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Banks v Comcare

Banks v Comcare

Case [1996] FCA 382 22 May 1996

Jurisdiction

Statutory Interpretation

Compensatory Damages

Administrative Law

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CATCHWORDS

COMPENSATION - employee failing to serve notice of injury or to make claim for compensation within specified periods - employee aware of an injury at time of incident - whether failure occasioned by "reasonable cause" - whether extends to conscious decision not to pursue claim

ADMINISTRATIVE LAW - appeal from Administrative Appeals Tribunal - preliminary questions - whether necessary to remit matter to Tribunal

WORDS AND PHRASES - "reasonable cause"

Commonwealth Employees' Compensation Act 1930
Safety Rehabilitation and Compensation Act 1988

Behan v Australian Telecommunications Corporation (1990) 26 FCR 337 Refd
Murray v Baxter (1914) 18 CLR 622 Refd
Black v City of South Melbourne [1963] VR 34 Refd
Quinlivan v Portland Harbour Trust [1963] VR 25 Refd
BTR Plc v Westinghouse Brake and Signal Co (Australia) Ltd (1992) 34 FCR 246 Refd
Klinkert v Australian Postal Corporation (1992) 16 AAR 86 Refd

PETER JOHN BANKS v COMCARE AUSTRALIA
No QG 118 of 1994

Kiefel J Brisbane 22 May 1996

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION No. QG 118 of 1994

BETWEEN:

PETER JOHN BANKS
Applicant

AND:

COMCARE AUSTRALIA
Respondent

JUDGE MAKING ORDER:        Kiefel J.
DATE OF ORDER:  22 May 1996
WHERE MADE:  Brisbane

MINUTES OF ORDERS

THE COURT ORDERS THAT:

The appeal be dismissed.

The appellant pay the respondent's costs of the appeal.

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION No. QG 118 of 1994

BETWEEN:

PETER JOHN BANKS
Applicant

AND:

COMCARE AUSTRALIA
Respondent

CORAM:Kiefel J.
DATE:22 May 1996
PLACE:Brisbane

REASONS FOR JUDGMENT

In March 1992 Mr Banks submitted a claim for compensation with respect to injury suffered to both his left and right ears resulting in hearing loss in the higher frequencies in both ears and mixed deafness in the left ear. Although the claim originally referred to an alternative cause, mumps or a condition similar to it called parotitis, which Mr Banks may have suffered towards the end of his military service, this was discounted in the hearing in the Administrative Appeals Tribunal. The focus was then on an incident in January 1954 when he was exposed to acute noise during army exercises which involved the firing of an anti-aircraft gun in close vicinity to him. He was at that time taking part in a military camp as a member of the Citizens' Military Forces, having completed his initial national service training in November 1952. His hearing loss was not diagnosed until February 1992, at a time when he had retired from employment. He had however been aware that he suffered some hearing loss, at least so far as it related to his left ear, since 1954 and shortly after the incident in question.

The original decision, confirmed by the respondent's delegate on 15 November 1993, was to deny liability for the claim on the basis that there was not sufficient evidence that Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Banks v Comcare

Details

AGLC: Banks v Comcare [1996] FCA 382
Case: [1996] FCA 382
Decision Date: 22 MAY 1996

CaseChat Overview and Summary

In the Federal Court of Australia, Peter John Banks sought compensation from Comcare Australia for hearing loss he suffered during his military service in 1954. Banks was exposed to acute noise while participating in army exercises, which resulted in hearing loss in both ears. Despite being aware of his hearing loss, Banks did not pursue a claim for compensation until many years later. The Administrative Appeals Tribunal dismissed his claim, finding that he had not served notice of his injury or made a claim for compensation within the specified periods as required by the Commonwealth Employees' Compensation Act 1930. The Tribunal held that Banks' failure to act was not occasioned by "reasonable cause," and his claim was therefore out of time.

The legal issues before the court were whether Banks' failure to serve notice of his injury or make a claim for compensation within the specified periods was due to "reasonable cause," and whether a conscious decision not to pursue a claim could be considered "reasonable cause." The court also had to determine whether the matter should be remitted to the Tribunal for further determination on the issue of prejudice to Comcare Australia.

The court found that the Tribunal's reasoning was flawed in that it did not consider whether Comcare Australia suffered prejudice as a result of Banks' failure to give notice of the accident "as soon as practicable." However, the court held that it was not necessary to remit the matter to the Tribunal, as it was clear that Banks was aware of his injury shortly after the accident and had consciously decided not to pursue a claim. The court concluded that a conscious decision not to claim, made in light of one's circumstances and perceived best interests, does not constitute "reasonable cause" within the meaning of the Act. Therefore, the Tribunal's decision that Banks' claim was out of time was upheld.

The appeal was dismissed, and Banks was ordered to pay Comcare Australia's costs of the appeal.

Orders