Background
Kerry Colgrave, a crew member on the Spirit of Tasmania II, witnessed a person jump overboard and drown in April 2023. He later ceased work and sought treatment for post-traumatic stress disorder. At the time of the incident, he was 68; his relevant pension age was 66.
TT-Line accepted liability for aspects of his psychological injury, including medical expenses, but denied weekly incapacity compensation under the Seafarers Rehabilitation and Compensation Act 1992 (Cth). It relied on s 38(1), which excludes incapacity compensation for an employee who has reached pension age. The Administrative Review Tribunal affirmed that decision, holding that s 38(2)’s 52-week exception applied only to workers injured between one year before pension age and pension age.
The Court’s Holding
Horan J allowed Colgrave’s appeal on a question of law, set aside the Tribunal’s decision, and remitted the matter for redetermination. The Court directed that s 38(1) did not apply to Colgrave and that compensation was payable in accordance with s 38(2).
Section 38(2) applies where an employee who has reached the age one year before pension age suffers an injury. The phrase “has reached” describes an ongoing status: an employee who is older than that age has also reached it. Thus, an employee injured after reaching that threshold—including after reaching pension age—may receive incapacity compensation for up to 52 weeks. Section 38(1) still applies to employees injured before that threshold once they reach pension age.
Key Takeaways
- An employee does not cease to have “reached” an age merely by becoming older.
- Section 38(2) expressly displaces the general exclusion in s 38(1) for an employee injured after reaching the age one year before pension age.
- For eligible employees, incapacity compensation remains capped at 52 weeks, whether consecutive or not.
Why It Matters
The decision confirms that the Seafarers Act preserves a limited income-replacement entitlement for older workers injured after the statutory threshold, even if they are already of pension age. It rejects a construction that would deny all incapacity payments to employees injured after reaching pension age.