Snell and Commonwealth of Australia (Compensation)
[2018] AATA 1107
•2 May 2018
Snell and Commonwealth of Australia (Compensation) [2018] AATA 1107 (2 May 2018)
Division:GENERAL DIVISION
File Number: 2017/3060
Re:Patrick Snell
APPLICANT
AndCommonwealth of Australia
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:2 May 2018
Place:Brisbane
The Tribunal sets aside the decision under review and in its place determines that the Applicant’s malignant metastatic melanoma was contributed to in a material degree by his relevant employment and that non-economic loss should be calculated at 47.3%. The Tribunal sets aside the decision under review with respect to the Applicant’s degree of permanent impairment and remits it, and the calculation of amounts payable to the Applicant, for reconsideration by the Respondent.
..............................[sgd]..........................................
Senior Member Theodore Tavoularis
CATCHWORDS
COMPENSATION – seafarers compensation – metastatic malignant melanoma – whether the Applicant’s employment contributed to in a material way his condition – where Applicant had spent more than forty years at sea – degree of permanent impairment – calculation of non-economic loss – decision under review set aside and remitted
PRACTICE AND PROCEDURE – issue estoppel – Matusko methodology – where Applicant had previously been successful before the Tribunal in a consent decision – where then-Respondent had accepted liability for broad range of solar induced skin conditions – whether issues the same – whether connection between Applicant’s current and former conditions – where Applicant’s current condition the same as one for which liability had been accepted – whether there is a reason to allow re-litigation – where Respondent sought to adduce new evidence – whether Respondent could have adduced the same or similar evidence in earlier proceedings – whether justice to the parties favours re-litigation – the discretion to allow re-litigation was not enlivened
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 33
Seafarers Rehabilitation and Compensation Act 1992 (Cth), ss 3, 10, 26, 39
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14, 16, 19, 21, 27CASES
Blair v Curran
(1939) 62 CLR 464
Canute v Comcare(2006) 226 CLR 535
Miller v University of New South Wales [2003] FCAFC 180
Moore and Military Rehabilitation and Compensation Commission [2017] AATA 532
Quinn and Australian Postal Corporation [1992] AATA 668
Re Matusko and Australian Postal Corporation [1995] AATA 14
Telstra Corporation v Hannaford [2006] FCAFC 87
Wiegand and Comcare[2014] AATA 413
SECONDARY MATERIALS
Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1)
Handley, K R, Spencer Bower and Handley: Res Judicata (4th ed, LexisNexis, 2009)
Pearce, D, Administrative Appeals Tribunal (4th ed, LexisNexis Butterworths, 2015)
Second Reading Speech: Seafarers Rehabilitation and Compensation Bill 1992
REASONS FOR DECISION
Senior Member Theodore Tavoularis
2 May 2018
INTRODUCTION
Mr Patrick Snell (“the Applicant”) is suffering from metastatic malignant melanoma, a terminal cancer. He attributes this condition to his time serving in the merchant marine, and, accordingly, has lodged a claim for compensation under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“the Act”).
A complicating factor in this matter is the fact the Applicant has previously – and successfully – claimed compensation from Australian River Co. Ltd., a company of which the parties agree the present Respondent is a legal successor, before the Tribunal.[1] In that case, a consent decision was reached, whereby the then-respondent accepted liability for the Applicant’s “solar induced skin disease” under the Act.[2] I shall refer to that consent decision henceforth as “the 2013 decision”.
[1] See the consent decision in Tribunal Case Number 2012/0189.
[2] Ibid.
THE QUESTIONS THIS DECISION MUST ANSWER
In this context, and having reference to the submissions lodged by the Applicant and the Respondent, I must approach this case by reference to the following questions:
(a)What is the diagnosis of the condition from which the Applicant is presently suffering?
(b)Is the present disease the same as the condition for which the then-respondent accepted liability in the 2013 decision?
(c)If the answer to (b) is ‘yes’, can the Applicant avail himself of issue estoppel or some variant thereof?
(i)I note that if the answer to (b) is ‘no’, no issue estoppel or variant thereof could apply, as the issues in this case are different from those previously determined by the Tribunal.
(d)If the answer to (b) is ‘no’, what is the relevant onus of proof (i.e. is the Applicant’s current condition “of a kind specified by the Minister, by legislative instrument, as a disease related to employment of a kind specified in the instrument”)[3]?
(e)Considering the answer to (d) (and if the answer to (b) is ‘no’), did the Applicant’s employment with the Respondent’s legal predecessor contribute, in a material degree, to his present condition?
(i)If the answer is ‘yes’, the Respondent will be liable to the Applicant. If the answer is ‘no’, no liability will be established and I need not proceed any further.
(f)If the answer to (c) or to (e) is ‘yes’, what degree of permanent impairment is relevant to the Applicant?
(g)If the answer to (c) or to (e) is ‘yes’, what is the correct or preferable assessment of the Applicant’s non-economic loss?
[3] See the Act, s 10(1)(b).
Only if the answer to questions (c) or (e) is ‘yes’, will the Respondent be liable to the Applicant. The answers to questions (f) and (g) will dictate the quantum of the Respondent’s liability.
I will now proceed to answering the above questions.
CONSIDERATION
The Applicant’s current diagnosis
I have been furnished with written reports and oral testimony of two experienced medical practitioners: Dr Godfrey Wagner,[4] briefed by the Applicant and Professor Richard Fox,[5] who was briefed by the Respondent. In addition to this, I have received a swathe of medical reports and information which is contained in the T-Documents.
[4] Exhibit 9, T-Documents, T 44, pp 1067-1071.
[5] Ibid, T 39, pp 1032-1038.
On the basis of the evidence available to me, I find that the Applicant is presently suffering from the disease of metastatic malignant melanoma.
Can the Tribunal consider the contribution issue?
In order for the Applicant to succeed in the present case, the Tribunal must be reasonably satisfied that the Applicant’s employment contributed in a material degree to the contraction of his metastatic malignant melanoma.[6] As noted above, the Applicant has already had some success before the Tribunal in asserting that a solar-caused skin condition of his was contributed to in a material degree by his employment. Now, he asserts that his success in the 2013 decision prevents or ought to prevent the Tribunal from considering whether his metastatic malignant melanoma was contributed to in a material degree by his employment.
[6] The Act, s 3.
While Counsel for the Applicant termed the mechanism through which he argued this should happen “issue estoppel”,[7] that term does not faithfully reflect his argument.[8] Rather, relying on the case of Re Matusko and Australian Postal Corporation [1995] AATA 14 (“Matusko”) and my own decision in Moore and Military Rehabilitation and Compensation Commission [2017] AATA 532 (“Moore”),[9] the Applicant instead relied upon a close analogue of issue estoppel. Using the Matusko methodology, the Tribunal, under the auspices of s 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth), can refuse to allow for an issue or a matter to be re-litigated if certain requirements are met.
[7] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), [82]-[98].
[8] For the classic definition of issue estoppel, see Blair v Curran (1939) 62 CLR 464 at 531-532 (Dixon J).
[9] I note that the Tribunal in Matusko expressly stated that issue estoppel does not apply in the Tribunal. However, there is a great deal of uncertainty on this point (see Miller v University of New South Wales [2003] FCAFC 180 at [63]; Dennis Pearce, Administrative Appeals Tribunal (4th ed, LexisNexis Butterworths, 2015) at 17.7-17.8). I further note that I took no position on whether issue estoppel is applicable in the Tribunal in Moore.
At the outset, I should note that, as observed by Ryan and Giles JJ in Miller v University of New South Wales [2003] FCAFC 180 at [63], “It is clear enough that it is difficult, if not impossible to reconcile” the authorities on whether issue estoppel is applicable before Commonwealth tribunals. I do not propose to attempt such an undertaking. Rather, I will proceed on the basis upon which the Applicant has brought issue estoppel into consideration: the Matusko methodology. Before I do so, I consider it worthwhile mentioning that if the Tribunal was wrong in Matusko and a true issue estoppel does apply before the Tribunal,[10] and the issue in the present case is the same as one in the 2013 decision, the rules around issue estoppel would prevent me from exercising any discretion to allow for that issue to be re-agitated.[11]
[10] Cf Re Matusko and Australian Postal Corporation [1995] AATA 14 at [33(a)].
[11] See K R Handley, Spencer Bower and Handley: Res Judicata (4th ed, LexisNexis, 2009) 103-123.
The Matusko methodology
Before applying it to the facts at hand, it is of course helpful to set out the methodology adopted by the majority of the Tribunal in Matusko:
33From the authorities cited we conclude:
(a)No formal issue estoppel arises from the Tribunal’s findings in Re Matusko 1991,
(b)The Tribunal should not generally allow relitigation of issues already decided,
(c)But the Tribunal should use its flexible procedures to allow further consideration of issues where there is a reason to do so, for instance:
(i) where there is a different decision,
(ii) where there is clear legislative intent,
(iii) where the reconsideration decision is not final,
(iv) where there has been a change in circumstances or fresh evidence, or
(v) where justice to the parties requires a departure from the general rule.
(d)The Tribunal should usually consider the evidence proposed to be called and make appropriate directions as to its admissibility during the hearing, as suggested in Re Quinn, rather than in a directions hearing prior to the substantive hearing.[12]
[12] Re Matusko and Australian Postal Corporation [1995] AATA 14 at [33].
Thus, in adopting the Matusko methodology, the Tribunal should generally proceed as follows.
After a party seeks to raise a question of issue estoppel or its analogue, the Tribunal must first identify the issues at hand in the present matter, and those considered in the prior matter. Following the decision of Dixon J (as he then was) in Blair v Curran,[13] “matters of law or fact which are subsidiary or collateral [to the previous decision] are not covered by the estoppel”. Rather, he considered that issue estoppel only applied to “matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in it as its legal justification or foundation”.[14]
[13] (1939) 62 CLR 464 at 531-532.
[14] Ibid, 532-533.
Dixon J was of course writing about issue estoppel proper. However, I see no reason why, for this first step of the Matusko methodology, the Tribunal should expand the range of issues one may not re-agitate. Especially in circumstances where the rest of the Matusko methodology effectively limits the impact of issue estoppel proper by imposing a discretionary element, I consider that the range of issues to which it applies should not be broader than that to which issue estoppel proper applies. To find otherwise would lead to a perverse result indeed. Consequently, I consider that the first step must be to identify whether an issue in the present case is the same as an issue that was “fundamental or cardinal to the prior decision”.[15] This is a condition precedent to the implementation of the Matusko methodology. If it is not met, then Matusko will not apply and no issue estoppel or analogue thereof should be entertained.
[15] Ibid, 533.
If the issues are, however, the same, one must adopt as a starting point the notion that issues should generally not be re-litigated.[16] The Tribunal should only shift from this point if it is reasonably satisfied that “there is a reason to do so”,[17] generally having reference to the non-exhaustive list of factors noted in Matusko.[18] It is, of course, conceivable that other factors may arise which can enliven this discretion.
[16] See Re Matusko and Australian Postal Corporation [1995] AATA 14 at [33(b)].
[17] Ibid at [33(c)].
[18] Ibid. I note that Counsel for the Applicant treated the list as being exhaustive. That is not the case.
If the Tribunal is satisfied that there is a reason for the issue to be re-litigated or re-agitated, then it may do so. However, if it is not so satisfied, then it must defer to the starting point that re-litigation should be prohibited.
I will now turn to applying the abovementioned Matusko methodology.
What are the issues and are they the same?
With respect to the present condition, while there is certainly a conflict in the evidence of Dr Wagner and Professor Fox in relation to the genesis of the Applicant’s present condition, they – and the parties – agree that the Applicant presently suffers from a malignant melanoma which has metastasised and currently presents as a “tumour mass in the Left axilla Left chest wall and left pleura.”[19] I therefore find that the current diagnosis for the Applicant is that of metastatic malignant melanoma. The issue presently before the Tribunal (and the issue for which the Applicant seeks to raise an issue estoppel argument), then, is whether the Applicant’s metastatic malignant melanoma was contributed to in a material degree by the Applicant’s employment.
[19] Ibid, T 44, p 1068.
The issue from the 2013 decision which the Applicant claims is the same as this was the conclusion that the Applicant’s “solar induced skin disease” was contributed to in a material degree by his employment. That conclusion formed the backbone of the 2013 decision and the then-respondent’s acceptance of liability for the Applicant’s condition. This, at least, is not contentious.
At first blush, each case focused on a different issue: the 2013 decision related to “solar induced skin disease”, whereas the present one concerns a metastatic malignant melanoma. This, however, merely scratches the surface of this question. Rather, the Applicant contends that the metastatic malignant melanoma from which the Applicant currently suffers is a subset, or natural consequence of the “solar induced skin disease” for which the Respondent accepted liability in the 2013 decision.
The Respondent sought to refute this contention in three ways. First, the Respondent argued that the Applicant’s present condition was an entirely separate condition to that which was dealt with in the 2013 decision. In the alternative, the Respondent contended that a melanoma excised from the Applicant in 2015 was the cause of his current condition. Thirdly, finally and again in the alternative, the Respondent claimed that the Applicant’s present condition was a secondary condition to the accepted “solar induced skin disease”, and so, on a proper construction of the High Court’s decision in Canute v Comcare (“Canute”),[20] was a separate disease or injury and so warrants fresh consideration.
[20] (2006) 226 CLR 535.
For the reasons below, and with particular reference to both the recent medical evidence of Dr Wagner and Dr Fox, and the medical evidence that was before the Tribunal in the 2013 decision and that which is before me now, I do not accept either of these contentions of the Respondent. Rather, I find that the possibility of one of the litany of skin cancers and conditions from which the Applicant was suffering at the time of the 2013 decision transforming or metastasising into metastatic malignant melanoma was both squarely within the contemplation of the parties and of the Tribunal at the time of the 2013 decision. Further, I am satisfied on the balance of probabilities that that is what occurred.
In his report of 13 June 2011, Dr Wagner identifies a “…protracted history of an enormous number of epidermal tumours including the following list of those excised.”[21] That list, which was apparently non-exhaustive, consisted of some thirty excisions and biopsies conducted on the Applicant, relating to solar induced skin diseases, over the period from March 2000 to May 2011.[22] Whilst being cross-examined by Counsel for the Respondent, Dr Wagner agreed that the Applicant’s present condition was attributable to an earlier malignant melanoma, probably one that had been excised.[23]
[21] Exhibit 9, T-Documents, T 25, p 894.
[22] Ibid, pp 894-895.
[23] Transcript 31/07/2017, p 59.
Dr Wagner’s oral testimony was supported by a report prepared on 7 June 2012 by Dr James Muir. In answer to a question relating to the degree of permanent impairment of the Applicant, Dr Muir recognised the risk then faced by the Applicant of his existing melanomas metastasising. He said: “This level [of impairment] could change should he [the Applicant] develop metastatic disease from his previous malignant melanomas or develop more skin malignancies in the future.”[24]
[24] Exhibit 9, T-Documents, T 27, pp 903-904.
Professor Fox, on whom the Respondent now relies, provided a report in this matter, dated 6 February 2017.[25] In my view, Professor Fox’s evidence can be distilled thus: although the more regularly occurring sunspots and minor cancers from which the Applicant has suffered (including basal skin cancers, squamous cell cancers and solar keratosis) may have been caused by the “lifelong cumulative ultraviolet damage to the skin”,[26] Professor Fox was of the view that the Applicant’s melanoma conditions, one of which was the progenitor of his present metastatic malignant melanoma, were caused by significant sun exposure as a child.[27]
[25] Ibid, T 39, pp 1032-1039.
[26] Ibid, p 1037.
[27] Ibid.
While that distinction would be significant if I were to go on and engage with the question of material contribution, it is of less benefit to the Respondent’s case relating to issue estoppel. That is for the simple reason that when the Respondent accepted liability in the consent 2013 decision for “solar induced skin disease”, it also accepted liability for the whole gamut of solar induced skin diseases from which the Applicant suffered up to that point. Crucially, this includes liability for five malignant melanomas (located in his right thigh, left calf (twice) and left arm and upper right arm) which Dr Wagner describes as having been excised between October 2004 and May 2011.[28] Professor Fox, in his written reports and in his oral evidence, supported the link between the Applicant’s present condition and his previously having suffered from a malignant melanoma.[29] Thus, putting aside Professor Fox’s opinion as to the material contribution of the Applicant’s employment to the development of these melanomas because liability was accepted for them, his medical opinion is still of some value to the Tribunal now because it supports the link between one of the melanomas the Applicant has historically suffered from and the metastatic malignant melanoma from which he presently suffers.
[28] Ibid, T 25, pp 894-895, also found at T 6, pp 589-590.
[29] Transcript 02/08/2017, p 142.
Thus, the weight of medical evidence presently before me supports the contention that the Applicant’s present condition – metastatic malignant melanoma – had its genesis in one of the melanomas from which the Applicant has suffered. It is of some benefit, at this stage, for me to consider whether it is the 2015 melanoma or a previous melanoma that spawned the Applicant’s present condition.
The only evidence the Respondent has pointed to in favour of its contention was a singular statement made by Dr Wagner during cross-examination. Dr Wagner said that the melanoma to which the Applicant’s present condition is attributable “should be the most recent one, again, by inference, but I can’t definitely [say].”[30] Crucially, Dr Wagner later emphasised that the link between any one of the Applicant’s melanomas and his present condition could only be drawn by inference as there is no evidence which points more strongly to one melanoma rather than another being the cause of his condition.[31] The strongest point in favour of the 2015 melanoma being the cause of the Applicant’s condition, as raised by Dr Wagner, was equivocal: “We know that malignancies, melanomas, tend to metastasise earlier, as in the first few years as opposed to later on, that – we’ve all had patients who’s had them ten years later, but they’re more commonly more recent than that.”[32] I note that neither Counsel for the Respondent nor Counsel for the Applicant questioned Dr Wagner on the 2015 melanoma. Indeed, when giving his evidence about inferences, the most recent melanoma Dr Wagner was drawn to was one excised from the Applicant in 2011.[33]
[30] Transcript 31/07/2017, p 60.
[31] Ibid.
[32] Ibid, p 59.
[33] Ibid, p 60.
Counsel for the Respondent sought to rely on this evidence of Dr Wagner to emphasise that it was unlikely that a melanoma for which liability was accepted caused the Applicant’s present condition. Counsel for the Respondent noted that the melanoma that was excised from the Applicant’s right arm on 31 August 2015 that was most proximate in time to the development of the Applicant’s present condition in July 2015.[34]
[34] Transcript 10/08/2017, p 202.
I am not satisfied that this asserted link is made out by the Respondent to the requisite standard. Rather, I find that it was most likely that one of the earlier melanomas excised from the Applicant was the cause of his present condition. I make this finding for the reasons given below.
First, the evidence before me is that the melanoma excised from the Applicant in 2015 was only “Level 1”.[35] I take this classification to mean that it was, at that stage, of the lowest classification of growth or manifestation. By the time of that excision, the Applicant’s malignant metastatic melanoma had already been diagnosed.[36] I have difficulty with the assertion that a low-grade (albeit malignant) melanoma that was excised in August 2015 could have, at or around the same time, caused a significant metastatic growth. To make such a finding, as the Respondent wishes me to do, would be to draw a long bow indeed.
[35] See Exhibit 1, Applicant’s SFIC, p 12, [130(ee)].
[36] Exhibit 9, T-Documents, T 44, p 1068.
On the other hand, there were at least five malignant melanomas that the Applicant had excised between 2004 and 2011. One of these was (1) excised in May 2011, which is a little over four years before the metastatic condition was diagnosed (and so was temporally close to the start of the Applicant’s present condition), and (2) located in the left arm, which of course is physically proximate to the left shoulder, which is where the Applicant’s present metastasised condition is located. Additionally, the evidence is that the malignant melanoma excised from the Applicant’s right thigh in 2004 was both a “Level 5” melanoma,[37] and, on Dr Wagner’s oral evidence, showed signs of lymphatic spread.[38]
[37] Ibid.
[38] Transcript 31/07/2017, p 61.
I note that neither Professor Fox nor any other medical evidence bar Dr Wagner’s provided an opinion as to which melanoma was most likely to have been the progenitor of the Applicant’s metastatic malignant melanoma condition.
I therefore find, on the balance of probabilities, that the cause or progenitor of the Applicant’s present metastatic malignant melanoma was one of the malignant melanomas which were excised from him in the period 2004-2011, and which were all covered by the expression “solar induced skin disease” as used in the 2013 decision. I make this finding because:
(a)there is no direct or firm medical evidence linking to the Applicant’s present condition one melanoma over the other;
(b)the medical evidence in the form of the opinions of Dr Wagner and Professor Fox supports the notion that one of his already-diagnosed melanomas is the most likely cause of his metastatic condition;
(c)there is no medical evidence supporting the contention that the 2015 melanoma was the cause of the Applicant’s metastatic condition, while the potential of the cause being the 2011 melanoma in the Applicant’s arm was directly put to Dr Wagner, who favoured that likelihood;[39]
(d)the more compelling circumstantial evidence supports the inference that one of the melanomas excised in 2004-2011 was the cause rather than the 2015 melanoma; and
(e)the malignant melanomas excised in 2004-2011 were both within contemplation of the parties and of the Tribunal as being constituent elements of “sun induced skin disease” in the 2013 decision.
[39] Ibid, pp 59-60.
The upshot of this finding is that neither of the Respondent’s first two arguments relating to whether the issue in the present case is the same as that considered in the 2013 decision can be accepted. To use an analogy, the best view of the evidence before me is that the Applicant’s metastatic malignant melanoma falls under the umbrella of the phrase “sun induced skin disease” as used in the 2013 decision as it was caused by or had as its progenitor one of the melanomas excised from the Applicant in 2004-2011.
I will now address the Respondent’s third argument: that the Applicant’s present condition should, on proper construction of the High Court’s decision in Canute, be considered a separate injury or condition to his already-accepted malignant melanomas, and so warrants fresh consideration.
The essence of the Respondent’s argument on this point is that the metastasised malignant melanoma from which the Applicant presently suffers is a “secondary condition” that has “gone through a chain” of causation, and so, following Canute, warrants its own fresh consideration.[40]
[40] Transcript, 10/08/2017, pp 202-203.
The Applicant, conversely, argues that the Applicant’s metastatic melanoma is a further impairment arising from the same disease – the “sun induced skin disease” – not a secondary condition to it.[41] The essential point of this is that it represents a shift in impairment of the Applicant arising from the exacerbation of the existing and accepted condition.
[41] Exhibit 3, Applicant’s Reply to Respondent’s SFIC, [5].
On the medical evidence presently before me, it appears uncontentious that the history of the Applicant’s metastasised malignant melanoma condition is thus:
(a)it started with a malignant melanoma. While the precise melanoma is unknown, I am reasonably satisfied, as per above, that it was one of the melanomas that was excised from the Applicant during the period 2004-2011 and which are covered by the phrase “solar induced skin disease” as used in the 2013 decision;
(b)cancer cells from that melanoma, in the words of Professor Fox, “migrated before it was cut off”;[42]
(c)via these cells, the cancer travelled to the Applicant’s lymph nodes;[43] and
(d)from the Applicant’s lymph nodes, the cancer cells spread and eventually formed the axilla tumour from which he now suffers, and continue to metastasise.
[42] Transcript, 02/08/2017, p 142.
[43] Ibid.
Thus, Professor Fox concluded that the Applicant’s present condition “is due to original skin disease”.[44] When essentially the same story of progression was put by Counsel for the Respondent to Dr Wagner, he agreed that such a process explained the Applicant’s present condition.[45]
[44] Ibid.
[45] Transcript, 31/07/2017, p 59.
The question for me, then, is how to characterise the Applicant’s present condition in light of the above history. From this history, it is clear to me that this case can be differentiated from that of Canute. In that case, the applicant suffered a back injury and subsequently acquired an adjustment disorder (a mental health condition) due to the pain from that injury and the High Court determined that those two conditions should be considered as separate injuries. Crucially, the adjustment disorder was quite clearly a separate condition from the back injury, but was still caused by the back injury. The Respondent contends that, similarly, the Applicant’s metastatic malignant melanoma is an entirely separate injury from his earlier malignant melanoma conditions, liability for which was accepted under the banner of “sun induced skin disease”.
Respectfully, such an argument does not square with the medical evidence presently put before the Tribunal. Here, the evidence is, essentially, that the excision of at least one of the melanomas was not complete, even if a mere couple of cells remained. Thus, the Applicant has continued to suffer from malignant melanoma since that time, even though it had every appearance of having been treated by the excision. The best construction of the Applicant’s present condition, then, is not as a secondary condition that has developed due to his earlier melanomas, but rather as a continuation of one of his earlier melanomas.
While this is causative in the most literal sense, the link is significantly shorter and of a different nature to that in Canute: it is not a link between two otherwise separate conditions caused by the same event, but rather the same disease causing different symptoms. I therefore reject the Respondent’s argument that, per Canute, the Applicant’s metastatic malignant melanoma is a secondary condition to his melanoma conditions. Rather, the best view of the evidence is that it is the same disease as that for which the Respondent accepted liability in the 2013 decision. This third argument raised by the Respondent therefore can go no further, and cannot be accepted.
The above consideration has led me to the conclusion that the best view of the evidence presently before me is that the Applicant’s metastatic malignant melanoma falls under the umbrella of “sun induced skin disease” per the 2013 decision. Consequently, I find that the issue of whether the Applicant’s employment contributed to in a material way his condition is the same in the present case as it was in the 2013 decision. The necessary precondition to the implementation of the Matusko methodology has therefore been met. I will now address whether the analogue of issue estoppel established in that decision should apply.
Should the Respondent be prevented from re-litigating this issue?
As noted above, once it has been established that an issue in a matter is the same as one that has been previously decided, the presumption that matters should not be allowed to be re-litigated arises. This presumption is neither final nor definite. Rather, the Tribunal must then turn to determining whether its discretion to allow for re-litigation should be utilised.
While the list of reasons for allowing a matter to be re-litigated is non-exhaustive, the parties in the present matter have relied on the list provided in Matusko:
(i) where there is a different decision,
(ii) where there is clear legislative intent,
(iii) where the reconsideration decision is not final,
(iv) where there has been a change in circumstances or fresh evidence, or
(v) where justice to the parties requires a departure from the general rule.[46]
[46] Re Matusko and Australian Postal Corporation [1995] AATA 14 at [33(c)].
I will address each of these matters in turn.
The Applicant contends that the question of whether there is a different decision is not relevant here as the issues at the heart of each decision are the same.[47] Conversely, the Respondent submitted that, due to the specific nature of the question that is presently before the Tribunal, it is being asked to review a decision that is fundamentally different to the one that was reviewed in the 2013 decision.[48]
[47] Transcript, 10/08/2017, pp 190-191.
[48] Ibid, p 206.
It is clear on the facts of this case that I am being asked to review a ‘fresh’ decision that is entirely separate to the one that was affirmed by the 2013 decision. However, I do not consider that a sufficiently compelling reason to overcome the general policy incentive not to allow for matters to be re-litigated. Indeed, I am inclined towards the Applicant’s perspective that, in cases of issue estoppel or its analogues, the mere fact there is a different decision under review in the latter case does not mean an issue determined in the former should be reopened. Thus, while I do recognise that a different decision is under review to that being reviewed in the 2013 decision, that does not take the Respondent very far in its attempts to re-litigate this issue.
With respect to the second reason, that of a clear legislative intent allowing for re-litigation, the Respondent relied on the decision of the Full Court of the Federal Court in Telstra Corporation v Hannaford (“Hannaford”),[49] which described the legislative intent underlying the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”).[50] In particular, Counsel for the Respondent relied on Conti J’s statement that:
…the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act, and also under ss 21 and 27 of the SRC Act, where the determination of the first instance decision-maker (here of course Telstra) made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT. The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) ‘[s]ubject to this Part...’ are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.[51]
(emphasis added)
[49] [2006] FCAFC 87.
[50] Transcript, 10/08/2017, p 206.
[51] Telstra Corporation v Hannaford [2006] FCAFC 87, [57].
The conclusion the Respondent sought to draw from this was that unless a subsequent issue is on all fours with one that had been previously determined, “the intent seems to be that every party should have its day in court”.[52]
[52] Transcript, 10/08/2017, p 206.
The Applicant’s contention in response to this was, essentially, that there is no express provision in the Act that evidences that an issue estoppel may not apply, and so there is no legislative intent that it does not.[53] With respect, this submission misconstrues the concept of legislative intent. As the above passage from Hannaford illustrates, an express provision as envisaged by the Applicant is not necessary for there to be sufficient legislative intent to allow for re-consideration of issues.
[53] Ibid, p 191.
However, there is a difference between having a statutory scheme of “progressive and evolving decision-making”,[54] and an automatic restriction on issue estoppel or its analogues. Indeed, in Quinn and Australian Postal Corporation,[55] it was found that there should be a “discontinuity between the applicant’s current symptoms and the symptoms for which liability has previously been determined” before the Tribunal can reconsider a matter it has previously determined.[56] It seems to me that the reference to “progressive and evolving decision-making” in fact means the Tribunal or primary decision-maker should, under the under the SRC Act, keep its mind open to such a “discontinuity” arising, or on the other hand to an exacerbation or diminution of an applicant’s symptoms or their functional effect. To my mind, this does not preclude the application of issue estoppel or its analogues for questions of initial liability under s 14 of the SRC Act or, here, under s 26 of the Act.
[54] Telstra Corporation v Hannaford [2006] FCAFC 87, [57].
[55] [1992] AATA 668.
[56] Ibid at [22].
In Hannaford, the Full Court of the Federal Court proceeded on the basis that there had been no change in the acceptance of “s 14 liability” (i.e. overall liability for that injury or disease) under the SRC Act.[57] It therefore seems that the point of Hannaford was more that an acceptance of liability at an initial level for an initial injury does not lock the decision-maker into finding that the applicant continues to suffer from an injury or, on the other hand, that they are more impaired than they once were and so are entitled to a higher rate of compensation.
[57] Telstra Corporation v Hannaford [2006] FCAFC 87, [57].
Consequently, I am satisfied that the present case can be differentiated from that of Hannaford. The issue the Applicant contends should not be re-litigated goes to the question of initial liability, analogous to “s 14 liability” under the SRC Act as discussed in Hannaford. It does not relate to an “adjustment… to be made subsequently to the determination of s 14 liability”.[58] The significance of this is that Hannaford therefore does not stand in the way of issue estoppel or its analogues applying to questions of initial liability, even though it may limit the scope of that doctrine or of Matusko when it comes to subsequent decisions which relate to the “ongoing review of relief or entitlements”.[59] Thus, Hannaford does not necessarily stand for the proposition that there is a clear legislative intent that issues of initial liability – as distinct from liability for specific legislative payments for which liability under s 14 of the SRC Act or s 26 of the Act is a pre-condition – should always be re-litigated.
[58] Ibid.
[59] Ibid.
I note that the legislation presently at hand is distinct but similar to the SRC Act, which was considered in Hannaford. It is clear from the second reading speech of the Seafarers Rehabilitation and Compensation Bill 1992 that the present legislation was designed to “replace the outdated and inadequate Seamen’s Compensation Act 1911” and instead adopt an approach that “is consistent with the unitary compensation structure applying across public and private sector employment in all the state and territory workers compensation schemes.”[60] Essentially, the Act was designed to have a similar application as that of the SRC Act, and the Act contains parallel provisions to those in the SRC Act considered by the Full Court of the Federal Court in Hannaford.
[60] Second Reading Speech: Seafarers Rehabilitation and Compensation Bill 1992.
However, while there is a similarity on its face, the Act is not identical to the SRC Act. Of some significance is the absence of the words “[s]ubject to this part”, which Conti J emphasised in Hannaford,[61] and the further absence of the words “in accordance with this Act” from s 26 of the Act. Without those qualifying words, it seems that liability under s 26 of the Act is of a subtly different nature to liability under s 14 of the SRC Act. This difference points away from there being clear legislative intent supporting re-litigation of issues in relation to that provision that have already been determined.
[61] Telstra Corporation v Hannaford [2006] FCAFC 87, [57].
In consideration of the above, I am not satisfied that any reliance by the Respondent on Hannaford or on the legislative intent underlying findings of liability under s 26 of the Act is a sufficiently good reason to allow for this issue to be re-litigated. As was implicit in the decision of President Kerr and Deputy President Bean in Wiegand and Comcare,[62] the mere fact that it is legislatively open – as it was there under the SRC Act – for an issue to be re-litigated does not mean that it necessarily should be.[63] I therefore find that this reason is insufficient on its own to activate the Tribunal’s discretion to allow for this issue to be re-litigated.
[62] [2014] AATA 413.
[63] Ibid, [23]-[24].
I now turn to the third of the Matusko reasons: “where the reconsideration decision is not final”.[64] The Respondent, appropriately in my view, did not seek to rely on this reason. I do not find it a persuasive reason for re-litigating this issue.
[64] Re Matusko and Australian Postal Corporation [1995] AATA 14 at [33(c)(iii)].
The crucial issue on which the Respondent sought to rely was the fourth of those discussed in Matusko: “where there has been a change in circumstances or fresh evidence”.[65] The crux of this submission is that the opinions provided by Professor Fox, and the study on which he based them, “were not in the possession or knowledge of the respondent at any time prior to the 2 April 2013 decision, nor were they before the Tribunal.”[66] Consequently, the Respondent argued, this evidence – which it says undermines the link between the Applicant’s condition and his employment – is sufficient to allow for that issue to be re-litigated. At the hearing, the Respondent also submitted that there had been a change in the Applicant’s evidence to the effect that he now refutes being sunburned while at sea, and that he tans.[67]
[65] Ibid at [33(c)(iv)].
[66] Exhibit 2, Respondent’s SFIC, [37]-[39].
[67] Transcript, 10/08/2017, p 217.
Counsel for the Applicant had two main responses to this submission. First, he contended that, as Professor Fox could have given evidence in 2013, but was not called by the then-respondent, the evidence he has now given is not ‘new’. Secondly, he sought to clarify the Applicant’s evidence by saying that the Applicant only resiled from the proposition that he had been blistered, but maintained that his skin had been reddened by the sun, which he said still meets the definition of sunburnt.[68] I note that Counsel for the Applicant accepted that the Vuong study was new evidence.
[68] Ibid, pp 220-221.
The Respondent did not contend that Professor Fox could not have formed or given his opinion without the aid of the 2013 Vuong study.[69] Indeed, the Applicant pointed out that Professor Fox did not rely on that study for the purposes of his written report, either.[70] The Respondent did assert, however, that the interpretation of the Vuong study provided by Professor Fox does constitute new evidence.[71] It is chronologically impossible for Professor Fox to have interpreted the study before the 2013 decision because the Vuong study had yet to be published at the time of the 2013 decision. That is quite clearly the case. However, the proposition this study is being used to support – that occupational sun exposure decreases the likelihood of a person developing malignant melanoma – is not a novel one. One need look no further than the second sentence of the Vuong study’s introduction to find this:
Previous studies have shown that while sunburn and intermittent sun exposure are associated with increased risk of melanoma, there is no, or an inverse, association between occupational (more continuous pattern) sun exposure and melanoma risk.[72]
[69] This study can be found in Exhibit 9, T-Documents, T 41, pp 1042-1047.
[70] Exhibit 3, Applicant’s Reply to Respondent’s SFIC, [12].
[71] Transcript, 10/08/2017, p 207.
[72] Exhibit 9, T-Documents, T 41, p 1042.
The authors of the Vuong study then proceeded to cite four prior papers published in the period 2005-2009 to support this proposition.[73] Professor Fox himself referenced papers from 1985 and 1997 to support his theory.[74]
[73] Ibid, pp 1042, 1046.
[74] Ibid, T 39, p 1037.
There can be little doubt that this evidence is ‘new’ in the most literal sense of the word. Professor Fox did not give evidence or his opinion in the 2013 decision, the Vuong paper had yet to be published, and the Applicant had not yet had the opportunity to give oral evidence at the hearing. The question, then, is how persuasive this evidence is as a reason to re-litigate the issue. For the reasons that follow, I do not consider it a persuasive reason to allow for re-litigation.
Looking first to the evidence of Professor Fox, although the Respondent is right in calling it ‘new’ or ‘fresh’ evidence, I am troubled by the fact it could have been called by the then-respondent in the prior Tribunal proceedings. It seems to be evidence that could have been obtained with reasonable diligence on the part of the then-respondent in those earlier proceedings. That is not to say that Professor Fox’s evidence is not persuasive or that it is insignificant for this case, because it is clearly relevant and goes to the heart of the causation and liability issue. However, this utility should be weighed against the fact that, with reasonable diligence, it could have been in the then-respondent’s knowledge at the time of the 2013 decision. While this does not prevent me from considering this evidence as ‘new’, I do find that it prevents this evidence from being a strong reason to allow for this issue to be re-litigated.
I have come to a similar conclusion with respect to the Vuong study and Professor Fox’s opinion thereof. That study could not have been before the Tribunal when it made the 2013 decision, and thus neither could the evidence Professor Fox gave about it. However, its conclusion is not – by its own admission – novel. Indeed, the authors of the Vuong study noted as much in the second sentence of its introduction, citing four separate papers supporting their theory regarding occupational exposure. Thus, while this evidence is in the strictest sense new, evidence like it could have been obtained with reasonable diligence by the then-respondent at the time of the 2013 decision. Again, this means the evidence around the Vuong study is not a strong reason for this issue to be re-litigated, even though it could otherwise be important to this case.
The final thread of evidence the Respondent sought to rely on was the volte-face it claimed the Applicant perpetrated in his oral evidence. Essentially, the Respondent is asserting that the Applicant shifted his position in his oral evidence when he said he:
Never got sunburnt or blistered while going to sea. It was only as a child I got sunburnt and blistered; not in my occupation as a seaman.[75]
[75] Transcript, 10/08/2017, p 210.
Counsel for the Respondent noted that in re-examination, the Applicant clarified his position by saying that he did not consider redness caused by the sun to be sunburn. Further, he stated:
What I call sunburn is that it really aggravates the skin and you try to do something to relieve the itchiness or burning sensation.[76]
[76] Ibid, p 213.
However, Counsel for the Respondent pointed to other inconsistencies in the Applicant’s evidence around this, and further noted that the Applicant appeared to assert that he had tanned.
I do not consider that this evidence, to the extent that it is new, is particularly persuasive as a reason why this issue should be re-litigated. The most significant impression I have received from this evidence is that the Applicant suffers from some confusion about what constitutes sunburn. Again, had the Respondent not agreed to the terms that formed the 2013 consent decision, it would have, with reasonable diligence, been able to extract this evidence. Even if that is not the case, I do not consider the evidence as being of such strength as to, alone, warrant the re-litigation of this issue.
Considering the entirety of the arguments raised by the Respondent regarding the new evidence, it does constitute a reason – albeit not a particularly persuasive one – in favour of the re-litigation of this issue.
I now turn to the final reason provided in Matusko – justice to the parties. Counsel for the Applicant emphasised the fact the Applicant is “an 82-year-old man with a terminal condition”,[77] and argued that allowing the issue to be re-litigated “would impose an unjust burden on the applicant during the last months of his life.”[78] Meanwhile, the Respondent argued that justice to the parties required the Respondent to be allowed to meet the Applicant’s case on its merits.[79]
[77] Exhibit 1, Applicant’s SFIC, [96].
[78] Ibid.
[79] Exhibit 2, Respondent’s SFIC, [40].
Taking these arguments, and the totality of the evidence before me, into consideration, I find that justice to the parties does not require a departure from the general rule. It was within the Respondent’s power to run the case it has run before me at the time of the 2013 decision. It could have sought medical opinion like that of Professor Fox, or indeed approached him at that time. Similarly, as the Vuong study admits, there were medical opinions available at the time of the 2013 decision that support the proposition upon which the Respondent now seeks to rely. Rather than running that case to hearing, the then-respondent (to which the present Respondent is the legal successor) instead came to terms with the Applicant and entered into a consent decision with him: the 2013 decision.
Now, the Applicant is dying of a condition which was covered by the 2013 decision and the Respondent seeks to resile from its previous position to avoid liability for the Applicant’s condition. To allow it to do so would be, as it were, to pull the rug out from under the Applicant. To my mind, this would be a great injustice to him, given the fact the then-respondent could have, but failed to, run the case it sought to run before me before the Tribunal in 2013. I recognise that this may have significant financial repercussions for the Respondent. However, this is a predicament of the Respondent’s making. It already had the chance to meet the Applicant’s case on the merits, but declined to do so. This consideration therefore weighs heavily against allowing this issue to be re-litigated.
In consideration of the totality of the above, although there is a reason to allow for this issue to be re-considered, that reason is grounded upon evidence the then-respondent could have, with reasonable diligence, attained or approximated when it ran the case leading to the 2013 decision. Further, that reason is counterbalanced by the injustice caused by allowing the Respondent a second bite of the cherry in circumstances where the Applicant is substantially more ill, albeit from the same condition. To my mind, that would be an impermissible use of the Tribunal’s discretion to allow for an issue to be re-litigated. Consequently, I decline to use the Tribunal’s discretion, per the Matusko methodology, to allow for this issue to be re-litigated.
I will therefore proceed on the basis that the Respondent’s present condition was contributed to, to a material degree, by his employment. I will now turn to assessing the Applicant’s degree of permanent impairment, and assessing his non-economic loss.
The degree of permanent impairment
Under s 39(5) of the Act, the degree of an applicant’s permanent impairment must be determined under the provisions of the “approved Guide”, here the Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1) (“the Guide”). As the Respondent correctly submitted, the degree of permanent assessment must be calculated in accordance with the Guide, unless an assessment cannot be made pursuant to it.[80] Under the Guide, for conditions such as cancer, “[a]ssessments should be made of the impairment suffered in each of the affected body parts and systems and combined using the combined values chart in Appendix 1”.[81]
[80] Ibid, [62].
[81] The Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1), p 10.
The Applicant contends that the Guide should not be used to assess the Applicant’s condition as the Guide “makes no reference to melanoma or its consequences”.[82] However, the Guide is ultimately about impairments in body parts and systems. As the Applicant has not put on any evidence which specifically states which body parts or systems in respect of which he seeks to obtain permanent impairment compensation, it would be irresponsible, on the evidence presently before the Tribunal, for me to make a finding regarding the Applicant’s degree of permanent impairment. The appropriate course of action is for me to remit this question for reconsideration by the Respondent. I so do.
[82] See Exhibit 3, Applicant’s Reply to Respondent’s SFIC, [30].
Non-economic loss
The apportionment of non-economic loss has been agreed by the parties – and by their medical experts – at 47.3%.[83] This apportionment seems appropriate to me, particularly in light of the fact that both Professor Fox and Dr Wagner are in agreement about it.[84] I therefore find that the Applicant’s non-economic loss should be calculated at 47.3%.
[83] See Exhibit 3, Applicant’s Reply to Respondent’s SFIC, [34]; Exhibit 2, Respondent’s SFIC, [61].
[84] See Exhibit 9, T Documents, T 39, p 1039 and T 44, p 1070, respectively.
CONCLUSION
In summary of the above, I am reasonably satisfied that the metastatic malignant melanoma from which the Applicant presently suffers is related to the “sun induced skin disease” for which the then-respondent accepted liability in the 2013 decision. Consequently, and with reference to the Matusko methodology, the general rule that a party should be prevented from re-litigating a matter should hold. The upshot of this is that I must find that the Applicant’s employment contributed in a material degree to his metastatic malignant melanoma condition. Consequently, the Respondent is liable to the Applicant for compensation arising out of this condition.
As the parties did not put on sufficient evidence for me to appropriately calculate the Applicant’s degree of permanent impairment, I remit that question back to the Respondent for calculation. Although I have found that the Applicant’s non-economic loss should be calculated at 47.3%, I also remit the calculation of the payment arising from that to the Respondent.
DECISION
The Tribunal sets aside the decision under review and in its place determines that the Applicant’s malignant metastatic melanoma was contributed to in a material degree by his relevant employment and that non-economic loss should be calculated at 47.3%. The Tribunal sets aside the decision under review with respect to the Applicant’s degree of permanent impairment and remits it, and the calculation of amounts payable to the Applicant, for reconsideration by the Respondent.
I certify that the preceding 82 (eighty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
.......................[sgd].................................................
Associate
Dated: 2 May 2018
Dates of hearing: 31 July 2017, 1-2, 10, 15 August 2017 Date final submissions received: 23 February 2018 Counsel for the Applicant: Mr Travis O'Brien Solicitors for the Applicant: Turner Freeman Lawyers Counsel for the Respondent: Mr Joseph Lenczner Solicitors for the Respondent: Holman Frederick Willian
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