Blackman, G.J. v Australia Telecommunications Corporation

[1990] FCA 427

Re: GEORGE JOHN BLACKMAN
And: AUSTRALIAN TELECOMMUNICATIONS CORPORATION
No. NSW G350 of 1990
FED No. 427
Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Pincus(1), Foster(1) and Hill(1) JJ.

CATCHWORDS

Compensation - Whether applicant entitled to compensation for "permanent impairment" under s.24(1) Commonwealth Employees' Rehabilitation and Compensation Act 1988 - mesothelioma contributed to by exposure to asbestos while Commonwealth employee - condition arose prior to commencement of current Act - effect of transitional provisions of Act - meaning of "permanent impairment".

Commonwealth Employees' Rehabilitation and Compensation Act 1988, ss.24, 25, 44, 45, 124(3)

Compensation (Commonwealth Government Employees) Act 1971

HEARING

SYDNEY

#DATE 16:8:1990

Counsel for the applicant: Mr M. Joseph

Solicitors for the applicant: Turner Freeman

Counsel for the respondent: Mr C. Gee QC and Mr J. Curtis

Solicitors for the respondent: Sparke, Helmore and Withycomb

ORDER

The application be dismissed.

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

JUDGE1

This is an appeal from the Administrative Appeals Tribunal affirming a determination made by a delegate of the respondent under the Commonwealth Employees' Rehabilitation and Compensation Act 1988 ("the 1988 Act"). The determination is to the effect that the applicant suffers from mesothelioma, that the applicant's employment by the Postmaster General's Department from 7 May 1946 to 17 October 1960 has not materially contributed to the contraction, aggravation, acceleration or recurrence of that disease and that the applicant is not entitled to compensation.

1. The applicant, born on 15 May 1917, worked as a motor vehicle fitter during service in the Army beginning in 1940, and from 1946 worked until 1960 as a motor mechanic in the Postmaster General's Department. Throughout the whole of this time, the nature of his work exposed him to asbestos. He was retired medically unfit in 1960 on the ground of disabilities related to war service, namely hypertension and anxiety, and did not thereafter engage in paid employment. In 1986 he began to have trouble with his lungs and in November 1988 he was diagnosed as having mesothelioma. The Tribunal held that the disease, which is a malignant and fatal lung condition, commonly caused by asbestos, was "contributed to, to the required extent, by his employment with the respondent". The liabilities under the relevant legislation incurred by the Postmaster General have, it was common ground, become those of the respondent.

2. The matter argued before the Tribunal was whether the applicant is entitled to compensation under s.24(1) of the 1988 Act, which reads as follows:
   

"Where an injury to an employee results in a permanent impairment, the Commission is liable to pay compensation to the employee in respect of the injury."

1. It was common ground that the applicant has, at relevant times, been an "employee" within the meaning of that provision and we find it unnecessary for the purposes of the present case to consider the correctness of that view.

2. The Tribunal held that the applicant had no…