Baranski v Comcare

Case [2012] FCA 925

FEDERAL COURT OF AUSTRALIA

Baranski v Comcare [2012] FCA 925

Citation: Baranski v Comcare [2012] FCA 925
Appeal from: Baranski and Comcare [2012] AATA 115
Parties: MICHAEL BARANSKI v COMCARE
File number: NSD 463 of 2012
Judge: YATES J
Date of judgment: 31 August 2012
Catchwords: ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – revocation of determination to compensate for injury alleged to have been suffered arising out of or in the course of employment – whether error of law in the decision of the Administrative Appeals Tribunal
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 14, 62, 64

Federal Court Rules 2011 (Cth) r 33.12

Cases cited: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223
Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515
Avon Downs Proprietary Limited v Federal Commissioner of Taxation (1949) 78 CLR 353
Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321
Comcare v Etheridge (2006) 149 FCR 522
Davies v Australian Securities Commission (1995) 131 ALR 295
Dornan v Riordan (1990) 24 FCR 564
HBF Health Funds Inc v Minister for Health and Ageing (2006) 149 FCR 291
Luxton v Vines (1952) 85 CLR 352
McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609
McDonald v Director-General of Social Security (1984) 1 FCR 354
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Norton v Comcare (2000) 31 AAR 488
Telstra Corporation Limited v Bowden [2012] FCA 576
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175
Waterford v The Commonwealth of Australia (1987) 163 CLR 54
Date of hearing: 13 August 2012
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 126
Counsel for the Applicant: Mr DE Baran
Solicitor for the Applicant: Stephen Smart & Associates
Counsel for the Respondent: Ms RM Henderson
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 463 of 2012
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

MICHAEL BARANSKI
Applicant
AND:

COMCARE
Respondent

JUDGE:

YATES J

DATE OF ORDER:

31 AUGUST 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 463 of 2012
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

MICHAEL BARANSKI
Applicant
AND:

COMCARE
Respondent

JUDGE:

YATES J

DATE:

31 AUGUST 2012

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. This is an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 27 February 2012 which affirmed a decision of a delegate of the respondent, Comcare, dated 5 August 2010. The delegate’s decision was to revoke a determination dated 10 August 2007 and to…

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Baranski v Comcare [2012] FCA 925
Case
[2012] FCA 925
Decision Date

CaseChat Overview and Summary

Baranski v Comcare is an appeal against a decision of the Administrative Appeals Tribunal (the Tribunal) which affirmed a decision of the respondent, Comcare, to revoke a determination to compensate the applicant for an injury he alleged to have been suffered arising out of or in the course of employment. The applicant claimed to have injured his back at work when returning a toolbox to a storage cabinet, and subsequently developed a depressive illness. Comcare accepted liability for both conditions, but later revoked the determination and denied liability. The applicant appealed to the Tribunal, which affirmed the delegate’s decision. The applicant now appeals to the court, contending that the Tribunal erred in its assessment of the evidence. The central issue before the court was whether the Tribunal erred in its assessment of the evidence when it found that the applicant did not injure himself as he had claimed.

The court held that the Tribunal’s decision was not so unreasonable that no reasonable decision-maker could have arrived at it. The Tribunal had carefully considered the evidence, including the lay and medical evidence, and was entitled to conclude that the applicant did not injure himself as he had claimed. The Tribunal found that Ms Hodge, a project engineer, was present when the applicant returned the toolbox to the cabinet, and did not observe the applicant to experience any severe pain or to sit down, as the applicant had claimed. This evidence was relevant to the question of the acceptance of the applicant’s version of the events. The Tribunal was entitled to weigh up the evidence as it found it to be, and to conclude that the applicant did not injure himself as he had claimed. The court found that the applicant had failed to establish that the Tribunal’s decision was vitiated by error of law. Accordingly, the appeal was dismissed with costs.

Orders

Orders of the court

1. The appeal be dismissed with costs.

Background

Background to the litigation

This is an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 27 February 2012 which affirmed a decision of a delegate of the respondent, Comcare, dated 5 August 2010. The delegate’s decision was to revoke a determination dated 10 August 2007 and to deny liability for compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of the applicant’s condition of “displacement of intervertebral disc-lumbar” and his secondary condition of “major depressive disorder, recurrent episode”. The appeal is brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).BACKGROUND The applicant’s claim is that he injured his back at work on the morning of Friday 23 March 2007 when returning a toolbox to a storage cabinet. At the time, the applicant was employed as a technical officer at the Centre of Maritime Engineering (CME) in the Department of Defence. On 10 May 2007 he lodged a claim for compensation. On 10 August 2007 the respondent accepted liability in respect of that claim. In time, the applicant also developed a depressive illness. On 7 August 2009 the respondent accepted liability for this secondary condition. On 23 June 2010 the applicant’s employer sought a reconsideration of the respondent’s acceptance of liability. This reconsideration led to the delegate’s decision of 5 August 2010. Section 14(1) of the Act provides: 14 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(1) of the Act relevantly provides: 5A Definition of injury(1) In this Act:injury means:…(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; …… The Commonwealth may request a determining authority to reconsider a determination made by it: s 62(2) of the Act. A decision made under s 62(2) of the Act is a “reviewable decision”. Application can be made to the Tribunal to review such a decision: s 64(1) of the Act. In the present case the only question before the Tribunal was whether the respondent was liable under s 14 of the Act to compensate the applicant for an injury to his back which he claimed had occurred at work. If that physical injury was not work-related, in the sense that it did not arise out of or in the course of his employment, then the respondent was not liable. If the respondent was not liable to compensate the applicant for the injury to his back, it followed that it was also not liable to compensate the applicant for his psychiatric condition, which was secondary to his physical injury. The Tribunal accepted that:·the applicant removed a toolbox from a cabinet, and replaced it, on 23 March 2007;·the applicant had sustained an injury to his lumbar spine (namely, a disc protrusion); and ·the weight of the medical evidence supported the view that a lifting and twisting action, such as described by the applicant when lifting the toolbox, is the most usual cause of a disc protrusion.

Evidence

Evidence Before The Court

The Tribunal also had before it a large amount of documentary material, which included written statements by the applicant and the lay witnesses, and various medical reports. The lay evidence The applicant gave two versions of the events of the morning of 23 March 2007 when he claims to have suffered his injury. He says that he was at his desk at about 9.15 am on that day when Ms Hodge, a project engineer, asked him to get two industrial thermometers from the toolbox where they were stored. The applicant was eating his breakfast at the time and asked Ms Hodge to return in about 20 minutes. It is common ground that Ms Hodge left and then returned a short time later. In an Accident Report dated 29 March 2007, and in a written statement dated 30 November 2010, the applicant said that at about 9.25 am he picked up the toolbox from the cabinet, removed the thermometers and placed them on his desk. He then returned the toolbox to the cabinet. He said that he did this by bending to a squatting position and twisting to the side, extending his arms. He said that he immediately felt a “strong current” running from his left foot up his left leg and into his lower back. He said this was “like a strong zapping pain”. After managing to get the toolbox inside the cabinet the applicant said that he immediately sat down because he was experiencing strong cramps in his lower left leg. He said that, once the pain lessened, he locked the cabinet and returned to his work. He said that Ms Hodge returned at about 9.45 am. He handed her the thermometers and she left immediately. The Tribunal recorded that, in his oral evidence, the applicant described a different sequence of events. He said that he was removing the thermometers from the toolbox when Ms Hodge returned. He gave them to her and she left. He then closed the toolbox and returned it to the cabinet. He repeated his evidence that on returning the toolbox to the cabinet he experienced severe pain, which he described as a “kind of electrocution” from his foot up into his back. He said that he dropped the toolbox in the cabinet, sat down and rubbed his leg to ease the pain. In each of these accounts the applicant’s evidence was that he was alone when returning the toolbox to the cabinet. The applicant did not report this incident at the time. In his written statement of 30 November 2010 he said that Mr Elliot gave him new tasks to do at about 10.15 am which kept him busy for the rest of the day. He said, however, that he found it very difficult to work for the rest of the day because the pain kept returning and he had to keep rubbing his thighs to relieve it. He said that at lunchtime he went for a walk to try to ease the pain. This gave him some relief but he said that he continued to experience cramps and “tremendous pain”. He said that he went for a walk again after lunch to try to ease the pain. He said that he was limping when he left work at 4.15 pm. The applicant said that he continued to experience pain and muscle spasms in his leg when travelling home by train. He said that at home he walked to the end of his long driveway with difficulty but the pain forced him back to the house. He said that, by the evening, the pain was so bad that he had to take to his bed. He described the pain in his back and left leg as “severe”.

Decision

Reasons for decision

In my view, when regard is had to the way in which the Tribunal went about its task in the present matter – as reflected in its recording of the evidence, its findings of fact and its reasons for making those findings – it cannot be said that its decision was so unreasonable that no reasonable decision-maker could have arrived at it. As I have found in relation to ground 7, it was open to the Tribunal to conclude, on all the evidence, that the applicant did not injure himself as he had claimed. It simply does not matter that another decision-maker might have come to a different view on the same facts.CONCLUSION The applicant has failed to establish that the Tribunal’s decision is vitiated by error of law. It follows that the appeal should be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Notwithstanding these matters, the respondent raised no complaint about the form of the amended notice of appeal. It was content to deal with the substance of the matters that the applicant raised in his grounds. In the circumstances, I shall decide the matter likewise. CONSIDERATIONGround 1 This ground discloses no error of law in the Tribunal’s decision. In substance the ground invites the Court to substitute, impermissibly, its own views as to whether Ms Hodge’s evidence should have been accepted by the Tribunal. In that connection the applicant points to various concessions made by Ms Hodge in the course of her evidence and asserts that the Tribunal took no account of those concessions. One particular matter raised by the applicant was that, in a written statement, Ms Hodge said that she had observed no obvious lifting by the applicant of the toolbox on the morning of Friday 23 March 2007 when the applicant returned it to the cabinet. The applicant points out that any such lift was only 5 cm. Ms Hodge explained, however, that what she meant by her statement was that she did not observe the applicant to lift the toolbox as if placing it on a shelf. It is not clear to me how the applicant says that this concession, if it be one, adversely affected Ms Hodge’s overall credit or the acceptance of her evidence more generally. It is clear from the Tribunal’s reasons that it carefully considered Ms Hodge’s evidence. The Tribunal did not accept some parts of it, such as her evidence that she, herself, returned the thermometers to the toolbox on Monday 26 March 2007. The Tribunal made a finding that it was likely that Ms Hodge was mistaken on that particular point. Nevertheless, she impressed the Tribunal as a truthful witness who had no reason not to tell the truth. The Tribunal was prepared to accept her evidence generally and, more particularly, where her evidence was in conflict with the applicant’s own evidence on matters that were important for the Tribunal’s consideration. This was a matter of factual evaluation that was peculiarly for the Tribunal to make. Significantly, it found that, contrary to the applicant’s evidence, Ms Hodge was present when the applicant returned the toolbox to the cabinet on the morning of Friday 23 March 2007. Under this ground the applicant also advances a somewhat different contention, namely that, based on the medical evidence, it could not have mattered at all whether Ms Hodge was present at the time the applicant placed the toolbox in the cabinet. This contention is really an invitation to the Court to embark upon a weighing of the evidence before the Tribunal. The particular matter that impressed itself upon the Tribunal was that, if the applicant experienced severe pain at the moment he returned the toolbox to the cabinet, and had to sit down, as he had claimed, Ms Hodge would have seen this happen. The effect of her evidence was that she was present and it did not happen. On any view, Ms Hodge’s observation (or lack of it), on the facts as the Tribunal found them to be, was relevant to the question of the acceptance of the applicant’s version of the events. It was for the Tribunal to engage in that fact-finding role and to weigh up the evidence as it found it to be.Ground 2