Hill and Ors and Comcare and Ors - [2005] AATA 408

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 408
ADMINISTRATIVE APPEALS TRIBUNAL )
) № W2000/422

GENERAL ADMINISTRATIVE DIVISION )

Re
FRANK HILL

Applicant

And

COMCARE

Respondent
And AUDREY MAUDE HILL
Joined Party

ADMINISTRATIVE APPEALS TRIBUNAL )
) № W2001/12

GENERAL ADMINISTRATIVE DIVISION )

Re
FRANK HILL

Applicant

And

TELSTRA CORPORATION LIMITED

Respondent
And AUDREY MAUDE HILL
Joined Party

ADMINISTRATIVE APPEALS TRIBUNAL )
) № W2001/199

GENERAL ADMINISTRATIVE DIVISION )

Re
AUDREY MAUDE HILL

Applicant

And

COMCARE

Respondent

ADMINISTRATIVE APPEALS TRIBUNAL )
) № W2001/348

GENERAL ADMINISTRATIVE DIVISION )

Re
AUDREY MAUDE HILL

Applicant

And

TELSTRA CORPORATION LIMITED

Respondent

ADMINISTRATIVE APPEALS TRIBUNAL )
) № W2001/429

VETERANS’ APPEALS DIVISION )

Re
FRANK HILL

Applicant

And

MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent
And AUDREY MAUDE HILL
Joined Party

ADMINISTRATIVE APPEALS TRIBUNAL )
) № W2001/16

GENERAL ADMINISTRATIVE DIVISION )

Re
INGEBORG ETHERIDGE

Applicant

And

TELSTRA CORPORATION LIMITED

Respondent

ADMINISTRATIVE APPEALS TRIBUNAL )
) № W2001/118

GENERAL ADMINISTRATIVE DIVISION )

Re
INGEBORG ETHERIDGE

Applicant

And

COMCARE

Respondent

ADMINISTRATIVE APPEALS TRIBUNAL )
) № W2001/350

GENERAL ADMINISTRATIVE DIVISION )

Re
THE PUBLIC TRUSTEE

Applicant

And

TELSTRA CORPORATION LIMITED

Respondent

ADMINISTRATIVE APPEALS TRIBUNAL )
) № W2001/430

GENERAL ADMINISTRATIVE DIVISION )

Re
CEDRIC ETHERIDGE

Applicant

And

COMCARE

Respondent
And THE PUBLIC TRUSTEE
Joined Party

ADMINISTRATIVE APPEALS TRIBUNAL )
) № W2001/431

VETERANS’ APPEALS DIVISION )

Re
CEDRIC ETHERIDGE

Applicant

And

MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent
And THE PUBLIC TRUSTEE
Joined Party

DECISION

Tribunal

Associate Professor S D Hotop, Deputy President

Dr D Weerasooriya, Member

Date6 May 2005
Place Perth

Decision

The decisions of the Tribunal in respect of the Applications for Review are as follows:

·     Application № W2000/422

The Tribunal sets aside the decision under review and, in substitution therefor, decides that Comcare is liable, under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”), to pay compensation in accordance with that Act in respect of an “injury” (as defined in s 4(1)), being a “disease” (as defined in s 4(1)), namely, mesothelioma, which resulted in the death of Frank Hill (“Mr Hill”).

·     Application № W2001/12

The Tribunal affirms the decision under review

·     Application № W2001/199

The Tribunal sets aside the decision under review and, in substitution therefor, decides that Comcare is liable to pay compensation pursuant to s 17 and s 18 of the SRC Act in respect of an “injury” (as defined in s 4(1)), being a “disease” (as defined in s 4(1)), namely, mesothelioma, which resulted in the death of Mr Hill.

·     Application № W2001/348

The Tribunal affirms the decision under review.

·     Application № W2001/429

The Tribunal sets aside the decision under review and, in substitution therefor, decides that the Military Rehabilitation and Compensation Commission (“MRCC”) is liable, under s 14 of the SRC Act, to pay compensation in accordance with that Act in respect of an “injury” (as defined in s 4(1)), being a “disease” (as defined in s 4(1)), namely, mesothelioma, which resulted in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] AATA 408
Decision Date: 6 May 2005

CaseChat Overview and Summary

The case of Hill and Ors v Comcare and Ors involved employees who were exposed to asbestos during their employment with the Defence Force, Postmaster-General’s Department, and Australian Telecommunications Commission between 1939 and 1977. These employees were diagnosed with mesothelioma in 2000 and subsequently died from the disease in the same year. The primary dispute centred on the liability of Comcare and the Military Rehabilitation and Compensation Commission (MRCC) for compensation related to the employees' mesothelioma.

The legal issues before the court included determining whether the inhalation of asbestos fibres constituted an injury or a disease, and if so, when the statutory liability to pay compensation began. It was established that mesothelioma is classified as a disease, not an injury per se. The court also had to ascertain the point at which the employees' disease of mesothelioma resulted in impairment and whether there was any accrued or actual liability to pay compensation prior to the enactment of the Safety, Rehabilitation and Compensation Act 1988.

The court reasoned that Comcare and MRCC were liable to pay compensation for the disease of mesothelioma, as it resulted in the employees' deaths. The liability arose under the Safety, Rehabilitation and Compensation Act 1988, specifically sections 14, 17, and 18. The court held that while there was no actual or accrued statutory liability to pay compensation prior to 1988, Comcare and MRCC were liable to compensate the employees for the disease of mesothelioma resulting in their deaths. The court also determined that Telstra was not liable for compensation in this matter.

The Tribunal's decisions included setting aside certain previous decisions and affirming others, concluding that Comcare and MRCC were liable for compensation in respect of the mesothelioma that resulted in the deaths of the employees. The Tribunal ordered that Comcare and MRCC pay the applicants' costs in accordance with the Tribunal’s General Practice Direction.

Orders

Orders of the court

The decisions of the Tribunal in respect of the Applications for Review are as follows:

· Application № W2000/422

The Tribunal sets aside the decision under review and, in substitution therefor, decides that Comcare is liable, under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”), to pay compensation in accordance with that Act in respect of an “injury” (as defined in s 4(1)), being a “disease” (as defined in s 4(1)), namely, mesothelioma, which resulted in the death of Frank Hill (“Mr Hill”).

· Application № W2001/12

The Tribunal affirms the decision under review

· Application № W2001/199

The Tribunal sets aside the decision under review and, in substitution therefor, decides that Comcare is liable to pay compensation pursuant to s 17 and s 18 of the SRC Act in respect of an “injury” (as defined in s 4(1)), being a “disease” (as defined in s 4(1)), namely, mesothelioma, which resulted in the death of Mr Hill.

· Application № W2001/348

The Tribunal affirms the decision under review.

· Application № W2001/429

The Tribunal sets aside the decision under review and, in substitution therefor, decides that the Military Rehabilitation and Compensation Commission (“MRCC”) is liable, under s 14 of the SRC Act, to pay compensation in accordance with that Act in respect of an “injury” (as defined in s 4(1)), being a “disease” (as defined in s 4(1)), namely, mesothelioma, which resulted in the death of Mr Hill.

· Application № W2001/16

The Tribunal affirms the decision under review.

· Application № W2001/118

The Tribunal sets aside the decision under review and, in substitution therefor, decides that Comcare is liable to pay compensation pursuant to s 17 and s18 of the SRC Act in respect of an “injury” (as defined in s 4(1)), being a “disease” (as defined in s 4(1)), namely, mesothelioma, which resulted in the death of Cedric Etheridge (“Mr Etheridge”).

· Application № W2001/350

The Tribunal affirms the decision under review.

· Application № W2001/430

The Tribunal sets aside the decision under review and, in substitution therefor, decides that Comcare is liable, under s 14 of the SRC Act, to pay compensation in accordance with that Act in respect of an “injury” (as defined in s 4(1)), being a “disease” (as defined in s 4(1)), namely, mesothelioma, which resulted in the death of Mr Etheridge.

· Application № W2001/431

The Tribunal sets aside the decision under review and, in substitution therefor, decides that the MRCC is liable, under s14 of the SRC Act, to pay compensation in accordance with that Act in respect of an “injury” (as defined in s 4(1)), being a “disease” (as defined in s 4(1)), namely, mesothelioma, which resulted in the death of Mr Etheridge.

The Tribunal orders, pursuant to s67(8) of the SRC Act, that Comcare pay the applicants’ costs in respect of Applications № W2000/422, W2001/199, W2001/118 and W2001/430, and that the MRCC pay the applicants’ costs in respect of Applications № W2001/429 and W2001/431, in accordance with the Tribunal’s General Practice Direction.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

GENERAL ADMINISTRATIVE DIVISION		)
Re		INGEBORG ETHERIDGE

GENERAL ADMINISTRATIVE DIVISION		)
Re		THE PUBLIC TRUSTEE