Tran v Victorian WorkCover Authority
[2014] VCC 1210
•4 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE DAMAGES AND COMPENSATION LIST | Revised Not Restricted Suitable for Publication |
WORKCOVER DIVISION
Case No. CI-14-01039
| ANH TRAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8, 9 July 2014 | |
DATE OF JUDGMENT: | 4 August 2014 | |
CASE MAY BE CITED AS: | Tran v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1210 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Disease – adenocarcinoma – period of employment as a welder – claim made for statutory entitlements pursuant to s86 – identification of relevant disease – nature of employment – expert evidence – “significant contributing factor” – Accident Compensation Act 1985 (6th reprint).
Legislation Cited: Accident Compensation Act 1985 (6th reprint).
Cases Cited:ICI Australia Operations Pty Ltd (now known as Orica Australia Pty Ltd) & Anor v WorkCover Authority of New South Wales [2004] NSWCA 55; Blatchford v Staddon & Founds [1927] AC 461; Smith v Mann (1932) 47 CLR 426; Commonwealth v Bourne (1960) 104 CLR 32; Commonwealth v Thompson (1960) 104 CLR 48; Hopwood v Textile Paper Tube Co Ltd [1946] 1 All ER 618; Connair Pty Ltd v Frederiksen (1979) 142 CLR 485; Accident Compensation Commission v Botezatu [1993] 1 VR 304; Stevens v Alcoa of Australia Ltd [2002] VCC 7; Spina v Galaxy Paints Pty Ltd & Ors [2008] VCC 1173; Evers v Racecar Preparation and Management Pty Ltd [2013] VCC 517; Popovski v Ericsson [1998] VSC 61; Allman v Major Finance & Engineering Pty Ltd Unreported, County Court, 14 March 1997; Ericsson (Australia) Pty Ltd v Popovski (2000) 1 VR 260; S v Crimes Compensation Tribunal [1998] 1 VR 83.
Judgment: Plaintiff entitled to compensation pursuant to s86 in accordance with the act.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Keogh SC with Mr A Dimsey | Maurice Blackburn |
| For the Defendant | Mr T Casey QC With Mr G Worth | Russell Kennedy |
HIS HONOUR:
Introduction
1 The plaintiff claims an entitlement to statutory compensation in accordance with the provisions of s86 of the Accident Compensation Act 1985 (“the Act”). The genesis of his claim relates back to employment as a welder for approximately a three and a half year period in the 1990s.
2 The proceeding comes to the Court for determination by reason of the defendant’s rejection of a claim for compensation first made by the plaintiff on 3 October 2012.[1] At the time the claim was sub mitted the plaintiff had been diagnosed with lung cancer and was receiving treatment. Following the rejection of the claim by the defendant, it was referred to the Accident Compensation Conciliation Service and a Conciliation Outcome Certificate was issued on 21 December 2012 in accordance with the provisions of s56(8) of the Act.[2]
[1]Exhibit C, pages 1297-1298
[2]Exhibit C, page 1305
3 The initial claim referred to Fencing Design Pty Ltd as the relevant employer. As emerged before me, the plaintiff had initially been employed by NA & NV Graham Pty Ltd at a factory in Nantilla Road, Clayton South, between March 1993 until the business was bought by Fencing Design Pty Ltd in September 1995. The plaintiff continued to work as a welder at the premises until leaving in June 1996 to pursue a career in other areas. Although no issue is raised by the defendant in its defence, it was perhaps understandable that the plaintiff should lodge a further claim form naming the earlier employer. This was in fact done in May 2014. For completeness I should note a claim for impairment benefits made in January 2013 which was also rejected.
4 Liability is said to attach to the defendant by operation of s86 of the Act. It was agreed before me that the relevant form of the Act is to be found in reprint no.6 which was applicable at the time the plaintiff was employed by each employer.
5 Without descending into the complexities of the legislation at this stage, suffice to say that the plaintiff is required to prove that the disease suffered by him attracts compensation on the basis that the disease is due to the nature of the employment in which he was relevantly engaged, and employment of that nature was a significant contributing factor at any time prior to the date of the plaintiff’s incapacity. The essential issues between the parties concern the following:
(i)What is the actual disease suffered by the plaintiff, is it properly described as lung cancer or adenocarcinoma?
(ii)Does the evidence led in this case satisfy the factual test of “significant contributing factor” in that it may be said more likely than not that the nature of the employment as a welder engaged in by the plaintiff is more likely to expose the plaintiff to a risk of the development of the disease than in other types of employment or occupation?
6 In this case the initial claim for compensation was not submitted until October 2012, more than 16 years since the plaintiff had ceased employment as a welder. Further, there was no evidence led nor any argument advanced on behalf of the plaintiff suggesting that actual causation of the plaintiff’s disease could, as a matter of probability, be directly linked to particular aspects or incidents occurring in his employment between 1993 and 1996. Indeed, the very existence of s86 and its earlier antecedents acknowledge the inevitable and often insurmountable problems of proof that would confront a claimant seeking to prove entitlement as though the disease had manifested itself in much the same way as a frank, organic injury.
7 I should acknowledge considerable gratitude to senior counsel for both parties who dealt with the legal framework and the evidentiary material in an exemplary manner consistent with the obligations found in the Civil Procedure Act 2010.
8 I set out the relevant sections of the Act before turning to matters of evidence relevant to the resolution of this proceeding. In s5:
“disease” includes –
(a)any physical or mental ailment, disorder, defect or morbid condition whether of sudden or gradual development; and
(b)the aggravation, acceleration, exacerbation or recurrence of any pre-existing disease;
…
“injury” means any physical or mental injury and without limiting the generality of the foregoing includes –
(a) industrial deafness;
(b)a disease contracted by a worker in the course of the worker’s employment whether at or away from the place of employment and to which the employment was a significant contributing factor; and
(c)the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the worker’s employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration.”
Section 5(1B):
In determining for the purposes of this Act whether a worker’s employment was a “significant contributing factor” to an injury –
(a)the duration of the worker’s current employment; and
(b)the nature of the work performed; and
(c)the particular tasks of the employment; and
(d)the probable development of the injury occurring if that employment had not taken place; and
(e)the existence of any hereditary risks; and
(f)the life-style of the worker; and
(g)the activities of the worker outside the workplace –
must be taken into account.
Further in s82(1):
“If there is caused to a worker an injury arising out of or in the course of any employment and if the worker’s employment was a significant contributing factor the worker shall be entitled to compensation in accordance with this Act.”
And s86:
“Compensation for disease due to employment
If –
(a)a worker is suffering from a disease within the meaning of section 5 which incapacitates the worker from earning full wages at the work at which the worker was employed; or
(b)the death of a worker is caused or was materially contributed to by any disease –
and the disease is due to the nature of any employment in which the worker was employed and if employment of that nature was a significant contributing factor at any time prior to the date of incapacity, the worker or the worker’s dependants shall be entitled to compensation in accordance with this Act as if the disease were an injury.”
9 The legislation provides a pathway to permit entitlement to compensation in relation to a disease in circumstances where the proof relates to the increased risk of such a disease being contracted rather than actual proof of causation as would otherwise be required. It is appropriate in a case, such as the present one, to review authorities prior to setting out the evidence and proceeding to analyse the particular circumstances of Mr Tran’s claim.
The legal framework
10 Most helpfully in submissions both counsel agreed with the general legal framework to be applied in this case. Mr Casey QC, who appeared with Mr Worth for the defendant, relied upon an authority of ICI Australia Operations Pty Ltd& Anor v WorkCover Authority of New South Wales.[3] Although this was a case concerning asbestos exposure, the court was required to consider legislation incorporating the words “in employment to the nature of which the disease was due” in its deliberations. I was referred to a number of earlier authorities commencing with Blatchford v Staddon & Founds[4] as supporting a proposition that “the nature of employment test required him (the trial judge) to consider whether the nature of Mr Brazier’s employment exposed him to a risk of contracting the actual disease from which he suffered”.[5] It was clear from the authorities considered in ICI Operations, that Australian courts had embraced the reasoning in Blatchford consistently as applicable to corresponding Australian legislation. I was referred to Smith v Mann.[6]In that case it was stated:
“The diseases dealt with are those which are contracted by a gradual process and are due to the nature of the employment … it seems proper to understand the provisions in the first paragraph as confined to employers who do employ or who have employed the worker in an employment to the nature of which the disease is due, but any further restriction upon the class of employment or any further requirements as to causation seems unwarranted.”[7]
[3][2004] NSWCA 55
[4][1927] AC 461
[5]ICI Operations Pty Limited & Anor v The WorkCover Authority of NSW op cit at [192]
[6](1932) 47 CLR 426
[7]Smith v Mann op cit per Dixon CJ at 449
11 Reference was also made to the Commonwealth v Bourne.[8] Once again the Blatchford principle was affirmed. Dixon CJ stated:
“I do not think the expression in s10(1) ‘due to the nature of employment in which the employee is engaged’ covers an employment which has no particular tendency to give to a disease, contribute or conduce it or accelerate it and no incident, adjunct or quality of which involves those employed therein in any particular liability to the contraction of a disease or to the aggravation or acceleration of its course. The phrase ‘nature of the employment’ is, of course, no novelty in this concept in the law of employer’s liability … in the provisions to which the use of the expression is to be traced the purpose of using the words ‘due to the nature of the employment’ and not ‘due to the employment’ was to provide for ready recourse by the employee to the latest employer who employed him in work to the nature of which his complaint was due independently of the question whether working for that particular employer contributed at all to his condition or aggravated it or accelerated its development;”[9]
[8](1960) 104 CLR 32
[9]ibid at 38
12 Similarly in the Commonwealth v Thompson[10] where Windeyer J stated:
“For a disease to be due to the nature of the employment in which the employee was engaged, the employment must be such that it ordinarily tends to cause that disease. That is to say, it must be a property of that form of employment to produce the disease, so that contracting the disease can be said to be a natural result of being engaged in that employment.”[11]
[10](1960) 104 CLR 48
[11]ibid at 56
13 There was no dispute that proof of entitlement based upon a claim made in accordance with s86 of the Act requires proof on the balance of probabilities. In this regard the English authority in Hopwood v Textile Paper Tube Ltd[12] provides assistance. This case was again referred to in the ICI Operations authority to which I have earlier referred, “The worker was required to prove, on the balance of probabilities, that the employment in which he had been engaged for in the preceding 12 months was of such a nature to ‘cause the particular disease from which he was suffering’, although he was not required to prove ‘that the disease in fact resulted from his employment with any particular employer’”.[13] This test was approved by the High Court in Connair Pty Ltd v Frederiksen.[14] In that case it was stated:
“Once the workmen proved that the employment was ‘of a nature to cause the particular disease’ from which he was suffering, he was not required to prove that the disease in fact related from his employment with any particular employer.”[15]
[12][1946] 1 All ER 618
[13]ICI Operations Pty Limited & Anor v The WorkCover Authority of NSW op cit at [139]
[14](1979) 142 CLR 485
[15]Commonwealth v Bourne op cit per Gibbs J at 494
14 Reference was made by both senior counsel in closing submissions to the Victorian Court of Appeal decision of Accident Compensation Commission v Botezatu.[16] That case concerned a rubber worker who had contracted the disease of adenocarcinoma. The argument advanced on the appeal centred on the phrase “nature of any employment” with argument being advanced that s86 would only have application if the specific job being performed by the worker (in that case a machine operator on a bias cutting machine) could be shown to carry with it an increased risk of contracting the disease rather than that risk being proved as applicable to the more general category of workers employed in the tyre manufacturing industry. That argument was rejected by the Court with Ashley J stating:
“The ‘employment’ referred to in s86 is not simply a matter of job description. It encompasses, as the authorities show, the concept of process … the approach that the tribunal took to defining the ‘employment’ risk envisaged by s86 was in my opinion appropriate. That is, it defined a process giving rise to increased risks, whereby workers relevantly exposed could be readily identified.”[17]
[16][1993] 1 VR 304
[17]ibid per Ashley JA at 312
15 In a separate judgment Marks J stated:
“The judge was not compelled to treat the employment as merely that of a bias cutter or machine operator. He was entitled in the present case to consider that the employment was in the one establishment, to determine what the worker did that and the existence or otherwise of any relevant risk to which he was exposed.”
16 I was referred to three decisions of this court in relation to s86. In the first, Stevens v Alcoa of Australia Ltd.[18] His Honour Judge Hicks embarked on a comprehensive review of the authorities and concluded that the test required for application of s86 was as follows:
[18][2002] VCC 7
“To my mind based on the authorities that have been provided to me by the parties, at least what must be proven by the plaintiff on the balance of probabilities is:
(i) a special risk ie here contracting bladder cancer;
(ii) that such a risk does not have to be –
(a)a high risk;
(b)a common risk; or
(c)a unique risk.
However, the nature of ‘employment’ must create an additional and material risk (albeit not a high risk) over and above that of some other employment or daily activity.”
17 His Honour referred to Botezatu in concluding that the assessment of such a risk was a factual matter to be determined in the trial. “How the tribunal went about the finding and employment in terms of increased risk was a factual matter.”[19] And, “It is for the tribunal of fact to determine its own approach to questions of fact which may be different according to the circumstances”.[20]
[19]Accident Compensation Commission v Botezatu op cit per Ashley J at 312
[20]ibid per Marks J at 306
18 I was then referred to a decision of His Honour Judge Wischusen in Spina v Galaxy Paints Pty Ltd & Ors.[21] In considering the operation of s86 in that case His Honour referred to Botezatu stating:
“The Court considered the expression “the nature of any employment”, and held that the worker’s cancer was due to the nature of his (single) employment, though tobacco smoking was also a cause. As Marks J said in Botezatu at p.305:
‘The submission of Mr Gorton QC accepted the distinction which appears from the decided cases between an injury constituted by disease and a disease due to the nature of employment. It is not to the point that the distinction might not appeal to logicians. The law provides one and it is profound. In the latter case, it is sufficient that a connection exits between the nature of the employment and the disease which the worker actually contracted. It is not necessary to establish that the employment actually caused it. The resolution of any factual issue is governed by considering the employment of the afflicted worker and the risks to which he was exposed by its nature, that is, ‘in virtue of its tendencies, incidents or characteristics’: see Dixon CJ, at p39, in the Commonwealth v Bourne (1960) 104 CLR 32.’”[22]
[21][2008] VCC 1173
[22]ibid at [74]
19 Finally, I was referred to a decision of His Honour Judge Bowman in Evers v Racecar Preparation and Management Pty Ltd.[23] This case involved a motor racing mechanic who had contracted a particular form of leukemia. In that case, His Honour engaged on a very thorough review of the authorities and described the test for entitlement in these terms:
“The issue then becomes whether the nature of the plaintiff’s employment as a motor racing mechanic, involving as it did the exposure to benzene which has been described, gave rise to a significantly greater risk of him contracting the disease of APL than if he had not been employed as a motor racing mechanic.”[24]
[23][2013] VCC 517
[24]ibid at [140(e)]
20 I do note in this case that the form of s86 is far from identical in the various reprints of the Accident Compensation Act 1985 which were the subject of consideration in the three County Court authorities to which I have referred. Nevertheless, the basic principles remain clear. In the present case I must apply s86 as set out above (that is, reprint no.6). This version of s86, in addition to the requirement that the disease be due to the nature of the employment requires proof additionally “and if employment of that nature was a significant contributing factor at any time prior to the date of incapacity”.
21 The addition of the words “significant contributing factor” to the definition must be given a proper meaning. Both counsel agreed that the assessment of whether or not the test for significant contributing factor had been satisfied was a factual one. I was referred to the authority of Popovski v Ericsson.[25] In that case His Honour Ashley J considered the requirement for employment to be a “significant contributing factor” to injury. He discussed the matter at some length.[26] His Honour concluded that the statutory contribution required was best described in terms “of considerable amount or effect”, a phrase which had been adopted by Judge Strong in Allman v Major Finance & Engineering Pty Ltd.[27] In considering the test adopted by His Honour Judge Strong in Allman, Ashley J commented, “What amount or effect will be considerable in any particular case will, of course, be a matter for determination on the facts; the determination being ordinarily inviolable.”[28]
[25][1998] VSC 61
[26]ibid at [55] to [61]
[27]Unreported, County Court, 14 March 1997.
[28]Popovski v Ericsson at [61]
22 As to the statutory requirement for significant contributing factor to be determined, the legislation under consideration in the present case includes s5(1B) which mandates some seven matters which must be taken into account in such a determination:
“In determining for the purposes of this Act whether a worker’s employment was a “significant contributing factor” to an injury –
(a) the duration of the worker’s current employment; and
(b) the nature of work performed; and
(c) the particular tasks of the employment; and
(d) the probable development of the injury occurring if that employment had not taken place; and
(e) the existence of any hereditary risks; and
(f) the life-style of the worker and
(g) the activities of the worker outside the workplace –
must be taken into account.”
23 Insofar as the legal framework lends itself to summary formulation, the following principles can generally be stated:
(i)the plaintiff bears the burden of proving on the balance of probabilities that the nature of the particular employment is more likely to expose the worker to the contraction of such a disease than would be the case in other employment or non-employment related activities;
(ii)such proof must be sufficient that as a question of fact it satisfies the requirements of the definition of significant contributing factor as mandated in s.5(1B);
(iii)actual proof of causation of the disease by reason of the particular employment is unnecessary and irrelevant to the proof required by operation of s86.
24 Although I was not specifically taken to an argument to the Court of Appeal decision in Ericsson (Australia) Pty Ltd v Popovski,[29] I believe it is relevant to note that the Court of Appeal endorsed the primary judge’s view that the determination of “significant contributing factor” was a question of fact rather than one of law. “Whether the employment was a significant contributing factor was a question of degree, requiring an evaluation”.[30] Reference was also made in that passage to S v Crimes Compensation Tribunal.[31] In that case it was stated:
“Questions of degree and evaluation, on the facts as otherwise established, these are essentially questions of fact which are committed to the tribunal, and not to the court.”[32]
[29][2000] VSCA 52
[30]ibid at [24] per Brooking JA
[31][1998] 1 VR 83 at page 89 per Phillips JA
[32]ibid at page 89
The factual background
25 The evidence on behalf of the plaintiff was led from Mr Tran himself, Dr Robb, a treating general practitioner, Dr Roger Woodruff, a consultant oncologist, and Professor Timothy Driscoll, a consultant epidemiologist. Additionally a number of documents, to which I will refer, were tendered in evidence as Exhibits A to C.
26 The only oral evidence called by the defendant was from Professor Fox, a consultant in medical oncology and clinical haematology. Once again the defendant tendered a number of documents as part of its case. I will refer to these documents more particularly in analysing the evidence.
27 The factual background of this case is not particularly controversial but should be set out at least in summary form to assist in the analysis undertaken by me.
·The plaintiff was born in Vietnam in March 1960 and had been treated for what was thought to be tuberculosis as a very young child. He worked as a welder’s assistant in Vietnam in the ship building industry. This was arc welding not MIG welding.
·After spending approximately 13 months in a refugee camp in Thailand, the plaintiff came to Australia on 21 January 1988 settling in Melbourne.
·The plaintiff had commenced smoking in 1978 until ceasing in 2000. The evidence was of four to five cigarettes per day.
·After arriving in Australia the plaintiff did some work mainly as a process worker for a short time then studied English and accounting, graduating with an accounting qualification from Moorabbin TAFE in 1992. He was unable at that time to obtain work as an accountant and commenced work doing aluminium welding of ambulance roll cages and gas cylinders between November 1982 and March 1983.
·The plaintiff commenced with Graham Fencing using MIG welders to weld galvanised steel for fences in March 1993. In that employment he was doing regularly six days per week and was one of three welders. He worked eight hours per day during the week and a further eight hours every Saturday.
·The work was performed in a welding shop estimated at 20-25 metres long with three welding benches set up inside. He worked on the middle bench. There was a sliding door between five and eight metres long at the side. During the week there were another two welders. On the Saturday he would be working alone. He believed he was welding more quickly and produced two or three times more than other people.
·In doing the production work at this time it would take about 10 minutes to set up and 20 minutes to weld a particular piece of work.
·When he started working for Mr Graham there were no fans or extraction devices but the sliding door was always open in summer but not in winter. The welding work with galvanised welding created a very thick white smoke. When working for Mr Graham there were no masks available, he just used a welding helmet.
·During the winter, when the door was closed, it was full of fumes inside but the plaintiff was happy because he was not freezing. The white smoke in the factory made it a bit hard to see more than 5 or 10 metres (he described it as just like foggy early in the morning).
·Tables with exhaust fans were provided after he had worked there about a year and a half, shortly before Mr Johnston took over the business. The fans were so powerful that it would suck out all the gas and make the welding very difficult. It was also very noisy so it would be turned off.
·Mr Johnston took over the business in about the middle of 1995 and the plaintiff continued working until June or July 1996. He was provided with face masks by Mr Johnston. The fumes were just spreading around the whole factory, including the place where Mr Tran was working. The extractor fans were turned on sometimes.
·There were filters for the face masks but sometimes there was a delay in replacing them.
·The plaintiff started coughing approximately one or two years after he started working for Graham Fencing. The plaintiff had a rapid heartbeat and high blood pressure requiring treatment from a local doctor about one year after commencing for work.
·Between 1995 and 2001 the coughing would just come and a go. The plaintiff, after finishing with Graham Fencing, had worked in real estate for some years before setting up his own business in real estate.
·The plaintiff had seen a respiratory physician, Dr Farmer, in 2001 and was diagnosed as suffering from lung cancer in that year. He had surgery at Monash Hospital in late 2002 with part of the left lung being removed. The cancer returned to the left lung in 2006. The remainder of the left lung was surgically removed in May 2006.
·Further tests in 2010 and 2011 showed a recurrence of cancer in the right lung that was treated with drugs by Professor Solomon.
28 The plaintiff was cross-examined and the following matters were noted:
·After Mr Johnson took over the business from Mr Graham, the plaintiff was better protected from the fumes. He was provided with masks and filters were generally kept in the storeroom.
·When the extractor fans were installed (about 18 months after the plaintiff started) they initially caused a problem with the welding.
·With the MIG welder the stainless steel was just a piece of wire protruding from the welding rod.
·Mr Tran created his own welding platform on top of the table which fixed the problem and allowed him to use the extractor fan. He would always turn on the fan and wear a mask from that time.
·Once he started a job with the MIG welder he would hold the trigger for about 20 minutes until the job was finished. He confirmed a 10 minute set up and 20 minutes welding. Mr Johnstone was better at providing filters for the masks than Mr Graham and the plaintiff used the extractor fan on his table.
·Mr Johnstone sometimes went into the shed where the welders were working and the plaintiff would expect that he would have seen smoke and haze inside the shed. The plaintiff never had a conversation with him about it.
·The nature of his welding job was exactly the same but the orders and specifications for swimming pool fences or other jobs were different.
·The wire feeding down to the welding work was on a spool and would begin feeding when the welder was operated.
·After Mr Johnstone took over there was only one other welder apart from the plaintiff but the plaintiff denied his work decreased.
·When the plaintiff had suffered his problem with high blood pressure and felt like fainting, he had visited a doctor in the same clinic as Dr Robb. This was about a year after starting work. He then started taking tablets for blood pressure.
·About one or two years after he started working for Graham Fencing, he developed a cough which became “unstoppable” and would last for a week or two weeks. He saw a doctor and had x-rays. The cough would just come and go up until the present time.
·The plaintiff had smoked from the age of 18 until the age of 40. He smoked filtered cigarettes and bought one pack a week.
29 The plaintiff was re-examined and stated that when wearing a facemask he could wait for a replacement filter to be ordered which could take as long as a week, two weeks or even a month. He described the welding table built by him as having something across it above the fan to enable the work to be placed on it. This was described as a 50 x 50 cross with two bars to make it stable. He used the extractor fan but it was sometimes turned off by other welders. There was only one switch for all the fans. He confirmed there was always smoke in the factory because people were welding.
30 Dr Robb was the next witness to give evidence before me. Four reports, dating from 8 February 2012 to 3 May 2014 were tendered as Exhibit A. In his evidence Dr Robb confirmed that the plaintiff had been first seen at his clinic in February 1993 but only seen by Dr Robb approximately once every three visits for several years.
31 A more fulsome clinical history was contained in the second report provided by Dr Robb.[33] That report noted a history of employment as a welder between March 1993 and June 1996 and that the plaintiff was an ex-smoker. Dr Robb also noted a chest x-ray in 1998 in the context of a history of childhood TB. More specific to the circumstances of this case was the presentation in March 2001 with chronic cough which led to further investigations by way of CT and PET scans confirming in August 2002 a malignancy in the left lung. Dr Robb noted a left upper lobectomy performed in October 2002 and a diagnosis made of broncho-alveola carcinoma (“BAC”).
[33]Exhibit A, page 32
32 The history further records that there was no adjunctive treatment following the surgery, although a troublesome cough persisted for several years. A further CT scan in 2006 showed nodular growth in the left anterior mediastinum. This was treated with a “left complete pneumonectomy” but again no adjunctive therapy was administered. Dr Robb’s report in December 2012[34] confirmed significant complications from that second operation, including laryngeal nerve palsy and an almost total loss of voice. After further procedures it would appear he was able to continue working from about mid-2007.
[34]Exhibit A, page 38
33 Further history shows a chest x-ray performed in June 2010 showed nodules in the right lung that were diagnosed as “tumour recurrence”. Dr Robb noted that this has been treated with chemotherapy which continues. In his most recent report, dated 3 May 2014, he noted a diagnosis of stage 4 adenocarcinoma which was still being treated with medication.
34 Dr Robb had expressed opinions as to the relationship between the occupation of welding and Mr Tran’s lung cancer clearly in response to requests made by the plaintiff’s solicitors. In his first report he enclosed two articles supportive of that relationship, and expressed opinions supporting a direct causal connection in his reports, dated 29 December 2012 and 3 May 2014.
35 When cross-examined, he agreed that he had no expertise in epidemiology in this area and further admitted that he had proceeded for a considerable time on the working diagnosis of the plaintiff suffering from BAC. He also agreed that in early 2001 his clinical notes had recorded that the chronic cough was “initially thought to be due to reflex oesophagitis”. He also confirmed that other than through Mr Tran, he had no experience with the field of welding and it was Mr Tran who had aroused his interest in researching that area. Quite properly, Mr Casey QC did not seek to cross-examine Dr Robb as to the opinions expressed in his reports concerning causation.
36 The plaintiff called evidence from Dr Roger Woodruff, a consultant medical oncologist, who had provided a report dated 6 June 2014. Dr Woodruff confirmed that he had subsequently been provided with further reports and as a result was prepared to accept that the particular cancer suffered by Mr Tran was “an ordinary adenocarcinoma of the lung and not what had originally been labelled as “bronchioloalveolar carcinoma”.[35] He further gave evidence that adenocarcinoma accounted for approximately 20 per cent of lung cancers. The report prepared by Dr Woodruff which was tendered in evidence and forms part of Exhibit C, reached the following conclusion:
“In summary it is my opinion that Mr Tran’s work as a welder in Melbourne put him at significantly increased risk of developing lung cancer. This is based on the published epidemiological studies and takes particular note that he worked with stainless steel and that his working conditions were sub optimal with regard to respiratory protection. His smoking probably played a minor role.”[36]
[35]Transcript (“T”) 84, L30 – T85, L1
[36]Exhibit C, page 47
37 When cross-examined, the following evidence was noted:
· Adenocarcinoma, squamous cell and large cell carcinomas were three sub-groups of cancer but not treated as three distinct diseases.[37]
· The histology in this case led a conclusion that this “is a form of adenocarcinoma and is not squamous small cell or large cell carcinoma.”[38]
· He had used epidemiological studies including a case control study comparing the outcome of people being exposed to something against those who were not in preparation of his report.[39]
· In a very large cohort a trend to increased risk to a particular disease may be identified.[40]
· In commenting on an opinion expressed by an epidemiologist to the effect that “men who have worked as welders were estimated to have a 26 per cent higher risk of developing lung cancer compared to men who have never worked as welders, particularly taking into account the possible effects of smoking”, he agreed was a perfectly reasonable statement.[41]
· Dr Woodruff did not comment on potential confounding errors in a study relied upon by Professor Driscoll as he was not an epidemiologist.[42]
· In relation to epidemiological studies breaking down the results between three histological types of lung cancer, he commented, “The logic of the work is that you start with all lung cancers, and if you have enough subjects you can attempt an analysis on the different types of sub-types of lung cancer.”[43] “The starting point is welders or not welders.”[44]
· In relation to a specific study (Kendzia) Dr Woodruff was cross-examined about specific statistical recordings: “There is an enormous amount of data and opinion coming out, even more since Dr Google joined, about the causation of cancer, environmental factors, medicinal factors, occupational factors, smoking and as an oncologist, you – unless this is your specific field, you don’t treat patients, you just study causation.”[45]
· He agreed that the IARC study of 1990 categorised the risk of lung cancer by a process of welding as 2B, which is a possibility but commented: “My feeling about it is they shied off calling welding a carcinogenic because of this uncertainty of the influence of mesothelioma … but I wonder now, without being an epidemiologist, whether there isn’t more data coming out which leans towards confirming a relationship between lung cancer and welding fumes.”[46]
[37]T87, L25 – 30
[38]T88, L13 – 16
[39]T89, L13 – 27
[40]T90, L26 – 30
[41]T92, L23 – 30
[42]T93, L10 – 22
[43]T95, L11 – 23
[44]T95, L29
[45]T103, L25 – 30
[46]T105, L8 – 29
38 In re-examination, Dr Woodruff agreed with the proposition that observed data suggested there may be more of an increase in lung cancer in stainless steel welders compared to mild steel welders from his point of view.[47] He further agreed that chromium and nickel were ranked as Class 1 carcinogens by the 1990 IARC study.[48] In further re-examination concerning the relevance of particular statistical recordings in the Kendzia study, Dr Woodruff deferred to the opinion of Professor Driscoll.[49]
[47]T108, L11 – 14
[48]T108, L26 – T109, L4
[49]T111, L26 – 30
39 Professor Timothy Driscoll, an epidemiologist, had prepared reports dated 18 June 2014 and 6 July 2014 which were tendered in evidence as Exhibit B. He additionally gave evidence before me and was cross-examined. In broad terms, he had been asked of his first report to comment as to the possible relationship between welding and the development of lung cancer. His second report sought a similar opinion in relation to adenocarcinoma of the lung. He commented in his first report in relation to the Kendzia study:
“The main study result taking publication bias into account was that men who have ever worked as welders had a relative risk of 1.26 … The interpretation of this result is that men who have worked as welders were estimated to have a 26 per cent higher risk of developing lung cancer compared to men who have never worked as welders, partially taking into account the possible effects of smoking.”[50]
[50]Exhibit B, page 10
40 He further commented:
“The main shortcoming of the study was the inability to fully control for confounding and for exposure to occupational lung carcinogens other than smoking, and the lack of direct measures of exposure to welding fume.”[51]
[51]Exhibit B, page 10
41 His conclusion in that report was expressed in the following terms:
“I consider the available epidemiological information provides strong evidence that exposure to welding fume increases the risk of developing lung cancer … There is very strong evidence that fumes containing nickel cause lung cancer … There is very strong evidence that fumes containing chromium VI cause lung cancer.”[52]
[52]Exhibit B, page 12
42 In Professor Driscoll’s second report he commented that the sub-analysis within the Kendzia study relating to particular cell types (including adenocarcinoma) had what was described as wider confidence intervals leading him to conclude:
“The wider confidence intervals really reflect precision in the estimates rather than implying a different underlying relationship between welding and lung cancer depending on cell type. Nevertheless, less confidence can be placed in the sub-analysis estimates than the overall estimates because of this decreased precision.”[53]
[53]Exhibit B, page 60T – 60U
43 He concluded as follows:
“It is my opinion that the Kendzia study does support the proposition that occupation as a welder increases the risk of developing adenocarcinoma (of the lung), but the evidence is not unequivocal in this regard.”
He again referred to the lower number of cases included in the sub-analysis and commented:
“So there is less confidence in interpreting these analyses than there is for the analysis of all cases and of cases of squamous cell lung cancer.”[54]
[54]Exhibit B, page 60V
44 In evidence-in-chief, Professor Driscoll expanded to some extent on the opinions set you in his reports. He was asked specifically about a relationship as between exposure to welding and the development of adenocarcinoma. He responded to that question as follows:
“Well, I don’t think there is good evidence to look at it differently for different cell types. I think there is strong evidence that it increases the risk of lung cancer and the point estimates, regardless of the cell types, the point estimates are nontrivially above one, so adenocarcinoma has the lowest, it is suggesting a 23 per cent increase for ever working as a welder but that is not inconsistent with the other results, and you can get variation due to chance so that could easily be it.”[55]
[55]T134, L2 – 10
45 In commenting further as to the epidemiological results, he stated:
“I don’t look at this result and see that it makes me think that I should treat adenocarcinoma different to any of the other cell types. It all seems consistent to me.”[56]
[56]T134, L27 – 29
46 Professor Driscoll was then cross-examined and I noted the following matters:
·Nickel and chromium VI had been identified as carcinogenic prior to the IARC reporting on welding in 1990.[57]
[57]T136, L2 – 9
·The evidence looked at by the IARC would likely have included studies which involved exposure to nickel and chromium VI by welders.[58]
[58]T136, L28 – 30
·The IARC are looking not what a welder is exposed to and does that cause lung cancer, they are looking at what evidence is there that welders have an increased risk of lung cancer based on the available epidemiological studies.[59]
[59]T137, L27 – 31
·In 1990, the IARC “concluded that there wasn’t strong enough evidence in the epidemiological data to be confident that welding increased the risk of lung cancer … thus it got the 2B classification.”[60]
[60]T138, L1 – 7
·The value of the Kendzia study is that it provides much more precision, much more power to be able to identify a risk if there is or to rule out a risk if there is not a risk, because it has got so much more subjects in it and it is not subject as much to problems in the methodology because it has combined a whole lot of studies.[61]
[61]T138, L29 – T139, L4
·The Kendzia study is both a meta-analysis and a pooled analysis.[62]
[62]T139, L25 – 27
·The overall breakdown of results in the Kendzia study gave an “odds ratio” of 1.44.[63]
[63]T143, L20 – 27
·The combined estimate of the odds ratio was 1.23 for adenocarcinoma.[64]
·The question of duration of exposure would be suggestive of a causal relationship that as the total exposure increased the total risk would also increase.[65]
·For adenocarcinoma the figures (in the Kendzia study) tends to indicate that the greater the time of work as a welder, the more the risk increases.[66]
·Based on the methodology of the study, “I think there’s fairly strong evidence of a relationship between work as a welder and an increased risk of lung cancer. When I look at the cell type breakdown I don’t see anything in there that would alter my finding. … For each of the cell types I see … all of them have a raised point estimate and adenocarcinoma and squamous cell carcinoma both have a suggestion of a dose response. So I don't see any good reason to think that the relationship would be different depending on the cell type based on the information that I see here.”[67]
·(For adenocarcinoma) “Somebody with lesser years of exposure, I would expect their risk to be less than 1.23 and somebody with longer years of exposure to be higher than 1.23 because the 1.23 is an average.”[68]
·“Based on what I am seeing for … all cases, the adenocarcinoma and the squamous cell carcinoma, I would expect that the longer somebody had been exposed the higher the risk.[69]
·“In this case (the Kendzia study) we’ve got an odd ratio of 1.44 so it means people who weld are estimated to have a 44 per cent increased risk of getting lung cancer compared to people who have not worked as welders.”[70]
·“The lower somebody’s exposure, the lower their risk. The higher somebody’s exposure, the higher the risk, if there truly is a relationship between exposure and outcome.”[71]
·“The main methodological weakness of this (the Kendzia) study is that the exposure assessment was based on job title … and did not differentiate between welding processes and different levels of exposure. For example, there could be welding outside or there could be welding in a cupboard.”[72]
[64]T144, L2 – 4
[65]T144, L18 – 26
[66]T145, L22 – 24
[67]T146, L9 – 23
[68]T148, L13 – 16
[69]T149, L18 – 22
[70]T151, L19 – 23
[71]T151, L27 – 30
[72]T153, L23 – 31
47 In re-examination, Professor Driscoll explained the distinction between meta‑analysis and pooled analyses by use of weighted averages and statistical confounding, concluding that a pooled analysis “allows a more detailed examination of the issue but both of them will come to a similar sort of finding.”[73]
[73]T155, L22 – 24
48 Professor Driscoll explained that the statistic of years as a welder in the Kendzia study was a proxy measure of dose.[74] The cumulative exposure indicated that one person exposed for a year at one level and another person exposed for three months but at four times the level … might have the same cumulative exposure and so might be at the same risk.[75]
[74]T155, L26 – 28
[75]T156, L2 – 7
49 The plaintiff relied upon no further oral evidence but tendered further material in support of his case. The defendant called Professor Richard Fox, a consultant in medical oncology and clinical haematology in practice at The Royal Melbourne Hospital. Professor Fox had prepared four reports between October 2012 and July 2014. These reports were tendered in evidence as part of Exhibit 1.[76]
[76]Exhibit 1, page 26 – 40.7
50 In Professor Fox’s first report dated 30 October 2012, he noted that the plaintiff had worked in a welding job between March 1993, ceasing in 1996 and that his disease was diagnosed some five years later. Having referred to medical literature, he noted that occupation as a welder has been associated in the literature with a 25 – 40 per cent increase in lung cancer risk. He further noted that an odds ratio of 1.18 was found for welding fumes increasing to 1.38 for more than 25 exposure years. His conclusion as to causation at that time was as follows:
“In terms of Mr Tran’s condition, given the short latency period and short exposure period and on the balance of probabilities his work was not related to his development of lung cancer.[77]
[77]Exhibit 1, page 28
51 In his second report, provided in June 2014, his basic opinion remained unchanged and was specifically expressed in terms of the development of adenocarcinoma of the lung. Once again, Professor Fox referred to the duration of the welding and the latency period for the development of the disease.
52 He was asked to express an opinion at that time in relation to exposure to welding fumes containing chromium VI and nickel as would have been involved in doing MIG welding using stainless wire. Again, Professor Fox found no causal relationship referring to the duration of the work and the short latency period. He was also asked to comment on matters specific to bronchiolo-alveolar lung cancer, which now appears to be irrelevant to Mr Tran’s case.
53 A third report provided by Professor Fox dated 23 June 2014 specifically commented on the opinion provided by Professor Driscoll in his first report. Professor Fox commented:
“In conclusion, this report by Professor Driscoll regarding welding and lung cancer is factually correct in what it reviews. The key issue is what it has not discussed in terms of dose intensity, dose duration and the latency period for lung cancer induction.”[78]
[78]Exhibit 1, page 40.2
54 Professor Fox was also critical of the failure to distinguish between histological types of lung cancer and goes on to state that in Mr Tran’s case, “there does not appear to be a relationship”.[79] His final report dated 4 July 2014 noted the opinion of a pathologist as to the nature of the disease and also considered affidavits sworn by Mr Tran and Mr Graeme Johnstone, who had employed Mr Tran between 1995 and 1996.[80] Professor Fox did not change his opinion, stating in particular:
“The change in pathology terminology does not alter what were the clinical and radiologic features and hence the epidemiologic correlations of that time … When the sub-class of adenocarcinoma was assessed for those who worked three to ten years, the odds ratio was 1.14; ie for every 114 cases of adenocarcinoma in the lung in welders, 14 were contributed to by welding … Thus in my opinion based on this data his risk, from his employment was negligible, given he had adenocarcinoma of the lung and both the short latency period and duration of employment.”[81]
[79]Exhibit 1, page 40.2
[80]Mr Johnstone’s affidavit was separately tendered as part of Exhibit 1, pages 19 – 24
[81]Exhibit 1, page 40.7
55 When Professor Fox gave evidence-in-chief, he confirmed the opinions expressed in his reports stating that the group of welders into which Mr Tran fell, according to the Kendzia study, would face no increased risk of the development of adenocarcinoma.[82] He continued, commenting on Professor Driscoll’s methodology by stating that there were issues not mentioned being “exposure intensity, exposure duration and latency period in terms of lung cancer.”[83] Professor Fox again stressed the importance of the latency issue in forming his opinion.
“We know the latency for development of malignant mesothelioma is 20, 30, 40 years average in Australia or around the world is in the high thirties, and it’s the same for lung cancer. … It would be the first time they came in contact with the potential noxious product.”[84]
[82]T162, L27 – T163, L3
[83]T163, L22 – 26
[84]T164, L6 – L12
56 When cross-examined and the following matters were noted:
·The Kendzia study established that welders have a 44 per cent increased risk of contracting lung cancer but “doesn’t take into account the issue of duration or work, the histological type of lung cancer or the latency period.”[85]
[85]T170, L16 – L25
·“In relation to adenocarcinoma, if you had 123 welders who had lung cancer, then you’d say 23 of them had developed it on the basis of their welding.”[86]
·The confidence interval (in the Kendzia study) for adenocarcinoma is broader than for the all cases figure so as to “be a reflection of the fact that the group we’re dealing with, the numbers that we’re dealing with are smaller.”[87]
·The size and nature of the (Kendzia study) taken alone would be strong evidence of a level of association between welding and lung cancer.[88]
·Whilst the Kendzia study showed positive associations in terms of odds ratios across various sub-groups, there was still some missing data. … it is the latency period … which is the absolute fundamental of biology and induction of cancer.[89]
·Subject to the qualification as to the latency period, the Kendzia study is a powerful epidemiological study.
·Two reasons for concern about the possible association between adenocarcinoma and welding were the latency period and the short duration of the work.[90] There may be a greater level of exposure in one welding circumstance compared to another and a greater level of exposure for the same period would expose the person working in the greater level of exposure to increased risk.[91]
·The inhalation of chromium and nickel each gives rise to an increased risk of developing lung cancer but again the level of risk will depend at least in part on the level of exposure.[92] The risk of developing lung cancer associated with welding stainless steel was the same as with mild steel.[93]
·There is strong evidence that exposure to fumes containing nickel gives rise to an increased risk of lung cancer and strong evidence that exposure to fumes containing chromium VI give rise to an increased risk of lung cancer.[94]
·Molecular studies showing distinct chromosomal changes and mutations in different genes were indicative of actual difference between small cell and non-small cell carcinoma and it was incorrect to describe them all as the one disease. It was similarly incorrect to classify all non-small cell carcinomas in one group.[95]
[86]T172, L26 – T173, L3
[87]T173, L22 – 26
[88]T175, L13 – 25
[89]T176, L2 – T177, L18
[90]T181, L9 – 14
[91]T182, L27 – 30
[92]T183, L19 – 22
[93]T185, L21 – 24
[94]T187, L23 – 29
[95]T188, L8 – 29
57 When re-examined, he agreed with the proposition from an earlier paper to the effect that these:
“… results do not support they hypothesis that stainless steel welders are at higher lung cancer risk than mild steel welders despite their probable exposure to chromium and nickel compounds in welding fumes.”[96]
[96]T190, L5 – 9
58 When taken to aspects of the Kendzia study, he agreed that in various tabulations of the data, the incidence of smoking was omitted in one and duration of exposure as a welder in another.[97]
[97]T191, L16 – 19
59 The further evidence relied upon by the plaintiff is contained in Exhibit C. Apart from the formal Court pleadings and various compensation documents, the tendered material contains a medico‑legal opinion from Dr Jonathan Burdon, consultant respiratory physician, dated 15 November 2012. Dr Burdon described the plaintiff as suffering from a broncho-alveola cell carcinoma of the lung and expressed an opinion that Mr Tran’s work as a welder “has been a significant contributing factor to the development of his lung cancer.”[98]
[98]Exhibit C, page 24
60 A report from his treating oncologist, Associate Professor Benjamin Solomon, which essentially provides details of treatment, noting in particular that Mr Tran has had an excellent response to treatment which is maintained in his most recent scan in June 2014. Professor Solomon’s report does not address the questions of actual causation or increased risk.
61 The plaintiff also relied on the opinion of Professor Roger Sinclair, pathologist, who examined slides of pathological specimens taken from Mr Tran’s left lung in 2002 and 2006. He did not examine any pathological slides following the removal of nodules in the right lung. He concluded:
“It is my opinion that it is most probable that Mr Tran is suffering from a moderately to well differentiated mucin secreting adenocarcinoma which arose in the left upper lobe of the lung and later spread to the left lower lobe.”[99]
[99]Exhibit C, page 60Z
62 The pathological slides relating to the right lung nodules were no longer available. He nevertheless expressed the following opinion:
“The presence of multiple nodules in the right lung does however represent a disease distribution typical of metastasis as opposed to the development of a second primary tumour within the right lung. Spread to the right lung from a non-lung primary tumour is of course not excluded.”[100]
[100]Exhibit C, page 60AA
63 The plaintiff’s material tendered in evidence included a report from the occupational hygienist, Mr Michael Kottek In his report dated 2 June 2014, Mr Kottek commented:
“It is recognised that the stainless MIG welding is likely to result in exposure to chromium and nickel. I note that the welding consumables (ie the welding string) are often heated to a higher temperature than the parent metal being welded, and consumable is generally the major source of fume, apart from surface coatings on the parent metal.”[101]
[101]Exhibit C, page 1322
64 He further commented in relation to cancer risk from welding fumes:
“The 1990 IARC assessment on nickel and chromium also reviewed the then available literature on welding and cancer, and evaluated welding as a category 2B: the exposure circumstance entails exposures that are possibly carcinogenic to humans.”[102]
[102]Exhibit C, page 1322
65 He referred also to the Kendzia study and concluded:
“In my opinion, Mr Tran’s welding work is likely to have placed him at some increased risk of lung cancer, although I would stress that the attribution of illness in an individual is a matter for medical evidence.”[103]
[103]Exhibit C, page 1323
66 Much of the remainder of Mr Kottek’s opinion is concerned with the question of knowledge of potential hazards, which is not relevant to the present inquiry.
67 The final piece of documentary evidence received on behalf of the plaintiff was the Kendzia study entitled “Welding and Lung Cancer in a Pooled Analysis of Case Control Studies”.[104]
[104]Kendzia, B., T Behrens, et al. (2013). American Journal of Epidemiology 178 (10): 1513 – 25
68 The defendant tendered in evidence three reports from Professor Michael Barton, radiation oncologist, dated 20 January 2014, 23 June 2014 and 4 July 2014. Initially Professor Barton’s opinion was sought on the causal relationship between the plaintiff’s employment as a welder and the development of lung cancer then described as broncho-alveola cancer. His initial report stated that it was likely there was no connection or very little connection between welding and the broncho-alveola cancer because of the relatively short period between exposure and diagnosis and the long latency period for broncho-alveola cancer. His opinion in relation to the increased risk of contracting broncho-alveola cancer was considered to be small but he added:
“An increase in exposure to fumes through reduced ventilation or lack of respiratory filters would increase the risk of developing lung cancer although the risk is not high in comparison to the risk from smoking.”[105]
[105]Exhibit 1, page 10
69 In Professor Barton’s second report, he comments on opinions provided by Dr Woodruff and Professor Driscoll. Again, he does not support their opinions. In relation to Dr Woodruff, his comments relate specifically to broncho-alveola carcinoma. Insofar as Professor Driscoll’s opinion is concerned, he notes that the Kendzia study found the relative risk of developing lung cancer in welders is increased by 23 per cent, whereas the relative risk of developing lung cancer in light smokers is of at least 550 per cent. He concludes that cigarette smoking is 26 times more likely to be the cause of lung cancer in welders who were also light smokers.[106]
[106]Exhibit 1, page 18.2
70 In Professor Barton’s further supplementary opinion, he commented that the change of diagnosis from broncho-alveola carcinoma to adenocarcinoma would not affect his original opinion, as the period between exposure and diagnosis would take 12 years on average due to the slow-growing nature of the tumour. He further commented on the Kendzia studies, citing that the risk of developing adenocarcinoma was 1.23 times for welders and 1.12 for welders who smoked. He regarded that the level of risk was not statistically significant and again commented:
“The risk of developing adenocarcinoma is not different from controls and the amount of exposure would not affect the risk. The major risk of lung cancer would be from smoking.”[107]
[107]Exhibit 1, page 18.8
71 The final piece of evidence received was an affidavit from Graeme Johnstone sworn 16 June 2014, who had employed the plaintiff at Fencing Design Pty Ltd between mid-2005 and June 2006. The affidavit described the premises in Clayton North as a shed measuring approximately 6 metres wide x 30 metres long with a height of 4.5 to 5 metres. Mr Johnstone described three work benches set up for three welders, one of whom was the plaintiff. He described the purchase and installation of extractor fans in or around July 1995 and also deposed as to the provision of personal protective equipment including breathing masks which he states,
“… were also provided but they were not used by welders all the time. To the best of my recollection I would say that masks were worn about half the time by the welders. The masks had filters which the welders had to replace from time to time.”[108]
[108]Exhibit 1, page 21
72 Mr Johnstone’s affidavit is generally consistent with the evidence given by the plaintiff about the nature of his work between 1993 and 1996.
Analysis
73 The medical evidence received both orally and in written form in this case supports a conclusion that the disease suffered by the plaintiff is adenocarcinoma. Although a provisional diagnosis of broncho-alveola cancer had been thought likely for a time, the specialist medical opinion now supports the diagnosis of adenocarcinoma.[109]
[109]T161, L4 – 8
74 The correct identification of the disease suffered by Mr Tran is a finding which must be made prior to any evaluation of evidence as to a relationship between employment and that particular disease. In the present case, Mr Casey QC, who appeared with Mr Worth for the defendant, submitted that the relevant disease suffered by Mr Tran was adenocarcinoma as opposed to a more general diagnosis of lung cancer. Mr Keogh SC, who appeared with Mr Dimsey for the plaintiff, did not agree with this submission but argued that the evaluation of the evidence would make no difference as to whether the disease was described as lung cancer or adenocarcinoma. Whilst I accept that the adoption of what Mr Keogh described as a “granular approach” may lead to a distortion of the evidence tending to show a relationship or otherwise between disease and employment, I accept that the correct description of the disease suffered by Mr Tran is adenocarcinoma.
75 The specialist medical evidence from Professor Fox, Dr Woodruff and Professor Driscoll, all supports adenocarcinoma as the appropriate descriptor of the disease suffered. Additionally, the use of a more general term, such as lung cancer or even cancer, must necessarily weaken the force of expert evidence touching on the relationship between the particular disease suffered by the plaintiff and its relationship to the identified employment.
76 In much the same way any attempt to deconstruct the agreed employment as a welder could only have the effect of creating a confused analysis touching on probable causation as against the statutory analysis that is required in this case. I must avoid a risk of confusion between likely or actual relationship between disease and specific aspects of Mr Tran’s employment as a welder as this again is not the approach required by the statute.
77 The expert evidence must be evaluated in terms of the opinion actually expressed after taking into account the actual area of speciality possessed by the witness, the information enabling the opinion to be given, and the particular line of enquiry pursued. It is abundantly clear that Professor Fox concentrated on the unlikely relationship between Mr Tran’s contraction of adenocarcinoma and his work as a welder because of the absence of a sufficient latency period between the relevant employment and the first diagnosis. It is also apparent that Professor Fox regarded cigarette smoking as the most likely cause of Mr Tran’s disease. Dr Barton took a similar approach. On each of those aspects it may very well be that Professor Fox and Dr Barton are correct. The enquiry before me does not require an analysis of actual causation or even probable causation. I can well understand the difficulties faced by medical experts being asked to express an opinion on a general relationship between employment and disease when the specific causal relationship is to be ignored.
78 The evidence given by Professor Driscoll, I found to be most persuasive in this case. I note Professor Driscoll’s expertise is specifically related to the field of epidemiology. Given that much of the evidence as to the relationship between welders and lung cancer, including adenocarcinoma, was based upon epidemiological studies and their interpretation, I find that Professor Driscoll is ideally qualified to give expert evidence in this field. Additionally, I regarded his evidence as logical and persuasive, noting that he was pressed in cross-examination to distinguish between conclusions that could be drawn based upon the Kendzia study in respect of adenocarcinoma sufferers as against tabulated results for persons suffering from other sub-classes of non-small cell lung cancer.
79 Dr Woodruff and Professor Fox both agreed with the general proposition expressed by Professor Driscoll to which I have earlier referred.[110] Dr Woodruff specifically agreed with the proposition expressed by Professor Driscoll that, “Men who have worked as welders were estimated to have a 26 per cent higher risk of developing lung cancer compared to men who have never worked as welders, particularly taking into account the possible effects of smoking. The evidence given by him, to the effect that the observed data suggests that there may be more of an increase in lung cancer in stainless steel welders compared to mild steel welders, presumably based upon their potential exposure to chromium and nickel during the welding process. Again this aspect of his evidence is not an opinion which I find helpful in the enquiry I must make. In much the same way as Professor Fox places weight upon the absence of a suitable latency period in taking a view against causation, Dr Woodruff may have considered factors such as chromium and nickel exposure as matters which might enhance the probability of an actual causal relationship being proved in Mr Tran’s case. Once again this strays from the enquiry directed by the statute.
[110]See footnote 41
80 I am persuaded, largely on the evidence of Professor Driscoll (with the concurrence of Professor Woodruff and Professor Fox on the central hypothesis) that welders face a higher risk of contracting lung cancer, including adenocarcinoma, than do non-welders in the general population. This risk, when qualified in evidence, was estimated to be 44 per cent higher for welders in relation to lung cancer generally and 23 per cent higher in relation to adenocarcinoma. Both of these percentage increases were based upon the Kendzia study, which partially took into account the possible effects of smoking.
81 I am not persuaded that the excision of epidemiological studies to deduct particular members of an employment class (such as welders who are smokers) is consistent with the interpretation of s86 insofar as it requires a finding as between the nature of the employment and the disease. Nevertheless, it may have relevance in terms of the factual finding as to whether that employment was, in fact, a significant contributing factor at any time prior to the date of incapacity. The form of the statute, as operative in this case, requires that additional question to be examined and answered affirmatively if the plaintiff is to succeed.
82 In the present case, the evidence from Professor Fox suggested that the incidence of lung cancer in persons who were smokers, as against those who were non-smokers, showed a several fold increase in risk.[111] Dr Barton stated the major risk of lung cancer would be from smoking.[112] Although Professor Fox agreed in evidence that the Kendzia study established that welders had a 44 per cent increased risk of contracting lung cancer, and those suffering from adenocarcinoma had a 23 per cent increase in risk, his opinion that Mr Tran’s actual risk of developing lung cancer or adenocarcinoma related to his employment was negligible can well be understood.
[111] Exhibit 1, p.38
[112] Exhibit 1, p. 18.8
83 The finding required in this case requires an evaluation of potential risks to welders. It does not require a potential evaluation of the specific risk to Mr Tran based upon a period of his employment, particular aspects of his welding, including possible chromium or nickel exposure, or potentially inadequate ventilation. Rather, it requires a qualitative evaluation of the nature of the increased risk of contraction of adenocarcinoma by virtue of employment as a welder generally. In my view, the evidence establishes that the increased risk of the development of adenocarcinoma faced by welders, as against non-welders, is in the order of a 23 per cent increase in risk. The fact that other and perhaps more obvious risks, such as cigarette smoking, provide a more likely risk, does not, in my view, submerge the fact that there is an increased risk and that increased risk is of such an order as to satisfy the test that it is a significant contributing factor.
84 The finding of “significant contributing factor” in this case is agreed to be a question of fact. The provisions of s5(1B) of the Act mandate a consideration of the matters enumerated (a) to (g) which, in my view, appear to provide no more than supplemental guidance on the primary question posed by s86. An examination of matters such as the duration of the worker’s current employment, nature of the work performed and particular tasks of the employment would have relevance only if the authoritative interpretations of s86 had mandated an evaluation of the actual levels of exposure or the actual tasks performed by a worker in coming to a conclusion. This approach was specifically rejected by the Court of Appeal in Botezatu.[113]
[113]Accident Compensation Commission v Botezatu [1993] 1 VR 304
85 The remaining matters set out in paragraphs (d) to (g), being “the probable development of the injury occurring if that employment had not taken place, the existence of any hereditary risks, the lifestyle of the worker and, the activities of the worker outside the workplace" equally touch upon the probability of Mr Tran needing to prove an actual likelihood of the employment being a significant cause of the adenocarcinoma suffered by him.
86 As was stated by Senior Counsel for the defendant in final address, the starting point in Mr Tran’s case is an assumption that he cannot prove that his actual employment over a period of three and a bit years caused him to suffer from this particular disease. The operation of s86 then entitles a plaintiff to succeed in such a case if he can prove that the nature of the employment, the welding work that he did, increased the risk of him coming to develop the disease from which he is suffering.
87 In my assessment, there is nothing in an examination of the factors set out in (a) to (g) of s5(1B) which militates against a finding based on a medical opinion that welders are 44 per cent more likely to develop lung cancer and 23 per cent more likely to develop adenocarcinoma than other members of the community. Nor could those factors tell against a finding that Mr Tran’s employment, being that of a welder, was a significant contributing factor, although not likely to be the major factor and certainly not the only factor relevant in this case.
Conclusion
88 I am satisfied that Mr Tran was employed as a welder in Victoria at least between March 1993 and June 1996.
89 Mr Tran suffers from a disease described as adenocarcinoma.
90 Persons employed as welders suffer an increased risk of the development of adenocarcinoma as against persons not employed as welders.
91 The increased risk of the contraction of adenocarcinoma has been, and is on the evidence, for welders a significant contributing factor to the incidence of the disease.
92 I am satisfied that Mr Tran has made out his claim for entitlement to compensation in accordance with the provisions of the Act. I will hear the parties as to the specific orders sought and any ancillary matters.
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