FEDERAL COURT OF AUSTRALIA

Associated Steamships Pty Ltd v Seafarers Safety, Rehabilitation and Compensation Authority [2019] FCA 434

ORDERS

THE COURT ORDERS THAT:

1.    The respondent pay the applicant the sum of $181,450.

2.    The respondent pay the applicant’s costs of this proceeding to be taxed failing agreement.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1    Where an injury suffered by a seafarer arises out of, or in the course of, that person’s employment with more than one employer, s 128 of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (the SRC Act) allows an employer who has paid compensation to that seafarer in respect of that injury to recover an amount by way of contribution from his or her other employer/s.

2    Associated Steamships Pty Ltd, the applicant, has made such a claim for contribution in this proceeding. The seafarer concerned was Mr Gregory O’Donnell. Mr O’Donnell contracted metastatic skin cancer in the course of his employment on various ships operating along the Australian coastline between 1972 and 1994. Sadly, he has since died as a result of the skin cancer he contracted. During the period he was employed as a seafarer, he had two other employers in addition to Associated Steamships. Relevantly, they were John Burke and Co Limited and Portsmith Stevedoring Co Pty Limited. While there was a dispute on the pleadings about John Burke’s correct name – whether it was John Burke Limited, John Burke and Co Limited, or John Burke (Queensland) Pty Ltd – that dispute was not pursued at the hearing of this proceeding.

3    The Seafarers Safety, Rehabilitation and Compensation Authority has been joined as the respondent in the proceeding because, in October 1992, both John Burke and Portsmith Stevedoring were deregistered as corporations and, therefore, ceased to exist pursuant to s 601AD(1) of the Corporations Act 2001 (Cth). Accordingly, under s 4(3) and subparagraph (a)(v) of the definition of “default event” in s 3 of the SRC Act, Mr O’Donnell was taken to have been employed by the Authority. In that capacity, the Authority has denied liability for Associated Steamships’ claims in this proceeding.

THE FACTUAL CONTEXT

4    The parties agreed to a statement of facts for the purposes of this proceeding. The following facts have been extracted from that statement.

5    Mr O’Donnell was married to Ms Yolanda O’Donnell on 2 October 1982. They remained so married until his death on 24 March 2012.

6    As is already mentioned above, between 1972 and 1994 Mr O’Donnell was employed as a seafarer by Associated Steamships. As well, for a total of 1,323 days of that period, he was employed by John Burke and Portsmith Stevedoring.

7    During the whole of this employment, his duties:

(a)    were in the nature of maintenance, look out, and steering the vessel (being “at the wheel”);

(b)    where involving maintenance, were in the nature of servicing, maintaining and repairing hatches, fixtures and fittings, sandblasting rust off the deck of the ship, joining and splicing ropes, brushing and hosing the deck of the ship and painting the deck of the ship;

(c)    were carried out between the hours of 7.00 am and 5.00 pm;

(d)    save for time “at the wheel”, were carried out in the tropical sun; and

(e)    were uniform in their likelihood of exposing him to solar radiation.

8    The solar radiation to which Mr O’Donnell was exposed in the course of his above described duties contributed to, in a material degree, the metastatic skin cancer, squamous cell carcinoma, basal cell carcinoma and solar keratosis he subsequently contracted.

9    The agreed cause of Mr O’Donnell’s death on 24 March 2012 is “metastatic squamous cell carcinoma”.

10    On 9 March 2011, Mr O’Donnell served on Associated Steamships a claim for compensation for permanent impairment and non-economic loss under the SRC Act connected with the skin cancers he had contracted (the claim).

11    Pursuant to s 73A(6) of the SRC Act, Associated Steamships was deemed to have disallowed the claim on 6 May 2011.

12    On 9 June 2011, Mr O’Donnell sought reconsideration of that deemed decision.

13    On or about 8 November 2011, Associated Steamships affirmed its deemed decision.

14    On 11 November 2011, Mr O’Donnell filed with the Administrative Appeals Tribunal (the Tribunal) an application for review of the deemed disallowance of the claim.

15    On 2 May 2012, following Mr O’Donnell’s death, Mrs O’Donnell served on Associated Steamships a claim for compensation as a dependent of Mr O’Donnell (the dependency claim).

16    Pursuant to s 72(5) of the SRC Act, Associated Steamships was deemed to have disallowed the dependency claim on 30 July 2012.

17    On 22 October 2012, Mrs O’Donnell sought reconsideration of Associated Steamships’ deemed disallowance of the dependency claim.

18    On 21 November 2012, Mrs O’Donnell filed with the Tribunal an application for review of Associated Steamships’ deemed disallowance of the dependency claim.

19    By a Deed of Settlement dated 21 November 2013, Associated Steamships and Mrs O’Donnell (on her own behalf and on behalf of Mr O’Donnell’s estate) agreed to resolve the abovementioned claims on terms that Associated Steamships would:

(a)    pay the estate of Mr O’Donnell $20,000 with respect to the claim; and

(b)    pay Mrs O’Donnell $300,000 with respect to the dependency claim.

20    Payment of the sums mentioned above was made on 1 May 2014 and 26 May 2014 respectively.

21    On 9 December 2013, the Tribunal dismissed, by consent, the applications for review of Associated Steamships’ decisions in relation to the claim and to the dependency claim.

22    On 22 December 2015, pursuant to s 78(1) of the SRC Act, Associated Steamships reconsidered its determination of 30 July 2012 (see at [16] above) and determined that:

(a)    compensation was payable to Mrs O’Donnell in respect of the dependency claim pursuant to s 29 of the SRC Act; and

(b)    Mrs O’Donnell was partially dependent upon Mr O’Donnell.

THE ISSUES IN DISPUTE

23    First, it is convenient to note that the quantum of the contribution payable by the Authority, should it be held liable to pay such contribution, is not in dispute. The parties have agreed that quantum in the sum of $181,450, inclusive of interest. It is also convenient to record one other matter at this point. Associated Steamships has, in the alternative, made a claim for equitable compensation against the Authority for a proportion of the compensation it paid with respect to Mr O’Donnell’s injury. Because I have concluded that Associated Steamships should succeed on its primary claim under s 128 of the SRC Act, it will be unnecessary to determine that alternative claim.

24    Regarding Associated Steamships’ primary claim, the issue in dispute concerns the Authority’s construction of s 128 of the SRC Act and, in particular, the phrase “paid compensation to the employee in respect of the injury”. That section provides:

Shared liability

If:

(a)    an injury suffered by an employee arises out of, or in the course of, the employee’s employment with more than one employer; and

(b)    one of the employers has paid compensation to the employee in respect of the injury;

the employer who paid the compensation may, by an action in a court of competent jurisdiction, recover from the other employer or employers an amount equal to the compensation paid multiplied by the proportion of the contribution to the injury made by the employment of the other employer or employers.

(Emphasis added)

25    I interpose to record that the Authority also initially raised, but later expressly withdrew, a contention to the effect that the unemphasised intervening words in s 128(b) above, “to the employee”, were confined to the employee concerned and therefore did not include compensation paid to a dependent of that employee. It is, therefore, also unnecessary for me to determine that issue in this proceeding.

THE CONTENTIONS

26    With respect to the particular phrase in issue, the Authority contended that the word “compensation” should be construed to mean “compensation paid under, and in accordance with, the provisions of the [SRC Act]”. Accordingly, it contended that the payments made to Mrs O’Donnell under the Deed of Settlement did not constitute the payment of “compensation” within the terms of s 128 of the SRC Act. Instead, it contended, those payments were made pursuant to a commercial compromise. In its concise statement of issues and contentions, the Authority advanced the following four arguments in support of this construction:

9.    First, the overall architecture of the [SRC Act] reveals it is a statute that has 2 fundamental purposes (i) determining the entitlement of employees covered by the [SRC Act] to compensation that is assessed and paid in accordance with the [SRC Act] and (ii) rehabilitating injured employees. Further, other than the reference to ‘State compensation’, which is specifically defined, all the references to ‘compensation’ in the [SRC Act] are references to compensation paid or payable under the [SRC Act] (see, for example, ss 6, 7, 9(2)(e)(vi)(D), 22, 24, 25, 49(4), 55(1)(a), 56(1)(a), 58(3), 59(1)(a), 60(1)(a) and (b), 61(1), (3) and (4), 63, 64, 130, 131, 132, 134, 135, 136 and 139).

10.    Second, there appears to be no reason why the phrase ‘an injury’ in s 128(a) should be given anything other than the meaning provided for by s 6 of the [SRC Act] (‘an injury suffered by the employee for which compensation is payable under [the SRC Act]’). When the reference to ‘an injury’ in s 128(a) is understood in this light the reference in s 128(b) to an employer having ‘paid compensation to the employee in respect of the injury’ plainly refers to the payment of compensation under the [SRC Act].

11.    Third, s 25 provides that subject to certain stated provisions of the [SRC Act], which specifically provide for the payment of partial compensation, ‘compensation in respect of an injury must be paid in full by an employer whose employment has made a material contribution to this injury’. The [SRC Act] also prescribes exactly what compensation is payable in respect of an injury that has had certain consequences (see, for example s 24 and Part 2 of the [SRC Act]). If ‘compensation in respect of an injury’ could amount to something other than compensation under the [SRC Act] there would be no real way of properly determining if the compensation had been paid in full or not and therefore whether s 25 had been complied with. On the other hand if ‘compensation in respect of an injury’ only constituted compensation under the [SRC Act] it could readily be determined if it had been paid in full. This suggests the legislature intended the phrase ‘compensation in respect of an injury’ to refer to compensation under the [SRC Act].

12.    Fourth, the [SRC Act] contrasts the payment of ‘compensation’ with the payment of ‘State compensation’ (see s 139), ‘benefits under an award’ (see s 61), ‘damages’ (see ss 58 and 60) and ‘costs’ of proceedings (see s 91 and 92). The explicit reference to such alternative forms of compensation suggests the legislature did not intend ‘compensation’ in the [SRC Act] to have the broad general meaning its ordinary meaning can convey.

(Footnotes omitted)

27    The consequence of these four arguments, so the Authority contended, was that the payments made to Mrs O’Donnell did not constitute “compensation … in respect of the injury” in the terms of s 128(b) of the SRC Act because:

a.    at the time they were paid [Associated Steamships] had not made a determination that such compensation was payable in accordance with the [SRC Act] (cf ss 24, 127,130 and 134 of the [SRC Act])

b.     it did not constitute the payment of the full compensation Mrs O’Donnell was entitled to be paid in accordance with the [SRC Act] (cf ss 25 and 131 of the [SRC Act]) and

c.    it was ‘inclusive of costs’, without stipulating what allowance was made for costs, and the costs of proceedings incurred by a claimant are clearly treated as something different to ‘compensation’ by the [SRC Act] (see ss 91 and 92).

28    In oral submissions, the Authority argued that when the SRC Act was read as a whole, the word “compensation” under s 128 was clearly only intended to refer to compensation paid in accordance with the SRC Act. The Authority did not shirk from the proposition that one of the consequences of its construction was that there would be little, if any, room to reach a commercial compromise of a claim under the SRC Act. Indeed, it went further and contended that an employer receiving a claim under s 63 of the SRC Act in effect had a binary choice between denying that claim or accepting it and paying the claimant his or her full entitlements to compensation under the SRC Act. Hence, to constitute “compensation” paid in accordance with the provisions of the SRC Act, the Authority contended that the compensation had to be calculated and paid strictly in accordance with the provisions of the SRC Act. In summary, the Authority contended that “s 128 is premised on an assumption that compensation will be payable under the [SRC Act], not outside of the [SRC Act] and not on a commercial or common law or other basis that [does not accord] with the detailed mechanism for calculating compensation under the [SRC Act]”.

29    For its part, Associated Steamships contended that the word “compensation” should be given a broad and purposive construction, relying upon s 15AA of the Acts Interpretation Act 1901 (Cth) (the AIA). It contended that the SRC Act is intended to provide a simplified, streamlined and efficient process for the determination of an employee’s claims for compensation. It submitted that s 128 should be regarded as part of a “broader scheme to facilitate the recovery of compensation … in a more efficient manner than through common law litigation”. It contended that this approach was supported by the fact that s 128 is “located within Part 9 which deals with miscellaneous provisions which are usually intended to have operation in respect of the entirety of an Act and not merely a specific mechanical part of the [Act]”.

THE PRINCIPLES OF STATUTORY CONSTRUCTION

30    It was common ground that the principles of statutory construction relevant to this matter are illuminated in that line of High Court authorities which include: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] and [78]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47]; Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]; and Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [23]. These principles were restated most recently in SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405; [2017] HCA 34 (SZTAL) where the plurality (Kiefel CJ, Nettle and Gordon JJ) said (at [14]):

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

(Footnotes omitted)

31    In his separate judgment in SZTAL, Gageler J described the requisite task in the following terms:

37    … The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility “if, and in so far as, it assists in fixing the meaning of the statutory text”.

38    The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from “a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural”, in which case the choice “turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies”.

39    Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, “the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation” “is in that respect a particular statutory reflection of a general systemic principle”.

(Footnotes omitted)

32    The High Court decision in Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 (Taylor) is also of some relevance to the Authority’s contentions that the word “compensation” should be read down, or that certain words should be read into s 128. On that issue, French CJ, Crennan and Bell JJ observed at [37]–[38]:

37    Consistently with this Court’s rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia, the question of whether a construction “reads up” a provision, giving it an extended operation, or “reads down” a provision, confining its operation, may be moot.

38    The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.

(Footnotes omitted)

CONSIDERATION

The text of s 128

33    The text of s 128 of the SRC Act is a convenient starting point. It begins with the words of its heading: “Shared liability”. Section 13 of the AIA provides that those words form part of the SRC Act. The reservation that the words of a heading may not always accurately or completely reflect the text to which it refers does not, for the reasons set out below, apply in this instance (see Australian Prudential Regulation Authority v Holloway (2000) 104 FCR 521; [2000] FCA 579 at [50] per Mansfield J and Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251; [2010] HCA 8 at [26] per French CJ, Gummow and Crennan JJ). It is therefore apparent from the outset that s 128 is concerned with sharing a liability.

34    The next word in the text of s 128 is the conditional conjunction “if”. Two conditions follow immediately. The first prescribes a particular type of injury: one suffered by an employee in employment with two or more employers (s 128(a)). The second prescribes a particular past event involving one of those employers: that it “has paid” compensation to the employee in respect of that injury (s 128(b)).

35    Upon meeting those two conditions, the section goes on to provide that the employer who has paid the compensation to the employee in respect of that injury has a right to recover from the other employer or employers a proportion of the compensation so paid. The amount recoverable is expressed to be that which is proportional to “the contribution to the injury made by the employment” of that employer, or of each of those employers.

36    Hence, the text of s 128 achieves the outcome stated in its heading: a sharing of liability. The sharing occurs between two or more employers by reference to the contribution that the employment of each employer has made to the injury suffered by the employee. The liability which is shared is that of the particular employer that has already paid compensation to the employee concerned. This poses the question: what is the source of that liability in the SRC Act?

37    Before turning to answer that question, there is a number of other aspects of the text of s 128 that should be noted. The first is to note the four expressions that are, for present purposes, central to its operation. In the order in which they appear, they are: “injury”; “arises out of, or in the course of … employment”; “compensation”; and “in respect of”. Addressing those four expressions in turn, the word “injury” and its constituent word “disease” are exclusively defined in s 3 of the SRC Act. Similarly, the expression “arises out of, or in the course of … employment” is extensively, but inclusively, defined in s 9. Significantly, however, the Legislature did not consider it necessary to define the word “compensation”. The expression “State compensation” is, as the Authority correctly pointed out, defined in s 139(7), however, that definition is, by its terms, expressly limited to s 139 itself. It does not, therefore, have any relevant effect on the meaning of the word “compensation” in the SRC Act generally, or in s 128 in particular.

38    This absence of a statutory definition places added emphasis on the importance of the ordinary and natural meaning of the word “compensation” or “how it is ordinarily understood in discourse” (see SZTAL at [14]). According to the Macquarie Dictionary (6th ed, Macquarie Dictionary Publishers Pty Ltd), relevantly, that meaning is: “something given or received as an equivalent for services, debt, loss, suffering, etc”. On its face, this gives the word a relatively broad meaning. Indeed, the Authority implicitly accepted that was so in its contentions (see at [26(12)] above).

39    While it is more in the nature of an historical contextual matter, it is appropriate to note at this juncture that the High Court has twice reached a similar conclusion with respect to the predecessor legislation to the SRC Act (the Seamen’s Compensation Act 1911 (Cth)) which also did not contain a statutory definition of the word “compensation”. In Joyce v Australasian United Steam Navigation Company Limited (1939) 62 CLR 160 (at 166 per Latham CJ; at 170 per Starke J; and at 177 per McTiernan J) and Union Steamship Company of Australia Proprietary Limited v King (1988) 166 CLR 1 (at 15–16), the High Court held that, while affected by its statutory context, its meaning was broad enough to include compensation by way of damages recoverable at common law.

40    To attempt to limit this relatively broad meaning of the word, the Authority pointed to the contrasting ways in which the word “compensation” is used in the SRC Act, including by way of examples: “[c]ompensation not payable both under Act and under award” (s 61); “[c]ompensation not payable if damages recovered” (s 58); and the provisions relating to the costs of proceedings (s 91 and 92). The Authority contended that these usages suggest “the [L]egislature did not intend ‘compensation’ in the [SRC Act] to have the broad general meaning its ordinary meaning can convey”.

41    While these are also contextual matters, it is convenient to deal with them at this point. I do not agree with these contentions. To the contrary, if, to use the first example above, monies are paid as a benefit under an award instead of under a provision of the SRC Act in respect of the same injury, there is no apparent reason why those monies should not be characterised as compensation within the meaning of that word in s 128 of the SRC Act. Similar reasoning would also apply to the other two examples above and to some others that are not mentioned (see at [45] below). They include monies paid as salary, wages or pay and which are deducted from the compensation payable under the sections mentioned in s 47 of the SRC Act; or monies paid as interest under s 130(2) on an amount of compensation payable under the SRC Act, where that amount was not paid within the time limit set by s 130(1). Accordingly, I consider these differing and varied usages of the word “compensation” in the SRC Act support it being given its broad, natural and ordinary meaning where it is used in s 128.

42    The fourth expression that is, for present purposes, central to the operation of s 128 is “in respect of”. That expression intervenes between the words “compensation” and “injury” in s 128(b). It therefore provides a link between the compensation in question, namely that which “one of the employers has paid … to the employee” (see s 128(b)) and the injury in question, namely that “suffered by [the] employee [that arose] out of, or in the course of, the employee’s employment with more than one employer” (see s 128(a)). Put differently, it creates a textual connection between those two pivotal expressions in s 128 (see the discussion in Pearce DC and Geddes RS, Statutory Interpretation in Australia (8th ed, LexisNexis Butterworths, 204) at para 12.7, pp 459–462).

43    To sum up, these aspects of the text of s 128 permit of the following conclusions. First, its primary purpose is to provide one employer (the claimant employer) with a right to recover from another employer, or other employers, a share of the liability it has borne for compensation it has paid to an employee. Secondly, the two preconditions to that right are that the employee’s injury was contributed to by the employment of the other employer/s; and that the claimant employer has already paid compensation to the employee concerned in respect of that injury. Thirdly, while the word “compensation” plainly includes compensation paid under the SRC Act, there is nothing in the text of s 128 that confines the meaning of that word to compensation paid only under the SRC Act. Nor is there anything in that text that requires the claimant employer to establish that it has paid the employee concerned all of his or her entitlements to compensation under the SRC Act, much less, as the Authority contended, that it has calculated and paid that compensation strictly in accordance with the provisions of that Act. Fourthly, and finally, the only limitation imposed by the text of s 128 on the meaning of the word “compensation” is that it must have been paid “in respect of” the subject injury, namely one that arose in the course of an employee’s employment with more than one employer. This apart, there is nothing else in the text of s 128, or, indeed, the contextual matters mentioned above, to indicate that the word “compensation” in that section should not be given its relatively broad natural and ordinary meaning.

Other matters of context and purpose

44    It is necessary to turn next to the question of context to determine whether there are any other contextual matters that affect the above conclusions. Because it features prominently in the Authority’s contentions (see at [26(11)] above), it is convenient to begin with s 25. That section provides:

Subject to subsection 29(4) and sections 30 to 37 (inclusive), 47, 55, 58 and 139, compensation in respect of an injury must be paid in full by an employer whose employment has made a material contribution to the injury.

45    A number of features of this provision are noteworthy for present purposes. First, the sections identified in its introductory words do not, as the Authority contended, provide for the payment of partial compensation, that is partial payments of the general liability of employers to pay compensation under the Act (see at [26(11)] above). Rather those words identify factors or circumstances that may affect the capacity, or liability, of the employer concerned to pay the compensation in respect of an injury “in full”. Hence, they include instances where the payment of compensation is subject to a series of continuing obligations such as weekly payments (ss 31 to 37), or where the Act provides for deductions to be made from the compensation payable (s 47): for salary, wages, pay, or recreation leave paid; or s 139: for State compensation paid), or where the Act provides for an exclusion of the liability to pay compensation in certain situations (s 55: where an employee elects to institute proceedings claiming non-economic loss; or s 58: where an employee has recovered damages).

46    Secondly, and further to the Authority’s contention about the general liability of employers above, first, it is to be noted that s 25 does not mention the word “employee”, nor refer to the compensation payable to an employee. Instead, it refers only to “an employer” and to the compensation which must be paid by that employer. Next, it only mentions the liability of a particular kind of employer, namely one whose employment has made a material contribution to an injury. It follows from the former omissions and the latter specificity that the Authority’s contention that s 25 deals with the general liability of employers to pay compensation under the SRC Act must be rejected.

47    Thirdly, and conversely, far from dealing with the general liability of employers to pay compensation, I consider s 25 concerns the liability of a particular employer, namely one whose employment has made a material contribution to an employee’s injury, to pay all of the compensation in respect of that injury. Thus the words “in full” refer to that liability. So the answer to the question posed at [36] above is that s 25 is the source of the liability that is shared under s 128.

48    This latter conclusion is reinforced by at least two features that are common to both ss 25 and 128. The first is the concept of contribution of employment to an injury – in s 25, it concerns a material contribution. This feature, it is to be noted, only appears in a small number of other provisions of the SRC Act. They include: the definition of “disease” in s 3 (“… an ailment or an aggravation that was contributed to in a material degree by the employee’s employment”); the various provisions relating to disease in s 10, including s 10(1) (“… the employment in which the employee was so engaged is taken, for the purposes of this Act, to have contributed in a material degree to the contraction of the disease, unless the contrary is established”); s 10(2) (“… any employment in the maritime industry in which he or she was engaged at any time before symptoms of the disease first became apparent is taken, unless the contrary is established, to have contributed in a material degree to the contraction of the disease …”); and s 10(3) (“… any employment in the maritime industry in which he or she was engaged at any time before symptoms of the aggravation first became apparent is taken, unless the contrary is established, to have contributed in a material degree to the aggravation …”); and, lastly, s 63(2)(c)(ii) (“A claim must be made by giving the employer … (c) a notice setting out … (ii) the name and address of any other employer whose employment is believed to have materially contributed to the injury.”) (All emphasis above added). The underlying theme of all these provisions is an injury of gradual onset, or a disease. That obviously includes a disease the contraction and/or aggravation of which is contributed to by employment with more than one employer.

49    The other common feature of both sections is that they both appear in miscellaneous provisions of the SRC Act. Section 25 appears in Part 1 of Division 3, which is headed “Miscellaneous preliminary provisions”, and s 128 appears later in the SRC Act in Part 9, which is headed “Miscellaneous”. Conversely, neither is included in the main parts of the SRC Act that deal with compensation (Part 2), or with rehabilitation (Part 3), or that concern the notice, claims, determination and review provisions of the SRC Act (Parts 5 and 6).

50    On this aspect, there are two other provisions of the SRC Act that bear mention. They are the obligations imposed on an employee under ss 63(2)(c)(ii) and 131(1). As is already recorded above, the former requires an employee to include in a claim for compensation details of the “name and address of any other employer whose employment is believed to have materially contributed to the injury”. The latter applies when an employer “pays the full amount of compensation payable under … [the SRC Act] to an employee in respect of an injury”. In that event, the employee concerned is obligated to “notify all other employers against whom a claim was made that the employee has received compensation in respect of the injury”.

51    For these reasons, I consider ss 25 and 128, together with the two sections mentioned immediately above, work as a part of a scheme in the SRC Act which is directed to sharing liability between employers where an injury suffered by an employee has been contributed to by the employment of more than one of those employers. This scheme is, in my view, quite separate from the main parts of the SRC Act mentioned above which deal generally with the questions of liability with respect to compensation as between employers and employees. This separation is reinforced by the fact that an employer’s right to make a claim against another employer under s 128 is conditional, in part, upon that employer having already met its liability under s 25 (subject to the qualifications expressed in its introductory words) to pay all of the compensation in respect of the injury concerned.

52    An evident purpose of this scheme in ss 25 and 128 is to separate an employer’s liability to pay compensation to an employee in respect of an injury from any issues that may arise as between employers with respect to their contributions to, and liability for, the compensation paid in respect of that injury. This is consistent with the no fault nature of the broader scheme established by the SRC Act. Among other things, the purpose of that broader scheme is to provide injured seafarers with readily ascertainable and timely payments of compensation unhindered by the costs and delays that are commonly associated with fault based recovery of damages at common law. This broad purpose would be hindered if an employee’s entitlements to be paid compensation in a timely manner were to be affected by the delays that are commonly associated with disputes between employers over their contribution to, and liability for, an injury.

The main defects in the Authority’s contentions

53    In my view, the main defects in the Authority’s contentions in this matter stem from its failure to appreciate the existence of this separate scheme. This failure is manifested in numerous aspects of its contentions. The errors in the Authority’s contentions with respect to s 25 have already been discussed above. It made similar errors concerning s 24 (see at [26 (11)] above), where it contended that ss 24 and 25 operated together and were both concerned with the general liability of employers to pay compensation under the SRC Act. Section 24 provides:

The liability of an employer to pay compensation to a person under this Act is the liability of the employer to pay the amount or amounts that the employer determines, in accordance with this Act, to be payable to the person.

54    As well as having nothing to do with s 25, this section is in a very different category to it. That is to say, unlike s 25, it does concern an aspect of the general liability of employers to pay compensation under the SRC Act. However, its role in that respect is quite confined, partly indicated by the fact it appears in the miscellaneous preliminary provisions of Part 1 of Division 3 of the SRC Act. That role arises from the provisions of s 76 and ss 72, 73 and 73A of the SRC Act. Those provisions require that, following the receipt of an employee’s claim for compensation under s 63, an employer is required to make a determination of its liability to pay compensation with respect to that claim. The specific role of s 24, therefore, is to provide a direct link between that requirement to make a determination and an employer’s liability to pay the compensation so determined.

55    This specific role is, however, to be contrasted with the general provisions of the SRC Act that prescribe what compensation is payable for an injury. Those provisions are contained in Part 2 of the Act (ss 26 to 47). They variously describe the circumstances in which compensation is payable, including: for the cost of medical and related expenses (s 28); for the benefit of dependants who were wholly or partly dependent on the employee at the date of his or her death (s 29); for funeral expenses (s 30); for weekly payments where the employee is incapacitated for work (ss 31 to 38); for injuries which result in permanent impairment (ss 39 and 40); for non-economic loss suffered by an employee as a result of the impairment (s 41); and for household services and attendant care services obtained as a result of an injury (ss 43 to 43A). It follows that it is those provisions of the SRC Act, not s 24, and certainly not s 25, which prescribe an employer’s general liability to pay compensation under the SRC Act.

56    For similar reasons, the Authority’s reliance on s 6 of the Act is misplaced. That provision is directed to the general liability of employers mentioned above. It does not affect the scheme created by ss 25 and 128. The Authority has made a similar error in its reliance on the absence of a determination by Associated Steamships prior to the commercial compromise it reached with Mrs O’Donnell (see at [27(a)] above). This requirement is contained in the notice, claims, determination and review provisions of Parts 5 and 6 of the SRC Act which are connected with an employer’s general liability as mentioned above. It does not affect an employer’s liability under s 25, or its correlated right to make a claim under s 128. Similar errors occur with respect to the Authority’s general reliance on numerous other provisions of the Act which use the expression “compensation payable under” the SRC Act, or similar terminology (see at [26(9)] above).

57    Finally, it is necessary to mention one of the more radical consequences of the construction for which the Authority contended. That is its acknowledgement that its construction will discourage, if not prevent, the compromise of claims for compensation under the SRC Act. This outcome is directly inconsistent with the common law policy which encourages the compromise of disputes: see Unity Insurance Brokers Pty Limited v Rocco Pezzano Pty Limited (1998) 192 CLR 603; [1998] HCA 38 at [97] per Kirby J and at [124] per Hayne J. As a general principle, a construction of a statutory provision which has such an outcome should be avoided.

CONCLUSION – THE AUTHORITY’S CONSTRUCTION IS NOT SUSTAINABLE

58    In conclusion, for the reasons set out above, there is nothing in the text, context or purpose of s 128 which calls for the meaning of the word “compensation” in s 128 to be read down in the manner advanced by the Authority. Instead, the question posed by s 128 is not whether the compensation to which an employee is entitled vis-à-vis his or her employer has been correctly calculated and paid in accordance with the provisions of the SRC Act, rather it is what, if any, share of the liability other employers should bear for their contribution to a particular injury, in respect of which the claimant employer has already been required to pay compensation in full under the SRC Act.

59    It follows that the word “compensation” in s 128 should be given the broad and purposive construction advanced by Associated Steamships. So construed, its meaning is broad and flexible enough to encapsulate all monies paid as compensation in respect of the injury in question here. It is unnecessary in this matter to sketch the bounds of that meaning. It suffices to say that the Authority’s narrow and confined construction is not sustainable. As a consequence, the monies paid under the commercial compromise reflected in the Deed of Settlement that Mrs O’Donnell entered into with Associated Steamships on 21 November 2013 fall within the meaning of the word “compensation” in s 128. Associated Steamships is therefore entitled to judgment in its favour.

60    I will therefore order that:

1.    The respondent pay the applicant the sum of $181,450.

2.    The respondent pay the applicant’s costs of this proceeding to be taxed failing agreement.

Associate:    

Dated:    29 March 2019