MR R.E. WILLIAMS, QC: May it please the Court, in this matter I appear with MR R.L. CROWE, for the applicant. (instructed by Gary Robb & Associates)

MR R.R.S. TRACEY, QC: If the Court pleases, I appear with my learned friend, MR D.J. McGILL, for the respondent. (instructed by the Australian Government Solicitor)

MASON CJ: Mr Williams.

MR WILLIAMS: Your Honours, it is probably clear enough, though the judgments appealed from do not make specific reference to it, that the practical difficulty that confronted Mr Brennan was that the 1971 Act did not provide for lump sum for permanent impairment of a back. Your Honours will recall that in the Georgiadis case, the appellant there was, amongst other bars was confronted with the same bar. The distinction between the Georgiadis case and this present matter - and I will need to go to the Georgiadis case shortly - was that, whatever permanent impairment Mr Georgiadis might have had occurred well before 1 December 1988, probably, though the report does not make it clear, some time in 1986. The fact is that no issue arose in Georgiadis about whether he fell within section 124(3) of the Act; there was no question there as to when permanent impairment occurred.

None the less, in a passage in the judgment of this Court in Georgiadis, in a passage in His Honour Justice McHugh’s judgment, there is potentially a fundamental hurdle for the applicant in this case, and I should take the Court to it shortly. Certainly, Mr Justice Gummow, in the Full Court of the Federal Court attaches significance to parts of His Honour’s judgment in Georgiadis. But before I go to that decision, could I shortly state the principal matters that arise here. Mr Justice Neaves, whose reasoning was upheld by the Full Court, held that, in relation to section 124(3) of the Act, and in particular as to the question as to when permanent impairment occurs, that that question is addressed by ascertaining, relevantly for the purposes of the Brennan action, whether it could be said that damage to the applicant’s back was likely to continue indefinitely, before 1 December 1988. The applicant contends that the correct test for determining when permanency occurs, not the degree of permanency, but the fact of permanency, is by having regard to the criteria listed at section 24(2) of the Act, which necessarily involves the concept of loss of function and stabilisation.

Implicit in the judgments appealed from is the rejection of the Administrative Appeals Tribunal’s approach to determining when permanent impairment occurs, which is set out in the tribunal’s decisions at…

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 Brennan v Comcare

Details

AGLC: Brennan v Comcare [1994] HCATrans 48
Case: [1994] HCATrans 48
Decision Date

CaseChat Overview and Summary

In *Brennan v Comcare*, the applicant, Brennan, sought to appeal a decision of the Administrative Appeals Tribunal (AAT) which had affirmed the respondent, Comcare's, decision to reject Brennan's claim for compensation for a psychiatric injury. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the AAT had erred in law in its interpretation and application of section 14(1) of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (the Act). Specifically, the court had to determine whether the AAT had correctly construed the phrase "suffered injury" within the context of the applicant's claim for a psychiatric disorder, and whether the AAT had properly considered the causal connection between Brennan's employment and his condition.

Deane and Gaudron JJ held that the AAT had made an error of law. Their Honours reasoned that the AAT had failed to properly consider the evidence before it regarding the applicant's psychiatric condition and its relationship to his employment. The court emphasised that for the purposes of section 14(1) of the Act, an injury includes a disease, and a disease can manifest as a psychiatric disorder. The AAT's approach had, in their view, unduly narrowed the scope of what constitutes an injury under the Act and had not adequately addressed the question of whether the employment was a contributing factor to the applicant's condition.

The High Court allowed the appeal, setting aside the AAT's decision and remitting the matter to the AAT for redetermination according to law.

Orders