Campbell and Comcare
[2010] AATA 692
•10 September 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 692
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1479
GENERAL ADMINISTRATIVE DIVISION ) Re ELIZABETH CAMPBELL Applicant
And
COMCARE
Respondent
DECISION
Tribunal The Honourable Dr B H McPherson CBE, Deputy President and
Dr P McDermott, RFD, Senior MemberDate10 September 2010
PlaceBrisbane
Decision The Tribunal sets aside the reviewable decision of 12 March 2008 and remits the matter to the respondent to assess any compensation and funeral benefits payable to Mrs Elizabeth Campbell and any applicable medical expenses that may be payable in accordance with these reasons.
....................[Sgd]...................
Deputy President
CATCHWORDS
COMPENSATION – Compensation payable where an injury suffered by an employee results in death – Comcare have accepted liability – Issue to be determined is the indexation of the amount of compensation payable – Right to claim compensation and indexation arises at the date of the employee’s death – Decision under review affirmed.
Compensation to Relatives Act 1897 (NSW)
Fatal Accidents Act 1846 (Eng)
Local Government Act 1919 (NSW)
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 13, 14, 17, 18
British Electric Ry Co v Gentile [1914] AC 1034
Bergfels v Port Stephen Shire Council [1983] 2 NSWLR 578
Harding v Lithgow Municipality (1937) 57 CLR 186
Lees v Comcare (1999) 29 AAR 350
O’Brien v McKean (1968) 118 CLR 540
Parente v Bell (1967) 116 CLR 528
Stonedale (No 1) [1956] AC 1
REASONS FOR DECISION
10 September 2010 The Honourable Dr B H McPherson CBE,
Deputy President and Dr P McDermott, RFD,
Senior Member1. The applicant is Mrs Elizabeth Campbell. She is the widow of the late Mr Clive Burns Campbell, who died on 2 January 1998. In respect of his death Mrs Campbell claimed compensation under s 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). Section 14 is the central provision of that Act. It provides that:
“Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death.”
Comcare gave its decision on 25 June 2007 rejecting Mrs Campbell’s claim. It was affirmed on internal review, on 12 March 2008. The matter now comes to this Tribunal to review that reconsideration decision.
2. The cause of Mr Campbell’s death was exposure to ionising radiation undergone when, as a serving security officer in 1955 and 1956, he entered areas at Maralinga and elsewhere that were contaminated with radioactive dust from nuclear detonations conducted there. We consider that it is appropriate to set aside the decision of 12 March 2008 now that the respondent accepts liability under s 14 of the Act for the injury suffered by the late Mr Campbell which resulted in his death. We now have to examine how the amount of compensation and funeral benefits is to be assessed, to do so it has been necessary for us to refer to other provisions of the Act. There is ample evidence to support the cause of his death in 1998 and, for the compensation claim lodged by Mrs Campbell on 18th December 2005, this hypothesis concerning the cause of death being accepted by Comcare.
3. After this application was made to this Tribunal, on 29 November 2009, the respondent conceded its liability to pay compensation to Mrs Campbell. The application before us is now concerned not with liability but with how the amount of payment to Mrs Campbell for compensation and funeral expenses is to be determined in accordance with the Act. The respondent contends that the amount of compensation and funeral benefits is to be assessed as being the statutory rate applicable at the time of the late Mr Campbell’s death ($120,000 and $3,500 respectively for compensation and funeral benefits) indexed on 1 July 1997. On behalf of Mrs Campbell it is contended that the statutory rate for compensation and funeral benefits should be indexed up to the date of payment. We give our reasons why we consider that the amount of compensation and funeral benefits is to be assessed as being the statutory rate applicable at the time of the late Mr Campbell’s death and indexed on 1 July 1997.
4. The only issue now remaining concerns the operation of s 13 of the Act, which indexes the amount of compensation payable. Ordinarily, the law takes no account of fluctuations in the purchasing power of the national currency. Even though the impact of inflation on prices, and consequently on the purchasing power of money is notorious and readily demonstrable over a period of time, what is called the nominalist theory continues to prevail throughout the legal system. Assessments and awards of compensation are expressed in the currency of the day even though the loss occurred in the past when the purchasing power of money was different. In commenting on the phenomenon in O’Brien v McKean (1968) 118 CLR 540, at 545, Barwick CJ observed:
“In the case of…personal injuries, though there may be something to be said logically for making the assessment of damages as at the date of receipt of the injuries, the date of verdict is, in my opinion, the proper date at which to make the assessment …The assessment will therefore in general be made in relation to the purchasing power of the currency at the date of the assessment of damages.”
5. Fixing on the date of verdict for this purpose would mean that, to that extent, there is at least a limited recognition of changes in the purchasing power of the currency. The plaintiff will receive his award or his compensation in the currency of the day even though the loss or damage was sustained at an earlier date in the past when purchasing power may have been very much more or less. To that limited extent the impact of inflation already accrued would be indirectly taken into account by compensating the claimant in the currency of the day for a loss or injury sustained at some time in the past.
6. On the other hand O’Brien v McKean established that not only were past losses to be compensated in the currency at the time of assessment, but also that an award of compensation for future loss of earnings more accurately described as loss of future earning capacity, is not susceptible of adjustment to allow for likely diminution through future inflation in the purchasing power of the sum awarded. See O’Brien v McKean (1968) 118 CLR 540, 561; also Parente v Bell (1967) 116 CLR 528, 533 (Windeyer J).
7. By no means all of these considerations are relevant to an award of the statutory amounts of compensation under the Act. The major differences are, first, that the amounts of compensation payable under the Act each take the form of a lump sum as prescribed without reference to the effects of depreciation in the currency: see O’Brien v McKean, above. In fact, however, s 13 of the Act expressly provides for variations in these sums calculated in accordance with changes in the Consumer Price Index. The way in which s 13(4) is designed to operate is by replacing the existing amounts in s 17(3) and s 18(1), and substituting for these new amounts calculated to allow for indexation. What s 17(3) then requires is that, after undergoing indexation in accordance with s 13(4), the sum of $120,000 is the amount to be paid under s 17(3). The primary liability under that subsection is expressed as follows:
“(3)Subject to this section and to sections 16 and 18, if the employee dies leaving dependants some or all of whom were, at the date of the employee’s death, wholly dependent on the employee, Comcare is liable to pay compensation in respect of the injury of $120,000 and that compensation is payable to, or in accordance with the directions of, Comcare for the benefit of all of those dependants.”
8. The Stonedale (No 1) [1956] AC 1, at 12, is authority that a sum payable under a provision similar in form to s 17(3) is recoverable not as damages but as a debt independently of the amount of loss or injury actually sustained. Hence, the affect of s 17(3) is to make Comcare answerable for the sum of $120,000 after indexing it under s 13 upon proof, without more, of the matters prescribed in s 17(3), which are (1) death of the employee (2) his leaving behind at this death persons who were wholly dependent on him.
9. If s 17(3) had stood alone, its affect would have been to limit the amounts payable to Mrs Campbell to $120,000 and $3,500 for funeral expenses. In fact, the way in which s 13 works is not by increasing the sums of $120,000 and $3,500 by a percentage or otherwise but by substituting for each existing sum specified in those subsections a new sum calculated in accordance with s 13 in place of the previous amount as the amount of the compensation payable.
10. The major question for determination now is whether the amounts in s 17 specified as the benefits on death, and in s 18 as funeral benefits, are to be arrived by calculating them at one and which of the following dates:
(a)the date of death; or
(b)the date on which the benefit is claimed; or
(c)the date on which the claim is determined; or
(d)the date on which it is paid.
(See respondent’s written submission at paragraph 11)
11. Comcare contends for the first of these dates; the applicant for one of the others. To someone with legal training the date of death looks like the obvious choice: it is then that the liability of Comcare accrues or is complete. And it is at that moment that Comcare becomes “liable to pay compensation … in respect of an injury suffered by an employee if the injury results in death.”
12. Although there is no decision precisely in point under the Act, the date of death has been held to be the relevant event for the purpose of cognate provisions of the English Fatal Accidents Act 1846 and corresponding legislation in Australia such as the Compensation to Relatives Act 1897 (NSW). It is true that the Act of 1846 is fault-based, whereas the Commonwealth Act of 1988 imposes liability independently of fault. There is however a sufficient similarity between the scheme and the design of each of the two statutes to justify applying a decision on the Act of 1897 to a question like this under the Act of 1988.
13. Contrary to the general rule in O’Brien v McKean, the 1988 Act expressly provides for amounts specified in that Act to be indexed. Indexing operates in accordance with s 13 of the Act. In fact the way in which s 13 is expressed is not simply to increase those amounts by a percentage overall, but rather to substitute appropriately increased amounts for those previously specified in the two subsections that provide for payments of benefit on death (s 17) and fix maximum funeral benefits (s 18). This is said to raise the question referred to in para 11 of the respondent’s written submissions of when calculation of the increase is to take place. As mentioned in paragraph 9 above, that paragraph of the submissions suggests that it will be one of the ones identified in paragraph 11 above; that is to say:
(a)the date of death; or
(b)the date on which the benefit is claimed; or
(c)the date on which the claim is determined; or
(d)the date on which it is paid.
14. Comcare favours the first of these dates; the applicant supports one of the others. To a legally trained mind, the date of death has obvious attractions because it is then that primary liability on the part of Comcare arises or is complete. It is at that moment that Comcare becomes “liable to pay compensation … in respect of an injury suffered by an employee if the injury results in death.”
15. Although there is no decision precisely in point under the Act, death has been held to be the relevant event for the purpose of applying the provisions of the cognate English Fatal Accidents Act 1846 and corresponding legislation in Australia, such as the Compensation to Relatives Act 1897 (NSW). Although there are obvious differences in the schemes of the two Acts, similarities of some provisions are sufficient to justify applying decisions under one to the other. In Harding v Lithgow Municipality (1937) 57 CLR 186 a man was injured while working for the Council and died two days later. His widow sued the Municipality without having first given written notice of action as required by s 580 of the Local Government Act 1919 (NSW). The Full Court of New South Wales ruled that the omission to give notice was fatal to the widow’s claim and defeated her action. On appeal this decision was reversed by the High Court of Australia. Rich J said (57 CLR at 194) “Failure in this regard does not put an end to the cause of action or disentitle the claimant to prosecute the claim.”
16. The other Justices of the High Court gave judgments to similar effect. Latham CJ said (57 CLR at 192) that s 580 prescribed a condition precedent to maintaining the cause of the action, but that condition “cannot itself be regarded as part of the cause of action” and it did not determine “whether or not a person injured is entitled to maintain an action within the meaning of the Compensation to Relatives Act”. With this Sir Owen Dixon agreed, saying (57 CLR at 194) that:
“the imposition in favour of a particular defendant of a condition of suit, such as giving notice, is a procedural matter not going to the validity of the title to enforce the liability, but only to the mode of enforcing it, or the fulfilment of a preliminary procedural condition.”
17. Evatt J, who also agreed, cited the decision of the Privy Council in British Electric Ry Co v Gentile [1914] AC 1034, in which Lord Dunedin said ([1914] AC 1034 at 1041), that “the punctum temporis”[1] at which the test is to be taken is the moment of death…”. At that moment … the test is absolute. If therefore the deceased could not, if he had survived at that moment have maintained, i.e. successfully maintained, his action, the fact that he might subsequently lose his right to maintain the action was “immaterial” (57 CLR at 197). In discussing what Lord Dunedin had said in 1914, Evatt J at 197 remarked:
“Accepting the interpretation of the statute which refers the court to the position existing at the moment of death the respondent contends that, unless at the moment of death the deceased has already satisfied every legal requirement (including notice of action etc) without which such an action could not be maintained the deceased is not in a position to maintain an action, and the claim failed.”
[1] Point of time
His Honour said the construction advanced by the respondent (which was the defendant Council in that appeal) did violence to the words of the relevant section of the Compensation to Relatives Act1897 (NSW) and should be disregarded.
18. It seems to us that the same reasoning applies here: Mrs Campbell’s title to the sums prescribed in s 17(3) and s 18(1) arose when her husband died as a result of the injury inflicted by exposure to radiation, which was when the terms of s 14 of the Commonwealth Act were satisfied and complete. There was no postponement or referral to any later events of her right to recover the amounts of compensation specified, and her failure to comply with Part V of the Act was immaterial, as was the failure in Harding’s case to give notice under s 580. We are, of course, bound by the decision in Harding’s case, where Dixon J said that the widow acquired her title to sue at the date of her husband’s death (at 195). Failure to give notice was, as with ss 53 and 54 of the Act of 1988, simply a procedural matter not going to the validity of her title to enforce the pecuniary liability imposed by that Act.
19. We consider that the application to review the decision given on 12 March 2008 should be refused. As was said by the Full Federal Court (Wilcox, Branson and Tamberlin JJ) in Lees v Comcare (1999) 29 AAR 350 at [34]
“… A determination under s 14 cannot amount to more than a determination that Comcare “is liable to pay compensation in accordance with this Act” in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare’s liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.”
20. No claim for medical expenses was advanced on behalf of Mrs Campbell. However, the applicant may have a claim to medical expenses under the Act: see s 13(2). We have drafted the form of decision to allow Mrs Campbell to make a claim for medical expenses and to enable the respondent to investigate that claim.
21. The foregoing considerations and authorities confirm in our view that the right under s 14 of the Act, as well as the right to indexation, arise at the date of the employee’s death, and not at the date of determination of the amount or the date of the claim for payment. Each of those events, as Dixon J said of them in Harding v Lithgow Municipality, go only to the mode of enforcement or at most to fulfilment of a preliminary procedural condition. They are not constituent elements of the cause of action or the title of the claimant to be paid the sums due as compensation under ss 17 and 18.
22. We set aside the reviewable decision of 12 March 2008 and remit the matter to the respondent to assess any compensation and funeral benefits payable to Mrs Elizabeth Campbell and any applicable medical expenses that may be payable in accordance with these reasons.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of The Honourable Dr B H McPherson CBE, Deputy President and Dr P McDermott, RFD, Senior Member
Signed: ....................[Sgd].......................................................
Kate Slack, Research AssociateDate/s of Hearing 30 July 2010
Date of Decision 10 September 2010
Applicant was assisted by Alan Emmerson
Counsel for the Respondent P Hanks QC
Solicitor for the Respondent Jane Lye, Australian Government Solicitor
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