Gough and Comcare (Compensation)

Case [2020] AATA 4669

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
Respondent

DIRECTION

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:

  1. At paragraph 114 of the decision, the text “(43” now read “(3)”;
  1. The paragraph numbering from page 82 where paragraph 161 immediately follows paragraph 163 through to paragraph 204 now reads 164 through to 207 respectively;
  1. The reference to the American Lung Association at footnote 59 shall be included in the list of Secondary Sources; and
  1. 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 AM

Division: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 473

Secondary Materials

Cooma, T. et al, ‘Spontaneous Regression of Thoracic…

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Gough and Comcare (Compensation) [2020] AATA 4669
Case
[2020] AATA 4669
Decision Date

CaseChat Overview and Summary

This matter concerned a claim for compensation by an applicant seeking benefits following the death of their parent, Mr Gough. The dispute centred on whether the deceased's illness, malignant mesothelioma, was contributed to by his employment, and whether his employment caused his death. The applicant argued that the disease was a result of asbestos exposure during his work. The case was heard by P J Clauson Am SM.

The court was required to determine several legal issues. These included whether the disease from which Mr Gough suffered and ultimately died was malignant mesothelioma, and if so, the implications for the applicant's claim under the relevant legislation. Further questions arose regarding the applicability of different legislative regimes, specifically the *Safety, Rehabilitation and Compensation Act 1988* and the *Compensation (Commonwealth Government Employees) Act 1971*, and whether the injury, loss, or damage suffered by Mr Gough was preserved or precluded by transitional provisions. The court also had to consider whether the claim was made within the prescribed time limits under the *Compensation (Commonwealth Government Employees) Act 1971*, and if not, whether the "no prejudice" provisions could allow the claim to proceed out of time.

The court considered extensive medical evidence, including reports from consulting pathologists and respiratory physicians. A key piece of evidence was a 1980 report from Dr D.H. Bryant, which detailed Mr Gough's medical history, including a diagnosis of malignant mesothelioma in 1977, followed by a remarkable spontaneous regression. Subsequent pathology reports confirmed the histological appearances were typical of malignant mesothelioma, though the regression was noted as surprising. Expert evidence from Dr Anthony Johnson suggested that the 1977 illness was unlikely to be the same as a later diagnosis of mesothelioma due to the rarity of spontaneous regression, and that asbestos inhalation nine years prior was unlikely to have materially contributed to the 1977 diagnosis, though he also noted that current scientific evidence indicates no known threshold below which there is no risk of mesothelioma. The court also had to grapple with the application of the *Compensation (Commonwealth Government Employees) Act 1971* and the *Safety, Rehabilitation and Compensation Act 1988*, particularly concerning the timing of the injury and the claim.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.”

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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?