Comcare v Starkey

Case [2017] FCAFC 151

FEDERAL COURT OF AUSTRALIA

Comcare v Starkey [2017] FCAFC 151

File number: NSD 381 of 2017
Judges: KENNY, COLLIER AND FLICK JJ
Date of judgment: 21 September 2017
Catchwords: WORKERS’ COMPENSATION – appeal from Administrative Appeals Tribunal – whether dependant previously recovered state workers’ compensation for same injuries – whether Tribunal erred in its interpretation of ss 48 and 118 Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether Tribunal incorrectly identified the injury suffered
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Asbestos-related Claims (Management of Commonwealth Liabilities) Act 2005 (Cth) s 5

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5, 5A, 5B, 17, 17(1), 48, 48(1), 48(1)(a), 48(4), 118, 118(1), 118(1)(a), 118(1)(b)

Civil Liability Act 2002 (NSW) s 15B(2)

Dust Diseases Tribunal Act 1989 (NSW) s 11A

Workers’ Compensation (Dust Diseases) Act 1942 (NSW) ss 8(2B)(b)(i), 8(2B)(b)(ii)
Cases cited:

Hadfields Steel Works v Meyer [1962] HCA 34; (1962) 108 CLR 171

Meyer v Hadfields Steel Works Ltd (1961) 79 WN (NSW) 322; [1962] NSWLR 645

Telstra Corporation Ltd v Worthing [1999] HCA 12; 197 CLR 61

Withenshaw and Department of Defence [1999] AATA 37; 28 AAR 416
Date of hearing: 14 August 2017
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 38
Counsel for the Applicant: Mr PE Hack QC with Mr PG Woulfe
Solicitor for the Applicant: Lehmann Snell Lawyers
Counsel for the Respondent: Mr M Joseph SC with Mr S Tzouganatos
Solicitor for the Respondent: Turner Freeman Lawyers

ORDERS

NSD 381 of 2017
BETWEEN:

COMCARE

Applicant
AND:

ROSLYN STARKEY

Respondent

JUDGES:

KENNY, COLLIER AND FLICK JJ

DATE OF ORDER:

21 SEPTEMBER 2017

THE COURT ORDERS THAT:

1.The appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) filed on 17 March 2017 be dismissed.

2.The applicant pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

THE COURT:

  1. This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of a Judge of this Court sitting as Deputy President in the Administrative Appeals Tribunal (AAT).

  2. On 11 December 2014, Mrs Roslyn Starkey, the respondent in this matter, submitted a claim to Comcare, the applicant in this matter, under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) as a dependant of her late husband, Mr Graeme Walter Starkey. Mr Starkey died on 28 July 2014 from asbestosis. It is common ground that Mr Starkey was exposed to asbestos during the course of his employment for various employers, including the Commonwealth. On 10 March 2015, Comcare denied Mrs Starkey’s claim and affirmed this decision on 29 April 2015.

  3. Mrs Starkey applied to the AAT for a review, where his Honour set aside Comcare’s decision of 29 April 2015 and remitted the matter for reconsideration.

    Background facts

  4. The facts of…

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AGLC
Comcare v Starkey [2017] FCAFC 151
Case
[2017] FCAFC 151
Decision Date

CaseChat Overview and Summary

The case of Comcare v Starkey involved an appeal from the Administrative Appeals Tribunal (AAT) concerning a claim for workers' compensation by Mrs Starkey, following the death of her husband, Mr Starkey, due to asbestosis. Mr Starkey had previously recovered damages for his asbestosis in proceedings under the Workers’ Compensation (Dust Diseases) Act 1942 (NSW). The primary legal issues before the court were whether the AAT had correctly interpreted sections 48 and 118 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), and whether the AAT had correctly identified the injury for which Mrs Starkey sought compensation. The court examined whether Mr Starkey's previous recovery of damages under state legislation precluded Mrs Starkey from seeking compensation under the Commonwealth Act and whether the injury identified by the AAT was consistent with the injury for which Mr Starkey had previously recovered damages.

The court found that the AAT had not erred in its interpretation of sections 48 and 118 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Section 48 was not intended to operate distributively, and the AAT's interpretation of section 118 was also correct. The court held that the AAT correctly identified the injury as asbestosis, which was the same injury for which Mr Starkey had previously recovered damages. The court further found that the AAT did not err in concluding that the award of common law damages to Mr Starkey took into account his exposure to asbestos while employed by the Commonwealth. The court dismissed the appeal and ordered that the applicant pay the respondent's costs.

Orders

Orders of the court

1. The appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) filed on 17 March 2017 be dismissed.

2. The applicant pay the respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Mrs Starkey applied to the AAT for a review, where his Honour set aside Comcare’s decision of 29 April 2015 and remitted the matter for reconsideration. Background facts The facts of the matter are set out in [11]-[31] of his Honour’s reasons for decision and are not in dispute. Relevantly, Mr Starkey worked in the private sector in New South Wales between 1960 and 1965, and again between 1968 and 1969. He worked as a Commonwealth employee at the Garden Island Dockyard in New South Wales for a period between 1969 and 1970, and on a full-time basis between 27 July 1981 and 5 November 2012. During these periods Mr Starkey was exposed to asbestos. It is not in dispute that he was subject to very significant exposure to asbestos in the period 1981-2012. Based on the evidence before the AAT, his Honour found that, of Mr Starkey’s total exposure, 60% occurred while working at Garden Island Dockyard, with the remaining 40% occurring while he worked in the private sector (at [14]). On 2 December 2010, the Medical Authority of the Dust Diseases Board of New South Wales constituted under the Workers’ Compensation (Dust Diseases) Act 1942 (NSW) (Dust Diseases Act) certified, among other things, that Mr Starkey had developed the disease asbestosis, that his condition was reasonably attributable to his exposure to the inhalation of dust, and that the proportion of his total exposure to dust reasonably attributable to occupational exposure in New South Wales within the meaning of the Dust Diseases Act was 20%. In 2013 Mr Starkey sought damages pursuant to s 11A of the Dust Diseases Tribunal Act 1989 (NSW) in the Dust Diseases Tribunal, against Warringah Industrial Park Pty Ltd as the first defendant, Comcare as the second defendant and AAI Limited as the third defendant. We note that Comcare was joined to the proceeding in that Tribunal pursuant to s 5 of the Asbestos-related Claims (Management of Commonwealth Liabilities) Act 2005 (Cth). In those proceedings, Mr Starkey also claimed damages under s 15B(2) of the Civil Liability Act 2002 (NSW) for loss of his capacity to provide gratuitous domestic services to his wife, referable to identified disabilities of Mrs Starkey. Three verdicts and judgments were handed down by the Dust Diseases Tribunal on 6 September 2013 in favour of Mr Starkey. They were by consent and without admission of liability on the part of the defendants. Inclusive of costs, Mr Starkey recovered:·a judgment in the sum of $15,300 against Warringah Industrial Park Ltd;·a judgment in the sum of $793,700 against Comcare; and·a judgment in the sum of $85,000 against AAI Ltd. Mr Starkey died on 28 July 2014. On 18 August 2014, Mrs Starkey applied for compensation to the Dust Diseases Board in her own right as the spouse and dependant of Mr Starkey under the Dust Diseases Act. The Medical Authority of the Dust Diseases Board certified on 21 August 2014 that Mr Starkey had died from asbestosis, that his death was reasonably attributable to his inhalation of dust, and that the proportion of his total exposure to dust reasonably attributable to occupational exposure in New South Wales within the meaning of the Dust Diseases Act was 20%.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is this decision which was the subject of his Honour’s decision.AAT decision In examining material relevant to Mr Starkey’s condition, his Honour relied on unchallenged expert evidence of Professor ABX Breslin, a consultant thoracic physician. In particular his Honour cited (at [28]-[29]) the following comments of Professor Breslin:Diffuse pulmonary fibrosis (or scarring) caused by the inhalation of asbestos fibres is referred to as asbestosis. Asbestosis is defined as diffuse interstitial fibrosis of the lung resulting from the inhalation and retention of considerable numbers of asbestos fibres usually after prolonged exposure. Asbestosis usually requires lifetime exposures of 20-25 fibre/ml years in total although much lower doses have been reported to be associated with the development of asbestosis. Interestingly, only 50% of people heavily exposed to asbestos develop asbestosis and the reason for this is not known. All periods of exposure contribute to the development of the asbestosis and this occurs not so much because of an interaction between the separately inhaled fibres but rather because of separate reactions dealing with each fibre contributing reactive oxygen species which added together may produce asbestosis. Thus, where an individual works in a number of industries, it is the cumulative effect of the asbestos fibres so inhaled in those industries which may lead to the development of asbestosis; were for example the individual not to work in one or other of those industries total inhaled asbestos may not be sufficient to cause asbestosis. In Mr Starkey’s case, if he had not worked at the dockyards it is more probable than not that he would not have developed asbestosis as both myself and Mr Starkey estimate that his exposure at the dockyard was the heaviest and it certainly went on for the longest time of all the individual periods of exposure. As indicated above, lifetime exposure levels of 20-25 fibre/ml years are generally considered to be needed before asbestosis is at risk of developing but lower levels of total exposure have been associated with the development of asbestosis, down to as low as 4.5 fibres/ml years.Thus each fibre that is inhaled causes toxicity both directly and through the cellular mediators liberated by that exposure and these reactions are working independently of one another. It is the totality of the reactions that may lead to the development of asbestosis. Not all heavily exposed individuals develop asbestosis.…Can it be said that each exposure to asbestos fibre causes its own independent damage from those fibres from that exposure which remain in the lung and which then engage in the development of fibrosis? In this sense do you consider the condition of asbestosis divisible from each exposure a victim may suffer?Each exposure to asbestos fibre causes its own independent damage and 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. Whilst divisible and indivisible are a legal term and not a medical one asbestosis in my view is a divisible disease and the disease results from each exposure.…Thus can it be said that any physical damage or pathological changes (short or long term) caused from one exposure to asbestos fibre is separate and distinct from the physical damage or pathological changes (short or long term) caused to the lung from another and subsequent exposure?The physical damage and pathological changes caused from one exposure to asbestos fibres is separate and distinct from the physical damage and/or pathological changes caused to the lung from another and subsequent exposures. In this connection as I indicated above, if this man had not worked at the dockyards 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.(Original emphasis.)

Ratio Decidendi

Legal Principle Established

The grounds of appeal before this Court were as follows:1.The [AAT] erred in law at [84] in that:a.it construed s 48 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) to operate “distributively”, in the sense described by the [AAT] at [84]; whereas b.the effect of s 48, on its proper construction, is that where an employee recovers damages in respect of an injury, as described in s 48(1)(a), a result is that s 48(4) is engaged so as to prevent recovery to, or for the benefit of, the dependant in respect of the injury. 2.The [AAT] erred in law in failing to hold that the construction given to s 48 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in the decision of Withenshaw and Department of Defence [1999] AATA 37; 28 AAR 416 was incorrect. 3.The [AAT] erred in law at [76] in that:a.it construed s 118 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) to operate “distributively”, in the sense described by the [AAT] at [76]; whereas b.the effect of s 118, on its proper construction, is that if an employee recovers State workers’ compensation in respect of an injury, as described in s 118(1)(a), a result is that s 118(1) is engaged so that compensation is not payable under the Safety, Rehabilitation and Compensation Act 1988 (Cth) to, or for the benefit of, a dependant in respect of the injury that resulted in the death of the employee. 4.The [AAT] erred in law at [87] in that, necessary to the [AAT]’s conclusion at [87], finding that the award of common law damages to Mr Starkey by the Dust Diseases Tribunal on 6 September 2013 did not take into account Mr Starkey’s exposure to asbestos while employed by the Commonwealth. 5.The [AAT] erred in law in that, in making its decision, it failed to identify, or otherwise incorrectly identified, the “injury”, for the purpose of s 17(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), that resulted in the death of Mr Starkey. Consideration At the hearing of the appeal it quickly became apparent that the primary issues for determination by the Court were:(1)the nature of the injury suffered by Mr Starkey for which compensation was paid to Mrs Starkey under the Dust Diseases Act (being relevant State workers’ compensation legislation), and whether that injury suffered by Mr Starkey was the same as the injury for which Mrs Starkey sought compensation from Comcare in these proceedings (grounds 3 and 5); and(2)in circumstances where Mr Starkey had been awarded common law damages by the Dust Diseases Tribunal in respect of his injury, whether s 48 operated to preclude Mrs Starkey from seeking compensation under the SRC Act (grounds 1 and 2). No submissions were made by Comcare specific to ground 4. In any event we have difficulty understanding this ground in circumstances where:·the multiple references to [87] of his Honour’s AAT decision are unclear;·it was common ground – and his Honour accepted – that damages had been awarded in favour of Mr Starkey against Comcare in the Dust Diseases Tribunal; ·the ground does not explain the necessary assumption on which his Honour proceeded in [87], and in respect of which his Honour allegedly erred; and·no light is cast on this ground by reference to subsequent paragraphs of his Honour’s decision.