CITATION: Narelle Patricia Fletcher v Q-Comp (WC/2010/24) - Decision QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

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1 CITATION: Narelle Patricia Fletcher v Q-Comp (WC/2010/24) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act s appeal to commission Narelle Patricia Fletcher AND Q-Comp (WC/2010/24) VICE PRESIDENT LINNANE 30 September 2010 Appeal against decision of the Review Unit of Q-Comp - Appellant the wife of a deceased worker - Appellant seeking compensation under s. 128D of the Act - Whether the Appellant was completely or partly dependent on the worker's earnings - Definition of 'dependant' in s. 128D(5) of the Act - Issue of the concept of 'earnings' - Appellant entitled to the benefit of compensation under s. 128D of the Act - Decision of Q-Comp set aside - Workers' Compensation and Rehabilitation Act 2003 s. 128D. DECISION [1] This is an appeal by Narelle Patricia Fletcher (Appellant) against a decision of the Review Unit of Q-Comp (Q-Comp) dated 8 February 2010 which in turn confirmed a decision by the Arnott's Workers Compensation Unit of Arnott's Biscuits Ltd (the Self-Insurer) dated 14 October The decision was to reject a claim made by the Appellant for workers' compensation under s. 128D of the Workers' Compensation and Rehabilitation Act 2003 (Act) from the employment of her husband, Kevin Fletcher with Arnott's Biscuits Ltd, who passed away from mesothelioma on 1 September [2] On 19 March 2008 Mr Fletcher was diagnosed as suffering from mesothelioma. Mr Fletcher believed that his mesothelioma was caused by exposure to asbestos at the now demolished biscuit baking factory at Milton whilst he was employed as a baker by Arnott's Biscuits Ltd between 1966 and Mr Fletcher lodged an application for statutory compensation with the Self-Insurer on 19 March In or about June 2008, the Self-Insurer determined that Mr Fletcher was entitled to workers' compensation pursuant to s. 128B of the Act and paid Mr Fletcher an amount of $458,640 in compensation. [3] In September 2009 the Appellant made a claim for compensation from the Self-Insurer under s. 128D of the Act. Section 128D of the Act was introduced by s. 40 of the Workplace Health and Safety and Other Legislation Amendment Act 2008 and commenced operation on 25 November 2008 i.e. at a date after Mr Fletcher received his compensation payment. Issue for Determination [4] The only issue for determination is whether the Appellant was a 'dependant' of Mr Fletcher pursuant to the meaning of that term in s. 128D of the Act. This necessarily requires a determination as to whether the Appellant was wholly or partly dependent on Mr Fletcher's earnings. Legislation [5] Relevant legislative provisions of the Act are as follows: "128D Worker's dependants (1) This section applies if the worker has dependants. (2) The worker's dependants are entitled to lump sum compensation equal to the sum of the following amounts- (a) 15% of the amount payable under section 200(2)(a); (b) 2% of the amount payable under section 200(2)(a) for the reasonable expenses of the worker's funeral. (3) An insurer may pay the compensation under this section - (a) to the worker; or

2 2 (b) to the worker's dependants at the same time as the insurer pays the worker lump sum compensation under section 128B. (4) The worker's dependants are not entitled to further compensation under chapter 3, part 11 for the death of the worker. (5) In this section - dependant, of a worker, means a member of the worker's family who is completely or partly dependent on the worker's earnings. member of the family, of a worker, means - (a) the worker's - (i) spouse; or (ii) parent, grandparent or step-parent; or (iii) child, grandchild or stepchild; or (iv) brother, sister, half-brother or half-sister; or (b) if the worker stands in the place of a parent to another person - the other person; or (c) if another person stands in the place of a parent to the worker - the other person.". "27 Meaning of dependant A dependant, of a deceased worker, is a member of the deceased worker's family who was completely or partly dependent on the worker's earnings at the time of the worker's death or, but for the worker's death, would have been so dependent.". "Schedule 6 Dictionary wages means the total amount paid, or provided by, an employer to, or on account of, a worker as wages, salary or other earnings by way of money or entitlements having monetary value, but does not include - (a) allowances payable in relation to any travelling, car, removal, meal, education, living in the country or away from home, entertainment, clothing, tools and vehicle expenses; and (b) superannuation contributions, for deciding the amount of compensation payable to a worker under chapter 3 or 4; and (c) lump sum payments on termination of a worker's services for superannuation, accrued holidays, long service leave or any other purpose; and (d) an amount payable under section 66.". Onus of Proof [6] The onus of proof lies on the Appellant to establish error in the decision of Q-Comp. The standard of proof is on the balance of probabilities. Self-Insurer's Decision and Q-Comp's Decision [7] In its decision of 15 October 2009, the Self-Insurer determined that the Appellant was not a 'dependant' within the meaning of that term in s. 128D(5) of the Act. The Self-Insurer's reasons for its decision are summarised as follows: (i) neither Mr Fletcher, nor the Appellant, received any income from employment from in or about November 1988;

3 3 (ii) Mr Fletcher and the Appellant each received benefits from Centrelink from in or about November 1988 until the time of Mr Fletcher's death; (iii) the amount of Centrelink benefits paid to the Appellant exceeded the amount of benefits paid to Mr Fletcher (due to the payment of a carer's allowance); and (iv) Mr Fletcher and the Appellant each received a half share of income from a rental property from in or about [8] Following an application to Q-Comp for a review of the Self-Insurer's decision, Q-Comp on 8 February 2010 confirmed the decision of the Self-Insurer finding that the Appellant was not a 'dependant' of Mr Fletcher. Q-Comp's reasons for its decision are summarised as follows: (i) the time of death is the relevant time when the dependency on the worker's earnings is to be determined as provided for in s. 27 of the Act; (ii) at the time of death, Mr Fletcher did not have 'earnings' as his disability support pension did not constitute earnings, and the interest which Mr Fletcher received on his lump sum compensation payment was not earnings because the lump sum compensation payment was not earnings. It was not therefore definitive that the interest was income for the purposes of the Income Tax Assessment Act 1997 (Cth); and (iii) that whilst it was accepted that generally workers with mesothelioma are no longer in receipt of earnings from employment at the time of their death due to the nature of the disease, s. 128D does not preclude all workers from receiving benefits because there would be instances where the worker is still in receipt of earnings at the time or shortly prior to their death. Evidence [9] Exhibit 6 in the proceedings is an Agreed Statement of Facts (although Q-Comp contends that paragraphs 14 to 17 are irrelevant to this matter as Mr Fletcher was never diagnosed with asbestosis) which relevantly provides as follows: "1. Mrs Narelle Fletcher (Appellant) made a claim for compensation from Arnott's Biscuits Ltd (Arnott's) under section 128D of the Workers' Compensation and Rehabilitation Act 2003 (Act) in September The appeal follows a decision by Arnott's not to accept the Appellant's claim for compensation on the basis that she was not a 'dependant' within the meaning of the Act and Q-COMP's decision confirming Arnott's decision. 3. The Appellant is the wife of Mr Kevin Fletcher, a worker who passed away from mesothelioma. Mr Fletcher believed this was caused by exposure to asbestos at Arnott's now demolished biscuit baking factory at Milton. Arnott's paid Mr Fletcher the statutory workers' compensation payment under section 128B of the Act. 4. Mesothelioma is a form of cancer in which malignant cells develop in the mesothelium - the protective lining that covers many of the body's internal organs, including the pleura (the outer lining of the lungs and internal chest wall). These cells divide without control or order. They can invade and damage nearby tissues and organs. The cancer cells can also metastasize, spreading from their original site to the other parts of the body. Most cases of mesothelioma begin in the pleura or peritoneum. In the pleura, mesothelioma results in the pleura producing too much fluid, which places excess pressure on the lungs. 5. Although reported incidence rates have increased in the past 20 years, mesothelioma is still a relatively rare cancer. The worldwide incidence rate is approximately one per 1,000,000. The highest incidence is found in Britain, Australia and Belgium, where it is 30 per 1,000,000 per year. 6. There is no cure for mesothelioma. The aim of treatment is to keep the patient's quality of life as good as possible. 7. Mesothelioma is a serious disease. By the time the symptoms appear and the cancer is diagnosed, the disease is often advanced. In the medical literature, average survival times for people with

4 4 mesothelioma have ranged between 4 and 18 months, depending on the study. The average length of survival reported throughout the last five years has been 10 to 11 months after diagnosis. In 2006, the five-year survival rate for mesothelioma was estimated at 10 percent, i.e. 10 percent of patients diagnosed with mesothelioma were living five years or more after their diagnosis. 8. Mesothelioma is in most cases caused by exposure to asbestos. 9. The symptoms of mesothelioma are many and varied. Some common symptoms for pleural mesothelioma (i.e. that form of the cancer which develops from the protective lining that covers the pleura) are: (a) (b) (c) (d) (e) (f) (g) shortness of breath; asthma; chest pains; fatigue; wheezing, hoarseness and coughing; pleural effusion (accumulation of fluid between the layers of tissue that line the lungs and chest cavity); and tumour masses. 10. Pleural mesothelioma patients have a poorer prognosis if they are experiencing chest pain, shortness of breath, inability to perform daily tasks, weight loss, a low red blood cell count, a high white blood cell count, and high blood levels of an enzyme called LDH (Lactate dehydrogenase). The symptoms are often signs of cancer that has developed into later stages. Pleural mesothelioma patients who experienced these symptoms usually receive a prognosis ranging between six and 12 months. 11. Many tumour masses can occur as the disease develops and becomes more severe. In cases of pleural mesothelioma, tumours are usually found on the lungs. 12. The time between exposure to asbestos, the development of symptoms associated with mesothelioma and the actual diagnosis of mesothelioma varies significantly from patient to patient. Symptoms or signs of mesothelioma may not appear until many years after exposure to asbestos (in some cases 30 to 50 years later). 13. Diagnosing mesothelioma is often difficult because some of the symptoms (such as shortness of breath, asthma, chest pain, fatigue and coughing) are symptoms of other less serious conditions. This is particularly the case if the patient is not aware of their exposure to asbestos. Even more serious symptoms may not be conclusive. For example, while pleural effusion can be caused by exposure to asbestos, it also has other causes, such as congestive heart failure, lung cancer, pneumonia and drug reactions. 14. In addition to mesothelioma, there are other diseases which are asbestos induced, one of the most common which is asbestosis. Asbestosis is a chronic lung disease which is exclusively caused by exposure to asbestos. It is often a progressive disorder that produces impairment of pulmonary function. As the fibrosis increases the scarred part of the lung becomes shrunken and breathing becomes difficult. 15. Unlike mesothelioma, asbestosis is caused by successive exposure to asbestos and additional exposure to asbestos causes additional fibrosis. 16. As with mesothelioma, there is often a significant period of time between the time of exposure to asbestos and the onset of symptoms associated with asbestosis. Some common symptoms include: (a) (b) shortness of breath; bronchitis;

5 5 (c) (d) pneumonia; and heart failure. 17. As with mesothelioma, diagnosing asbestosis can be difficult because the symptoms associated with asbestosis are common to other conditions. This is particularly the case where the patient is not aware that they have been exposed to asbestos. 18. The respondent disputes that the factors contained in paragraphs 14 to 17 inclusive are relevant to this matter. 19. The Appellant was married to Mr Fletcher from 22 February 1969 until Mr Fletcher's death on 1 September Mr Fletcher worked at Arnott's now demolished biscuit baking factory in Milton from about 1963 to Mr Fletcher left the employment of Arnott's in 1973, after having two weeks sick leave from work due to breathing problems. At that time, Mr Fletcher believed the flour in the factory was causing his breathing problems and a change of employment may be of benefit to his health. 22. Mr Fletcher had various and continuous employment after leaving Arnott's until In the years leading up to 1988, Mr Fletcher began experiencing breathing difficulties and chest pain. This culminated in or about 1988 with the development of severe asthma and bronchitis. These symptoms prevented him from working. He continued to experience severe difficulties and chest pain thereafter. Mr Fletcher did not work after this date. He received a disability support pension from that time until his death in September From 1988 to 1996 Mr Fletcher experienced general health problems, including severe asthma, pneumonia, angina, hypertension, heart attack, ischemic heart disease, heart palpitations and back pain. These conditions also contributed to his inability to work after In 1996 Mr Fletcher was admitted to hospital with pleural effusion. Mr Fletcher was hospitalised for approximately two weeks and had fluid removed from his chest cavity. 26. From 1996 to 2008 Mr Fletcher continued to experience general health problems, including severe asthma, constant back/side pain (at time severe), chest pain, prostate pain, angina, hypertension and heart palpitations. 27. In March 2008 Mr Fletcher was again admitted to hospital with pleural effusion, and underwent an operation to remove 2.5 litres of fluid from his chest cavity. In the week following that operation, Mr Fletcher was diagnosed with mesothelioma. This included the identification of tumour masses. Prior to this time, the Appellant was not aware that Mr Fletcher knew about his exposure to asbestos. 28. Mr Fletcher passed away on 1 September The symptoms which led to Mr Fletcher leaving Arnott's (breathing difficulties) and the symptoms Mr Fletcher suffered leading up to him stopping work and resulting in him receiving a disability support pension (breathing difficulties, asthma and chest pain) are common symptoms of exposure to asbestos which develop to mesothelioma. These symptoms persisted for the rest of Mr Fletcher's life. Mr Fletcher also developed other symptoms post 1988, that are associated with exposure to asbestos leading to mesothelioma (such as pleural effusion and tumour masses). 30. Most of the symptoms caused due to asbestos exposure do not surface for many years after the exposure and could begin to surface up to 40 years after the first exposure. 31. The Appellant had her first child in October 1980 and ceased working from that time to become a fulltime mother. From 1980 to 1988, the Appellant was entirely dependent on Mr Fletcher's earnings. Mrs Fletcher also cared for Mr Fletcher from 1988, when he was unable to work, until his death in 2009, the level of care increasing as his health deteriorated.

6 6 32. From in our [sic] about 1988 to June 2008, the Appellant's and Mr Fletcher's income was as follows: (a) (b) Mr Fletcher received a 'disability support pension' from Centrelink. As at June 2008, the pension was approximately $470 a fortnight. The Appellant received a 'wife pension DSP'. The Appellant was entitled to receive that pension as the female partner of a disability support pensioner (i.e. Mr Fletcher). As at June 2008, the payment was approximately $470 a fortnight. 33. From in or about June 2008, the Appellant also commenced receiving a 'carer's allowance'. The Appellant was entitled to receive that supplementary payment because she was providing daily care and attention to a person with disability (i.e. Mr Fletcher). As at June 2008, the payment was approximately $100 a fortnight. 34. Mr Fletcher and the Appellant also received a half share of income from a rental property from in or about As at June 2008, the rental income (not accounting for expenses) was $150 a week (or $75 each a week). 35. Mr Fletcher and the Appellant deposited their social security benefits and rental income into a joint account in both their names and withdrew money from that account to meet their day-to-day expenses, including groceries, rates, electricity, clothing and other living expenses. 36. Mr Fletcher believed that his mesothelioma was caused by exposure to asbestos while working at Arnott's biscuit baking factory and he made an application to Arnott's for statutory compensation. 37. In or about June 2008, Arnott's determined that Mr Fletcher was entitled to compensation pursuant to section 128B of the Act in the amount of $458,640. Mr Fletcher received and deposited his compensation payment (less an amount retained by Medicare) into a joint bank account in his and the Appellant's names in or about July Both Mr Fletcher and the Appellant took the benefit of the compensation payment and the interest earned on that payment, both in terms of meeting day-to-day living expenses (such as groceries) and the purchase of big ticket items (such as an automatic motor vehicle which the Appellant could drive when Mr Fletcher was no longer able to drive their existing motor vehicle, which had a manual transmission). 39. The interest earned on the lump sum compensation significantly reduced Mr Fletcher's disability support pension and the Appellant's wife pension DSP. In August 2008, after receipt of the compensation payment, the Appellant and Mr Fletcher were receiving approximately $170 each a fortnight for these pension payments. 40. The Appellant continued to receive the full carers allowance, which is not subject to an income or assets test, until Mr Fletcher's death in September The Appellant is no longer in receipt of any Centrelink benefits as both her payments were linked to Mr Fletcher's disability. ". [10] In addition to the Agreed Statement of Facts, there is Exhibit 7 which is an Affidavit of Mr Fletcher sworn on 3 May At the time Mr Fletcher was a disability support pensioner and the Affidavit was made at the request of Arnott's Biscuits Ltd for the purpose of them examining the possibility of initiating recovery action against organisations involved in the manufacture of ovens and/or the manufacture or supply of insulation and/or other materials to which Mr Fletcher was exposed to during his employment with Arnott's Biscuits Ltd. Appellant's Submission [11] With the factual position as outlined in both Exhibits 6 and 7 accepted, Mr Bradley, Counsel for the Appellant, contends that Q-Comp's rejection of the Appellant's claim for compensation under s. 128D of the Act is wrong in that it imposes a requirement that a claimant be dependent on the personal exertion earnings of a worker at the time of the worker's death. Such an imposition would, in the Appellant's submission, defeat the intent of the

7 7 legislative provision. The Appellant submits that such an interpretation should be avoided for the following reasons: a legislative provision should be interpreted in accordance with its purpose 1 and, further, the common law principle that the intention of the legislature "is not to be treated as vain or left to operate in the air". Where "two constructions of a provision are possible on its face, and one would clearly advance the legislative purpose and the other would clearly achieve little or nothing, the former is to be preferred" 2 ; the legislative provision should not be interpreted in a way that allows a technical view about the form of the provision to interfere with the application of principles of substance. When the words to be interpreted have ordinary natural meanings that can apply without resort to technical meanings, there is no reason to limit the words to the technical meaning they might have in other places or even in other provisions that include different definitions. The words of an Act of Parliament which are not applied to any particular science or art are to be construed as they are understood in common language 3 ; when one considers the position before s. 128D of the Act was enacted, and the mischief for which the Act did not then provide, it is clear that s. 128D of the Act was enacted to cure the mischief. The provision should be interpreted "to suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief and to add force and life to the cure and remedy, according to the true intent of the maker of the Act" 4 ; there is a presumption that the Parliament intended to act reasonably and the reasonable interpretation should be preferred. There is a similar presumption that Parliament did not intend to produce a result that is absurd or unjust; and when the Parliament enacted s. 128D of the Act, it included a definition of 'dependant' that is different from the definition in s. 27 of the Act, which might otherwise have applied. From this change of language it is to be assumed that the Parliament intended to change the meaning. Otherwise it would not have included the definition. The differences in the definitions are important. This, it is submitted, is a basic principle of legislative drafting. [12] The Appellant further submits that the interpretation of s. 128D of the Act undertaken in the Q-Comp decision of 8 February 2010, should be rejected for a number of reasons. [13] Firstly, the interpretation does not advance the legislative intent and purpose of the provision. The proper approach to statutory interpretation is that enunciated by the High Court of Australia in CIC Insurance Ltd v Bankstown Football Club Ltd 5 : "[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent." (Footnotes omitted). and by Dixon CJ in Commissioner for Railways (NSW) v Agalianos 6 (cited with approval in Project Blue Sky Inc v Australian Broadcasting Authority 7 ) that: "The context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.". 1 s. 14A of the Acts Interpretation Act Craies on Legislation 9 th ed (2008) at pp Attorney General v Winstanley (1831) 2 D & CI 302 at Heydon's Case (1584) 3 Co Rep 7a. 5 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381.

8 8 [14] The Appellant further submits that, to the extent that there might be a range of meanings, the legislative purpose is critical as Parliament has directed, by s. 14A(1) of the Acts Interpretation Act 1954 (Qld) that: "In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.". and further by s. 14B(1)(b) of the Acts Interpretation Act 1954 (Qld) that: " in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assistance in the interpretation (b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable - to provide an interpretation that avoids such a result ". [15] The Appellant further submits that the enactment of provisions such ss. 14A and 14B of the Acts Interpretation Act 1954 (Qld) requires the literal rule of construction to "give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not" and that this is so "not only where these provisions on their face offer more than one construction, but also in determining whether more than one construction is open.": see Mills v Meeking 8 where Dawson J noted that this approach "needs no ambiguity or inconsistency before a court could have regard to purpose" and further that: "The approach required by s.35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman.". [16] The Appellant also relies upon the following comment of McHugh J. in Newcastle City Council v GIO General Ltd 9 : " when the purpose of a legislative provision is clear, a court may be justified in giving the provision 'a strained construction' to achieve that purpose provided that the construction is neither unreasonable nor unnatural.". (Footnote omitted). [17] The relevant objects of the Act are said by the Appellant to be: the establishment of a workers' compensation scheme in Queensland providing benefits for dependants if a worker's injury results in the worker's death: see s. 5(1)(a) of the Act; the provision of a workers' compensation scheme which is intended to maintain a balance between providing fair and appropriate benefits for dependants and ensuring reasonable cost levels for employers: see s. 5(4)(a) of the Act; and the provision of a workers' compensation scheme that ensures that dependants are treated fairly by insurers: see s. 5(4)(b) of the Act. [18] Sections 128D and 128E of the Act commenced operation on 25 November In the Second Reading Speech to the Workplace Health and Safety and Other Legislation Amendment Bill which introduced ss. 128A and 128B into the Act, the then Minister for Transport, Trade, Employment and Industrial Relations described the relevant provision as follows: "The bill also amends the Workers' Compensation and Rehabilitation Act 2003 to further assist the families of latent onset disease sufferers. Latent onset diseases are insidious conditions such as mesothelioma. New entitlements for dependant family members of sufferers are proposed following discussions with the Queensland Asbestos Related Disease Support Society. 8 Mills v Meeking (1990) 169 CLR 214 at Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at Second Reading Speech - Workplace Health and Safety and Other Legislation Amendment Bill Hansard -13 November 2009 p

9 9 The bill provides a new lump sum entitlement of 15 per cent of the maximum death benefit for dependants of a worker who subsequently dies and who had already received a payment of lump sum compensation or damages for a latent onset injury. In the same situation, reasonable funeral expenses of 2 per cent of the maximum death benefit will be paid to dependants.". [19] The Explanatory Notes 11 to that legislation stated at p. 2 that the amendments introduced "new arrangements for dependants of terminal latent onset disease (e.g. mesothelioma) sufferers" and at p. 4 that the amendments "provide a new lump sum entitlement of 15 per cent of the maximum death benefit for dependants of a worker who had already received a payment of lump sum compensation or damages for a latent onset injury that is a terminal condition" and at p. 20 that the amendments introduced "a new benefit for dependants of terminal, latent onset disease sufferers" and that the new entitlements "apply to all dependants collectively; dependants are not individually entitled to the amounts specified". The amount of compensation available for dependants under s. 128D of the Act is presently $63, [20] It is further submitted that mesothelioma was the latent onset disease specifically mentioned in the Minister's Second Reading speech. It is said to follow that the legislature proceeded on the basis that compensation claims would be made by dependants of mesothelioma sufferers and those persons would receive compensation. [21] By the time a diagnosis of mesothelioma, a terminal illness for which there is no cure, is made it is unlikely that the sufferer will still be earning personal exertion income. It is submitted that the normal position will be that the sufferer has been out of the workforce for some time due to early symptoms of the disease. Before the enactment of the 2008 provisions, a family member of a mesothelioma sufferer who had died could seek compensation under Chapter 3 Part 1 of the Act (Compensation on worker's death). Such compensation was only available to a 'dependant' and there was no specific definition of that word in Chapter 3 Part 1. Thus the definition in s. 27 of the Act was applied i.e. dependency at the time of the worker's death. It is submitted that this made it very difficult for the family members of mesothelioma sufferers to recover compensation under Chapter 3 Part 1 of the Act as it was very unlikely that a mesothelioma sufferer would be working or otherwise supporting his or her family at that time. The opposite was more likely i.e. the family members would be providing the care and support to the mesothelioma sufferer. [22] The Appellant submits that it therefore follows that Parliament could not have intended to confine the new benefits under s. 128A of the Act to persons who were dependent upon the personal exertion income of a mesothelioma sufferer at the time of the sufferer's death. If that were to be the case then such dependants could have made claims under the legislation prior to the 2008 amendments. The Appellant submits that this is the interpretation adopted by Q-Comp in its February 2010 decision. [23] It is thus contended by the Appellant that in interpreting ss. 128D and 128E of the Act the following needs to be considered: the 2008 amendments were intended to assist the families of latent onset disease sufferers, particularly the families of workers diagnosed with mesothelioma, including spouses who are the first mentioned in the definition of "member of the family" in s. 128D of the Act; an interpretation which ensures that family members are treated fairly by insurers should prevail: see s. 5(4)(b) of the Act; an interpretation which would deny certain family members of mesothelioma sufferers from ever taking the benefit of the assistance provided for in s. 128D of the Act would result in an 'unreasonable', 'inconvenient' or 'improbable' outcome and this should be avoided; s. 128D was specifically enacted to confer a new benefit on persons who were dependants of sufferers of late onset diseases; and in enacting s. 128D of the Act, Parliament specifically avoided requiring a person to be a dependant on the earnings of a worker with a latent onset injury at the time of the worker's death. Thus s. 128D differs from s. 27 of the Act and the Explanatory Notes refers to the definition of 'dependant' as taking into account "the new ability to pay the dependants compensation while the worker is still alive" 12. This is inconsistent with a determination "at the time of the worker's death". In this regard the Appellant also refers to the transitional provisions in ss. 657 and 658 of the Act that make clear that Parliament's 11 Explanatory Notes - Workplace Health and Safety and Other Legislation Amendment Bill Explanatory Notes - Workplace Health and Safety and Other Legislation Amendment Bill 2008 p.20.

10 10 intention was to confer an entitlement to compensation on the dependants of workers who applied for, and received compensation for, latent onset injuries before the amendments, but who die after the amendments. It is submitted that such persons continue to be regarded by the Act as dependants even after the worker has died 13. [24] The proper approach to a construction of 'dependant' in s. 128D of the Act is to adopt a construction which conforms to the legislative intent of the provision i.e. one which assists the families of latent onset disease suffers. This is different to the construction of 'dependant' adopted in the Q-Comp decision the subject of this appeal which relied upon the s. 27 of the Act definition of 'dependant' i.e. dependant at the time of the worker's death. It was, however, noted by the Q-Comp Review Officer that some cases do provide support for consideration of the past history and possible future earnings when determining dependency. The Appellant submits that the Q-Comp Review Officer erred in utilising the definition in s. 27 of the Act when s. 128D contained its own definition of 'dependant' in subsection (5). In this regard it is contended that the definition in s. 128D(5) does not: mandate that the test be applied at the time of death given that s. 128D compensation can be paid while the worker is alive. It is clear that Parliament did not intend the test to be applied at the time of death as provided for in s. 27 of the Act because s. 128D(3) allows the compensation to be paid to the worker or to the worker's dependants at the same time as the insurer pays the worker lump sum compensation under s. 128B of the Act i.e. compensation paid under s. 128D can be paid while the worker is alive; state that it be applied "at the time of injury". If Parliament had intended the test to be applied at the date of injury it would have been a simple matter for it to specify that in s. 128D(5), as the legislature has done elsewhere in the Act. Section 235A(1) of the Act provides that in cases where an injury sustained by a worker occurs over a period, the date of injury is the date on which the worker first consulted a health practitioner about the injury. The Appellant submits that this would be a very difficult task in cases involving a latent onset injury, particularly in cases where the worker experiences symptoms consistent with the latent onset injury some twenty years prior to the diagnosis. Further, s. 36A(4) of the Act creates a statutory fiction of when an injury is taken to be sustained in cases involving a latent onset injury i.e. the date of the doctor's diagnosis. the subsection does not require that the test be applied at the time of the 'event' which resulted in the latent onset injury i.e. at the time of the repeated and continuous exposure to asbestos. [25] It is suggested that it would be improper to adopt a construction of 'dependant' which would deny family members of mesothelioma sufferers from rarely (if ever) taking the benefit of the assistance provided in s. 128D of the Act. [26] According to the Appellant, the authorities establish that the matter of dependency is to be looked at in a broad and practical way having regard to what had happened in the past and what would probably have happened in the future but for the injury resulting in death 14. Thus the proper construction of s. 128D of the Act requires consideration of dependency in the context of the whole of the relevant factual matrix, including: the history of the relationship between the Appellant and Mr Fletcher; whether the Appellant was dependent on Mr Fletcher when Mr Fletcher was doing the work that exposed the worker to the matter that resulted in the latent onset injury; whether the Appellant was dependent on Mr Fletcher when Mr Fletcher began to have symptoms consistent with the diagnosis of the latent onset injury and consulted a health practitioner about them; and whether the Appellant would have been dependent on Mr Fletcher, but for the latent onset injury which resulted in death. [27] The Appellant submits that when the whole of the factual matrix is considered the result must be that the Appellant was dependent upon Mr Fletcher e.g. she had been economically dependent on Mr Fletcher: from the time their first child was born in 1980; had it not been for Mr Fletcher's ill health, he would have kept working to support his wife; 13 see s. 658(2) of the Act. 14 see Asfjes v Kearney ( ) 8 ALR 455, 461, McMorrow v Airesearch Mapping Pty Ltd (1997) 137 FLR 322 and WorkCover Queensland v Cook [2003] QIC 147.

11 11 the Appellant and Mr Fletcher operated a joint bank account into which income was paid and from which money was withdrawn to meet their day-to-day expenses; the Appellant remained dependent on Mr Fletcher when he ceased to be able to work e.g. the pension the Appellant received was based on the disability suffered by Mr Fletcher; there was a reduction in the Appellant's pension once Mr Fletcher received the lump sum compensation payment in June 2008; and the Appellant's pension and allowance was ceased upon Mr Fletcher's death. [28] Mr Fletcher had income from employment from 1963 to As and from their marriage in 1969, the Appellant was partly dependent on Mr Fletcher's wages. During the period 1980 to 1988, the Appellant was completely dependent on Mr Fletcher's earnings. Had Mr Fletcher not been forced to stop work in 1988 because of symptoms common to an eventual diagnosis of mesothelioma, the evidence is that Mr Fletcher would have kept working to support his wife and children. The Appellant was completely dependent on Mr Fletcher's earnings from employment for eight years prior to the time he stopped working and the evidence is that the Appellant would have continued to be dependent on Mr Fletcher's earnings had he not been forced to stop work with symptoms which ultimately developed into mesothelioma; [29] Prior to the enactment of s. 128B of the Act in 2005, Mr Fletcher would have had to seek compensation for: loss of earnings under Chapter 3 Part 9 with the object of the compensation being to provide for weekly payments to the worker during the period of incapacity 15. Compensation under this part is calculated by reference to "normal weekly earnings" and consequently represents loss of earnings; and permanent impairment under Chapter 3 Part 10 of the Act. [30] When combined, this compensation is the same as the compensation available under s. 128B of the Act save that there is an additional amount of compensation available for gratuitous care under s. 128B of the Act. It is thus clear that the compensation available to a worker under s. 128B takes the place of compensation under Chapter 3 Parts 9 and 10. Unsurprisingly, s. 128B provides that the loss of earnings component of compensation is paid as a lump sum as the sufferer of a latent onset injury which is a terminal condition will forego many years of weekly payments of compensation for loss of earnings before the injury is diagnosed. By the time the diagnosis is made the worker will only have a limited life expectancy measured in months. The Appellant further submits that the same conclusion also follows from s. 128C of the Act i.e. if a worker has received compensation for loss of earnings then the amount of compensation payable under s. 128B is reduced accordingly. [31] The Appellant submits that the interest earned on the lump sum payment of compensation would thus be income for the purposes of the Income Tax Assessment Act 1997(Cth) and treated as income by Centrelink for the purposes of determining any entitlement to social security payments. The social security benefits received by both the Appellant and Mr Fletcher were drastically reduced once the lump sum payment was deposited into their joint bank account. The lump sum payment took the place of earnings from employment and should, in 2010, be included in the common meaning of 'earnings': see WorkCover Queensland v Cook 16 where benefits from a superannuation policy with Q-Super were considered to be 'earnings' for the purposes of the Act. The President also recognised that the benefit which the deceased worker's husband derived from the lump sum payment which Q-Super made to the deceased worker in discharge of its obligations to make weekly payments could also evidence dependency. [32] The term "normal weekly earnings" is defined in s. 106(1) of the Act as the "normal weekly earnings of a worker from employment (continuous or intermittent) had by the worker in the 12 months immediately before the day the worker sustained the injury". This definition appears at the commencement of Chapter 3 (Compensation) and is then used in the calculation of compensation under ss , 157, 163 and in the definition of "loss of earnings" in s. 162 of the Act. The Appellant submits that had Parliament intended to restrict the concept of 'earnings' in s. 128D of the Act to money earned from employment, it could have very easily used the words 'normal weekly earnings' rather than 'earnings' in the definition of 'dependant'. [33] It is further submitted that whilst social security pension income has not traditionally been considered 'earnings', there are compelling reasons why it should be accepted that the term 'earnings' for the purposes of s. 128D of the 15 see s. 145(2) of the Act. 16 WorkCover Queensland v Cook [2003] 173 QGIG 1416.

12 12 Act encompasses such pension income. The compelling reason is that a worker with a latent onset injury will not be in receipt of earnings from employment at the time of death due to the insidious nature of such injuries. [34] Whilst the Appellant concedes that: if the term 'earnings' is found to mean earnings from employment; and if the correct time to apply the test of dependency is at the time of the worker's death, then the Appellant's claim for compensation must fail. However, the Appellant submits that, the Appellant must succeed if the ordinary and natural meaning of the words in s. 128D of the Act are applied i.e. the Appellant was completely or partly dependent on Mr Fletcher's earnings and her entitlement to compensation under s. 128D of the Act should be confirmed. Q-Comp's Submission [35] On the issue of dependency, Q-Comp submit that the approach to interpretation outlined in the majority judgment of the High Court in Project Blue Sky Inc v Australian Broadcast Authority 17 is appropriate i.e. that the meaning of the provision must be determined "by reference to the language of the instrument as a whole". In this regard it is contended that the Act is internally consistent in that wherever a determination is required of whether a person is, or is not, a 'dependant', the Act applies the same test, that being, is the person dependent on the earnings of the worker. The definition of 'dependant' in s. 27 of the Act applies this test as does ss. 200 and 201 when providing for compensation for relatives on the death of a worker. [36] When the legislature enacted s. 128D they chose to adopt the exact same phrase and test to determine the status of a person as a 'dependant'. Q-Comp submit that this can only be indicative of a parliamentary intention to maintain the same test for s. 128D (and the same body of jurisprudence regarding the application of that test) for determining whether a person is a dependant, that applies elsewhere in the Act. [37] Q-Comp further submit that whilst the term 'earnings' is not defined in the Act, some guidance can be obtained as to the meaning of the term from the definition of 'wages' contained in the dictionary to the Act. Q-Comp submit that the appropriate interpretation to be applied to 'earnings' is a payment from an employer to a worker in return for personal exertion. [38] Q-Comp contend that it is a principle of statutory interpretation that where a basic legal term with an established legal meaning is used, it should be understood in that sense unless a contrary intention clearly appears from the context 18. In the context of workers' compensation legislation, the word 'earnings' is a term with an accepted legal meaning and therefore falls within this principle of statutory interpretation. [39] Q-Comp also submit that there is a presumption when interpreting legislation, that where the same word appears in different places within an Act, the same meaning is intended: see Craig Williamson Pty Ltd v Barrowcliff 19 at 452 where Hodges J. stated: "I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.". and that of Derrington J. in Watkins & Ors v Lee and Hervey City Council & Ors 20 where it was noted that: 17 Project Blue Sky Inc v Australian Broadcast Authority (1998) 194 CLR 85 at See Attorney-General (NSW); Ex rel Tooth and Co Ltd v Brewery Employees Union of New South Wales (Union Label Case) (1908) 6 CLR 469, at 531; 14 ALR 565 per O'Connor J ("trademark"); Barker v R (1983) 153 CLR 338 at 341, 356; 47 ALR 1; 57 ALJR 426 per Mason, Brennan and Deane JJ ("trespasser"). See also Davies v Western Australia (1904) 2 CLR 29 at 42-3; 11 ALR 73 per Griffith CJ; Unwin v Hanson [1891] 2 QB 115; (1891) 65 LT 511, CA; Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 at 580; [ ] All ER Rep 28 per Lord Macnaghten; Ashfield Municipal Council v Joyce [1976] 1 NSWLR 455 at 459; [1978] AC 122; (1976) 10 ALR Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at Watkins & Ors v Lee and Hervey City Council & Ors [1996] QSC 119.

13 13 "Prima facie an expression will be accorded the same meaning where it appears throughout a statute, and though this may be displaced by such as a contextual factor, it would need reasonable strength.". [40] Q-Comp contend that there is no indication in s. 128D, or indeed in any of the extrinsic material, of there being a clear parliamentary intention that 'earnings' is to be treated differently in s. 128D of the Act. Thus 'earnings' should be given its accepted legal meaning not only in s. 128D but elsewhere in the Act. [41] In Abram Coal Company Limited v Southern 21 the question was what were the 'earnings' for the purposes of the Workmen's Compensation Act 1897 (UK), of a collier whose employer deducted each week from his wages, by agreement, sums for cleaning lamps, supply of oil, sharpening picks and checking weights. Lord Macnaghten at said: "The sole question which your Lordships have to consider is what is the meaning of the word 'earnings' in the Workmen's Compensation Act. There is no definition of that word in the Act, nor is there anything said here about deductions. I think the word 'earnings' is used, not in the sense in which economical writers use it, but in a popular sense. The object of the Act was to determine the amount to be paid by way of compensation in the case of an accident resulting in disability or death. In the event of death there is a maximum limit fixed and a minimum limit as well. In the event of disability there is only a maximum limit. Subject to the prescribed limits or limit, as the case may be, the Act takes the workman's 'earnings' as the standard of compensation. It is a rough standard of course. But it is a very obvious one, and there can be no difficulty if the word 'earnings' means the full sum for which the man is engaged to work. The difficulties would be endless if the Court had to find out in each case the net remuneration received by the workman, or the balance left for him to spend on himself and his family.". [42] Lord Davie, in relation to the word 'earn' in The Midlands Railway Co v Sharpe 22 said: "Now what does a man earn? He earns the sum which is the fruit of his labour; whatever he receives by way of remuneration for the services he gives, or, as Lord Macnaghten said in Abram Coal Co v Southern, a man's 'earnings' are 'the full sum for which the man is engaged to work'.". [43] The High Court noted in Cage Developments Proprietary Limited v Schubert 23 that in relation to the phrase "is earning" the reference in s. 11(1)(a) in the Workers' Compensation Act (NSW) to the 'amount' which a worker "is earning, or is able to earn" was a reference to the amount which he is earning or able to earn as a worker, that is to say, by his own physical and mental exertions. In that case, the profits of the business carried on by the partnership were earned by the utilisation of both capital and labour and were apparently divided between the respondent and his wife without regard to the relative value of the respective contributions of both or either. In those circumstances neither the net profits of the business nor the respondent's share therein could properly be regarded as representing an 'amount' which he was 'earning' by his labour. The respondent was not, for the purposes of s. 11(1)(a), 'earning' any such 'amount' or, for that matter, any other quantified 'amount'. [44] Further Hall P. in Keith Brady Real Estate (Qld) Pty Ltd v Gannon 24 noted that 'earnings' has historically been taken to mean the full sum for which an employee is engaged to work 25. [45] These authorities are said to support the fact that some form of connection with employment or personal exertion must exist for payments to fall within the concept of 'earnings'. Thus Q-Comp submit that this is the accepted legal meaning of the word 'earnings' and that payments such as pension payments or compensation payments are excluded from the word 'earnings' in s. 128D(5) of the Act. [46] Q-Comp submit that a number of authorities exclude certain payments from the concept of 'earnings' including: Ball v William Hunt & Sons, Limited 26 where Lord Atkinson noted: "On examining the schedule one plainly sees that what is to be compensated for is not, as in ordinary actions for tort, the pain and suffering which the Plaintiff has endured, or the disfigurement of, or injury to, his body which has been inflicted upon him, but the loss of power to earn wages which has resulted from the injury. In the case of the workman's death it is only those dependants who are dependent wholly or in part upon those earnings who are to receive any compensation, and the amount 21 Abram Coal Company Limited v Southern [1903] AC The Midlands Railway Co v Sharpe (1904) AC 349 at Cage Developments Proprietary Limited v Schubert [1983] 151 CLR 584 at Keith Brady Real Estate (Qld) Pty Ltd v Gannon [2005] 179 QGIG 410 at see e.g. Abram Coal Company Ltd v Southern [1903] AC 306 at 308 per Lord Macnaghten and Paterson v Stanmorr Pty Ltd (2005) 2 VR 460 at 463 per Phillips J.A. 26 Ball v William Hunt & Sons, Limited [1912] AC 496 at 504.

14 14 of it is, subject to certain limits, measured by the amount of those earnings in the employment in which he met with the accident which caused his death. However great may be the pecuniary loss the dependants sustain from the workman's death by reason of the cessation on that event of a pension or life annuity, or income from property, they are not entitled to any compensation under the Act in respect of this loss.". Hardie v Hardie 27 where the Victorian Supreme Court held that workers' compensation payments were not 'earnings' for the purposes of the Maintenance Act 1928; Fisher v Hebburn 28 where the High Court held that a person could not be said to be dependent upon a worker's earnings where there were no earnings. In that case the worker was a coal miner who had stopped working due to a non work-related injury in 1949, and had been in receipt of a disability pension. The worker was diagnosed in 1955 with pneumoconiosis, which would have rendered him totally incapacitated had he still been in employment at the time. The High Court found that the worker's spouse may have been dependent on his pension, but could not be said to have been dependent on his 'earnings' as he had not been in receipt of earnings since he had retired medically unfit. McTiernan J. noted as follows at 197: "The remaining question is whether the appellant is entitled, in addition to what is payable under s. 9 (1) (a), to a weekly payment under s. 9 (1) (b) in respect of his wife. He can only be so entitled if his wife was 'dependent on his earnings' at the date of the certificate of the Medical Board. At that time he was earning nothing, but was, as has been said, in receipt of a pension. His wife may be said to have been dependent on his pension, but she cannot be said to have been dependent on non-existent earnings.". Kitto and Menzies JJ also noted as follows at 206: "The second weekly payment under s. 9 (1) is provided for by par. (b). By that paragraph the compensation payable by the employer under the Act is made to include, in addition to the compensation payable under par. (a), a weekly payment, during the incapacity, of (inter alia) a stated sum per week in respect of the wife of the worker who is totally or mainly dependent on the earnings of the worker 'at the date of the injury', or who becomes so dependent after such date. It is to be noted that the Commission is not given any discretion as to this amount, and consequently if the paragraph does not apply to the present case by the direct force of its terms there is no room for the employment of any analogy. At all material times the appellant was a married man. Until he ceased work in April 1949, his wife was totally dependent on his earnings. She has been totally dependent on him ever since, except in so far as she may have been in receipt of a pension of her own; but his means have been confined to a pension or pensions. At the date when his notional incapacity from pneumoconiosis is to be taken as having resulted, namely, 7th July 1955, he had no earnings, and his wife therefore could not be described as dependant on his earnings. Accordingly the award to which the appellant was entitled could not properly include any additional compensation under par. (b).". Following the decision in Fisher v Hebburn 29, the New South Wales Parliament amended the New South Wales Act to nullify the effect of the High Court decision by changing the requirement from a dependency on earnings to a dependency upon the support of the deceased worker. As noted by Hall P in WorkCover Queensland v Cook 30 and Matthews P in Gers v Workers' Compensation Board of Queensland 31 the decision of Fisher v Hebburn still applies in Queensland; State Coal Mine Control Authority v Rogers 32 where the New South Wales Supreme Court held that neither workers' compensation payments nor a miner's pension constituted 'earnings' in the definition of 'dependant' in the Workers' Compensation Act (NSW). At 4 and 5 Sugerman J noted that the context in which 'earnings' was used in that definition showed that it was used to refer to what is earned by the worker - the rewards he receives for his efforts in employment. At 12 and 13 McClemens J recites a helpful history of the requirement of dependency on earnings in the various forms of the legislation. Both confirmed their views that neither compensation payments nor pension payments were earnings for the purposes of the workers' compensation legislation. 27 Hardie v Hardie [1947] VLR 79 at Fisher v Hebburn Limited (1960) 105 CLR Fisher v Hebburn Limited (1960) 105 CLR WorkCover Queensland v Cook (2003) 173 QGIG Gers v Workers' Compensation Board of Queensland (1985) 119 QGIG State Coal Mine Control Authority v Rogers (1964-5) NSWR 2 at 3-5.

15 15 [47] Q-Comp submit that the decision of Hall P in WorkCover Queensland v Cook should be put to one side because of the substantial factual differences between the Appellant's claim and those in Cook's Case. In Cook's Case the injured worker made a claim for workers' compensation which was accepted and benefits were paid. After her claim for workers' compensation was finalised the worker made application and began receiving fortnightly payments under her Q-Super policy until this also was finalised by the payment of a lump sum. Shortly thereafter the injured worker committed suicide. In that case Hall P noted "In Gers v. Workers' Compensation Board of Queensland (1985) 119 QGIG 104 Matthews, President considered the counterpart provision of the Workers' Compensation Act 1916 and concluded (at 105): 'Dependency is determined at the time of the worker's death. (Brazewell v. Emmott and Wallshaw Limited (45 T.L.R. 1984)). In the instant case the worker had not been living at home for some three years prior to his death except for odd periods between jobs and one should not therefore go back to the time when he was living at home to determine the question of dependency. One is not, of course, confined to the date of death and one is entitled to look at past events if by doing so one is assisted to reach a conclusion in respect of the question of whether there was dependency at the time of death but I think His Worship was quite correct when he confined his consideration to that particular period of about three years. Moreover, dependency is to be on the earnings of the deceased (Fisher v. Hebburn Limited [1960] HCA 80; (1960) 105 C.L.R. 188). This restriction to reliance upon earnings continues to be applied in Queensland although in some other States, for example New South Wales, the effect of Fisher v. Hebburn Limited (supra) has by amendment of the legislation been nullified. Capital outlays benefiting a person as distinct from maintenance items do not evidence dependency. (Campbell v. Westcourt Coal Co. (1911) 14 G.L.R.323). In this respect there is no suggestion in the evidence that purchase of the motor car evidenced any dependency of the appellant although payment of the sums necessary to register and insure a motor vehicle and some maintenance on the house would in my opinion go towards establishing it.'. I accept the submission of counsel for the appellant that those observations are equally applicable to s. 29 of the present Act. I also accept that Ms Cook did not (literally) have any earnings upon which the respondent might have been dependent at the time of her death. However, it seems to me that Ms Cook did have earnings when in receipt of workers' compensation payments and in receipt of fortnightly payments pursuant to the QSuper policy, compare Cullen v. Workers' Compensation Board of Queensland (1988) 127 QGIG 301 at 302 where Moynihan, President held that 'pension income' might be considered to be 'earnings' and Bowmaker v. Bowmaker (1966) 85 WN (Pt1) (NSW) 4 at 6 where fortnightly payments by way of superannuation were held to be 'earnings' for the purposes of the Matrimonial Causes Act 1959 (Cth). The authorities established that the matter of dependency is to be looked at in a broad and practical way having regard to what had happened in the past and what would probably have happened in the future but for the death, compare Aafjes v. Kearney [1976] HCA 5; ( ) 8 ALR 455 at 461 per Gibbs J and 463 per Mason J and McMorrow v. Airesearch Mapping Pty Ltd (1997) 137 FLR 322 at 324 to 325 per Priestley J with whom Kearney and Angel JJ agreed. Fisher v. Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188 was a case in which the deceased had had no earnings for over six years prior to his death. In this case, Ms Cook had ceased to have earnings only a little over two months prior to her death. Her earnings had ceased because she had taken a lump sum in settlement of her entitlement to future 'earnings' by way of superannuation payments. At least for the purposes of the Income Tax Assessment Act 1997 that lump sum payment was 'income', compare Sommer v. Commissioner of Taxation [2001] AATA 901, and to the extent that it had been used to purchase a laptop and to reduce the overdraft to the family business, the respondent was still enjoying the fruits of the payment at the time of Ms Cook's death. It is not disputed by counsel for the appellant that if Ms Cook had recovered and commenced to earn she would have recommenced contributing to the family pool. In my view the Industrial Magistrate was right to conclude that the respondent was a 'dependant' within the meaning of s. 29." 33. [48] Q-Comp submit that the basis upon which Hall P in Cook's Case extended the interpretation of the phrase 'earnings' was premised upon the fact that the Q-Super payments, both the fortnightly payments and the lump sum payment, were payments made in lieu of earnings and the short time frame between those payments ceasing and the death. President Hall found it significant that in Fisher v Hebburn 34, the worker had not had earnings for over six years prior to his death and used this as a factor to distinguish it from the situation in Cook's Case. In the current matter, it is the position of Q-Comp that the period in which the worker had not had earnings prior to death is close to twenty-one years. Q-Comp thus submit that the time period is substantially greater than in Fisher v Hebburn. [49] Q-Comp further submit that the clear factual differences between the Appellant's claim and the position in Cook's Case is the substantial differences in time involved in the two cases and the fact that in Cook's Case the 33 WorkCover Queensland v Cook (2003) 173 QGIG Fisher v Hebburn Limited (1960) 105 CLR 188.

16 16 worker was in fact in receipt of periodic payments of weekly benefits from Q-Super, This, it is submitted, more closely resembles earnings. In the present case Mr Fletcher was receiving a disability pension. [50] It is further submitted by Q-Comp that the decision in Aafjes v Kearney 35 ought to be distinguished from the current matter. It is submitted that Mr Fletcher suffered a substantial number of conditions and that it could be assumed that Mr Fletcher did not have any likely capacity to return to work and thus the status quo would have remained i.e. with both Mr Fletcher and the Appellant reliant on pension payments and the rental income. [51] Q-Comp submit that the correct characterisation of the lump sum payment of compensation is that it was made in respect of gratuitous care and future impairment and was not therefore in the nature of weekly benefits in lieu of earnings. Support for this view, it is submitted, is found in the parliamentary debate regarding the 2008 Workplace Health and Safety and Other Legislation Amendment Bill where Mr Purcell noted 36 : "Queensland workers who develop work related latent diseases may be entitled to a statutory lump sum payment around $478,000 in compensation to assist with care and to provide for future needs.". [52] Q-Comp submit that there was no indication in that passage that the payment was in lieu of earnings. Based on the authorities already cited, Q-Comp submit that such a payment of lump sum compensation does not constitute 'earnings' for the purposes of any assessment of dependency in any of the provisions of the Act. [53] In summary, Q-Comp submit: that the authorities confirm that the concept of 'earnings' for the purposes of the workers' compensation legislation refers to payments from an employer in respect of work undertaken as a reward for personal exertion. This is the accepted legal meaning of the term and should be applied in interpreting all of the provisions of the Act where it appears; the phrase "dependant on the worker's earnings" should be interpreted in s. 128D of the Act in the same manner as it is interpreted in ss. 27, 200 and 201 of the Act; there is no indication in the Explanatory Notes to the Workplace Health and Safety and Other Legislation Amendment Bill 2008 of there being an intention on the part of Parliament to overturn or change the wellestablished meaning of 'earnings' or to apply the statutory test in a different manner in s. 128D of the Act; the concept does not include payments such as pension payments that Mr Fletcher and the Appellant were receiving; and the decision of the High Court in Fisher v Hebburn 37 has not been over-ruled and remains good authority in Queensland. In circumstances where: o Mr Fletcher ceased work in 1988 and had been in receipt of a disability pension for twenty-one years prior to his death; and o Mr Fletcher's incapacity for work arose from the combination of a number of medical causes, the application of Fisher v Hebburn inevitably leads to the conclusion that neither the pension payments nor the income from rental property constituted earnings for the purposes of the Act. [54] Thus Q-Comp submit that the Commission should apply the High Court decision and conclude that the Appellant was not dependent upon the earnings of Mr Fletcher and confirm Q-Comp's decision. Conclusion [55] What was the legislative intent and purpose of s. 128D of the Act? As the Explanatory Notes to the Workplace Health and Safety and Other Legislation Amendment Bill state, the amendments were to "introduce new entitlements for dependants of sufferers of work-related latent onset injuries, such as mesothelioma" and that the Bill "provides a new lump sum entitlement of 15 per cent of the maximum death benefit for dependants of a 35 Aafjes v Kearney ( ) 8 ALR Second Reading Speech - Workplace Health and Safety and Other Legislation Amendment Bill Hansard -13 November 2009 p Fisher v Hebburn Limited (1960) 105 CLR Explanatory Notes - Workplace Health and Safety and Other Legislation Amendment Bill 2008 p.20.

17 17 worker who had already received a payment of lump sum compensation or damages for a latent onset injury that is a terminal condition". [56] As mesothelioma is the specific disease mentioned in the Explanatory Notes and in the Second Reading Speech to the 2008 Bill 39 it must follow that the legislature, in enacting s. 128D of the Act, proceeded on the basis that compensation claims would be made by dependants of mesothelioma sufferers and that those persons would receive compensation. [57] The position prior to the enactment of s. 128D of the Act was that a family member of a mesothelioma sufferer who had died could seek compensation under Chapter 3 Part 1 of the Act i.e. compensation on a worker's death. Such compensation however was only available to a 'dependant' which was not defined in Chapter 3 Part 1 of the Act. In those circumstances a 'dependant' had to meet the test of the definition of 'dependant' in s. 27 of the Act i.e. dependency at the time of the worker's death. I accept that it would be highly unlikely that a mesothelioma sufferer would still be receiving payment from an employer in return for personal exertion at the time of the worker's death as Q-Comp submit the test is for s. 27 of the Act. Perhaps a mesothelioma sufferer who dies from accidental death rather than the mesothelioma itself would fall into the category of receiving payment from an employer in return for personal exertion at the time of the sufferer's death. Section 128D was not, in my view, inserted into the Act to entitle only those types of dependants of mesothelioma sufferers to receive compensation. [58] Section 128D of the Act was enacted to assist the dependants of a worker who actually died from mesothelioma or another work-related latent onset injury. Parliament could not have intended the new s. 128D of the Act to confine the benefits of that provision to persons who were dependent upon the personal exertion income of a mesothelioma sufferer at the time of the sufferer's death. I accept the Appellant's submission that, if that were to be the case, then such dependants could have made successful claims under the legislation prior to the 2008 amendments. [59] I accept that prior to the enactment of s. 128D of the Act the test for "dependant of a deceased worker" was that contained in s. 27 of the Act i.e. "a member of the deceased worker's family who was completely or partly dependent on the worker's earnings at the time of the worker's death or, but for the worker's death, would have been so dependent". However, with the enactment of s. 128D came a new definition of 'dependent' of a worker in s. 128D(5) i.e. a member of the worker's family who is completely or partly dependent on the worker's earnings. [60] For the legislature to insert a definition of 'dependant' of a worker in s. 128D(5) of the Act, it must have meant the definition to have a different meaning to that of 'dependant' in s. 27 of the Act. The definition of 'dependant' in s. 128D of the Act does not mandate that the test of dependency is to be applied at the time of death. In actual fact s. 128D(3) of the Act envisages that the compensation payable under s. 128D of the Act can be made, either to the worker, or to the worker's dependants, at the same time as the compensation is paid to the worker under s. 128B of the Act i.e. whilst the worker is alive: see also the Explanatory Notes to the Workplace Health and Safety and Other Legislation Amendment Bill 2008 which envisage a payment to dependants when the worker had already received a payment of lump sum compensation or damages for a latent onset injury that is a terminal condition. There is no suggestion that the payment under s. 128D of the Act can only be made after the death of the worker. [61] I cannot therefore accept that the test for dependency on the worker's earnings is "at the time of the worker's death". The definition of 'dependant' in s. 128D(5) does not prescribe when the member of the worker's family must be "completely or partly dependent on the worker's earnings". The purpose of the legislative provision in s. 128D of the Act is clear. It was inserted to "introduce new entitlements for dependants of sufferers of workrelated latent onset injuries, such as mesothelioma" 40. (emphasis added). [62] The Appellant was the spouse of Mr Fletcher during the period 22 February 1969 until his death on 1 September 2009 and therefore was a member of Mr Fletcher's family for the purposes of the definition of that term in s. 128D(5) of the Act. The next issue then for determination is whether the Appellant was completely or partly dependent on Mr Fletcher's 'earnings' for the purposes of the definition of 'dependant' in s. 128D(5) of the Act. In circumstances where no actual time is stipulated for assessing whether a person is dependent on the 'earnings' of a worker the whole of the factual circumstances would need to be considered. [63] The Appellant was married to Mr Fletcher from 1969 to 1973 i.e. a period of time during which Mr Fletcher was employed at the biscuit making factory of Arnott's Biscuits Ltd where he apparently came into contact with the asbestos which eventually caused his mesothelioma. Mr Fletcher left his employment at Arnott's Biscuits Ltd in 39 Second Reading Speech - Workplace Health and Safety and Other Legislation Amendment Bill Hansard -13 November 2009 p Explanatory Notes - Workplace Health and Safety and Other Legislation Amendment Bill 2008 p. 2.

18 as he was experiencing breathing problems. At that stage Mr Fletcher believed that the flour in the factory was the cause of his breathing problems. At this time it would appear that the Appellant was partly dependent on Mr Fletcher's earnings from employment at Arnott's Biscuit Ltd. After the birth of their first child in 1980 and up until 1988 when Mr Fletcher ceased paid employment, the Appellant was completely dependent on Mr Fletcher's income from various employers in return for his personal exertion i.e. the Appellant was completely dependent on Mr Fletcher's earnings. In 1988 Mr Fletcher received a disability support pension as he was experiencing breathing difficulties, chest pain, severe asthma and bronchitis which prevented him from working. In hindsight, Mr Fletcher probably was entitled, as at this time, to seek weekly payments of compensation as most of the conditions preventing him from working were conditions associated with the development of mesothelioma arising from contact with asbestos. Because Mr Fletcher was in receipt of a disability support pension, the Appellant also received a "wife pension DSP" from Centrelink. [64] From 1988 onwards, Mr Fletcher experienced general health problems including severe asthma, constant back/side pain which at times became severe, chest pains, angina, hypertension and heart palpitations. In 1996, Mr Fletcher was admitted to hospital with pleural effusion and had fluid removed from his chest cavity. In March 2008, Mr Fletcher was again admitted to hospital with pleural effusion and underwent an operation to remove 2.5 litres of fluid from his chest cavity. It was in the week following this operation that Mr Fletcher was diagnosed with mesothelioma with tumour masses being identified. [65] In June 2008, the value of the disability support pension for Mr Fletcher was approximately $470 per fortnight and it was the same for the Appellant's wife pension DSP. At this time the Appellant also commenced to receive approximately $100 per fortnight as a carer's allowance as she was providing daily care and attention to Mr Fletcher who was a person with a disability. In addition, both Mr Fletcher and the Appellant received a half share of income from a rental property from in or about As at June 2008, the rental income (not accounting for expenses) was $75.00 per week for each of them. All income (pensions, allowance and rental income) was deposited into a joint account in both the Appellant and Mr Fletcher's name. They withdrew money from that account to meet their day-to-day living expenses. [66] Following the diagnosis of mesothelioma in March 2008, Mr Fletcher applied for and received in or about June 2008, a lump sum payment of compensation pursuant to s. 128B of the Act and these monies ($458,640 less amounts retained by Medicare) were deposited into a joint account in both the Appellant's and Mr Fletcher's names, in or about July Both Mr Fletcher and the Appellant took the benefit of the lump sum compensation payment and the interest earned on these monies to meet their day-to-day living expenses as well as big ticket items such as an automatic motor vehicle for the Appellant to drive once Mr Fletcher could no longer drive. [67] The interest earned on the lump sum payment significantly reduced both Mr Fletcher's disability support pension and the Appellant's wife pension DSP. In August 2008, the value of the pensions received by both Mr Fletcher and the Appellant were reduced to $ each per fortnight although the Appellant continued to receive her carer's allowance. Upon the death of Mr Fletcher the Appellant's wife pension DSP ceased as it was linked to Mr Fletcher's disability. [68] The evidence of Mr Fletcher is such that had he not been forced to stop work in 1988 because of symptoms common to an eventual diagnosis of mesothelioma, he would have continued working to support the Appellant and his children. [69] In any interpretation of s. 128B of the Act the object in s. 5(4)(b) of the Act needs to be considered i.e. the need to ensure that family members are treated fairly by insurers. It would also seem improper to adopt a construction of 'dependant' which would deny family members of mesothelioma sufferers from rarely (if ever) taking the benefit of the assistance provided in s. 128D of the Act. [70] Q-Comp submit that the correct characterisation of the lump sum payment of compensation that Mr Fletcher received under s. 128B of the Act is that it was made in respect of gratuitous care and future impairment and was not therefore in the nature of weekly benefits in lieu of earnings. In this regard Q-Comp rely on a statement made by a Member of Parliament during the debate on the Workplace Health and Safety and Other Legislation Amendment Bill It was not made by the Minister introducing the legislation. In any event the exact statement by the Member was "to assist with care and to provide for future needs". The providing for future needs would incorporate loss of the ability to earn income remembering that the payment under s. 128B of the Act can be made whilst the worker is still alive. [71] Under s. 128B of the Act a worker suffering a latent onset injury which is a terminal condition is entitled to a lump sum payment of compensation equal to the sum of (a) $200,000, (b) an additional sum for care of 10% of $200,000 and (c) an additional lump sum of up to $200,000 payable according to a graduated scale. The initial $200,000 is subject to any reduction made under s. 128C of the Act. Under s. 128C of the Act any weekly payments of compensation or any redemption payment is deducted from the $200,000 payable under

19 19 s. 128D(2)(a) of the Act. Mr Fletcher received the s. 128B of the Act lump sum payment of $458,640 in or about June It appears that Mr Fletcher did not have any deduction from the $200,000 as he had not received any weekly payments of compensation or any redemption payment. Had Mr Fletcher and/or his medical practitioners been able to associate the symptoms he was experiencing in 1988 with having been exposed to asbestos whilst working for Arnott's Biscuits Ltd then it is likely he would have been entitled to weekly payments of compensation as and from Those weekly payments would then have been deducted from the payment he received in June There is then a link between the lump sum payment made to Mr Fletcher in June 2008 with 'earnings'. [72] In my view, the payment under s. 128B(2)(b) of the Act is clearly made in respect of gratuitous care whilst the payment made in respect of s. 128B(2)(c) appears to be one akin to compensation for impairment. The payment in s. 128B(2)(a) however appears to be one made in lieu of the loss of the ability to earn income from an employer in return for personal exertion i.e. 'earnings'. [73] It is however not surprising that s. 128B provides that the loss of earnings component of compensation is paid as a lump sum. A sufferer of a latent onset injury which is a terminal condition (such as mesothelioma) will have foregone many years of weekly payments of compensation for loss of earnings before the diagnosis of the latent onset injury is made. By the time the injury is diagnosed the position is that the worker will only have a limited life expectancy measured in months. [74] During the period June/July 2008 up until the death of Mr Fletcher, the Appellant was dependent on the income received by Mr Fletcher under s. 128B(2) of the Act. This was particularly so when the Department of Social Security reduced Mr Fletcher's disability pension and the Appellant's wife pension DSP considerably assessing the interest received on the lump sum payment to be income. [75] President Hall in WorkCover Queensland v Cook in dealing with dependency under a similar provision to s. 27 of the Act, said that "the matter of dependency is to be looked at in a broad and practical way having regard to what had happened in the past and what would probably have happened in the future but for the death" of the worker. In that case the President held that the worker "did not (literally) have any earnings upon which the respondent might have been dependent at the time of her death" but concluded that the worker "did have earnings when in receipt of workers' compensation payments and in receipt of fortnightly payments pursuant to the Q-Super policy" 41. [76] I accept that the decision of the High Court in Fisher v Hebburn 42 still applies in Queensland as noted by Hall P. in WorkCover Queensland v Cook, as unlike the New South Wales Parliament who amended the New South Wales Act to remove the requirement to be dependent on 'earnings' and replaced it with a dependency upon the support of the deceased worker, the Queensland Parliament did not amend the Act in such a manner. However, the decision in WorkCover Queensland v Cook has expanded the concept of 'earnings' somewhat by distinguishing the case from Fisher v Hebburn. It should also be noted that the worker in Fisher v Hebburn had not been working for the six years prior to death because of a non-work related condition. Mr Fletcher, on the other hand, had not worked since 1988 because of conditions associated with an ultimate diagnosis of a work related injury. I do not accept Q-Comp's submission that the President's extension of the concept of 'earnings' in WorkCover v Cook was premised upon the fact that the Q-Super payments (fortnightly and lump sum) were payments made in lieu of earnings. The President also included the "receipt of workers' compensation payments" by the worker. In that case the worker had been in receipt of weekly payments of compensation and had not received any lump sum payment. [77] When one looks at the whole of the factual circumstances of the Appellant's dependency upon Mr Fletcher it is clear that she was partly dependent on his earnings from marriage until 1980, was totally dependent on his earnings between 1980 and 1988 when Mr Fletcher ceased work because of symptoms associated with an ultimate diagnosis of mesothelioma which was a work related injury. The Appellant was clearly dependent on Mr Fletcher's earnings at the time when Mr Fletcher was performing work that exposed him to the asbestos which resulted in the latent onset injury. The Appellant was also dependent on Mr Fletcher's earnings at the time at which Mr Fletcher began to experience symptoms consistent with the diagnosis of the latent onset injury and consulted a heath practitioner about them. Had Mr Fletcher not been forced to stop work in 1988 because of symptoms common to an eventual diagnosis of mesothelioma, the evidence is that Mr Fletcher would have kept working to support his wife and children. The further evidence is that the Appellant would have continued to be dependent on Mr Fletcher's earnings had he not been forced to stop work with symptoms which ultimately developed into mesothelioma. [78] If being dependent on the worker's earnings from 1969 to 1988 is found to be too far removed from Mr Fletcher's death in 2009, then I also consider that there was a component in the lump sum payment made to Mr Fletcher in 41 WorkCover Queensland v Cook [2003] QIC Fisher v Hebburn Limited (1960) 105 CLR 188.

20 20 June 2008 which was paid in lieu of weekly payments for the loss of the ability to earn income. In that regard I rely on President Hall's expansion of the concept of 'earnings' in WorkCover Queensland v. Cook to include workers' compensation payments and fortnightly payments pursuant to a Q-Super policy. It is clear from the evidence that the Appellant was dependent on those 'earnings' of Mr Fletcher during the period June 2008 until his death on 1 September 2009 as the monies were used by both the Appellant and Mr Fletcher for the expenses of day-to-day living during that time. The receipt by Mr Fletcher of that lump sum payment also substantially reduced the Appellant's wife pension DSP. Thus the Appellant was "still enjoying the fruits of the payment at the time" of Mr Fletcher's death. [79] In all of the circumstances, I find that the Appellant was a 'dependant' for the purposes of s. 128D(5) of the Act in that she was the spouse of Mr Fletcher who was dependent upon his 'earnings' during the period and from June 2008 when Mr Fletcher received the s. 128B lump sum payment until Mr Fletcher's death on 1 September In those circumstances the Appellant is entitled to payment of lump sum compensation under s. 128D of the Act. [80] I therefore set aside the decision of Q-Comp dated 8 February 2010 and determine that the claim by the Appellant is one for acceptance. [81] Order accordingly. D.M. LINNANE, Vice President. Hearing Details: June 5 August Appearances: Mr T. Bradley, Counsel, directly instructed by the Appellant. Mr P. B. O'Neill, Counsel, directly instructed by Q-COMP. Released: 30 September 2010

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