Repatriation Commission v Bendy [1989] FCA 170; 18 ALD 144

Federal Broom Company Pty Limited v Semlitch [1964] HCA 34; (1964) 110 CLR 626

Counsel for the Applicant: Mr McCarthy QC with Mr Armitage

Counsel for the Respondent: Mr Bennett QC with Mr Skinner

instructed by: Australian Government Solicitor

The order of the Administrative Appeals Tribunal be restored.

The respondent pay the appellant's costs of the appeal and the proceedings before the primary judge.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

This is an appeal from a decision of Davies J in which his Honour upheld an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") given on 29 March 1989 which had set aside a decision, made by a delegate of the Commissioner for Employees' Compensation ("the delegate") made on 31 December 1985 and reaffirmed on 2 February 1988, that the appellant's employer, the Australian Telecommunications Commission ("Telecom"), was not liable to pay him compensation pursuant to the Compensation (Commonwealth Government Employees) Act 1971 (Cth) ("the 1971 Act"). His Honour held that, in so deciding, the Tribunal had erred in law in the manner that we shall describe later in these reasons. In this appeal, the appellant submits that the Tribunal did not err and that its order remitting his claim for assessment of compensation should be restored.

2. The appellant's claim was brought in respect of his development of a malignant melanoma in his right leg. He asserted that his employment with Telecom had contributed to his suffering from this disease. His claim was brought under s 29 of the 1971 Act which provided an entitlement to compensation where:

"(a) an employee contracts a disease or suffers

an aggravation, acceleration or recurrence of a disease; and

(b) any employment of the employee by the

Commonwealth was a contributing factor to the contraction of

the disease or to the aggravation, acceleration or

recurrence, as the case may be, whether or not the disease

was contracted or the aggravation, acceleration or

recurrence was suffered in the course of that employment"

3. The Tribunal upheld the appellant's claim on the basis that his employment had been a contributing factor to the aggravation or acceleration of the melanoma. There was no dispute that this condition was relevantly a "disease" within the meaning of the legislation. The appellant's claim was based upon his exposure to sunlight and consequent ultra violet radiation whilst working as a line serviceman for Telecom from 1970 to 1983.

4. The Tribunal found that the appellant was of fair skin and fair complexion which made him "particularly prone to the onset of melanoma, as the result of solar exposure". He had lived at Narrandera in a country area of New South Wales until he was 13 years of age. He then went to Sydney to live, where he finished his schooling at about age fifteen. He was then employed in the boot making industry for five to seven years; thereafter he worked as a linesman in the Postmaster General's Department for about twelve months. From 1961 to 1967 he worked as a transport driver with the Royal Australian Air Force and thereafter as a mail driver for the Postmaster General in 1967/68. For the next two years, prior to his entering employment with Telecom, he worked for Rothmans of Pall Mall.

5. It appears that the Tribunal accepted the appellant's evidence that he had no more than normal exposure to sunlight in his youth at Narrandera or Sydney. In the boot making trade, he had no work exposure to sunlight. Although in the RAAF there was some outdoor work, his clothing issue and dress requirements provided protection. There was no sunlight exposure at Rothmans. There was, however, considerably increased exposure in his employment with Telecom, where his work was predominantly outdoors. He wore hat, shoes, shirt, short trousers and socks half way up his lower leg. Accordingly, parts of his legs were exposed to sunlight during his working hours.

6. The appellant suffered some sun related skin conditions earlier in his work with Telecom. In 1982 and 1983 he required minor surgery for the removal of skin keratoses and a basal cell carcinoma. Telecom accepted liability in respect of these conditions, on the basis that they were related to sun exposure during his working hours. However, in 1985, the appellant developed multiple nodules on his right leg. These were examined at Royal Prince Alfred Hospital, Sydney and a diagnosis was then made of metastatic melanoma. No primary lesion was then, or has ever, been found. The appellant underwent surgery which resulted in the arrest, but not total elimination of the melanoma. Telecom denied liability in respect of the melanoma, its aggravation or acceleration, on the basis that compensation was not payable in respect of it within the terms of s 29 of the 1971 Act. This denial was based upon medical reports which rejected any relevant causal link between the development and progression of the melanoma and exposure to the sun's rays of the plaintiff's body whilst doing his daily work for Telecom. This denial of liability, as already stated, was, in the first instance, upheld by the delegate.

7. When the matter came before the Tribunal, there was not inconsiderable conflict of medical testimony on the question of causation. The various opinions were reviewed by the Tribunal in its reasons. There is no need to set out here the material considered by the Tribunal. The Tribunal was led by the evidence to make a number of findings of fact which have not been subject to challenge. It formed the view "that the weight of medical opinion is that the applicant's skin damage leading to melanoma did not occur during his employment". The Tribunal, in this finding, had regard to expert evidence that major damage to skin through ultra-violet radiation generally occurs before the age of 20 and to the fact that the appellant has spent his youth in the country with considerable exposure to the sun.

8. The Tribunal next considered "whether or not the applicant's melanoma, if not primarily caused by his work with Telecom, was `triggered' or contributed to, by his exposure to sunlight while working at Telecom". This question involved the Tribunal in further consideration of medical testimony which was provided, primarily, by two expert skin specialists, Dr Thompson and Professor McCarthy. The portion of evidence which, apparently, finally swayed the Tribunal to a finding of a necessary causal link within the meaning of s 29 occurred in the oral evidence of Professor McCarthy, given when being asked questions in cross-examination. The passage is as follows:

"To put it simply, if I do violence to Dr Thompson's

hypothesis, this can be corrected by my learned friend

later, but, if essentially Dr Thompson was saying, if

he has had significant sunlight exposure in the 15

years before he presented to me with melanoma, of the

type that has just been described, his melanoma is

caused by a lifetime of sunlight exposure only

including that period, but that later period of

sunlight exposure, says Dr Thompson, increased the risk

of his ultimately presenting with melanoma; in other

words, he made the risk greater than it would have been

had that 15 years of sunlight exposure not occurred.

Is that a proposition you would dissent from? --- Again

we get back to your using the exposure to sunlight as

being the triggering mechanism for his melanoma. I am

saying there is very little evidence that is the case,

that it was actually triggered by that exposure in some

way. He is like every other Australian: you add it all

up together. He would have got, say, if you like, 20

per cent of his solar exposure during the work period,

and 80 per cent in other times, but, up to the age of

20, we all get a huge dose. I have had a BCC and a

keratosis. I am an indoor worker. So we do have this

degree of exposure. It is a question of whether that

additional exposure is in any way related to melanoma.

I cannot answer, but do not dissent from the fact he

had additional exposure during that time. He certainly

did, and if in the logic of it, if solar exposure

caused his melanoma, then you would have to say that

there is a contributory factor during those 17 years,

but he certainly got solar exposure during that time.

And then this man, he being a man of Celtic descent

with fair skin, there was a predisposition, was there

not, greater than, say, a member of the population who

did not have those factors present -- -? --- Yes.

--- of the development of melanoma as a result of

exposure to sunlight? --- Yes.

And taking those extra factors into account, it does

seem likely, does it not, that the exposure to sunlight

over 15 years in the course of his occupation was a

contributing factor although perhaps in your view a

small one? --- Yes."

9. The Tribunal accepted this evidence and based its decision upon it. The part of its reasons in which it did so, has been the subject of considerable debate in this case. Accordingly, we set it out in full. It reads as follows:

"Accepting Professor McCarthy's evidence as

we do, it would seem that it is not shown to be

probable that exposure to sunlight while working

for Telecom triggered the development of melanoma

in the applicant. However, it appears it played

some role, albeit a small one, in contributing to

its development.

It the applicant's case fell to be

determined under the definition of "disease" in s

4(1) of the New Act, that is establishing that the

melanoma was caused by, or that its aggravation

was contributed to in a material degree by the

applicant's employment, he must necessarily fail.

However, as we have decided that his case falls to

be determined under the 1971 Act, any

contribution, however small, by the circumstances

of his employment, entitles the applicant to succeed.`

We accordingly decide that the applicant's

employment contributed to a small degree to the

development of the disease of malignant melanoma

from which he suffers. We refer the determination

of the quantum of his compensation back to the

Commission established under the New Act."

10. The "New Act" referred to was the Commonwealth Employees' Rehabilitation and Compensation Act 1988 which came into force on 1 December 1988 and which, by common consent, was held to have no bearing upon the determination of the appellant's case. We shall also refer to it as "the New Act". As stated by the Tribunal in the passage just quoted, it had introduced new wording which required that, to found a claim for compensation, the employment of an applicant should have contributed "in a material degree" to the relevant "disease" or its aggravation or acceleration.

11. As we have already indicated, Telecom, in its appeal to this Court, at first instance, was able to satisfy Davies J that the passage set out above demonstrated error of law requiring that the decision be set aside and that the proceedings be remitted to the Tribunal for rehearing.

12. We turn, then, to the judgment of the learned primary judge. His Honour, after referring to this passage said as follows:

"In drawing this distinction between the 1971 Act and

the 1988 Act, the Tribunal was in error. The test

propounded by the 1971 Act, like the test propounded by

the 1988 Act, requires that there be a contribution of

a causal nature and therefore that the contribution be

causally significant or, to use another term, material.

A number of statutes are in this respect similar. In

Bendy's case, I said:-

`In Repatriation Commission v Law (1981) 147

CLR 635 at p 648, Aickin J., with whom Gibbs

C.J., Stephen and Mason JJ. agreed, when

considering provisions of the Repatriation Act

1920 (Cth) accepted that it was sufficient if war

service was one of a number of causes of a disease

provided that it was a contributing cause. I have

myself, on occasions, used the term material

contribution in this context. The adjective

material is not necessary but its use is familiar.

See e.g. Clover, Clayton and Co., Limited v. Hughes

(1910) AC 242 per Lord Loreburn at p 247;

Hetherington v. Amalgamated Collieries of WA Ltd

[1939] HCA 36; (1939) 62 CLR 317 per Latham C.J. at p 328;

Adelaide Stevedoring Co Ltd v Forst (1940) 64

CLR 538 per Rich A.C.J. at p 564, Dixon J. at

p 568, McTiernan J. at p 571, 572. The expression

contributed in any material degree was used in

the Workers' Compensation Act 1958 (Vict) and is

used in s.9(1)(e) of the Veterans Entitlements Act

1988 (Cth) and in s.7(3) of the Commonwealth

Employees' Rehabilitation and Compensation Act

1988 (Cth). In each case, the reference to

materiality serves to make it clear that the

contribution required is a contribution of a

causal nature, that a contribution which is de

minimis, which did not influence the course of

events or which is so tenuous as to be immaterial

is to be ignored. The term material is here used

not in the loose sense set out in definition 12 of

the Macquarie dictionary, namely, of substantial

import or much consequence but rather in its legal

sense of pertinent or likely to influence.'

I remarked in Bendy's case, and have said on other

occasions, e.g. Westgate v. Australian

Telecommunications Commission (1987) 17 FCR 235 at

p 240, that it is sufficient that the employment

contribute to the contraction, aggravation,

acceleration or recurrence of the disease. The

contributing factor need do no more than contribute in

a material way. The factor is not required to be real,

proximate or effective cause of the disease or of its

development. When several separate factors together

cause the contraction of a disease or its acceleration,

aggravation or recurrence, all that is required is that

one such factor exhibits the necessary connection with

the worker's employment. The Tribunal was, however, in

error in holding that a contribution brought about by

the employment, however small, was sufficient. A

contribution which is so small as to be immaterial,

which has no causal significance, is not sufficient. A

disease or an aggravation, acceleration or recurrence

thereof is not attributable to employment unless it is

causally connected therewith. As s.29 states,

employment must be a contributing factor to the

contraction of the disease or to the aggravation,

acceleration or recurrence thereof.

Counsel for Mr Treloar submitted that the Tribunal

should be taken to have understood the operation of the

1971 Act and to have made a finding appropriate to the

Act. He submitted that, if the Tribunal made any

error, the error lay in its understanding of the words

`in a material degree' in s.4(1) of the 1988 Act, which

may have been read as requiring that there be a major

or substantial contribution. Counsel for Telecom

submitted that the Tribunal should be taken to have

understood the expression `in a material degree' but

that it was in error in thinking that `any

contribution, however small, ... entitles that

applicant to succeed.'

It is impossible to resolve this conflict as the

Tribunal did not elaborate upon its view. As the

reasons for decision disclose an error of law on a

vital point, the decision must be set aside and the

matter remitted to the Tribunal to be heard and decided

again."

(Bendy's case is now reported sub nom Repatriation Commission v Bendy [1989] FCA 170; 18 ALD 144)

13. His Honour allowed the appeal and remitted the matter to the Tribunal for rehearing. In doing so he made some observations about the evidence before the Tribunal, but these matters do not arise for consideration in this appeal. The question for our determination is whether or not his Honour was correct in holding that the tribunal had committed an error of law. There has been no argument addressed to us on the basis that there was no evidence capable of supporting a finding that the applicant was entitled to compensation in respect of the development of the metastatic melanoma. The only question was whether the Tribunal had erred in law by applying an incorrect test in its evaluation of the facts. As appears from the passages cited from his Honour's judgment, Davies J held that they had so erred.

14. It rapidly became apparent during the hearing of the appeal, that the respondent's concern was not so much with the actual outcome of the hearing before the Tribunal but with what it submitted to be the erroneous statement of principle in the passage already cited. It submitted that, unless corrected by this Court, that statement of principle would be applied in cases still to be determined under the 1971 Act and would be productive of error of decision in those cases.

15. The relevant error was said to be found in the middle paragraph of the passage, and was as expounded by the learned primary judge. It amounted to an error in the construction of the words in s 29 of the 1971 Act requiring that "any employment of the employee by the Commonwealth" be "a contributing factor to the ... aggravation, acceleration or recurrence as the case may be (of the disease)". It is to be noted that neither the Tribunal nor the learned primary judge was engaged in the construction of the relevant section of the New Act. Nor do we essay that task. It may further be noted that the word "material" does not appear in ss 29 of the 1971 Act. It is sufficient that the employment be a "contributing factor". The inquiry must, therefore, be what do these words signify in the section?

16. We derive considerable guidance from what is said in the judgments in the High Court in Federal Broom Company Pty Limited v Semlitch [1964] HCA 34; (1964) 110 CLR 626. This was a case concerning the Workers' Compensation Act 1926-1960 (NSW). The Court was required to consider the interpretation of s 6(1) of the Act which provided (inter alia): "`injury' means personal injury arising out of or in the course of employment and includes - ... (b) the aggravation, acceleration, exacerbation or deterioration of any disease where the employment was a contributing factor to such aggravation, acceleration, etc ...". It will be observed that the relevant words are, for practical purposes, identical with those of s 29 of the 1971 Act.

17. In relation to the concept of employment as a contributing factor, Kitto J said at p632:

"Where it is possible to identify as a

contributing factor to the aggravation,

acceleration, exacerbation or deterioration of the

disease, some incident or state of affairs to

which the worker was exposed in the performance of

his duties and to which he would not otherwise

have been exposed, I see no misuse of English in

condensing the statement of the fact by saying

simply that the employment was a contributing

factor to the aggravation etc. It is in that

sense that I should understand the language of the

definition".

18. It may be observed that clearly enough, in the present case, the requirement that the appellant should work long hours outdoors in circumstances where he was exposed to the rays of the sun constituted a "state of affairs" within the meaning of this passage. As the degree of exposure thus suffered was greater than that to which he would have been subjected were it not for his employment then, it followed, that this "state of affairs" qualified for consideration as a "contributing factor". The question of whether it in fact contributed depended upon expert evidence demonstrating the necessary causal link. It is to be noted that Kitto J, although he was concerning himself primarily with the content of the word "employment" in the section, did not feel it necessary to expound the concept of "contributing" by introducing any consideration of "materiality".

19. Windeyer J dealt with the question of contribution by employment in the following way (at p 641):

"I pass then to the next, and I think more

difficult, question, was this aggravation or

deterioration contributed to by her employment?

This requirement of the Act is not satisfied by

showing only that a worker suffering from some

disease would or might have suffered less severely

if he had not been employed at all. When the Act

speaks of `the employment' as a contributing

factor it refers not to the fact of being

employed, but to what the worker in fact does in

his employment. The contributing factor must in my

opinion be either some event or occurrence in the

course of the employment or some characteristic of

the work performed or the conditions in which it

was performed".

20. Again, it may be observed that, in this consideration of the relevant wording of the section, his Honour, like Kitto J, did not find it necessary to characterise "the contributing factor" in any way such as to require that it be "material" or "significant", "effective" or the like. Indeed his Honour said (at p643):

"Law when concerned with fixing responsibility

upon persons often seeks for the `effective cause'

or the `proximate cause' of an event. But here

all that the statute requires is `a contributing

factor'."

21. In our opinion, it follows from what is said and, indeed, from what is not said in these passages and from a consideration of the plain words that once it is established that an employee in the doing of his work was exposed to "a state of affairs to which he would otherwise not have been exposed" or to "some characteristic of or condition in which the work was to be performed" and that such exposure was in truth a "contributing" factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree. The same applies, where the complaint is not one of initiation of the condition but of its aggravation, in the sense of making it worse, or its acceleration in the sense of speeding up the progress of a progressive disease. In all cases the question is whether there has been a "contribution". Consistently with what was said by Windeyer J, "contribution" does not require that the contributing factor be a causa sine qua non; the "but for" test is not appropriate nor is the causa causans or "real effective cause" or "proximate cause" formulation. All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then, they do not "contribute".

22. The use of the word "material" in conjunction with the words "contributing factor" in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.

23. We turn then to the question whether the passage complained of in the Tribunal's judgment does in fact indicate that the Tribunal misdirected itself as to the appropriate tests to be applied. It is unfortunate that a reference was made to the requirement of the New Act. It was, in no way, necessary to consider the meaning of the New Act in relation to the task it was undertaking, namely the application of the 1971 Act to the facts as found. We are unable to agree, however, that what was said in relation to the New Act indicated any error in relation to the application of the previous one. Nothing that was said by the Tribunal indicates to us that it was failing to appreciate that its task was to determine whether as a matter of probability and not mere possibility or conjecture that the aggravation or acceleration of the appellant's condition was caused by aspects of his employment. The use of the phrase "however small" does not, in our opinion indicate that the Tribunal was ignoring or failing to appreciate that a relevant causal connection was required to be established on the balance of probabilities. We do not think that it did more than indicate that the Tribunal appreciated that once it was established to that standard that there was a causal connection between the relevant feature of the appellant's employment and the aggravation or acceleration of his condition of melanoma that the appellant became entitled to compensation under the 1971 Act even though the degree of such contribution could properly be described as only small.

24. For these reasons we are of the view that the appeal should be allowed, the order appealed from be set aside and the order of the Tribunal restored. The respondent should pay the appellant's costs of the appeal and of the proceedings before the primary judge.