Barnes and Comcare (Compensation) - [2023] AATA 2285

Barnes and Comcare (Compensation) [2023] AATA 2285 (31 July 2023)
Division:GENERAL DIVISION
File Number(s): 2022/1607
Re:Darren Barnes
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member O'Donovan
Date:31 July 2023
Place:Canberra

The respondent is to pay 50% of the applicant’s reasonable party/party costs as agreed or taxed.
………………………[sgd]………………………
Senior Member O’Donovan
CATCHWORDS
COSTS – whether costs should be ordered under s 67(8) of the SRC Act – whether indemnity costs should be awarded – when the discretion to award costs may be exercised – whether the reviewable decision was fundamentally defective – which party is responsible for uncertainty arising from deficiencies in the evidence – where leave was given for evidence to be filed late – whether prejudice to the respondent arose – costs ordered in part
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 5A(b), 14, 66, 67(8)
CASES
Beezley v Repatriation Commission [2015] FCAFC 165
Military Rehabilitation Compensation Commission v May (2016) 257 CLR 468
REASONS FOR DECISION
Senior Member O'Donovan
31 July 2023

The applicant seeks an order that the respondent pay the costs he incurred in the running of these proceedings either on a party/party or an indemnity costs basis. The respondent resists that application and contends either:
(a)that no order for costs should be made; or
(b)if a costs order is made, it should only cover the applicant’s costs from 27 April 2023 inclusive (when the last of the applicant’s evidence was filed).[1]
[1] I note that the respondent’s submissions at [3] and [26] suggest that the order should cover costs ‘up to and including 27 April 2023’ but, in light of the remainder of the submissions I have read this as proposing that costs should only be awarded ‘on and from 27 April 2023’.
The Tribunal’s power to award costs in this case is derived from section 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). It provides as follows:
Where in any proceedings instituted by the claimant, the Administrative Appeals Tribunal makes a decision:
(a)…
(b)setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision;
the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority.
There is no doubt that the precondition which triggers the discretion to award costs has been satisfied. On 22 May 2023 I issued a decision setting aside a reviewable decision of the respondent and decided, that the applicant was entitled to be paid compensation pursuant to section 14 of the SRC Act in relation to a cardiac event that occurred on 15 October 2020 while the applicant was at work.
Accordingly, the only issue which needs to be considered is how the discretion should be exercised.
The applicant’s position is that in light of the more favourable decision the respondent should pay the…

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 Barnes and Comcare (Compensation)

Details

AGLC: Barnes and Comcare (Compensation) [2023] AATA 2285
Case: [2023] AATA 2285
Decision Date: 31 July 2023

CaseChat Overview and Summary

This matter concerned an application for costs under section 67(8) of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act) following a decision by the Administrative Appeals Tribunal. The applicant, Mr Barnes, sought costs against Comcare, arguing that Comcare's decisions were fundamentally flawed and that the proceedings were unnecessarily prolonged. Comcare contended that the applicant's case emerged late and in unsatisfactory circumstances, and that the complexity of the medical evidence made the matter difficult to resolve.

The Tribunal was required to determine whether to exercise its discretion to award costs, and if so, whether indemnity costs or ordinary costs should be ordered. Specifically, the Tribunal had to consider whether Comcare's reviewable decision was fundamentally defective, which party was responsible for the uncertainty arising from deficiencies in the evidence, and whether prejudice arose to Comcare due to the late filing of evidence.

The Tribunal found that while the applicant's initial attempts to provide evidence regarding the physiological change constituting his injury were unsatisfactory, the complexity of distinguishing between the onset of symptoms from deterioration of underlying heart disease and the onset of symptoms from a physiological change meant that the matter was not straightforward. The Tribunal was not satisfied that Comcare's original or reviewable decisions were obviously wrong or incompetent, particularly given the evidence available to decision-makers at the time. The Tribunal noted that claims involving disruption of internal systems against a background of long-term ailments are inherently difficult to resolve, and that the applicant's assertion that the decision was clearly wrong overlooked this complexity and the detailed evidence now required following *Military Rehabilitation and Compensation Commission v May*.

The Tribunal ordered that Comcare pay the applicant's costs in part, reflecting the Tribunal's assessment of the conduct of the parties and the overall circumstances of the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Consequently, when the application was made to the Tribunal, there was an evidentiary gap that needed to be filled. A more precise description of the physiological change which took place in the time when the applicant was at work was required.The applicant’s evidence filed in support of the claim The applicant’s early attempts to provide that evidence were unsatisfactory to say the least. The first report of Associate Professor Haber dated 30 June 2022 opined in relation to the 2020 event, seemingly without evidence, that the applicant ‘is reported to have had a heart attack with a very high troponin level…he is very lucky to have survived it.’[8][8] Exhibit A2 p 4. That statement was not correct. In the remainder of the report, Associate Professor Haber seemed to confuse the effects of an earlier heart attack suffered by the applicant in 2016 with the 2020 event. In a follow up report dated 8 July 2022, Associate Professor Haber re-answered the question ‘In your opinion did Mr Barnes suffer from a heart attack on 15 December 2020?’ In answering that question, he had access to the hospital discharge notes which he noted said:[9]Normal troponin level (<2) Troponin is a marker for the damage to the heart muscle. Coronary angiogram showed 80% stenosis (blockage) of the left circumflex artery other arteries having minor disease only.[9] Exhibit A3 p 2. Associate Professor Haber reported:He was admitted to hospital because he had 2 episodes of chest pain, cardiac in nature (angina), but there was no evidence of a heart attack as such. ECG did not show any ischaemic changes and troponin was normal. He did not have NSTEMI – ie a NON-ST-ELEVATION MYOCARDIAL INFARCTION This report appeared to rule out a sudden or dramatic physiological change which could constitute a frank injury. Accordingly, the need to identify the physiological change which constituted the injury suffered by the applicant on 15 December 2020 remained. On 7 September 2022 the Tribunal made the following directions in relation to the filing of the applicant’s evidence:On or before 12 October 2022, the Applicant must provide the Tribunal and the Respondent a Statement of Facts, Issues and Contentions (no more than 10 pages) and a statement from the Applicant and any other evidence on which he intends to rely. On 4 October 2022 the direction was varied to give the applicant until 4 November 2022 to provide the material. On 3 November 2022 the applicant filed a statement of facts issues and contentions. It relevantly provided as follows:Whatever the diagnosis it is clear that an event occurred, the Applicant was hospitalised, and a stent inserted to circumvent a significant arterial blockage. For an injury within the meaning of section 5A SRCA to occur, there need only be some harmful physiological change. An arterial blockage causing chest pain, meets this description whatever the diagnosis.In Wuth v Comcare ([2022] FCAFC 42 the Full Federal Court noted the fact no physiological change can be identified on imaging scans or otherwise identified with specificity, does not mean that no physiological change has occurred (at 112-112). In Re Campion and Comcare [2021] D.P.Sosso held that the physiological change could be inferred from a change in the state of symptoms experienced, including chronic pain. For an injury within the meaning of section 5A, the injury needs to ‘arise out of or in the course of the employment’.‘In the course of employment’ connotes only a temporal test with the employment i.e. that the injury occurred at work… This includes heart attacks or strokes occurring at work (Re Garratt and Comcare (2015) AATA 801). The Applicant’s cardiac events of 15 December 2020 occurred at work and so it is not necessary to find any causal connection to the employment….In the present case there are three work causes:(a) The first work related heart attack in June 2016 for which liability was admitted;(b) The work psychological stresses causing blood pressure;(c) The work physical stresses.In addition or in the alternative, the second cardiac events is a deterioration and hence an aggravation of the first heart attack.In the further alternative, if an employee suffers a compensable injury which has left them with a weakness or susceptibility which contributes to a second compensable or non-compensable injury, the effects of the second injury are still thereby compensable… Such is the present case.

Decision

Reasons for decision

Before turning to the exercise of the discretion itself it is important to lay out in some detail the procedural history of the matter. The Tribunal, unlike a court, does not have the benefit of pleadings and the bright lines they provide for identifying when an opposing party was given notice of the formulation of the applicant’s case which was ultimately successful. Accordingly, it is necessary to analyse the proceedings more generally to consider at what point it became apparent that the applicant had a persuasive argument on the question of liability. The applicant takes the view that it was obvious all along, whereas the respondent’s view is that the merit of the claim emerged late and in unsatisfactory circumstances.The Comcare Decisions The starting point for the applicant is that Comcare’s original decisions were obviously wrong and incompetent. If I were to accept that claim, then the applicant would be entitled to expect an exercise of the costs discretion in his favour on the basis that the proceedings were always avoidable by Comcare making the correct decision in the first place. Having reviewed the T Documents and Comcare’s decisions, I am not satisfied that the original determination and the reviewable decision were obviously wrong or incompetent, or indeed incorrect having regard to the evidence that was available to the decision makers at the time. In support of the assertion that the decisions were ‘deeply flawed’,[2] the applicant put forward the argument that as the applicant suffered a coronary event at work, the temporal test for compensation is satisfied and no causation issue arises, as it would if the injury had not occurred at work. The argument is put in the following terms:[3]From the beginning of the matter, Comcare made a poor decision, and was focused only on the causal test rather than the temporal test and on the physiological change that occurred at the workplace on 15 December 2020.[2] Applicant’s submissions dated 23 May 2023 [9].[3] Ibid. The first point to note is that claims involving disruption of internal systems, against a background of long-term ailments, are extremely difficult to resolve. It cannot easily be ascertained whether the symptoms suffered by the applicant at work were a single event satisfying the temporal test for an injury, or whether they formed part of the deterioration of an ongoing affliction, which in this matter may have begun at an earlier point in time including the night before the applicant attended work. The assertion that the reviewable decision was clearly wrong glosses over the complexity of the analysis and the detailed evidence which is now required to resolve these kinds of matters following the High Court’s decision in Military Rehabilitation and Compensation Commission v May.[4] Distinguishing between the onset of symptoms from deterioration in underlying heart disease as opposed to the onset of symptoms from a physiological change in the body which can be appropriately classed as an injury is not easy.[4] (2016) 257 CLR 468 (‘May’).

Ratio Decidendi

Legal Principle Established

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