//
you're reading...
Australian Law and Politics

Damages For A Risk Of Injury Where Damages Already Paid


In Muscat v Comcare [2008] AATA 872, the Administrative Appeals Tribunal (AAT) considered whether an employee was entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in circumstances where he had settled an action for damages against the Commonwealth in the Dust Diseases Tribunal of NSW (DDT).

In making its decision, the AAT looked at the nature of the settlement of the damages action and considered the concept of ‘injury’ for the purposes of the SRC Act.

PREVIOUS ACTION FOR DAMAGES

Mr Muscat had filed a statement of claim in the DDT on 25 August 1999 claiming damages for a number of injuries including, relevantly, asbestosis and increased risk of developing lung cancer.

As part of Mr Muscat’s claim, he sought an order for further damages pursuant to section 11A of the Dust Diseases Tribunal Act 1989 (DDT Act). Section 11A was noted to be a provision peculiar to the DDT which allowed Mr Muscat to re-open his claim for damages without having to re-visit the issue of liability if he developed certain nominated diseases, including lung cancer, in the future.

On the day of settlement of the damages action, in which judgment was entered against the Commonwealth in the sum of $165,000 inclusive of costs, an amended statement of claim was filed, which omitted any claim pursuant to section 11A of the DDT Act.

ISSUE BEFORE THE AAT

There was no dispute that Mr Muscat had developed lung cancer and that his exposure to asbestos, whilst employed by the Commonwealth, was a material contributing factor.

Comcare argued, however, that the settlement entered into by Mr Muscat in the DDT resulted in his receiving damages in respect of lung cancer and therefore section 48 of the SRC Act operated to prevent the payment of compensation under that Act.

Mr Muscat argued that any damages awarded for the increased risk of developing lung cancer were not damages ‘in respect of an injury in respect of which compensation was payable’.

The AAT was therefore required to consider whether Mr Muscat did recover damages in respect of an injury, lung cancer, in respect of which compensation was payable under the SRC Act.

AAT’S DECISION

The AAT noted that the SRC Act defined ‘injury’ as:

  • A disease suffered by an employee; or
  • 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.

The AAT referred to the High Court decision in Canute v Comcare (2006) 225 CLR 535 at 540 regarding the concept of ‘an injury’:

‘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. Further, 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”.

The AAT accepted that, at common law, damages could not be assessed until actual loss or damage was suffered: Scarcella v Lettice and Anor (2000-01) 51 NSWLR 302 at 306.

The AAT also considered the phrase ‘in respect of’, which was held by Justices Deane, Dawson and Toohey 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’. The AAT quoted the following passage from that decision:

‘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’.

The AAT considered that the passage 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, being exposure to asbestos.

It was held that the head of damage in the statement of claim, the risk of developing lung cancer, was peculiar to the DDT and could not affect the definition of ‘injury’ under the SRC Act.

The AAT found that the decision in Canute made it clear that ‘injury’ in the terms of the SRC Act means ‘the resultant effect of an incident upon an employee’s body’ and that in Mr Muscat’s case the injuries were asbestosis and lung cancer. The AAT was not satisfied that the damages received by the employee in the DDT for a head of damage otherwise unquantifiable, being a risk of injury, did not result in part of the damages being awarded ‘in respect of’ the actual injury when it did occur.

The AAT therefore determined that Mr Muscat was entitled to compensation for permanent impairment resulting from the disease of lung cancer, assessed at 70% whole person impairment, and that he was also entitled to weekly compensation pursuant to section 19 on the basis of a total incapacity for work (and that section 23(1A) of the SRC Act applied).

About Craig Hill

Teacher and Writer. Writing has been cited in New York Times, BBC, Fox News, Aljazeera, Philippines Star, South China Morning Post, National Interest, news.com.au, Wikipedia and others.

Discussion

No comments yet.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

If you liked what you just read, click "Subscribe" to become a follower of the Craig Hill site. You will receive an email each time a new post is published.

Join 14,942 other followers

An archive of all my old posts

Follow me on Twitter

Most Recent Posts Post on My Blog About China: China News

Cadence Column: Asia, October 25, 2021

Cadence Column: Asia, October 25, 2021

Taiwan was thrust into a position without being asked. In 1971, the United Nations removed the Taipei-seated government known today as “Taiwan” and switched to recognizing the Beijing-based government known as “China”. The Taiwanese were elbowed out of the global forum. Now, the US is working to bring Taiwan back in, but not the same […]

China’s trade practices come under fire

China’s trade practices come under fire

China’s trade policies have come under strong criticism during a review at the World Trade Organization (WTO). The US accused China of “skewing the playing field” by using “unfair trade practices” such as preferential treatment for state businesses. Meanwhile Australia said the country’s behaviour was “inconsistent” with its WTO commitments. China said it was committed […]

China’s economy weakens, then gets even worse and now there’s a global shipping crisis. What’s next?

China’s economy weakens, then gets even worse and now there’s a global shipping crisis. What’s next?

The world is waking up to the fact that maybe being dependent upon China for its goods is not such a good idea. In 2019 at about the same time the US was closing on the trade deals with China, COVID emerged in China. In 2019 China’s economy was also beginning to slow down. COVID […]

U.S. needs nuclear spacecraft to compete with China, NASA official tells Congress

U.S. needs nuclear spacecraft to compete with China, NASA official tells Congress

A NASA official told Congress on Wednesday that the United States needs more nuclear spacecrafts in order to compete with China. “Strategic competitors including China are aggressively investing in a wide range of space technologies, including nuclear power and propulsion,” Bhavya Lal, NASA’s senior advisor for budget and finance, told the House Science, Space, and […]

China shows off drones recycled from Soviet-era fighter jets

China shows off drones recycled from Soviet-era fighter jets

China has for the first time showed off retired 1950s era fighter jets that have been converted to unmanned drones, with satellite photos of two of its east coast bases near Taiwan showing a large number of the jets on site. The People’s Liberation Army’s Eastern Theater Command published the photos of two Shenyang J-6s […]

China’s propaganda machine is intensifying its ‘people’s war’ to catch American spies

China’s propaganda machine is intensifying its ‘people’s war’ to catch American spies

“Let’s fight a ‘people’s war’ against the spies, so that they cannot move a single step and have no place to hide!” That was the rallying cry of a Chinese military newspaper on social media over the weekend, as Beijing urges public vigilance against American espionage following the launch of a CIA mission center dedicated […]

China’s blackouts break power cutoff pledge

China’s blackouts break power cutoff pledge

As China struggles to control the latest surge of power shortages, the government seems to be hoping that the public will have short memories for how it has dealt with similar problems in the past. After months of downplaying the power crisis and recommending partial fixes, central government authorities belatedly acknowledged the spread of electricity […]

Cadence Column: Asia, October 18, 2021

Cadence Column: Asia, October 18, 2021

According to Chinese and US claims, China has a high-orbit, hypersonic missile that can hit a target within 24 miles. And, that’s why China is the new boss of the world and everyone else should hate America. The end. But, that’s not the end in the mind of Taiwan or the US Pentagon. This week, […]

China ‘making its nuclear submarines harder to detect’

China ‘making its nuclear submarines harder to detect’

China is upgrading its nuclear missile-equipped submarines to make them harder for rival powers such as the US to detect, reports suggest. The People’s Liberation Army Navy has redesigned its type 094 submarines to make them quieter, The South China Morning Post reports. Defence experts believe the Chinese 094 submarine can carry and launch the […]

Could China’s economy collapse?

Could China’s economy collapse?

For almost half a century, Chinese officials have overseen one of the greatest economic transformations in human history. The country has gone from collectivized farms and famine to world-leading tech companies and gleaming megacities connected by superfast trains. More than 800 million Chinese have been pulled out of poverty as the Communist Party and its leader […]

%d bloggers like this: