Phegan v Ansett Australia Ltd

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% whole person impairment (WPI), in the amount of $52,940. The deemed date of injury was claimed to be 7 September 2023.
On 5 February 2024, Qantas issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Qantas notified the applicant that the issues in dispute were whether he had sustained injury in the course of or arising out of employment; whether employment was the main contributing factor to the contraction of, or aggravation, acceleration, exacerbation, or deterioration of a disease in the course of or arising out of employment; and whether the applicant was entitled to lump sum compensation.
By letter dated 9 February 2024, the applicant’s solicitors made on his behalf a claim on QBE Workers Compensation (NSW) Limited, Ansett’s insurer, in similar terms to the claim on Qantas.
The applicant’s injury with Ansett was claimed to be due to the nature and conditions of his employment from 1993 to 2001, with a deemed date of injury of 1 November 2001.
On 11 July 2024, AAI Limited trading as GIO (GIO), which had assumed management of the applicant’s claim against Ansett, issued the applicant with a notice pursuant to s 78 of the 1998 Act.
GIO disputed that Ansett was the last employer that employed the applicant in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease injury.
GIO disputed that the applicant was entitled to additional lump sum compensation because permanent impairment had not resulted from an injury.
The applicant lodged an Application to Resolve a Dispute (the Application) on 23 August 2024.
The applicant claimed that, as a result of sun exposure during the course of employment, he sustained a skin cancer condition.
The applicant claimed to have sustained a disease injury, with deemed date of injury of 1 November 2001; and the aggravation, acceleration, exacerbation or deterioration of a disease, with deemed date of injury of 7 September 2023.
The applicant claimed the sum of $52,940 in respect of 19% WPI, with date of injury of 7 September 2023.
The first respondent lodged its Reply on 13 September 2024.
The second respondent lodged its Reply on 13 September 2024.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) first respondent: whether it was the employer that last employed the applicant in employment that was a substantial contributing factor to the aggravation of a disease, pursuant to s 16 of the 1987 Act, and
(b) second respondent: that the deemed date of injury is other than 1 November 2001, as pleaded against the first respondent. As far as s 16 of the 1987 Act is concerned, even on the applicant’s medical case, if the second respondent’s factual case was accepted, “you don’t get to substantial contributing factor.”

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The matter was listed for conciliation/arbitration hearing on 12 November 2024, by the Teams platform.
Mr Tanner of counsel, instructed by Mr Ferraro, appeared for the applicant, who was present. Mr Philip Perry of counsel, instructed by Ms McCoy, appeared for the first respondent. Mr Robison of counsel, instructed by Ms Walsh, appeared for the second respondent. Mr Mackle of GIO and Ms Harrison of Qantas also attended.
The second respondent sought to rely on an Application to Admit Late Documents dated 1 November 2024 and attached documents. The applicant objected to the admission of the evidence.
For reasons given at the conciliation/arbitration hearing, and which were recorded, the second respondent was granted leave to rely on the additional evidence.
The applicant was granted an adjournment in order to lodge further lay and medical evidence to respond to the second respondent’s evidence, with the intention that his evidence would be lodged by 15 January 2025. The matter was listed for further preliminary conference on 7 February 2025.
At the preliminary conference on 7 February 2025, Mr Tanner appeared for the applicant, instructed by Mr Ferraro. Mr Haydon appeared for the first respondent. Ms Walsh appeared for the second respondent. The applicant and Mr Mackle were present.
Mr Tanner advised that the applicant had served some further evidence, but there was additional evidence that needed to be lodged in statement form, and the applicant required a further two weeks to attend to this.
The first respondent had sought a supplementary medical report, and the second respondent had served further lay evidence and sought a supplementary medical report.
Directions for the service of further evidence were made and the matter was listed for conciliation/arbitration hearing on 31 March 2025, on the Teams platform.
On 31 March 2025, Mr Tanner appeared for the applicant, instructed by Mr Ferraro. Mr Necovski of counsel, instructed by Ms McCoy, appeared for the first respondent. Mr Robison, instructed by Ms Walsh, appeared for the second respondent. The applicant attended. Mr Mackle and Ms Harrison attended during the conciliation phase but were excused from the hearing. They remained available to provide instructions if required.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application 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, lodged by the second respondent;
(e)    Application to Lodge Additional Documents dated 24 March 2025 and attached documents, lodged by the applicant, and
(f)    Application to Lodge Additional Documents dated 26 March 2025 and attached documents, lodged by the second respondent.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Bruce Raymond Phegan

Mr Phegan has made several statements. I do not intend to refer to all of his evidence but will refer to the evidence that is relevant to the issues in dispute.
The applicant’s first statement is dated 12 February 2020.
He was a member of the fire brigade for five to six years. This involved both indoor and outdoor work.
He then worked as a beach inspector for one and a half seasons, and this was outdoor work.
From 1974 to about 1993, he worked for Patrick as a waterfront worker. His work was almost entirely outdoors, and about two-thirds was performed during daylight hours.
From about 1993 to 2001, he worked for Ansett as a porter, loading and unloading planes. The work was outside on the tarmac. His usual attire was shorts and a short-sleeved shirt in summer, and a long-sleeved shirt, trousers and a jumper in winter. For the first six years of his employment, Ansett did not provide sun protection. In 1999, he was given a hat and sunscreen.
From 2001 to 2014, he was employed by Qantas. About 50% of his work was outdoors. His role was to assist the engineers by delivering parts as required, all over the domestic and international airports. He was exposed to sunlight and the glare from the tarmac.
He retired in 2014 and had not worked since.
He was first treated for skin cancers in the 1970s. The major lesion excisions were mostly on his back.
He had lesions excised from his right shin, shoulders, left arm, face, and the top of his head. Lesions continued to appear.
The applicant has also made statements dated 16 December 2024 and 27 February 2025, in response to the second respondent’s lay evidence.
It is convenient that I discuss the evidence of Qantas’s lay witness, Mr David Bevan, and then the applicant’s evidence in response.

Evidence of David Bevan – operations manager

Mr Bevan’s first “statement” took the form of an email to Ms Harrison dated 23 September 2024. He has expanded on that evidence in his formal statement.
Mr Bevan’s statement is dated 18 December 2024.
He has been employed by Qantas since 1 June 1990.
He was employed as a controller from 2000 to 2004 and had been employed as operations manager since 2006. They were essentially the same role, with a different title.
The applicant was employed as a store person from 2 September 2002 to 16 December 2014. He was based at S189, which was located on the jet base at Sydney Airport, for about two or three years when he was first employed.
At the S189 facility, the applicant worked mainly in the store. He worked in the same location as the applicant. The applicant “did a little bit of delivery work.” He estimated the applicant worked about 10% of his shift doing deliveries.
When doing deliveries, the applicant would need to walk to the vehicle. If it was during the day, he would be exposed to sunlight for about 20m. Most of the deliveries were performed under cover, or the journey was sheltered.
There were some occasions when the applicant did a delivery to the gates of the terminal, but that would be less than half of the deliveries. If a delivery was made to the hangar, the journey would be under cover. Only the deliveries to the gate required the vehicle to be exposed to sunlight, as it needed to be parked near the aircraft.
The vehicles, with the exception of the forklift, were airconditioned. The forklift had a tarp or cover. One forklift had a cabin.
At S189 there was a minimum of 20 people during the day shift who could do deliveries. There would be about 10 people on the afternoon shift and four or five people on the night shift.
There may have been a shift where the applicant was doing deliveries, and in an eight hour shift he could do up to six deliveries on a one hour round trip. The number of deliveries was dependent on the needs within the warehouse.
The applicant’s shifts at S189 were initially day shifts. He then moved to day/afternoon shifts and progressed to a 12 hour rotating shift.
The applicant was promoted to team leader and moved to Sydney Domestic Terminal (SDT), a smaller facility, where his primary function was to provide support to the engineering team. By this time, the applicant was working 12 hour rotating shifts.
At SDT the applicant was more likely to be in the terminal, which was entirely under cover. If a part was not at SDT, the applicant would need to collect it from the main store.
Deliveries at SDT were probably a bit more than 10% of the applicant’s role. There was “a lot of sitting and waiting around for a request for a part.” There may sometimes be only two tasks in an hour. It was either an emergency or a lot of sitting around. On average there may be 10 or 12 deliveries in a shift.
The applicant was provided with a full uniform, including a choice of sunhat. The choice was between a cap with a flap that covered the back of the neck or a hat that was similar to the wide brimmed hats cricketers used to wear.
The applicant always asked for overalls and had a choice of long sleeved or short sleeved shirts. Qantas always provided sunscreen, which was near the sign on the desk. There was also an online stress course the staff had to complete.

Evidence of the applicant in response

The applicant’s response is contained in statements dated 16 December 2024 and 27 February 2025.
He agreed he worked a four day on, four day off, split, and on two of those days he worked nightshift, and was not exposed to the sun.
He strongly disagreed that the split of his work was 90% indoors and 10% outdoors. He believed an accurate estimate of the split was 50/50.
A large part of his job was delivering parts to engineers, who would be working all around the tarmac. He would either walk or take a small Suzuki van. He was still exposed to the sun while working in the van.
He would constantly be in and out of the van and standing on the tarmac for extended periods while he loaded, unloaded, or otherwise assisted the engineers as required.
He also used a forklift on occasion. It was not covered, so he was exposed to the sun.
The time he was on the tarmac varied. However, there were busy days where he was essentially constantly exposed to the sun.
His clothing in summer was shorts and a short-sleeved T-shirt, supplied by Qantas. He also wore a hat and sunscreen.
In winter, he usually had overalls and a long-sleeved T-shirt if it was cold.
He did some work inside, such as stocktaking, putting away stock, “etc”. However, the engineers were usually working on the tarmac, and it was impossible to do his job fully without attending callouts he received throughout the day.
It was difficult to pinpoint an exact percentage of his shift that was spent doing deliveries, given that some days were busy and others slower. Extra parts and last-minute deliveries were performed, particularly if the request was flagged as an Aircraft on Ground (AOG), which required delivery of parts right next to the unsheltered plane. Overall, he maintained that his estimate that he was in the sun 50% of the time was accurate.
He disagreed that the deliveries would be under cover or the journey was sheltered. When aircrafts arrive, they are on the tarmac, which has no cover, exposing them to sunlight. They had to travel across the tarmac to reach the hangar. The journey would not be sheltered or under cover.
He disagreed that most of the deliveries were in the hangars. It was rare that deliveries would be made to the hangar, as most aircraft were parked on the tarmac, particularly if it was an emergency AOG request.
They were still exposed to sunlight, even while inside the vehicle or forklift. He did not recall there being a cover on the forklift.
He agreed there would be around 20 people during a shift. He disagreed that there were shifts where no deliveries were performed. There was never a day where nothing was delivered. Parts like wheels were in constant need of replenishment.
He agreed he worked two 12 hour day shifts; two 12 hour night shifts; and had four days off. He would be called in on his days off to do overtime, both during the day and the night.
He agreed he was promoted to team leader and his place of work changed from S189 to SDT, which was a smaller facility. By the time he moved to SDT he was performing the above shifts.
He agreed he worked alone at SDT. He had no assistance with deliveries. He disagreed that most of his time was spent in the terminal. Deliveries were constant, and he was always outside at some point during his shift.
If the engineers requested a part, they would spend approximately 15 yards in direct sunlight, even if they walked up the passageway to the engineers’ department. It was incorrect that there were only two routes for deliveries in SDT, but these deliveries would be under cover.
He disagreed that deliveries at SDT were probably a bit more than 10% of his role. Exposure to the sun varied between 10% and 30%.
He wore overalls and a hat provided by Qantas. However, the PPE (personal protective equipment) was not adequate to protect against sun exposure. The hat was floppy and did not cover his ears, where he eventually had a melanoma cut off.
He disagreed that Qantas provided sunscreen. When he first began working, sunscreen was not provided. Nearing the end of his employment, the sunscreen was not adequate, and his skin specialist advised against using it. The dispenser was broken for at least 15 months, making it inaccessible. This was reported to management.

Evidence of Stephen Welch

Mr Welch has made two statements, the first of which is dated 20 January 2025.
He worked at S189 from 1999 to approximately 2010, when the facility was moved to a new warehouse. However, he worked for Qantas for roughly 21 years and finished in 2020.
He was a team leader and filled in for supervisory roles. At one stage, he was Mr Phegan’s team leader at S189.
Requests for parts were flagged as either AOG, an emergency request with a 15-minute window to provide the part; critical, with a two hour window; and normal, when the part had to be provided within the day.
Sometimes they used forklifts, which had air-conditioned cabins. Some had covers.
The Sydney International Terminal carried products that needed replacing often. The journey from the international store to the facility was approximately 2-3km. The engineers’ department was across the tarmac, roughly 500m to 600m away. There were multiple hangars, and therefore distance varied.

Aircraft were sometimes parked in the parkways, on the engine run bay, or on the runways, which were in direct sunlight. Parts needed to be delivered to the plane. This required workers, like the applicant, to travel to the aircraft and park near it.
When using the van, there was still exposure to sunlight, as the windows were down, and they transferred the part to the engineer outside. As a result, their arms were always out in the sun.
The aerobridge is the only part connected to the plane that is in the shade. The aircraft were not always in the hangar, and all aircraft are parked outside at the international terminal.
At the time, Qantas had nearly 180 aircraft and maintenance was working around the clock. They had deliveries every day. Their peak hours were morning, midday, and 3.00pm onwards. In lieu of deliveries, work included daily cycle counts, and picking and packing demands from service aircrafts coming in overnight. This could amount to over 500 demands.
He had never been asked to complete an online heat stress course.
He did not recall there ever being a big push for sun protection until after the 2010s. Qantas provided sunscreen at one point. However, the dispenser at SDT was broken for years and never replaced, which prevented people from using it.
Mr Welch’s second statement, dated 27 February 2025, responded to Mr Bevan’s evidence.
He disagreed that at S189 the applicant worked about 10% of his shift doing deliveries; that he was exposed to sunlight, if during the daytime, for about 10m on the walk from the shed to the van; and that most deliveries were performed under cover, or the journey was sheltered.
This evidence “completely dismisses” the deliveries that were undertaken when the planes were next to the parking bay, which was not sheltered. Most of the time, aircraft was not always parked inside the hangar. Therefore, workers were required to travel and complete their delivery under direct sunlight. Nothing was covered as they were driving under [sic] the tarmac, which directly exposed workers to sunlight.
Even the airconditioned vehicles would be in the sun. The tarp or cover was commonly a cardboard box placed on top. The forklift, which had a tarp on it, still exposed workers to the sun, as only the top was covered. Particularly in the afternoon, the sunrays were on an angle and exposed the workers from the side. One of the forklifts had a cabin. However, it was glass, which let light through. There were no tinted windows.
He did not believe the number of people on a day shift was relevant. It did not change the fact that if they had to deliver something to a hangar, they were required to drive across the tarmac, which exposed them to direct sunlight. There were multiple hangars, so distance could vary.
He agreed that the applicant worked the shifts referred to above, which was usually the standard roster.
He noted that the stores for the domestic terminal were under cover. However, if a worker was delivering a part to a plane, they would be required to travel to the tarmac, under direct sun exposure. Both ways of delivery would expose a worker to sunlight. The only aspect that was covered was the walkway for the passengers. [The workers] could not walk under them.
It was not possible to attribute a figure to the number of deliveries. Some days were immensely busy, and others were not. On quiet days, they completed work such as cycle counts, and picking and packing demands. There would be many shifts when the applicant was in the sun for 30% of the day across the 12 years of his employment. He estimated the applicant spent on average about 20% of his day in the sun.
He did not recall ever being supplied with the hats described by Mr Bevan, nor had he ever seen someone wearing the hat.

Medical evidence

There is a great deal of medical evidence in this matter. I have limited my discussion to the relevant evidence and that referred to by counsel in submissions.

Dr Peter Bakaric – general practitioner

Dr Bakaric reported to the applicant’s solicitors on 30 October 2001.
The applicant had been seen first on 6 March 2000. He had been assessed and treated multiple times for sun damage and skin cancers.
The applicant’s skin damage was predominantly located on the exposed areas of his body, his face, neck, ears, scalp, and arms.
Dr Bakaric opined that the applicant’s long term outdoor employment, for example, waterfront work, was a strong contributory factor to his current condition. His skin condition and damage could be directly attributed to sun exposure without adequate protection.
The applicant should not work in an environment in which he was continually exposed to the sum without adequate protection. His condition would require careful and consistent medical assessment and treatment for the rest of his life.

Dr Dennis Meintjes – consultant surgeon

Dr Meintjes reported to the applicant’s solicitors on 22 January 2002.
Dr Meintjes recorded a history that the applicant had been receiving treatment for skin lesions for about 10 years. He had mostly undergone cryotherapy but had also had lesions excised from his nose and right ear, and regular skin checks.
The applicant had worked on the waterfront for 21 years, mostly outdoors. He began working for Ansett after taking early retirement 10 years ago, and his work was all on the tarmac.
Dr Meintjes opined that the applicant did not have major signs of sun damage to his skin. He would require continued surveillance of his skin because he was likely to develop further lesions in the future. He would continue to be susceptible to further skin lesions.
Dr Meintjes opined that the applicant’s work, both on the waterfront and at Ansett, was a substantial factor contributing to his condition. His personal lifestyle had also contributed significantly to his condition. The condition was of gradual onset during the applicant’s years on the waterfront and at Ansett.
The applicant had minimal facial disfigurement and no bodily disfigurement.

Dr Edmund Lobel - dermatologist

Dr Lobel reported to Patrick’s solicitors on 30 April 2002.
Dr Lobel recorded a history that the applicant had been treated for keratoses, and a malignant melanoma was excised from his back on 19 March 2002. Lymph nodes were also dissected from his left armpit.
The applicant had been employed by Patrick and ANL as a wharf labourer, for 21 to 22 years. He was employed by Ansett for approximately 10 years between 1993 and 2002. He lost his job when Ansett collapsed and had been unemployed since early 2002.
The applicant’s work for Ansett involved loading and unloading cargo and luggage, and all work was outdoors on the tarmac. He wore trousers or shorts and a short-sleeved shirt in summer, and trousers and a long-sleeved shirt and jumper in winter. He also wore a cap. Sunscreen was only supplied in his last few years of work.
Dr Lobel diagnosed actinic elastosis (solar damage) affecting the applicant’s scalp, face, shoulders, back, arms, hands, and to a lesser extent his upper central chest. There were keratoses on the applicant’s face, back, right shoulder, and hands.
Dr Lobel noted that most solar damage in adult Australians is due to sun exposure prior to the age of 20. However, it is both permanent and cumulative, and further exposure after the age of 20 adds to the existing damage and accelerates the process of formation of pre-malignant and malignant actinic lesions.
Dr Lobel opined that during the 30 years of the applicant’s employment as a wharf labourer and porter, his exposure to ultraviolet (UV) light constituted a significant contribution to the current level of sun damage on his face, forearms and hands, but not to his scalp, shoulders and back. The malignant melanoma on his back could not have been caused by solar exposure during working hours, as he was wearing a shirt.
Dr Lobel further opined that the applicant would continue to develop pre-malignant and malignant actinic lesions at various intervals, even if no further sun exposure occurred.
The applicant was fit for either of his pre-injury employments, but in view of the cumulative nature of actinic skin damage, it would be ideal for him to avoid outdoor work. It was possible for him to carry out outdoor work if he wore a broad-brimmed hat, long-sleeved shirt, trousers, and applied 30+ sunscreen on exposed areas at least twice a day.

Dr Matthew Power – general practitioner

Dr Power reported to the applicant’s solicitors on 18 November 2002.
Dr Power had recorded a long history of sun exposure, related to the applicant’s work for Ansett and Patrick.
The applicant had had a melanoma removed from his left upper back in early 2002. He had had lymph nodes, which were clear, removed from his left axilla.
On 29 July 2002, Dr Power had treated solar keratoses on the applicant’s nose and left shoulder with cryotherapy.
Dr Power opined that the applicant should work as much as possible in an environment away from direct sunlight. His employment “may well have been a contributing factor”, due to the time he spent exposed to direct sunlight.
Dr Power expected the applicant to evolve new lesions, which could be treated with cryotherapy, on a semi-regular basis. The applicant would require ongoing follow up for the melanoma. He also had an ongoing risk of developing further melanomas, basal-cell carcinomas (BCCs) or squamous cell carcinomas (SCCs) as a result of his sun-damaged skin.

Dr Susanne Freeman – occupational dermatologist

Dr Freeman was qualified by the applicant’s solicitors and reported on 21 November 2002.
Dr Freeman recorded a consistent history of the applicant’s employment to date.
When Ansett collapsed, the applicant was retrenched in March 2002. Since September 2002, he had been employed by Qantas as a store person. This was mainly indoor work with the occasional necessity to go outdoors.
Dr Freeman noted the applicant’s leisure activities, and that he had been an outdoors person all his life. She opined that these activities had also contributed to the applicant’s sun damage.
Dr Freeman opined that the applicant should have indoor employment with as little as possible outdoor sun. His employment appeared to be satisfactory in this regard.
The applicant’s employment as both a waterside worker and at Ansett had substantially contributed to his skin cancers.
Dr Freeman opined that the applicant’s employment did not substantially contribute to the melanoma that was excised from his back early that year. That was because Mr Phegan always wore a shirt at work, and his back was not therefore exposed to the sun.
Dr Freeman attributed 75% of the applicant’s skin cancer to his employment with Patrick, and 25% to his employment with Ansett, basing this on the period in each employment.

Dr S W Menzies – senior lecturer, department of surgery (melanoma and skin oncology), University of Sydney

Dr Menzies reported to the applicant’s solicitors on 4 December 2002.
Dr Menzies recorded that the applicant had a history of extensive recreational sun exposure, including being a lifesaver since he was 15, and a first grade cricketer from the age of 10 to the age of 30. The applicant had extensive heavy exposure on the beach, beginning at about age 12 to age 14. This exposure had continued up to his presentation with melanoma in 2002.
The applicant’s occupational exposure included that of a waterside worker [after] which he commenced work with Ansett, which had approximately 60% to 70% outdoor exposure. This continued until 2002, and the applicant now had an indoor occupation with Qantas.
Dr Menzies opined that the applicant should have protection against sun exposure in the workplace. That could include clothing and sunscreen, which protection was standard for outdoor workers.
Dr Menzies recorded that the applicant had a 19-year history of outdoor exposure as a waterside worker and a nine year history of exposure with Ansett. Because of the applicant’s extreme history of recreational sun exposure, it was difficult for Dr Menzies to dissect any effect of his occupational exposure on his melanoma. It was also impossible to state that his occupational exposure had no effect on his presentation with melanoma.

Dr Kenneth Lee – plastic and reconstructive surgeon

Dr Lee provided a report to the applicant himself, dated 19 October 2016.
Dr Lee confirmed that on 28 November 2015, he had excised an SCC on the applicant’s right lower leg. There was no clinical evidence of recurrent SCC when he last examined the applicant on 7 April 2016.

Dr Michael J. McGlynn – plastic and hand surgeon

Dr McGlynn was qualified by the applicant. He has provided several reports, the first dated 5 February 2018.
Dr McGlynn recorded a history that the applicant worked for Qantas from 2001 to 2014, and this was 50% outdoor work. He had previously worked for 27 years as a waterfront worker, almost entirely outdoors, and two-thirds in daylight. His usual work dress was shorts and a short-sleeved shirt.
The applicant first had treatment for actinic skin lesions in the 1970s.
Dr McGlynn opined that the applicant had facial disfigurement and a malignant skin cancer condition, caused by prolonged exposure to the sun. His outdoor work for many years as a waterfront worker was a substantial contributing factor.
Dr McGlynn assessed the applicant’s WPI as 21%.
Dr McGlynn’s next report is dated 26 February 2020.
Dr McGlynn again recorded that the applicant’s work for Qantas was 50% outdoors. He also recorded that the applicant had worked for Ansett for eight years, and for two years as a beach inspector. The majority of each employment was outdoors in daylight. The applicant was first given sunscreen and a hat in 1999.
Since he was last seen in 2018, Mr Phegan had had a malignant melanoma excised from his back, and several other malignant skin cancers excised or treated dermatologically.
Dr McGlynn recorded that the applicant’s work as a beach inspector was all outdoors. His work for Ansett involved loading and unloading planes. He usually wore shorts and a short-sleeved shirt in summer, and long trousers and a long-sleeved shirt in winter. He wore similar clothing at Qantas.
Dr McGlynn opined that the applicant’s work for Patrick was the main contributing factor to the development of his skin cancer condition. His employment with Ansett and Qantas contributed to the condition.
Excessive sun exposure during the applicant’s various employments was the main contributing factor to the development of the condition. The last relevant employer that exposed the applicant to excessive sunlight was Qantas.
The applicant’s WPI remained the same.
Dr McGlynn’s next report is dated 7 September 2023, although his assessment report is dated 6 September 2023.
The updated history included that in June 2023, the applicant had had a superficial spreading malignant melanoma excised from his left ear and a BCC excised from his right lower leg. He had had several more skin lesions treated by cryotherapy.
Dr McGlynn again recorded a history that the applicant’s work for Qantas was 50% outdoors.
Dr McGlynn had been provided with medical evidence, including the reports to which I have referred above and those of Dr Allan Meares and Dr Troy Darben, to which I refer below.
Dr McGlynn opined that the applicant’s employment with Patrick and Ansett was the main contributing factor to the development of his skin cancer condition. His employment with Qantas was the substantial contributing factor to the aggravation of the condition. Based on the number of years with each employer, it would be reasonable to assign 50% to Patrick, 20% to Ansett, and 30% to Qantas.
Dr McGlynn opined that the applicant’s employment with Qantas was the substantial contributing factor to the aggravation, acceleration, exacerbation, or deterioration of his skin cancer condition, which had developed in the course of his employment with Patrick and Ansett.
Dr McGlynn assessed the applicant’s WPI as 21%, from which he deducted one-tenth, so the final assessment was 19% WPI.
Dr McGlynn’s next report is dated 24 January 2025.
Dr McGlynn was provided with the applicant’s statements dated 12 February 2020, 12 August 2024 and 16 December 2024; Mr Bevan’s statement; and Mr Welch’s statement dated 20 January 2025.
Dr McGlynn was asked to assume the correctness of the account of the applicant and Mr Welch of the applicant’s duties. He maintained that on the balance of probabilities, the applicant’s employment with Qantas was a substantial contributing factor to the aggravation, acceleration, exacerbation, or deterioration of his skin cancer condition.
“This statement” was consistent with a significant portion of the applicant’s work at Qantas being outdoors.
There was ample evidence in the medical literature that shade and clothing provide only partial protection from sun damage. Dr McGlynn referred to studies showing increased incidence of skin cancer in American forestry workers, despite working under shade most of the time. Unless clothing was specifically designed and rated for sun protection, it provided only partial protection. If it was light coloured and wet from sweat, it provided minimal protection.
Dr McGlynn was also asked to assume the correctness of Mr Bevan’s statement. He still opined that on the balance of probabilities the applicant’s employment with Qantas was a substantial contributing factor to the aggravation, acceleration, exacerbation, or deterioration of his skin cancer condition. The applicant estimated that 50% of his work was outdoors. During that time, he would have been exposed to direct and indirect sunlight, which even in shade causes actinic damage.
Dr McGlynn’s next report is dated 6 February 2025.
Dr McGlynn had been advised there was a factual dispute as to the level of the applicant’s sun exposure while employed by Qantas. He was provided with the applicant’s statements, Mr Bevan’s statement, and Mr Welch’s statement dated 20 January 2025.
Assuming the correctness of Mr Welch’s account of the applicant’s duties, which was similar to that of Mr Phegan, Dr McGlynn opined that on the balance of probabilities the applicant’s employment with Qantas was a substantial and/or main contributing factor to the aggravation, acceleration, exacerbation, or deterioration of his skin cancer condition.
Assuming the correctness of Mr Bevan’s statement, that the applicant made deliveries 10% of the time, when he was exposed to short periods of sunlight, the exposure to sunlight was intermittent and brief. That meant on the balance of probabilities, the applicant’s employment with Qantas was not a substantial contributing factor to the aggravation, acceleration, exacerbation, or deterioration of his skin cancer condition.
Dr McGlynn noted that, if Mr Bevan’s statement was correct, the applicant was outdoors for about 45 minutes per shift, and for most of this time was not exposed to direct sunlight.
Dr McGlynn’s final report is dated 20 February 2025.
Dr McGlynn was provided with Mr Welch’s statement dated 18 February 2025. He was asked to assume the correctness of the statement.
Assuming the correctness of Mr Welch’s statement, which he noted was similar to the applicant’s evidence about his duties, Dr McGlynn opined that on the balance of probabilities, the applicant’s employment with Qantas was a substantial and/or main contributing factor to the aggravation, acceleration, exacerbation, or deterioration of his skin cancer condition.
The applicant and Mr Welch described regular periods of sunlight exposure. Some outdoor work was partially under cover or inside vehicles. The fact that some vehicles were airconditioned was not relevant to the effect of UV light on exposed skin. Reflected and partially filtered sunlight was also known to cause actinic skin damage.
Dr McGlynn noted that windscreens are often treated to provide protection, but not complete protection, from UV light. Side windows and glass roofs usually do not filter UV light and provide minimal or no protection from UV light.

Dr Allan Meares – hand, plastic and reconstructive surgeon

Dr Meares was qualified by Qantas and reported first on 9 November 2018.
Dr Meares recorded a consistent history of the applicant’s employment. Mr Phegan had worked for Qantas from 2002 to 2011 [sic], when he retired. He worked in the engineering stores. He was on the tarmac and walked outdoors and indoors. Qantas provided hats, long-sleeved and short-sleeved shirts, and block out. The applicant often wore overalls with long trousers, but with short sleeves.
Dr Meares opined that the applicant’s skin cancers and sun damage were due to his employment on the waterfront from the age of 25 or 26 to the age of 56, when he started work with Qantas. The applicant gave a clear history of many treatments before starting work at Qantas.
The applicant did not know the exact date that he started work at Qantas. Dr Meares opined that the applicant’s work on the waterfront was the main and substantial contributing factor to his skin condition. He did not believe the applicant’s sun exposure with Qantas was the cause of his current problem.
Dr Meares assessed the applicant’s WPI as 14%, substantially and mainly caused by his employment on the waterfront. A deduction of 10% could be made for exposure prior to that work.
Dr Meares was “in general agreement” with Dr McGlynn’s report dated 5 February 2018.
Dr Meares provided a supplementary report dated 13 December 2018.
Dr Meares opined that the applicant’s employment was a substantial cause of his current condition. It was not an aggravation, acceleration, exacerbation, or deterioration. It was due to the applicant’s employment on the waterfront and not his employment with Qantas.
Dr Meares was of the opinion that the applicant would have continued to suffer from various lesions and skin cancers, even if he had not worked outdoors after ceasing work on the waterfront.

Dr Troy Darben - dermatologist

Dr Darben reported to the applicant’s solicitors on 26 July 2023.
Dr Darben first saw the applicant on 8 March 2016.
Dr Darben had recorded a history that the applicant worked mainly outdoors as a waterfront worker between 1974 and 1993, with no sun protection or uniform that would have afforded sun protection.
The applicant’s work for Ansett from 1993 to 2001 involved him often being on the tarmac, again with no significant sun protection and often wearing short sleeves.
The applicant was subsequently employed by Qantas from 2001 to 2014. He stated that his work often involved being outdoors. During his initial employment, there was no formal sun protection, and he felt this only became more readily available in the last couple of years of his working life.
Dr Darben opined that all these occupations would have led the applicant to being exposed to significant levels of sun, with risks of adding to much of his skin cancer “burden”.
When Dr Darben first saw the applicant, he had four further melanomas, and in total had had nine separate melanomas. In the seven years he had been under Dr Darben’s care, the applicant had had at least 24 non-melanoma skin cancers surgically removed, as well as dozens more treated with cryotherapy.
Dr Darben opined that, from the applicant’s history of his occupation, sun exposure, and lack of sun protection during much of his employment with Qantas, it was likely that a significant proportion of his sun damage, contributing to his tendency to skin cancer, was obtained during his period of employment.

Associate Professor Stephen Shumack – dermatologist

A/Prof Shumack was qualified by Qantas and reported first on 11 December 2023.
A/Prof Shumack recorded a history that the applicant was employed by Qantas as a store person between September 2002 and December 2014.
A/Prof Shumack recorded a consistent history of the applicant’s employment before he commenced work with Qantas.
The applicant “insist[ed]”, despite the list of duties provided to A/Prof Shumack, that he spent approximately 50% of the time outdoors. He worked at the end of this time for the engineering department, which was predominantly outdoors.
A/Prof Shumack recorded that the applicant regularly wore his own hat and sunscreen products. Sunscreen and hats were available, but it was not compulsory to use them.
Since the applicant had retired, he had had a number of skin cancers, including melanomas, keratoses, BCCs and SCCs, removed.
A/Prof Shumack opined that non-work factors might have caused or contributed to the applicant’s condition. They included significant childhood and teenage sun exposure. When the applicant left school, he continued intermittent cricket and swimming. He had trained regularly for many years, spending some time outdoors.
A/Prof Shumack agreed with Dr McGlynn’s diagnoses.
A/Prof Shumack did not consider the applicant had contracted a disease in the course of his employment with Qantas. The applicant contracted the skin cancer condition before working with Qantas.
A/Prof Shumack was asked if he considered the applicant had suffered an aggravation, acceleration, exacerbation, or deterioration of skin cancer in the course of his employment with Qantas.
A/Prof Shumack believed this was technically possible, but highly unlikely, in that the applicant had already contracted the condition, and while working with Qantas he was relatively careful with regular wearing of sun protection and hats. “In other words,” he believed the applicant’s condition would have been the same had he not worked for Qantas. He did not consider that employment with Qantas was the main contributing factor to the aggravation, acceleration, exacerbation, or deterioration of the applicant’s skin cancer disease injury.
A/Prof Shumack was asked if the aggravation had resolved. He answered yes, “in the sense that” the applicant had been very careful with sun protection since the initial development of skin cancers in the 1990s.
A/Prof Shumack opined that the applicant’s sun exposure at Qantas would be a maximum of 10% of his lifetime exposure. He assessed the applicant’s WPI as 2%.
A/Prof Shumack agreed with Dr McGlynn that approximately 50% of the applicant’s sun exposure was related to his work with Patrick. He believed it was likely that more exposure was related to employment with Ansett, where the applicant did not have sun protection, which he did with Qantas. He also had significantly more sun exposure with Ansett.
A/Prof Shumack has provided a supplementary report dated 26 February 2025. He was provided with the applicant’s statement dated 16 December 2024, Mr Bevan’s statement, Mr Welch’s statement dated 20 January 2025, and Dr McGlynn’s report dated 24 January 2025.
A/Prof Shumack noted there was some dispute regarding the time the applicant spent in the sun during his employment with Qantas.
An explanation of “aggravation”, “acceleration”, “exacerbation”, and “deterioration” was provided. A/Prof Shumack was asked if the applicant had suffered an aggravation, acceleration, exacerbation, or deterioration of his skin cancer disease in the course of his employment with Qantas. He responded, “No, he has not”.
The additional evidence did not change A/Prof Shumack’s opinion. He believed that, even with the applicant’s estimate of his time spent in the sun at Qantas, his accumulated sun exposure during that employment would be a maximum of 10% of his lifetime accumulated sun exposure. His skin cancer condition would have been the same had he not worked for Qantas.
A/Prof Shumack disagreed with Dr McGlynn’s opinion that the applicant’s employment with Qantas was a substantial contributing factor to the aggravation, acceleration, exacerbation, or deterioration of his skin cancer condition, for the reasons stated in this and his previous report.

Dr John Giles – plastic surgeon

Dr Giles was qualified by Ansett and reported first on 20 May 2024.
Dr Giles recorded a consistent history of the applicant’s employment, and that the applicant worked outside for about 50% of the time at Qantas, where he was provided with a hat and sunscreen.
Dr Giles opined that the applicant had widespread changes to his skin, leading to various conditions, all of which were caused by chronic exposure to the sun. These changes were cumulative and irreversible, and the applicant could be expected to develop more lesions in the future.
Dr Giles reported that the applicant had a well-documented history of chronic exposure to the sun, while working for Patrick, Ansett, and Qantas. He often worked in short sleeved shirts and shorts, and on the waterfront sometimes not wearing a shirt. This would have been the main reason for the current state of his skin.
The majority of the applicant’s problems became apparent after November 2001. For example, the first malignant melanoma appeared in 2002. The applicant’s skin would have been damaged prior to 2001, but this damage was aggravated by his employment with both Ansett and Qantas. It was impossible to say which job caused most of his problems.
Dr Giles opined that it was also impossible to apportion the extent of the applicant’s impairment to each job. The applicant would also have had sun exposure before the employment being discussed, and certainly since, even though he tried to avoid it.
Dr Giles agreed with Dr McGlynn’s assessment of 19% WPI.
Dr Giles’ supplementary report is dated 13 June 2024.
Dr Giles had been asked to provide an assessment of impairment under the Table of Disabilities, with deemed date of injury of 1 November 2001.
Dr Giles was unable to answer the question. Any figure he provided “would only be a guess and without any evidence to support it.”
Dr Giles repeated that the applicant’s skin condition was cumulative and irreversible. Before Mr Phegan started work at Qantas, he had several jobs in which he was exposed to the sun. He would have sustained significant skin damage, even though it may not have been apparent at that time.

SUBMISSIONS

The submissions have been recorded and a transcript is available. I will therefore summarise the main points.

Applicant

The applicant submitted he was exposed on a regular basis to injury as a result of sunlight.
The applicant referred to the divergence between his evidence and that of Mr Bevan. He submitted I would consider the marginal distinctions between his evidence and that of Mr Welch as representing their best recollection.
The applicant submitted Mr Bevan could not account for what he was doing when he was on the tarmac. It needed to be borne in mind that there may have been days where there was constant exposure, or exposure of 70%, 80% or 90%.
The applicant submitted there was no response from Mr Bevan to the applicant’s supplementary statements. He submitted I should reject Mr Bevan’s evidence.
The applicant submitted that at the very least, Qantas might have had another witness to corroborate Mr Bevan’s evidence, but it would be expected there would be a multitude of business records on which Qantas could rely to bolster that evidence.
The applicant submitted Mr Welch’s evidence was very valuable corroborative evidence. Importantly, he was in a position of authority over the applicant, and he was particularly careful to distinguish different periods of the applicant’s employment and different job functions.
The applicant submitted it was important that an independent witness with no interest in the outcome provided evidence of an average of 20% exposure to sunlight but acknowledged that on a busy day the exposure might be 30% of the shift. That average was reached over a period of 12 years, which would clearly indicate that on certain days it would exceed 30%.
The applicant submitted this is an aggravation case. He did not have to establish that the condition as a whole was substantially caused by his employment at Qantas. The question was whether his current condition was simply the natural passage of the damage done at Ansett or constituted further aggravation by reason of employment with Qantas.
Dr McGlynn has opined that the applicant’s employment with both Ansett and Qantas was the main contributing factor to the aggravation and deterioration of his skin cancer condition. The applicant submitted that was based on a proper understanding of the development of the condition before employment with Ansett.
The applicant submitted Dr McGlynn proceeded on the basis of Mr Welch’s account of 20% exposure, but Mr Welch also referred to 30% as a relevant figure considered over the period. Given Dr McGlynn’s evidence, the applicant submitted that for the second respondent to succeed, there needed to be a finding that Mr Bevan’s estimate of 10% was reliable.
The applicant also referred to Dr Giles’ evidence, in which Dr Giles agreed with Dr McGlynn.
The applicant submitted that Dr Meares was dealing with causation, as opposed to aggravation. He had not addressed the issue I need to determine.
The applicant referred to Dr [sic] Shumack’s report dated 11 December 2023 and submitted Dr Shumack was firstly asked the wrong question, as this is not a matter of causation, but of aggravation.
The applicant submitted that the first part of Dr Shumack’s response to the (correct) question as to whether he considered the applicant had suffered an aggravation, acceleration, exacerbation or deterioration of skin cancer was fatal to the second respondent, because Dr Shumack said he believed it was technically possible.
The applicant submitted the remainder of Dr Shumack’s opinion was of no assistance, because the fact that he had already contracted skin cancer did not preclude subsequent aggravation, and the lay evidence undermined the opinion regarding wearing sun protection and hats.
The applicant submitted the question for me was whether there was sufficient evidence of exposure at Qantas that would result in aggravation.
The applicant submitted the lay evidence provided sufficient detail of the actual exposure and, taken with Dr McGlynn’s opinion and Dr Shumack’s acknowledgment of what was technically possible, there could only be one outcome.
The applicant submitted Dr Shumack had not provided his reasoning in his [last] report, or the facts on which he reached a medical conclusion. He had not explained why he believed the applicant’s skin cancer condition would have been the same had he not worked for Qantas.
The applicant submitted I would find he suffered an aggravation of his skin cancer condition during the period of his employment with Qantas, and the matter should be remitted to the President for referral to a Medical Assessor for assessment of impairment.
In reply to the second respondent, the applicant referred to its “mischievous arithmetic”.
The applicant submitted that according to Mr Bevan, when the applicant was on day shift, 10% of his time involved exposure to the sun. Mr Welch disagreed.
The applicant submitted that the correct analysis was that, if the applicant worked for 24 hours on day shift, and was exposed to sunlight 20% of the time, he would be exposed on average to 2.4 hours of sunlight, according to Mr Welch’s analysis.
The evidence of Mr Welch was quite clearly that when the applicant worked day shifts, he would be out in the sun for at least 2.4 hours. That needed to be understood with reference to what was said about that being in the middle of the day, the vulnerabilities discussed in the lay evidence about exposure to the sun, the inadequacy of shelter, and the medico-legal opinion.
The applicant submitted that, beyond that, there were days when according to Mr Welch, he spent 30% of his time in the sun, that is, 3.6 hours in a particular day.
The applicant submitted that if there were 45.6 shift cycles in a year, using the average of 2.4 hours in a shift cycle, that meant on average 109 hours, on the 20% that Mr Welch provided. In an eight day cycle, there would be at least 4.8 hours of exposure, and on Mr Welch’s assessment, there would be occasions on which there would be 3.6 hours in a day.
The applicant submitted there was no persuasive argument as to why I would reject Mr Welch’s evidence. He had no interest in the matter. Nothing had been said that would give reason to consider he was not a witness of truth. In material respects, he had corroborated the applicant’s evidence, and I would have no difficulty in accepting that.
The second respondent had made no submission as to the deficiency in its case by the fact that Mr Bevan, given the opportunity to contest Mr Welch’s evidence, had remained silent. This was a factor I would take into account in preferring the applicant’s evidence to that of Qantas.
The applicant submitted the task analysis was prepared five years after he left Qantas’s employ. Even if it correctly referred to aspects of his work, its purpose was to record the nature and frequency of the physical demands of employment. It does not say anything about the periods that a worker would be exposed to the sun, so was of no assistance to Qantas.
The applicant submitted there was lay evidence of exposure and cause for aggravation, and a medicolegal conclusion. Dr Shumack had made a concession that aggravation was a possibility. The possibility entertained the prospect of there being a probability.
The applicant submitted this is not a case where the deemed date of injury is to be determined with reference to the date of incapacity. Being a skin cancer case, it did not present a date of incapacity to deem the injury; and the applicant referred to s 16(1) of the 1987 Act. The relevant date of injury was the date pleaded, which was the date on which the claim was made.
The applicant submitted there had been a subsequent injury to that sustained with Ansett, suffered gradually as a result of sun exposure, and pursuant to s 16, compensation is payable by the employer that last employed the applicant in employment that was a substantial contributing factor to the aggravation.

First respondent

The first respondent’s case was that the second respondent was liable for the applicant’s further lump sum claim. It submitted that employment of some 13 years with Qantas was a substantial contributing factor to the aggravation of the applicant’s disease.
The first respondent submitted that Mr Bevan may think he is correct, but the applicant is the person best placed to say how much of his work was outdoors.
The first respondent relied on Dr Giles’ evidence, submitting that Dr Giles agreed with Dr McGlynn. It submitted that exposure to sunlight of 50% of a shift daily over 13 years would fortify the conclusion that employment with Qantas was a substantial contributing factor to the aggravation of the applicant’s condition.
The first respondent submitted that Dr Giles’ evidence that most of the applicant’s problems became apparent after November 2001, and the first malignant melanoma appeared in 2002, is evidence of both an uptick in symptoms and deterioration after ceasing employment with Ansett.
The first respondent submitted that Dr Shumack did not necessarily support the second respondent’s case, because Qantas cannot escape that it employed the applicant for a prolonged period, and Dr Shumack opined that at least 10% of the condition was attributable to Qantas. Ten percent is still a substantial contributing factor, even if Dr Shumack’s opinion were accepted. That would be considered real and of substance.[1]
[1] Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324.
The first respondent submitted the opinions of Drs Giles and McGlynn were coherent and rational, whereas Dr Shumack’s report contained more bold statements and at least to a degree relied on arbitrary conclusions, which were not explained.
The first respondent submitted the applicant’s clinical records demonstrated a significant increase in his symptoms in late 2013, and a deterioration in his disease at that time. The applicant was either still employed by Qantas, or it was in close proximity to that employment.
The first respondent submitted that Dr Darben’s report was compelling evidence that the applicant had deteriorated proximate to his employment with Qantas such as to satisfy s 16 of the 1987 Act.

The first respondent agreed with the applicant as to the date of injury. It submitted there were two separate dates of injury, for which Rail Services Australia v Dimovski & Anor[2] is authority.
[2] [2004] NSWCA 267 (Dimovski).
The first respondent finally submitted there should be an award for the first respondent and the second respondent should bear the liability for the further lump sum compensation after the claim had been referred to a Medical Assessor.

Second respondent

The second respondent submitted that half of the applicant’s work was conducted in darkness. If Mr Welch’s estimate that the applicant was exposed to sunlight 20% of the time was reduced by half, the applicant was exposed to sunlight 10% of the time.
The second respondent submitted that, on the applicant’s medico-legal case, we are left with a medical conclusion that being exposed to sunlight for 10% of the time is not sufficient for there to be an aggravation.
The second respondent submitted that, even on the applicant’s evidence, the deemed date of injury was when the applicant was employed by Ansett.
The second respondent submitted that, as far as s 15 of the 1987 Act is concerned, Dimovski is probably no longer good law, after the decision in Haddad v The GEO Group Australia Pty Ltd.[3] There was no doubt there was a s 15 injury, which had been confirmed by previous orders to which the second respondent was not a party.
[3] [2024] NSWCA 135 (Haddad).
The second respondent submitted some of the applicant’s submissions seemed to assume a reversal of the onus. If the second respondent tendered evidence, it had to contend that it was acceptable and true, but it was not a matter of it defeating the claim, but of the applicant exposing a controlling basis for the claim.
The second respondent submitted that what was stated in the medico-legal case was that the sunlight to which the applicant was exposed before was of such a magnitude that the injury was already in train, which was also clear from the contemporaneous medical material.
The second respondent submitted that the first period of incapacity, which was relevant to the deemed date of injury under s 16, was before the applicant commenced employment with Qantas. The date of injury that the Compensation Court proceeded on remained the date of injury for present purposes.
The second respondent submitted Dr McGlynn had taken into account the applicant’s daylight versus nighttime hours while working as a stevedore, but not in relation to his work for Ansett or Qantas.
The second respondent referred to Dr McGlynn’s evidence that the applicant’s employment with Ansett and Qantas contributed to his skin cancer, which it submitted was not really explained. Mere contribution, per se, was not sufficient for s 16 and the s 15 question had been resolved by reason of the first date of incapacity.
The second respondent submitted that Dr McGlynn opined that Qantas was the last relevant employer that exposed the applicant to excessive sunlight but did not explain what excessive sunlight was or proceed on a correct history of exposure to sunlight with Qantas.
The second respondent submitted Dr McGlynn needed to look at not only the duration of employment, but the nature and extent of sunlight exposure during that employment. Otherwise, the mathematical apportionment, even if possible, was meaningless.
The second respondent submitted that by the time the applicant came to work for Qantas, he was suffering from these conditions and was mindful of the need to avoid exposure to the sun. That would “tend to gel with the probability” that the applicant did not have excessive sun exposure because he knew he had to be careful about it.
The second respondent submitted that Dr Giles made the same error as Dr McGlynn in relying on the incorrect history that the applicant worked outside 50% of the time. It was both incomplete and misleading, in that it was not only a question of the percentage of time outside, but also the percentage of time in darkness.
The second respondent submitted it was impossible for the Commission to say, based on Dr Giles’ evidence, that there had been a substantial contributing factor for s 16 purposes in relation to the applicant’s employment with Qantas. Dr Giles said it was impossible to quantify the contribution of further employment after November 2001. That being so, the applicant could not discharge his onus against Qantas even with the support of Ansett.
While Dr Giles opined that the applicant’s condition was cumulative, the second respondent submitted that is something less than an aggravation, because it was cumulative and irreversible, and started before the applicant started work at Qantas, according to Dr Giles.
The second respondent referred to the evidence of Dr Menzies that the applicant had an indoor occupation with Qantas. That made sense because the applicant was aware of the need to avoid a job involving significant sun exposure.
The second respondent referred to the evidence of Dr Meares that the applicant’s work on the waterfront was the main and substantial contributing factor and Dr Meares was not of the opinion that sun exposure while employed by Qantas was the cause of his current problem.
The second respondent submitted that Dr Shumack opined that aggravation was regarded only as a technical possibility. That was much less than a probability, which was necessary for the applicant to succeed.
The second respondent submitted that for there to be an aggravation there needed to be a worsening. Dr Shumack confirmed there was no aggravation, acceleration, “etc”. The other parties could not point to a worsening of symptoms, heightened need for treatment, or anything else that would be consistent with an aggravation.
The second respondent submitted there would need to be a greater need for surgery as a result of the applicant working for Qantas, or some other evidence of aggravation, to be persuaded there was a s 16 injury, and that evidence did not exist.
The second respondent referred to the task analyses, which it submitted showed that most of the work involved was clearly internal.
The second respondent submitted that Mr Bevan’s knowledge had been accumulated over a considerable period and being the operations manager, he was very much aware of who had to do what within the engineering supply chain, and where they would work. His evidence had a solid foundation, and he had the appropriate background to give that evidence.
The second respondent submitted it could not be submitted there was an aggravation because there had been a modicum of additional sun exposure. It submitted I would prefer contemporaneous accounts rather than a reconstruction many years after the event, referring to the applicant’s most recent statements. Mr Bevan had been at Qantas a long time and was still there, whereas the applicant was giving an account many years after the fact.
The applicant agreed to some extent that sun exposure may have been between 10% and 30%. The mid-point of 20% accords with Mr Welch’s evidence. That would convert to 10% of the totality of the applicant’s work being in the sun.
The second respondent submitted Dr McGlynn’s opinion turns on the assumption of the correctness of the evidence of the applicant and Mr Welch, and if Mr Bevan’s evidence was correct, then employment with Qantas was not a substantial contributing factor. It submitted I would find that 10% exposure was correct.
The second respondent submitted the agreement of Dr Giles and Dr McGlynn includes the agreement that you have to start with determining as a factual issue the actual exposure to sun before you can give a view on causation.

SUMMARY

Section 4 of the 1987 Act provides:

“4 Definition of ‘injury’
In this Act--
‘injury’ --

(a) means personal injury arising out of or in the course of employment,
(b) includes a
‘disease injury’, which means--
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and

(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

Section 15 of the 1987 Act provides:

“Diseases of gradual process--employer liable, date of etcinjury

(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process--
(a) the injury shall, for the purposes of this Act, be deemed to have happened--
(i) at the time of the worker's death or incapacity, or
(ii) if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and

(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.

(2) Any employers who, during the 12 months preceding a worker's death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.
(2A) The Commission is to determine the contributions that a particular employer is liable to make on the basis of the following formula, or on such other basis as the Commission considers just and equitable in the special circumstances of the case--

‘C’ is the contribution to be calculated for the particular employer concerned.
‘T’ is the amount of compensation to which the employer is required to contribute.
‘A’ is the total period of employment of the worker with the employer during the 12 month period concerned, in employment to the nature of which the injury was due.
‘B’ is the total period of employment of the worker with all employers during the 12 month period concerned, in employment to the nature of which the injury was due.

(3)     Total or partial loss of sight which is of gradual onset shall for the purposes of subsection (1) be deemed to be a disease and to be of such nature as to be contracted by gradual process.
(4)     In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.
(4A) In this section, a reference to employment to the nature of which a disease was due includes a reference to employment the nature of which was a contributing factor to the disease.
(5)     This section does not apply to an injury to which section 17 applies.”

Section 16 of the 1987 Act provides:

“Aggravation etc of diseases--employer liable, date of etcinjury

(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease--
(a) the injury shall, for the purposes of this Act, be deemed to have happened--
(i) at the time of the worker's death or incapacity, or
(ii) if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and

(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.

(2) Any employers who, during the 12 months preceding a worker's death or incapacity or the date of the claim (as the case requires), employed the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.
(2A) The Commission is to determine the contributions that a particular employer is liable to make on the basis of the following formula, or on such other basis as the Commission considers just and equitable in the special circumstances of the case--

‘C’ is the contribution to be calculated for the particular employer concerned.
‘T’ is the amount of compensation to which the employer is required to contribute.
‘A’ is the total period of employment of the worker with the employer during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.
‘B’ is the total period of employment of the worker with all employers during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.

(3) In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.
(4) This section does not apply to an injury to which section 17 applies.”

It is common ground that the applicant sustained a disease injury arising out of or in the course of his employment with Ansett, and he has received compensation for that injury.
The applicant also claims to have sustained an aggravation, acceleration, exacerbation, or deterioration of a disease (a s 4(b)(ii) injury) arising out or in the course of his employment with Qantas. I will refer in these reasons to “aggravation” for convenience.
In order to succeed in his claim against Qantas, the applicant is not required to establish that his employment with Qantas was the main contributing factor to the contraction of the disease. He need only establish on the balance of probabilities that his employment was the main contributing factor to the aggravation of the disease.
Deputy President Snell discussed the meaning of “main contributing factor” in AV v AW.[4] Snell DP first discussed the previous authorities, including Flanagan v NSW Police Force,[5] State Transit Authority of New South Wales v El-Achi,[6] Mannie v Bauer Media Pty Ltd[7] and Lilyvale Hotel Pty Limited v Bradley.[8]
[4] [2020] NSWWCCPD 9 at [65]-[78].
[5] [2017] NSWWCCPD 33.
[6] [2015] NSWWCCPD 71.
[7] [2016] NSWWCCPD 47.
[8] [2016] NSWWCCPD 62.
Snell DP summarised the discussion as follows:
“It follows that the test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.” (At [77]-[78].)
Turning first to the factual dispute, which is contained in the evidence of the applicant, Mr Bevan, and Mr Welch, I prefer and accept the evidence of the applicant and Mr Welch. As the applicant submitted, the second respondent has not relied on any further evidence from Mr Bevan to respond to the supplementary statements of the applicant and Mr Welch.
The second respondent also did not rely on any records to support the evidence of Mr Bevan.
I do not discount the fact that Qantas placed in evidence two task analyses of the engineering supply chain. One task analysis bears the date December 2015. The other task analysis bears no date, but according to the index to the second respondent’s Reply, it is dated November 2019.
Both task analyses post-date the applicant’s employment with Qantas, and they focus entirely on the physical demands of the occupation. They are of no assistance in determining the extent of the applicant’s exposure to sunlight in his employment with Qantas.
As the applicant submitted, Mr Welch, who I accept is well-placed to give the evidence he has provided, has no interest in the matter. He has provided considerable detail about the work performed by the applicant and the way in which that work was performed.
Mr Welch’s estimate of the time during which the applicant was exposed to sunlight whilst working for Qantas is somewhat lower than that of the applicant. I accept the applicant’s submission that this tends to confirm that the evidence of Mr Welch and that of the applicant represents their best recollection. Importantly, Mr Welch has expressed his disagreement with some of Mr Bevan’s evidence, and, as I have noted, there is no evidence from Mr Bevan in response.
The second respondent referred to Dr Menzies’ report, in which he noted that the applicant had an “indoor” occupation with Qantas. I give little weight to that comment for a number of reasons.
Firstly, the comment is inconsistent even with the evidence of Mr Bevan. Secondly, the applicant may have told Dr Menzies he was employed as a store person, which the doctor may have assumed was an indoor occupation. Thirdly, the applicant may have expected that he would be working indoors, having not long commenced his employment with Qantas (apparently in September 2002). He would by no means be the only worker who found that their employment turned out to be different from their expectation when they accepted the position. The evidence of the applicant and Mr Welch is that the applicant did not have an indoor occupation.
The second respondent submitted that the applicant’s exposure to sunlight was, on the evidence of Mr Bevan, only 5% of the time, because he was working at night for half of his roster.
This submission overlooks the evidence of the applicant that he was in the sun 50% of the time, which I infer was at S189, and at SDT his exposure to the sun varied between 10% to 30%.
Mr Welch also gave evidence that there were many shifts when the applicant was in the sun for 30% of the day, over 12 years of employment; he estimated the applicant spent about 20% of his day in the sun; and the peak hours for delivery were morning, midday, and 3.00pm onwards. I accept the applicant’s submission (apart from the reference to “mischievous arithmetic”) with respect to this evidence.
Dr Darben, who has been treating the applicant since 2016, reported the applicant told him his work with Qantas often involved being outdoors.
In Dr Darben’s opinion, all the applicant’s occupations exposed him to significant levels of sun. The applicant had had a significant amount of treatment in the then seven years during which he had been Dr Darben’s patient, all of which was after his employment with Qantas ceased.
Dr Darben opined that it was likely that a significant proportion of the applicant’s sun damage, contributing to his tendency to skin cancer, occurred during his employment with Qantas.
Dr McGlynn has provided a number of reports, dating back to 2018, which I have discussed above.
In his report dated 6 February 2025, Dr McGlynn commented on the most recent statements of the applicant and Mr Welch, and Mr Bevan’s evidence.
Assuming the correctness of the evidence of the applicant and Mr Welch, Dr McGlynn opined that, on the balance of probabilities, the applicant’s employment with Qantas was a substantial and/or main contributing factor to the aggravation of the applicant’s condition.
As the second respondent submitted, the opinion of Dr McGlynn is based on accepting the correctness of the evidence of Mr Phegan and Mr Welch. As I have said, I do accept their evidence.

Dr Giles opined that the damage to the applicant’s skin was aggravated by his employment with both Ansett and Qantas, and it was impossible to say which job caused most of his problems.
A/Prof Shumack, who also had the benefit of the statements of the applicant, Mr Welch, and Mr Bevan, did not agree that the applicant’s condition had been aggravated by his employment with Qantas, although he accepted that it was “technically possible.”
A/Prof Shumack, however, opined that it was highly unlikely that the applicant’s condition had been aggravated by his employment with Qantas, because he had already contracted skin cancer, and was relatively careful in his sun exposure. He did not agree with Dr McGlynn.
Dr McGlynn has explained why, in his opinion, shade and clothing provide only partial protection from sun damage, and why even inside a vehicle, there may be exposure to sun. In my view, A/Prof Shumack has not adequately addressed this aspect of Dr McGlynn’s evidence, and both the applicant and Mr Welch have given evidence that disputes that of Mr Bevan regarding the provision of hats and sunscreen.
On balance, I am persuaded by the evidence of Drs McGlynn and Giles that the applicant has established that his employment with Qantas was the main contributing factor to the aggravation of his disease.
Qantas is therefore the employer who last employed the applicant in employment that was a substantial contributing factor to the aggravation of the disease, and, pursuant to s 16 (1)(b) of the 1987 Act, is liable for payment of any compensation to which the applicant may be entitled.
As the applicant submitted, the injury did not result in incapacity, so the deemed date of injury, pursuant to s 16(1)(a)(ii), is the date on which the applicant made the claim, that is 7 September 2023.[9]
[9] Haddad.
The findings I make are:
(a)     there is an award for the first respondent;
(b)     the applicant sustained aggravation of a disease, to which employment was the main contributing factor, in the employ of the second respondent;
(c)     the deemed date of injury is 7 September 2023, and
(d)     the second respondent is the employer who last employed the applicant in employment that was a substantial contributing factor to the aggravation of the disease.
The orders are as set out in the Certificate of Determination.

[2025] NSWPIC 173

28 April 2025