Rankin v Idoko Pty Ltd [2000] NSWCC 19; (2000) 19 NSWCCR 607 (20 April 2000)

Last Updated: 30 October 2000

[2000] NSWCC 19; (2000) 19 NSWCCR 607

RANKIN v IDOKO PTY LTD & ANOTHER

[2000] NSWCC 19

Compensation Court of New South Wales: Ashford J

7, 8 June 1999, 23 November 1999, 8 February 2000 (H)

20 April 2000 (J)

Workers compensation - Injury - Relationship to employment - Disease of malignant melanoma - Employment as a bricklayer - Genetic predisposition to disease - Prolonged cumulative exposure to ultra violet rays of sun - Employment to the nature of which disease was due - Workers Compensation Act 1987 (NSW), s 4, s 15

M.J. Joseph SC and F. Austin, for the applicant

L. King SC, for the first respondent

Cur adv vult

1 ASHFORD J: John Raymond Wall died on 8 February 1997 of the effects of a malignant melanoma. This claim is made by Kay Rankin as executrix of his estate on behalf of his dependent children, Jodie Lee Wall born 9 September 1984, and Tiffany Louise Wall born 26 September 1986. There is no dispute that at the time of his death those children were totally dependent.

2 Luisa Wall is the mother of those children. She was joined as second respondent to these proceedings, and was not originally represented. When the matter came before the Court on 23 November 1999, I was advised that, after taking legal advice, she did not wish to pursue any claim and would accept the order of the Court.

3 The claim is pleaded on the basis that John Raymond Wall (hereinafter known as the deceased) was employed by the first respondent between December 1995 and 4 October 1996, and pursuant to s 15(1)(a) of the Workers Compensation Act 1987 (the Act) the deemed date of injury is 8 February 1997.

4 The first respondent has defined the issues, submitting that as a matter of law bricklaying is not an employment to the nature of which the disease of malignant melanoma is due, and, if it was such an employment, then the period during which the deceased worked for the first respondent after 1986 was a period after the melanoma had been diagnosed, and as a result the deceased followed advice and took precautions to avoid sun exposure.

5 The applicant called Trevor Collis to give evidence. He worked with the deceased on a variety of work sites from the mid-70s until 1996 on many occasions, and said he worked with the deceased on the last job before he died. He said during the period between 1975 and 1986 they worked together around 50 per cent of the time, and he estimated much of the work to be on "cottage work" which he said was all outdoor work. He was asked whether the deceased wore a shirt on the cottage work and said "... that particular time we used to really just turn up for work with thongs and shorts, turn up in a singlet and then as soon as the sun came up you'd take your singlet off".

6 He described the deceased as being red haired and fair skinned, and said whilst the deceased "... used to get a bit of a tan, once he burnt he'd lose it, it would go and then he would start again". He said that on odd occasions the deceased would wear a hat if his nose was peeling, and he also observed him to peel on the back during summer. He described the deceased as wearing shorts rather than long trousers.

7 He said he was aware that the deceased had a "scare" in 1986, and after that time he still worked with him a lot. He said the deceased continued to wear shorts in the summer months, but after 1986 he began to wear a short sleeved shirt and also an old straw hat. On some project sites he said it was necessary to wear plastic crash helmets, but otherwise the deceased wore the straw hat. He said he also wore steel capped boots and socks, but noticed the deceased would be burnt on exposed areas such as his face, arms and legs during the period between 1986 to 1996. It was his evidence he did not see the deceased apply any sunburn cream to those areas during that period.

8 Mr Collis identified a protective linen cover which could be worn over a hard hat which protected the ears and the neck, but said these were not provided to workers on the Idoko sites. He said on the last job he worked with the deceased, much of the work was on perimeter walls, and he estimated that some 90 per cent of the job had involved such work.

9 In cross-examination he agreed that he was aware the deceased had a malignant mole removed from his back in 1986, and agreed it was noticeable after that time he took precautions to cover up. He maintained he had not seen the deceased apply sunblock to the exposed parts of his skin. He was asked whether much of the outdoor work was performed in the shade because of nearby structures or because of the weather conditions, and agreed this could happen on the odd occasion. He did not concede much of the time would be spent in shady areas. He was asked whether he had observed the deceased to be sunburned as a result of activities away from work, and totally disagreed with such a proposition. Mr Collis was also cross-examined as to his knowledge of indoor bricklaying work such as maintenance bricklaying work and answered:

Well, I've yet to see anyone who can get a full-time maintenance bricklaying job ... I can honestly say I've never come across bricklayers that can just rely on maintenance brickwork ... I'm not denying it doesn't exist, but I am saying that you would not get enough on maintenance--you may get the odd maintenance job, but there's no way you would get enough to keep you going.

10 Evidence was called by the first respondent of Robert Hugh Johnson. He is a bricklaying contractor who holds a builder's licence, and is the managing director and principal of the first respondent company. He gave evidence he had first met the deceased some 25 years ago. Their relationship was in a partnership for a period of time, and at a later time the deceased worked for him on and off. Mr Johnson gave evidence that prior to his death the deceased had worked for the first respondent from about December 1995 to October 1996 on the Mingara Club on the Central Coast. He said he was aware the deceased had a malignant mole cut from his lower back in 1986. It was his evidence that prior to 1986 he was unable to recall whether the deceased had worn any protective covering or applied sunscreen to any part of his body. After the operation, however, he said the deceased wore a straw hat, and would apply sun cream to his face and arms. He said the deceased also always wore a shirt, and in hot weather wore shorts, with long pants in the cooler weather. He said he had seen the deceased applying sun cream in the mornings.

11 In cross-examination Mr Johnston agreed he had not observed the deceased actually applying sun cream every morning, but said he had seen him working with the cream on him and had also seen him apply it. He could not identify any particular type of cream, nor whether it was water proof or not. It was his recollection that in particularly hot weather the deceased would put a handkerchief underneath or through the back of his hat to cover his neck, and he thought he may have seen this on about six occasions. He was asked:

Q. Mr Johnston, if there were a hot sunny day in June or July would you have a recollection about whether he wore blockout then?

A. I can't say. It was just such a common occurrence to apply sunscreen that I can't say that I saw him. I know John covered himself in hot weather. I know he just covered himself in hot weather. It's just--John, you know--John would, if there was a situation where he didn't have a hat, he would have one of them-- one of us always get him a cheap straw hat at the chemist at morning tea. He'd always cover himself as much as possible.

12 He agreed he recalled occasions when the deceased did not bring a hat to work and would work without a hat until morning tea at about 10.00 am, although he said on such an occasion the deceased would borrow a hat.

13 The applicant called Associate Professor John Kelly to give evidence. He is in private practice in dermatology in Melbourne, holding academic positions at the Alfred Hospital and Monash University. He is Head of the Victorian Melanoma Service and Head of the Dermatology Unit at the Alfred Hospital.

14 In his opinion there is good epidemiological evidence to show that indoor workers are at greater risk of melanoma than outdoor workers, but agreed that outdoor workers do have an increased risk for melanoma compared to those who do not expose their skin at all. He agreed with the suggestion that the reason why outdoor workers are not at a greater risk is because they tan gradually in the spring, and he thought this to be the generally accepted rationale. He was asked:

Q. Is the tanning process one where there are multiple days of sun initially, might be burned gradually, diminishing as the tan develops?

A. That certainly could happen if there were some intense days of ultraviolet light; some days where it was unaccustomly (sic) warm. It's possible that outdoor workers who could tan might still burn as the spring and summer came on.

Q. That process, would that create an increased risk of melanoma, on the evidence that we know of?

A. Yes, it would.

In relation to a definition of an outdoor worker, he advanced this proposition:

A. There's no generally accepted definition of an outdoor worker, and one has to, in interpreting the evidence, look at the definitions in individual studies which vary, so I think it is generally accepted, that an outdoor worker is someone who predominantly works outdoors, so it's predominant work outdoors generally.

15 He agreed that Sydney, relative to most places in the world, was an area of high ambient ultraviolet light and that general UV exposure carries with it, for both indoor and outdoor workers in that area, a higher risk of melanoma. He described there as being a small percentage of the population, i.e. less than 10 per cent of people, who do not tan. He thought it probable the deceased had a lot of sunburn, and this was the most potent way to generate a melanoma, believing that a lot of sunburns are the most potent marker of the pattern of sun exposure that cause a melanoma. He gave evidence that:

... we never literally, almost never, see melanomas in totally sun protected sites--they are extraordinarily rare. Almost all of the melanomas we see in tanners or non-tanners occur in areas that are at least intermittently sun exposed.

16 Professor Kelly agreed the use of sunscreen reduced the risk factor, but qualified that by saying the efficacy depended on how high an SPF factor the cream had, and how often it was re-applied, and it was his view, no matter how thoroughly sunscreens were used, there would still be some UV getting through. He agreed it is also possible to sunburn through some clothing depending on the closeness of the weave, and that it was possible to get melanoma through clothing. In his view it was not that the applicant was a bricklayer which caused the melanoma but the fact he was in the sun. He thought cumulative exposure a substantial contributor to its development.

17 The respondent called evidence of Dr Edmund Lobel, a specialist dermatologist. He had the opportunity of examining the deceased prior to his death, and furnished a report of 2 December 1996, as well as further reports of 17 February 1997, 18 November 1997 and 21 October 1998. In relation to the aetiology of malignant melanoma, he agreed that, like just about every other cancer, the cause is unknown; however, he agreed sunlight may be a factor in a proportion of cases. On his understanding of the history given by the deceased, he thought sunlight may well have been a factor in the aetiology of this case, on the basis the deceased had worked for many years frequently without a shirt. He was in agreement with the proposition that, in consideration of Mr Wall's disease process and his death, sun exposure after 1986 was not relevant. He agreed that after 1986 there had been secondary or metastatic melanoma which had spread from the primary lesion. He agreed that if subsequent to 1986 the deceased had done what he could to cover up by applying sunscreen, wearing head wear and a shirt, this reduced the risk of a new primary melanoma, whilst saying there would still have been a certain amount of risk due to the damage he already had by 1986. In relation to the role of exposure to ultraviolet rays in the causation of malignant melanoma, it was his view it did not matter what job one was performing when there was exposure, it was just exposure to the sun which caused the damage, although he did not routinely associate bricklaying with the disease of malignant melanoma. He agreed that in relation to the incidence of malignant melanoma, anybody could contract such a condition on any area of skin, covered or not, but if there was sun-damaged skin then that area had an increased risk.

18 The history Dr Lobel obtained from Mr Wall was that he had been engaged in work as a bricklayer since leaving school and almost all of the work of a bricklayer was outdoors. In relation to clothing worn at work he noted that this "includes shorts and t-shirt during the summer and trousers and t-shirt during the winter months. During the summer he frequently took off his shirt for four to five hours per day. He wore a cap at work until about 10 years ago when his melanoma was first diagnosed and since then he has always worn a wide straw hat". There is no history obtained of the deceased wearing sun cream.

19 On examination, Dr Lobel found there to be a moderate to severe degree of solar damage to the skin affecting the whole of the face, the ears and most of the back. He noted these areas to be spotted with freckles and a number of pre-malignant actinic hyperkeratoses were present. The forearms and chest were also involved to a lesser degree, which he thought probably due to the presence of hair on those sites. He observed the deceased to have a Celtic complexion as indicated by his red hair, fair freckled skin and blue eyes. He noted that persons of such complexion burn easily and usually do not tan, and are recognised to be at higher risk of developing malignant melanoma particularly if exposed to chronic solar radiation. He thought there was "no question" he received significant sun exposure and therefore sun damage to his skin during his years working as a bricklayer since leaving school. He noted "it is, however, well recognised that the risk of development of a malignant melanoma is greater where chronic exposure has occurred. The risk from chronic sun exposure is greater in persons with genetic fair skin (Celtic complexion)". He was prepared to opine the nature of the work performed by the deceased over the past 30 years had been a significant contributing factor to the development of malignant melanoma. Noting leisure activities had been primarily indoors, he thought a contribution to his risk of malignant melanoma came from his genetic make-up, but the remaining contribution came from his work as a bricklayer. He agreed that research seems to support the proposition that cumulative exposure materially increased the risk of suffering melanoma.

20 In his report of 17 February 1997, Dr Lobel thought that on the basis the deceased had taken appropriate precautions to protect himself from the sun after removal of the melanoma, the contributory cause of sun exposure to the development of the metastatic melanoma was acquired prior to 1986.

21 Dr Lobel agreed, however, with the proposition that proper precautions would minimise the effects of UV sun exposure but that areas which remained exposed would attract a substantial risk of melanoma developing. This included the back of the neck and the legs. He said that before he would be satisfied there was a decrease in the risk of melanoma by the application of sun cream, it would be necessary to know the strength of the cream, and the regularity of the application, and he agreed that sweating was a factor as it could wash away the chemicals in the cream. He agreed that the nature of the clothing worn and its colour was also relevant in relation to such an approach.

22 The respondent also called evidence of Professor Gerald Milton. He is presently Emeritus Professor of Surgery at the University of Sydney. As Professor of Surgery, he had established a Sydney Melanoma Unit which he described as being the largest unit of its kind in the world. His reports of 15 November 1997, 6 August 1998 and 21 October 1998 were tendered. In relation to the cause of melanoma Professor Milton said:

It's in some way related to sun exposure but it's not a direct relationship and it's not a simple relationship. The first time this was shown was in about 1958 when David Nelson and Lancaster at Sydney University showed that the deaths from melanoma in this country increased as you went north and that the lowest death rate from melanoma was in Tasmania and the highest in Queensland ... So it's obviously related in some way to sun exposure. But the difficult thing comes in that it's not related to people who work outside. People who work outside apparently have some form of protection and this was first shown, I think, 5 or 10 years ago; but there are two papers in the current issue of the Melanoma Research Journal, which I get, one from Spain and one from Sweden, and both of them show that outdoor workers have a resistance or are less likely to get melanoma than people who stay indoors and have holiday-type sun exposure when they go out occasionally and get burnt. The person who works in the sun doesn't have a high instance of melanoma, here nor anywhere else.

23 He gave evidence that dark-skinned races are pretty well immune to melanoma and to other forms of skin cancer, and the most sensitive are northern Europeans or people with conditions like albinism or something of that sort, and thus the sensitivity to skin cancer depends on skin type. In his view, the work of a bricklayer involved a significant amount of outdoor work, although perhaps from time to time a lot of under-cover work, and assuming the outdoor work involved significant exposure to sunlight, then in his view the outdoor exposure of a bricklayer would not predispose the development of a melanoma.

24 In cross-examination he agreed most of the epidemiological studies had been done on migrants who had come from a cold climate to a hot climate, and from that had come the idea that sun exposure in childhood was important. He gave an example by saying that migrants from a country of low incidence such as Northern Russia or Scotland who came to Australia, showed conclusively that if they came to Australia before 20 years of age, the risk of getting melanoma was as if they had been born in Australia. On the other hand, if they came to Australia after 20 years of age, then the risk of contracting melanoma was very much less, no matter what the occupation. He agreed that recollection as to what sun exposure there had been in childhood was unreliable. He described one of the odd things about melanoma as being that the most common site for melanoma in men was on the back, and in women on the legs, but other forms of skin cancer such as basal cell or squamous cell cancer were most common on the face and hands because there was much more sun exposure than on the back or legs. In his experience people working outdoors did not have a particularly high incidence of melanoma, nor did he feel such melanomas occurred on definitely sun-exposed parts of the body. He agreed that, if there was a low incidence in melanomas in outdoor workers, this was because some protection is built up through the tanning process. He agreed that in terms of predisposition to melanoma it was significant to know the complexion type and colour of hair, and agreed if the deceased had auburn hair and blue eyes with a fair freckled Celtic complexion, this would increase the risk of getting melanoma. He accepted as a reasonable proposition there was an overall association between sunburn and melanoma, and a suggested increased risk after cumulative sunburn exposure.

25 Professor Milton agreed that no research had been done in relation to bricklaying work where there was a mixture of indoor work and outdoor work, and agreed that, if a bricklayer worked for significant periods of time indoors and was then suddenly exposed to outdoors work, it could be there was a higher risk because of that combination. Having regard to the propositions about the effect on malignant melanoma of prolonged adult exposure to the sun in outdoor work, and the proposition that outdoor work as a bricklayer might be interspersed with regular periods of indoor work, it was his view that bricklaying was not an employment to which one would attribute malignant melanoma.

26 A histopathology report of 21 July 1986 was tendered. This indicates that three lesions were removed from the deceased's back at operation, and that the specimen from the lower back was an invasive malignant melanoma.

27 Reporting of Dr Hamish McA. Foster, Clinical Associate Professor of Surgery, dated 28 January 1997 records the primary melanoma was excised in July 1986 with development of clinical signs of metastatic disease in March 1995, which were rapidly progressive. He opined:

...current knowledge of melanoma indicates that his metastatic disease would have been present back in July 1986, but clinically undetectable until he developed a lump in the groin in 1995.

In my opinion his employment following excision of melanoma in July 1986 would not have contributed materially to the progression of his presumed occult metastases which are now causing his present incurable condition.

28 In his opinion exposure to the suns rays is a major contributing factor to the initiation and promotion of the cancerous process in malignant melanoma and the degree of sun exposure during the development of the melanoma was critical to this.

29 Clearly genetic factors such as hair and skin colour are one of the factors taken into account in relation to the onset of malignant melanoma in some individuals. The importance of exposure to sun in early life is another factor.

30 The Workers Compensation Act 1987, s 4 provides relevantly:

Definition of "injury"

In this Act:

injury:

(a) ...

(b) includes:

(i) a disease which is contracted by a worker in the course of his employment and to which the employment was a contributing factor; and

(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration ...

15 Diseases of gradual process--employer liable, date of injury etc

(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process:

(a) the injury shall, for the purposes of this Act, be deemed to have happened:

(i) at the time of the worker's death or incapacity; or

(ii) if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury; and

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

31 The phrase "an employment to the nature of which the disease was due" first appeared in the Workmen's Compensation Act 1916, and extended compensation entitlements to cases in which workmen suffered death or disability as a result of contracting certain scheduled occupational diseases. Compensation was payable by the employer who last employed the workmen during the 12 months previous to the date of disablement or suspension if this was a personal injury by accident arising out of or in the course of that employment.

32 The Workers Compensation Act 1926 (the 1926 Act) extended the liability of employers to cases in which death or incapacity resulted from any disease "contracted by the worker" where the employment was "a contributing factor" (s 6).

33 Section 7(4) of the 1926 Act identified the employer who was to pay compensation in respect of a disease "contracted by a gradual process" as the employer who last employed the worker, with contributions to that employer from other employers who in the 12 months preceding incapacity had employed the worker in "any employment to the nature of which the disease was due".

33 The operation of s 7(4) was considered by the High Court in Smith v Mann [1932] 6 WCR (NSW) 75, where Rich J said at 81:

No doubt in the case of the ultimate as in that of the other employers the employment must be one to the nature of which the disease of the worker was due, but it is not necessary that the worker should establish that that disease from which he is suffering was actually brought about or contributed to by the employment of the last employer.

34 In Commonwealth v Bourne [1960] HCA 26; (1960) 104 CLR 32, Dixon CJ, referring to the phrase "nature of employment", said at 38:

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; that employer could then claim against a previous employer employing the claimant in work of a like nature and so on down the line. It was accordingly necessary to make the nature of the work the test and not the actual work done or the employment as it actually affected the man.

36 He went on to say:

The word "nature" is a wide as well as a vague word and one must be careful not to narrow its application or attempt to reduce it to too much precision. But it does seem to refer to a connexion between the "disease" in the defined sense and the description of employment in virtue of its tendencies, incidents or characteristics.

37 Bourne was a tax inspector employed by the Taxation Department. It was alleged the stressful nature of his work accelerated coronary artery disease and he died of that disease. The allegation was that because the work of a tax inspector was stressful then this was an employment to the nature of which coronary artery disease or aggravation of it was due.

38 At 40, Fullagar J said:

I do not myself think that there was any evidence to support a finding that in any real sense the death "arose out of the employment". (It could not, of course, be suggested that it arose "in the course of the employment"). But, however this may be, the finding was not enough to support a decision in favour of the respondent under s 9. What had to be proved in order to bring the case within s 9 was that the deceased man had suffered "personal injury by accident arising out of his employment". For the reasons which I have given in Commonwealth v Hornsby I am of the opinion that there was in this case no "personal injury by accident"...

So far as s 10 is concerned, it seems to me impossible to maintain that the death of Mr Bourne was "due to the nature of the employment of which he was engaged". It was not shown, nor, I should imagine, could it be have shown, that a characteristic or distinctive feature of employment as a taxation investigating officer was a tendency to cause arterial sclerosis or myocardial degeneration, or to aggravate or accelerate an existing condition of arterial sclerosis or myocardial degeneration. Such a tendency, so far as appears, was no more part of the nature of Mr Bourne's employment than of the nature of any other responsible employment. That employment was not, so far as I can see, of such a nature as to expose Mr Bourne to a special risk of contracting any particular disease or of suffering an aggravation or acceleration of any particular disease and s 10 applies, in my opinion, only to cases in which there is such a special risk ...

39 In the present case, senior counsel for the respondent submits that exposure to sunlight is no more part of the work of a bricklayer than the work of a beach inspector or a landscape gardener, or a farmer or a whole host of other jobs. It was his submission there is no such employment as outdoor work, and that the work of a bricklayer is that of picking up bricks, putting mortar on them and laying them, and there is no evidence there is a risk of malignant melanoma generated by that task.

40 Senior counsel for the applicant submitted that the deceased in doing the work of a bricklayer had a "tendency, incidence and characteristic" to expose him to significant ultraviolet rays and it was irrelevant that other employments do the same. He submitted it is not necessary to find the risk of contracting a melanoma has to be special to a particular kind of employment citing an example that asbestos dust creates risk of injury to all types of people employed in indoor work including tradesmen, cleaners, clerks and the risk is not trade specific, as it also creates a risk to some outdoor workers. Thus it is submitted all workers who work excessively in the sun are at risk of contracting melanoma and it is thus necessary to look at the incidents, character and nature of the employment, not the contract. CIC Workers Compensation (NSW) Ltd v Alcan Australia Ltd (1994) 35 NSWLR 169 looked at such a proposition.

41 In Accident Compensation Commission v Botezatu [1993] 1 VR 304, the submission that wire-cutting machine operators were exposed to a particular risk and others were not, did not preclude a finding that the risk fell within a similar provision to s 15. Ashley J at 313:

Such approach would exclude from the purview of the section workers plainly exposed to an "occupational" risk of injury; the very type of situation which the section seeks to address. The flexibility of application of the word "employment" in the section to which I have referred prevents such a distorted outcome.

42 Whilst it is clear that some people who have major sun exposure all their lives do not contract melanoma, it is submitted this does not mean their employment does not create a risk.

43 It seems to me the evidence of Dr Lobel and Professor Kelly is significant, and accepts the proposition that exposure to ultraviolet rays is a critical factor in the development of melanoma. Each of those doctors accept that the work performed by the deceased prior to 1986 made a contribution to the onset of melanoma. Accepting their evidence, as I do, I am satisfied the applicant has suffered injury within the meaning of s 4 of the Act, being a malignant melanoma and resultant metastases and this constitutes a disease to which his employment was a contributing factor and also to the aggravation, acceleration, exacerbation and deterioration of the disease.

44 In looking thereafter to the provisions of s 15 it is necessary to show the last employment with the first respondent prior to the deceased's death was an employment to the nature of which the disease was due.

45 It is simplistic to say that the work of a bricklayer only involves laying bricks. It is clear from the evidence in this case the deceased took precautions to cover up after the excision of the melanoma in 1986. However, he was a fair skinned, redhead man. He continued employment and on the lay evidence it appears the major part of his day in employment with the first respondent was spent out of doors. There is evidence that after 1986 he wore a hat most of the time. He wore a t-shirt. However, his arms and possibly his neck were exposed. He wore shorts most of the year, and whilst he wore socks there was exposure of part of his legs. There is some evidence he applied sunscreen. It seems to me unrealistic to accept that this afforded him complete protection. There are too many variables. It is not known whether he applied the sunscreen to all exposed areas, or if he renewed it frequently. Whilst working in the sun he was liable to sweat and thus the efficacy of the sunscreen protection was reduced.

46 In Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 Cole J at 65 stated:

In my view, it is sufficient for a claimant worker to establish that the employment in which he was engaged occurred in an environment which, were he unprotected, could cause injury of the type suffered by him. If evidence establishes that circumstance, the worker satisfies the onus of establishing that at the time of giving notice he was employed in an employment to the nature of which the injury was due. It is consistent with the intent of the workers compensation legislation, and with the intent that Dixon CJ referred to in Bourne supra of giving to the worker "ready recourse by the employee to the latest employer who employed him in the 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", that this lesser onus be imposed upon the applicant. It also accords with the views expressed by Jordan CJ and Street J in Tame (1947) 47 SR 269 at 272f. The evidentiary onus then shifts to such employer sued to seek to establish that protective measures in fact in place excluded the possibility of any such injury. Like Davidson J in Tame, I prefer to express no concluded view regarding whether, if an employer were able to exclude the possibility of injury because of protective measures taken, the worker, having established the "tendency, incidents or characteristics" of the employment engaged in would, in those circumstances, fail. This case does not require a decision on that question.

47 Senior counsel for the applicant submits that it is not necessary to look to that issue as the protective measures which the applicant took did not reduce the risk of contracting melanoma to nil, as the risk clearly remained.

48 It is my view that his employment as a bricklayer did expose him to ultraviolet rays and I accept the medical evidence to the effect that cumulative exposure to the sun does create a risk of melanoma. Thus it seems to me that the incident and characteristic of a melanoma is cumulative exposure to the sun over a long period of time and such cumulative exposure is an incident or characteristic of bricklaying work.

49 I am satisfied that in the present case the tendency, incidents and characteristics of the employment of the deceased as a bricklayer gave rise to a material risk of melanoma from exposure to ultraviolet rays. I am satisfied the deceased was exposed to ultraviolet rays over a prolonged period of time which materially increased his risk of contracting a melanoma and did in fact substantially contribute to his contracting of that melanoma.

50 There will be an award for the applicant as against the first respondent.

[At [51] and [52] her Honour made findings and orders not calling for report - Ed]

Solicitors for the applicant: Taylor & Scott

Solicitors for the first respondent: Vandervords