Gough and Comcare (Compensation)

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.