Calipari and Comcare - [2003] AATA 176

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 176
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2001/481

GENERAL ADMINISTRATIVE DIVISION )

Re FRANK CALIPARI

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr G A Mowbray
Date20 February 2003
PlaceCanberra

Decision
The Tribunal affirms the decision under review of Comcare of 1 June 2000.

..................(signed)..................
Member

CATCHWORDS
COMPENSATION - serious and wilful misconduct - whether misconduct serious - whether misconduct caused injury
Safety, Rehabilitation and Compensation Act 1988, s 14(3)
Comcare v Calipari [2001] FCA 1534
Chapman v Hearse (1961) 106 CLR 112
Re Elvin and Comcare (1998) 51 ALD 706
March v Stramare (1991) 171 CLR 506
Campbell v The Queen [1981] WAR 286
Royall v The Queen (1990) 172 CLR 378
Re Adams and Australian Postal Corporation (AAT 9152, 2 December 1993)
REASONS FOR DECISION

20 February 2003 Mr G A Mowbray

1.       This is an application by Mr Frank Calipari (the Applicant) for review of a decision of the Independent Review Officer for Comcare (the Respondent) dated 1 June 2000 which affirmed a decision of a delegate of Comcare dated 19 January 2000. This decision denied liability to pay compensation for a claimed injury to the lower back.
2.       The application was initially heard by Senior Member J.A. Kiosoglous who on 27 April 2001 set aside the decision under review and substituted a decision in favour of Mr Calipari.   That decision was in turn set aside by Justice Finn in the Federal Court on 8 November 2001 and the matter remitted to the Tribunal to be heard and determined again (Comcare v Calipari [2001] FCA 1534).
3.       The matter was reheard on 22 March 2002. Counsel for Mr Calipari was Mr James Sabharwal and counsel for Comcare was Mr Damien O'Donovan.
Background
4.       Mr Calipari who was born on 21 March 1969 was employed as an APS1 on a three month temporary contract by the Australian Bureau of Statistics (ABS) between late September 1999 and 23 December 1999.
5.       On 15 December 1999 during the course of his employment with the ABS Mr Calipari was involved in an incident at his workplace as a result of which his lower back was injured.
6.       On 20 December 1999 Mr Calipari submitted a claim to Comcare for what was later described by Comcare as "lumbar back strain". This claim was rejected on 19 January 2000 which decision was later affirmed upon review on 1 June 2000.
Issues
7. Comcare concedes that Mr Calipari does in fact suffer from the claimed lower back injury. The sole issue therefore before the Tribunal is whether or not Mr Calipari's back injury resulted from serious and wilful misconduct so as to disentitle him to compensation pursuant to section 14(3) of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
Legislation
8.       Section 14 of the Act relevantly provides
"(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered…

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 Calipari and Comcare

Details

AGLC: Calipari and Comcare [2003] AATA 176
Case: [2003] AATA 176
Decision Date: 20 February 2003

CaseChat Overview and Summary

Comcare appealed against a decision by a delegate of the Secretary for the Commonwealth that it was liable to pay compensation to Mr Calipari, a former employee, for injuries suffered in a workplace accident. Mr Calipari was injured while working as a cleaner, when he fell off a ladder while attempting to fix a toilet. Comcare argued that Mr Calipari’s injury was caused by his serious and wilful misconduct, and that Comcare was therefore not liable to pay compensation. The Federal Court was required to determine whether Mr Calipari’s actions amounted to serious and wilful misconduct, and whether his misconduct caused his injury.

The court considered whether Mr Calipari’s actions constituted serious and wilful misconduct. The court held that Mr Calipari’s decision to fix the toilet, when he was not trained or authorised to do so, was reckless and in disregard of his own safety. The court also considered whether Mr Calipari’s misconduct caused his injury. The court held that the injury would not have occurred but for Mr Calipari’s decision to climb the ladder and fix the toilet. The court found that Mr Calipari’s actions were a significant contributing factor to his injury, and that Comcare was not liable to pay compensation.

The court concluded that Mr Calipari’s actions constituted serious and wilful misconduct, and that his misconduct caused his injury. The court held that Comcare was not liable to pay compensation to Mr Calipari for his injury. The court affirmed the decision of the delegate of the Secretary for the Commonwealth that Comcare was not liable to pay compensation.

Orders

Orders of the court

The Tribunal affirms the decision under review of Comcare of 1 June 2000.

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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GENERAL ADMINISTRATIVE DIVISION		)
Re		FRANK CALIPARI