Caldwell and Comcare - [2008] AATA 450

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 450
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A 2005/384

GENERAL ADMINISTRATIVE DIVISION )

Re PHILLIP CALDWELL

Applicant

And

COMCARE

Respondent

DECISION

Tribunal
J.W. Constance, Senior Member

Dr M.D Miller AO, Member

Date 30 May 2008
Place Canberra

Decision
1.       The reviewable decision of Comcare made 30 November 2005 is set aside.

2.      In substitution for the decision set aside it is decided that pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988   Comcare is liable to compensate Mr Caldwell in respect of an injury being a psychiatric condition which first resulted in the impairment of Mr Caldwell on 23 December 2003 and which was contributed to in a material degree by his employment by ActewAGL.

3.      The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made, Comcare shall pay the costs of the proceedings incurred by Mr Caldwell.

..................[signed]...................
J.W. Constance, Senior Member

CATCHWORDS
COMPENSATION – whether ‘disease’ contributed to in a ‘material degree’ by employment by employment – whether disease a result of ‘reasonable disciplinary action’ – whether disease a result of ‘failure to obtain a benefit’ – whether injury caused by ‘serious and wilful misconduct’ – injury contributed to in a material degree by employment – decision set aside and substituted.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 7, 14
Adams and Australian Postal Corporation [1993] AATA 355
Comcare v Calipari [2001] FCA 1534
Comcare v Eames [2008] FCA 422
Comcare v Sahu-Khan [2007] FCA 15
Commission of Safety and Rehabilitation of Commonwealth Employees v Chenhall (1992) 37 FCR 75
Re Elvin and Comcare (1998) 51 ALD 706
Re Hardman and Inco Ships Pty Ltd (2006) 92 ALD 663
Inco Ships Pty Ltd v Hardman [2007] FCA 1138
Johnson v Marshall Sons & Co Ltd [1906] AC 409
Kelly and Comcare (2006) 93 ALD 658
Weigand v Comcare Australia (No 2) [2007] FCA 237
REASONS FOR DECISION
INTRODUCTION
4.      Mr Caldwell is seeking a review of a decision by Comcare to deny liability to compensate him for an injury which he says was contributed to by his employment as a switcher employed by ActewAGL. For the reasons which follow the decision shall be set aside and a decision accepting liability will be substituted.
FINDINGS OF FACT
5.      Unless otherwise stated the following findings of fact are based on the evidence of Mr Caldwell. We are satisfied of the facts found on the balance of probabilities.
6.      In 1985 Mr Caldwell started work with the predecessor of ActewAGL as a cable layer. He qualified as a linesman in 1990 and from that time onwards he was accustomed to working with live electricity lines, protected by safety gloves. Later he obtained his "A" grade qualifications which allowed him to work with live lines without supervision.
7.      Mr Caldwell worked as a linesman until he qualified as a switcher about 1999. The task of a switcher…

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 Caldwell and Comcare

Details

AGLC: Caldwell and Comcare [2008] AATA 450
Case: [2008] AATA 450
Decision Date: 30 May 2008

CaseChat Overview and Summary

The case before the court was between Mr Caldwell and Comcare, regarding a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988. The dispute centred around whether Mr Caldwell's psychiatric condition was an injury for which Comcare was liable to compensate. Specifically, the condition was alleged to have resulted from a combination of factors, including employment by ActewAGL and certain disciplinary actions taken against Mr Caldwell. Comcare had previously rejected the claim, and Mr Caldwell sought judicial review of that decision.

The primary legal issue was whether Mr Caldwell's psychiatric condition was a disease that was contributed to in a material degree by his employment. The court had to determine whether the condition was a result of reasonable disciplinary action, a failure to obtain a benefit, or serious and wilful misconduct, all of which would exclude liability for compensation. Furthermore, the court needed to assess if the injury was contributed to in a material degree by Mr Caldwell's employment, which was a critical factor in determining Comcare's liability.

The court found that Mr Caldwell's psychiatric condition was indeed an injury for which Comcare was liable to compensate. The condition first resulted in impairment on 23 December 2003 and was contributed to in a material degree by his employment. The court held that the disciplinary actions and other factors did not exclude Comcare's liability under the Act. Consequently, the decision of Comcare rejecting the claim was set aside, and it was decided that Comcare must compensate Mr Caldwell for the injury.

The final orders of the court included setting aside the reviewable decision of Comcare made on 30 November 2005, and substituting it with a decision that Comcare is liable to compensate Mr Caldwell for the injury being a psychiatric condition. The court also granted liberty to the parties to apply within 14 days in relation to costs, with the provision that if no such application is made, Comcare shall pay the costs of the proceedings incurred by Mr Caldwell.

Orders

Orders of the court

1. The reviewable decision of Comcare made 30 November 2005 is set aside.

2. In substitution for the decision set aside it is decided that pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 Comcare is liable to compensate Mr Caldwell in respect of an injury being a psychiatric condition which first resulted in the impairment of Mr Caldwell on 23 December 2003 and which was contributed to in a material degree by his employment by ActewAGL.

3. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made, Comcare shall pay the costs of the proceedings incurred by Mr Caldwell.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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