Comcare v Starkey

[2018] HCATrans 57

[2018] HCATrans 057

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S253 of 2017

B e t w e e n -

COMCARE

Applicant

and

ROSLYN STARKEY

Respondent

Application for special leave to appeal

KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 23 MARCH 2018, AT 11.54 AM

Copyright in the High Court of Australia

MR P.J. HANKS, QC:   I appear with MR P.G. WOULFE for the applicant.  (instructed by Lehmann Snell Lawyers)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR S. TZOUGANATOS, for the respondent.  (instructed by Turner Freeman Lawyers)

KEANE J:   Yes, Mr Hanks.

MR HANKS:   Thank you, your Honour.  I already have the red light.  Your Honours know that the focus of the application for special leave is section 118 of the SRC Act which appears on page 82 of the application book and it is contingent, as your Honours can see in subsection (1), on “an employee [recovering] State workers’ compensation in respect of an injury”.  Effectively, that is the contingency.  As your Honours know, “injury” is a concept term that pervades this Act and I may if provoked later, your Honours, take the Court to Canute where this Court spelt out the meaning of that concept, but I do not need to do that at the moment.

I will continue with section 118.  On that contingency ‑ the employee has recovered State workers’ compensation or it “is recovered by, or for the benefit of, a dependant” ‑ your Honours can see that in paragraph (b) ‑ then “compensation is not payable under this Act”, if I can rely on the next few words:

to, or for the benefit of, that dependant in respect of the injury that resulted in the death.

That is the central provision.  It alludes to section 17 of the Act, which is the section that provides for liability in Comcare to pay compensation to a dependant.  The compensation is paid in respect of the injury that resulted in death.  That is the effect of section 17, which your Honours will see on page 80 of the application book.

Now, with that…..statutory context, there are three findings of fact made by the Tribunal in this matter, the fact‑finder, that between them provide the support for our application for special leave.  The first is the finding which your Honours can see on page 7 of the application book in paragraph 1, that the present respondent submitted a claim on 11 December 2014:

for a work‑related death, being the death of her [late] husband . . . from asbestosis (end stage) as a result of his employment at Garden Island.

I perhaps should add a little footnote there – that, of course, is employment by the Commonwealth.  That is the first fact.  The second fact, which your Honours will find on page 13 of the application book in paragraphs 24 and 25, is that State workers’ compensation was recovered by the respondent, and that recovery was on 18 September 2014.  Your Honours will see that in paragraph 25.  That recovery was by reason of the certification that appears in paragraph 24 of the Tribunal’s reasons, namely, that the respondent’s late husband died from asbestosis.  So that was the reason that State workers’ compensation was recovered.

The third leg for this tripod, your Honours, we can find on page 14 of the application book and I would ask your Honours to look at paragraph 30 in the Tribunal’s reasons, about 14, point 7.  One of the distinctive features of the way the Tribunal reasoned here was to adopt unreservedly the opinion from Professor Breslin and here we see an example of that:

I accept the opinion of Professor Breslin that all periods of asbestos exposure –

And then there are three periods of exposure described in broad terms, but the first two are not employment by the Commonwealth; they are employment that is subject to the Workers’ Compensation (Dust Diseases) Act (NSW).

KEANE J:   Professor Breslin, as appears from page 14 at about line 23, says:

each exposure to asbestos fibre causes its own independent damage ‑ ‑ ‑

MR HANKS:   He does that, but I would ask your Honour to focus on the critical finding made by the Tribunal that the New South Wales workers’ compensation was paid by reason of death from asbestosis.  That is the injury that gave rise to the entitlement to compensation under the New South Wales legislation, and that is the injury in respect of which the present respondent’s claim for compensation was made under the SRC Act.  There is one other finding of fact, your Honours, that I wanted to take the Court to.

EDELMAN J:   But the definition in ‑ or the provision in section 118(1) relating to an injury does not have to pick up whatever the meaning of “injury” or “disease” is in the State workers’ compensation legislation.

MR HANKS:   Of course not.

EDELMAN J:   It has its own meaning in Canute and May ‑ ‑ ‑

MR HANKS:   That is right, it has the meaning given to it, and your Honour will recall section 5A which is found on page 76 and your Honour might also recall what the High Court said in the case of Canute to which I can take your Honours shortly.  But, undoubtedly, the question is here, coming back to section 118, whether the present respondent claimed from Comcare compensation as a dependant – I am looking at the end of section 118 – “in respect of the injury that resulted in the death”.  The finding of fact made by the Tribunal is that the compensation was claimed in respect of the respondent’s late husband’s death – I took your Honours to it, it is on page 7 of the application book – from “asbestosis (end stage)”.

EDELMAN J:   You do not dispute that asbestosis – or the finding that asbestosis is a cumulative disease?

MR HANKS:   Absolutely, and that is why the references on page 14 of the application book are critical, because we find, for example, at about line 23:

it is the cumulative effect of the fibres and the chemical reactions associated with each fibre which then may result in the development of fibrosis or asbestosis.

EDELMAN J:   Well, it is a disease that may be the cumulative result of a number of injuries.

MR HANKS:   No, your Honour, cumulative result of a number of incidents here, a number of inhalations of fibre, and if I could take your Honours down to line 40, here is the opinion which has been expressed by Professor Breslin and accepted by the Tribunal:

if this man had not worked at the dockyards it is more probable –

and I would stop there for a moment; that is a reference to employment by the Commonwealth, so if this man had not been employed by the Commonwealth:

it is more probable than not that he would not have developed asbestosis because his cumulative exposure is unlikely to have been sufficient from the other employments.

Now, I could come back to your Honour Justice Edelman on the alternative view, as it were, of the facts.  Let us assume that we could see each inhalation of an asbestos fibre as an injury.  That is not the injury in respect of which this claim for compensation under the SRC Act is lodged by the respondent.  It is not the injury in respect of which the ‑ ‑ ‑

EDELMAN J:   Well, it is one ‑ if the disease is a result of an accumulation of a number of injuries, it is one of the injuries in respect of which the death resulted.

MR HANKS:   No, your Honour, the injury that is identified by the Dust Diseases Board in the decision that is noted in paragraphs 24 and 25 on page 13 of the application book is asbestosis.  It is the accumulation of asbestos fibres.  In our submission, there is here in that finding made by the Tribunal by reference to the Dust Diseases Board and in the underpinning injury behind the claim for compensation in this Act, there is an absolute identity.  Because there is an identity, the exclusion in section 118(1) operates.

Now, I had said earlier to your Honours that lying behind a lot of the problem in this case is we think an omission on the part of the Tribunal, and indeed the Full Court, to address the sense in which “injury” is used in the SRC Act.  Your Honours will be, I trust, familiar from our written submissions that we rely on what was said in the case of Canute v Comcare that “injury” is not used in the sense of some workplace accident or incident, but it refers to the resultant effect of that incident upon the employee’s body, and here the resultant effect, that which results in death, is asbestosis.

KEANE J:   Can you tell us what is wrong with what the Full Court says at page 45, paragraphs 28 and 29, particularly 28?

MR HANKS:   Well, your Honour, it should be clear that we think that the conclusion expressed at the end of paragraph 28, second last sentence and, indeed, the last sentence, is plainly mistaken.  The respondent’s late husband – I am sorry, I will start again.  The respondent herself received compensation referable to asbestosis because, as the Tribunal found, the Dust Diseases Board:

certified that Mr Starkey had died from asbestosis ‑

Your Honours can see that on page 13 of the application book.

KEANE J:   That certification is not conclusive of this question.  The question here is to be resolved by reference to Professor Breslin’s evidence.  It is not determined by the way in which the Dust Diseases Tribunal framed its conclusion.

MR HANKS:   Your Honour, it is concluded by the answer to this question.  If one looks at section 118, the question is subsection (1) – was State workers’ compensation recovered by the dependant of a deceased employee?  If so:

compensation is not payable under this Act . . . in respect of that injury –

I think I should reframe that, your Honour:

compensation is not payable under this Act . . . to, or for the benefit of, that dependant in respect of the injury that resulted in the death.

So that the question ‑ ‑ ‑

KEANE J:   And is it not the case that on Professor Breslin’s evidence the injury that was the subject of compensation in the Dust Diseases Tribunal, being a number of incidents of damage by reason of the fibres, is not the injury that resulted in death?  Is that not the effect of Professor Breslin’s evidence?

MR HANKS:   In our submission, certainly not, your Honour.  The effect of his evidence ‑ ‑ ‑

KEANE J:  

his cumulative exposure is unlikely to have been sufficient from the other employments.

MR HANKS:   Exactly.  Exactly, your Honour.  So what one needed was cumulative exposure from all employments.  The way in which both – well, the way in which the New South Wales system works is to ‑ under section 8 of the New South Wales Act, which is in part reproduced commencing on page 85 of the application book, if your Honours go to subsection (1) at the bottom of that page, the operative provision is in paragraph (b) on the next page at about line 15 where the:

Panel certifies that a person died from a dust disease and that the person’s death was reasonably attributable to the person’s exposure to the inhalation of dust in an occupation –

then your Honours can see that:

the dependants of such person shall –

if certain findings are made in (i) or (ii), that person is:

entitled to an award from the Authority, and to receive compensation –

So that simple question was the question addressed by the Dust Diseases Board and the medical authority and it is the subject of the finding of this Tribunal in paragraph 24.

EDELMAN J:   Except paragraph (b) is speaking of a disease and section 118(1) is speaking of an injury and as I understand ‑ ‑ ‑

MR HANKS:   That is not a problem, your Honour.

EDELMAN J:   As I understand Professor Breslin’s evidence, is that that translates into the fact that the inhalation of the fibres caused injuries and it was the cumulative effect of the injuries that gave rise to the disease of asbestosis.

MR HANKS:   And that is the cumulative of all inhalations, not only those suffered in what I might describe as New South Wales employment, because I think I have already taken your Honours to the opinion of Professor Breslin that, if not for the Commonwealth employment, the accumulation would not have been sufficient to ‑ ‑ ‑

EDELMAN J:   So really your complaint then is that “resulted in” should be a “but for” test and not a test of contribution.

MR HANKS:   No, your Honour.

EDELMAN J:   It is not a complaint about injury at all.

MR HANKS:   With respect, no, your Honour.  Your Honour understands that “injury” is defined in section 5A on page 76 of the application book and it has these alternative meanings.  The first alternative is:

a disease suffered by an employee –

So “disease”, which is then defined in section 5B as:

an ailment

. . . 

contributed to, to a significant degree, by the employee’s employment by the Commonwealth –

that is the first category of injury.  The second category of injury is:

an injury (other than a disease) –

which has a different connection to employment.  So, in our submission, your Honour, it is of no consequence whether one characterises the asbestosis as an injury other than a disease or as a disease.  In each case, where death is the result of asbestosis because asbestosis is a disease either through the avenue of – I am sorry, it is an injury through the avenue of disease or an injury other than a disease – the operation of section 118 is to preclude payment of compensation under this Act.  Why?  Because, as 118 puts it, State workers’ compensation has been recovered by the dependant.

EDELMAN J:   Perhaps if I put it this way.  Do you accept that an injury within the definition of section 5A includes the effect of an incident upon the employee’s body being an ascertainable adverse physiological effect?

MR HANKS:   Did your Honour say excludes?

EDELMAN J:   Includes.

MR HANKS:   Yes, certainly, that is the clear effect of the Court’s reasons for judgment in the case of May.

EDELMAN J:   If that is so, why does not Professor Breslin’s evidence show that each inhalation meets that definition?

MR HANKS:   Well, it might, but the difficulty here, your Honour, is that the compensation has been paid under its New South Wales workers’ compensation.  It has been paid to the respondent.  It has been paid consequent upon the death of her late husband.  It has been paid because, in the assessment of the Dust Diseases Board, he died from asbestosis.

EDELMAN J:   But it could be both.  An injury could be asbestosis, but it could also include the inhalation of fibres that cause an adverse physiological change.

MR HANKS:   But, your Honour, it was not.  The finding made by this Tribunal which is set out in those paragraphs – I trust I am not trying your Honour’s patience too much ‑ but we do not accept that that was how the matter was dealt with.  Paragraphs 24 and 25 on page 13 of the application book are clearly expressed.  In our submission, they are findings of fact as to the basis on which the State workers’ compensation was paid for the benefit of the present respondent.

If I might say so, if I go back to the Full Court’s reasons, Justice Keane, the Full Court’s atomisation, splitting of that essential finding of fact into the series of findings that Justice Edelman put to me, flies in the face of the evidence.  The evidence is there was an accumulation of exposure through both periods of employment.  That accumulation resulted, through a process which is scientifically understood, in the development of asbestosis.  Asbestosis was the basis for the award of compensation by the Dust Diseases Board.  Asbestosis is the basis for the claim for compensation under section 17.

KEANE J:   Thank you, Mr Hanks.

MR HANKS:   Thank you, your Honour.

KEANE J:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, our learned friend’s argument based itself in the first place upon a tripod I think of facts was the expression used.  Tripods have an element of instability about them, if one is sitting on something on which they are based, and the starting point in that regard in this case is that our learned friend’s argument spends a great deal of time on the question of injury, but does not spend much time on the fact that that is a defined term.

Your Honours, if one looks at the first leg of the tripod – I will not go on about that – if one looks at the first leg of it, however, one needs to identify what is the claim now being made under the Act, and that is the claim which is referred to in two parts in the Tribunal’s reasons.  The first is in paragraph 1 at page 7 and your Honours will see there expressed in the fourth line the death:

as a result of his employment at Garden Island.

No claim being made in respect of a period before that.  It is as a result of employment at Garden Island.  Similarly, your Honours, at paragraph 27 at page 13, one sees again the words:

as a result of his employment at Garden Island.

It was a claim, to use the language of section 118, in respect of the injury that caused his death and, more specifically, it was a claim that there had been injury to him resulting from employment at Garden Island and, your Honours, “injury” is of course a defined term.  The Tribunal referred to the definition at paragraphs 67 and 68 on page 22, and may I take your Honours to the definitions which are set out more fully at pages 76 and 77?

Your Honours will see that if one goes to paragraph (a) of the definition of “injury” in section 5A(1), it includes disease.  “Disease” is itself defined by section 5B to include:

an ailment . . . or

(b)      an aggravation of such an ailment ‑

“Ailment” is very widely defined at page 63 in section 4(1) and immediately above it, and your Honours will see the words:

(whether of sudden onset or gradual development).

You will see the word “aggravation” defined as including “acceleration or recurrence” immediately above that.  Your Honours, if one goes back to the definitions at pages 76 and 77 again and return to the definition of “injury” for the moment, your Honours will see it includes an injury other than a ‑ I am sorry, as well as including a disease, it includes in paragraph (b):

an injury (other than a disease) –

And then your Honours will see it also includes the:

aggravation of a physical or mental injury –

And your Honours will see that goes on also.  It is, with respect, difficult, in our submission, to see why the description of the effect of ingestion of the asbestos fibres during employment by the Commonwealth did not amount to an injury as defined by the Act.

Could we refer in that regard, your Honours, to what we have said in our response, paragraphs 15 and 16 at page 94?  Your Honours, one asks hypothetically why was not the employment by the Commonwealth at the very least capable of being an aggravation of an injury or ailment and particularly, your Honours, when one bears in mind that at least 60 per cent and on some parts of the material 80 per cent of his exposure to asbestos occurred while working at Garden Island.

Your Honours, the evidence of Professor Breslin is clear.  May I take your Honours very briefly to the relevant parts of that?  Your Honours will page 14, paragraphs 28 and 29 – I think I should have said page 13, paragraphs 28 and 29.  Your Honours, without reading out those things, could I refer also to page 25, paragraph 80, and in particular “each exposure to asbestos fibre” et cetera, and then, your Honours, to the additional passages from his evidence before the Tribunal that we have quoted at page 92 in paragraphs 12 and 13.  That is one question.  Your Honours, I see the ‑ ‑ ‑

KEANE J:   I think you can ignore it.

MR JACKSON:   Thank you, your Honour.  Your Honours, may I say that takes one to the – I am sorry, the position really so far as the claim being made under the Commonwealth Act was concerned, his position was no different from that of someone, say, who had come from an overseas country to work at Garden Island, worked for the Commonwealth, but in the overseas country he had had previous exposure to asbestos; the exposure working for the Commonwealth was the subject of the claim under the Commonwealth Act.

One looks then to the second question that in effect arises under section 118, and that is whether State workers’ compensation had been recovered by Mrs Starkey.  Well, a, but an inadequate, answer to that would be to say yes, it had, but for what injury was the State workers’ compensation recoverable?  That question, your Honours, can be seen resolved at page 13 in paragraphs 24 to 26.  One had a situation where he had suffered, as your Honours would have seen from the evidence of Professor Breslin, a number of injuries which altogether when you add them up one by one by one bring about a situation where it had become very difficult to breathe.

Your Honours, a question that arose was how much of that was attributable – in this individual, how much of that was attributable to New South Wales?  The answer, of course, is that one has to do it with an element of simplicity and brutality in a way, but 20 per cent was taken as the figure, and the 20 per cent related to the exposure in New South Wales.  So that, your Honours, the position was that the State compensation related to the period when he was in non‑Commonwealth employment and we would submit no error has been shown in the Tribunal’s statement of the position at paragraph 81, page 25 and puts it, in a sense, very shortly.

Could I say, your Honours, just a couple of other things?  One is that the decisions now relied on by the applicant in our submission support the result that was arrived at by the Tribunal and the Full Court.  Your Honours, could we just say that if one goes to the decisions relied on by our learned friends, the first is Military Rehabilitation and Compensation Commission v May.  I want to take your Honours simply to what we have said about that in our response, and I am referring to page 95, paragraphs 19 and following.  At page 95, in paragraph 20, what your Honours will see – I am looking about line 8 on the page – that, having described what was involved in injury, what was then said is the:

physiological change or disturbance . . . may be internal or external . . . It may be for example, the breaking of a limb, the breaking of an artery, the detachment of a piece of the lining of an artery –

et cetera, and our Honours will see the remainder of that paragraph.  If one looks at the reference to Canute in paragraph 21, your Honours will see in the last few lines of that the reference to the passage which says there may be more than one injury, in effect, that takes place and, your Honours, that is necessarily so because of the concept of aggravation, for example.

Your Honours, finally in this regard could we say the contention that this case in some way conflicts with the earlier decision of the Full Court of the Federal Court in Comcare v Etheridge, in our submission, should not be accepted.  We have quoted the relevant passage from that case on page 96, finishing at line 10.  It demonstrates that it all depends on the evidence and the circumstances.  Your Honours, the questions which are said to be the special leave questions are at page 51.  They need to be read with the proposed grounds of appeal on page 50.

Could we say, your Honours, simply these things?  First of all, in relation to ground 2.1, that seems to give no weight to the defined integers which go to make up the concept of injury as so defined, in particular, aggravation.  As to ground 2.2, that misstates, in our submission, with respect, what the Tribunal found.  The Tribunal was dealing with a claim that the exposure to asbestos during employment at the dockyard added to the results of exposure already there and that that was the cause of death.  As to ground 2.3 ‑ ‑ ‑

KEANE J:   And was an injury separate from that sustained earlier on.

MR JACKSON:   Quite, your Honour.  I gave an example of someone who had come from overseas, a worker who had been employed to work at the building of a ship and the worker had been exposed in similar other occupations overseas and had exposure to asbestos, had the damage to his lungs as referred to in the evidence, but he had not yet got asbestosis.  He develops asbestosis from working 20 years, say, there and, having done that, that is the injury on which he is making a claim.  It is the injury there, working there.  And, your Honours, to put it shortly, the aggravation caused by the exposure at Garden Island was a later event than the events in respect of which anything was payable under the State legislation.

Our learned friend’s argument – your Honours, this is the final matter ‑ our learned friend’s argument – submissions suggest at page 58 in paragraph 28.4 that this is an administration of justice case but, your Honours, if one looks at the matters at paragraph 32 of our response,

which your Honours will see at pages 98 and 99, they are very much against that contention, in our submission.

Your Honours, may I just say there is one mistake in 32(a)?  It is a reference to FC[18] and it should be FC[8].  Your Honours, if special leave is granted, the matters which are set out in our learned friend’s submissions at page 59, paragraph 30, should be a condition of the grant in relation to costs.  Your Honours, those are our submissions.

KEANE J:   Thanks, Mr Jackson.  Mr Hanks.

MR HANKS:   Thank you, your Honour.  Can I first, with respect to our friends, clear away some distracting possibilities that have been raised.  Our friends refer to the possibility of a worker coming from overseas to work at Garden Island and being exposed, no doubt, before coming to Australia, to asbestos and then being exposed to it at Garden Island and, while working there over a period, it is discovered that the man has got – I am making that gendered assumption – asbestosis.

Plainly, it can be said of that person, that worker, that he has either suffered an ailment to which employment with the Commonwealth has made a significant contribution, and that is the causal relationship that is required by section 5B, and therefore that person has an injury which is compensable under the SRC Act.  Alternatively, if we characterise the asbestosis as an injury other than a disease, that will be an injury arising out of his employment by the Commonwealth.  That is clear.  “Arising out of” only requires a contribution. 

So, in the circumstances that our friends have posited, there is no difficulty in saying that there is compensation.  Just as here, for example, if the 80:20 or 60:40 percentages had been very different, assume that 10 per cent in Commonwealth employment and 90 per cent in State employment, the evidence is that the asbestosis is the consequence of the accumulation of exposure to asbestos.  That is the clear fact.

In those circumstances, it can be said that that disease, if the disease is one to which employment with the Commonwealth made a significant contribution, or alternatively if it is an injury other than a disease, is one of which you can say it arose out of Commonwealth employment.  That is all that would be required and so it would be compensable. 

The second matter I want to deal with was a point our friends made by reference to page 13 in the application book.  We are going here to findings made by the Tribunal beginning at paragraph 24 and through to 26.  Now, a rhetorical question perhaps raised by our friends, well, how much of the asbestosis was attributable to employment in New South Wales covered

under the Compensation Act (NSW)?  That is not relevant to the operation of the SRC Act.  It does not matter how much was attributable to that.

The fact is that by reason of employment with the Commonwealth, there has been either the contraction of the disease that was contributed to by the employment or the sustaining of an injury that arose out of Commonwealth employment, and that is an injury as defined in section 5A.  It is sufficient to found liability in Comcare to pay compensation to the dependant where that injury has resulted in death.

Now, our friends also raised the question, a true rhetorical question, why is it that the description of the effects of exposure to asbestos did not themselves amount to an injury?  That is because in the present case the cause of death was not each of those, but rather their accumulation, their accumulation in the form of asbestos.  That accumulation identifies very clearly with Professor Breslin described as asbestos being a cumulative disease.

Your Honours, there is one final point I wish to make.  The relevant injury for which the respondent made her claim was asbestosis.  She did not make any claim for the effects of the inhalation of asbestos fibres one by one or episode by episode.  The Tribunal found that all periods of her late husband’s asbestos exposure in both State and Commonwealth employment contributed materially to the development of the asbestosis.  Your Honours will see that in paragraph 30 of the Tribunal’s reasons.  The injury that resulted in the death of her late husband was asbestosis, so identified by the Dust Diseases Board.

KEANE J:   I see the red light, Mr Hanks.

MR HANKS:   Thank you, your Honour.  But for 118, the respondent would be entitled to compensation under section 17.  Thank you, your Honours.

KEANE J:   Thank you, Mr Hanks.

In our view the decision below turned on findings of fact and the proposed appeal raises no question of principle of general importance that would warrant the grant of special leave to appeal.  Special leave is refused with costs.

AT 12.36 PM THE MATTER WAS CONCLUDED