McKechnie and Military Rehabilitation and Compensation Commission (Compensation)
[2017] AATA 2159
•3 November 2017
McKechnie and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 2159 (3 November 2017)
Division:VETERANS’ APPEALS DIVISION
File Number(s): 2015/0990
Re:David McKechnie
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal:Senior Member N Isenberg
Date: 3 November 2017
Place:Sydney
For these reasons, I set aside the reviewable decision and substitute that the respondent is liable under section 14 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth).
............................[sgd].. ..........................................
Senior Member N Isenberg
CATCHWORDS
COMPENSATION – melanoma – occupational disease specified by the Minister – presumption of material contribution rebutted – whether applicant’s service materially contributed to malignant melanoma – reviewable decision set aside
LEGISLATION
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (as in operation before 27 April 2007); ss 4(1), 7(1), 7(1)(a), 7(1)(b), 7(1)(c), 14(1)
Safety, Rehabilitation and Compensation Act 1988 (Cth) (as in operation before 27 April 2007)Notice S365 in Government Gazette dated 30 November 1988; Item 25
CASES
Freeman and Military Rehabilitation and Compensation Commission [2016] AATA 741
Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536; 44 AAR 523
Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232; 89 ALD 258; 41 AAR 539
Jovanovski v Telstra Corporation Ltd [2008] FCA 465; (2008) 101 ALD 526
Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535Bird v The Commonwealth [1988] HCA 23; (1988) 165 CLR 1; 78 ALR 469
REASONS FOR DECISION
Senior Member N Isenberg
3 November 2017
BACKGROUND
On 13 May 2002 the Applicant, David McKechnie, lodged a claim for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for malignant melanoma which he alleged was caused, aggravated or accelerated out of the course of his former service in the Australian Defence Force. The Respondent, by determination dated 29 August 2002, denied the Applicant’s claim. On 15 August 2014, the Applicant requested a reconsideration of that determination, but, on 5 January 2015, it was affirmed. The Applicant seeks review of that reviewable decision.
LEGISLATIVE SCHEME
Since the Hearing, the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (DRCA) has come into force. The DRCA covers defence-related applications lodged under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) that are not completed by 12 October 2017 (see Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017 (Cth) Sch 1 Item 64 (the Amendment Act)). As Mr McKechnie’s application is defence-related, was lodged under the SRC Act and was completed after 12 October 2017 it is governed by the DRCA.
At the Hearing the parties considered the eligibility criteria contained in the SRC Act prior to April 2007. The eligibility criteria under the DRCA are the same (Amendment Act Sch 1 Item 2). Equally, the legislative instruments made under the SRC Act, and referred to by the parties, are also still applicable (Amendment Act Sch 1 items 2 and 63).
Section 14(1) of the DRCA provides that:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
At all relevant times, Mr McKechnie was an “employee” of the ADF and the Military Rehabilitation and Compensation Commission (MRCC) has responsibility for determining defence-related claims: s 142(1)(a) of the DRCA.
Prior to April 2007, s 4 of the Act provided, relevantly, as follows:
"injury" means:
(a)a disease suffered by an employee; or
…
Section 4(1) defines "disease" as:
(a)any ailment suffered by an employee;
…
being an ailment… that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation (Tribunal emphasis)
Section 7(1) refers to diseases of a kind that have been specified by the Minister in writing. At the relevant time it provided:
Where:
(a)an employee has suffered, or is suffering, from a disease …;
(b)the disease is of a kind specified by the Minister by notice in writing as a disease related to employment of a kind specified in the notice; and
(c)the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth … in employment of that kind;
the employment in which the employee was so engaged shall, for the purposes of this Act, be taken to have contributed in a material degree to the contraction of the disease, unless the contrary is established.
By Notice published in the Government Gazette dated 30 November 1988 and numbered S365 (the relevant SD Notice), the Minister specified kinds of diseases and kinds of employment, including the following at Item 25:
DECLARATION UNDER s 7(1) Specified diseases and specified employments
Occupational Diseases Employment involving exposure to risk ... ... 25. Skin diseases caused by physical, chemical or biological agents not included under other items. Employment involving exposure to the risk concerned.
There was no dispute that item 25 applied to melanomas.
The Applicant’s exposure to the sun
The Applicant gave evidence that he was born in 1970 in Pambula on the south coast of New South Wales. In 1976, when he was five, the family moved to Mendooran, in central west NSW, having purchased a farm where they mainly ran sheep and cattle, and grew some crops. He attended the small local school. In winter they wore long pants and jumpers because it was cold. In summer they wore shorts and t-shirts. The students were encouraged to wear hats and sunscreen (‘Banana Boat’) and pink zinc. Like most schools, they had 15 minute recesses and 45-60 minute lunch breaks, playing outside. On Friday afternoons there was sport such as soccer, hockey or touch football. It was a “‘typical’ Australian childhood”.
He went on to attend the local high school for years 7 to 10. They again wore shorts in summer and long pants in winter. The school had only 50-60 students so organised sport was limited because the numbers made it difficult to raise teams. He played water polo for two seasons in summer. It was played in the evenings under lights as the local pool was used by the public during the day. He did not do much other swimming because he was embarrassed by the acne on his back.
As he grew up, his father did not demand his help on the farm, as he considered that education was of more value. Nonetheless, the Applicant said he helped. As is commonplace in farming communities, he always wore long pants and long-sleeved shirts, as this offered protection from thistles, thorns, burrs and, importantly, snakes. They always wore hats. The routine was to start the day early, have an early lunch, a break in the heat of the day, and resume work when it was cooler, even as late as 9pm as it was still light in summer.
From 1987 he attended senior high school at the neighbouring town, Dunedoo, where he completed the Higher School Certificate. He had the option of shorts or long pants. He played Rugby League in the winter. Little sport was played in summer, as it was the busiest time of year for the farmers, and he and his peers were needed on their families’ farms.
Growing up, the family rarely holidayed because money was tight. He spent no time at the beach during his adolescence.
Once he was sunburnt on his nose such that it blistered. He recalled that his mother was angry and said he was ‘irresponsible’. He did get some other sunburns, but nothing that was severe. He recalled that his friends who ‘lived’ at the pool were constantly blistered, whereas he could recall only the one occasion.
After the school was visited by an ADF recruiting team, he thought he might like to become a soldier and during Year 12, he joined the Army Reserve (ARES). Basic training was conducted at Ingleburn in December 1988. He then paraded at 10 Platoon 2/17 RNSWR, Dubbo: Tuesday nights, one weekend a month and 2 fortnight camps a year. All physical training was conducted in Physical Training (PT) gear - t-shirt, shorts and runners; otherwise they wore jungle greens. Sunscreen was not provided. He recalled various episodes of sunburn to his exposed body parts i.e. calves, neck, arms.
In early 1989 he commenced full-time service with the Australian Regular Army at 3rd Battalion, Royal Australian Regiment (3RAR). There was training at the Parachute School in Nowra for about 2 1/2 weeks. There was PT twice a day. Just about every activity was outdoors.
In July/August 1989, with 3RAR, he participated in Exercise K89 in the Northern Territory. Although it was winter time, the tropical sun was still fierce. He spent 6 weeks in the as the enemy “Kamarian” force using commando style hit and run tactics against military and civilian installations across the NT. To distinguish the Kamarians from the other forces they wore Bombay bloomers, instead of long pants; while on patrol they wore long pants. They spent 12 hours a day in the sun, although they took advantage of shade if there was any. Because they were the enemy forces they had no assets and were living in the bush. They were continuously exposed to the sun, with only their hutchies for shelter.
He said that during that time he was badly sunburnt numerous times. His skin was lifting off in ‘ribbons’ from his hands, arm, face and legs, including his calves. Although there was a medic in the company, ‘nobody’ sought his assistance; because he was ARES (albeit on CFTS), he felt he had to be ‘tougher’. Sunburn was almost a ‘badge of honour’.
The end of K89 coincided with an airline pilots’ strike and the exercise participants were sent to Mataranka Springs in the NT to await the end of the strike, as all ADF aircraft had been redeployed to fly essential civilian flights. They lived in PT gear for a week or so, until the strike ended. Again, they had only their hutchies for shelter. They were exposed to a lot of sun and he was further burnt on his exposed body parts.
Upon return to barracks, they resumed the normal routine; there was PT in the mornings, usually consisting of a 5 km run and, as they were paratroopers, there was a strong emphasis on fitness, especially running. Occasionally they would run on the beach. They would change into long pants for the day’s work, and then back into PT gear for afternoon activities such as touch footy. Sometimes they played in shirts/no shirts teams. He did not recall any sunscreen being available. Because they were Infantry, they were seldom indoors. A normal day would be spent 50/50 inside/outside. He estimated 30-40% of the day was spent in PT gear. He said that he was burnt on a weekly basis and that by the end of summer was brown. He did not ever blister again after his experience in K89.
At some stage they were going to walk the Kokoda Track but the trip was cancelled when there was civil unrest in PNG. Instead they went to the Central Coast where there were beach activities. The Applicant said he could remember his arms, neck, face and legs being quite sunburnt on many occasions, but was unable to remember how badly he was burnt, but confirmed that after his experience during K89 he did not experience such a severe sunburn again. There was no offer of sunscreen,
In early 1990, he commenced a role in the Australian Protective Service (now Australian Federal Police). This position was predominantly indoors and shift work. He spent 2 years in Diplomatic Protection. He spent a further 3 years at the Villawood Detention Centre. The facility was fully enclosed, so there was minimal sun exposure. Nonetheless they were issued with wide brimmed Akubra hats.
In about 1993, he resumed his ARES service and paraded with Mortar Platoon 2/17 RNSWR Blacktown for 2 weeks each year and at least one weekend per month. PT was for 1 – 1½ hours daily. He did as much ARES work as he could because his employer supported as much ARES leave as he wished. He undertook mortar, signals and driver training – each of which involved a 16 day camp at Singleton. Some aspects of the courses involved 4-5 days in the bush. This period involved being outdoors on many occasions and in PT gear.
In December 1995 he returned to the Regular Army and he was posted to the School of Infantry, Singleton for training. His platoon did not start until February so in the meantime, they wore PT gear all the time, with exercise and fitness as their only goal, until the course started. As well, to increase his fitness, he would do PT outside of service and in shorts and singlet. He could not remember wearing DPCU at all during that time. He did not have ‘memorable’ sunburn but was in the sun all the time. The training which commenced in February, involved at least 1-1 ½ hours PT each day.
After he completed his training he was posted to 5 Platoon 3RAR. PT gear was common dress and as he remembered it was about at this time that sleeves on all DPCUs were required to be rolled down and sunscreen was made available. The Army had introduced awareness around skin cancer and sun exposure. 3RAR however continued to wear berets and not hats/Akubras.
In about September 1996, he noticed a small black lump on his right calf. A biopsy was conducted by the 3RAR doctor, and, as it was found to be a medium depth (1.2mm) malignant melanoma, an excision of the melanoma and surrounding tissue was made.
He continued with his military service, undertaking roles including as an instructor, and deployed to East Timor in 2001. He discharged from the Army early 2002 and ran his own business as a mortgage broker for 1 year. He joined the Victorian Prison Service in 2004 and resigned in 2013, to help run the family farm. However he was diagnosed with PTSD as a result of his service in East Timor and has not been able to continue working.
In April 2014, he discovered a suspicious lump in his right groin which was found to be Stage 4 metastatic melanoma.
The Applicant provided 16 statements from former colleagues, which were broadly consistent with his descriptions of dress and outdoor activities without sun protection.
Medical Evidence
There was no dispute that the Applicant’s current condition is a recurrence of his previous melanoma which was removed in 1996.
Professor Scott Menzies, Discipline of Dermatology, University of Sydney, Sydney Melanoma Diagnostic Centre, Royal Prince Alfred Hospital
Professor Menzies has been researching and treating patients with skin cancer since 1988 and has a strong clinical interest in methods for the diagnosis of melanoma and moles and is the author of 5 books on this subject. He described himself as “purely a skin cancer clinician”.
Professor Menzies provided a report dated 7 December 2016 wherein he opined that the Applicant’s military service had “materially contributed in more than a minimal degree to the onset of the melanoma due to sun exposure”.
Professor Menzies took a history from the Applicant which was broadly consistent with the Applicant’s account in his evidence of his ‘normal’ childhood, and understood the Applicant to have played outdoor sport which included swimming and water polo. He concluded there had been no significant sunburns in the years aged from 5 to 18, that is, before his service.
His opinion was that most melanomas are induced by sunlight, particularly exposure of short, intense episodes; there is no real dispute that, in Australia, 90% of melanomas are sun induced. Sun exposure can cause melanomas on all body sites, but risks are higher for sun-exposed sites. On the history provided, he estimated that the Applicant’s service sun exposure was for about 12 months during his total 8 year service before his condition was diagnosed, and that it consisted of short bursts of blistering sunburns. He noted the Applicant’s very significant exposure, especially during K89 and that that, on its own, could be more significant than 13 years of normal childhood exposure.
In his evidence Professor Menzies differentiated between ongoing ‘occupational’ sunburn and ‘intermittent’ sunburn akin to ‘recreational’ sunburn. He explained that workers with day-in-and-day out sun exposure build up (in lay terms) a resistance and do not burn. Others who are sunburnt intermittently, were more at risk of developing melanomas, especially if that intermittent sunburn was severe and caused blistering. While the Applicant had received his sunburn in an occupational setting, it occurred very intermittently. He regarded the Applicant’s account of frequent sunburn on the back of his legs as “fairly significant” in the development of his melanoma. He differentiated between ‘sunburn’ in which a person may be red 24 hours after exposure, and ‘severe sunburn’ which includes blistering and the person may be unwell for a few days.
He was asked in cross-examination about the Applicant’s evidence of long periods of PT outside which would have entailed sun exposure. He denied that this was not ‘intermittent’ exposure, because what is relevant is whether the Applicant received severe sunburns during that exposure. He accepted that the Applicant may have been sunburnt but there was no evidence as to the frequency or the severity of that sunburn.
In Professor Menzies view, Professor Fox had put too much emphasis on the Applicant’s childhood exposure.
Professor Richard Fox, Honorary Consultant, Department of Clinical Haematology and Medical Oncology, Royal Melbourne Hospital
Professor Fox is a specialist in medical oncology and clinical haematology, and he has written extensively in that field.
Professor Fox reviewed the papers provided to him, but did not himself examine the Applicant. He provided two reports dated 15 August 2002 and 23 March 2016. In the earlier report he wrote:
The evidence is that sun-exposure (ultraviolet) at an earlier age is aetiological. The evidence is also that outdoor workers are at less of a risk than indoor workers who have ultraviolet exposure.
I would therefore suggest his military service is not aetiological.
Professor Fox was of the view that the Applicant’s service was “probably not” the principal cause of his claimed condition and that any contribution would have been “less than 10%”. Professor Fox further noted that the Applicant “probably” would have contracted the disease, or suffered an aggravation, acceleration or recurrence of it, irrespective of his employment. Professor Fox did not consider that the Applicant’s military exposure to sun for eight years prior to his diagnosis made a material contribution to the development of his melanoma in 1996.
Professor Fox noted the literature at that time tended to support melanomas being due to accumulation of sunlight exposure, particularly in childhood and adolescence. However, as to employment factors, if any, that contributed to the Applicant’s condition, he noted “sun exposure”.
In his evidence he said he had ‘anticipated’ the Applicant’s childhood exposure when comparing it to the exposure of a soldier, of whom he had seen many.
By the time of his supplementary report dated 23 March 2016 he had Professor Menzies’ report available to him, including the history taken by Professor Menzies.
He noted there a more recent epidemiological study from Queensland by Professor Adele Green which showed that limb melanomas were more associated with blonde/light brown hair but not related to a lifetime history of painful sunburns. The strongest risk factor for both limb and trunk melanomas was the presence of more than 10 naevi (moles) on the arms. He also noted associations with blonde/light brown hair, propensity to freckle and sunburn was similar for melanomas on the limb and trunk. He further noted that “a lifetime history of painful sunburns significantly raised the risk of trunk but not of limb melanoma”. He also noted that high ambient solar ultraviolet irradiation in adolescence was also a stronger risk factor for limb than for trunk melanoma. He agreed in cross-examination that the Green paper relied on small sample – 77 limb melanomas, 52 of which were lower limbs. Of these, according to the study, 14 were men.
The report observed that while the number of sunburns during the lifetime were positively significant for trunk melanoma, there was no association with limb melanoma, although the difference was not significant.
Professor Fox disagreed with the characterisation of the Applicant’s sun exposure by Professor Menzies as ‘intermittent’ or akin to ‘recreational’. His view was that because there were periods when the exposure was continuous as the Applicant’s job entailed outdoor work, it was ‘occupational’. He said the Applicant cannot claim to have been frequently exposed to the sun for long periods, and also claim to have been intermittently exposed and burnt as a result. He said if the Applicant had been exposed as he claimed then he would not be getting burnt.
Dr Edmund Lobel, Consultant Dermatologist
The Applicant was assessed by Dr Lobel who provided a report dated 26 June 2015. Dr Lobel’s opinion was:
The main contributing cause of Mr McKechnie’s malignant melanoma was the conditions of his Army service.
Dr Lobel, however, had taken the whole of the Applicant’s service into account, and not just his exposure up until 1996 when his melanoma was first diagnosed.
Dr Lobel noted the Applicant suffered from cystic acne as a teenager, his grandmother had cryotherapy for solar induced actinic skin lesions and the Applicant had brown hair and hazel eyes. He also noted the Applicant had a number of pigmented naevi in the skin over the anterior of his trunk.
CONSIDERATION
What is the effect of the presumption in s 7(1) of the DRCA?
The identical section 7(1) of the SRC Act was discussed in some detail recently by Deputy President Forgie in Freeman and Military Rehabilitation and Compensation Commission [2016] AATA 741 (Freeman). There she wrote at [51]:
Once it has been accepted that an employee is suffering from a disease and the disease has been identified, s 7(1)(a) is satisfied. Section 7(1)(c) will be established if the employee was, at any time before the symptoms of that disease first became apparent, engaged by the Commonwealth or a licensed corporation in employment of the kind specified in the written notice made by the Minister under s 7(1)(b).
As to the effect of s 7(1)(b) of the SRC Act, DP Forgie wrote that an employee must suffer both from a disease of a kind specified in that notice and that the disease is related to employment of a kind that is also specified in the notice.
Section 30 of the 1971 Act was a similar provision to s 7(1) of the SRC Act. That section was considered by the High Court in Bird v The Commonwealth [1988] HCA 23; (1988) 165 CLR 1; 78 ALR 469, a case arising out of the Maralinga atomic tests. The majority (Mason CJ, Brennan and Toohey JJ) explained that:
... The words "disease of a kind" in par.(b) of s.30 allow a description in terms more general than those which would identify a particular disease. The kind of disease specified in Item 4 is not a discrete pathological condition. It is any pathological condition which is in fact caused by one or other of the nominated substances; but it does not comprehend all pathological conditions which could be caused by the nominated substances. Unless it is found that the pathological condition was in fact caused by one or other of the nominated substances, condition (b) is not satisfied and s.30 does not operate upon the facts of the particular case.
... The Schedule does not require that the substances to which an employee was in fact exposed or in contact with during his employment be proved to be the actual cause of the poisoning or pathological condition from which a claimant is suffering. The Schedule and s.30 avoid that necessity. But they do require that the poisoning or pathological condition from which a claimant is suffering be caused by substances of the same description as those to which the employee was in fact exposed or in contact with during his employment.
Applying that principle to the facts of that case, their Honours held that it was not incumbent on the appellant to show that his exposure to radioactive substances some thirty years earlier was the actual cause of his condition, but it was incumbent on him to show that in fact he had a pathological condition caused by radium or another radioactive substance or by x-rays. If his condition had been caused by a radioactive substance, then the question raised by s 7(1)(c) would need to be addressed i.e. was it established that the employment in which Mr Bird had been engaged by the Commonwealth was not a contributing factor to his contraction of cancer.
I was also referred to Jovanovski v Telstra Corporation Ltd [2008] FCA 465 (Jovanovski), which was also discussed by DP Forgie in Freeman, where a determination had been made under s 7(1)(b) in respect diseases caused by vibration. Mr Jovanovski’s employment required him to use jackhammers which involved his being exposed to vibration. The evidence was to the effect that his back condition was caused by vibration. On appeal, Gyles J observed that the:
... finding as to the existence of the occupational disease does not involve any aspect of causation in the particular case. In particular, it does not require a finding that the disorder was caused by vibration in the particular case under consideration. That is the ultimate fact to be determined, with the benefit of the statutory presumption pursuant to 7(1) where applicable. In practical terms, the question is whether the condition presented is known to be caused by vibration or, put another way, whether it is consistent with being caused by vibration. Then, if employment involved the exposure to vibration, the statutory presumption applies. This alleviates the difficulty of diagnosis …
In the present matter there was no dispute that malignant melanoma is a disease specified in Item 25 as it was caused by a physical agent being the sun/UV exposure melanoma. To meet the requirements of s 7(1)(b) the disease must be of a kind specified by the Minister “as related to employment of a kind specified in the notice”.
Counsel for the Applicant relied on the statutory presumption that, he submitted, arises from s 7(1) when read with Item 25 specified in the 1988 SD Notice: the Applicant was engaged in employment in the ADF in both the Regular Army and the ARES before the malignant melanoma was first diagnosed in 1996. It was submitted on the Applicant’s behalf that, unless the contrary is established on the evidence, the Applicant’s employment in the ADF is taken to have contributed in a material degree to the malignant melanoma.
There did not appear to be any dispute that the Applicant’s employment in the Army required him to undertake outdoor activities, such that he was exposed to sunlight. His work involved outdoor activities, especially during the K89 Exercise in the NT.
I am satisfied that the Applicant’s melanoma is a disease of a kind that is caused by a physical agent, being sunlight. I observe that Item 25 does not specify the duration nor the intensity of the exposure he must have been exposed to during his employment.
Has it been established that the Applicant’s employment in the ADF did not contribute in a material degree to the contraction of melanoma?
As I have found that the presumption that the Applicant’s employment in the ADF has contributed in a material degree to the contraction of his melanoma, I turn to consider if the contrary been established: s 7(1) of the DRCAt.
Counsel for the Applicant submitted that the contrary has not been established and that the evidence establishes that, in the performance of his work with the ADF, Mr McKechnie was exposed to additional UV radiation to which he would not otherwise have been exposed. In particular, he experienced severe sunburn, especially during K89.
There were submissions about whether the onus of ‘disproving’ the material contribution had been shifted to the Respondent. At the end of the day, in weighing the evidence, I must be satisfied on the balance of probabilities as to the material contribution, or otherwise, of the Applicant’s service in the ADF to his melanoma. In this Tribunal there is, generally speaking, no onus of proof.
In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, the Full Federal Court discussed the use of the word “material” for the purposes of the 1971 Act and said:
The use of the word ‘material’ in conjunction with the words ‘contributing factor’ in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of the causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.
Further in Comcare v Canute [2005] FCAFC 262 the Federal Court (French and Stone JJ) examined the term “material contribution” and considered that “material” imposed “an evaluation threshold below which a causal connection may be disregarded” and quoted the following in its judgement after examination of the word:
Accordingly, it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged.
The meaning of “material contribution” outlined by French and Stone JJ was not considered on appeal.
Prior to the April 2007 amendments to the definition of injury, the Federal Court discussed “material” in relation to an injury in Comcare v Sahu-Khan (2007) FCA 15. At [15] –[17], Finn J commented:
There are, in my view, obvious hazards in allowing finely nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word “material” in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions of the SRC Act were engaged. This said I consider that one of the meanings of the word “materially” in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is:
4. In a material degree; substantially, considerably.
An example given of this usage is that of contributing “materially to the funds required” for a purpose. This usage probably comes closer to what Davies J in Bendy described (at 325) as the “loose sense” of the definition of “material” in the Macquarie dictionary “namely, ‘of substantial import or much consequence’ [rather than the] legal sense of ‘pertinent’ or ‘likely to influence’”.
Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s4 definition:
(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) “in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (“the threshold evaluation”);
(iii) whether this will be so in a given case will be a matter of fact and degree.
While the Tribunal’s treatment of the question of contribution in [54] of its Reasons could be said to encompass an approach to materiality consistent with what I have said above, given the use it has made of the observations in Treloar 26 FCR 316 and the lack of any obvious consideration of an evaluative threshold beyond a de minimis test, I am not satisfied that it has in fact applied the correct test in this matter.
This remains the correct approach for matters prior to the April 2007 amendments.
Professor Menzies considered that the Applicant’s military service had “materially contributed in more than a minimal degree to the onset of the melanoma due to sun exposure”. Professor Fox considered the Applicant’s service was ‘probably not' the principal cause and thought that any contribution by the Applicant’s service would have been 'less than 10%’. It does not matter that childhood or adolescent sunlight exposure was the principal cause. In any event, that is not the evidence in this case.
Determining “material contribution”, in accordance with the above authorities, however is not a simple mathematical attribution of proportion of the effect of his service, but requires an evaluation of all the evidence.
Professor Menzies is ‘purely a skin cancer clinician’ whereas Professor Fox’s practice is in relation to medical oncology, and melanomas account for about 3-5% of his practice. Professor Fox did not take a history from, nor examine, the Applicant. He relied on the history taken by Professor Menzies for his second report, and other material supplied by the Respondent. He said he assumed the Applicant had been sunburnt regularly as a child. He was unaware if the Applicant had ever been sunburnt on the back of the leg.
The Applicant’s evidence and the history given to Professor Menzies was that the Applicant had a ‘normal’ childhood, playing outdoor sport, including swimming and water polo, albeit the latter being played at night. On the farm, he wore a hat and, relevantly, long pants. Importantly, there had been no significant sunburns (except once to his nose) in the years aged from 5 to 18, that is, before his service.
Professor Menzies view was that most melanomas are induced by short, intense episodes of exposure to sunlight, especially on sun-exposed sites. During the Applicant’s relevant service he received short bursts of blistering sunburns, especially during K89 and that that, on its own, could, in his view, be more significant than 13 years of normal childhood exposure. Professor Fox, on the other hand considered the Applicant’s childhood exposure to be more relevant than his service.
Professor Fox did not have the benefit of taking a history from the Applicant, and, it appears made some assumptions about his childhood exposure. Similarly, he also made some assumptions about the sun exposure of soldiers generally. He also regarded the Applicant as an ‘outdoor worker’, which is a category of worker he considered to be at less of a risk for melanoma than indoor workers.
Both doctors agreed that workers with continual sun exposure build up a resistance over time and do not burn. Professor Menzies considered that others who are sunburnt intermittently, were more at risk of developing melanomas, especially if that intermittent sunburn was severe and caused blistering. Professor Fox considered that because the Applicant’s job was largely outdoors his sun exposure was not properly regarded as ‘intermittent’ and that if the Applicant had been exposed as frequently as he claimed then he would not be getting burnt. While the Applicant may have had some outdoor aspects to his role, Professor Fox does not address the severe sunburn experienced by the Applicant. Professor Menzies was of the view that notwithstanding the Applicant’s long periods of PT outside which would have entailed sun exposure, what is relevant is whether the Applicant received severe sunburns during that exposure. I accept that while the Applicant was severely sunburnt, including on the backs of his legs, in an occupational setting, it occurred intermittently. I accept Professor Menzies view that frequent sunburn on the back of his legs was “fairly significant” in the development of his melanoma.
Professor Fox relied heavily on the Green epidemiological study which showed that limb melanomas were more associated with blonde/light brown hair but were not related to a lifetime history of painful sunburns. It was unclear from the study to what ‘a lifetime history’ might refer, but in any event, in Mr McKechnie’s case there was no “history” of excessive sunburn (bar one sunburnt nose) prior to his service. The report’s finding that the number of sunburns during the lifetime were positively significant for trunk melanoma, there was no association with limb melanoma, although the difference was not significant. While the study found the strongest risk factor for limb melanomas was the presence of more than 10 naevi on the arms, the study appeared to conflate “arms” and “limbs” so that it was not clear if the observation related to leg melanomas or only those on the arms. Even if it were not for these obvious gaps in the paper, I observe that it relied on very small sample – involving only 52 lower limb melanomas and, of these, only 14 were men.
In Freeman it was found that Ms Freeman’s employment did not materially contribute to the melanoma’. Unlike Ms Freeman who had spent fifteen or so years in tropical Townsville prior to her joining the ARES and prior to the diagnosis of her melanoma 8 years later, Mr McKechnie had spent his early childhood on the south coast of NSW, and his adolescence in western NSW until he joined the ADF at age 17. His uncontested evidence was that during his childhood and adolescence he was sunburnt to blistering only once – on his nose. Professor Fox’s evidence that melanoma is primarily caused by sun exposure in childhood and in the period of adolescence, but in this case the evidence was of very limited sun exposure during that time. I observe that his attendance on that Exercise was only a few months after the Applicant had joined the ADF.
Mr McKechnie’s melanoma was diagnosed 8 years after joining the ADF, during which time he received some serious sunburns, notably while on Exercise K89. A further important difference from Ms Freeman’s case is that there was no evidence of serious sunburn during her service.
I am satisfied that the Applicant’s melanoma was contributed to in a material degree by his ADF service.
DECISION
For these reasons, I set aside the reviewable decision and substitute that the respondent is liable under section 14 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth).
I certify that the preceding 80 paragraphs are a true copy of the reasons for the decision herein of Senior Member N Isenberg
..........................[sgd]..............................................
Associate
Dated: 3 November 2017
Date(s) of hearing: 23 and 24 August 2017 Counsel for the Applicant: Mr L Grey Solicitor for the Applicant: Mr G Isolani, KCI Lawyers Counsel for the Respondent: Mr J Wallace Solicitor for the Respondent: Ms S Marshall, Australian Government Solicitor
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