Starkey and Comcare (Compensation)

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.