Phegan v Ansett Australia Ltd - [2025] NSWPIC 173

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Phegan v Ansett Australia Ltd & Anor [2025] NSWPIC 173
APPLICANT:	Bruce Raymond Phegan
FIRST RESPONDENT:	Ansett Australia Limited
SECOND RESPONDENT:	Qantas Airways Limited
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	28 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment compensation for skin cancer; applicant previously compensated by first respondent; first respondent disputed that it was last relevant employer; second respondent disputed injury; conflicting lay evidence; evidence of applicant and his lay witness preferred to that of second respondent’s lay witness; Haddad v The GEO Group Australia Pty Ltd, and AV v AW considered; Held – award for first respondent; applicant sustained aggravation, acceleration, exacerbation or deterioration of disease in employ of second respondent; second respondent liable pursuant to section 16; date of injury is date of claim; matter remitted to President for referral to Medical Assessor for assessment of whole person impairment.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the first respondent. 2. The matter is remitted to the President, pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 7 September 2023 (deemed) – disease. Body systems/parts: skin. Method of assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply by first respondent and attached documents; (c) Reply by second respondent and attached documents; (d) Application to Admit Late Documents dated 1 November 2024 and attached documents; (e) Application to Lodge Additional Documents dated 24 March 2025 and attached documents, and (f) Application to Lodge Additional Documents dated 26 March 2025 and attached documents. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Bruce Raymond Phegan (Mr Phegan) was employed by the first respondent, Ansett Australia Limited (Ansett) as a porter; and by the second respondent, Qantas Airways Limited (Qantas) as a store person.
The applicant sustained injury in the form of skin cancer arising out of or in the course of his employment with Ansett.
The applicant also claims to have sustained skin cancer injury arising out of or in the course of his employment with Qantas.
In 2001, the applicant made a claim in the Compensation Court of New South Wales, in Matter Number 58459/01, against Patrick Stevedores No 1 Pty Limited (Patrick) and Ansett.
On 9 December 2002, the parties agreed to Terms of Settlement in Matter Number 58459/01.
Relevantly, there was an award for Patrick. Ansett agreed to pay the applicant the sum of $4,000 in respect of 5% severe facial disfigurement and $2,000 in respect of 4% severe bodily disfigurement.
By letter dated 7 September 2023, the applicant’s solicitors made on his behalf a claim on Qantas for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 19%…

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: [2025] NSWPIC 173
Decision Date: 28 April 2025

CaseChat Overview and Summary

In Phegan v Ansett Australia Ltd, the applicant sought compensation for permanent impairment resulting from skin cancer, which he claimed was caused by his employment with the respondents. Ansett Australia Ltd (the first respondent) had previously compensated the applicant for the condition, but the current claim was disputed on several grounds. The second respondent contested the liability for the injury, arguing it did not arise out of or in the course of employment with them. The case was before the President of the Victorian Civil and Administrative Tribunal (VCAT), who had to determine whether the second respondent was liable for the injury under the Workers Compensation Act 1987.

The court needed to address several legal issues, including whether the second respondent was the last relevant employer for the purposes of liability, and if the injury was sustained in the course of employment with that respondent. It also needed to consider conflicting lay evidence provided by the parties and determine which evidence to accept. The case hinged on interpreting the provisions of the Workers Compensation Act, specifically section 16, and understanding the principles established in previous cases such as Haddad v The GEO Group Australia Pty Ltd and AV v AW.

After examining the evidence, the court found that the applicant's evidence and that of his lay witness were more credible than the second respondent's lay witness. The court determined that the second respondent was liable for the injury under section 16 of the Workers Compensation Act, as the applicant had sustained aggravation, acceleration, exacerbation, or deterioration of his disease during his employment with them. The date of injury was deemed to be the date of the claim, and the matter was remitted to the President for referral to a Medical Assessor for the assessment of the applicant's whole person impairment. The first respondent, Ansett Australia Ltd, was held liable for the award.

Orders