Rus and Comcare (Compensation)

Case [2019] AATA 4089

Rus and Comcare (Compensation) [2019] AATA 4089 (2 October 2019)

Division:GENERAL DIVISION

File Number:           2014/4611

Re:Christine Rus

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie

Date:2 October 2019

Place:Melbourne

The Tribunal decides to:

1.set aside the reviewable decision of the respondent made on 10 July 2014 affirming its earlier decision dated 15 April 2014; and

2.substitute a decision that the applicant’s late husband was an employee within the meaning of s 5 of the Safety, Rehabilitation and Compensation Act 1988.

3.

[sgd]...................................................................

S A FORGIE
Deputy President

Catchwords

COMPENSATION – whether an ‘employee’ as defined in the Safety, Rehabilitation and Compensation Act 1988 – whether engaged under an enactment – where engaged as a labourer under a contract of service – decision set aside and substituted

Legislation

Administrative Decisions (Judicial Review) Act 1977
Australian Wool Testing Authority Act 1957
Commonwealth Employees’ Compensation Act 1930-1959
Health & Other Services (Compensation) Act 1985
Safety Rehabilitation and Compensation Act 1988
Victorian Workers’ Compensation Act 1958
Wool Industry Act 1962

Cases

Australian National University v Burns [1982] FCA 191; (1982) 64 FLR 166; 43 ALR 25; 5 ALD 67
Australian National Airlines Commission v Newman (1987) 162 CLR 466; 70 ALR 275
Christofis v Tomazos Bros Pty Ltd (1986) 83 FLR 183
Deputy Commissioner of Patents v Board of Control of Michigan Technological University [1979] FCA 84; (1979) 43 FLR 9; 28 ALR 551; 2 ALD 711
Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; (2015) 228 FCR 346
Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] HCA 45; (2015) 256 CLR 137; (2015) 326 ALR 470; 90 ALJR 107; 255 IR 229
General Newspapers Pty Limited and Others v Telstra Corporation [1993] FCA 473; (1993) 45 FCR 164; 117 ALR 629
Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99; 213 ALR 724; 82 ALD 289
Mutual Acceptance Co. Ltd v Federal Commissioner of Taxation [1944] HCA 34; (1944) 69 CLR 389; [1945] ALR 1; (1944) 7 ATD 506
Rus v Comcare [2017] FCA 239; (2017) 160 ALD 135
Scharer v New South Wales [2001] NSWCA 360; (2001) 53 NSWLR 299; 116 LGERA 217

REASONS FOR DECISION

Deputy President SA Forgie

  1. In a judgment dated 10 March 2017, Bromberg J allowed an appeal from my decision in Re Rus and Comcare made on 20 January 2016.[1]  I had affirmed a reviewable decision made by Comcare affirming its earlier determination dated 15 April 2014.  It had determined that it was not liable to pay compensation to the widow of the late Mr Francis Michael Rus, Mrs Christine Rus, in respect of his death as a result of mesothelioma.  The basis of Comcare’s determination was that it was not satisfied that Mr Rus had been an “employee” as defined in s 5 of…

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AGLC
Rus and Comcare (Compensation) [2019] AATA 4089
Case
[2019] AATA 4089
Decision Date

CaseChat Overview and Summary

This matter concerned a claim for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act) by the widow of Mr Rus, who had died from mesothelioma. The primary dispute was whether Mr Rus had been an "employee" of the Australian Wool Board (AWB), a Commonwealth authority, at a time when he was exposed to asbestos. The Federal Court was required to determine whether the Administrative Appeals Tribunal (AAT) had erred in law by failing to consider crucial evidence when determining Mr Rus's employment status.

The legal issues before the Federal Court were whether the AAT had correctly applied the law in determining whether Mr Rus was an employee of the AWB, and whether the AAT had erred by excluding relevant evidence from its consideration. Specifically, the court had to consider the definition of "employee" under the SRC Act, which includes persons employed by the Commonwealth or a Commonwealth authority under a law or a contract of service. The court also considered the probative value of Mr Rus's own statements regarding his work at the AWB in the context of other evidence.

The Federal Court found that the AAT had erred in law by failing to take into account Mr Rus's statements about his work at the AWB when determining his employment status. The court held that these statements were critical to establishing the fact of employment and that their exclusion affected the AAT's exercise of power. The court reasoned that the AAT's task was to determine, on the balance of probabilities, whether Mr Rus was an employee, and this required considering all relevant material.

The Federal Court set aside the AAT's decision and substituted its own finding that Mr Rus was an employee of the AWB for a period towards the end of 1965. This determination was based on the evidence, including Mr Rus's statements and corroborating material, which indicated he performed maintenance work at the AWB during that period.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Section 31 set out the circumstances in which the AWB would be taken to be an approved authority for the purposes of the Superannuation Act 1922-1959.BACKGROUND In this section of my reasons, I will set out those factual matters on which there is no dispute between the parties and that I have found on the evidence. Mr Rus was born in September 1950. At some time before 1 November 2012, he had presented to Dr James Bartlett, Respiratory Physician, with a two month history of weight loss and right-sided back pain. He was referred to Mr Stephen Barnett, Cardiothoracic Surgeon, who first saw him at the Western Hospital on 1 November 2012. Mr Rus’s history was reviewed by a multi-disciplinary team at the Western Hospital. Following surgery on 8 November 2012, when a representative biopsy was taken, Mr Rus was diagnosed as suffering from mesothelioma of an epitheloid sub-type.[5] Mr Rus died in November 2013 leaving his widow and three adult children. He was then 63 years of age.[5] Report of Mr Barnett dated 13 December 2012: T documents; T3.5 at 23 Mr Rus commenced proceedings against Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd), Comcare and 13 Frances Ave. Pty Ltd (ACN 004 754 965), which was formerly known as Pethard Insulations Pty Ltd. The proceedings were settled and Mr Rus executed a Deed of Release of Claim on 26 April 2013. He did so in consideration of the three defendants to the proceeding paying him the sum of $1,000,000 inclusive of his costs and disbursements of and incidental to that proceeding and less any amounts any of the defendants were required to pay to agencies such as Medicare Australia under the Health & Other Services (Compensation) Act 1985. In consideration of the defendants’ promise to pay, Mr Rus released the defendants from all future liability in relation to asbestos related injuries, diseases or conditions whether then present or contracted in the future. The Deed of Release of Claim specifically excluded from its terms any claim that might be made under the SRC Act or the Victorian Workers’ Compensation Act 1958, which might be brought by a dependant of Mr Rus against the defendants. By entering the settlement, cl 7 of the Deed of Release of Claim expressly stated that the defendants did not admit liability. Comcare paid 10% of the settlement monies. Putting aside any liability it might have to an employee or an independent contractor working on its premises, the Commonwealth has a duty of care to any person performing work in any capacity on its premises. Whether or not Mr Rus was an employee was irrelevant to any liability that the Commonwealth incurred.THE EVIDENCE No records such as payslips, taxation returns, superannuation records or the like showing Mr Rus receiving payment from the AWB have been produced. Despite searches of the National Archives of Australia (Archives), the Department of Agriculture and successors of the AWB, no employment records relating to Mr Rus have been located by Comcare. In the following table, I have set out the source and nature of the evidence I have regarding whether or not Mr Rus was an employee of the AWB. In the headings in the table, I have used the neutral term of “work”. In respect of each place of work, the first entry in the table is taken from the typed version of notes taken by Ms Suzanne Sanford, Principal Lawyer, from Mr Rus’s solicitors, Slater and Gordon. In some instances, I have noted differences between the type version of the notes and the handwritten notes Ms Sanford took at the interview, which took place when Mr Rus was in hospital. The notes regarding her handwritten notes appear in italics in the third column. Interspersed in the table are references from the AWB’s Annual Report.

Evidence

Evidence Before The Court

By entering the settlement, cl 7 of the Deed of Release of Claim expressly stated that the defendants did not admit liability. Comcare paid 10% of the settlement monies. Putting aside any liability it might have to an employee or an independent contractor working on its premises, the Commonwealth has a duty of care to any person performing work in any capacity on its premises. Whether or not Mr Rus was an employee was irrelevant to any liability that the Commonwealth incurred.THE EVIDENCE No records such as payslips, taxation returns, superannuation records or the like showing Mr Rus receiving payment from the AWB have been produced. Despite searches of the National Archives of Australia (Archives), the Department of Agriculture and successors of the AWB, no employment records relating to Mr Rus have been located by Comcare. In the following table, I have set out the source and nature of the evidence I have regarding whether or not Mr Rus was an employee of the AWB. In the headings in the table, I have used the neutral term of “work”. In respect of each place of work, the first entry in the table is taken from the typed version of notes taken by Ms Suzanne Sanford, Principal Lawyer, from Mr Rus’s solicitors, Slater and Gordon. In some instances, I have noted differences between the type version of the notes and the handwritten notes Ms Sanford took at the interview, which took place when Mr Rus was in hospital. The notes regarding her handwritten notes appear in italics in the third column. Interspersed in the table are references from the AWB’s Annual Report. In a letter dated 4 December 2012, Mr Rus’s solicitors wrote to Mr Michael Kottek, an Occupational and Environmental Health Consultant, seeking his opinion as to the nature and level of their client’s exposure to asbestos. In his report dated 11 December 2012, Mr Kottek confirmed the occupational history provided by Ms Sandford. That occupational history was:“Mr Rus instructs he was employed as follows:1.1963 (18 months), with Seven X Beverages, Wright Street, Sunshine2.1965 (8 months), with RMD Press, Tottenham3.1965 (3-4 months), with Australian Wool Board, Somerton Road, Somerton/Brooklyn4.1965 – 1967, with Smorgan, Somerton Road, Brooklyn5.1967 (on-off for 2 years), with Deer Park Engineers, Ballarat Road, Deer Park6.1969/1970 (approx 1 year), with Calsil Bricks (now Boral), Deer Park7.1970 – 1972, with Pethards Insulation 8.1972 (approx 6 months), with Loys (selling drinks door-to-door)9.1972/1973, with Reg Rordink Plastering Contractor10.1973/1974 to date, with F&C Rus Plastering (later Doo-Rite Plasterers Pty Ltd)” Mr Dean Rus is Mr Rus’s son. He was 36 years of age when his father died on 23 November 2013. In his affidavit sworn on 13 October 2015, Mr Dean Rus recalled a conversation he had with his father in approximately 1995 when he was 17 or 18 years of age. He set out the effect of that conversation in the following passage:“I said:‘I’m working at Jupps on Brooklyn Road.’He said:‘I used to work around the corner from Jupps at the Australian Wool Board.’I said:‘What did you do there?’He said:‘I used to do maintenance on the building there. I repaired the asbestos cement fibro sheets. I did not know the stuff was dangerous at the time.’I said:‘Whenever somebody backs a car into the wall at Jupps, it cracks the panels and it has to be replaced as it’s also made of asbestos cement fibro.’He said:‘Yeah, it’s made of the same stuff as the Australian Wool Board was.’”[29][29] Exhibit A at [5]

Decision

Reasons for decision

For the reasons I give below, I have decided that the late Mr Rus was an employee of the AWB for a period towards the end of 1965.THE FEDERAL COURT’S JUDGMENT The main points made by Bromberg J in his judgment were:“12. The question for the AAT was whether Mr Ruse had been an ‘employee’ of AWB. That question was to be answered by reference to the balance of probabilities. In circumstances where the AAT accepted that Mr Rus had worked at AWB, it was necessary for the AAT to determine what best explained that fact. There were 3 possible explanations:(1) Mr Rus was directly engaged as an employee under s 27 of the WI Act;(2)Mr Rus was employed by an independent contractor engaged under s 24 of the WI Act; or(3)Mr Rus was engaged directly under s 24 of the WI Act as an independent contractor.…24.The probative value of Mr Rus’s statements in the context of the other evidence before the Tribunal was a matter for the Tribunal. It was open to the Tribunal to give less significance to those statements than is implicit in the observation I have just made. However, it was wrong for the Tribunal to exclude from its consideration Mr Rus’s statements in determining the capacity in which Mr Rus provided work at AWB.…29.The Tribunal’s task was to determine whether or not it was satisfied that Mr Rus was an ‘employee’ pursuant to s 5 of the SRC Act. That task could not have been properly performed if material important to the formation of the requisite state of satisfaction or non-satisfaction was ignored. In the context of the material available to the Tribunal, Mr Rus’s statements were critical to the fact of employment which was the critical fact in the case. The Tribunal’s failure to take that material into account affected the exercise of its power and resulted in an error of law.” Section 14(1) of the SRC Act provides:“Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.” Section 17 of the SRC Act applies where an injury to an employee results in death. Subject to certain qualifications that are not relevant in this matter, s 17(3) provides that Comcare is liable to pay compensation in respect of the injury if the employee dies leaving any dependants, some or all of whom were wholly dependent on him or her at the date of his or her death. Mrs Rus made a claim dated 13 February 2014 on the basis that she had been wholly dependent on her husband. The word “employee” is defined in s 4(1) of the SRC Act by reference to the meaning given in s 5. In so far as it is relevant, s 5(1) provides:“employee means:(a)a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship; or(b)a person who is employed by a licensed corporation.” Sections 5(1A) to (17) go on to qualify and refine the meaning given to the word “employee” by s 5(1). I note that s 5(4) provides:“A person:(a)who is ordinarily engaged for employment at a prearranged place at which employers engage persons for employment; and(b)whose last employer under an engagement at that place was the Commonwealth, a Commonwealth authority or a licensed corporation;shall for the purposes of this Act, be taken to be employed by the Commonwealth, that authority or that corporation, as the case may be, until the person is next engaged under such an engagement, and the person’s employment shall, for those purposes, be taken to be constituted by the person’s attendance at that place for the purpose of seeking such an engagement.”

Ratio Decidendi

Legal Principle Established

The other medical practitioners who have prepared reports included in the T documents have not made any reference to the AWB. They are:(1)Mr Stephen Barnett; report dated 13 December 2012:“The patient clearly remembers throughout his career cutting asbestos sheeting in his work as a builder. …”[34](2) Dr Allan Zimet, Oncologist; report dated 10 February 2013:“Mr Rus was a Builder for many years. During that time he would have had significant exposure to asbestos.This exposure to asbestos is the cause of his mesothelioma.”[35][34] T documents; T3.5 at 23[35] T documents; T3.6 at 25CONSIDERATION None of the evidence that I have includes a document such as a record of interview or notes of an interview signed by Mr Rus. Documents such as the Statement of Claim and the Plaintiff’s Answers to Interrogatories Rendered by the AWB will have been prepared on his instructions. I accept that Mr Dean Rus has given evidence of the conversations with his later father as he recalls them. That said, there are discrepancies among the documents that have some relevance. I take as an example the handwritten notes taken by Ms Sandford when Mr Rus was in hospital and the typed version. Whether Mr Rus worked, to use a neutral word, at the AWB as an assistant maintenance worker, as the typed notes record, or in asset maintenance as would seem to be noted in the handwritten version, the word “employed” that appears in the typed notes makes no appearance at all in the handwritten notes. It is a word used in the handwritten notes to describe Mr Rus’s status at Pethard Insulations but the way it is written in that note bears no resemblance to the word that is illegible in the notes relating to Mr Rus’s working at AWB. I also note that there are other discrepancies between the notes and the evidence in, for example, the report of Professor Fox. The typed notes refer to Mr Rus’s being employed at the AWB for three to four months in 1965 and Professor Fox’s report refers to his being a maintenance worker at the AWB at Altona and Brooklyn for six to twelve months during 1966 when he was 16 years old. There are other examples but I do not think that they undermine the general evidence that points to Mr Rus’s working at the AWB at some time in approximately 1965. Mr Rus’s reference to working at Brooklyn as well as at Altona is not inconsistent with the reference in the AWB’s 1965-1966 Annual Report that a new store was erected at Brooklyn, Victoria, during the year.[36] Even if that store did not require maintenance, the reference made to in the Annual Report does not mean that it was the only wool store at Brooklyn. The AWB’s 1966-67 Annual Report includes a photograph of 28 of the AWB’s then 289 wool stores. The photograph shows 16 wool stores grouped in one compound with another 12 in a different compound located to the rear. Mr Rus’s evidence that he did maintenance work at Brooklyn is consistent with there being a new wool store erected there while he was there.[36] T documents; T19 at 98