Muscat and Comcare [2008] AATA 872 (1 October 2008)

Last Updated: 1 October 2008

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 872

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2007/2329 and 2007/5119

GENERAL ADMINISTRATIVE DIVISION )

Re LAWRENCE MUSCAT

Applicant

And COMCARE

Respondent

DECISION

Tribunal M D Allen, Senior Member

Dr J D Campbell, Member

Date 1 October 2008

Place Sydney

Decision The decisions under review are set aside and in lieu thereof the Tribunal substitutes its decision, namely:

(a) the Applicant pursuant to the Safety, Rehabilitation and Compensation Act 1988 is entitled to compensation for permanent impairment resulting from lung cancer on the basis of a 70 percent whole person impairment under paragraph 2.3 of the Comcare Guide (2nd edition), giving rise to a total permanent impairment compensation payment in the sum of $141,560.55, being a s 24 payment of $105,277.35 and a s 27 payment of $36,283.21;
(b) the Applicant is entitled to weekly compensation pursuant to s 19 for the disease of lung cancer on the basis that he is totally incapacitated for work and that s 23(1A) of the Safety, Rehabilitation and Compensation Act 1988 applied to him; and
(c) the Respondent is to pay the Applicant’s costs as agreed or taxed.

..................[Sgd]........................
M D Allen
Senior Member

CATCHWORDS

Workers compensation – applicant settled a prior claim in the New South Wales Dust Diseases Tribunal – were damages paid for the head of damage described as risk of developing lung cancer – damages in respect of an injury namely lung cancer under the Safety, Rehabilitation and Compensation Act 1988.

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RELEVANT ACT/S:

Safety, Rehabilitation and Compensation Act 1988: ss 4(1), 5A, 48 and Part VI

Dust Diseases Tribunal Act 1989 (NSW): s 11A

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CITATIONS

Fitter v Veal (1701) 12 Mod Rep 542

Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535

Scarcella v Lettice & Anor [2000] NSWCA 289; (2000-01) 51 NSWLR 302

Workers Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642

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REASONS FOR DECISION

1 October 2008

M D Allen, Senior Member Dr J D Campbell, Member

1. There is no dispute in the current proceedings that the Applicant suffered from a malignant neoplasm of the right lung (lung cancer) which was materially contributed to by exposure to asbestos whilst employed by the Commonwealth.
2. In addition, there is no dispute regarding the level of impairment suffered by the Applicant and that as he ceased work because of total incapacity for work after attaining the age of 63 years, he is entitled pursuant to s 23 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) to incapacity payments for a maximum period of 104 weeks.
3. The Respondent’s case was that the Applicant was not entitled to compensation under the provisions of the Act because he had on 27 August 2003, settled an action for damages against the Commonwealth of Australia in the Dust Diseases Tribunal of New South Wales for the sum of $165,000.00.
4. Section 48 of the Act states inter alia:
   • (1) This section applies where:
     • (a) an employee recovers damages in respect of an injury to the employee or in respect of the loss of, or damage to, property used by the employee, being an injury, loss or damage in respect of which compensation is payable under this Act;

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(4) Compensation is not payable under this Act to the employee in respect of the injury, loss or damage, or to, or for the benefit of, the dependant in respect of the injury that resulted in the death of the employee, after the date on which the damages were recovered by the employee or by, or for the benefit of, the dependant, as the case may be.
(4A) Subsection (3) does not apply if the damages were recovered in an action for non-economic loss or by way of a settlement of such an action.

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5. On 25 August 1999, the Applicant filed a statement of claim in the Dust Diseases Tribunal in which the particulars of injuries were said to be:

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(a) Asbestosis.

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(g) Increased risk of developing lung cancer.

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6. Amongst the Applicant’s claim for damages in the Dust Diseases Tribunal was a claim made in the following form:

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The Plaintiff seeks an Order that the Plaintiff may claim further damages pursuant to Section 11A of the Dust Diseases Tribunal Act, 1989 should the Plaintiff go on to develop any of the following conditions:

(i) Asbestos related pleural disease;

(i)[sic] Asbestos induced Carcinoma;

(ii) Lung Cancer;
(iii) Mesothelioma.

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7. Section 11A of the Dust Diseases Tribunal Act 1989 (NSW) is a section establishing a jurisdiction peculiar to that tribunal allowing a plaintiff in effect to reopen his case if certain nominated diseases develop in the future without having to relitigate any question of liability. Section 11A of the Dust Diseases Tribunal Act 1989 (NSW) is a legislative means of overcoming the rule in Fitter v Veal (1701) 12 Mod Rep 542.
8. In a later statement of claim filed on 27 August 2003, any claim pursuant to s 11A of the Dust Diseases Tribunal Act 1989 (NSW) was omitted. That same day terms of settlement giving a judgment for the Applicant (plaintiff) against the Commonwealth in the sum of $165,000.00 inclusive of costs were filed.
9. As stated above, there was no dispute in these proceedings that the Applicant did develop lung cancer and that a material contribution thereto was his exposure to asbestos whilst employed by the Commonwealth.
10. The Respondent maintained that the settlement entered into by the Applicant on 27 August 2003 resulted in his receiving damages in respect of the injury of lung cancer and hence s 48 of the Act operated to prevent the payment of compensation to him under that Act.
11. The question for this Tribunal therefore devolved into an enquiry as to whether the Applicant did in his Dust Diseases Tribunal proceedings recover damages in respect of an injury, namely lung cancer, in respect of which compensation is payable under the Act.
12. Section 5A of the Act defines “injury” as:

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(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

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13. In Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535 at 540, the court said:

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At this juncture, three things may be observed about the concept of “an injury”. First, the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of “the injury”. Secondly, the term “injury” is not used in the Act in the sense of “workplace accident”. The definition of “injury” is expressed in terms of the resultant effect of an incident or ailment upon the employee's body. Thirdly, the term “injury” is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to “disease” or “physical or mental” injuries and, at least to that extent, it assumes that an employee may sustain more than one “injury”.

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14. For the Applicant it was submitted that any damages in the lump sum award attributable to the head of damage “increased risk of developing lung cancer” were not damages in respect of an injury in respect of which compensation was payable.
15. Certainly, at common law damages cannot be assessed until actual loss or damage is suffered. In Scarcella v Lettice & Anor [2000] NSWCA 289; (2000-01) 51 NSWLR 302 at 306, Handley JA, with whom Giles JA agreed, said:

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A cause of action in negligence is not complete until the plaintiff first suffers actual loss or damage. Damage which is prospective or contingent does not qualify as actual damage for this purpose ....

In order for the plaintiffs' cause of action to be complete, the plaintiffs' actual damage must be “measurable”...or, in the words of Lord Reid in a personal injuries case ... the damage must be “beyond what can be regarded as negligible” (authorities omitted).

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16. The term “in respect of” was said by Deane, Dawson and Toohey JJ in Workers Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642 at 653 to:

... [gather] meaning from the context in which it appears and it is that context which will determine the matters to which it extends.

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Their Honours added at page 657:

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The most that can be drawn from these decisions dealing with differently worded provisions is that the use of the phrase “in respect of” does not, of itself, extend the meaning of an expression such as “damages in respect of injury to any worker” so as to include damages payable to a person other than the worker.

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17. The passage quoted above could be rephrased to state that the phrase “in respect of” does not of itself extend the concept of injury as a result of one disease, for example, asbestosis to another disease, namely lung cancer, although both had the same cause, exposure to asbestos.
18. To our mind the head of damage in the Applicant’s statement of claim phrased as “risk of developing lung cancer” is a notion peculiar to Dust Diseases Tribunal of New South Wales and it cannot affect the definition of “injury” in the Act.
19. The decision of Canute supra makes it clear that injury in the terms of the Act means the resultant effect of an incident upon an employee's body. In this Applicant’s case the “injuries” are asbestosis and lung cancer. That in the Dust Diseases Tribunal the Applicant received damages for a head of damages otherwise unquantifiable, namely a “risk” of injury, does not result in part of the damages awarded being awarded “in respect of” the actual injury when it did occur.
20. We would only mention for completeness sake that in our opinion s 48(5)(c) does not apply to these proceedings given the definition of “an action for economic loss” in s 4(1) of the Act. Also, we find that Comcare is a separate legal entity to the Commonwealth of Australia. This is made clear in Part VI of the Act which permits the Commonwealth on behalf of a department of state or a Commonwealth entity, for example the Health Insurance Commission, to seek review of Comcare decisions.
21. The decisions under review will be set aside and the decision of the Tribunal substituted. The Tribunal determines that:
    • (a) the Applicant is entitled to compensation for permanent impairment resulting from the disease of lung cancer on the basis of a 70 percent whole person impairment under paragraph 2.3 of the Comcare Guide (2nd edition), giving rise to a total permanent impairment compensation payment in the sum of $141,560.55 comprising a s 24 payment of $105,277.35 and a s 27 payment of $36,283.21;
    • (b) the Applicant is entitled to weekly compensation pursuant to s 19 of the Act on the basis that he is totally incapacitated for work and that s 23(1A) of the Act applies to him; and
    • (c) the Respondent is to pay the Applicant’s costs as agreed or taxed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of M D Allen, Senior Member and Dr J D Campbell, Member

Signed: ......................[Sgd].........................

Associate

Dates of Hearing: 15, 16, 17 September 2008

Date of Decision: 1 October 2008

Solicitor for the Applicant: Slater and Gordon, solicitors

Counsel for the Applicant: L T Grey

Solicitor for the Respondent: Sparke Helmore, solicitors

Counsel for the Respondent: B Dubé