Pryde and Telstra Corporation Limited (Compensation)

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Pryde and Telstra Corporation Limited (Compensation) [2016] AATA 811 (14 October 2016)

Division

GENERAL DIVISION

File Number(s)

2011/5617

2013/4437

Re

Barbara Pryde

APPLICANT

And

Telstra Corporation Limited

FIRST RESPONDENT

And

Comcare

SECOND RESPONDENT

DECISION

Tribunal

Egon Fice, Senior Member
E A Shanahan, Member
Date 14 October 2016
Place Melbourne

The Tribunal affirms the decisions under review.

[sgd]........................................................................

Egon Fice, Senior Member

WORKERS’ COMPENSATION - employee of Commonwealth telecommunications agencies - death resulting from lung cancer - where claimant exposed to asbestos fibres in course of work - where claimant a significant smoking over extended period of time - specified disease - whether presumption that specified disease caused by exposure to asbestos fibres rebuttable - conflicting evidence of exposure - insufficient biological evidence to conclude as to causation - epidemiological analysis applied - where epidemiological analysis indicates cancer caused more likely than not by smoking alone - presumption of causation rebutted - decision affirmed.

Legislation

Asbestos-related Claims (Management of Commonwealth Liabilities) Act 2005 (Cth) s. 5

Australian and Overseas Telecommunications Corporation Act 1991 (Cth)

Australian Telecommunications Corporation Act 1999 (Cth)

Commonwealth Employees’ Compensation Act 1930 (Cth)

Compensation (Commonwealth Government Employees) Act 1971 (Cth)

Industrial Relations Legislation Amendment Act (No 3) 1991(Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss. 4(1), 5A, 5B, 7(1), 17, 18, 69

Safety, Rehabilitation and Compensation (Specified Diseases) Notice 2007 (1) (Cth)

Safety,Rehabilitation and Compensation and Other Legislation Amendment Act 2001 (Cth)

Telecommunications Act 1975 (Cth)

Cases

Bird v Commonwealth of Australia (1988) 165 CLR 1

Comcare v Canute (2005) 148 FCR 232

Comcare v Power [2015] FCA 1502

Comcare v Sahu-Khan (2007) 156 FCR 536

Connair Pty Ltd v Fredricksen (1979) 142 CLR 485

Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262

Telstra Corporation Ltd v Worthing (1997) 42 NSWLR 655

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

Secondary Materials

FD Liddell and BG Armstrong, ‘The Combination of Effects on Lung Cancer of Cigarette Smoking and Exposure in Québec Chrysotile Miners and Millers’ (2002) 46(1) Annals of Occupational Hygiene 5.

Finnish Institute of Occupational Health, ‘Asbestos, Asbestosis and Cancer - Helsinki Criteria for Diagnosis and Attribution 2014’ (Finnish Institute of Occupational Health, 2014).

H Nelson, D Christiani, J Wiencke, E Mark, J Wain and K Kelsey ‘K-ras mutation and occupational asbestos exposure in lung adenocarcinoma: asbestos-related cancer without asbestosis.’ (1999) 59(18) Cancer Research 4570.

H Wolff, T Vehmas, P Oksa, J Rantanen and H Vainio, ‘Asbestos, asbestosis, and cancer, the Helsinki Criteria for diagnosis and attribution 2014: recommendations’ (2015) 41(1) Scandinavian Journal of Work, Environment & Health 5.

International Agency for Research on Cancer Working Group, ‘Asbestos (Chrysotile, Amosite, Crocidolite, Tremolite, Actinolite, and Anthophyllite’ [2012] 100C International Agency for Research on Cancer Monographs, 219.

JT Hodgson and A Darnton ‘The Quantitative Risks of Mesothelioma and Lung Cancer in Relation to Asbestos Exposure’ (2000) 44(8) Annals of Occupational Hygiene 565.

K Husgafvel-Pursiainen, A Karjalainen, A Kannio, S Anttila, T Partanen, A Ojajärvi and H Vainio, ‘Lung cancer and past occupational exposure to…

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Details
Case
[2016] AATA 811
Decision Date

CaseChat Overview and Summary

This matter concerned a claim for workers' compensation by Mrs Pryde following the death of her husband from lung cancer. Mrs Pryde alleged that her husband's death was caused by his exposure to asbestos fibres during his employment with Telstra Corporation Limited and its predecessors. Telstra and Comcare both disallowed the claim, and Mrs Pryde sought review of these decisions before the Tribunal. It was not disputed that Mr Pryde died from lung cancer, and that he had been exposed to asbestos during his working life. However, Mr Pryde was also a significant smoker for approximately 50 years, which complicated the assessment of causation.

The Tribunal was required to determine several legal issues, including whether the lung cancer constituted a specified disease under the relevant legislation, whether Mr Pryde suffered an injury as defined by the Act, and if so, whether his employment contributed to that injury to a significant degree. Crucially, the Tribunal had to assess the degree of Mr Pryde's asbestos exposure, the relative risk of contracting lung cancer from that exposure, and the significance of his extensive smoking history in the development of his cancer. The central question was whether the statutory presumption that a specified disease is caused by asbestos exposure could be rebutted in this case.

The Tribunal's reasoning focused on the conflicting evidence regarding the extent of Mr Pryde's asbestos exposure. While one expert suggested a significant contribution from asbestos exposure, this was based on an estimated exposure level that the Tribunal found to be an overstatement. Applying epidemiological analysis, the Tribunal concluded that Mr Pryde's exposure to tobacco smoke was disproportionately higher than his exposure to asbestos fibres. Consequently, the Tribunal found that the relative risk of Mr Pryde developing lung cancer from asbestos exposure was insufficient to establish, on the balance of probabilities, a causal connection. The Tribunal held that Telstra and Comcare had successfully discharged the onus of rebutting the presumption of causation under section 7 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

The Tribunal affirmed the decisions under review, meaning Mrs Pryde's claim for compensation was dismissed.

Orders

Orders of the court

The Tribunal affirms the decisions under review.

Background

Background to the litigation

The above somewhat complicated history is set out so as to explain the two respondents named in this proceeding, that is, Telstra Corporation Ltd and Comcare. References to Telstra in these reasons should be understood to be a reference to Telstra and/or its predecessors.Background to the Proceedings Mrs Pryde’s claim for compensation for the work-related death of her husband was said to arise from his exposure to asbestos in the course of his employment with Telstra. Mrs Pryde lodged an application for compensation against Telstra and Comcare on 16 February 2011. She claimed her husband died on 2 March 2010 as a result of asbestosis caused by exposure to asbestos among other conditions. In a letter dated 10 August 2011 Telstra notified Mrs Pryde that it had determined she was not entitled to compensation as a result of her husband’s death. In a letter dated 28 May 2013 Comcare notified Mrs Pryde’s solicitors, Slater & Gordon, that her claim was disallowed. In both cases, Mrs Pryde sought reconsideration of the determination. In a letter dated 3 October 2011 Telstra notified Mrs Pryde that it had decided to affirm the determination dated 10 August 2011. In a letter dated 16 August 2013 Comcare also decided to affirm the determination under review. Mrs Pryde sought review of both of those decisions by this Tribunal, the claim against Telstra being lodged on 23 December 2011 and against Comcare on 3 September 2013. The claim against Telstra was allocated matter No. 2011/5617 and the claim against Comcare matter No. 2013/4437. The matters were heard concurrently. There was no dispute between the parties that Mr Pryde’s death was caused by carcinoma of the lung. Although the death certificate also refers to asbestosis, as will become apparent presently, subsequent pathology neither confirmed nor negated the presence of asbestosis, however the presence of calcified pleural plaques confirmed asbestos exposure. There was no doubt that Mr Pryde had been exposed to asbestos in the course of his working life. To complicate matters, Mr Pryde was a heavy smoker for a period of some 50 years. The issues which confront us on this application are:(a)whether the lung cancer which caused Mr Pryde’s death was a disease specified by the Minister for the purposes of s. 7(1) of the SRC Act;(b)whether Mr Pryde suffered an injury resulting in death as the word injury is defined in s. 5A of the SRC Act which includes a disease as defined in s. 5B;(c)if Mr Pryde suffered an ailment, whether that was contributed to, in a significant degree, by his employment, as defined in ss. 4 and 5B of the SRC Act;(d)the degree to which Mr Pryde was exposed to asbestos throughout his employment by the Commonwealth or a licensee;(e)whether the degree of exposure to asbestos was such that Mr Pryde’s relative risk of contracting lung cancer was sufficiently high to establish, on the balance of probabilities, a causal connection between that exposure and his lung cancer and;(f)the significance and contribution to the risk of developing lung cancer from his extensive period of tobacco smoking, this being an accepted risk epidemiologically.SECTION 7 OF THE SRC ACT – PROVISIONS RELATING TO DISEASES

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Despite there being no evidence that Mr Pryde had asbestosis, Associate Professor Breslin nevertheless expressed the opinion that on the balance of probabilities, there had been a material contribution to the development of his lung cancer from asbestos exposure. That was based essentially on Mr Pryde’s exposure to asbestos fibres being in excess of 25 fibre/mL years. Given our findings from the best evidence about Mr Pryde’s exposure to asbestos, because his exposure dose is unlikely to have been even close to 25 fibre/mL years, we can place little weight on Associate Professor Breslin’s conclusions.CONCLUSIONS We have found that the most difficult aspect in this case was determining the degree of exposure to asbestos experienced by Mr Pryde in the course of his working life. While we have found that the degree of exposure determined by Dr Kilpatrick was excessive taking into account the objective evidence regarding the nature of his work with SECV and Telstra, and that we also have some concerns with Mr Pickford’s estimation, we nevertheless accept that Mr Pickford‘s calculations should be preferred to those of Dr Kilpatrick. While mindful of the fact that epidemiological evidence only establishes the relative risk of causation, where the relative risk exceeds 2, in a legal sense, it can be inferred, on the balance of probabilities, that causation may be attributed to carcinogenic exposure with that relative risk level. In Mr Pryde’s case, his exposure to tobacco smoke is significantly disproportionate to his exposure to asbestos fibres. Furthermore, we have found that the relative risk of Mr Pryde having developed his lung cancer through the inhalation of asbestos fibres is insufficient to find, on the balance of probabilities, that it was also a contributing cause. Because we are unable to make such a finding, it follows we cannot attribute a degree of contribution, let alone a significant degree as required by s. 5B(1)(b) of the SRC Act, by asbestos exposure to Mr Pryde’s lung cancer. The biological case for establishing contribution to Mr Pryde acquiring lung cancer is insufficiently strong on the evidence before us to make such a finding. Associate Professor Breslin’s assessment of an 11% contribution to the total risk of Mr Pryde developing lung cancer from exposure to asbestos fibres was made on the assumption that he was exposed to 25 fibre/mL years of asbestos. Given we have found that to be an overstatement of his most likely exposure to asbestos, and that irrespective of the absence of asbestosis, because Associate Professor Breslin agreed that the risk of developing lung cancer by inhaling asbestos fibres was dose dependent, we cannot find on the balance of probabilities that Mr Pryde’s exposure to asbestos contributed to him developing lung cancer. Given our findings regarding the cause of Mr Pryde’s lung cancer, we find that Telstra and Comcare have discharged the onus of rebutting the presumption of contribution to Mr Pryde developing lung cancer from exposure to asbestos fibres set out in s. 7 of the SRC Act.

Ratio Decidendi

Legal Principle Established

Mr Pryde’s work history in the four year period between 1957 and 1961 is not entirely clear. It appears he worked for Olympic Tyres for two short periods where he may have had some bystander exposure to asbestos. It is likely that his exposure to asbestos over this short period was extremely small.History of Telstra Corporation Ltd and Comcare Peter Sutherland and John Oman Ballard, authors of the Annotated Safety Rehabilitation and Compensation Act 1988 (10th ed, 2014), set out the subsequent history of the PMG as described by Cole JA in Telstra Corporation Ltd v Worthing (1997) 42 NSWLR 655, at 659. His Honour explained:Prior to 1 September 1971 there existed a Department of government of the Commonwealth of Australia known as the Postmaster General’s Department. However, by s. 4 of the Telecommunications Act 1975 (Cth) the Australian Telecommunications Commission was created. The Australian Telecommunications Commission was established as a body corporate by s. 21 of the Telecommunications Act 1975 (Cth). The Australian Telecommunications Commission was transformed into the Australian Telecommunications Corporation by the Telecommunications Amendment Act 1988 (Cth) which commenced on 14 December 1988. The Australian Telecommunications Corporation continued as a body corporate under the name Telecom under the Australian Telecommunications Corporation Act 1989 (Cth), which commenced on 1 July 1989. Telecom’s functions were taken over by the Australian and Overseas Telecommunications Corporation in 1991. The Australian and Overseas Telecommunications Corporation Act 1991 (Cth), which commenced on 1 July 1991, defined AOTC (Australian and Overseas Telecommunications Corporation) to mean the company incorporated, or to be incorporated, under the Corporations Law of the Australian Capital Territory by the name Australian and Overseas Telecommunications Corporation Limited. The AOTC was registered as an unlisted public company limited by shares on 6 November 1991. On 13 April 1993 the AOTC was renamed Telstra Corporation Limited (Telstra). When Mr Pryde first commenced working with the PMG, compensation for work injuries was provided to Commonwealth employees under the Commonwealth Employees’ Compensation Act 1930 (Cth). This was subsequently replaced by the Compensation (Commonwealth Government Employees) Act 1971 (Cth). On its introduction the 1988 Act was called the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth), later being renamed the SRC Act. The AOTC became a licensed authority under Part VIIIA of the SRC Act with effect from 30 June 1992. Part VIIIA was replaced by part VIII on 1 April 2002 by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 (Cth). Under the transitional provisions set out in Schedule 2 to that Act, a Commonwealth authority which held a licence under Part VIIIA continued to be licensed under Part VIII. As such, Telstra’s transitional licence was subsequently converted to a licence under Part VIII. The grant of that licence was dependent upon acceptance by an authority or an eligible corporation of liability under the SRC Act for payments in respect of injury, loss or damage suffered by, or the death of, some or all of its employees.