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 entitlement to compensation under the 1988 Act, because any such entitlement was destroyed by s.124(3) of that Act, a transitional provision, which is set out below.

3. The claim sought to be established before the Tribunal was, as we have said, one under s.24(1) for compensation for a "permanent impairment". Each of these words is separately defined in s.4(1) of the 1988 Act, as follows:
   

"'impairment' means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;" "'permanent' means likely to continue indefinitely".

1. The word "injury" is also defined, but there was no dispute that the circumstances fit that definition, so that we do not trouble to set it out.

2. Sections 24 and 25 of the 1988 Act make provision for determination of compensation for permanent impairment by a commission established under the Act, namely the Commission for the Safety Rehabilitation and Compensation of Commonwealth Employees. The amount of compensation to be paid is proportionate to the degree of permanent impairment (which is determined as a percentage), but sub-s.24(7) says:
   

"Subject to section 25, where the Commission determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section."

1. It should be noted that sub-s.24(7) does not provide that there can be no "permanent impairment" within the meaning of the 1988 Act of a lesser percentage than ten; it assumes the contrary.

2. Section 25 permits the Commission to make more than one determination of the degree of impairment. Under sub- s.25(1), where the degree of impairment is equal to or more than 10% and there has been no "final determination of the degree of impairment", the Commission, if requested by the employee before final determination, may make an interim determination of the degree of permanent impairment. Then under sub-s.24(3), the Commission may later make a final determination of the degree of permanent impairment. Each of these determinations gives a right to payment of the corresponding proportion of the maximum amount, $80,000 (sub- s.24(9)). Under sub-s.25(4):
   

"Where the Commission has made a final assessment of the degree of permanent impairment of an employee, no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10% or more."

1. It can be seen that the need for more than one assessment of the degree of permanent impairment resulting from an injury might arise because of some difficulty in assessing the severity of a stationary condition or because the condition for which compensation is claimed changes in its severity. In our view, the Commission may, in the latter case, make an interim determination reflecting the degree of permanent impairment at one point in the progress of the condition and then a further determination or determinations as the condition worsens. That is, of course, subject to sub-s.25(4) quoted above, which limits the right to further compensation after a "final assessment". Sections 24 and 25 do not appear to treat the situation just described, in which an impairment grows worse as time passes, as producing a series of separate permanent impairments, and that is a matter which it is necessary to take into account in construing s.124(3).

2. Sub-sections (1) and (3) of s.124 read as follows:
   

"(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day. ...

(3) A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:

(a) the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or

(b) the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:

(i) where the impairment or death occurred before the commencement of the 1930 Act -under the 1912 Act;

(ii) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act - under the 1930 Act as in force when the impairment or death occurred; or

(iii) in any other case - under the 1971 Act as in force when the impairment or death occurred."

1. The "commencing day" and "commencing date" was 1 December 1988. Before that date, the applicant had been diagnosed as suffering from mesothelioma, as we have mentioned, and there is no doubt that there was then - i.e. before the commencing date - a permanent impairment within the meaning of the Act. The earlier Acts referred to, namely those of 1912, 1930 and 1971, are the Commonwealth Workmen's Compensation Act 1912, the Commonwealth Employees' Compensation Act 1930, and the Compensation (Commonwealth Government Employees) Act 1971. Since the impairment occurred after the commencement of the 1971 Act, it is sub-para 3(b)(iii) of s.124 of the 1988 Act which is relevant; it is clear that the applicant had no entitlement to lump sum compensation in respect of his impairment under the 1971 Act. The reason is simply that the 1971 Act did not provide for lump sum compensation in respect of mesothelioma.
   

2. Therefore, the applicant has no entitlement to compensation under s.24 or s.25 of the 1988 Act in respect of his permanent impairment if it was "an impairment ... that occurred before the commencing date".

3. The only substantial argument advanced by Mr Joseph, for the applicant, was that relevant "permanent impairment" occurred after as well as before the commencing date, and that that occurring after brought s.24 into play.

4. There was some evidence before the Tribunal that the disease, and therefore the degree of impairment, had generally worsened since the condition was first diagnosed, in accordance with its natural progress. It appears that treatment alleviated the effects of the disease at one stage, but the applicant's overall condition has tended to deteriorate. Mr Joseph's contention amounted to this: although there is only one disease and, having regard to the definition of injury in s.4(1), therefore only one "injury", if the impairment consequent upon it has worsened substantially after the commencing date, then that worsening in itself constituted an "impairment" within the meaning of sub-s.124(3), occurring after the commencing date.

5. If the contention of behalf of the applicant is correct, then each time an impairment worsens significantly, there is a new impairment within the meaning of the 1988 Act. We cannot read the relevant provisions in this way. The scheme of the Act, in particular of ss.24 and 25, is not that as a disease progresses, the aggravation of its consequences constitutes a series of new impairments, each giving rise to a separate liability to pay compensation. If that were so, then small increments of aggravation of the impairment would not be compensable at all; for under sub-s.24(7) there is no right to compensation if the degree of permanent impairment is determined to be less than 10%. As an impairment worsens, further rights to compensation may accrue under s.25, but not because there is another distinct impairment.

6. To achieve the result that a variation (substantial or otherwise) of the degree of impairment should be treated as a new impairment for the purposes of sub-s.124(3), different language would have been necessary. The natural reading of "impairment ... that occurred before the commencing date" is such as to cover the case in which there is but a single impairment, which came into existence before the commencing date and thereafter fluctuated in intensity but generally worsened.

7. The consequence is that the applicant is not entitled to compensation under ss.24 and 25 of the 1988 Act in respect of his permanent impairment, because it occurred, i.e. came into existence, before the commencing date.

8. It is necessary to make reference to some other points which were discussed at the hearing before us. One was whether the applicant's claim is defeated by sub-s.124(2) of the 1988 Act; in view of our conclusion as to sub-s.124(3), we think it unnecessary to deal with that point. Mr Joseph also raised the question of the relationship between s.124 on the one hand, and ss.44 and 45 of the 1988 Act on the other. Sections 44 and 45 deal with abolition of rights to sue under the common law for damages in respect of injuries sustained. The contention appeared to be that unless some emendation is read into sub- s.124(3), then in a case of the present kind, ss.44 and 45 produce a result which cannot have been intended. We gathered that the purpose of making the claim for compensation with which we are concerned was to lay a foundation for a common law damages claim. We find it unnecessary to deal with this point at length, for it is clear, and was admitted, that to remove the anomaly alleged to arise from ss.44 and 45, substantial redrafting would be necessary. For ourselves, we cannot see that any implication which could, under orthodox principles of statutory construction, be made in sub-s.124(3), could assist in eliminating the mistake said to be found in ss.44 and 45. This Court cannot undertake the role of supervising Parliament's work, by substantially altering the language it has chosen, in order to achieve a result more in harmony with what is contended to be a proper state of the law.

9. This Court does not have jurisdiction in these proceedings to determine whether the consequence of ss.44 and 45 of the 1988 Act was to deprive the applicant of any common law rights which he may have had against the respondent as at the commencement date, 1 December 1988, in circumstances where no statutory right of action was substituted. If, however, the applicant be an "employee" for the purposes of those sections (a question we do not decide) that result would seem to follow. If this be, in fact, an unintended consequence of these provisions, the matter is one that would seem to merit the urgent attention of the legislature.

10. In the end, however, the only arguable point before us is a short one and we agree with the Tribunal's view that the point must be decided, as a matter of construction, against the applicant.

11. The application will be dismissed.