Starkey and Comcare (Compensation)

Case [2017] AATA 200

Starkey and Comcare (Compensation) [2017] AATA 200 (17 February 2017)

Division:GENERAL DIVISION

File Number:           2015/3107

Re:Roslyn Starkey

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:The Honourable Justice A Robertson, Deputy President

Date:17 February 2017

Place:Sydney

1.The decision under review is set aside and the matter remitted for reconsideration by the respondent.

2.Pursuant to s 67(9) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), the respondent pay the costs of the proceedings incurred by the applicant, as agreed or taxed.

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

The Honourable Justice A Robertson, Deputy President

CATCHWORDS

COMPENSATION - asbestosis resulting in employee’s death - employee employed at different times by companies in New South Wales and by the Commonwealth and exposed to asbestos during those times - all periods of asbestos exposure contributed materially to the development of employee’s asbestosis - common law damages recovered by employee against companies and against Commonwealth (Comcare) - compensation paid to employee under Workers’ Compensation (Dust Diseases) Act 1942 (NSW) (Dust Diseases Act) - after the employee’s death, the deceased’s wife was awarded a lump sum in accordance with s 8(2B)(b)(i) of the Dust Diseases Act and fortnightly compensation in accordance with s 8(2B)(b)(ii) - because the asbestosis was only 20% attributable to exposure “in New South Wales” the deceased’s wife received only 20% of what would otherwise have been her entitlements under the Dust Diseases Act - whether s 118 or s 48 of the Safety Rehabilitation and Compensation Act 1988 (Cth) precluded claim for compensation by the deceased’s dependant wife under s 17(3)

LEGISLATION

Asbestos‑related Claims (Management of Commonwealth Liabilities) Act 2005 (Cth) Compensation (Commonwealth Government Employees) Act 1971 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 13AA, 17(3), 48(4), 118
Civil Liability Act 2002 (NSW) s 15B
Dust Diseases Tribunal Act 1989 (NSW) s 11A

Workers’ Compensation (Dust Diseases) Act 1942 (NSW) s 8

CASES

Comcare v Fyfe [1999] FCA 1368

Dionisatos (for Estate of Late Dionysatos) v Acrow Formwork and Scaffolding Pty Ltd [2015] NSWCA 281; 91 NSWLR 34
Lennon v TNT Australia Pty Ltd [2013] NSWCA 77; 84 NSWLR 161
Re Scott and Commissioner for Superannuation (1986) 9 ALD 491
Slattery v Comcare (1996) 70 FCR 131
Telstra Corp Ltd v Barrow (1994) 19 AAR 523
Telstra Corporation Ltd v Worthing [1999] HCA 12; 197 CLR 61
Withenshaw and Department of Defence [1999] AATA 37; (1999) 28 AAR 416

Workers’ Compensation Dust Diseases Board of NSW v Cook [2015] NSWCA 270

REASONS FOR DECISION

The Honourable Justice A Robertson, Deputy President

17 February 2017

INTRODUCTION

  1. On 11 December 2014, Mrs Roslyn Starkey submitted a claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) for a work-related death, being the death of her husband the late Mr Graeme Walter Starkey on 28 July 2014 from asbestosis (end stage) as a result of his employment at Garden Island. She claimed a lump sum payment as a dependant of the deceased Mr Starkey. Mrs Starkey applies to…

Continue reading Starkey and Comcare (Compensation)

Sign in free to access the full text

Details
AGLC
Starkey and Comcare (Compensation) [2017] AATA 200
Case
[2017] AATA 200
Decision Date

CaseChat Overview and Summary

This matter concerned a claim for compensation by the deceased employee's wife against Comcare, following the death of her husband from asbestosis. The deceased had been exposed to asbestos during periods of employment with private companies in New South Wales and also as a Commonwealth employee. His asbestosis was contributed to by all periods of exposure. The deceased had previously received common law damages from both the private companies and Comcare, and had also received compensation under the New South Wales *Workers’ Compensation (Dust Diseases) Act 1942* (NSW). Due to the proportion of his asbestos exposure attributable to New South Wales employment being only 20%, his wife's entitlements under the NSW Act were reduced accordingly. The wife subsequently sought compensation from Comcare under section 17(3) of the *Safety Rehabilitation and Compensation Act 1988* (Cth) (SRC Act).

The central legal issue before the court was whether sections 118 or 48 of the SRC Act precluded the deceased's dependant wife from claiming compensation under section 17(3) of the SRC Act, given the prior receipt of common law damages and compensation under the NSW Dust Diseases Act. The court was required to interpret the interplay between these provisions, particularly concerning the definition of "injury" and "employee" within the SRC Act, and the effect of prior compensation payments on a subsequent claim against Comcare.

The court considered the definitions of "injury" and "disease" under sections 5A and 5B of the SRC Act, noting that a disease is contributed to to a significant degree by Commonwealth employment. It also examined the definitions of "employee" and "dependant" under the SRC Act. The court rejected the applicant's submission that section 118 of the SRC Act operated merely as a set-off provision, finding that section 118(2) indicated a mechanism for recovery by the relevant authority if state workers' compensation was received after compensation had been paid under the SRC Act.

The decision under review was set aside and the matter was remitted for reconsideration by the respondent. The court indicated it would hear the parties on costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Section 15B(2) of the Civil Liability Act 2002 (NSW) provided that in certain circumstances damages may be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants.THE FACTS For the purpose of reviewing the primary decision I find the following facts, which I address in chronological order so far as possible. Between 1960 and 1965, Mr Starkey worked at Beecraft Engineering Company at Balgowlah, New South Wales. He also worked there again for nine months in 1969. In each period Mr Starkey was exposed to asbestos. Between 1968 and 1969, Mr Starkey worked for WJ Manufacturing Co Ltd at Brookvale, New South Wales. He was exposed to some asbestos in that work. Mr Starkey was formerly employed by the Department of Navy and the Department of Defence Support and was therefore a former Commonwealth employee. He was employed at Garden Island Dockyard, New South Wales on a full-time basis from 27 July 1981 to 5 November 2012. He had also had a brief period working at Garden Island between 1969 and 1970. In the earlier period there was some asbestos exposure and in the later period there was very significant asbestos exposure through his being close by to laggers, although it is likely that asbestos was no longer used after the mid-1980s. Of Mr Starkey’s total asbestos exposure, 60% occurred while working at Garden Island, 25% occurred with WJ Manufacturing and 15% with Beecraft Engineering. On 2 December 2010, the Medical Authority of the DDB constituted under the Dust Diseases Act certified that Mr Starkey had the dust disease asbestosis; the level of disablement due to this disease was 40%; the disablement was reasonably attributable to his exposure to the inhalation of dust; 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%; and such disablement was deemed to have commenced from 10 May 2010. On 5 April 2011, the Medical Authority reviewed Mr Starkey’s level of disablement caused by the asbestosis and said that his level of disablement so caused had increased from 40% to 50%. The Medical Authority said that Mr Starkey’s “entitlement as a worker under the Act in NSW will remain at 20%.” The Medical Authority said that since it appeared that Mr Starkey was still employed, no compensation was payable at that stage. Mr Starkey claimed common law damages in the Dust Diseases Tribunal in proceedings DDT 123/2013. These proceedings were filed on 18 April 2013. Comcare was the second defendant: see s 5 of the Asbestos‑related Claims (Management of Commonwealth Liabilities) Act 2005 (Cth). Mr Starkey claimed provisional damages pursuant to s 11A of the Dust Diseases Tribunal Act 1989 (NSW) in respect of asbestosis. In his statement of particulars, filed on 10 May 2013 in the Dust Diseases Tribunal, Mr Starkey estimated that 10-15% of his exposure to asbestos occurred whilst he was working for New South Wales employers, 5 to 10% while he was working for South African employers and 80 to 90% whilst employed by the Commonwealth. Mr Starkey said that his heaviest exposure to asbestos dust occurred whilst he was working at Garden Island Dockyard in all periods up to about 1989.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I do not accept the applicant’s submission that Comcare was entitled pursuant to s 118 only to deduct from its liability that which she had received from the DDB, whilst remaining liable for the balance or that s 118 was a “set-off” provision and not a total defence. This submission was not developed. I was not taken to any statutory basis for it. The submission does not sit comfortably with s 118(2) of the SRC Act which provides in substance that if any State workers’ compensation is recovered after any compensation has been paid by a relevant authority under the SRC Act, the relevant authority may recover as a debt due to the authority the amount of compensation paid by it under the SRC Act from the person to whom it was paid.CONCLUSION AND DECISION For these reasons, the decision under review is set aside and the matter remitted for reconsideration by the respondent. I will hear the parties on costs.

Ratio Decidendi

Legal Principle Established

Merkel J cited the earlier decision of Carr J in Telstra Corp Ltd v Barrow (1994) 19 AAR 523 for the proposition that s 48(4) of the SRC Act had as its focus double dipping in respect of an injury and not double dipping in respect of incapacity resulting from injury.CONSIDERATION The starting point must be the relevant provisions of the SRC Act. It is that Act under which Mrs Starkey claims and under which the primary decision was made. I note that the primary decision was made with reference only to s 118, and not with reference to s 48. By reason of the terms of s 17 of the SRC Act, it is necessary to consider the word “injury” and the word “employee”. Where there is an injury to an employee resulting in death then the section applies. Then by s 17(3), it will be necessary to consider the word “dependant” and whether that “dependant” was, at the date of the employee’s death, wholly dependent on the employee. In those circumstances, ordinarily Comcare is liable to pay compensation in respect of the injury of $400,000 (indexed) for the benefit of all of those dependants. Although there was no dispute about its application, it will also be necessary to refer to the definition of “damages” in s 4(1) of the SRC Act. As to the term “injury”, it is defined in s 5A of the SRC Act to mean, relevantly, (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment. The word “disease” is defined in s 5B of the SRC Act to mean an ailment suffered by an employee; or an aggravation of such an ailment; that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee. As to the term “employee”, it has the meaning given by s 5 of the SRC Act. The first definition is that “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. By s 5(9), a reference to an employee in a provision of the SRC Act relevantly includes a reference to a person who has ceased to be an employee. As to the term “dependant”, it is defined in s 4(1) of the SRC Act as including the spouse of the employee, being a person who was wholly or partly dependent on the employee at the date of the employee’s death. Section 4(5) of the SRC Act provides that for the purposes of that Act, a person who immediately before the date of an employee’s death lived with the employee and was the spouse of the employee shall be taken to be a person who was wholly dependent on the employee at that date.