Banwell and Comcare (Compensation) - [2016] AATA 30

Banwell and Comcare (Compensation) [2016] AATA 30 (28 January 2016)

Division

GENERAL DIVISION

File Number

2014/1871

Re

Mark William Lister Banwell

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Regina Perton, Member

Date 28 January 2016

Place Melbourne
The Tribunal affirms the decision under review.

..............[sgd]..........................................................
Regina Perton, Member
WORKERS’ COMPENSATION – whether mental health condition arose out of or in the course of employment – whether the result of reasonable administrative action in a reasonable manner – decision affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14
Cases
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Hart v Comcare [2005] FCAFC 16
REASONS FOR DECISION
28 January 2016

Mark Banwell worked as an electorate officer for Senator John Madigan from July 2011. He no longer works for the Senator. Mr Banwell was in conflict with Senator Madigan’s then Chief of Staff, Stephen Campbell, who also no longer works for the Senator. Mr Banwell was diagnosed with an adjustment disorder with mixed emotional features and/or depression for which he blames the workplace and incidents that happened during his employment.
Mr Banwell completed a claim for compensation on 14 May 2013. On 30 October 2013 Comcare’s delegate accepted that Mr Banwell suffered from a work-related condition but determined that liability was excluded because the ailment was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of Mr Banwell’s employment.
On 30 November 2013 Mr Banwell requested reconsideration of the decision. On 19 February 2014 a Senior Review Officer of Comcare affirmed the delegate’s decision.
On 14 April 2014 the Tribunal received Mr Banwell’s application for review. Mr Banwell submitted that whilst Comcare accepted that his employment contributed to his condition to a significant degree, it had used a legal loophole to dismiss his case. Comcare maintains that its determination was appropriate.
RELEVANT LEGISLATION
Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provides:
Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment
...
Section 5A of the Act states:
Definition of injury
(1) In this Act:
injury means:
(a)   a disease suffered by an employee; or
(b)   an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)   an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2) For the purposes of subsection (1) and…

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 Banwell and Comcare (Compensation)

Details

AGLC: Banwell and Comcare (Compensation) [2016] AATA 30
Case: [2016] AATA 30
Decision Date: 28 January 2016

CaseChat Overview and Summary

In the case of Banwell and Comcare, the applicant, Mr Banwell, sought compensation for an adjustment disorder and/or depression he claimed arose from his employment with the Commonwealth. The dispute was heard by the Administrative Appeals Tribunal, which was tasked with determining whether Mr Banwell's condition qualified as an injury under the relevant legislative framework, thereby entitling him to compensation. The Tribunal was required to consider the definition of injury and whether Mr Banwell's condition met the criteria stipulated in the Act.

The central legal issue before the Tribunal was whether Mr Banwell's adjustment disorder and/or depression constituted an injury as defined by the Act. This involved examining the specific provisions of the legislation to determine if the claimed conditions were a result of employment and met the necessary criteria for compensation. Additionally, the Tribunal had to consider the applicable case law and any relevant precedents to ensure a comprehensive analysis of Mr Banwell's claim.

After thorough consideration, the Tribunal found that Mr Banwell's adjustment disorder and/or depression did not fall within the definition of injury as per the Act. Consequently, the Tribunal determined that Mr Banwell was not entitled to compensation. The Tribunal's decision was based on the conclusion that the conditions did not meet the statutory criteria for an injury arising out of employment. The Tribunal affirmed the original decision under review, upholding the Commonwealth's position.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal finds that Mr Banwell’s adjustment disorder and/or depression does not come within the definition of injury in the Act and he is not entitled to compensation.DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	GENERAL DIVISION
File Number	2014/1871
Re	Mark William Lister Banwell
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Regina Perton, Member
Date	28 January 2016
Place	Melbourne