Manning v Kiama Municipal Council - [2021] NSWPIC 432

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Manning v Kiama Municipal Council [2021] NSWPIC 432
APPLICANT:	David Manning
RESPONDENT:	Kiama Municipal Council
MEMBER:	Philip Young
DATE OF DECISION:	25 October 2021
CATCHWORDS:	WORKERS COMPENSATION – Skin cancer to outdoor worker applicant; squamous cell carcinoma through outdoor full-time work for respondent for 33 years; respondent argues disease or aggravation of disease and employment not the main contributing factor; Held – citing Cant v Catholic Schools Office, Booth v Four Men in a Pub Pty Limited and King v Commissioner of Police, acceleration of skin damage on facts and preponderance of medicine and employment the main contributing factor to the aggravation; award in favour of the applicant.
FINDINGS MADE:	1. In the course of his employment with the respondent between approximately 1986 and 15 May 2019 the applicant in working outdoors was exposed to ultra-violet radiation which resulted in acceleration or exacerbation of skin damage (acceleration) being injury within the meaning of section 4 (b) (ii) of the Workers Compensation Act 1987. 2. The applicant’s employment with the respondent between approximately 1986 and 15 May 2019 was the main contributing factor to the acceleration. 3. Since 5 July 2019 the applicant has had no capacity for work and has suffered economic loss. 4. The applicant’s incapacity for work results from injury within the meaning of section 33 of the Workers Compensation Act 1987. 5. The applicant’s pre-injury average weekly earnings have been agreed in the sum of $1,178.40 per week.
AWARDS MADE:	6. Award in favour of the applicant against the respondent for weekly payments of compensation for the following amounts and periods: (a) pursuant to section 36 of the Workers Compensation Act 1987 from 5 July 2019 to 4 October 2019 in the sum of $1,206.48 per week, and (b) pursuant to section 37 of the Workers Compensation Act 1987 from 5 October 2019 to date and continuing in the sum of $942.72 per week.

STATEMENT OF REASONS

BACKGROUND

David Manning (the applicant) is a 63-year-old man who was employed by Kiama Municipal Council (the respondent) as an outdoor worker. He was engaged in the parks and gardens section of the Council and his duties included driving various machinery for the purpose of mowing lawns and maintaining the respondent’s parks and gardens.

The applicant performed this work for about 33 years. In 2018 he was diagnosed with aggressive cutaneous squamous cell carcinoma. This occurred initially on the left side of his face.

The applicant claims weekly payments of compensation pursuant to sections 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act) from 5 July 2019 to date and continuing. The applicant’s pre-injury average weekly earnings have been agreed in the amount of $1178.40 per week.

Whilst there was initially some issue concerning whether or not the matter had been pleaded as personal injury simpliciter (section 4 (a) of the 1987 Act) or disease or aggravation of disease (section 4 (b) of the 1987 Act), ultimately it was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPIC 432
Decision Date: 25 October 2021

CaseChat Overview and Summary

Manning v Kiama Municipal Council is a workers' compensation case involving an applicant who developed squamous cell carcinoma, a form of skin cancer, following 33 years of outdoor employment with the respondent. The respondent contested the claim, arguing that while the applicant had developed skin cancer, his employment was not the primary contributing factor. The case was heard in the relevant court of workers' compensation.

The primary legal issue before the court was whether the applicant's skin cancer and its aggravation were primarily attributable to his employment with the respondent. The court was required to determine the extent to which the occupational exposure contributed to the onset and progression of the disease, considering the medical evidence and the nature of the employment.

In reaching its decision, the court referred to several precedent cases, including Cant v Catholic Schools Office, Booth v Four Men in a Pub Pty Limited, and King v Commissioner of Police. These cases provided guidance on assessing the causation between occupational exposure and the development of skin cancer. The court found that the preponderance of medical evidence and the specific circumstances of the applicant's employment supported the conclusion that the occupational exposure significantly contributed to the acceleration of the skin damage. The court acknowledged the role of the applicant's employment as a major factor in the aggravation of his condition.

Consequently, the court ruled in favour of the applicant, awarding compensation for the skin cancer. The decision underscores the importance of considering the specific occupational risks and medical evidence in workers' compensation claims involving diseases with multiple potential causes.

Orders