Comcare v Starkey

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Comcare, sought to appeal a decision concerning the application of section 118 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The respondent, Ms Starkey, had claimed compensation under the SRC Act as a dependant of her late husband, who died from asbestosis. Comcare argued that compensation was not payable under the SRC Act because Ms Starkey had already recovered State workers' compensation in respect of her husband's death.

The central legal issue before the High Court was the interpretation and application of section 118(1) of the SRC Act. Specifically, the Court was required to determine whether State workers' compensation recovered by a dependant in respect of an employee's death from asbestosis precluded the payment of compensation under the SRC Act. This involved considering the meaning of "injury" within the context of the SRC Act and how it related to the injury for which State compensation was recovered, particularly where the injury was a cumulative disease like asbestosis.

Comcare's argument was that the State workers' compensation was recovered in respect of the injury of asbestosis, which caused the death. Therefore, section 118(1) operated to exclude compensation under the SRC Act. Comcare contended that the findings of fact established that Ms Starkey recovered State workers' compensation due to her husband's death from asbestosis, and this was the injury in respect of which compensation was claimed under the SRC Act. The applicant relied on the principle that if State workers' compensation is recovered for an injury, compensation is not payable under the SRC Act for that same injury. The Court was also referred to the definition of "injury" in section 5A of the SRC Act, which includes a disease, and the case law, such as *Canute v Comcare*, which defines "injury" as the resultant effect of an incident upon an employee's body.

The High Court granted special leave to appeal. The transcript indicates that the Court was focused on whether the "injury" for which State compensation was recovered was the same "injury" that resulted in death for the purposes of section 118(1) of the SRC Act, particularly in light of expert evidence suggesting asbestosis was a cumulative disease resulting from multiple exposures. The ultimate outcome of the appeal is not detailed in this transcript.