Gough and Comcare (Compensation)
[2020] AATA 4669
•23 November 2020
Gough and Comcare (Compensation) [2020] AATA 4669 (23 November 2020)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2018/0923
GENERAL DIVISION )Re: Stephen Gough
Applicant
And: Comcare
RespondentDIRECTION
TRIBUNAL: Senior Member P J Clauson AM
DATE OF CORRIGENDUM: 25 November 2020
PLACE: Brisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in this application accordingly:
- At paragraph 114 of the decision, the text “(43” now read “(3)”;
- The paragraph numbering from page 82 where paragraph 161 immediately follows paragraph 163 through to paragraph 204 now reads 164 through to 207 respectively;
- The reference to the American Lung Association at footnote 59 shall be included in the list of Secondary Sources; and
- The record of appearances on page 93 shall include the appearance of the Solicitor for the Respondent, Mr A Schofield.
....................................[SGD]...............................
Senior Member P J Clauson AMDivision:GENERAL DIVISION
File Number: 2018/0923
Re:Stephen Gough
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member P J Clauson AM
Date:23 November 2020
Place:Brisbane
The reviewable decision is affirmed.
................ ............[SGD]........................................
Senior Member P J Clauson AM
Catchwords
COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 – Compensation (Commonwealth Government Employees) Act 1971 – where applicant seeking compensation for death of parent - Asbestos – Malignant Mesothelioma – Pneumoconiosis – whether disease was contributed to by employment – whether employment caused death – whether employment was of a kind contemplated by regulations – whether employment is presumed to be contributing factor to death – where employee did not suffer from disease prescribed by regulations - decision affirmed
PRACTICE AND PROCEDURE – Safety, Rehabilitation and Compensation Act 1988 - whether legislation in force at time of injury is applicable – whether allowing claim to survive after delay would prejudice respondent – whether the decision by the Administrative Appeals Tribunal in 1983 prevents the applicant from litigating issues – issues not necessary to decide
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Compensation (Commonwealth Government Employees) Regulations 1987 (Cth)
Commonwealth of Australia, Notice of Declarations and Specifications, No 365, 30 November 1988
Cases
Amaca Pty Ltd v Ellis [2010] HCA 5
Australian Telecommunications Corporation v Moffatt [1992] FCA 70
Bird v The Commonwealth (1988) 165 CLR 1
Comcare v Kemp [2020] FCA 865
Commissioner of Taxation v Inkster (1989) 24 FCR 53
Commonwealth of Australia v Snell [2019] FCAFC 57
Di Carlo-Casablanca and Australian Capital Territory [2019] AATA 4772
Plummer v National Australian Bank Ltd [2020] AATA 3759
Re Aiberti and Military Rehabilitation and Compensation Commission [2019] AATA 4238
Re John Edward Gough and Trans Australia Airlines [1983] AATA 330
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262, [2000] NSWCA 29
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Woodward v The Repatriation Commission (2003) 131 FCR 473Secondary Materials
Cooma, T. et al, ‘Spontaneous Regression of Thoracic Malignancies’ in Respiratory Medicine (2010) at 104
Frost, G., ‘The Latency Period of Mesothelioma Among a Cohort of British Asbestos Workers’ (No. 19782005) in British Journal of Cancer (2013) 109
REASONS FOR DECISION
Senior Member P J Clauson AM
23 November 2020
Mr Stephen Gough (“the applicant”) is the son of the late Mr John Edward Gough who was born on 2 May 1931 and died on 17 July 1990 from a malignant mesothelioma.[1]
[1] Exhibit 1, T5.13 at 70.
Mr John Gough was an employee of Trans Australia Airlines (“TAA”) between the years 1964 and 1978.[2]
[2] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions at 1, [2.1].
Mr John Gough was admitted to the St George Hospital twice in 1976 for ‘abdominal pain’[3] and a pleural effusion was found and he was subsequently admitted to St Vincent’s Hospital and discharged therefrom after Dr Bryant, a Thoracic Physician, certified on 20 March 1978 that Mr Gough was suffering from “pleural and peritoneal mesotheliomas” and “will be unfit for work indefinitely”.[4]
[3] Ibid, [2.3].
[4] Exhibit 1, T5.3 at 56.
A Government Medical Officer’s Medical Report dated 31 March 1978 noted that Mr Gough was suffering from pleural and peritoneal mesothelioma and was “currently on chemotherapy”[5] and that he was permanently incapacitated to the extent of 85% or more.
[5] Exhibit 1, T5.4 at 57.
Mr Gough underwent a number of pleural aspirations to remove fluids from his body and, in an attempt to alleviate the accumulations of pleural fluids, he had mustard nitrogen instilled into the pleural cavity. He was also receiving contemporaneous non-specified chemotherapy.
Mr Gough’s condition had deteriorated to such a degree that by October 1978 he was suffering from extreme abdominal distension enlarged by lateral pleural effusions that were unable to be aspirated. His condition appeared to be terminal and treatment was ceased and he was released from hospital.
Mr Gough’s condition began to improve sometime during October 1978 and on 25 September 1980, in his report to Mr Reynolds, the TAA Industrial Relations Manager, Dr Bryant, Mr Gough’s treating Thoracic Physician, noted that since Mr Gough’s dire circumstance in October 1978, there had been:
“Progressive improvement and he is now feeling very much better.”
Dr Bryant further noted:
“His weight has increased to 76kgs, his abdominal distension has completely disappeared, and his chest x-ray now shows only minimal small pleural shadowing on the right side.”[6]
[6] Exhibit 1, T5.6 at 59 to 60 at page 60.
Dr Bryant also noted that:
“In view of this remarkable degree of resolution we wondered whether or not the original diagnosis of a malignant mesothelioma was correct and considered the possibility of some sort of bizarre mesothelial hyperplasia. In an attempt to clarify this point pathological material was sent to a number of different pathologists and they concurred that the histological appearances were typical of those found in malignant mesothelioma although the subsequent spontaneous regression of the lesion, which has only been rarely reported in this condition, was surprising.”[7]
[7] Ibid, page 60.
He then went on to state:
“I therefore feel that it is not possible to be dogmatic about this man’s illness. A malignant mesothelioma which has undergone spontaneous regression seems the most likely diagnosis but some sort of bizarre mesothelial hyperplasia can not be absolutely excluded. He continues to attend for follow-up and with time the correct diagnosis may reveal itself.”[8]
[8] Ibid, page 60.
Mr Gough was admitted to the Prince Charles Hospital on 19 August 1987 experiencing weight loss, abdominal distension and a tumour evidencing at the posterior of his lateral thoracotomy scar.[9]
[9] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions at [2.12].
On 28 August 1987, Mr Gough was diagnosed with malignant mesothelioma in a report signed by Dr Firouz-Abadi for Dr Satnaratunga, Pathologist.[10]
[10] Exhibit 1, T5.7 at 61.
Mr Gough died on 17 July 1990 as a result of the malignant mesothelioma as reported in the Certificate of Death copy dated 12 September 2012.[11]
[11] Exhibit 1, T15 at page 70.
HISTORY OF THE CLAIM
Mr John Gough submitted a Claim for Compensation to the Commissioner for Employees’ Compensation pursuant to the Compensation (Commonwealth Government Employees) Act 1971 (Cth) then prevailing on 28 November 1979.
This claim was disallowed by the Commissioner for Compensation on 27 February 1981. Mr Gough sought a reconsideration of this decision and the decision was affirmed. He then sought a further review of this decision to the Administrative Appeals Tribunal (“the Tribunal”).[12]
[12] Exhibit 1, T3 at 16.
On 4 October 1983, the Honourable Sir William Prentice, Senior Member, affirmed the Commissioner’s decision and found that compensation was not payable to Mr Gough for his malignant mesothelioma.[13] The decision was quoted as Re: John Edward Gough and Trans Australia Airlines [1983] AATA 330.
[13] Exhibit 1, T3 at 15-25.
The Senior Member at that hearing found, inter alia, that:
·On the probabilities, Mr Gough had contracted a mesothelioma which spontaneously regressed;
·Mr Gough could have been exposed to asbestos dust in some quantity during the short period of demolition of fibro sheeting during 1968 in the course of the renovation of TAA’s cargo shed, but did not find it established that Mr Gough endured any appreciable exposure to asbestos from any other source such as from aircraft brake linings moving around the airport tarmac and cargo shed;
·That, having regard to the extent of exposure being required as a method of causation (vis, long and heavy) and the long latency period normally found between exposure and development of symptoms of the disease, the Senior Member could not be satisfied that the degrees of exposure experienced by Mr Gough (found to be light at most and extending over only a short period) would have been said to have been any more than a remotely possible contributory feature of Mr Gough’s disease of mesothelioma.
The Senior Member found this to be so:
“Even allowing for the possibility that some people could be highly susceptible to it for an unknown reason.”
On 1 June 2017, the applicant in this claim, Mr Stephen Gough, lodged his Claim for Compensation (“the claim”) on behalf of his late mother and his siblings[14] with Comcare.
[14] Exhibit 1, T5 at 42 to 53.
Comcare, on 21 September 2017, notified the applicant by letter[15] that the claim had been approved in the aggregate sum of $167,150.05.[16]
[15] Exhibit 1, T21 at 136 to 138.
[16] Ibid page 136.
Following this decision by the Comcare Delegate, the applicant sought a reconsideration of this decision on the basis that compensation should have been calculated on an indexed basis in line with movements in the Consumer Price Index.[17]
[17] Exhibit 1, T23 at 156 to 172.
Comcare undertook a reconsideration of the applicant’s claim as requested and by letter dated 15 December 2017, under the hand of a Senior Review Officer,[18] advised that the reviewable decision previously made had been revoked.
[18] Exhibit 1, T1.1 at pages 6 to 13.
Following the revocation of the applicant’s claim, the applicant then sought a review of that decision by the Administrative Appeals Tribunal (“the Tribunal”) by way of an Application dated 23 February 2018.[19]
[19] Exhibit 1, T1 at pages 1 to 5.
THE ISSUES
The issues for the Tribunal to determine, as presented by the parties are:
(a)Did Mr Gough contract mesothelioma in or around 1976?
(b)Did Mr Gough contract a disease, namely, mesothelioma, or suffer from an aggravation, acceleration or recurrence of mesothelioma in or about 1987?
(c)Did Mr Gough sustain or suffer an aggravation, acceleration or recurrence of mesothelioma after 1 December 1988?
(d)Whether, for any disease sustained, aggravated, or accelerated before 1 December 1988, Mr Gough’s employment with TAA was a contributing factor to the contraction of the disease or its aggravation or acceleration as defined by section 29 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“the 1971 Act”)?
(e)Whether, for any disease sustained, aggravated or accelerated after 1 December 1988, whether any such disease or its aggravation or acceleration was contributed to in any material degree by Mr Gough’s employment with TAA as defined by the Safety, Rehabilitation and Compensation Act1988 (Cth) (“SRC Act”) as it existed from the date of that Act’s commencement until the death of Mr Gough in 1990?
(f)Whether, pursuant to section 7(1) of the SRC Act and the relevant legislative instrument (Gazette S365, 30 November 1988):[20]
(i)Mr Gough sustained a specified disease namely, mesothelioma caused by asbestos exposure;
(ii)Mr Gough’s employment by TAA involved exposure to asbestos;
(iii)It is established to the contrary that Mr Gough’s employment by TAA contributed in a material degree to the contraction, aggravation or acceleration of the disease.
(g)Further, whether the applicant should be permitted to relitigate these matters which the Tribunal determined in 1983 and whether the notice provisions of section 53 of the SRC Act operate to exclude compensation for any alleged injury sustained in or subsequent to 1983.
[20] Commonwealth of Australia, Notice of Declarations and Specifications, No 365, 30 November 1988.
RELEVANT LEGISLATION
There are two pieces of legislation relevant to this matter: the 1971 Act and the SRC Act. The relevant provisions of these acts are as follows.
Compensation (Commonwealth Employees) Act 1971 (Cth)
5 Definition of “Disease”
“disease” includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development;
…
5 Definition of “Injury”
“injury” means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29 of this Act, does not include a disease or the aggravation, acceleration or recurrence of a disease;
…
29 Compensation in respect of death, loss, disfigurement or incapacity through disease.
1Where—
(a)an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and
(b)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, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment,
the succeeding provisions of this section have effect.
2If—
(a)the death of the employee;
(b)a loss to the employee of a kind referred to in section 39 or 40 of this Act;
(c)facial disfigurement to the employee;
(d)a loss to the employee of the sense of taste or smell; or
(e)the total or partial incapacity for work of the employee,
results from the disease, or from the aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment in relation to the disease, or the aggravation, acceleration or recurrence of the disease, as the case may be, then, for the purposes of this Act, unless the contrary intention appears—
(f)the contraction of the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; and
(g)the date of the death, the date of the loss, the date of the disfigurement, the date of the commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the injury.
3The last preceding sub-section does not apply in relation to a disease, or an aggravation, acceleration or recurrence of a disease, if the employee has at any time, for purposes connected with his employment or proposed employment by the Commonwealth, made a wilful and false representation that he did not suffer, or had not previously suffered, from that disease.
30 Certain diseases to be deemed to be contributed to by employment.
1Without limiting by implication the operation of the last preceding section, 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 a disease of a kind specified in the regulations as a disease that is related to employment of a kind so specified; and
(c)the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth in employment of that kind,
then, for the purposes of this Act, unless the contrary is established, the employment in which the employee was so engaged by the Commonwealth shall be deemed to have been a contributing factor to his contraction of the disease.
Compensation (Commonwealth Government Employees) Regulation 1987 (Cth)
12For the purposes of section 30 of the Act, a disease of a kind specified in the first column of the First Schedule to these Regulations is related to employment of a kind specified in the second column of that Schedule opposite to the reference to that disease in the first column.
Disease Employment Pneumoconiosis Employment involving inhalation of matter capable of causing Pneumoconiosis Safety, Rehabilitation and Compensation Act 1988 (Cth)
4(1) Definition of “Disease” (original SRC Act as it read in 1990)[21]
[21] Note: the current definition of disease in the current SRC Act is that one given to the word in section 5B.
“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;
5A Definition of injury (current version of SRC Act)
1In this Act:
injury means:
(a)a disease suffered by an employee; or…
5B Definition of disease
1In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
2In 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.
This subsection does not limit the matters that may be taken into account.
3In this Act:
significant degree means a degree that is substantially more than material.
6 Injury arising out of or in the course of employment
1Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a)as a result of an act of violence that would not have occurred but for the employee’s employment or the performance by the employee of the duties or functions of his or her employment; or
(b)while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or
(c)while the employee was temporarily absent from the employee’s place of work undertaking an activity:
(i) associated with the employee’s employment; or
(ii) at the direction or request of the Commonwealth or a licensee; or
(d)while the employee was, at the direction or request of the Commonwealth or a licensee, travelling for the purpose of that employment; or
(e)while the employee was at a place of education, except while on leave without pay, in accordance with:
(i) a condition of the employee’s employment by the Commonwealth or a licensee; or
(ii) a request or direction of the Commonwealth or a licensee; or
(iii) the approval of the Commonwealth or a licensee; or
(ea) while the employee was travelling between the employee’s place of work and a place of education for the purpose of attending that place in accordance with:
(i) a condition of the employee’s employment by the Commonwealth or a licensee; or
(ii) a request or direction of the Commonwealth or a licensee; or
(iii) the approval of the Commonwealth or a licensee; or
(f)while the employee was at a place for the purpose of:
(i) obtaining a medical certificate for the purposes of this Act; or
(ii) receiving medical treatment for an injury; or
(iii) undergoing a rehabilitation program provided under this Act; or
(iv) receiving a payment of compensation under this Act; or
(v) undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or
(vi) receiving money due to the employee under the terms of his or her employment, being money that, under the terms of that employment or any agreement or arrangement between the employee and the Commonwealth or a licensee, is available, or reasonably expected by the employee to be available, for collection at that place; or
(g)while the employee was travelling between the employee’s place of work and another place for the purpose of:
(i) obtaining a medical certificate for the purposes of this Act; or
(ii) receiving medical treatment for an injury; or
(iii) undergoing a rehabilitation program provided under this Act; or
(iv) undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or
(h)while the employee was, at the direction or request of the Commonwealth or a licensee, at a place:
(i) outside Australia and the external Territories; and
(ii) declared by the Minister by legislative instrument to be a place to which this paragraph applies; or
(i)while the employee was:
(i) at the direction or request of the Commonwealth or a licensee, at a place outside Australia and the external Territories; and
(ii) a member of a class of employees declared by the Minister by legislative instrument to be a class to which this paragraph applies.
1A For the purposes of this section:
(a)a journey from a place of residence is taken to start at the boundary of the land where the place of residence is situated; or
(b)a journey to such a place of residence is taken to end at that boundary.
1B If an employee owns or occupies a parcel of land contiguous with the land on which the employee’s residence is situated, the boundary referred to in subsection (1A) is the external boundary of all of the contiguous parcels of land if treated as a single parcel.
1C For the purposes of paragraph (1)(d), travel between the employee’s residence and the employee’s usual place of work is taken not to be at the direction or request of the Commonwealth or a licensee.
2 In paragraph (1)(d), the reference to the employee travelling does not include a reference to travelling to or from a place mentioned in paragraph (1)(e) or (f).
3Subsection (1) does not apply where an employee sustains an injury:
(a)while at a place referred to in that subsection; or
(b)during an ordinary recess in his or her employment;
if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.
7 Provisions relating to diseases
1Where:
(a)an employee has suffered, or is suffering, from a disease or the death of an employee results from a disease;
(b)the disease is of a kind specified by the Minister, by legislative instrument, as a disease related to employment of a kind specified in the instrument; and
(c)the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth or a licensed corporation in employment of that kind;
the employment in which the employee was so engaged shall, for the purposes of this Act, be taken to have contributed, to a significant degree, to the contraction of the disease, unless the contrary is established.
2Where an employee contracts a disease, any employment in which he or she was engaged by the Commonwealth or a licensed corporation at any time before symptoms of the disease first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed, to a significant degree, to the contraction of the disease if the incidence of that disease among persons who have engaged in such employment is significantly greater than the incidence of the disease among persons who have engaged in other employment in the place where the employee is ordinarily employed.
3Where an employee suffers an aggravation of a disease, any employment in which he or she was engaged by the Commonwealth or a licensed corporation at any time before symptoms of the aggravation first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed, to a significant degree, to the aggravation if the incidence of the aggravation of that disease among persons suffering from it who have engaged in such employment is significantly greater than the incidence of the aggravation of that disease among persons suffering from it who have engaged in other employment in the place where the employee was ordinarily employed.
4For 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; or
(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.
5The death of an employee shall be taken, for the purposes of this Act, to have resulted from a disease or an aggravation of a disease, if, but for that disease or aggravation, as the case may be, the death of the employee would have occurred at a significantly later time.
6An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:
(a)the incapacity or impairment would not have occurred;
(b)the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or
(c)the extent of the incapacity or impairment would have been significantly less.
7A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
8If an employee:
(a)suffers a disease mentioned in the following table; and
(b)before the disease was sustained, was employed as a firefighter for the qualifying period mentioned for that disease; and
(c)was exposed to the hazards of a fire scene during that period; and
(d)in the case of a cancer of a kind covered by item 13 of the following table—satisfies the conditions (if any) prescribed for such a cancer;
the employment is, for the purposes of this Act, taken to have contributed, to a significant degree, to the contraction of the disease, unless the contrary is established.
Item Disease Qualifying period 1 Primary site brain cancer 5 years 2 Primary site bladder cancer 15 years 3 Primary site kidney cancer 15 years 4 Primary non‑Hodgkins lymphoma 15 years 5 Primary leukemia 5 years 6 Primary site breast cancer 10 years 7 Primary site testicular cancer 10 years 8 Multiple myeloma 15 years 9 Primary site prostate cancer 15 years 10 Primary site ureter cancer 15 years 11 Primary site colorectal cancer 15 years 12 Primary site oesophageal cancer 25 years 13 A cancer of a kind prescribed for this table The period prescribed for such a cancer 9For the purposes of subsection (8):
(a)an employee is taken to have been employed as a firefighter if firefighting duties made up a substantial portion of his or her duties; and
(b)an employee who was employed as a firefighter for 2 or more periods that add up to the qualifying period is taken to have been so employed for the qualifying period; and
(c)an employee is taken to have been employed as a firefighter only if he or she was (disregarding the effect of any declarations under subsection 5(15)) employed as a firefighter by the Commonwealth, a Commonwealth authority or a licensed corporation.
10Subsection (8) does not limit, and is not limited by, subsections (1) and (2).
….
53 Notice of injury or loss of, or damage to, property
1This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a)as soon as practicable after the employee becomes aware of the injury; or
(b)if the employee dies without having become so aware or before it is practicable to serve such a notice—as soon as practicable after the employee’s death.
2This Act does not apply in relation to the loss of, or damage to, property used by an employee, being a loss or damage in circumstances referred to in section 15, unless notice in writing of the accident that resulted in the loss or damage is given to the relevant authority:
(a)as soon as practicable after the employee becomes aware that the accident had resulted in the loss or damage; or
(b)if the employee dies without having become so aware or before it is practicable to serve such a notice—as soon as practicable after the employee’s death.
3Where:
(a)a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b)the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c)the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.
….
123A Injuries suffered before the commencing day
A reference in this Part to an injury suffered before the commencing day is a reference to an injury within the meaning of whichever of the 1912 Act, the 1930 Act or the 1971 Act was in force when the injury was suffered, as that Act was then in force.
124 Application of Act to pre‑existing injuries
1Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
1A Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
2A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a)where the injury, loss or damage was suffered before the commencement of the 1930 Act—under the 1912 Act;
(b)where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c)in any other case—under the 1971 Act as in force when the injury, loss or damage was suffered.
…
10Where:
(a)proceedings for the recovery of compensation under the 1912 Act, in respect of any injury suffered before the commencement of the 1930 Act, were not maintainable by a person because of section 5 of the 1912 Act;
(b)a claim for compensation by a person under the 1930 Act, in respect of an injury suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act, was not admissible because of section 16 of the 1930 Act; or
(c)a claim for compensation by a person under the 1971 Act, in respect of an injury suffered after the commencement of the 1971 Act but before 1 July 1986, was not admissible because of section 54 of the 1971 Act, as that section was in force before 1 July 1986;
that person is not entitled to compensation under this Act in respect of that injury.
11Section 48 does not apply where the damages referred to in that section were recovered before the commencing day.
Commonwealth of Australia – Federal Gazette S365
1
(a)For the purposes of paragraph (a) of the interpretation of "Commonwealth authority" in subsection 4(1) of the Act, the following body corporate is declared to be a body corporate in relation to which the Act does not apply:-
Joint Coal Board.
(b)For the purposes of paragraph (c) of the interpretation of "Commonwealth authority" in subsection 4(1) of the Act, each of the following bodies corporate is declared to be a body corporate in relation to which the Act applies :-
Australian Airlines Limited
Coselco Finance Proprietary Limited
Coselco Insurance Proprietary Limited
Coselco Mimitopes Proprietary Limited
Mimotech Proprietary Limited
OTC International Limited
Telecom Australia (International) Ltd.
2
(a)For the purposes of subparagraph (i) of the interpretation of "employee" in paragraph 5(2)(c) of the Act, each office established by the following Act is declared to be an office in relation to which the Act does not apply:-
Coal Industry Act 1946.
(b)For the purposes of subparagraph (ii) of the interpretation of "employee" in paragraph 5(2)(c) of the Act, each office established by a law of a Territory (other than the Territory of Norfolk Island) is declared to be an office to which the Act applies.
3For the purposes of subsection 5(6) of the Act-
(a)a person who is included in a class of persons referred to in the first column of the following table being a class of persons who engage in activities at the request or direction, for the benefit, or under a requirement made by or under a law of the Commonwealth, or at the request or direction, or for the benefit, of a Commonwealth authority, is declared to be employed by the Commonwealth or by that authority, as the case may be; and
(b)the employment of the person is declared to be constituted by the performance by the person of an act included in the class of acts referred to in the second column of that table opposite to the reference to that class of persons:-
…
A reference in the first column to a designated Commonwealth officer shall be read as a reference to-
a member or special member of the Australian Federal Police;
the Sheriff of the Australian Capital Territory or a person appointed under section 3 of the Sheriff Ordinance 1934 of that Territory to assist him or her in the execution of his or her duties;
an officer of Customs within the meaning of the Customs Act 1901;
the Marshal or a Deputy Marshal of the Family Court of Australia;
the Sheriff or a Deputy Sheriff of the Federal Court of Australia; or
the Marshal or a Deputy of the Marshal of the High Court or an officer appointed under section 55 of the Judiciary Act 1903 to assist the Marshal and his or her Deputies.
4For the purposes of subsection 7(1) of the Act, the specified diseases and the specified employments related to those diseases are:-
Occupational Disease Employment Involving Exposure Risk Pnoumoconiosos caused by sclerogenic mineral dust (silicosis, antracosilicosis, asbestosis) and silicotuberculosis, provided that silicosis is an essential factor causing the resultant incapacity, impairment or death. Employment involving exposure to sclorogenic mineral dust. 5For the purposes of subsection 26(2) of the Act the rate of interest is specified to be the weighted average yield derived from the Treasury note tender for ninety day notes settled immediately prior to the last day of the 30 day settlement period.
6For the purposes of subsection 30(2) of the Act the specified rate shall be 3 per cent.
7For the purposes of subsection 57(6) of the Act, where an employee is in receipt of weekly payments of compensation and has been subject to an assessment under section 36 of the Act, the intervals between examinations under this section by the same practitioner shall not be less than one month.
…
THE MEDICAL EVIDENCE
This matter is notable insofar as much of the medical evidence that was available to this Tribunal then constituted in 1983 by Sir William Prentice, Senior Member, is no longer in existence.
The Tribunal, in regard to documentary contemporary evidence from that time, consists of the decision of Sir William Prentice, Senior Member;[22] a medical report by Dr D.H. Bryant, Thoracic Physician, dated 20 March 1978;[23] a medical report for the Department of Social Security dated 31 March 1978 and signed by a Government Medical Officer (signature illegible)[24] and a more fulsome report by Dr D.H. Bryant in the form of a letter addressed to Mr R.H. Reynolds, the Industrial Relations Manager at Trans Australia Airlines dated 25 September 1980.[25]
[22] Exhibit 1, T3 at pages 15 to 25.
[23] Exhibit 1, T5.3 at page 56.
[24] Exhibit 1, T5.4 at page 57.
[25] Exhibit 1, T5.6 at pages 59 and 60.
The decision of Sir William Prentice, Senior Member, notes that the Tribunal had available to it a report (no longer existent) from Professor David Ferguson, the Acting Director of the Commonwealth Institute of Health in Sydney University dated 1 December 1982. It is recorded that this report had appended to it extracts from the literature on diagnosis and spontaneous regression of malignant mesothelioma, a press cutting relating to an incident at Sydney Airport involving radio-active medicine in 1982; and a report from Bryan Gandevia, Acting Professor of Thoracic Medicine at Prince of Wales Hospital, to which was attached various respiratory and exercise studies conducted at the Prince of Wales Hospital regarding the applicant. The Tribunal’s decision also makes comment that Professor Gandevia:
“Appears to have had available to him all the relevant medical histories and opinions as to the applicant’s condition.”[26]
[26] Exhibit 1, T3 at page 11.
The decision notes that oral evidence was provided to the Tribunal at that time in relation to medical matters by Dr Bryant and Professor Gandevia pertaining to Mr Gough’s Senior condition.
This Tribunal has before it by way of recent medical opinion the medical report co-authored by Consulting Pathologists Professor Douglas Henderson and Associate Professor Sonja Klebe dated 21 April 2017;[27] a further report by Associate Professor Sonja Klebe with a letter of instruction dated 19 October 2019;[28] and a report of Dr Anthony Johnson dated 4 May 2015 (with letter of instruction, including annexures, dated 12 August 2014).[29] There is also a report by Professor Richard Fox dated 15 September 2019, together with a letter of instruction dated 12 September 2019 and within the reported annexures referred to as:
(a)Cooma, T. et al, ‘Spontaneous Regression of Thoracic Malignancies’ in Respiratory Medicine (2010) at 104;
(b)Frost, G., ‘The Latency Period of Mesothelioma Among a Cohort of British Asbestos Workers’ (No. 19782005) in British Journal of Cancer (2013) 109.[30]
[27] Exhibit 1, T4 at pages 26 to 41.
[28] Exhibit 13.
[29] Exhibit 11.
[30] Exhibit 14.
DISCUSSION OF THE MEDICAL EVIDENCE
Given the somewhat unusual circumstances of this matter, the Tribunal considers that the opinions provided by the medical experts requires discrete discussion prior to that around the general consideration later herein enunciated.
In the form of a letter dated 25 September 1980[31] to Mr R.H. Reynolds, the then Industrial Relations Manager for Trans Australia Airlines, Dr D.H. Bryant, Staff Forensic Physician at St Vincent’s Hospital, reported that:
[31] T5.6 Ibid.
·Mr Gough had been investigated in that hospital unit in 1977 as he had been suffering recurrent bouts of abdominal pain and recurrent pleural effusions for about two years;
·a thoracotomy had been performed in November 1977 and tissue from that investigation was biopsied;
·the biopsy report stated, inter alia:
“The appearance of the pleura suggests malignant mesothelioma of epithelial type and the focus of mesothelial like cells and the lymph nodes supports that. However, a bizarre reactive mesothelial hyperplasia cannot be entirely excluded.”
·subsequently, a laparotomy was performed and during that procedure it was observed that the whole of the peritoneal surface was covered with soft, fleshy tumour. The relevant pathology report stated:
“The omentum is extensively involved by malignant mesothelioma of purely epithelial type with some papillary and tubular forms. Large amounts of extra cellular mucin are present with the staining characteristics of hyaluronic acid. The subserosal tissue of the appendix contain deposits of malignant mesothelioma but the muscular wall of the appendix is not involved.”
·the report also noted that most, if not all, malignant mesotheliomas are related to asbestos exposure. However, in Mr Gough’s case, the New South Wales Workers’ Compensation Board, in reviewing his matter, could find no evidence of asbestos exposure in his work;
·because of Mr Gough’s relatively young age (circa 46 years), it was decided to treat his condition aggressively, notwithstanding that it was generally conceded that no effective treatment for malignant mesothelioma was available;
·he was treated by numerous pleural aspirations and installation of nitrogen mustard gas into his pleural space. He was also placed on a complimentary third weekly anti-cancer chemotherapy program;
·his condition continued to deteriorate notwithstanding this program of treatment and by October 1978 he was suffering:
“Extreme abdominal distension, large bilateral pleural effusions which it was no longer possible to effectively aspirate.”
·Mr Gough’s weight had fallen to about 40 kilograms and as he appeared to be in a terminal state, he agreed by election to receive no further treatment as he felt he had limited time to live;
·the report notes that following this decision, Mr Gough’s physical state had dramatically improved. His weight had increased to 76 kilograms, his abdominal distension had completely resolved and a chest x-ray showed:
“Only minimal small pleural shadowing on the right side.”
·because of the “remarkable degree of resolution” it was considered if the original diagnosis of malignant mesothelioma was correct. To attempt to clarify the point, pathological material from Mr Gough was sent to a number of Pathologists and they concurred that the histological appearances were typical of those found in malignant mesothelioma:
“… although the subsequent spontaneous regression of the lesion, which has only been rarely reported in this condition, was surprising.”
·Dr Bryant concluded the report by opining:
“I therefore feel that it is not possible to be dogmatic about this man’s illness. A malignant mesothelioma which has undergone spontaneous regression seems the most likely diagnosis but some sort of bizarre mesothelial hyperplasia cannot be absolutely excluded.”
Mr Gough remained, it would seem, in fairly good health until 1987 when his physical condition again began to deteriorate. Pathology samples were extracted from Mr Gough at this time and Mr Gough died on 17 July 1990. A copy of his Death Certificate dated 26 July 1990 and sealed by the registrar on 12 December 2012 notes the cause of death to be malignant mesothelioma.[32]
[32] Exhibit 1, T5.13 at page 70.
The applicant’s legal representatives (as they then were), Slater & Gordon, wrote on 15 March 2017 to Dr Douglas Henderson, Emeritus Professor of Anatomical Pathology at Flinders University, enclosing tissue samples taken from Mr Gough and requesting that he review the pathology slides provided and sought his opinion on the likely diagnosis for Mr Gough.
A report co-authored by Professor Henderson and Associate Professor Sonja Klebe and dated 21 April 2017 was prepared on this basis.[33] The final summary and opinion of both medicos was that:
“From our review of the pleura/chest wall biopsy slides for Mr Gough, it is our assessment that the findings are those of a pleural malignant mesothelioma of epithelioid type with loco-regional and metastatic spread, and we consider this diagnosis to be definite. From the information set out in Dr Bryant’s letter of 25 September 1980 and the subsequent documentation for Mr Gough, we consider that the evidence for a diagnosis of mesothelioma on him in 1977 - 1978 is compelling, and we consider that his longer-than-expected survival is explicable by regression of his mesothelioma for reasons essentially unknown, before later relapse and death.”
[33] Exhibit 1, T4 at pages 26 to 41.
On 9 October 2019, Hall Payne Lawyers, the current legal representatives of the applicant, requested a review by Associate Professor Klebe of the joint report prepared by her and the (now late) Professor Douglas Henderson requesting her to confirm the earlier diagnosis in light of additional material supplied by the applicant. The Professor also considered the previous material she had been provided with for the earlier report.
This updated report of 19 October 2019[34] considered, inter alia, a new report, namely a report from Professor Richard Fox dated 15 September 2019 which will be discussed later herein. Professor Klebe’s secondary report noted the following[35]:
[34] Exhibit 13.
[35] Ibid; Exhibits 14 and 9.
·Dr Fox’s report reiterated the concerns regarding accuracy of diagnosis, latency and regression of the tumour and the prolonged survival and recurrence leading to death.
·That she considered that the additional material did not alter the view of both the late Professor Henderson and herself that the initial diagnosis of malignant mesothelioma of epithelioid type was a definite diagnosis.
·That in reaffirming her diagnosis, no consideration had been given to asbestos exposure as a factor in determining her opinion regarding such diagnosis of the type of cancer, i.e. malignant mesothelioma in Mr Gough.
·That an unusual clinical course did not negate the diagnosis. And noted the previous examples referred to in the earlier report which alluded to mesothelioma cases where unusually long survival periods were extant. In addition, Professor Klebe made reference to an additional case of this type wherein a young woman who was suffering an ALK (Anaplastic Lymphoma Kinase) mutation in her peritoneal mesothelioma and who received a multitude of treatments, including a final targeted therapy, had survived for nine years (at the date of the report) and appeared to be apparently disease-free.
·Further that, although in the various reports she had seen the regression of Mr Gough’s mesothelioma had been described numerous times as “spontaneous”, he had received chemotherapy treatment and nitrogen mustard intracavity infusion and these could have contributed to the regression as observed. Her report also pointed to the fact that even today drugs derived from mustard agents are still used in the treatment of malignancy.
·That; “The shorter than usual latency to the alleged exposure does not alter my opinion although I note that potential other (earlier) sources were identified, e.g. in the report by Dr Fox”.
·And that in conclusion:
“We do not know about Mr Gough’s genetic predisposition, such as germline BAPI status, and our current knowledge with regard to (other) factors determining genetic predisposition to mesothelioma is in general incomplete. His longer-than-expected survival is certainly unusual but explicable by regression of his mesothelioma for reasons essentially unknown, before later relapse and death”.[36]
[36] Ibid page 5.
Professor Klebe was not called as a witness, however, the Tribunal considers both the reports with which she has been involved do provide persuasive material relating to the diagnosis and subsequent progress of the late Mr Gough’s disease.
Report of Dr Richard Fox
By letter dated 12 September 2019, which was accompanied by relevant historical documents regarding the late Mr Gough’s illness and associated matters, the respondent’s representative requested Professor Fox described as an Honorary Consultant, Department of Clinical Haematology and Medical Oncology at the Royal Melbourne Hospital,[37] to provide an expert’s report based upon a series of specific questions regarding the aspects of the late Mr Gough’s disease.
[37] Transcript of Proceedings, page 54, lines 1 – 10.
In his report dated 15 September 2019, Dr Fox noted[38]:
[38] Exhibit 14.
·The late Mr Gough’s history, including his employment with TAA between 1964 and 1978 in a clerical role ranging from Clerk to Port Supervisor at TAA’s Sydney Airport premises.
·That he had worked in a cargo shed where there was a brief period of demolition of asbestos sheeting said to have occurred in 1968.
·That in 1977 he had developed a disease associated with pleural effusion, as well as peritoneal effusion.
·That Mr Gough underwent a thoracotomy which revealed nodules in the pleura which were biopsied and, by the standards then prevailing, were regarded as mesothelioma.
·That it is unusual “to have both pleural and peritoneal mesothelioma but (sic) recorded”.
·That Mr Gough was treated by injection of nitrogen mustard (a type of chemotherapy) into the peritoneal cavity and was also treated with other types of undisclosed chemotherapy at that time.
·That further, Mr Gough was discharged from hospital “in what appeared to be a rather moribund state with increased abdominal swelling”.
·That Mr Gough improved in what was described as “spontaneous remission”.
·And further, that he subsequently relapsed in 1989 when he developed recurrent pleural mesothelioma and died in July 1990, some 13 years after the first diagnosis, followed by “spontaneous regression” and then relapse.
·Dr Fox noted also that pathology biopsy specimens from 1989 had been examined by the late Professor Henderson of Flinders University and were confirmed as mesothelioma.
The respondent’s legal representatives, in the letter of instruction to Dr Fox dated 12 September 2019,[39] posed a series of particular questions to him in the following form:
[39] Exhibit 14 part thereof.
(1)What is the generally-accepted latency period between exposure to asbestos and the development of mesothelioma?
(2)Have there been other cases of spontaneous remission of mesothelioma which are the same as, or similar to, what occurred in Mr Gough’s circumstances in or about 1978?
(3)Is mesothelioma a condition from which patients usually recover completely? Or is mesothelioma a condition which is usually terminal once contracted? Or would some other description be more apposite?
(4)Assuming the multiple diagnostic studies performed on Mr Gough are correct, is it more probable than not that the diagnosis of mesothelioma in the mid to late 1970s was the same illness that spontaneously remitted or regressed and then relapsed in or about 1987?
(5)It is in dispute that Mr Gough was exposed to any asbestos during his employment by TAA at Kingsford-Smith Airport. But please assume, for the sake of this question, that Mr Gough was exposed to asbestos as a result of the demolition of asbestos-cement walls which allegedly happened over a few days in 1968.
Taking into account those assumptions, do you consider, on the balance of probabilities, that any such exposure to asbestos during Mr Gough’s employment at Kingsford-Smith Airport contributed to his mesothelioma?
In answering that question, please take into account and address (where applicable) the following considerations:
(a)The latency period between the alleged exposure to asbestos in 1968 and the development of mesothelioma.
(b)The amount of asbestos to which Mr Gough was allegedly exposed at Kingsford-Smith Airport.
(c)The amount of asbestos to which Mr Gough was allegedly exposed at Sharpe’s Service Store in Ballina, New South Wales, between 1946 and 1964: see Enclosure 1 (T documents) at page 22.
(d)Any other relevant matters.
If your answer to question 5 above is “No”, what do you consider is the more probable scenario in relation to Mr Gough’s circumstances?
(6)Are there any other matters of significance that you consider need to be addressed? If so, please mention them briefly but specifically before concluding your report.
Professor Fox, in responding to the five specific questions asked of him by the respondent’s legal representatives, opined to each of the first three in his report[40] in the following manner:
[40] Ibid T14.
·In response to the question relating to what was the generally-accepted latency period between exposure to asbestos and the development of mesothelioma, Professor Fox stated:
“I carried out a Google and PubMed (database of the US National Institute of Health) search to review this issue.
There is a key report from the UK Health & Safety Laboratory G Frost titled ’The latency period of mesothelioma among a cohort of British asbestos workers’ (1978 to 2005). This was published in the British Journal of Cancer in 2013.
This is the study of some 614 UK workers who died from mesothelioma between 1978 and 2005. The median latency was 22.8 years (confidence limits 16 to 27 years).
In this study there were 24 patients who had a latency period < 10 years. The authors noted in reference to the literature, that patients with mesothelioma with a latency period of < 10 years were uncommon.
The authors go on to state 'This places doubt on the date and consequently source of asbestos exposure for these cases.’
The implication of this is that Mr Gough may well have been, and on the balance of probability was, exposed to some other source of asbestos prior to his work at TAA.
I note that in many large reported series of patients with mesothelioma, 10 to 20% have no recognition or remembrance of a prior asbestos exposure.”
·In relation to question number 2, which enquired of him whether there were other cases of spontaneous remission of mesothelioma which were the same or similar to that which occurred in Mr Gough’s circumstances in or about 1978.
“I note this issue is addressed in a small number of publications. There is a paper from New York entitled ’spontaneous regression of thoracic malignancy’ by Kumar, T et al.
This was published in the Journal Respiratory Medicine in 2010.
They carried out an extensive literature review of PubMed from cases reported from 1951 to December 2008.
They, in their search category, included cases of spontaneous regression of thoracic malignancies.
The most common causes of this were metastases from renal cancer, which occupied 58% of these cases.
There were two cases of malignant mesothelioma described. I have been able to find another couple.
It is therefore an extraordinarily unusual event.
I would note that even assuming Mr Gough’s mesothelioma was in 1978, it is not necessarily spontaneous remission given that he was treated with nitrogen mustard and other chemotherapy.
There remains the possibility that this putative mesothelioma responded due to chemotherapy.”
·In relation to question number 3, where he was asked if mesothelioma is a condition from which patients usually recover completely or is mesothelioma a condition which is usually terminal once contracted, he opined as follows:
“For the vast majority of patients who develop mesothelioma, they do die. There are a small number, e.g. a few percent, who have prolonged survival.
Often these patients have had extensive surgical treatment in combination with chemotherapy.”
·He was asked also that assuming the multiple diagnostic studies performed on Mr Gough were correct, was it more probable than not that the diagnosis of mesothelioma in the mid to late 1970s was the same illness that spontaneously remitted or regressed and then relapsed in or about 1987.
Professor Fox replied as follows:
“I would consider on the balance of probabilities and with the few cases described with remission that his illness in the mid to late 1970s was in fact mesothelioma that remitted/regressed either spontaneously or with the effect of the chemotherapy and then relapsed in or about 1987.
Question 5 noted that the question as to whether Mr Gough was exposed to any asbestos during his employment by TAA at Kingsford-Smith Airport asked Dr Fox to assume, for the sake of the question, that Mr Gough was exposed to asbestos as a result of the demolition of the asbestos-cement walls, which allegedly happened over a few days in 1968. He was asked, taking into account those assumptions, did he consider that on the balance of probabilities, any exposure to asbestos during his employment at Kingsford-Smith Airport would have contributed to his mesothelioma. Professor Fox also noted that he was asked to take into account and address, where applicable, the following considerations:
(a)The latency period between the alleged exposure to asbestos in 1968 and the development of mesothelioma. Professor Fox, in response to that particular question, stated as follows:
“In my opinion, development of his mesothelioma in the 1970s was based, particularly on the UK latency study above, where they cast doubt on any latency period assumed < 10 years, on an earlier asbestos exposure unrecognised.”
He stated that he noted that he was asked to assume potential exposure to asbestos in regard to his work in Sharpe’s Service Store in Ballina. Apparently this store sold “Kalsomine”, which is a trade name, noted by Professor Gandevea to contain asbestos. He opined that, in the case of Mr Gough, that there was either unrecognised prior asbestos exposure, i.e. greater than 10 years previously, or in his work in the Ballina store.
(b)In relation to the enquiry by the respondent’s legal representatives regarding the amount of asbestos to which Mr Gough was allegedly exposed at Kingsford-Smith Airport, Professor Fox opined as follows:
“The amount of asbestos to which Mr Gough would have been exposed would have been de minimis. I note there is acceptance by some that even a de minimis exposure can cause mesothelioma and that there is no known lower safe dose.
However, cases with shorter latency periods have generally been exposed to high and prolonged doses of asbestos.
I would consider that given the short latency period and the de minimis/trivial exposure to asbestos, this would tend to counter any suggestion that his exposure at Kingsford-Smith Airport was causative based again on my answer to (a) above.”
(c)Professor Fox also took into account, as requested by the respondent’s legal representatives, the amount of asbestos to which Mr Gough was allegedly exposed at Sharpe’s Service Store in Ballina, New South Wales, between 1946 and 1964. Professor Fox stated as follows:
“It is not possible to quantify this.
However, there are many opportunities for unrecognised exposure of individuals given the large amounts of asbestos cement sheeting used in buildings throughout Australia, in particular also in New South Wales.
I note there are unrecognised sources of asbestos exposure domestically, e.g., small pads of asbestos used on gas cooktops to assist with simmering in food cooking. There are also asbestos materials used in covering ironing boards to insulate them for domestic clothing, ironing. I note the use of asbestos pads in school laboratories.”
(d)Professor Fox stated that he was asked if his answer to question 5 is “No”, did he consider it a more probable scenario in relation to Mr Gough’s circumstances:
“I consider on the balance of probabilities, it more likely that he had asbestos exposure greater than 10 or 20 years prior to the development of his mesothelioma in the 1970s, which then regressed either spontaneously or after the chemotherapy given at that time to later relapse and prove fatal in 1990.”
The Report of Dr Anthony Johnson - Respiratory and Sleep Physician
By way of a letter dated 12 August 2014, the applicant’s then lawyers sought a review of the late Mr Gough’s medical files.[41]
[41] See Exhibit 11 Annexure as part thereof.
The letter requested Dr Johnson to assume that in relation to Mr Gough’s exposure to asbestos that:
·From 1964 to 1978, he worked in a cargo shed owned by TAA situated on the tarmac at Sydney Airport and as such was occupied in the receipt and despatch of goods;
·A renovation of the cargo shed involved the demolition of asbestos cement walls which occurred in 1968;
·Mr Gough and other employees remained in the premises when this demolition took place and he was exposed to and inhaled asbestos dust and fibre;
·The renovations occurred piecemeal over about a six month period, although the demolition works took only a few days.
Further, Dr Johnson was provided with and noted the medical history of Mr Gough so far as it related to his disease and was requested to assume that:
·Mr Gough was admitted to St George Hospital twice in 1976 for abdominal pain and was found to have pleural effusions;
·The bilateral pleural effusions persisted and in November 1977 a thoracotomy was performed on Mr Gough at St Vincent’s Hospital. Small nodules were found on the pleura and these were biopsied;
·The results of the biopsy supported a diagnosis of malignant mesothelioma, both pleural and peritoneal;
·Mr Gough was treated with several pleural effusions, the insert of nitrogen mustard into the pleural cavity to prevent the re-accumulation of pleural fluid and a program of chemotherapy. Notwithstanding these treatments, his condition continued to deteriorate and by October 1978, he had extreme abdominal distension, large bilateral pleural effusions and had lost 40 kilograms in weight;
·Mr Gough was released from St Vincent’s Hospital in what was assumed to be a terminal state;
·His clinical condition improved and his abdominal distension disappeared and he regained weight;
·His clinical condition remained relatively stable for about a decade until he began to deteriorate once again;
·His abdominal distension returned and he began to lose weight;
·He was living in Canungra in Queensland at this time and was admitted to Prince Charles Hospital on 19 August 1987 due to increase in his symptoms and the presence of a tumour at the site of his posterior lateral thoracotomy scar;
·Mr Gough’s condition deteriorated and by 1988 there were significant tumour masses in the abdomen, including the bowel;
·Mr Gough died on 20 July 1990, the cause of death being listed as malignant mesothelioma.
Dr Johnson also reviewed:
·The letter of Dr Bryant of 25 September 1980, in particular the following quote from that letter:
“Dr Bryant notes the report of his biopsy in November 1977 was the appearance of a pleura suggestive of mesothelioma, epithelial type and the focus of mesothelial-like cells in the lymph nodes supports that. However, a bizarre reactive mesothelial hyperplasia cannot be entirely excluded. A laparotomy was subsequently performed and at operation the whole of the peritoneal surface was covered with soft fleshy tumour. The pathology report on this was the omentum is extensively involved by malignant mesothelioma of purely epithelial type with some papillary and tubular forms. Large amounts of extracellular mucin are present with the staining characteristics of hyaluronic acid. The subserosal tissue of the appendix contains deposits of mesothelioma …
I therefore feel that it is not possible to be dogmatic about this man’s illness of malignant mesothelioma which has undergone spontaneous regression and it seems the most likely diagnosis but some sort of bizarre mesothelial hyperplasia cannot be absolutely excluded.”
·The pathology report, Prince Charles Hospital, 19 August 1987:
“Lung posterior right thoracotomy scar.
Specimen consists of a piece of connective tissue partially enclosing a soft lobulated circumscribed mass. Section shows a lobulated neoplastic tissue composed of groups of dispersed epithelioid cells sounds set in abundant myxoid stroma.
Conclusion: Features are compatible with malignant mesothelioma.”
·The histology small bowel, dated 16 December 1988:
“… appearances would be consistent with a diagnosis of mesothelioma. The differential diagnosis would include adenocarcinoma but the general appearances and manner in which this tumour is infiltrating would favour a diagnosis of mesothelioma.
·Death Certificate, John Edward Gough:
“The cause of death is listed as malignant mesothelioma.”
·Administrative Appeals Tribunal of Australia. 1983:
“John Edward Gough and Trans-Australia Airlines”
Dr Bryant stated that the biopsy material originally examined by Dr Jelihovsky and others is no longer available. It appears that no further testing would be possible at this stage.
11 Dr Bryant. In his opinion the mere handling of fibro sheeting as compared with sawing it over an extended period has not been associated with mesothelioma.
16 I am satisfied that the applicant could have been exposed (sic) asbestos dust in some quantity in the short period of demolition of fibro sheeting during the renovation of TAA’s old cargo shed in 1968. But I do not it established (sic) that there was any appreciable exposure to asbestos from any other source such as was suggested.”
·Dr Johnson then provided his summary and assessment:
“This man reported occupational asbestos exposure in 1968 with the demolition of a cargo shed in Kingsford Smith Airport. He was diagnosed in November 1977 with mesothelioma approximately nine years later. This appeared to spontaneously regress and then in 1987 there was an increase of his symptoms with the presence of a tumour at the site of his posterolateral thoracotomy scar. He then progressed and had further biopsies confirming mesothelioma and he died in 1990.
Spontaneous regression of malignant mesothelioma is rare. A literature review, looking at all literature between 1951 and 2008, showed two reports of cases with spontaneous regression of malignant mesothelioma in the medical literature (1). Most cases of spontaneous regression of thoracic malignancy are due to renal cell carcinoma. I think it is unlikely the original illness was mesothelioma. The chance of that regressing is remote and clinically it did not behave as mesothelioma. I consider that the illness in 1988 to 1990 was consistent with mesothelioma and the pathology is available from that time and the reports are consistent with mesothelioma.
Unfortunately the pathology from the original diagnosis I understand is unavailable.
The level of asbestos exposure he reported from demolition of the asbestos walls would be sufficient to have caused malignant mesothelioma. The dose of asbestos required to have caused malignant mesothelioma is now appreciated to be much lower than was known at the time of his diagnosis.
The time from asbestos exposure to development of mesothelioma is on average in the order of 40 years. If the original diagnosis of mesothelioma was incorrect and his mesothelioma did not commence until 1988, this would be 20 years from his exposure and entirely consistent with malignant mesothelioma.”
Dr Johnson’s report continues to answer three specific questions put to him by the applicant’s lawyer in the covering letter. Dr Johnson’s report continues:
“(i)Assuming that the multiple diagnostic studies performed on Mr Gough are correct, is it likely that the 1977 diagnosis of mesothelioma and the 1987 diagnosis of mesothelioma are a diagnosis of the same illness, which had a ‘spontaneous’ regression or omission in the period between?
I think it is unlikely that the 1977 diagnosis of mesothelioma and the 1987 diagnosis of mesothelioma are the same illness in that spontaneous regression of mesothelioma is incredibly rare. It is more likely that the 1977 illness was a different illness which resolved and the subsequent diagnosis of mesothelioma was correct.
(ii)If Mr Gough’s only known exposure to, and inhalation of asbestos dust and fibre, occurred in 1968, did this inhalation make a material contribution to the development of malignant mesothelioma diagnosed in 1977?
I think it is unlikely that inhalation of asbestos dust and fibre nine years after would make a material contribution to malignant mesothelioma. I would generally consider 15 years to be the minimum time period.
(iii)In the decision of John Edward Gough v Trans-Australia Airlines (1983) AATA at 330, the Court (sic) states at [17] …
This statement is not accurate based on current scientific evidence in that the amount of asbestos exposure required for the development of malignant mesothelioma is now known to be much less than was previously thought. There is no known threshold below which there is no risk of mesothelioma.”
[Bolding indicates questions asked by the Applicant’s lawyers]
Both Professor Fox and Dr Johnson provided oral evidence at the hearing.
Dr Johnson was called first for the applicant and gave evidence-in-chief and was cross-examined prior to Professor Fox also providing his evidence-in-chief and under cross-examination. Both medicos were able to hear the evidence of the other and if they so desired to make comment relative to each other’s evidence before the Tribunal.
Dr Johnson confirmed to the Tribunal that he was a Respiratory Physician who had completed a Master’s Degree in Occupational Health and Safety based on the epidemiology of mesothelioma and that he had completed and published a thesis on that subject. He told the Tribunal that he had since that time been doing research and clinical work into asbestos-related conditions, particularly into mesothelioma and also asthma.
Dr Johnson confirmed further that he had written a report dated 4 May 2015[42] and that he had also reviewed the reports of Professor Fox of 15 September 2019[43] and that of Associate Professor Sonja Klebe of 19 October 2019[44] and stated that neither report had caused a change of mind regarding his own report’s contents.
[42] Exhibit 11, Ibid.
[43] Exhibit 14, Ibid.
[44] Exhibit 13, Ibid.
The only evidence elicited from Dr Johnson by Mr Black, Counsel for the applicant, related as to whether, in the mid to late 1970s, the term “pneumoconiosis” would be understood as including a reference to mesothelioma.
Dr Johnson, in reply to that enquiry, stated:
“DR JOHNSON: I think it would. I wasn’t practising in medicine at that stage, I must point out, and I qualified in 1990. Pneumoconiosis, now, is generally taken to mean a condition of the lungs caused by - in relation of (sic) dust from work. And normally, fibrotic condition, things like silicosis or asbestosis. But our definitions and the way the terms were used has changed, and I’ve certainly seen reports going back to that time which have referred to pneumoconiosis and includes things like pleural plaques and pleural effusions and mesothelioma which are things that we wouldn’t generally put in that term now. But I think, at that time, it was more broadly used.”[45]
[45] Transcript of Proceedings, page 36, paragraphs [30] to [35].
Dr Johnson opined in his evidence under cross-examination that the diagnosis in 1977 of mesothelioma in Mr Gough was not correct. His reasoning being that the spontaneous regression of the disease as described was so rare as to render the diagnosis of mesothelioma unlikely. He stated:
“The reason that I am not convinced that that was mesothelioma is because of the spontaneous regression that is described, which I have never seen, and in literature is very rare. We’ve found, I think, between us, two or four cases. So it’s very unusual. But we knew the pathological diagnosis, so the diagnosis of mesothelioma by looking at pathological slides, has evolved over time, and we know that it’s more exact now and things that might have been called mesothelioma then, may well not be called mesothelioma now. So given that time, when the pathology wasn’t as exact as it is now, and his history of having spontaneous regression, I think it’s more likely that that wasn’t mesothelioma.”[46]
[46] Transcript of Proceedings, page 37, lines 10 to 25.
In his evidence, he then went on to state regarding the latency periods of the disease:
“DR JOHNSON: And in general, I take 15 [years] as the minimum. But, I think, down to 10 years, I would accept. But less than 10, I wouldn’t accept, 10 years from the initial exposure until diagnosis.”[47]
[47] Transcript of Proceedings, page 37.
Dr Johnson then went on to agree with Mr Woulfe, Counsel for the respondent, that a latency period less than 10 years would be most unlikely.
Mr Woulfe asked Dr Johnson to assume that if the 1977 diagnosis was indeed mesothelioma and there had been an exposure in 1968, whether it would be unlikely that any such exposure caused or contributed to the mesothelioma. Dr Johnson agreed that in such a circumstance, that would be unlikely. When asked his opinion as to whether, if when Mr Gough worked at the Ballina General Store (Sharpe’s Service Store) from 1946 to 1964 and during that period had come into contact with airborne asbestos, based on the agreed latency period as discussed, such contact could have caused the mesothelioma diagnosed in 1977, Dr Johnson agreed that such exposure could have caused the disease diagnosed in 1977, some 13 years post the 1968 exposure.
Mr Woulfe asked Dr Johnson if there was an exposure (to asbestos) between 1946 and 1964, that a most likely scenario based on the latency period, would be that the exposure at the Ballina store would have caused Mr Goughs’s mesothelioma. Dr Johnson agreed that if the exposure did occur at the Ballina store, it would be more likely to have caused the mesothelioma in 1977.
Dr Johnson, under further questioning by Mr Woulfe, agreed that mesothelioma was indeed a form of cancer that usually did not go away in terms of the person being totally and indefinitely cured. Dr Johnson opined further that, on average, it proved almost universally fatal within 18 to 24 months on average.
Under cross-examination about whether mesothelioma could spontaneously regress and how, in his report, he stated that it was incredibly rare, he stated that he had seen it described in the literature, but had not seen such an occurrence personally. He also stated that some of the reported cases of this type were from sometime past and he wondered about the diagnosis, but agreed with Mr Woulfe that it could not be ruled out as a possibility.
Dr Johnson also opined that the nitrogen mustard gas and chemotherapy treatment that Mr Gough underwent prior to his discharge from hospital on the first occasion did not influence his opinion that it was not an effective treatment for Mr Gough’s mesothelioma and that it would have caused a spontaneous regression, or a cure in Mr Gough.
Mr Woulfe also asked Dr Johnson whether both mesothelioma and lung cancer could be induced by asbestos exposure and thus a history of exposure does not, by itself, distinguish definitively between those possibilities. Dr Johnson responded by opining that a diagnosis of mesothelioma or lung cancer is made by a pathological examination of tissue and the asbestos exposure does not influence the diagnosis. However, he did say that once you have received a diagnosis, then you may look to see what caused it which may have been asbestos exposure.
Mr Woulfe put it to Dr Johnson that both mesothelioma and lung cancer could be induced by asbestos so that a history of exposure does not, by itself, distinguish definitively between those possibilities and asked him whether he accepted that proposition as a statement of medicine Dr Johnson answered in the affirmative. Dr Johnson also agreed with the proposition put by Mr Woulfe that a history of past significant asbestos exposure is sometimes elicited by clinicians only after a diagnosis of mesothelioma has been established on pathological grounds. Dr Johnson also agreed with Mr Woulfe when he put it to him that mesotheliomas do occur rarely in patients with no known history of exposure to asbestos and also that tumours unrelated to asbestos exposure do occur in asbestos exposed individuals. Mr Woulfe then asked Dr Johnson that if he were assuming that the diagnosis of mesothelioma in relation to Mr Gough was definitive in 1977, that it was unlikely that his employment by TAA led to that condition. Dr Johnson stated:
“DR JOHNSON: Yes. If 1977 was mesothelioma then I think it’s unlikely that exposure in ’68 would’ve caused it.” [48]
[48] Transcript of Proceedings at page 42.
Dr Johnson was questioned about the types of common asbestos encountered in the community generally, in particular the differences between bonded and friable varieties of asbestos. Dr Johnson agreed with Mr Woulfe’s proposition that there were differences between these two types, namely, that bonded asbestos was that type of asbestos contained within another material:
“So that it isn’t or is likely to become airborne, is that right?”
Dr Johnson, in reply, stated:
“It depends what’s done to it. If you had bonded asbestos and then drilled it, or cut it, or smashed it with a hammer, then some asbestos fibres would be released.”
Dr Johnson agreed that friable asbestos was used sometimes in insulation in buildings and agreed that he had experience with the “Mr Fluffy” cases in Canberra where asbestos had been used in the ’70s and ’80s in roofs of houses. Mr Woulfe asked whether he regarded that form of asbestos as friable asbestos. Dr Johnson then stated that his understanding of friable asbestos is:
“Asbestos that is breaking down.”[49]
[49] Transcript of Proceedings, page 43.
Dr Johnson also stated as follows:[50]
“DR JOHNSON: But that, sort of, asbestos - the asbestos fibres in - used for insulation that aren’t bound up in cement, so fibro cement is asbestos fibres down (sic) with cement.”
[50] Transcript of Proceedings, pages 45 – 47.
He then later stated that:
“DR JOHNSON: But that sort of insulation material is often pure asbestos fibres.
MR WOULFE: Yes. And so I’d ask you to - well I’ll just ask you this, it’s possible, isn’t it, for asbestos fibres that have become loose and have passed onto the clothing of certain workers, to be inhaled by both those workers and, say, family members when those workers come home?
DR JOHNSON: That’s correct. There’s cases of mesothelioma where, in women particularly, where the exposure only seems to be exposure to the clothes of the husband that worked with asbestos.
MR WOULFE: Yes. And have you had any experience with New South Wales Railways cases, sir?
DR JOHNSON: Yes, I have.
MR WOULFE: And have you had experience in terms of claims being made in relation to New South Wales railways workers with mesothelioma?
DR JOHNSON: Yes, I have.
MR WOULFE: And if you assume that Mr Gough’s father worked for the New South Wales Railways, would you accept there’s a possibility that he might have been exposed to asbestos in that employment?
DR JOHNSON: It depends on what his father’s job was and what he did.
MR WOULFE: Yes. But one can perhaps imagine the scenario of the father coming home and giving the son a greeting, or a hug, and then passing some asbestos fibre into the lung that way, that’s a possibility, isn’t it?
DR JOHNSON: That’s a possibility, yes.
MR WOULFE: Right. Have you had any cases involving fibro sheeting, or the like, at rural and district high schools?
DR JOHNSON: Yes, I have.
MR WOULFE: And those - Do they involve claims of mesothelioma, sir?
DR JOHNSON: Yes, I can recall one, at least, in which I was involved.
MR WOULFE: And was the issue in that particular case to do with the construction of the high school, or the building breaking down, or renovation works?
DR JOHNSON: It was to do with renovation works that were carried out while the teacher was in the vicinity.
MR WOULFE: Yes. And what about your experience in terms of cases where sheds, for example, on a beach, or a lifesaving club is the example I’m going to give you, where those might have been constructed by fibro and renovation works occurring or the fibro simply broke down over time. Have you had any experience in that connection?
DR JOHNSON: Not to do with lifesaving clubs.
MR WOULFE: I see.
DR JOHNSON: But with fibro garages or buildings?
MR WOULFE: Yes.
DR JOHNSON: People renovating those, or building those, have had mesothelioma and I’ve seen those sorts of patients.
MR WOULFE: Yes. And would you accept this as a general proposition, asbestos is less frequently used nowadays because people are more aware of the risks associated with it?
DR JOHNSON: Yes, and it’s also there’s legislation prohibiting its use.
MR WOULFE: Indeed. And I’ll just ask you this, in your high school days, did you, perhaps, use an asbestos mat with a Bunsen burner?
DR JOHNSON: I don’t recall doing that, no.
MR WOULFE: No? Have you heard of that phenomenon before today, Doctor?
DR JOHNSON: I have, yes.
MR WOULFE: Right.
DR JOHNSON: I actually saw my high school teacher, science teacher, with mesothelioma from that exposure.
MR WOULFE: Indeed. And what about the circumstance of a person using kitchen mitts to - or mats, cooking in a kitchen at home, is that something of which you’re aware?
DR JOHNSON: Yes, I’ve heard of people doing that and I’ve seen people who’ve prescribed (sic) that, yes.
MR WOULFE: Now depending - and it could be a big question, but depending on the state of the particular Bunsen burner mat or other item to which we’ve alluded in this last passage of question, there is a possibility that asbestos fibre could break up and be breathed into the lung in that context, isn’t there?
DR JOHNSON: Yes, there’s a possibility.
MR WOULFE: And indeed, before the issues associated with Wittenoom and those types of circumstances, the - is it your experience that the reported history of exposure to asbestos in the general community was greater before the 1960s?
[Telephone line dropped out.]
[Resumed.]
DR JOHNSON: I’m not aware of evidence that would answer that question, asbestos was more widely used in the period from the ’50s up until the ’70s, in general.
MR WOULFE: Yes. And indeed, it was possible - it is possible - I withdraw that. Now in terms of the latency period, is that likely to be shorter if a person is breathing in a different type of asbestos, for example, the asbestos that was encountered at Wittenoom, so the blue asbestos?
DR JOHNSON: The latency period is shorter if there’s higher exposure.
MR WOULFE: All right.”
Mr Woulfe then continued.
“…Essentially, what the tribunal was doing there was assertions (sic) about a lack of ability to - well, criticism of former legal advisors in that particular case. The criticism was levelled at paragraph 153, in terms of the former legal advisors failing to obtain a report, to search out and obtain evidence. That, I submit, applies mutatis mutandis to the present circumstance. Mr Gough essentially blames Slater and Gordon for failing to advise him as to the option to lodge a claim under the SRC Act.
But a failure to act or provide proper advice in that connection was not accepted as meeting the exculpations in the comparable language of section 53 in the 1988 Act and the tribunal reminds us at paragraph 153 of the decision in Leach and that decision is a more recent Federal Court decision dealing with what a claimant has to do in order to enliven an exclusion to the limitation period and the tribunal held that the decision in Leach places the onus on an applicant to establish the existence of one of the exclusionary provisions in section 53(3)(c) and in my submission, the applicant has not done that.
Whilst there might have been ignorance or reasonable cause during the applicant’s minority, before he attained 18 years of age, there is certainly no such evidence or no facts supporting the application of the exclusion in 1999 and more particularly from 2007 onwards and so, in my respectful submission, the entire case is essentially academic, because of the clear existence of prejudice to Comcare and the failure by the applicant to establish that the failure to give notice was due to ignorance, absence from Australia, or some other reasonable cause and that’s particularly so from 2007 or indeed, 2013 and the tribunal in Di Carlo-Casablanca emphasises the requirements of section 54.”
Mr Woulfe then reminded the Tribunal of the applicant’s admission that there is a real challenge for Comcare in terms of the onus. Mr Woulfe then continued with his submissions as follows:
“…Well, that’s what section 54 is all about in the 1971 Act and the case was Re Tierney and Reserve Bank of Australia, if I recall correctly, where the purpose of a provision such as section 54 and 53 is to prevent an employer being placed in a circumstance where it has to respond to a claim because of events that occurred on some brief and transient situation, essentially events in the distance past. It’s essentially a limitation period with which we’re dealing and in my respectful submission, Di Carlo-Casablanca sets that out very clearly.”
Mr Woulfe then continued:
“Contrary to the applicant’s viva voce submissions, the test is not that Comcare must establish that no aspect of employment contributed to mesothelioma; that puts it too highly. Comcare needs to establish, if anything - and it’s not conceded - if anything, that the employment criteria are not satisfied under section 30 of the 1971 Act and again, the applicant puts it too highly when he submits that once it is shown that the relevant risk existed, the expectation is that the employee will recover.”
Mr Woulfe then reminded the Tribunal of the observations of the High Court in Amaca Pty Ltd v Ellis[88] about the translation of risk to reality, where when one is talking about epidemiological studies, causality is not established on risk alone and, in a more general sense, causality is not established based on new risk but it is established on fact.
[88] [2010] HCA 5
Mr Black for the Applicant responded in his submissions in relation to the matter of prejudice by way of section 54 and said:[89]
“In terms of a claim for liability for the mesothelioma that Mr Gough contracted in the 1970’s, a claim was promptly made and that’s important to an assessment of, if there is a need to excuse late notice, whether it should be excused. Because that claim was not only promptly made, but it progressed through the decision-making and investigatory processes and resulted in a tribunal hearing and ultimately, a tribunal decision in October 1983.”
[89] Transcript of proceedings at pages 99 – 100.
Mr Black then continued:
“So, the question and critical question or questions of fact, that are involved in a determination of that initial liability question, were raised at an early stage. The relevant authority had every opportunity to investigate and it culminated in a tribunal decision. The thrust of the dependency claim is something separate and that looks to the applicant’s entitlement, if there is a compensable injury under the Act and there’s no - in my submission and there doesn’t seem to be any pointed to - there’s no prejudice in relation to that. What’s said is that well, there’s a loss of records relating essentially, to the original liability decision. But as I say, in my submission, prompt notice of that was given.”
Mr Black then expanded upon the lost medical records and the impact on prejudice:
“There was also significant argument about the fact that medical records have been lost and that there’s a number of documents that indicate loss or destroying of medical records, but in my submission, that’s not a particularly powerful point, because it’s not the medical records that are the most significant, but rather, the questions of fact around exposure to asbestos in the first place and that was the question that the relevant authority had full opportunity to investigate when the claim was initially made. I think the 1983 tribunal decision refers to the claim having been made in 1979. That’s page 16 in the T documents. So, that, in my submission, needs to be taken into account in determining the overall question in relation to section 54.”
Mr Black further submitted that:
“The other important point, in my submission, appears at page 74 of the T documents. This is the email from the applicant in July 2017 to Comcare and there’s a - it’s in the bottom part of the page - there’s a series of numbered paragraphs and it’s the one numbered 2 and it says:
‘I have only become aware of the possible SRC action as a dependent through the SRC Act in June 2017, due to it being raised in the DDT matter I have advised Comcare of in the claims resolution process.’
So, in my submission, the applicant’s evidence ought to be accepted. This isn’t some recent invention that he’s come up with when he came to the tribunal today, this was something he’s explained to Comcare from the start of his claim. His evidence was to the effect that he wasn’t advised about it by Slater and Gordon.”
Mr Black also points to the fact that nothing was said about what advice Mr Gough Junior was given, and that in his submission, his evidence ought to be accepted. Mr Black also submitted that at the point in time in the hearing he had not had a chance to look at the Di-Carlo-Casablanca decision but stated:
“…but of course, each matter has to be decided on it’s own facts and in my submission, the existence of, first of all, early notice of the factual basis for the underpinning issues in the claim; that is, the late Mr Gough’s original notice and claim back in 1979, taken in conjunction with the applicant’s, in my submission, honest and entirely reasonable explanation for the timing of his subsequent dependency claim, combine to make this a case appropriate for the exercise of the tribunal’s discretion to enable the claim to proceed without being barred by a procedural limitation.”
CONSIDERATION
The parties have made comprehensive submissions in relation to the issues which this Tribunal has to decide namely, in summary these are:
(a)whether the evidence relating to the disease from which the late Mr Gough suffered and ultimately succumbed to was mesothelioma, particularly in the case of its initial manifestation;
(b)whether, if the disease is found on the evidence and the balance of probability to be mesothelioma, what are the consequential impacts on the applicant’s claim by way of the activation of the provisions of sections 29 and 30 of the 1971 Act;
(c)whether the injury, loss or damage suffered by Mr Gough Senior is of such a type as to be preserved by way of operation of section 124(1A) of the SRC Act or whether, it is an injury, loss or damage of such a type as to thaw into the operation of section 124(2) which precludes a person from receiving compensation … “in respect of any injury, loss or damage suffered before the commencing date if compensation is not payable in respect of that injury, loss or damage…” under the 1971 Act, as in force when the injury, loss or damage was suffered”;
(d)whether the injury was an injury that under section 124(10) of the SRC (Transitional Arrangements) was an injury which was subject to the limitation under section 54 of the 1971 Act and was:
“A claim for compensation by a person under the 1971 Act in respect of an injury suffered after the commencement of the 1971 Act but before 1st July 1986, was not admissible because of section 54 of the 1971 Act, as that Act was in force before the 1st July 1986; that person is not entitled to compensation under this Act in respect of that injury.”
(e)whether the claim for compensation was in compliance with section 54(1):
“Compensation in relation to an employee is not payable under this Act to a person unless a claim in writing for the compensation was served as prescribed under permission of, by or on behalf of the person within the prescribed period.”
(f)whether the claim, if made in compliance with section 54(1), complies with the requirement of section 54(4) of the 1971 Act which describes “the prescribed period” in the legislation in the following terms:
“If the employee has died and the claimant is a dependent of the deceased employee seeking compensation in respect of his death, the prescribed period for the purposes of sub-section (1) of this section, is the period of six month commencing on the day on which the claimant became aware of the death of the employee.”
(g)whether, if the six month period defined in section 54(4) be not met, the claim can be enlivened by the “no prejudice” provisions of section 54(6)(c) of the 1971 Act being available to allow a claim to be made out of time. Relevantly, that where a claim does not meet the six month period and:
“The Commonwealth would not by reason of the failure, be prejudiced if the claim were treated as a sufficient claim or the failure resulted from the death or absence from Australia of a person from ignorance, through a mistake or from any other reasonable cause, the claim shall be deemed to have been served in accordance with sub-section (1).”
Which is the applicable legislation to this review?
As a preliminary matter, the Tribunal must establish what the applicable legislation is in this matter as there are two potentially competing standards of evidence at play and therefore, two competing statutory tests.
As a starting point, the SRC Act provides, as pointed out by Mr Woulfe, transitionary provisions in section 124. Sections 124(1) and 124(1A) provide that were compensation was payable under one of the acts preceding the SRC Act, compensation is payable under the SRC Act.
The relevant dates to consider are such as when an “injury” occurred.[90] There is significant authority that discusses when an injury occurs under the SRC Act.[91] The term is used in the Act in reference to like provisions being the type of injury the SRC Act was intended to resolve. Therefore, the Tribunal directs its attention to physical injuries and diseases. The SRC Act provides, at section 7(4) that a disease occurs when it is diagnosed or first causes incapacity to work.[92] Therefore, the Tribunal finds that the relevant event is not the injury the applicant suffered with the death of Mr Gough, but rather, the date of the original injury creating the cause for claim in the first place: when Mr Gough was first diagnosed. As Mr Gough suffered his injury in November 1977, the Tribunal is required to look at the 1971 Act.
[90] SRC Act, section 124(10).
[91] Plummer v National Australian Bank Ltd [2020] AATA 3759; Comcare v Kemp [2020] FCA 865.
[92] Ibid.
The SRC Act does provides further restrictions in that claims that do not satisfy the notice requirements of the relevantly applicable legislation or other statutory bars which prevent compensation under the SRC Act. These will be addressed as necessary. But as a starting point, we can be confident that in this case, the Tribunal should apply the standards and tests of the 1971 Act in order to determine if the applicant’s claim under the SRC Act is compensable.
Was the disease in both its manifestations mesothelioma?
The late Mr Gough was investigated in November 1977 for his, what were described as in the report of Dr D.H. Bryant, Staff Thoracic Physician at St Vincent’s Hospital, Sydney, “recurrent bouts of abdominal pain and recurrent bilateral pleural effusions which has (sic) been present for two years”.[93]
[93] Exhibit 1, T5.6 at 59.
The report noted that following the conduct of a thoracotomy, biopsies indicated that:
“The appearance of the pleura suggests malignant mesothelioma of epithelial type and the focus of mesothelial-like cells and the lymph nodes supports that. However, a bizarre reactive mesothelial hyperplasia can’t be entirely excluded.”
A laparotomy was reported to have been carried out and the observation was made that this revealed that the whole peritoneal surface was covered with “a soft fleshy tumour”. The pathology findings on this tumour were that:
“The omentum is extensively involved by malignant mesothelioma of purely epithelial type with some papillary and tubular forms. Large amounts of extracellular mucin are present with the staining characteristics of hyaluronic acid. The subseral tissue of the appendix contains deposits of malignant mesothelioma but the muscular wall of the appendix is not involved.”
It is of note that Dr Bryant mentions in his report that most mesotheliomas are asbestos exposure-related, Mr Gough’s case has been reviewed by the Workers’ Compensation Board in New South Wales and they had not found any evidence of asbestos exposure.
Dr Bryant also referred to the general concession by the medical fraternity that no effective treatment for malignant mesothelioma was available but that, however, because of Mr Gough’s youth, an election was made to treat his disease aggressively with numerous pleural effusions, installations of nitrogen mustard and a course of chemotherapy of anti-cancer type every three weeks. It is also noted that by October 1978, Mr Gough’s condition had not improved but had, in fact, worsened to the point where he agreed to return home and receive no further treatment.
Mr Gough, however, by the time Dr Bryant had prepared his report on 25 September 1980, had undergone “progressive improvement” and was feeling much better with increased weight, complete loss of abdominal distension and x-ray confirmation of only right-side pleural shadowing.
The improvement in his condition did raise some doubts in the mind of Dr Bryant who, rightly, in the view of the Tribunal, adopted an open-minded approach to this unusual occurrence and clearly, from an abundance of caution, arranged for pathology investigations by a number of different Pathologists who all agreed that the histological appearances were typical of those found in malignant mesothelioma.
The spontaneous regression of the lesion was surprising, but nonetheless had, on rare occasion, been reported and although in the words of Dr Bryant stating:
“I therefore feel that it is not possible to be dogmatic about this man’s illness.”
He nonetheless concluded that:
“A malignant mesothelioma which has undergone spontaneous regression seems the most likely diagnosis but some sort of bizarre mesothelial hyperplasia cannot be absolutely excluded.”
The Tribunal considers that given the medical pathology, coupled with the rare regressive event, Dr Bryant’s view is reflective of a thoughtful understanding of many medical events which may relate to a generally well understood medical condition where some aspect of its manifestations behaves in an atypical manner.
A later pathology report,[94] which was co-authored by two eminently qualified Pathologists in this field, namely Dr Sonia Klebe, Associate Professor and Senior Consultant in Anatomical Pathology, and Dr D.W. Henderson, Emeritus Professor of Anatomical Pathology at Flinders University and a retired Senior Consultant in Surgical Pathology, was available to the Tribunal. This report was clearly defined by the authors as relating solely to the pathology and not related to any aspect of causation of Mr Gough’s disease.
[94] Exhibit 1, T4 at 26 to 41.
The Tribunal notes that the report states that the morphology of the tumour supported a diagnosis of mesothelioma of a type indicating an epithelial tumour embedded in a myxoid stroma. Although rare, Professor Henderson indicated that he had seen an example of similar type some 30 years earlier and an Indian Pathologist and that the Surgeon in that case who performed the laparotomy described the tumour as “thick like porridge”.
Professor Henderson and Associate Professor Klebe noted also that the IHC profile of Mr Gough’s tumour supported and was highly characteristic of an epithelioid mesothelioma showing positive labelling for all six out of six mesothelial markers and cyto-localisation of the labelling characteristic of mesothelioma.
The Henderson/Klebe Report also stated that the anatomical spread of the tumour was:
“Also highly characteristic of the patterns of spread of malignant mesothelioma.”
The report also opined that “on probability grounds”, Mr Gough’s mesothelioma was most likely to have arisen in the pleura with ”loco-regional” spread into the chest wall and thoracotomy scar and spread across his diaphragm seeding into the peritoneum and invaded the intestinal tract and “contralateral pleura (also a stage 4 disease) and probable metastic to regional lymph nodes.”
The report also addressed the progress of Mr Gough’s particular experience with the disease. It was observed that although Mr Gough had been close to succumbing to the disease in 1977/1978, exhibiting all the indicators of late stage mesothelioma and had then undergone a regression of his condition prior to the recrudescence of the disease and his death, it was “highly unusual but not unique”. The report acknowledged that death usually occurred within about 12 to 18 months but that there were some noted recorded prolonged survivals and even spontaneous regressions.
The authors outlined the following recorded examples of these types of events occurring:
·Stephen Jay Gould, a Palaeontologist and Evolutionary Biologist, who survived for circa 20 years with peritoneal mesothelioma, diagnosed in 1982 and dying in 2002 from a different cause;
·The German Mesothelioma Register’s longest registered survival was 19.4 years. Fewer than 5% of the mesothelioma patients on that register survived more than three years;
·The case of Belinda Dunn, a young woman with a history of childhood asbestos exposure, who survived for more than 10 years following diagnosis and who went on to have a family;
·Professor Henderson quoted the case of a Polish patient with whom he was associated professionally and who was suffering from pleural malignant mesothelioma after suffering occupational exposure in the UK. He returned to the UK and eight years after diagnosis, lodged a claim for compensation, but at that time his pleural disease had regressed almost entirely and he remained well. His diagnosis of mesothelioma had been confirmed by three separate groups of Pathologists of national and international expertise in mesothelioma diagnosis, both in Australia and the UK.
The Henderson/Klebe Report’s Final Summary and Opinion stated:
“From our review of the pleural/chest wall biopsy slides for Mr Gough, it is our assessment that the findings are those of a pleural malignant mesothelioma of epithelioid type with loco-regional and metastatic spread, and we consider this diagnosis to be definite. From the information set out in Dr Bryant’s letter of 25 September 1980 and the subsequent documentation for Mr Gough, we consider than (sic) the evidence for a diagnosis of mesothelioma on him in 1977 - 1978 is compelling, and we consider that his longer-than-expected survival is explicable by regression of his mesothelioma for reasons essentially unknown, before later relapse and death.”[95]
[95] Exhibit 1, T4 at 35.
Based on the extensive 48 year career as an Anatomical Pathologist, of which 43 of those years was as a Specialist, and his professional expert focus over that time on pleuropulmonary pathology and the multidisciplinary aspects of asbestos-related disorders, the Tribunal agrees with Dr Henderson and Sonia Klebe’s report. The Tribunal finds that the disease which was diagnosed in Mr Gough in the 1970s was indeed mesothelioma which, unusually (but not uniquely), regressed for some years and then relapsed and ultimately resulted in his death.
For completeness, the Tribunal also notes the later report of Associate Professor Sonia Klebe of 19 October 2019[96] wherein she reviewed the findings of her earlier report[97] with the late Professor D.W. Henderson and confirmed the findings of that earlier report, albeit with some further observations of interest.
[96] Exhibit 13.
[97] Ibid.
Dr Klebe provided another recent example of a mesothelioma sufferer who was:
“Found to have an ALK mutation in her peritoneal mesothelioma and who received a multitude of treatments, including, finally, targeted therapy. This young woman now has nine years of survival and is apparently disease free.”
Dr Klebe made an observation regarding the term ‘spontaneous’ as used in describing Mr Gough’s mesothelioma in the following quotation from her report:[98]
“It is worth mentioning that multiple times in the various reports the regression of the mesothelioma in Mr Gough is referred to as ‘spontaneous’. However, he had reportedly received chemotherapy(ies) including an intra-cavitary nitrogen mustard, so the regression could represent a treatment effect. Several drugs derived from mustard agents are still used today to treat malignancies, including one known as Mustargen (Mechlorethamine) (60), but there are several others, including Mechlorethamine, Cyclophosphamide, Chlorambucil, Melphalan, and Ifosfamide.”
[98] Exhibit 13 at page 4.
The Tribunal also had available to it the report of Dr Anthony Johnson, a Respiratory and Sleep Physician, dated 4 May 2015.[99] In his report, Dr Johnson opined as follows in his ‘Summary and Assessment’ that:
“Spontaneous regression of malignant mesothelioma is rare. A literature review, looking at all literature between 1951 and 2008 shows two reports of cases with spontaneous regression of malignant mesothelioma in the medical literature (1). Most cases of spontaneous regression of thoracic malignancy are due to renal cell carcinoma. I think it unlikely the original illness was mesothelioma. The chance of that regressing is remote and clinically it did not behave as mesothelioma. I consider that the illness in 1988 to 1990 was consistent with mesothelioma and the pathology is available from that time and the reports are consistent with mesothelioma.”
[99] Exhibit 11.
Unfortunately, the pathology from the original diagnosis, I understand, is unavailable.
The level of asbestos exposure he reported from demolition of the asbestos walls would be sufficient to have caused malignant mesothelioma. The dose of asbestos required to have caused malignant mesothelioma is now appreciated to be much lower than was known at the time of his diagnosis.
The time from asbestos exposure to development of mesothelioma is on average in the order of 40 years. If the original diagnosis of mesothelioma was incorrect and his mesothelioma did not commence until 1988, this would be 20 years from his exposure and entirely consistent with malignant mesothelioma.
The Tribunal, having considered the expert evidence in the medical reports before it, prefers the evidence based on their long, professional specialist experience with the type of disease suffered by Mr Gough of Professors Henderson and Klebe. Although Dr Bryant’s report that there may have been some type of “bizarre mesothelial hyperplasia”, his report, noting the pathology at that time, is consistent with the contemporary views held jointly of Professors Henderson and Klebe. Mr Black, in his submissions to the Tribunal, did, in frankness, refer to Dr Johnson as somewhat of “an outlier”[100] in his holding the view that the initial diagnosis of Mr Gough’s disease was incorrect and was of a disease of some different but unspecified type. The Tribunal must look at all the evidence and weigh each of the expert views against each other, both for and against. In this matter, the Tribunal is persuaded by the pathological evidence associated with the report of Dr Bryant and that contained in the views of Professors Henderson and Klebe that, on the balance of probabilities, the disease which manifested in Mr Gough initially in the 1970s and then which claimed his life in 1990, was malignant mesothelioma which, at a point, regressed and then recrudesced some years later.
[100] Transcript of proceedings at page 73, line 29.
Given that the Tribunal has decided that the disease from which Mr Gough suffered from in 1977 and to which he succumbed in 1990 was mesothelioma, it is now required to decide whether the claim brought pursuant to section 30 of the 1971 Act can be sustained.
The next question for the Tribunal to consider is the absolutely fundamental question to the applicant’s claim, and that is:
“The Tribunal, having decided that the disease suffered by Mr Gough at all times relevant was mesothelioma, what are the consequences for the applicant’s claim pursuant to the provisions of section 30 of the 1971 Act upon which the applicant relies to prosecute his claim when considered in conjunction with the defining Schedule in the Compensation (Commonwealth Employees) Regulations, First Schedule - Regulation 12 (“the Regulations”)?”
This question is critical insofar as the applicant is asserting in his contentions that mesothelioma is a disease capable by way of some common usage, of being included under the broad umbrella of the term “pneumoconiosis” in Item 5 of the Regulations, Schedule 1, Regulation 12, it is stated:
The Disease
The Employment
Pneumoconiosis
Employment involving inhalation of matter capable of causing pneumoconiosis.
The applicant has contended that Mr Gough’s employment involved the inhalation of asbestos dust capable of causing mesothelioma and that Comcare has not established that Mr Gough’s employment was not a contributing factor to his mesothelioma and so, the decision under review should be set aside and the matter remitted to Comcare for the reassessment of compensation.
The applicant has elected to bring his claim under section 30 of the 1971 Act which states:
30.Without limiting by implication the operation of the last preceding section, 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 a disease of a kind specified in the Regulations as a disease that is related to employment of a kind so specified; and
(c)The employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth in employment of that kind,
then, for the purposes of this Act, unless the contrary is established, the employment in which the employee was so engaged by the Commonwealth shall be deemed to have been a contributing factor to his contraction of the disease.
For the purposes of the section, it will be necessary for an employee claiming under section 30 to fulfil each of the requirements set out in the section.
In this particular matter, it is obvious that section 30(a) is fulfilled by the fact that Mr Gough, as an employee, has suffered, or is suffering from, a disease or the death of an employee results from a disease. There is no dispute in relation to that aspect of fulfilling the first requirement of section 30. However, the contentions on behalf of the respondent arise in relation to the operations of parts (b) and (c) of the provision.
It was acknowledged by counsel for the applicant that for the applicant’s claim to succeed, it was necessary that the term “pneumoconiosis” is capable of drawing the disease of mesothelioma in under its umbrella.
Counsel for both parties directed a considerable degree of their submissions to this point. Mr Woulfe for the respondent submitted that the term “pneumoconiosis” was of itself descriptive of a number of diseases that are particularly associated with the inhalation of various types of dust which cause damage by way of fibrosis within the lining of the lung and other complaints such as byssinosis and asthma-like conditions. He did in fact, elicit from Dr Johnson during that gentleman’s evidence a comprehensive list of pneumoconiosis-type conditions in this regard. Dr Johnson also agreed that mesothelioma was a different disease to all the others listed and that it was a cancer affecting the mesothelium, the pleura and peritoneum. Dr Johnson agreed that mesothelioma could occurred without exposure to asbestos but that it would be incredibly rare.
The following exchange between Mr Woulfe and Dr Johnson occurred[101] when Dr Johnson was asked about his understanding of the term “pneumoconiosis”:
“MR WOULFE: Yes. And so what I suggest to you, is that there is a distinction that may be drawn between mesothelioma and the class of pneumoconiosis that we have just discussed in this last passage of questioning, isn’t there?
DR JOHNSON: Yes, that’s correct.
MR WOULFE: And, as you say, you were not around, practising, at the point in time in which pneumoconiosis was the en vogue terminology, were you?
DR JOHNSON: No, I wasn’t, I wasn’t practising. But I should just point out that as part of my masters thesis, I went through all the Dust Disease Board files of people with mesothelioma going back through that period, and saw reports and descriptions, including pneumoconiosis, which is what I based that on.
MR WOULFE: And so what I have to suggest to you, is that pneumoconiosis is actually different from mesothelioma, would you accept that proposition?
DR JOHNSON: The way that I think of its definition at the moment, yes.”
[101] Transcript of proceedings at page 50.
Mr Black, in his written submissions, proposed that Mr Gough’s mesothelioma was a disease of a kind specified in the Regulations, namely pneumoconiosis. Mr Black submitted that the words “disease of a kind” in paragraph (b) of section 30 allowed a description in terms more general than those which would identify a particular disease, referring the Tribunal to the quote from Bird v The Commonwealth (1988) 165 CLR 1 which stated:
“The words ‘disease of a kind’ in paragraph (b) of section 30 allow a description in terms more general than those which would identify a particular disease.”
He then went on to state that the term “pneumoconiosis”, as used in the Regulations, is a general description of a disease of the lungs due to inhalation of dust and quoted therein the American Lung Association comment that:
“Pneumoconiosis is a general term given to any lung disease caused by dusts that are breathed in and then deposited deep in the lungs, causing damage.”
and also referred to the Commissioner of Taxation v Inkster (1989) 24 FCR 53 and at paragraph [5] the Court stating that:
“Asbestosis is a particular form of pneumoconiosis, a disease of the lungs caused by inhalation of dust.”
Mr Woulfe, on behalf of the respondent, also questioned Professor Fox in relation to the question of mesothelioma being referred to under the umbrella of pneumoconiosis at times. Mr Woulfe and Professor Fox exchanged the following dialogue:[102]
[102] Transcript of Proceedings at page 57.
“MR WOULFE: Yes. Now, Professor, you’ve heard the passage of questioning between Dr Johnson and me in relation to pneumoconiosis being different from mesothelioma.
PROFESSOR FOX: Yes.
MR WOULFE: Or that was the effect of the conversation.
PROFESSOR FOX: Yes.
MR WOULFE: Would you agree with Dr Johnson’s views in that connection?
PROFESSOR FOX: I think, in general, so. I think mesothelioma was considered outside that, in general. But occasionally people used definitions loosely.
MR WOULFE: Right. So you just said that you would consider it - it was outside that, now are you referring to a period of time in, or about, the ’70s, or the ’60s?
PROFESSOR FOX: I couldn’t say.
MR WOULFE: Right. But you would regard pneumoconiosis - - -. You’d regard mesothelioma as falling outside the definition of pneumoconiosis, is that right?
PROFESSOR FOX: In general, yes.
MR WOULFE: Yes. And is that because there’s a different mechanism or because of something else?
PROFESSOR FOX: Well, it’s just a totally different disease, it’s a different tissue as well, it’s the pleura. Pneumo, by definition, means your lung.”
The Tribunal has looked at a number of the materials provided to it in the medical reports to try and establish to what level of application the term “pneumoconiosis” had been applied to the disease of mesothelioma. A consideration of all the reports in the documents, including the earlier pathology reports, did not reveal any use or application of that term to the disease was mesothelioma. It is the opinion of the Tribunal that Dr Johnson’s alluding to its usage was, to say the least, somewhat perfunctory and insubstantial insofar as no written evidence of such nomenclature was made available to the Tribunal. Professor Fox’s comment that “but occasionally, people use the definitions loosely”, and that he could not say what era that it could be used in is, in fact, supportive of the fact that it was not a common terminology in expert medical circles at perhaps any time, but may have been used outside of those fields. Given Professor Fox’s prodigious specialist practising in the particular discipline of cancer research and study and as a medical Oncologist since the mid-1970s, the Tribunal is satisfied that this definition was, on the balance of probabilities, based on the evidence before it, not at all widely used on a professional level in relation to describing mesothelioma. Significantly, Dr Johnson and Professor Fox both, in their own way, indicated that they did not consider the term “pneumoconiosis” as applicable to mesothelioma in a professional sense. The Tribunal finds that on the balance of probabilities, after considering all the evidence available to it, the disease mesothelioma is not therefore:
“A disease of a kind specified in the Regulations.”
as applicable to the second of the criteria specified in section 30 of the 1971 Act.
Given this finding by the Tribunal, it is therefore the fact that the applicant’s case is unable to succeed on the basis that by definition, the disease of mesothelioma is not a disease of the type falling under the umbrella of pneumoconiosis to satisfy the requirements of the second criteria for section 30 of the 1971 Act. Accordingly, the Tribunal affirms the decision under review.
CONCLUSION
As the preliminary requirements of the 1971 Act have not been made out by the applicant, his claim therefore fails.
As the applicant’s claim has not been made out, there is no need to address the respondent’s prejudice question.
DECISION
The reviewable decision is affirmed.
I certify that the preceding 207 (two hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM
...................................[SGD]....................................
Associate
Dated: 23 November 2020
Date of hearing: 9 December 2019 Date final submissions received: 9 December 2019 Counsel for the Applicant: Mr M Black Solicitors for the Applicant: Ms J Hodge, Hall Payne Solicitors Solicitors for the Respondent: Mr A Schofield, Comcare Counsel for the Respondent: Mr P G Woulfe
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