any ascertainable lesion or dramatic physiological change causing incapacity and occurring during a protected period is an ‘injury’ within the meaning of the Workers Compensation Act (Vic.).”[93]

   [92] [1991] 2 VR 253; Crockett, Murphy and Cummins JJ

   [93] [1991] 2 VR 253 at 257

1. McIntosh was a case to which Gageler J referred in his judgment in May as an example of the need to look beyond mere alterations of physical or mental functioning of the mind or body to the identification of the physiological happenings which have resulted in those alterations.  He described the condition considered by the Full Court of the Supreme Court of Victoria and found to be an injury in McIntosh as “rupture of blood vessels”.  That might be thought to support Ms Spencer’s submission that Ms Freeman’s suffering an ascertainable lesion on her thigh, and so a change to the normal state and functioning of her skin cells, leads to the conclusion that she suffered an injury. 

1. I respectfully suggest, however, that it does not when regard is had to the whole passage in Gageler J’s judgment.  It does not do so, I also suggest, when regard is had to the judgment of Murphy J in McIntosh or to the judgment of Gleeson CJ and Kirby J in Kennedy Cleaning, to which I have referred at [63] above and which makes specific reference to McIntosh.  Before there can be said to be an injury, there must be something more than a change from the normal state and functioning of the human body to an abnormal state.  That change must have come about in a way that is, as held by the plurality in May, a definite or distinct physiological change or physiological disturbance for the worse which, if not sudden, is at least identifiable.

1. I will begin with the judgment of Murphy J, with whom Crocker and Cummins JJ concurred.  Ms McIntosh suffered a cerebral haemorrhage while at work.  Under the Accident Compensation Act 1985 (Vic), her cerebral haemorrhage was deemed to have arisen out of, or in the course of, her employment. The only issue was whether it was an “injury”, which was defined to mean “any physical or mental injury”.  At first instance, the Accident Compensation had found that it was an injury.  The cerebral haemorrhage was the consequence of a rupture and bleeding on the right-hand side of Ms McIntosh’s brain and was probably due to a congenital malformation of the blood vessels although rupture could have occurred without any arteriovenous malformation.  Ms McIntosh had not claimed compensation in respect of that underlying condition. 

1. The Accident Compensation Commission had argued that Ms McIntosh had an underlying malformation of the arteriovenous formation in the brain to which the haemorrhage was due.  Therefore, the malformation fell within the definition of “disease”.  Ms McIntosh’s position was that the aetiology of the rupture and haemorrhage might be medically interesting but was not a relevant consideration in deciding whether the episodic rupture of blood vessels causing haemorrhage in the brain is a physical injury. 

1. Citing the judgment of Dixon CJ in Kavanagh v The Commonwealth[94] and of Fullagar J in The Commonwealth v Hornsby,[95]  Murphy J said that it did not assist the Accident Compensation Commission to argue that the underlying defect, which predisposed Ms McIntosh to suffer a rupture and to haemorrhage, may well have been a disease.  It did not assist the Accident Compensation Commission to argue that an aggravation, acceleration or exacerbation of that underlying disease would not have been an injury unless employment was a contributing factor to it.[96] 

   [94] [1960] HCA 25; (1960) 103 CLR 547 at 553; Dixon CJ, Fullagar and Menzies JJ; Taylor and Windeyer JJ dissenting

   [95] [1960] HCA 27; (1960) 103 CLR 588 at 596-597; Dixon CJ, Fullagar, Taylor and Windeyer JJ; Menzies J dissenting

   [96] [1991] 2 VR 253 at 256

1. The passage to which Ms Spencer referred and that I have set out at [72] above, sits between the following two paragraphs:

   “Latham CJ in the same case [Hume Steel v Peart[97]] said, at pp. 252-3: ‘It appears to me to be difficult to draw any satisfactory distinction between the breaking of a limb and the breaking of an artery or of the lining of an artery.  One is as much an injury to the body, that is, something which involves a harmful effect to the body, as the other.  Each is a disturbance of the normal physiological state which may produce physical incapacity and suffering or death.  Accordingly, in my opinion the detachment of a piece of the lining of the artery in the present case should be held to be an injury.  The death of the worker resulted from that injury.”

   …

   In Willis v Moulded Products Sholl J. said, at p. 70: ‘I do not myself see why under the Victorian Act, a defined, separate, and observable step in the progress of a disease (occurring during a protected period) should not, if it produces incapacity or death, be compensatable [sic].’”[98]

   [97] [1947] HCA 34; (1947) 75 CLR 242

   [98] [1991] 2 VR 253 at 257

1. When read in its immediate context and the wider context of his whole judgment, it is clear that Murphy J was referring to a “lesion” in the sense of an “injury or wound”[99] and not in its sense of simply “an abnormal change in the structure of an organ or tissue as a result of disease or injury”.[100]  Both meanings are open in the ordinary sense of the word and when medically defined[101] but it is in the sense of “injury or wound” in which Gleeson CJ and Kirby J were later to understand the word when used in medical reports before them i.e. as a reference to “… a sudden change or disturbance to the physiological state of …”, in that case, Mrs Petkoska.[102]  It is clear that Gageler J in May was citing McIntosh as an example of a situation in which an employee had suffered a definite or distinct physiological change or physiological disturbance for the worse which, if not sudden, is at least identifiable.[103] 

   [99] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)

   [100] Chambers

   [101] Blakiston’s Gould Medical Dictionary, 4th edition, 1979, McGraw Hill  (Goulds): “… harm, injury, from L, laesio, from laedere, to injure].  An alteration, structural or functional, due to disease; most commonly applied to morphological alterations.”

   [102] [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626; 74 ALJR 1298 at [8]; 289; 628-629; 1300

   [103] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [75]-[78]; 383-384; 406-407; 636-637

1. In the case of Ms Freeman’s condition, Professor Fox has described Ms Freeman’s condition as a “disease”.[104]  Melanoma may be a malignant tumour whose parenchyma is composed of anaplastic melanocytes or any tumour, benign of malignant, of melancytes.[105]  It involves a disturbance of the normal functions of the body, to adopt the words of Spender J in Mooi.  The evidence from both Professor Fox and Dr Sedal is that sun exposure increases a person’s overall risk to his or her contracting melanoma.  Having regard to all of the evidence, I am not satisfied that there Ms Freeman’s melanoma resulted from any definite or distinct incident or exhibited any definite or distinct physiological change or disturbance for the worse which, even if not sudden, was identifiable.  I am not satisfied, therefore, that she suffered an injury in the primary or ordinary sense of that word but I am satisfied that she has suffered from an ailment and so satisfied the [(a)] of the definition of “disease”. 

   DOES THE PRESUMPTION OF SECTION 7(1) APPLY?

   [104] Report dated 10 September 2014; T documents T34 at 80

   [105] Goulds

The submissions

1. Ms Spencer relied on the statutory presumption that she submitted arises from s 7(1) when read with Item 25 specified in the 1988 SD Notice. The malignant melanoma is a disease specified in Item 25 as it was caused by a physical agent being the sun/UV exposure. She relied on a definition of the term “physical agent” in the Farlex Medical Dictionary for the Health Professions and Nursing 2012 together with the opinions of Professor Fox in his report dated 10 September 2014 and of Dr Sedal in his report dated 14 May 2014.  Ms Freeman was engaged in employment in the Reserves before the malignant melanoma first became apparent in or about July or August 1999.  Unless the contrary is established on the evidence, and it is not, Ms Freeman’s employment in the Reserves is taken to have contributed in a material degree to the malignant melanoma.

1. On the evidence, the presumption raised by s 7(1) is not rebutted. During her ADF service, Ms Freeman was exposed to additional UV radiation to which she would not otherwise have been exposed. Her work with the Reserves involved outdoor work in the tropical Townsville climate over a cumulative period of approximately six years. Apart from her service with the Reserves, Ms Freeman’s work involved only indoor work. It is of no significance whether her ADF uniform covered her thigh where the lesion developed or not because sun exposure increases the overall risk of developing melanoma whether on an area exposed to sunlight or not. Once it is established that Ms Freeman’s work exposed her to a state of affairs to which she would not otherwise have been exposed or to some characteristic of the work or condition in which it was to be performed, it does not matter whether the contribution was of any particular size or degree.

1. Mr Wallace submitted that malignant metastasis is not a disease that has been specified by the Minister in the 1988 SD Notice or its predecessor as related to employment of a specified kind for the purpose of Ms Freeman’s employment.  That is to be contrasted with conditions that are expressly specified such as Primary epitheliomatous cancer of the skin (Item 26), Lung cancer or mesotheliomas (Item 27), Occupational asthma (Item 4) or Extrinsic allergic alveolitis (Item 5). 

1. Mr Wallace referred to the principles established by the High Court in Bird v Commonwealth[106] (Maralinga case) when considering comparable provisions in s 30 of the 1971 Act and r 12 of the Compensation (Commonwealth Government Employees) Regulations (CCGE Regulations).  Applying those principles, the evidence must show that the disease is of the genus, class or description specified in the first column of the Notice.  If the disease is expressly specified in the first column, it must be that disease e.g. Ankylostomiasis.  Where the condition is described, rather than named, it must be a disease that comes within that description.  Therefore, in the case of a malignant melanoma, it must be a skin disease caused by a physical, chemical or biological agent.  The MRCC accepts that the sun can be regarded as a physical agent for the purposes of Item 25.[107] 

   [106] [1988] HCA 23; (1988) 165 CLR 1; 78 ALR 469; 62 ALJR 336; Mason CJ, Brennan and Toohey JJ; Deane and Gaudron JJ dissenting.

   [107] Respondent’s Submissions dated 20 January 2016 at FN 6.

1. Mr Wallace submitted that it is necessary first to establish that Ms Freeman is suffering from a condition that is a “skin disease” “caused by physical … agents not included under other items” in the 1988 SD Notice. Professor Fox’s evidence establishes that exposure to the sun during her ADF service played only a very minor part in the cause of Ms Freeman’s condition. There is no evidence establishing that Ms Freeman’s skin disease was caused by a physical agent as required by the 1988 SD Notice. If it were the case that Ms Freeman’s condition came within Item 25 of the 1988 SD Notice, the fact that there is no expert medical opinion to support a finding that her condition was contributed to in a material degree itself leads to the conclusion that the deeming provisions of s 7(1)(b) would be controverted.

1. Mr Wallace submitted that Ms Freeman’s condition is not an injury (other than a disease) or an injury simpliciter.  Her melanoma is a disease process meeting the definition of “ailment” in s 4(1) of the SRC Act i.e. a morbid physical dysfunction whether of sudden or gradual onset. The metastases that developed also represented physical dysfunction in the nature of a progression of an ailment’s worsening but without the characteristics that make it an injury. To adopt Ms Spencer’s argument, Mr Wallace submitted, would be to apply a “post hoc ergo propter hoc” test rather than the statutory test set out in the SRC Act.  That would lead to the MRCC’s being liable to pay compensation to an employee in respect of every ailment suffered in the course of employment merely because of the temporal element. 

Is melanoma a disease of a kind specified in the 1988 SD Notice?

1. Putting aside the difference between them as to whether Ms Freeman’s condition is a disease, there was no question raised by the parties that, if I found that the melanoma from which Ms Freeman suffered on her left thigh is a disease, it is a “skin disease” referred to in Item 25.  On the evidence, I am satisfied that it is a skin disease that has not been caused by a chemical or biological agent. 

1. Has Ms Freeman’s melanoma been caused by a “physical … agent”?  The word “physical” in that context is wide enough to cover both of the following ordinary meanings:

   “… 2 relating to objects that can be seen or felt; material □ the physical world. 3 relating to nature of the laws of nature □ physical features □ a physical impossibility.  4 involving bodily contact. …”[108]

Sunlight can be felt as well as being a feature of the natural world and so can be described as a “physical … agent”.  The evidence of both Professor Fox and Dr Sedal is to the effect that exposure to the sun increases a person’s overall risk of contracting melanoma.  In view of that, I am satisfied that Ms Freeman’s melanoma is a disease of a kind that is caused by a physical agent, being sunlight.

[108] Chambers

1. That finding does not, however, necessarily bring Ms Freeman’s melanoma within Item 25 of the 1988 SD Notice.  That follows from the fact that Item 25 covers only skin diseases caused by “… physical … agents not included under other items.” (emphasis added).  No evidence was led as to the nature of sunlight.  That means that no evidence was led as to whether sunlight is a physical agent that is “not included other items”.  The item that comes to mind when considering is Item 24, which reads:

“Occupational Diseases	Employment involving exposure to risk
24.       Diseases caused by ionising radiation.	Employment involving exposure to the action of ionising radiation.”

1. Although there is no evidence, I think that Item 24 should not be disregarded.  It raises the question whether sunlight, to which Ms Freeman has had exposure during her service, is a portion of the electromagnetic radiation emitted by the sun.  The next question to consider is whether ultraviolet light (UV light) is a form of that electromagnetic radiation.  That question is asked against a background of common knowledge that too much exposure to UV light, or certain forms of UV light at least, is damaging to the human skin.  It is also asked against the evidence of Professor Fox that UV rays, being sun exposure, is a major risk for melanoma.  The question then becomes whether UV light is “ionising radiation”.  The expression is defined in McGraw-Hill Dictionary of Scientific and Technical Terms[109] (STT Dictionary) to mean:

   [109] Sybil P Parker, editor in chief, 5^th edition, 1994

   “… 1. Particles or photons that have sufficient energy to produce ionization directly in their passage through a substance.  Also known as ionization radiation.  2. Particles that are capable of nuclear interactions in which sufficient energy is released to produce ionization. …”

The word “ionization”, or “ionisation” in Australian English, is also defined in the STT Dictionary to mean:

“… A process by which a neutral atom or molecule loses or gains electrons, thereby acquiring a net charge and becoming an ion; occurs as the result of the dissociation of the atoms of a molecule in solution (NaCl → Na⁺ + Cl^‾) or of a gas in an electric field (H₂ → 2H⁺). …”

The answer to that question depends on whether it can be said that UV radiation has enough energy to break the chemical bonds as occurs during the process of ionisation.  In particular, does it have enough energy to break the chemical bonds in human skin so that the skin is harmed in a way that leads to a “physical … ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development) and so an ailment?

1. The evidence that I have does not address these questions. Therefore, I cannot make a finding that Ms Freeman’s disease comes within the description of the disease in Item 24, and so is excluded from the description of disease in Item 25. Equally, I cannot make a finding that it does not come within Item 24 so that it meets the description of disease in Item 25. That means that I have not found that Ms Freeman is suffering from a disease of a kind specified by the Minister under s 7(1). I have not gone back to the parties for further evidence because of the finding I have made under s 7(1) and to which I will come shortly.

Is melanoma related to employment of a kind specified in the 1988 SD Notice?

1. In the meantime, I will consider the element of employment and its contribution to Ms Freeman’s melanoma.  In order to come within either the 1988 SD Notice, any disease specified in the notice must be a disease related to employment of a kind specified in the notice.  In the case of Item 25, it is “employment involving exposure to the risk concerned” being sunlight.  It is “employment involving exposure to the action of ionising radiation” in the case of Item 24.  Arguably employment meeting this description would involve exposure to the action of sunlight on the skin.  On the evidence, I am satisfied that Ms Freeman’s service, whether in the Reserves or in the Army, exposed her to sunlight at some periods.  Neither Item 24 nor Item 25 specifies the length of time for which Ms Freeman was exposed to the risk during her employment or to the intensity of the exposure.

Has it been established that Ms Freeman’s employment has not contributed in a material degree to the contraction of melanoma?

1. Whether Ms Freeman’s melanoma is properly characterised as a disease of a kind specified in Item 24 or Item 25 of the SD Notice, my finding on the last issue would raise the presumption that her employment has contributed in a material degree to the contraction of her disease unless the contrary is established.  Has the contrary been established?

A.        The submissions

1. Ms Spencer submitted that the contrary has not been established.  The evidence establishes that, in the performance of her work with the Reserves, she was exposed to additional UV radiation to which she would not otherwise have been exposed.  Her outdoor work was in tropical Townsville and her risk was greater because of her light skin complexion.  Professor Fox’s evidence is unclear regarding the way in which he reached his conclusion.  Even if his opinion of a 4% employment-related contribution were accepted, the nature of the relevant work, its location and consequent additional UV exposure and her special vulnerability by reason of her Anglo-Celtic ethnicity, leads to the conclusion that the contribution is a material contribution.  It was more than a mere contributing factor and more than trivial.  It matters not that childhood or adolescent sunlight exposure was the predominant cause.

1. As to Professor Fox’s supplementary report dated 17 December 2015, Ms Spencer submitted that his evidence was of no assistance because he had failed to apply the relevant causal test.  Professor Fox had written that he did not believe that sun exposure “… actively operated or was likely to influence in any significant way the cause of the primary melanoma.”  Ms Spencer referred me to the case of Wiegand v Comcare Australia[110] (Wiegand) in support of her submission.

   [110] [2002] FCA 1464; (2002) 72 ALD 795

1. Mr Wallace submitted that Dr Sedal does not profess to have expertise qualifying him to comment on the specific defence-related activities that might have led to Ms Freeman’s developing melanoma.  He does not describe himself as a specialist in any field or as a Clinical Oncologist.  Dr Sedal puts forward two factors from SoP 80 which might be relevant but expresses no view on whether they apply in her case.  The evidence of Professor Fox, who is appropriately qualified, should be preferred.

B.Understanding the causal relationship between employment and ailment: material contribution

1. I will begin with what it is that s 7(1) establishes in this case. It provides that, if the three criteria set out in ss 7(1)(a), (b) and (c) are established, Ms Freeman’s ADF service will be taken, for the purposes of the SRC Act, to have contributed in a material degree to the contraction of her melanoma unless the contrary is established. That is to say, her melanoma will be taken to be a “disease”, and so an “injury” for the purposes of the SRC Act unless it is established that her service did not contribute in a material degree to the contraction of her melanoma.  I have summarised the authorities that have considered when employment has contributed in a material degree to an employee’s ailment above.[111]  What those authorities establish is that:

   [111] See [36]-[59] above

   (1)The contribution that must be established between employment and the ailment is a contribution of a causal nature.

   (a)The causal connection must be established on the balance of probabilities and not left in the area of possibility or conjecture.[112]

   [112] See Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535 at [21]-[22]; 323; 328; 542 and see [37] above. The Full Court’s expression of this principle was approved by a differently constituted Full Court in Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232; 89 ALD 258; 41 AAR 539

   (2)The reference to the contribution’s being of a “material degree” imposes an evaluative threshold that the causal connection between an employee’s employment and ailment must meet before that ailment will be regarded as a “disease” for the purposes of the SRC Act.[113]

   (3)An employee must be able to point to his or her employment as a factor that operated actively to bring about the ailment.[114]

   (a)There must be something more than the mere experience of a condition.[115]

   (b)An employee’s employment must be something “more than a mere contributing factor” to the employee’s incapacity.[116]

   (c)It is not necessary to demonstrate that it was an employee’s daily duties, or specific aspects of the workplace environment, that resulted in the ailment.[117] 

   (4)Deciding whether an employee’s employment contributed in a material degree requires and evaluation of all relevant contributing factors.[118]

   [113] Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232; 89 ALD 258; 41 AAR 539 at [68]; 249-250; 275; 557 and see [40]-[41] above. See also the language of Finn J in Sahu-Khan v Comcare [2007] FCA 15; (2007) 156 FCR 536; 44 AAR 523 at [13]; 542; 529 and see [43] above.

   [114] See Dunstan v Comcare [2011] FCAFC 108; (2011) 125 ALD 362 at [40]; 371 and see [46] above.

   [115] Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522; 227 ALR 75; 90 ALD 31; 42 AAR 335 at [45]; 532-533; 86; 42; 346 and see [42] above.

   [116] See Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232; 89 ALD 258; 41 AAR 539 at [67]; 249; 275; 557 and see [40]-[41] above

   [117] See Dunstan v Comcare [2011] FCAFC 108; (2011) 125 ALD 362 at [40]; 371 and see [46] above.

   [118] Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536; 44 AAR 523 at [16]; 542-543; 530 and see [43] above.

C.Has any presumption raised by s 7(1) been rebutted?

1. Section 7(1) does not prescribe any standard of proof by which the “contrary is established” if its deeming provisions are not to apply.  In ordinary usage, the meanings of the word “establish” include “… 3 to find, show or prove something. …”[119] That is a meaning that is consistent with the place of s 7(1) in the SRC Act. Section 7(1) is concerned with the existence or otherwise of a causal relationship between employment and ailment. The meaning of the word “establish” is shaped by that context. Having regard to that context and its ordinary meaning, it follows that the word is intended to relate to matters of proof and evidence. Given that decisions made under the SRC Act are administrative decisions, they are made according to the civil standard or balance of probabilities. It would follow that this is the standard of proof that would apply in determining whether the contrary has been established within the meaning of s 7(1).

   [119] Chambers

1. Turning to the evidence, I will first consider Ms Spencer’s submission to the effect that I should disregard Professor Fox’s evidence as not being addressed to the correct legal test.  In the case of Wiegand, von Doussa J considered a situation in which an expert witness, Professor Goldney, had been asked to express his view on whether Mr Wiegand was suffering an ailment, or an aggravation of an ailment, that was contributed to in a material degree by his employment.  His Honour said that:

   “… Professor Goldney was not to be criticised for having complied with that request.  However, where an expert witness expresses an opinion on the ultimate issue in this case, it is important that the decision-maker recognise that this has occurred, and ensures that the expert, in reaching that opinion, has correctly applied the relevant legal test upon which the ultimate issue turns. …”[120]

   [120] [2002] FCA 1464; (2002) 72 ALD 795 at [30]; 797

1. This is not the case here. As is apparent from the questions that Professor Fox was answering and that I have set out at [23]-[27] above, he was not asked to express an opinion on the ultimate issue. There is nothing in Wiegand that suggests that he needed to be asked in those terms.  All that von Doussa J stressed was that, if an expert were asked in those terms, he or she had to take especial care to apply the relevant legal test upon which that ultimate issue turned.  Professor Fox has been asked to express an opinion on the level of contribution, if any, that service related sun exposure would have had on the onset of Ms Freeman’s melanoma.  That is not the ultimate issue that I must decide but is no less relevant as a piece of the evidence to which I must have regard in deciding the ultimate issue. 

1. Ms Spencer relies on the evidence of Dr Sedal to support her submission that sun exposure increases a person’s overall risk of developing melanoma somewhere on the body and not simply in those areas of the body exposed to sunlight. While I accept that he makes a statement to that effect, Dr Sedal’s statement has to be read in context. I have set out the whole of his report at [18] above. When the whole of his statement is read, it is apparent that, beyond that he makes two broad statements. One is the statement relied on by Ms Spencer. The other is that genetic factors, skin type and childhood/adolescent sunlight are risk factors.

1. Dr Sedal made two statements about the evidence that he had.  One was explicit and was to the effect that there is no specific evidence to suggest that the contribution of genetic factors, skin type and childhood/adolescent sunlight had a greater contribution than service-related sun exposure.  At the same time, he referred to no other evidence to suggest that the contrary was so.  The other statement about the evidence that he had was implicit in Dr Sedal’s report.  It was implicit in his statement that, if it were assumed that Ms Freeman met one of the two factors he had drawn from SoP 80, the contribution of her service‑related sun exposure would be significant and greater than 50%.  Dr Sedal had referred to those two factors on the basis that it would be reasonable to test Ms Freeman’s service against them.  No evidence was available to him as to whether she had been sunburnt at least five years before the clinical onset of her melanoma or that she had a solar UV exposure factor ratio of at least 1.2 before that time.  He did not profess to have expertise to comment on the specific defence-related activities that might have led to sun exposure in Ms Freeman’s case.  In fact, he said that it was beyond the scope of his expertise to do so.

1. When those matters are borne in mind, Dr Sedal’s report does not assist me in coming to a decision in Ms Freeman’s particular circumstances.  To be fair to Dr Sedal, he did not profess to speak beyond his expertise and he was given only the medical records and radiology reports on the SRCA and MRCA files at the time.  Ms Freeman was yet to complete the Solar Skin Damage Questionnaire that she did so when asked some three months later on 5 August 2014.  Therefore, Dr Sedal did not have access to Ms Freeman’s description of her activities during her early life and adolescence before her service as well as her activities during her service. 

1. On the basis of Ms Freeman’s answers to the SSD Questionnaire, I find that Ms Freeman lived in Townsville for approximately 15 years before she joined the Reserves.  She was physically active undertaking a range of activities, some of which, such as ballet, were conducted indoors but the majority of which were engaged in the outdoors.  I accept that she wore a range of clothing suited to the activities.  That range of clothing included long pants for some and long pants or shorts for others.  Questions regarding whether she was ever sunburnt and, if so, whether that occurred before, after or during her enlistment, do not appear in the questionnaire.  That means that I do not have evidence of one of the risk factors identified by Professor Fox – intermittent sunburn in adolescence or childhood – but I do have evidence of intermittent exposure and I have made findings regarding Ms Freeman’s outdoor activities.  I have also made findings consistent with another risk factor identified by Professor Fox i.e. Ms Freeman’s move as a young child from Victoria to Townsville where the risk of developing melanoma is much higher than in Victoria.  Ms Freeman’s statement in the SSD Questionnaire was that she served for approximately 100 days during each year of her Reserve service which extended over a total period of six years.  Given that she estimated that she carried out half of her duties indoors and half outdoors, I accept that this estimate of her exposure to the sun during her service in the Reserves is a fair estimate.

1. Professor Fox is a Consultant Physician who has specialised in medical oncology and clinical haematology involved in the treatment of patients suffering various forms of cancer and blood diseases.  His work has involved him in clinical and scientific research and he has written extensively in the field.  Between 1985 and 2006, Professor Fox was Professor and Director of the Royal Melbourne Hospital’s Department of Clinical Haematology and Medical Oncology as well as at the University of Melbourne.  From 2007 until 2013, Professor Fox held the position of Director of Research at St Vincent’s Hospital.  At the same time, he was President of the Clinical Oncology Society of Australia and President of the Australian Cancer Council.

1. Professor Fox was first asked to report after Ms Freeman had completed the SSD Questionnaire and it was made available to him together with surgical and specialist reports.[121]  The material on which he based his opinion is consistent with the findings I have made.  His expertise was not questioned although his expression of his opinion was.  Ms Spencer questioned Professor Fox’s expression of his opinion when he used expressions such as “likely to influence”, “in a significant way” or “responsible for” in relation to the development of the melanoma.  To express his opinions in that way is to attach an additional requirement to the statutory test of material contribution.  I do not agree.  Professor Fox has expressed his opinion in medical terms as he understands them to be and in light of the questions that he was asked.  The questions and his answers have to be read together and his report has to be understood as a whole.  Had he expressed his opinion in terms of “material contribution” or otherwise, it would have been open to Ms Spencer to submit that he was expressing an opinion on the ultimate issue and to question whether he understood what resolution of that ultimate issue entailed.  Professor Fox has written his report and answered the questions as asked drawing on his medical expertise in the relevant field. 

   [121] See letter of request from MRCC to Professor Fox dated 25 August 2014: T documents; T33 at 75

1. Ms Spencer also submitted that Professor Fox had, in his second report, given undue significance to his assumption that the site of Ms Freeman’s melanoma would have been covered by clothing.  There was no evidence that the site was covered by clothing when Ms Freeman served in the Reserves.  Dr Sedal’s evidence was that sun exposure increases a person’s overall risk of developing a melanoma and not simply in those areas that are exposed. 

1. I do not agree that any assumption made by Professor Fox’s as to whether Ms Freeman’s thigh would have been covered by clothing is a relevant consideration.  He did not know the precise level on her thigh at which the melanoma had developed but did not limit any assumption he made to her time in the Reserves.  He would have known from her answers to the SSD Questionnaire that he was given that she had worn a variety of clothing when she was involved in physical activities prior to her service.  That clothing included shorts and short sleeved shirts on occasion as it did during her service.

1. Professor Fox has considered the whole of Ms Freeman’s history and her risk factors extending across her life, as I have found them to be on the evidence, and assessed them in light of his unchallenged expertise in the development of cancer including melanoma.  I accept his evidence to the effect that the causal connection between her service in the Reserves up to the date of her diagnosis with melanoma, which is the relevant part of her service, is less than minimal being 4% or “very minor”.  He had based his assessment of the contribution of Ms Freeman’s service and the onset of melanoma on the duration of her service alone.  Apart from that, he did not draw any causal link between the two. 

1. Like Dr Sedal, he had no evidence of particular incidents of sunburn or circumstances that would meet factors of the sort set out in SoP 80 in relation to claims under the VE Act in relation to the onset of melanoma.  What Professor Fox did have evidence of, and what I have made findings about, are the fifteen or so years that Ms Freeman had spent in Townsville prior to her joining the Reserves in 1991 and prior to the onset of her melanoma that was diagnosed in 1999 as well as her primary Anglo-Celtic ethnicity.  That is consistent with Professor Fox’s evidence that melanoma is primarily caused by sun exposure in childhood and in the period of adolescence.  Having regard to that evidence, to Ms Freeman’s activities in her childhood and adolescence, her dressing throughout her various activities, including those in the Reserves, and the absence of any particular incidents such as sunburn during her service, I am satisfied that  her melanoma was not contributed to in a material degree by her service in the Reserves.

DECISION

1. For these reasons, I affirm the reviewable decision of the MRCC dated 12 February 2015 affirming its earlier decision dated 12 September 2014.

I certify that the one hundred and eleven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed:           ………................[sgd].......................................

Associate

Date of Hearing on the papers           21 March 2016

Last Submissions received  19 July 2016

Date of Decision  23 September 2016

Counsel the Applicant  Ms F Spencer

Solicitor for the Applicant  Mr M Jorgensen, Williams Winter

Counsel for the Respondent  Mr J Wallace

Solicitor for the Respondent  Mr N Nguyen, Sparke Helmore