Kent v Goulburn Murray Rural Water Corporation
[2018] VCC 2030
•13 December 2018
The
| IN THE COUNTY COURT OF VICTORIA AT SHEPPARTON COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-05155
| DAVID JAMES KENT | Plaintiff |
| v | |
| GOULBURN MURRAY RURAL WATER CORPORATION | Defendant |
---
JUDGE: | HER HONOUR JUDGE K.L BOURKE | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 27 and 28 November, December 10 2018 | |
DATE OF JUDGMENT: | 13 December 2018 | |
CASE MAY BE CITED AS: | Kent v Goulburn Murray Rural Water Corporation | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2030 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – melanoma – leptomeningeal disease – application pursuant to s135A of the Accident Compensation Act 1985 – determination pursuant to s135AC of the Accident Compensation Act 1985 as to whether the application for determination had been made before the expiration of three years after the date the worker’s incapacity had become known
Legislation Cited: Accident Compensation Act 1985, s135A and s135AC
Cases Cited:Papercorp Pty Ltd v Nicolaou; Howden v Ansett Australia [2006] VSCA 143; M & J Rawlings Builders and Contractors v Rawlings [2010] 30 VR 444; Humphries & Anor v Poljak [1992] 2 VR 129; AEP Industries Australia Pty Ltd v Mahmoud (2007) 17 VR 144; Smith v Canberra Press Pty Ltd [2009] VSCA 200; Pattison v Herald & Weekly Times [2013] VSCA 121; Fox v Percy (2003) 214 CLR 118; Nominal Defendant v Cordin (2017) NSWCA 6
Judgment: Application granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti QC with Mr R N Morrow | Nevin Lenne Gross |
| For the Defendant | Mr W R Middleton QC with Mr S D Martin | Wisewould Mahony |
HER HONOUR:
1 The plaintiff, David Kent, alleges that during the course of his employment with the defendant between 1981 and 1990 (“the said period”) due to unprotected sun exposure (‘the exposure”), he suffered a melanoma (“the melanoma”).
2 In this application, the plaintiff seeks leave to issue a proceeding to recover damages in respect of the injury suffered by him. His right to do so is governed by the provisions of s135A and s135AC of the Accident Compensation Act 1985 (“the Act”).
3 Section 135A of the Act, in effect, provides that a worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of employment if the injury is a “serious injury”.
4 The term “serious injury” is defined in the Act, insofar as is relevant to this application, as:
“serious long-term impairment or loss of a body function.”[1]
[1]Section 135A(19) of the Act
5 Insofar as it is relevant, s135AC of the Act provides:
“Despite anything to the contrary in the Limitation of Actions Act 1958, proceedings in accordance with section 135 or 135A must not be commenced—
(a) subject to the Limitation of Actions Act 1958, unless paragraph (b) applies, unless an application for a determination from the worker under section 135A(2B) has been made to the Authority or a self-insurer before 1 September 2000; or
(b) if the cause of action arose before 12 November 1997 and the incapacity arising from the injury was not known until after 12 November 1997, unless an application for a determination from the worker under section 135A(2B) has been made to the Authority or a self-insurer before the expiration of 3 years after the date the incapacity became known.”
(My emphasis)
6 By correspondence dated 15 June 2017, the plaintiff made an application to the Authority pursuant to s135AC of the Act, alleging that he had suffered a serious injury as a result of the exposure during the said period. The application was received by the defendant on 19 June 2017. By letter dated 17 October 2017, the defendant decided to reject the application.
7 It follows that, by reason of the provisions of s135AC(b) of the Act, the plaintiff is barred from commencing a damages claim relating to those injuries unless the incapacity arising from those injuries suffered due to the exposure was not known until 19 June 2014.
8 In Papercorp Pty Ltd v Nicolaou,[2] the Court of Appeal held that the words “the incapacity arising from the injury” in s135AC(b) of the Act should be taken to mean any consequence, known to the worker, deriving from compensable injury, whether constituted by pain or suffering consequences, or pecuniary disadvantage, or both, which would found a successful serious injury application.[3]
[2][2006] VSCA 143
[3](Ibid) at paragraph [33]
9 The onus is on the plaintiff to establish that he was not aware of his incapacity arising from injury suffered as a result of the exposure prior to 19 June 2014.[4]
[4]M & J Rawlings Builders and Contractors v Rawlings [2010] VSCA 306 at paragraphs [9] to [31]
10 Put another way, the plaintiff must establish that his application was made within three years of the date that the serious injury incapacity became known to him.
11 In determining whether the plaintiff has satisfied the criteria in s135AC, a two-step process is required to be followed by the Court:
(a)First, identify what the worker knew in relation to his injury at the relevant date (here, 19 June 2014); and
(b)Second, having determined what the worker knew, the Court must determine whether, as a matter of fact and degree and value judgment for the judge, these known facts constitute knowledge of “serious injury incapacity” as explained in Humphries & Anor v Poljak.[5]
[5][1992] 2 VR 129 (“Humphries”); AEP Industries Australia Pty Ltd v Mahmoud (2007) 17 VR 144 at paragraph [11]; Papercorp Pty Ltd v Nicolaou; Howden v Ansett Australia (ibid) at paragraph [50]
12 In Humphries, the Court of Appeal stated that:
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? Beyond such guidance it is, we think, not possible to go.”[6]
[6]Humphries (ibid) at paragraph [8] per Crockett and Southwell JJ
13 The Court is to look at the worker’s actual subjective knowledge of his incapacity.
14 The Court must decide what the worker knew about the extent of, and probable duration of, his incapacity arising from the compensable injury at a particular time.
15 However, the fact that the worker may know of the fact and nature of his incapacity but not subjectively know that such incapacity amounts to a “serious injury” (as defined in the Act) until after the relevant date, does not matter. It is sufficient to bar the claim if the worker knew, by the relevant date, of facts which, viewed objectively, constituted a serious injury incapacity.[7]
[7]AEP Industries Aust Pty Ltd v Mahmoud (supra) at paragraph [28]; Smith v Canberra Press Pty Ltd [2009] VSCA 200 at paragraph [8]
16 Nor is it relevant that the worker may not have appreciated that he had a cause of action arising from the injuries.[8]
[8]Smith v Canberra Press Pty Ltd (supra) at paragraphs [10] to [12]
17 The issue before the Court is whether the plaintiff knew of the relevant incapacity on or before 19 June 2014 (that date being three years before the date of his application).
18 The defendant does not dispute that –
(a)from 2012, the plaintiff commenced to suffer metastatic spread of his melanoma, including from mid 2014, leptomeningeal disease;
(b)the metastatic spread of the plaintiff’s melanoma constitutes serious injury;
(c)employment is the cause of the metastatic spread of the plaintiff’s melanoma.
19 Given the fact that the plaintiff has suffered a serious injury in the course of his employment is not in issue. I intend to deal with evidence of the plaintiff’s treating practitioners in a limited way in terms of the plaintiff’s knowledge of his medical condition and incapacity and also the nature of leptomeningeal disease.
20 I consider that what I am required to determine is:
(a)What was the plaintiff’s actual subjective knowledge as to the extent and probable duration of his compensable injury on or prior to 19 June 2014?
(b)Whether, having regard as to what the plaintiff subjectively knew about his injury, those known facts, viewed objectively, constitute knowledge of serious injury incapacity as explained in Humphries.[9]
The Plaintiff’s evidence[10]
[9]Supra
[10]The plaintiff swore two affidavits dated 8 June 2017 and 21 November 2018
21 The evidence of the plaintiff’s subjective knowledge of his incapacity must inevitably come from his own accounts as appear in his affidavits in support of his application, his vive voce evidence, and from histories given to doctors at various times.
22 The plaintiff is nearly fifty-nine, having been born in December 1959.
23 In November 1981, the plaintiff worked with the State Rivers and Water Supply Commission as a relieving water bailiff. He was based at Pyramid Hill and covered an area for Calivil and Macorna. His job was to regulate water and the irrigation channels and organise the allocation of water.
24 The plaintiff was generally on site, meeting farmers daily and inspecting the irrigation wheels. The water deliveries occurred over a period of nine months between August and May, and winter was normally a shutdown period, and the plaintiff had holidays.
25 In the early period of employment through until about the mid-1990s, there was very little sun protection or concern about sun exposure by the defendant. In that period, the plaintiff worked for about an hour twice a week in the office, with the balance of his time being outdoor work, including driving to visit farms and irrigation equipment.
26 In 1990, the plaintiff discovered a mole on the right side of his jaw. It was removed locally, and about five days later, he was referred to Peter McCallum Cancer Centre (“Peter MacCallum”) for a check-up. The mole was subsequently classified as a melanoma.
27 During the course of his employment, the defendant changed its name to the Rural Water Corporation and then, eventually, Goulbourn Murray Water (“GMW”). From about the mid-1990s, the plaintiff was head water bailiff. In that position, his time in the office increased predominantly, so he was working about 40 per cent of the time in the office and 60 per cent in the field.
28 After the removal of the mole in 1990, the plaintiff believed he only had a temporary condition from which he would make a full recovery. He was never advised, nor did he consider, he had any permanent problem, despite having to go for regular check-ups for the next five years.
29 The plaintiff could not recall whether he was advised between 1990 and 2008 of the risk of recurrent melanoma; however, in 1990, when he first went back to Peter MacCallum, on a three-monthly visit, one of the nurses said “we’ve got you for life because it can be serious,” but that did not turn out to be what happened.[11]
[11]Transcript (“T”) 40
30 The plaintiff last attended Peter MacCallum in 1994.[12]
[12]T22 - Clinical notes 23 August 2004
31 In October 2008, the plaintiff resigned from GMW to join the Northern Victorian Irrigation Renewal Project (“NVIRP”), an entity which had been set up to modernise and reduce the footprint of the irrigation infrastructure within GMW. Within that role, he was an executive manager. He remained in that role until it was absorbed back into GMW, effective from 1 July 2012, when it became the “Connections Project”. It was really all the same job.[13]
[13]T16
32 In July 2012, the plaintiff experienced stroke-like symptoms. He attended the Emergency Department at Shepparton Hospital, where a CT scan revealed a brain tumour. He was immediately transferred to St Vincent’s Private Hospital in Melbourne and had surgery to remove the tumour (“the first operation”). He was an inpatient from 27 July 2012 to 6 August 2012.[14]
[14]Claim Form
33 The plaintiff was then told by his treating neurosurgeon, Associate Professor Murphy, the tumour was directly related to the melanoma removed in 1990 and he was classified as a Stage IV melanoma patient.[15]
[15]T24
34 When Professor Mr Murphy referred him to Associate Professor Parente in August 2012, it might not have been said directly that there was a prospect of recurrence, but the plaintiff assumed that was why he had to keep going every couple of months to have a CT scan.[16]
[16]T23
35 At one point, the plaintiff was told he only had nine months[17] to live, but after further investigations, further tumours which were discovered in his liver were eventually classified as cysts, and he was told his life expectancy would be greater than first thought. At that stage, he did not think he should do something about his legal case, such as he is today.[18]
[17]Six months in the written addendum to the insurance claim
[18]T41
36 The plaintiff eventually went back to work after the first operation. He was not sure how long he had off – probably weeks.[19]
[19]T23
37 The plaintiff returned to work and was working normally, living life as normal. His son-in-law suggested they run in a marathon as he thought it would help with the plaintiff’s recovery.[20]
[20]T51
38 The plaintiff actually ran in the Melbourne Marathon in October 2012, after a lot of training. He started running and training for the marathon immediately after he was discharged from hospital.[21]
[21]T33
39 The plaintiff “definitely rejected” the suggestion that whilst his name was on the list of participants, he had not actually run in the 2012 marathon. A couple of weeks after the race, his work group put a photograph of him in the Shepparton News and the article was all about him having cancer and running in a marathon, so it was “definitely on the record”.[22]
[22]T35
40 A second tumour was removed from the plaintiff’s groin in February 2013 (“the second operation”). He was an inpatient at Epworth Eastern from 25 February 2013 to 26 February 2013.[23]
[23]Claim Form
41 A third tumour was removed from the plaintiff’s brain in May that year (“the third operation”). He was an inpatient at St Vincent’s Private Hospital from 28 May to 31 May 2013.[24] After the third operation, the plaintiff was advised that tumour was connected directly to the 1990 melanoma.[25]
[24]Claim Form
[25]T25
42 The plaintiff understood that there were to be ongoing scans. He thought it seemed to be like the same process in 1990, when they “grabbed him” then and he used to go every three months to Peter MacCallum.[26]
[26]T27
43 In between the operations, the plaintiff returned to work, but eventually his sick leave was exhausted and he made a claim on his income protection policy. He thought he had, all up, forty days’ sick leave for three operations.[27]
[27]T29; the leave records from 7 May 2012 to 13 May 2013 showed 75 days’ sick leave
44 The plaintiff ceased work on 27 May 2013.
45 By letter dated 15 July 2013, the defendant contacted the plaintiff about his unpaid leave approval. The plaintiff was advised that the defendant had approved his request for unpaid leave from 27 July 2013 until further notice due to personal illness.
46 On 18 November 2013, the plaintiff emailed Eugenie Stragalionis, at the defendant, in relation to the Connections Operations Manager role.
47 The plaintiff told Eugenie that he saw on Seek there was a position advertised for a Connections Operations Manager which appeared very much like his substantive position. He did not think the revised structure for the Connections team had been finalised so he did not understand why this (and he noted some other positions) was currently advertised.
48 The plaintiff asked should he be applying for this position, or is he wrong in thinking this is his current position?
49 The plaintiff advised, due to his current circumstances, that is, his inability to advise on when or if he returns to work, he understood if his position needed to be filled so the team could get on with delivering the project; however, he did not know where that would leave him. He appreciated her advice on this matter.
50 By letter dated 21 January 2014, the defendant advised the plaintiff that his employment with the defendant will cease due to the redundancy of his position as Manager, Connections.
51 It was the plaintiff’s belief that his redundancy came about because of political interference at his employer.[28]
[28]T16
52 A briefing was provided to the Managing Director on 8 April 2014. The aim of the briefing was to provide the Managing Director the chronology of events that GMW undertook to support the plaintiff during his sick leave while employed by GMW.
53 These entries started on 19 June 2013 and ended on 24 January 2014, which was confirmed as the final termination date for the plaintiff. It was noted on 25 June 2013, GMW agreed the plaintiff was to retain a GMW mobile phone and could maintain the use of the GMW vehicle for as long as needed, given the circumstances. In late July 2013, the plaintiff returned the vehicle, as he no longer required vehicle use.
54 On 15 July 2013, GMW confirmed the period of unpaid leave would not break continuity of service.
Intentions regarding work post redundancy
55 Although the plaintiff was made redundant in January 2014, he still had in his mind that he would find some employment and return to the workforce. He read the paper regularly for employment advertisements, especially the Shepparton News, but also the Herald Sun. As of July 2014 when the plaintiff experienced the symptoms whilst bowling, he was still gardening regularly, reading and socialising. He was going well and was optimistic about his future, and was very keen to return to some form of employment.
56 The plaintiff had always been career oriented. He had actually wanted to be the CEO of GMW one day and to be the first water bailiff to actually get to that position. This was a big deal for him. He was two steps away from it when he was made redundant. He was an executive manager and going pretty well. He wanted to get back into the irrigation industry somewhere in that capacity, and that might have been with a consultancy or some group like that, but he was looking and he was talking to people. He was having a coffee with people. He was meeting up with former colleagues.[29]
[29]T17
57 The plaintiff was of two minds as to whether he should apply or not for the jobs he saw in the paper. He was meeting regularly with people who wanted him to come and work for them. Rubicon Systems in Shepparton, a company which built modernised gates for channels, was one such organisation. The plaintiff was having coffee with “those guys” quite regularly.[30]
[30]T17
58 The plaintiff was also having coffee quite regularly with Colin Findlay, who had a consultancy in Shepparton, because he wanted the plaintiff to come and work as well. Findlay was more involved in the farm designs and was doing farm irrigation improvements.
59 The plaintiff was keen, but there was just that question-mark over his health and his illness, and he just wanted to get over that hump and then get into it again. That is what he told them all; that he was keen and he was going to do it.[31]
[31]T17
60 These positions involved the plaintiff going out onto farms and seeing the land owners and talking to them about what the particular company could do for them. Talking to farmers was his forté at GMW when he was a water bailiff. That is what he did and what he learnt to do really well as he progressed through the industry.[32]
[32]T18
61 The plaintiff never took the Rubicon or Colin Findlay offers any further because he did not think he would have needed to make an application. He could just ring them and say “yeah, [I] was ready to go”, and they probably would have said “yes, come in”.
62 The plaintiff did seriously consider a position in Berrigan as a CEO or general manager of a private irrigation system. He nearly wrote an application, but he just did not go ahead with it.[33]
[33]T18
63 If the plaintiff had not had the lepto,[34] he would be back at work. He was sure of that.[35]
[34]Later diagnosed as leptomeningeal disease
[35]T36
Running and bowls
64 In July 2014 when the plaintiff became ill, he was still running very regularly, at least four days a week, anywhere from 5 to 8 kilometres a day.
65 The plaintiff was learning to play bowls and was going to play pennant that summer. He had put his name down to play for a club. He would have played ten games, perhaps once or twice a week.[36]
[36]T42
66 A couple of years earlier, the plaintiff was running 15 kilometres a day, six days a week. He regularly commenced a run at 6.00am. Further, at the age of fifty, he did his first marathon, completing the 42-kilometre Melbourne Marathon in October 2010.
67 The plaintiff was running nearly every day because his doctors told him to keep fit and to exercise, and that was the best way to get over cancer. He liked running. It relieved the stresses. Most days he was running at least 5 kilometres, and possibly 8 to 10 kilometres.[37]
[37]T19
68 The plaintiff was running regularly up until July 2014, but had noticed he was not able to run the distances which he had been running a couple of years earlier. He had no reason to believe that his ability to run was in any way affected by any condition or disease, and put it down to getting a bit older.
69 The plaintiff’s wife was working, so he was at home all the time doing the cleaning and the gardening, and he did a lot of reading.[38]
[38]T19
Income disability policy
70 When the plaintiff joined NVIRP in 2008, he had about 360 sick leave days with GMW. Because he actually resigned, those days were going to disappear. It was suggested to him by the CEO of NVIRP that to address this issue, he should obtain some income protection insurance.[39]
[39]T20
71 After the third operation, the plaintiff then ran out of sick leave and it was then classified as leave without pay.
72 The plaintiff signed a Macquarie Life Disability Income Claim Form on 11 June 2013.[40]
[40]T26
73 In that form, the plaintiff described the nature of his illness as “metastatic melanoma.” He noted that three metastatic melanomas had been removed over last ten months. He was first diagnosed with brain tumour 27 July 2012.
74 The plaintiff noted that after the initial brain tumour was removed, he was referred to oncologist Professor Parente, who organised ongoing scans on a regular basis. The plaintiff was off work over the last ten months on three separate occasions.
75 In terms of further treatment, the plaintiff noted “it is expected that further metastatic melanomas will be found – may have further surgery and/or cancer drugs administered”.
76 The plaintiff provided the following additional information:
“After a series of neurological episodes including stroke like symptoms I was diagnosed with a brain tumour on Friday 27 July 2012. This diagnosis occurred at the Shepparton Public Hospital.
I was rushed by ambulance to St Vincent’s Private Hospital and referred to Associate Professor Michael Murphy who subsequently removed the tumour on Tuesday 31 July 2012. The tumour was tested and confirmed as a melanoma.
I was discharged from hospital on 6 August 2012 and Mr Murphy referred me to an oncologist – Dr Phillip Parente. I had my first appointment with Dr Parente on 14 August 2013. Due to some concern with lumps on my liver I was informed that I had 6 months to live. I lived with this prognosis for approximately 6 weeks. This was subsequently proved false as the lumps were eventually found to be cysts. I had a number of scans and ongoing appointments with Dr Parente over the following months.
In February 2013 I discovered a lump in my groin and immediately made an appointment with Dr Parente. A subsequent biopsy confirmed this lump was a melanoma and it was subsequently removed by Dr White on 23 February.
Following further neurological episodes, this time with epileptic like symptoms, I was diagnosed with another brain tumour on 20 May 2013. I was subsequently admitted to St Vincent’s Private Hospital, where Associate Professor Michael Murphy again removed a tumour from my brain. It was again confirmed as melanoma. This time it was on the right side of the brain with the initial tumour located on the left side.
What gets me about this insidious disease is the uncertainty of when the next melanoma will occur. It also puts significant stress on your family and those close to you.
All the oncologist can tell me is that it is extremely like more melanomas will appear.
Three in 10 months. What does the next 10 months have for me?
Stop press
Had scheduled CT an oncologist appointment on 24 June 2013, 2 small lumps on my lungs have been identified. At this stage it is too early to confirm they are melanomas, although the oncologist believes there is a significant chance that they will be. I have follow up scans to confirm on Monday 5 August 2013.”[41]
[41]Professor Parente reported on 5 July 2015 the questionable small pulmonary lesions had disappeared
77 Dr Wallace, filled out a Macquarie Life Disability Income Doctor’s Certificate on 19 June 2013. In that form, he described the plaintiff’s prognosis as poor, noting he had multiple melanoma deposits and is at high risk for more. He requires ongoing post-operative surveillance and possible radiotherapy.
78 Dr Wallace noted initial melanoma 1996. Has had cancerous metastases, left brain, August 2012, right groin, February 2013 and right brain, May 2013.
79 At that stage, Dr Wallace thought the plaintiff was not likely to return to work.
80 Professor Parente completed a Cancer Claim Doctor’s Statement on 19 June 2013 which accompanied the plaintiff’s Claim Form.
81 Professor Parente noted the plaintiff first presented with this condition in July 2012. The cancer was a Stage IV melanoma. There was spread to the lymph nodes and there were no metastases present. The expected treatment was observation. The patient was not in remission. He estimated the plaintiff’s survival time at “5% 5 year survival”.
82 The plaintiff was aware of the part of the application signed by Professor Parente.[42]
[42]T38
83 By letter dated 25 June 2013, the plaintiff sent the Claim Form to Macquarie Life. In that correspondence, he advised of the name and details of his financial planner.
84 The plaintiff also advised that on 24 June 2013, he had had his latest scheduled CT scan and it had indicated two small lumps on his lungs. The advice was it was too early to say with any certainty whether these were melanomas, but the oncologist was suggesting that it was a very good chance that they were. He advised he was to have follow-up scans to confirm either way on Monday, 5 August 2013.
85 The plaintiff also advised, in regards to his sick leave, he had a balance of twenty-seven days as at 25 June 2013, to be confirmed. His oncologist had provided a medical certificate until 30 September 2013. It was likely to be extended. Therefore, the plaintiff requested that this claim was assessed prior to his sick leave balance being exhausted.
86 The plaintiff advised he would appreciate the allocated case manager contact him as soon as possible to provide he and his wife with some certainty and financial security in the future as he battled the disease.
87 The plaintiff lodged the claim, as his sick leave was never reinstated and he needed money from somewhere. He really still wanted to get back to work at some stage. He had to get over this last melanoma.[43]
[43]T26
88 When it was suggested to the plaintiff that when he was filling out the Claim Form it was apparent he was in a very difficult and compromised state, he responded “… in a fashion, yes. It wasn’t ongoing though.” He was fine after each episode. He would get positive again and wanted to get back into life.[44]
[44]T27
89 Whilst monitoring was certain, the plaintiff was not sure about certain melanomas or tumours. He thought there was potential, but for this Claim Form, he had to say that. He had to get them to tick it off – “It’s stretched a little bit to make it sound worse than it actually was”.[45]
[45]T28
90 The plaintiff had to embellish the Claim Form a little bit. He admitted that, but it did not mean he accepted he was never going to work again. He never ever did that. The medical industry was improving in leaps and bounds over time and things were around the corner that they did not know. The five per cent in five years, noted by Professor Parente was going to stretch out to something different, and he had to grab hold of that.[46]
[46]T47
91 The plaintiff found submitting the income protection claim a bit daunting. He had to get doctors and all the paperwork filled out, and he was unsure how it would work – come off it and then go back on it. He stayed on it, as it turned out, but he did not get back to work after he put in the claim.[47]
[47]T39
92 The plaintiff understood, as was set out on the form, that he had had multiple melanoma deposits, and there was a high risk of more.[48]
[48]T37
93 When he said in the claim document “what do the next ten months hold [for him]”, the plaintiff did not agree he knew the prospects were grim. He was trying to say he might get another three in the next ten years. It was prophetic, because he did get another three over the next twenty months, “if you put aside the lepto”.[49]
[49]T48
The discussion with Dr Wallace
94 The plaintiff explained that every time something happened he worried about it and would go and see Dr Wallace:
“If you’ve got a history of brain tumours and melanomas, every time you’d get a bit of pain somewhere you’re going to think ‘is it another brain tumour? I’d better get this checked out’.”[50]
[50]T48
95 The plaintiff could not remember having a “frank discussion” on 7 June 2013 with Dr Wallace about his outlook and Dr Wallace encouraging him to consider immediate retirement with a view to enjoying the time he had.[51]
[51]Dr Wallace’s clinical note of that date
96 The plaintiff thought he was then starting to run out of sick leave. That was the issue for him, and whether to put in a claim on the income protection insurance form he had to fill out. So he thought it was all building up to that.[52]
[52]T45
97 The plaintiff could not ever remember Dr Wallace encouraging him to consider immediate retirement, and the plaintiff did not consider it. He did not want to consider it; however, he was not going to argue Dr Wallace did not say it.[53]
[53]T45
98 On 13 June 2013, Dr Wallace noted:
“Melanoma results, imaging of brain, chest, abdomen, pelvis NAD all nearly healed. Discussion again re early retirement. Patient remains undecided.”[54]
[54]T45
99 The plaintiff agreed he was undecided. He agreed he then knew his condition was such that he was not fit to go back to work and he had a life expectancy issue - there was that issue. He was not accepting that it was going to happen quickly. He wanted to get back with his life and wanted to work.[55]
[55]T46
100 The plaintiff spoke to a colleague about putting in the income protection insurance claim, but then setting up an ABN to go back to work as a consultant. He agreed that he talked about it with the hope that it might happen, but none of that was realised. The same as he talked to “this guy” about retirement, it did not happen either.[56]
[56]T46
101 The plaintiff explained that at that time, no matter whom you ask, melanoma was a deadly disease, but it did not mean he had to accept it. Not everyone accepted it. A lot of people got through it and over it. The nature of his condition was melanoma tumours. They were removed and he got on with life until the next one came.[57]
[57]T46
102 The “retirement” discussion, was before the plaintiff had run out of sick leave and definitely before he was made redundant. He was working with GMW and the Connections Program. He was passionate about it. He had been involved since the origin of that project in the early 2000s, replacing the old infrastructure. He wanted to finish the Connections Program,[58] just stay with the program and get back to work. The ABN plan was an option to keep him working into the future.[59]
[58]T52
[59]T54
103 It was the leptomeningeal carcinomatosis diagnosis that caused the plaintiff to “hit the wall”, and basically acknowledge that he was not going to work again.[60]
[60]T54
The condition
104 In about June 2014, the plaintiff was diagnosed with leptomeningeal carcinomatosis (“the condition”), which he understood to be melanoma tumours in the spinal fluid. It was clear from then he had a serious problem and would not fully recover, and would be unable to go back to work. He was placed on palliative care, because he was told he was going to die. He lost a significant amount of weight.[61]
[61]First affidavit
105 After the various procedures over the years, the plaintiff was able to make a good recovery, return to work and continue working, and continue to participate in the same social, domestic and recreational activities until he became very ill in July 2014.[62]
[62]First affidavit
106 In his recent affidavit, the plaintiff gave further details of the onset of the condition. He deposed that he believed serious illness occurred on or about 2 July 2014, when he was bowling at the Shepparton Bowls Club (“the bowling incident”). He had been able to play bowls regularly and without restriction until then.
107 The plaintiff corrected this date to 7 July 2014. He went to the Epworth Hospital after the doctor was called, the same day as the bowling incident.[63]
[63]T15
108 On that occasion, the plaintiff became ill and pain developed and increased. He could not continue bowling and he was driven home by friends. He did not then know the nature of his illness. He believes, that day, Dr Wallace, upon Professor Parente’s recommendation, referred him to Epworth Hospital in Box Hill, where he was admitted that day as an inpatient and stayed until 18 July 2014.
109 The plaintiff recalled that about four days before the bowling incident, at which time he was running regularly, he suffered from back and left leg pain while running. He rested after running and the symptoms subsided.
110 After about two days at Epworth Hospital, and after multiple tests had been carried out, the plaintiff was told by Professor Parente that he was suffering from the condition. The plaintiff had never heard of the condition, but was told by the doctor it was very serious and it was strongly inferred that it was life-threatening. Professor Parente did not want to talk very much about the condition, other than to tell him it was extremely serious and his life was in jeopardy.
111 The plaintiff did not fully understand the ramifications of that information, but understood enough to know that he was in a very, very serious and precarious situation.
112 After that diagnosis, the plaintiff and his wife “Googled” the condition. They were able to obtain much more information in respect thereof. He knew, then, the condition was even more serious than he had been led to believe by his doctor and that it was likely he would die from the condition.
113 Up until the onset of symptoms while playing bowls, and the symptoms a couple of days earlier while running, the plaintiff had no inclination that he was suffering from any serious condition. He had been battling the consequences of melanoma for a great many years and had always been able to recover and continue on with his life unrestricted by it, and the symptoms secondary thereto.
114 The plaintiff became aware that he was suffering from serious health issues arising from the melanoma and a life-threatening condition when he was at Epworth in July. Of course he had ill health in the past, but had always recovered and returned to the full gamut of life’s activities. In Epworth, for the first time he was aware of the severity of the disease which had been diagnosed, the side effect of melanoma, and that it was permanent, with the very real possibility of death.
115 Up until the bowling incident, the plaintiff had periods when a tumour had to be removed “dah, dah but [he] got over that pretty quickly and got on with life, and [he] was all positive about it all. That’s the sort of guy [he] was at the time.”[64]
[64]T19
116 The plaintiff assumed the condition directly related to the melanomas, but had never been told that.[65]
[65]T42
117 It was not right that the plaintiff knew about his incapacity in mid 2013. He was quite happy to get back to work. The issue with not going back to work was the fact that he did not have the sick leave. If GMW had returned his sick leave, he would have gone back.[66]
[66]T43
118 In the middle of 2013, the plaintiff acknowledged that he had a brain tumour, which was a serious condition, but it was removed. He was “sewn back up”. He was able to function normally. He did not have any inkling that it was going to be a serious condition and ongoing. His melanoma might have come back and he could live with that. A lot of people live with that. Hawthorn player, Jarryd Roughead, is a classic example.[67]
[67]T43
119 At that stage, the plaintiff acknowledged the condition was a serious one but he did not, and will not, acknowledge that he was never going to work again. He had to be positive about it – to get on with his life.[68]
[68]T44
Progress of the condition
120 After the condition was diagnosed, as the plaintiff was BRAF positive, he went onto chemotherapy in a two-tablet form at the hospital.[69]
[69]T50
121 The plaintiff had not had any radiotherapy up until being told of the condition. Up to that point, the tumours were just removed, “a bit of pain relief, get back on life”. It was the condition that “really hit him”. It was the first time he had radiotherapy and the first time he had chemotherapy.[70]
[70]T38
122 In July 2015, the plaintiff was diagnosed with a tumour in his left kidney, which was subsequently removed surgically. In September that year, two further tumours were found on his left kidney, with one on his adrenal gland and another on the spinal cord.
123 After those tumours, the plaintiff’s medication was immediately changed to Keytruda, the new medication Ron Walker had brought back from America. The plaintiff was one of the first people in Australia to be put on it.[71]
[71]T50
124 The plaintiff had been told that 70 per cent of those taking that medication were surviving, and 30 per cent were not. In addition to that medication, he has had several hospital admissions, radiotherapy and chemotherapy, CT scanning and PET and MRI scans.
125 As of June 2017, in addition to the Keytruda, the plaintiff was taking OxyContin, 20 milligrams twice a day; Lyrica, 75 milligrams twice a day; Nexium; Bactrim; Dexamethasone and Coloxyl.
126 The plaintiff then experienced a range of symptoms, including numbness, pain and weakness of his left leg, fatigue, spontaneous sweating and bladder impairment. He then had between twenty and thirty small skin-coloured nodules, mainly on his leg and face. His condition had caused an impairment in his appetite and libido, and also he felt his cognitive capacity had been impacted upon, together with his state of mental health.
127 The plaintiff is presently taking Keytruda. He has it injected at the Oncology Unit at Epworth every three weeks. The new wonder drug is keeping him alive at the moment.[72]
[72]T19
The Plaintiff’s medical evidence
128 Professor Parente most recently reported on 28 November 2018, having provided an earlier report on 5 November 2018.
129 The relevant passages from those reports were referred to by counsel for the plaintiff in his submissions.[73]
[73]See paragraphs [158]-[171] of my Judgment
130 The plaintiff’s general practitioner, Dr Wallace, reported on 20 November 2018.
131 In that report, Dr Wallace detailed his treatment of the plaintiff since August 2012, after the removal of a brain tumour. A further metastatic melanoma deposit in the right groin was removed in February 2013. He noted the plaintiff’s further symptoms thereafter leading to brain surgery to remove a second solitary metastasis.
132 Dr Wallace reviewed the plaintiff in the post-operative period on 7 June 2013, where they had a frank discussion about his outlook, given he had had three discrete melanoma metastases in a ten-month period. He encouraged the plaintiff to consider immediate retirement with a view to enjoying the remaining time he had.
133 On 17 February 2014, the plaintiff presented with a week of sensory changes in his left thigh. A brain CT scan was normal and his symptoms settled significantly with use of over-the-counter anti-inflammatories.
134 In May 2014, the plaintiff saw Dr Wallace’s partner, Dr Tomkins, with increasing right shoulder pain. He had full function of his arm and shoulder. A bone scan showed arthritic changes of the shoulder only. The plaintiff was advised to consider physiotherapy.
135 Dr Wallace saw the plaintiff in June 2014, when he was continuing to have numbness, pain and tingling in both hands. Over the following fortnight, his symptoms worsened to include significant night-time pain in the hands, but also the left leg. His symptoms progressed, and in a telephone conversation with Professor Parente, dexamethasone oral morphine was commenced to alleviate the plaintiff’s symptoms, consistent with leptomeningeal disease.
136 By July 2014, the plaintiff’s oncologist commenced use of BRAF inhibitors, which have significantly modified the progression of the plaintiff’s disease. Dr Wallace noted that since then, the plaintiff had had little to no disease progression and his metastatic melanoma remained largely stable. Treatment with BRAF inhibitors continues three-weekly.
137 Dr Wallace thought the plaintiff had reduced cognitive, emotional and physical capacity. This will reduce his ability to work, function independently and socialise. These changes were permanent.
138 Dr Wallace advised ongoing treatment with the inhibitors three-weekly was required to retain control of the melanoma. It was unknown how long that treatment would remain effective. Treatment failure is possible, at which point the plaintiff may again fall subject to metastatic melanoma deposit, potentially requiring surgery.
139 As he is not an oncologist, Dr Wallace is unable to comment on further treatment options should the current regime become ineffective, nor is he able to comment on how long the current treatment plan is likely to continue being successful.
140 In terms of prognosis, Dr Wallace noted currently, the plaintiff has controlled stable metastatic melanoma on treatment. Dr Wallace could not determine how long this condition would persist as he is not an oncologist and that is not his area of expertise.
The Defendant’s evidence
Dr Alan Segal, dermatologist
141 Dr Segal examined the plaintiff on behalf of CGU on 9 August 2017.
142 Whilst this report was largely addressed to causation and this issue is no longer in dispute, counsel for the defendant submitted Dr Segal’s opinion was of no assistance to the plaintiff’s argument that the condition was a substantially physiologically different one from past conditions suffered by the plaintiff.
143 Dr Segal noted that since the melanoma, the plaintiff had had metastases occurring in both his brain and other parts of his body, and had extensive treatment. He had had two neurological operations on his brain. He was currently having intensive treatment with biological infusions every three weeks which made him tired. He was also using painkillers and cortisone to decrease the effects of the melanomas from his brain metastases.
144 Dr Segal noted the plaintiff is currently fatigued most of the time, although he tries to exercise to stay fit, but he finds this extremely fatiguing. He finds his concentration is greatly decreased and he has difficulty in carrying out some day-to-day activities.
145 Dr Segal thought the plaintiff had significant sun damage directly due to sun exposure in his previous work environment over many years and he believed this had been the major and significant cause of the onset of the melanoma on his face.
146 Dr Segal did not believe the plaintiff has a current work capacity due to the frequent need for extensive medical treatment which is causing him significant side effects, resulting in him losing concentration and to become fatigued. He considered the duration of the plaintiff’s incapacity will be permanent and his long-term prognosis is extremely guarded.
147 Dr Segal provided a subsequent report on 11 August 2017, commenting further on the onset of melanoma and its relationship to work in the sun.
148 Professor Tim Driscoll, independent consultant in epidemiology, a professor in that field and occupation medicine in the School of Public Health at Sydney University, was asked to prepare a report by the defendant’s solicitors.
149 As causation is not in dispute, this report is now of no real assistance.
What was the Plaintiff’s actual subjective knowledge of incapacity as at 19 June 2014?
150 The test centres upon what the plaintiff knew of his incapacity before that date and whether, viewed objectively, the facts known by him constitute knowledge of serious injury incapacity. That determination has been described as “a matter of fact and degree and value judgment for the judge”.[74]
[74]AEP Industries Australia Pty Ltd v Mahmoud (supra) at paragraph [9]
151 Submissions focussed largely on the whether the findings of the Court of Appeal in Pattison v Herald & Weekly Times Ltd[75] were applicable to the plaintiff’s application, as was submitted on his behalf.
[75][2013] VSCA 121
152 Whilst the question of whether the condition in the present case is “far removed” from the previous tumours as a matter of fact and degree is a relevant consideration and interwoven with the issue for determination, my focus is more directly on when the plaintiff had actual subjective knowledge of his serious injury incapacity.
153 It was submitted on the plaintiff’s behalf that the evidence establishes that as at July 2014, the plaintiff was first diagnosed with the specific condition that has led to his serious injury capacity, being leptomeningeal disease, and that such condition is wholly and substantially a different physiological condition from past conditions diagnosed in relation to metastatic disease, for which the plaintiff has suffered as a consequence of the exposure prior to November 1997.
154 Counsel for the plaintiff relied on the decision in Pattison.[76] In that case, the plaintiff knew before 24 December 2007 that she was labouring under major symptoms of an increasingly incapacitating lung disease:
“… it was not known until early 2008 that she was suffering from emphysema and thus that she knew that she had sustained a physiological change to her respiratory system profoundly different in nature and consequences to the disorders of asthma and bronchitis which had previously been detected. In effect, up until that point, it was open to conclude that her condition, although serious, might yet remit or at least hold steady. Once emphysema was diagnosed, however, it was known that the disease could only go in one direction, for the worse, with significant and increasing reduction in her breathing capacity.”[77]
[76]ibid
[77]at paragraph [38]
155 Further, the Court of Appeal, in comments which are directly applicable to the matters under consideration in the present case, considered the psychiatric injury sustained by the plaintiff in the matter of M & J Rawlings Builders and Contractors v Rawlings:[78]
“At base, however, Rawlings, like this case, was to do with the reasoning to be applied when a court is faced with a worker suffering from a disease, be it mental or physical, of which the existence and consequences were only ever capable of being revealed by expert diagnosis.”
[78]Supra
156 Counsel for the plaintiff submitted the medical evidence was unequivocal that the condition, which was first diagnosed in July 2014, was a physiological change to the plaintiff’s immune system, spinal cord and neurological system, profoundly different in nature and consequences to the disorders of metastatic disease which had previously been detected.
157 It was further submitted that the medical evidence was unequivocal that, up to the diagnosis of the condition in July 2014, it was not only open to the plaintiff to conclude but was so concluded, in fact, by him, that his condition might remit or at least hold steady. Once the condition was diagnosed, however, like Mrs Pattison’s emphysema, it was known that the disease could only go in one direction for the worse, with significant and increasing consequences, including a dramatically shortened life expectancy.
158 Counsel made reference to various passages in Professor Parente’s reports where he described the condition.
159 In his 5 November 2018 report, Professor Parente noted that the plaintiff first presented in July 2014 with leptomeningeal disease on the condition of the cervical spine. Thereafter, medication was prescribed to treat headaches and neuropathic pain down his spine which has affected his ability to work.
“The plaintiff was diagnosed with Stage IVC metastatic melanoma since June 2013. He remains in near complete remission on Pembrolizumab with stable disease … He cannot be weaned off the corticosteroids as he develops worsening cerebral symptoms of headache and leptomeningeal disease with neuropathic pain down his legs.”
160 In his 28 November 2018 report, Professor Parente described the condition, and noted:
“Leptomeningeal disease is defined as cancer spreading to the lining of the spinal cord. It is an uncommon site of metastatic disease and cannot be predicted during a patient’s cancer journey. This site of metastatic disease is independent of other sites of metastatic disease, and due to this being a sanctuary site has a poor prognosis and therefore a patient’s clinical outcome is dictated by the response of the disease to therapy.”
161 It was submitted this was a completely new and discrete condition and disease at an uncommon site.
162 Professor Parente also noted the consequences of this disease, being the patient’s life expectancy, can be measured in months, and durable response measured in years are uncommon to rare.
163 His report continued:
“Patient’s quality of life is severely affected with this cancer complication due to the neurological complications of metastatic disease compression a variable number of nerve roots throughout the spinal cord. This will clinically manifest as weakness and altered sensation to variable parts of the body. Neuropathic pain is common and debilitating manifestation of the disease and requires complex drug combinations which included narcotic analgesia and neuropathic agents to control this system.”[79]
[79]T79
164 The diagnosis of the condition in July 2014 led to a new treatment regime[80]
[80]T79
165 Prior to that date, Professor Parente noted, in his report of 7 April 2014:
“Radiologically in complete remission. A CT scan of the brain, chest, abdomen and pelvis is essentially normal with no evidence of any metastatic disease with questionable lesions in the lungs most likely representing granulomas.”
166 In addition, he then noted the plaintiff was well and asymptomatic.[81]
[81]T82
167 By way of comparison, there was an MRI scan of the brain and spinal cord of 7 July 2014, with the clinical referral noting:
“… Now pain in the left leg ? Neuropathic ? Leptomeningeal disease.”
168 In his letter to Professor Murphy of 7 July 2014, Professor Parente advised he suspected the presence of the condition, and outlined the course of action he intended to take in determining the diagnosis.
169 Professor Parente wrote to Professor Murphy on 18 August 2014 confirming “Diagnosis … leptomeningeal disease cervical spine July 2014”.
170 In response to the defendant’s criticism of Professor Parente’s opinion, counsel for the plaintiff further submitted that doctor does not have to say unambiguously that the condition is a discrete and distinguishable condition from the plaintiff’s previous tumours.
171 Counsel submitted “it is clear from his report that this is a condition which is affecting separate areas of the anatomy for the first time, and is a discrete issue”. Counsel agreed “it’s not something that can be cut out.” Further, it was submitted Professor Parente referred to the “neurological complications and it’s a condition of the spinal cord and neurological function of the plaintiff”.[82]
[82]T82
172 It was also submitted that the evidence establishes that condition with which the plaintiff was first diagnosed in July 2014 provided totally difference consequences in terms of, inter alia:
· Treatment
· Work capacity
· Medication
· Interference with domestic, recreational and general health
which individually or combined demonstrate the “serious injury capacity” of the injury.
173 It was submitted the evidence overwhelmingly establishes that prior to July 2014, the plaintiff’s life is not one which could be characterised as indicative of someone with a serious injury capacity. To the contrary, in his sporting, domestic and recreational life, he demonstrated a capacity for a wide range of activities, and believed himself able to retain the capacity for extensive employment, sporting and domestic tasks.
174 Counsel submitted that post redundancy, the plaintiff wanted to get back to work. He actually wanted to be the CEO of GMW one day. He wanted to get back into the irrigation industry somewhere in some capacity.
175 Reference was made to the plaintiff’s discussions with Colin Findlay, Rubicon Systems and his interest in the job at Berrigan, and also setting up his own ABN with a view to doing consultancy work.[83]
[83]T76; see summary of intention to work paragraphs [55]-[63] of my Judgment
176 Further, it was submitted the plaintiff’s clear evidence was he continued to participate in sporting activities, including long distance running, and indeed took up and played lawn bowls up to and including early July 2014.[84]
[84]See paragraphs [64]-[69] of my Judgment
177 Counsel for the plaintiff submitted there is no evidence that prior to July 2014, the plaintiff had any serious injury incapacity in relation to domestic activities. His wife was then working and he was attending to household tasks.
178 It was submitted on behalf of the plaintiff that the evidence establishes that the nature and extent of the treatment provided to him in respect to his metastatic disease prior to July 2014 was vastly different to the treatment regime which developed consequent upon the diagnosis of the condition on or about 9 July 2014.
179 Prior thereto, the plaintiff was always optimistic about his future. He was fine after each episode and became positive again and got on with his life. Reliance was placed on the number of statements by the plaintiff to the effect that - “it was the leptomeningeal which really hit him”.[85]
[85]T36; see paragraphs [118]-[119] of my Judgment
180 After the condition was diagnosed, the plaintiff had chemotherapy and radiotherapy for the first time. He was put onto a totally different medication regime.[86]
[86]See paragraphs [119]-[126] of my Judgment
181 It was submitted that, taken individually and as a whole, the essential elements of the plaintiff’s life set out above established the complete and total contrast between his situation prior to and post-July 2014.
182 It was submitted that all the evidence in relation to treatment, recreational or domestic, sporting and work capacity, and the intentions associated with the participation and continuation of those activities, make it unarguable that the plaintiff had no actual subjective knowledge of any serious injury incapacity until on or after July 2014.
Submissions on behalf of the Defendant
183 In respect to the evidence in the present case, counsel for the defendant submitted that principal weight should be afforded to the contemporaneous and documentary material. In Fox v Percy,[87] Gleeson CJ, Gummow and Kirby JJ stated:
“Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances49. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.”[88]
[87](2014) CLR 118 at paragraph [31]
[88](ibid) at paragraph [36]; the defendant also referred, in that context, to Nominal Defendant v Cordin (2017) NSWCA 6 at paragraph [169]
184 It was submitted that in the present case, the contemporaneous material is a surer guide.
185 Counsel for the defendant submitted the significance of the diagnosis of the condition for the plaintiff does not, on the documentary and contemporaneous evidence, appear wholly to support the submissions advanced on his behalf in terms of the decision in Pattison.[89] In particular, it was submitted –
[89]supra
(a)metastatic spread of the melanoma commenced in 2012 in the context of which, in the ten-month period from 2012 to mid-2013, the plaintiff suffered significant neurological and other symptoms and underwent three serious surgeries, including two episodes of brain surgery;
(b)in that context, in February 2013, the plaintiff and his wife knew that his risk of relapse was exceptionally high;[90]
[90]Plaintiff’s Court Book 50
(c)in that context, the plaintiff also took significant leave from work and, in fact, ceased work on 27 May 2013;
(d)consequently, he claimed on disability insurance and has continued to receive benefits under that policy;
(e)at the time of that claim on 11 June 2013, the plaintiff declared it was “expected that further metastatic melanomas will be found”, and as to capacity for work at that time, he estimated the percentage to be 0 per cent;
(f)the plaintiff declared that his answers were “complete and true to the best of [his] knowledge and belief”;
(g)as a part of the same form, his general practitioner, Dr Wallace, declared the plaintiff to be totally disabled, which was “ongoing” and that his prognosis was poor because of a “high risk” for more melanoma deposits. He did not consider the plaintiff to be likely to return to work;
(h)as a part of the same form, Professor Parente declared the plaintiff had “Stage IV melanoma” and “metastatic melanoma” that was not in remission, and that he had a 5 per cent/5-year survival;
(i)in the post-operative period, and immediately prior to the completion of the form on his insurance, on 7 June 2013, Dr Wallace had a “frank discussion” with the plaintiff, and encouraged him to consider immediate retirement, “with a view to enjoying the remaining time he had”;
(j)in June 2013, Professor Parente diagnosed the plaintiff with Stage IVC metastatic melanoma for which, from that time, he had been treated with pembrolizumab. On 5 November 2018, that practitioner reported that –
(a)the impact on the plaintiff’s quality of life and ability to work was due to his resected cerebral metastases and leptomeningeal disease;
(b)the plaintiff remains in near complete remission, which will most likely continue.
(c)at some point he will become resistant to Pembrolizumab, which will lead to further disease, which will then ultimately lead to death;
(k)a further report of that practitioner dated 28 November 2018 confirms that the condition is a manifestation of metastatic spread of the underlying cancer. That report is not directed to the specific circumstances of the plaintiff and does not claim to displace the specific report concerning him dated 5 November 2018;
(l)Dr Wallace reports, consistently with Professor Parente, that “Mr Kent has controlled stable metastatic melanoma on treatment and that treatment failure is possible, at which time Mr Kent may again fall subject to metastatic melanoma deposits”.
186 In short, it was submitted, on the documentary and contemporaneous evidence:
(a)the metastatic spread of the cancer commenced from about 2012 and the risk of it continuing was high and, in fact, occurred;
(b)as at June 2013, the plaintiff had stage IV metastatic melanoma, which condition he still has;
(c)the condition was an element of the metastatic spread of the cancer;
(d)metastatic spread of the cancer, including the condition, has largely been in remission since mid-2014;
(e)in any event, the plaintiff ceased work on 27 May 2013 and has not returned since;
(f)the risk to the plaintiff’s life expectancy is presented by the failure of treatment with Pembrolizumab, which would then see him fall subject to metastatic melanoma deposits.
187 It was submitted, properly understood, the present case is therefore quite different to Pattison.[91] In that case, the Court of Appeal accepted that chronic asthma or chronic bronchitis, which the plaintiff there knew she had, were very different in kind and consequence from the later diagnosed emphysema.
[91]Supra
188 In that case, the Court of Appeal accepted the diagnoses were far removed from one another as a matter of fact and degree, such that emphysema is to be perceived as an essentially different and profoundly more serious injury than chronic asthma or chronic bronchitis.
189 It was submitted, as explained, in the present case, the evidence concerning the condition is not to that effect. The condition is not far removed from Stage IV metastatic melanoma, it is a manifestation of it.
190 Further, the threat to the plaintiff’s life expectancy is presented by the potential for the Pembrolizumab treatment to fail, following which the plaintiff would succumb to the overall sponsoring disease, namely metastatic melanoma.
191 In that sense, therefore, the condition is not distinctly “serious”, although the defendant does concede that the plaintiff’s Stage IV metastatic melanoma, of which the condition is a part, is, and has long been, serious.
192 Therefore, in respect to the state of the plaintiff’s knowledge prior to 19 June 2014, and by reference to the contemporaneous and documentary evidence –
(a)he knew he had metastatic melanoma, for which he had undergone repeated and serious surgical treatment;
(b)he had taken extensive leave and then ceased work and claimed on his insurance;
(c)he did not return to work at any time prior to June 2014;
(d)he expected that further melanomas would be found;
(e)he knew that Dr Wallace considered his prognosis to be poor;
(f)he knew that Professor Parente considered him to have a 5 per cent prospect of surviving beyond five years.
193 With that knowledge, viewed objectively, it was submitted those facts then amounted to a serious injury incapacity, in the sense that they had readily satisfied the template of serious injury capacity, that template involving elements of fact, degree and value judgment.[92]
[92]Papercorp (supra) at paragraph [50]
194 It was conceded the plaintiff need not have known about the serious injury template, of course, but the fact that he knew the facts satisfying, means he had a serious injury incapacity at that time.
195 Further, the fact that later developments – such as further metastatic spread, including the disease – may have occurred that confirmed the seriousness of his condition, does not displace –
(a) the facts known by the plaintiff prior to 19 June 2014; and
(b) the fact that they then satisfied the serious injury template.
196 In that regard, to the extent that the plaintiff’s submissions emphasise matters such as the subsequent diagnosis of the condition and the effects upon the plaintiff’s work and running –
(a)for the reasons outlined above, the condition is a manifestation of the underlying metastatic disease, not separate and distinct to it;
(b)that diagnosis does not alter the plaintiff’s knowledge of the facts that proceeded it which, viewed objectively, were Humphries’[93] serious;
(c)medically, the condition, does not alone explain the plaintiff’s inability to work, nor does it, alone, impact upon his life expectancy;
(d)on the evidence, the plaintiff has not run any marathons since, at least, the latest, October 2012;
(e)in any event, it is evident from the record of Professor Parente that since July 2014, the plaintiff has continued to run in periods, and that during long periods, he has been in complete remission.
[93]Supra
197 Further, to the extent the plaintiff, in oral evidence, emphasised his determination to return to work after July 2013 –
(a)his oral evidence to the effect that he “didn’t have an inkling that it was going to be a serious condition ongoing”, this is inconsistent with the contemporaneous material – particularly the signed insurance form – and it should be rejected;
(b)as at June 2013, his subjective knowledge was that he could not work, it was “extremely” likely more melanomas would appear, and the opinion of his treating oncologist and general practitioner, was that his prognosis was poor; and
(c)his state of mind prior to 19 June 2014 should be accepted to be one in which he “had to be positive” and wanted to believe he was going to work and recover; however, that hope was, and remained untested, and so did not, and could not, amount to actual subjective knowledge that he would be capable of working, or mean that he did not otherwise have knowledge of objective facts that constituted serious injury incapacity.
198 It was submitted it was in the nature of ‘Nelsonian knowledge’, which does not exclude the operation of s135AC.[94]
[94]See Papercorp Pty Ltd v Nicolaou; Howden v Ansett Australia (supra) at paragraph [4]
199 It was submitted, in light of the above, the plaintiff’s onus is not discharged and his application should be dismissed.
200 In oral submissions, counsel for the defendant submitted that the condition is a manifestation of the original melanoma. Issue was taken with the submission the condition is highly and substantially a different physiological condition from the past conditions diagnosed.
201 It was submitted that in Pattison, unlike the present case, there was medical evidence from specialists clearly indicating that the two conditions were separate. In the current case, the conditions were not so different in kind and consequence[95] - “the lepto disease is really a manifestation of what has come before”.[96]
[95]T64
[96]T65
202 It was submitted there was no medical support for the proposition advanced on the plaintiff’s behalf, and the available evidence suggests “quite the opposite.”[97]
[97]T61
203 It was submitted that in his most recent report, Professor Parente does not go far enough and is too general to be of assistance to the plaintiff.[98] Although the report is commissioned for this case, nowhere does that practitioner talk about a “discrete condition” – he uses the word “cancer journey”.[99]
[98]T62
[99]T81
204 Further, it was submitted the plaintiff received little assistance from Dr Segal, whose opinion was simply that the melanoma was caused by the exposure and that subsequent tumours and the current condition (not described) are related to the melanoma.[100]
[100]T63
205 In general terms, counsel for the defendant submitted, at least by mid-2013, it is pretty obvious the plaintiff had knowledge of incapacity by virtue of the significant treatment he had undergone prior thereto for the various tumours, the fact that he had ceased work as of May 2013, discussed retirement with Dr Wallace and submitted the income protection claim.[101]
[101]T65
206 It was submitted the plaintiff was fully cognisant of the consequences and incapacity that arose from the earlier tumours and “he wilfully turned a blind eye to it”.[102]
[102]T65
207 Counsel for the defendant relied on the following comments of Nettle JA, as he then was, in Papercorp:[103]
“It is unnecessary for the present, and therefore it would be undesirable, for one to attempt a comprehensive definition of what is ‘known’ for the purposes of the s.135AC(b) of the Accident Compensation Act1985. But I should not wish to let the occasion pass without adding to the observations of Ashley, J.A. that I too consider that ‘Nelsonian knowledge’ and facts from which knowledge is objectively capable of ascertainment must, at least in some circumstances, be within the purview of the section’s operation.”[104]
[103]Supra
[104]At paragraph [4]
208 Nettle JA then stated:
“I agree with respect with Ashley, J.A. that the trial judge in Nicolaou was in error in the way in which he approached the determination of the application and for that reason it is necessary for the matter to be remitted for redetermination in accordance with principle. With respect, I also agree with Ashley, J.A. that the principal question for the trial judge upon the redetermination is likely to be whether Mr Nicolaou’s stoicism so operated as to prevent him focusing and thus assessing or perceiving accurately the extent of his incapacity. I would add, however, for my own part that the judge should also keep steadily in mind that, according to the facts of any given case, there may come a point at which stoicism gives way to a deliberate refusal to accept the obvious, whereupon knowledge is acquired.”[105]
[105]At paragraph [7]
209 It was submitted the plaintiff’s stoicism cannot take over from the reality.[106] That reality was the Claim Form – a document that speaks for itself which is backed up by the two treating doctors.[107]
[106]T68
[107]T70
210 Whilst the plaintiff’s stoicism is admirable, there are too many other indicators of incapacity particularly Dr Wallace’s notes of the 7th and 13th June when objectively assessed indicate that the plaintiff has “ just wilfully turned a blind eye” to what was submitted was “bleedingly obvious.”[108]
[108]T70
211 Counsel was critical of the lack of evidence from those with whom the plaintiff said he was discussing a return to work –“it’s all well and good to say you are positive –but it does not sit well with the reality of the situation”.[109]
[109]T72
212 Counsel agreed he was not questioning the plaintiff’s credibility; however, he then went on to explain the potential jobs the plaintiff described as acts of sympathy on the part of the plaintiff’s colleagues.[110]
[110]T73
213 Counsel stressed there should be reliance on the objective evidence, not stoicism. It was submitted it was patently obvious from the material – the retirement discussion and the plaintiff’s doctor’s view – that the plaintiff has been unrealistic and wilfully blind.[111]
[111]T75
Overview
214 I regard the plaintiff as a very credible witness. He gave evidence of his very significant illness in a straightforward manner, clearly and concisely, without any exaggeration or embellishment.[112]
[112]T73
215 There was no real attack on the plaintiff’s credibility but consistent with the defendant’s case as to the plaintiff’s knowledge, it was suggested by counsel for the defendant that the plaintiff’s evidence as to his job plans post redundancy was unrealistic and uncorroborated.[113]
[113]T71
216 I am satisfied that prior to 19 June 2004, the plaintiff did not know facts viewed objectively that constituted serious injury incapacity. Until he became aware of the diagnosis of the condition in July 2014 and experienced the consequences thereof, I accept he was unaware of serious injury incapacity.
217 After the plaintiff had the initial melanoma in 1990, he then had no problems until the three tumours over 2012 to 2013. He underwent surgery on three occasions. He returned to work after the first and second tumours were removed.[114]
[114]T77
218 I accept that the plaintiff was still planning on returning to work after the third operation when the condition was diagnosed almost a year later. Given his return to work after the earlier operations and the purely administrative nature of the role he held, in my view, such hopes do amount to actual subjective knowledge that he would be capable of working.
219 It was not a situation where stoicism gave way to a deliberate refusal to accept the obvious whereupon knowledge is acquired, as Nettle J (as he then was) stated in Papercorp.[115]
[115](supra) at paragraph [7]
220 Whilst the plaintiff and his wife understood the chance of relapse was exceptionally high in February 2013, before the second operation, the plaintiff did return to work after that procedure.
221 During 2013, after ceasing work in late May 2013, the plaintiff was continuing to communicate with the defendant about his role at GMW. He was on leave without pay after his sick leave had expired.
222 The plaintiff’s email to the defendant in November 2013 confirms he had some thoughts of returning to his role, querying whether an advertised position was his role and whether he should be applying for that position.[116]
[116]T37
223 Further, the chronology prepared for the GMW Managing Director indicated the plaintiff’s employment was ongoing as of July 2013, when he was provided with a mobile phone and a car.
224 I accept that the plaintiff was discussing potential work with Colin Findlay and Rubicon Systems in the local area and that he was so well respected in his field that he would have been given employment had he chosen to take it up.
225 I also accept the plaintiff’s evidence about his interest in the job at Berrigan and that he was contemplating getting his own ABN number with a view to starting a consultancy.
226 Also, prior to the diagnosis of the condition in July 2014, the plaintiff was engaged in significant running and training, having run the Melbourne Marathon in October 2012, just some months after he had the second tumour removed. He had also commenced lawn bowls and was planning to play competitively.
227 Further, I accept that pre July 2014, the plaintiff was able to freely undertake domestic activities and look after the house while his wife was at work.
228 Whilst the plaintiff did complete the income protection claim in June 2013, he did so only because his sick leave had run out and he needed a source of income while he was not working. The plaintiff openly admitted he had to embellish the Claim Form a little bit but that did not mean he accepted he was never going to work again.[117] Whilst the plaintiff had undergone significant medical treatment and at times his prognosis was poor as he explained, the medical industry was improving in leaps and bounds over time and new developments were around the corner, with people such as Jarryd Roughead being treated successfully with new medication.
[117]Refer to footnote [41] of my Judgment
229 While the plaintiff accepts that he had a conversation with Dr Wallace in June 2013 about retiring, and he was advised to enjoy the rest of his life without working, the plaintiff had no intention of resigning at that stage, as shown by his ongoing discussions with a view to returning to the workforce in the future.
230 I accept there was a significant change after the condition was diagnosed in July 2014. Treatment was no longer a matter of a tumour being removed, the plaintiff “being sewn up” and then getting on with his life again.
231 In my view, that diagnosis was far removed from the earlier tumours as a matter of fact and degree. I reject the submission that the condition is a manifestation of the Stage IV metastatic melanoma.
232 In my view, Professor Parente described a totally different condition in his two reports.
233 As Professor Parente explained –
“Leptomeningeal disease is a cancer spreading to the lining of the spinal cord. It is an uncommon site of metastatic disease and cannot be predicted during a patient’s cancer journey. This site of metastatic disease is independent of other sites of such disease.”
234 Further:
“The condition has neurological complications that will clinically manifest as weakness and altered sensation to variable parts of the body which require complex drug combinations to control his symptoms.”
235 As Professor Parente explained, the clinical outcome of leptomeningeal disease is still poor. Patients’ life expectancy can be measured in months, and durable responses measured in years are uncommon to rare.
236 This was not the case in April 2014[118]
[118]T83
237 In those circumstances, I reject the submission that the condition is a manifestation of the underlying metastatic disease, not separate and distinct to it.
238 Dr Segal was not asked to address this issue and does not even mention the condition in his report. He was simply asked by the defendant for a view as to the causation.
239 I accept that the consequences of which the plaintiff was aware before the diagnosis of the condition from the number of tumours were different in kind and consequence to those which followed the diagnosis. Such diagnosis is not just a new name for the plaintiff’s situation; it involved a new set of circumstances that the plaintiff has had to face.
240 After July 2014, there is a totally new treatment regime, with chemotherapy and radiotherapy for the first time, and a new medication program involving complex drug combinations which include narcotic analgesia and neuropathic agents to control weakness and altered sensation to various parts of the plaintiff’s body.
241 Since the diagnosis, the plaintiff’s life has changed dramatically, he is no longer a relatively active, fit man. The symptoms relating to the condition described in the plaintiff’s 2017 affidavit continue. [119]
[119]See paragraph [126] of my Judgment
242 I accept that it was the leptomeningeal carcinomatosis diagnosis that caused the plaintiff to “hit the wall”, and basically acknowledge that he was not going to work again.[120]
[120]T54
243 Taking into account all of the evidence in the case, I am satisfied that the plaintiff has discharged the onus of establishing that the serious injury incapacity arising from the 1990 melanoma was not known by him until after 19 June 2014.
244 It follows that I am satisfied that an application for a determination by the plaintiff under s135A(2B) of the Act has been made to the Authority before the expiration of three years after the date the incapacity became known to him.
245 It follows that, by reason of the provisions of s135AC of the Act, the plaintiff is permitted to commence a proceeding to recover damages in respect of injuries suffered by him.
- - -
0
7
0