Calipari and Comcare - [2001] AATA 348

DECISION AND REASONS FOR DECISION [2001] AATA 348

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/217

GENERAL ADMINISTRATIVE DIVISION       )
           Re      FRANK CALIPARI
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date27 April 2001
PlaceCanberra

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor: (a) decides that the injury resulting from the incident on 15 December 1999 was not caused by the applicant's serious and wilful misconduct; (b) remits the matter to the respondent for calculation of compensation payable to the applicant as a result of this injury; and, (c) pursuant to section 67 of the Safety, Rehabilitation and Compensation Act 1988, orders that the respondent pay the applicant's costs. In the absence of agreement between the parties, costs are to be taxed by a District Registrar or Deputy District Registrar and liberty to apply is reserved to both parties.
  (Signed)
  J.A. KIOSOLGOUS
  (Senior Member)
CATCHWORDS
COMPENSATION – serious and wilful misconduct – comments by applicant leading to assault by fellow employee – serious and wilful conduct considered – whether serious injury reasonably foreseeable – "serious" considered
Safety Rehabilitation and Compensation Act 1988 ss.14, 67
Re Virasinghe and Comcare (1996) 45 ALD 145
Hills v Brambles Holdings Pty Ltd (1987) 4 ANZ Insurance Cases 60-785
Re Adams and Australian Postal Corporation (AAT 9152, 11 October 1993)
Johnson v Marshall Sons & Co Ltd [1906] AC 409
Re Elvin and Comcare (1998) 51 ALD 706
Re Grime and Telstra Corporation Ltd (1994) 20 AAR 43
Fleming v Hutchinson (1991) 66 ALJR 211

REASONS FOR DECISION

27 April 2001 Senior Member J.A. Kiosoglous MBE

This is an application by Mr Frank Calipari (the applicant) for review of a decision of a review officer of the respondent dated 1 June 2000 (T39) which affirmed upon review a decision of a delegate of the respondent dated 19 January 2000 (T26) denying liability for a claimed lower back injury.
The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T39), together with seventeen exhibits, nine lodged by the applicant (Exhibits A1-A9) and eight lodged by the respondent (Exhibits R1-R8). In addition, the Tribunal heard evidence from the applicant. The respondent called as witnesses Ms N. Relph, Supervisor, Mr B. Jamieson, Supervisor, Mr R. Altman and Mr R. Henderson, work colleagues of the applicant. The applicant was represented by Mr J. Sabherwal and the respondent was represented by Mr D. O'Donovan, both of counsel.
The respondent concedes that the applicant does in fact suffer from the claimed lower back injury. The sole issue before the Tribunal is whether or not the applicant's back injury resulted from his serious and wilful misconduct, so as to disentitle him to compensation pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act).
history of the application
The applicant was involved in an incident on 15 December 1999 during…

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 [2001] AATA 348
Case: [2001] AATA 348
Decision Date: 27 April 2001

CaseChat Overview and Summary

The applicant, Calipari, applied to the Administrative Appeals Tribunal (AAT) for review of a decision by Comcare to reject his claim for compensation for a serious injury he sustained at work. The injury occurred when a fellow employee, Mr Roland Altman, jumped onto the applicant's desk causing him to fall. The applicant argued that his injury was not caused by his own serious and wilful misconduct, as alleged by Comcare. The AAT was required to determine whether the applicant's actions constituted serious and wilful misconduct, and whether the injury was reasonably foreseeable as a result of those actions.

The AAT found that the applicant was generally lacking in credit, but accepted his evidence that he did not foresee Mr Altman jumping onto his desk. The Tribunal held that the action of jumping onto the desk was beyond what was reasonably foreseeable as a result of the applicant's misconduct, and therefore did not constitute serious and wilful misconduct. The Tribunal also noted that the applicant had not been given any specific counselling on the APS values and code of conduct, which may have helped prevent the incident.

The AAT set aside the decision to reject the applicant's claim for compensation and remitted the matter to Comcare for calculation of compensation payable. The Tribunal also ordered Comcare to pay the applicant's costs. The parties were given liberty to apply for costs to be taxed by a District Registrar or Deputy District Registrar.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 20 December 1999 the applicant submitted a claim to the respondent in relation to "lumbar back strain" (T18). This claim was rejected on 19 January 2000 (T26). The decision to reject the applicant's claim was affirmed upon review dated 1 June 2000 (T39).applicant's evidence The applicant was born on 21 March 1969, and was employed as an APS 1 on a three-month temporary contract by the ABS between late September 1999 and 23 December 1999. He was involved in data processing work as part of a census data inputting trial. He had previously worked as a commercial tiler, but had been retrained through administrative courses. The applicant told the Tribunal that at the ABS he sat at a desk located in a row of desks. Mr Roland Altman and Mr Robert Henderson worked on desks in his immediate vicinity (see Exhibits A6, A7 and A8). He stated that he was an honorary member of the ABS social club and would talk to other employees during their breaks, and during a number of lunches they had as a group. He further stated that he got to know Mr Roland Altman as well as anyone else as a result of these occasions. On 19 October 1999 the applicant was involved in an incident with a Mr Troy Carter, a fellow employee. He stated that he had yelled out across the office to Mr Carter asking him why he was reading a book during work time. He stated that Mr Carter made a hand gesture and a "slitting throat motion". He further stated that he waited five minutes before clocking off at the end of the day, as he knew that "something fishy" might happen, due to Mr Carter's slit throat motion. He considered that Mr Carter must have been upset because Mr Carter followed him out to the carpark and threatened his life. The applicant stated that he was aware that Mr Altman and Mr Harvey (another employee) had had a "run in" and that it had involved harassment. He stated that he was not aware of Mr Altman having a history of violence, and had only heard rumours that he harassed people. He stated that he had formed the view that Mr Carter and Mr Altman were bullies, and was aware that they practiced martial arts. The applicant stated that following the 19 October 1999 incident, he was called to a meeting with Mr Carter by one of his supervisors, at which time they were told to keep away from each other. He further stated that he was never given special counselling, and could not recall being counselled as to the Australian Public Service (APS) values and code of conduct. He considered that he may have been given a copy of the code of conduct and told that yelling out comments could be in breach, but had no specific recollection. In relation to the incident on 15 December 1999 the applicant stated that at 9.50 am he was taking his morning break, eating a can of baked beans at his desk, with Mr Henderson and Mr Altman being in the vicinity. He told the Tribunal that he had earlier seen Mr Carter and Mr Altman together, and wanted to question Mr Altman about what Mr Carter might be up to with regards to a harassment complaint against him.

Decision

Reasons for decision

Whilst the Tribunal found the applicant to be generally lacking in credit, it does accept his evidence that he first thought that Mr Altman had jumped onto the desk as a joke. He had not foreseen that that would happen, and it was not a reasonably foreseeable risk. It was an action beyond that which was reasonably foreseeable as a result of the applicant's misconduct, and the Tribunal so finds. decision For the above reasons, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor:(a)decides that the injury resulting from the incident on 15 December 1999 was not caused by the applicant's serious and wilful misconduct;(b)remits the matter to the respondent for calculation of compensation payable to the applicant as a result of this injury; and,(c)pursuant to section 67 of the Safety, Rehabilitation and Compensation Act 1988, orders that the respondent pay the applicant's costs. In the absence of agreement between the parties, costs are to be taxed by a District Registrar or Deputy District Registrar and liberty to apply is reserved to both parties. I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBESigned: ..................................................................................... Personal AssistantDate/s of Hearing 22 & 23 March 2001 Date of Decision 27 April 2001Counsel for the Applicant Mr J. Sabherwal Solicitor for the Applicant Gary Robb & Associates Counsel for the Respondent Mr D. O'Donovan Solicitor for the Respondent AGS

Ratio Decidendi

Legal Principle Established

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