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…
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- Case
- [2005] AATA 408
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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